
USCA1 Opinion

	




          June 16, 1993     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-2468                                     LEE J. TOPP,                                 Plaintiff, Appellee,                                          v.                                 THOMAS J. WOLKOWSKI                                and THOMAS J. LOMBARDI,                               Defendants, Appellants.                                      __________                                     ERRATA SHEET          Please make the following corrections in the opinion in the above          case released on June 3, 1993:          Page 4, line 2:  delete all extra spaces.          Page  5, line 17:   insert the  word "charge"  following the word          "conduct".                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2468                                     LEE J. TOPP,                                 Plaintiff, Appellee,                                          v.                                 THOMAS J. WOLKOWSKI                                and THOMAS J. LOMBARDI,                               Defendants, Appellants.                                 ____________________               APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                  [Hon. Dickran M. Tevrizian,* U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                      Coffin and Oakes,** Senior Circuit Judges.                                          _____________________                                 ____________________            Claire L. Gregory,  Assistant Attorney General, with whom  Jeffrey            _________________                                          _______        R.  Howard,  Attorney General,  and  Robert  E. Dunn,  Jr.,  Assistant        __________                           _____________________        Commissioner, New Hampshire  Department of Safety,  were on brief  for        appellants.            Lynn D. Morse for appellee.            _____________                                 ____________________                                     June 3, 1993                                 ____________________        _____________________        * Of the District of Central California, sitting by designation.        **Of the Second Circuit, sitting by designation.                       OAKES,  Senior Circuit Judge.  New Hampshire State                               ____________________             Troopers Thomas  J. Lombardi and Thomas  J. Wolkowski appeal             from  a judgment of the  District Court for  the District of             New  Hampshire, Dickran  Tevrizian,  Judge1,  denying  their                                                  _____             motion  for summary judgment in this 42 U.S.C.   1983 (1988)             action brought  by Lee J.  Topp.   Topp's complaint  alleged             that Lombardi and Wolkowski violated Topp's civil rights and             committed  a variety of  common law  torts against  him when             they  arrested him for making  an illegal lane  change on an             interstate highway.  Neither Lombardi nor Wolkowski actually             saw Topp  make the lane change.   They were  radioed to pull             over Topp's car by another  state trooper, David Benoit, who             did see the lane change.                         The district  court  concluded that  Lombardi  and             Wolkowski did not have qualified immunity to make  an arrest             on   the   basis   of  another   officer's   probable  cause             determination, since  a New Hampshire statute  bars troopers             from making arrests for  traffic violations not committed in             their  "presence."    N.H. Rev.  Stat.  Ann.    594:10  I(a)             (1986).  We  conclude that the officers violated  no clearly             established federal  or state standards  in arresting  Topp,                                              ____________________             1Judge Tevrizian,  a District Judge of  the Central District             of  California, was designated to sit in the District of New             Hampshire.                                         -2-                                          2             particularly  in light  of state  case law  interpreting the             "presence" requirement as permitting any member of a team of             officers  to make an arrest  for an offense  seen by another             member  of the team.  Consequently, we reverse the denial of             summary judgment.                                    BACKGROUND                                       __________                       Topp  filed this  42  U.S.C.    1983 action  after             Lombardi and  Wolkowski arrested  him for making  an illegal             lane change  on Interstate  95, southbound  near Portsmouth.             The  officers  were  part   of  a  detail;  Officer  Benoit,             stationed one-quarter mile north of Lombardi,  Wolkowski and             two others,  spotted traffic violators and  signalled to the             other officers which cars  to pull over.  At  oral argument,             the   New  Hampshire  Assistant  Attorney  General  candidly             described this setup as a "speed trap."                          According to  the state troopers, Benoit  saw Topp             make  a  sudden lane  change into  the  fastest of  the four             lanes, forcing another car in the fourth lane into the high-             speed  breakdown lane.  Topp  agrees that he  made a sudden,             unsignalled lane  change, but says that he did so only as an             emergency measure  to avoid  hitting a  car that  had braked                                         -3-                                          3             suddenly  in front  of him.   Topp  also agrees  that Benoit             radioed  to Lombardi to stop  Topp's car.   Lombardi did so,             and  Benoit, who had watched  Topp's car as  it travelled to             Lombardi's  position,  signalled  to Lombardi  that  he  had             stopped the right car.                         Topp, however, refused to take the  ticket without             talking  to  the officer  who  had  seen  his  lane  change.             Lombardi radioed  Benoit for  more details, and  Benoit told             him that  Topp had made  a sudden, unsignalled  lane change,             forcing another  car into the high-speed  breakdown lane and             "nearly  caus[ing] an accident."    Topp  agrees that Benoit             conveyed  this  version of  events  to  Lombardi, though  he             contends that this  was not what  happened, and that  Benoit             therefore  could not  have seen  it happen.   In  any event,             Lombardi told  Topp that he  could challenge  the ticket  in             court, not on the highway, and that Officer Benoit would not             come to speak with him directly.                        In the  face of Topp's alleged  continuing refusal             to take the  ticket or  to leave the  scene,2 Lombardi  told                                              ____________________             2The  actions of  both Topp  and the  officers  after Topp's             initial  refusal to  take the  ticket are  the subject  of a             factual  dispute.  We  need not --  and, indeed, may  not --             resolve  this  dispute.    The  significant  fact  for  this             interlocutory appeal is that Topp made, and was seen making,             a sudden, unsignalled lane  change.  There is no  dispute on             this point.                                         -4-                                          4             Topp  that if  he  did  not take  the  ticket,  he would  be             arrested, and then  that he  was under arrest.   Seeing  the             commotion, Lombardi's superior officer,  Sergeant Wolkowski,             came up to the car.  Lombardi  explained that Topp would not             take the  ticket.   After further arguments,  Wolkowski also             told Topp that  he was  under arrest.   Topp then  allegedly             started his car and moved  half a car length down the  road.             Wolkowski leaned in to the open convertible,  turned the car             off,  opened the  door, and,  when Topp  would not  get out,             pulled Topp from his car.  Wolkowski allegedly directed Topp             to the  rear of his car,  holding one of  Topp's wrists high             behind  his back, and then pushed Topp's head onto the trunk             of the car twice.  Lombardi then handcuffed Topp.   Topp was             charged not only with the illegal lane change, but also with             disorderly conduct and resisting arrest.                         The charges  were later dismissed:  the disorderly             conduct on the theory that  the underlying statute had  been             found  unconstitutional  in   a  case  involving  protestors             against the Seabrook Nuclear  Power Plant; the other charges             because  the  Portsmouth  District  Court  found   that  the             complaints had not been properly sworn.                         Topp  then  filed  this  action,  naming  officers             Lombardi  and   Wolkowski  as   defendants  in  both   their                                         -5-                                          5             individual  and official capacities and charging due process             and unspecified  equal protection violations.  The complaint             also  raised  state  common  law claims  of  assault,  false             arrest,  false  imprisonment,  and  malicious  prosecution.3             Topp, who was  represented by  counsel, sought  compensatory             and punitive damages of  $800,000 for psychological harm and             resultant  business  losses.    Topp  alleged  that officers             Lombardi and Wolkowski had had  no probable cause to  arrest             him, because  they had not  seen the lane  change themselves             and because the  lane change  was justified.   The  officers             moved  for summary judgment on all claims except the assault             conduct.   The district  court dismissed the  claims against             the officers in  their official capacity,  as barred by  the             Eleventh Amendment; dismissed the equal protection claim for             failure to  state  a  claim;  and dismissed  the  claims  of             malicious prosecution on  grounds of absolute  prosecutorial             immunity.   The court  denied summary judgment  on the other             claims on the theory that there  was a dispute of fact as to             whether the officers had probable cause  to arrest, and that             the officers did not have qualified immunity.                                              ____________________             3The complaint  did not, however, raise a  claim of invasion             of privacy from the  officer's reaching into Topp's vehicle,             nor could it.   Harbulak v. County of Suffolk,  654 F.2d 194                             _____________________________             (2d Cir. 1981).                                           -6-                                          6                       The  officers then filed this interlocutory appeal             of the ruling on qualified immunity.                                        DISCUSSION                                      __________                       As  a preliminary matter,  we note  that, although             interlocutory,  the appeal is proper.   This court will hear             interlocutory  appeals  of denials  of  motions for  summary             judgment  on grounds  of  absolute  or  qualified  immunity.             Floyd v. Farrell, 765 F.2d 1, 2-3 (1st Cir. 1985).               ________________                       The only question before  us is whether the motion             for summary judgment on grounds of qualified immunity should             have been granted.   In general,  the doctrine of  qualified             immunity  provides  that  "government  officials  performing             discretionary functions  . .  . are shielded  from liability             for civil damages  insofar as their conduct does not violate             clearly  established statutory  or constitutional  rights of             which a  reasonable person  would have  known."   Harlow  v.                                                               __________             Fitzgerald,  457 U.S. 800, 818 (1982).  See also Anderson v.             __________                              ________ ___________             Creighton,  483 U.S. 635,  640 (1987) ("The  contours of the             _________             right must be sufficiently  clear that a reasonable official             would  understand  that  what  he  is  doing  violates  that             right.");  Malley  v.  Briggs,  475  U.S.  335,  341  (1986)                        __________________                                         -7-                                          7             (qualified   immunity  protects   "all   but   the   plainly             incompetent  or those who  knowingly violate the  law").  In             cases  applying  this standard  to  police  arrests in  this             circuit,  an arrest  challenged as  unsupported by  probable             cause is  deemed  "'objectively reasonable'"  unless  "there             clearly was no  probable cause  at the time  the arrest  was             _______             made."  Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985).                       ________________                       The undisputed facts demonstrate that Lombardi and             Wolkowski could easily have  believed that they had probable             cause  to believe  Topp had  committed a  traffic violation.             Topp agrees that  the arresting officers acted on  the basis             of Officer  Benoit's statement  that he  had just  seen Topp             force another car  off the road  in the course  of making  a             sudden, unsignalled lane change.  Topp concedes that he made             the  lane change without signalling.   All agree that Benoit             described Topp's  white Chrysler convertible to Lombardi and             confirmed that Lombardi had stopped the right car.                         The  crux of  Topp's case  is his  contention that             Officers Lombardi  and Wolkowski had no  authority to arrest             him because  they  did  not  themselves  see  him  make  the             allegedly illegal lane change.   Topp claims that, under New             Hampshire law,  probable cause  to  believe he  had made  an             improper  lane change is not  enough.  In  New Hampshire, he                                         -8-                                          8             says,  an  officer cannot  make a  warrantless arrest  for a             violation,  such  as an  improper  lane  change, unless  the             officer "has probable cause to believe that the person to be             arrested has committed a  . . . violation in  his presence."             N.H. Rev. Stat.  Ann.   594:10.  Thus,  Topp claims that the             troopers  violated  New Hampshire's  "presence" requirement,             and that this  violation raises a federal civil rights claim             as well.                        However, New Hampshire  case law interpreting this             provision quite strongly suggests that where one member of a             law enforcement team  has seen the violation, any  member of             the team can  make the arrest.  State v.  Standish, 116 N.H.                                             __________________             483,  363  A.2d 404  (1976)  (driving  under the  influence;             vehicle was  inoperable by time  arresting officer arrived),             citing State  v. Cook, 399  P.2d 835 (Kan.  1965) (arresting             ______ ______________             officer  received information from airplane tracking highway             speeds).   Topp attempts to distinguish  Standish, since the                                                      ________             arresting  officer in  that  case  arguably had  independent             probable  cause to  believe  that the  offense had  occurred             (Standish was drunk, in his car, and crashed against a tree,             enough  to suggest  to  the arresting  officer  that he  had             driven the car into the tree).  However, the language of the             case  is  more  sweeping  than that.    The  Standish  court                                                          ________                                         -9-                                          9             justified  its  result not  by  arguing  that the  arresting             officer  had independent  probable cause  to arrest,  but by             relying on the  concept of team arrests  and on case  law in             other  states,  including  the   Cook  case.    These  cases                                              ____             interpret   similar   statutes   setting  forth   "presence"             requirements for  misdemeanor arrests as  permitting arrests             to  be made by any  member of a team of  officers so long as             one of the officers was "present."                         Furthermore, the  officers in this case were using             routine procedures.  It  cannot have been clear to  them, in             light of  established practice and the  supportive case law,             that the  procedure of using  one officer to  spot violators             and others  to effect the actual  arrests, with confirmation             that the correct vehicle  was stopped, was inconsistent with             the  statute.   Thus,  even assuming  that    1983  requires             officers to comply  with the requirements of a state statute             defining  probable  cause  more narrowly  than  the  federal             Constitution  requires,  the  standard is  met  because  the             officers were not clearly wrong in  believing that they were             acting properly.    In light  of  case law  and  established             practice, their interpretation of the "presence" requirement             of  the  New   Hampshire  misdemeanor  arrest   statute  was             reasonable.                                         -10-                                          10                                      CONCLUSION                                      __________                       Accordingly,  we  reverse  the  judgment   of  the             district court,  insofar as  it denied the  officers' motion             for summary judgment on grounds of qualified immunity.                                           -11-                                          11
