
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-2077                               LAZAR LOWINGER, ET AL.,                               Plaintiffs - Appellees,                                          v.                                WILLIAM T. BRODERICK,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                             and Carter,* District Judge.                                          ______________                                _____________________               James F. Lamond, with whom Alan J. McDonald and McDonald and               _______________            ________________     ____________          Associates were on brief for appellant William T. Broderick.          __________               Thomas J.  Chirokas for appellees Lazar  Lowinger and Audrey               ___________________          Lowinger.                                 ____________________                                    March 22, 1995                                 ____________________                                        ____________________          *  Of the District of Maine, sitting by designation.                    CARTER, District Judge.  In this case Plaintiffs, Lazar                    CARTER, District Judge.                            ______________          and Audrey  Lowinger, seek recovery  under 42 United  States Code          Section  1983  and  state  tort law1  from  Defendants,  Sergeant          William T.  Broderick ("Broderick")  and Commissioner  Francis M.          Roache, both of the Boston Police Department; former Boston Mayor          Raymond  Flynn;  and the  City of  Boston  for damages  caused by          Defendants' allegedly false arrest  of Lazar Lowinger.  Defendant          Broderick,  who   was  sued   in  his  individual   and  official          capacities, moved for summary  judgment asserting his entitlement          to  qualified immunity for any of the acts alleged by Plaintiffs.          The district  court concluded  that the record  contained genuine          issues of material fact  regarding whether Broderick was entitled          to summary  judgment  and  denied Broderick's  motion.    We  now          reverse.  The essential facts, as presented to the district court          by the parties, follow.                           I.  FACTS AND PROCEDURAL HISTORY                           I.  FACTS AND PROCEDURAL HISTORY                           ________________________________                    On  September 9, 1987,  Defendant Broderick, a sergeant          with  the  Boston Police  Department,  was assigned  to  a police          district located  in Brighton  as a  patrol supervisor.   Shortly          after  midnight, Broderick  responded  to a  complaint of  a loud          party and arrested  one person, Stephen Quinn, for disturbing the          peace and  possession of  a false liquor  purchase identification                                        ____________________          1     The  state  law  counts  in  the  Complaint  include  false          imprisonment,    malicious    prosecution,   interference    with          contractual  relations,  intentional   infliction  of   emotional          distress, negligence, and loss of consortium.                                         -2-          card.  Quinn was taken back to the district station  where he was          booked and detained.                    At  approximately  the  same  time as  Quinn's  arrest,          Plaintiff Lazar Lowinger ("Lowinger"), an attorney, was contacted          at his home by an  individual requesting that Lowinger  undertake          to represent  Quinn.  Lowinger contacted the district station and          spoke  to  Broderick,  who  refused to  provide  any  information          regarding  Quinn's arrest over the  phone.  Lowinger  went to the          police station  and entered with two young  men, both of whom had          been in the station earlier that night in connection with Quinn's          arrest  and had been told to leave because they were intoxicated,          and one of whom had contacted Lowinger to represent Quinn.                    Lowinger  presented  himself  at  the  counter  in  the          station  as Quinn's attorney and showed the officer a small hand-          held  tape  recorder, stating  that he  wanted  to see  Quinn and          intended to record  the "proceedings."   At that time,  Broderick          instructed the two men accompanying Lowinger to leave the station          and  expressly  told  Lowinger  that he  did  not  authorize  the          recording of the conversation and to  turn the recorder off.  The          two men  left and Lowinger turned off  the recorder, placed it on          the counter,  and proceeded to  have a  "heated discussion"  with          Broderick  regarding  the  use   of  the  recorder  during  which          Broderick informed Lowinger that  the recording of a conversation          without the  knowledge or authorization of the participants was a                                         -3-          felony.2   The  upshot of  the discussion  was that  Lowinger was          unsuccessful in convincing Broderick to permit him to see Quinn.                    At some point thereafter, Broderick saw the recorder in          Lowinger's  possession once again with  its red light  on and the          tape  moving  inside.    It  is  disputed whether  Broderick  was          speaking  at  the  time the  machine  was  recording.   Broderick          instructed the other officers  to take Lowinger into  custody for          violation   of  Massachusetts  state   law  against  unauthorized          interception of communications.  In the criminal prosecution that          followed, Lowinger successfully moved  to suppress the small tape          recorder after the state court concluded that, because there were          only a "few  words" on the tape from  that incident, Lowinger was          merely  dictating a  memo  to  himself  when  he  turned  on  the          recorder.                    Lowinger  and his  wife, Audrey,  commenced this  civil          action  for Defendants'  alleged infringement  on the  Lowingers'          civil rights and  for violations  of state tort  law.   Broderick          moved for summary judgment on the basis of qualified immunity and          submitted an affidavit to support his position.  Plaintiffs filed          an untimely response  to the motion  and submitted a copy  of the                                        ____________________          2   Broderick was  making reference  to a Massachusetts  criminal          statute which  imposes penalties upon any  person who: "willfully          commits an  interception [or] attempts to  commit an interception          . . . of  any wire or oral communication."  Mass. Gen. Laws. Ann.          ch.  272,   99(C)(1).  As provided in that section's definitions,          "'interception' means to secretly hear [or] secretly record . . .          the contents of any wire or oral communication through the use of          any interception device by  any person other than a  person given          prior authority  by  all parties  to  such communication."    Id.                                                                        ___            99(B)(4).                                         -4-          "Findings Regarding Allowance of  Defendant's Motion to Suppress"          ("Findings") issued  by the  Massachusetts District  Court during          the  unsuccessful criminal  prosecution of  Lowinger.3   When the          summary  judgment  motion  was  decided  in recorded  proceedings          before the district court,  the court considered both Broderick's          affidavit  and  the state  court's  Findings,  concluding that  a          genuine  issue  of  material   fact  existed  regarding   whether          Broderick was entitled to qualified immunity.  This interlocutory          appeal by Broderick followed.                                    II.  ANALYSIS                                    II.  ANALYSIS                                    _____________                                   A.  Jurisdiction                                   A.  Jurisdiction                                   ________________                    As a preliminary matter, Lowinger disputes whether this          Court has proper jurisdiction over the appeal  since the district          court's denial of summary  judgment was not a "final  order" from          which an appeal may follow.                    It  is  well-settled  that   a  court  of  appeals  has          jurisdiction over an interlocutory appeal from a district court's          denial  of qualified immunity.  Mitchell v. Forsyth, 472 U.S. 511                                          ________    _______          (1985).  The  Supreme Court in Mitchell  explained that immunity,                                         ________          whether absolute  or qualified, has the  "essential attribute" of          entitling  its  possessor to  avoid  standing trial.    Thus, the          doctrine provides "immunity from suit rather than  a mere defense                             __________________          to  liability; and  . .  . it is  effectively lost  if a  case is                                        ____________________          3    The  Commonwealth  of  Massachusetts  sought  review of  the          District  Court's  Order  suppressing  the  recorder  but   later          withdrew its appeal.  Appendix at 63-65.                                         -5-          erroneously permitted to  go to trial."   Id. at  526.  See  also                                                    ___           _________          Anderson v. Creighton, 483 U.S. 635 (1987).          ________    _________                    This  Court, time  and  again, has  heeded the  Supreme          Court's instructions in this area and exercised jurisdiction over          such  appeals, including  appeals from  district courts  that had          concluded that there were  genuine issues of material fact,  and,          on  several  occasions, this  Court  has reversed  the  denial of          summary  judgment.   See,  e.g.,  Febus-Rodr guez v.  Betancourt-                               ___   ____   _______________     ___________          Lebr n, 14 F.3d 87, 90 (1st Cir. 1994);  Rogers v. Fair, 902 F.2d          ______                                   ______    ____          140, 142  (1st Cir. 1990);   Fonte v. Collins, 898  F.2d 284, 285                                       _____    _______          (1st Cir. 1990);   Newman v. Massachusetts, 884 F.2d 19,  22 (1st                             ______    _____________          Cir.  1989);  Mariani-Gir n v. Acevedo-Ruiz,  877 F.2d 1114, 1120                        _____________    ____________          (1st  Cir. 1988); Unwin v. Campbell, 863  F.2d 124, 132 (1st Cir.                            _____    ________          1989).   If the  district court was  in error  in denying summary          judgment, permitting the immediate  appeal of such denials avoids          subjecting   officials  unnecessarily  to  discovery  and  trial.          Accordingly, our review  of the district court's actions  here is          proper and,  since those  actions address  questions of  law, the          district  court's  conclusions  are  subject  to  plenary review.          Febus-Rodr guez, 14 F.3d at 90.          _______________                     B.  Summary Judgment and Qualified Immunity                     B.  Summary Judgment and Qualified Immunity                     ___________________________________________                    The  central  question  presented  by  this  appeal  is          whether  the district  court properly  concluded that  the record          demonstrated   genuine  issues   of   material   fact   regarding          Broderick's   entitlement  to   immunity  and,   therefore,  that                                         -6-          Broderick was not  entitled to  summary judgment as  a matter  of          law.  Broderick  argues on  appeal that the  record in this  case          substantiates his entitlement to  qualified immunity and that the          district court  erred when  it concluded  that genuine issues  of          material fact were generated  through the parties' submissions on          the motion.  Although  Broderick has raised other issues  in this          appeal, our resolution of this primary matter eliminates our need          to reach these other issues.4                    The  inquiry for  a  district court's  resolution on  a          motion  for  summary  judgment  brought by  an  official  seeking          qualified immunity  is "whether a reasonable  official could have          believed his actions were lawful in light of  clearly established          law and the information the official possessed at the time of his          allegedly unlawful  conduct."   Id.  at  91 (quoting  McBride  v.                                          ___                   _______          Taylor,  924 F.2d 386, 389  (1st Cir. 1991)).   Although, as with          ______          any  summary judgment  determination,  all  facts and  reasonable          inferences are  construed in  favor of the  nonmoving party,  the          analysis employed to determine whether an official is entitled to                                        ____________________          4   Broderick raises  certain procedural  issues  in his  appeal,          which we do not reach today.  Specifically, Broderick argues that          since  the  Lowingers'  opposition  to  his  Motion  for  Summary          Judgment  was untimely  under  local rules,  it should  have been          disregarded  by the  district court.   Further,  Broderick argues          that the district  court erred  by relying on  the state  court's          Findings  in lieu  of affidavits  or other  submissions from  the          Lowingers.    This  Court's  primary analysis  of  the  denial of          summary  judgment  here  has  assumed  that  the  District  Court          properly  considered  Plaintiffs' response  and  the  Findings in          opposition  to the motion for summary judgment.  Since, even with          those  assumptions, we  conclude that  Broderick was  entitled to          summary  judgment, we need not decide  whether the district court          should  have  disregarded  either  Plaintiffs'  response  or  the          Findings of the state court.                                         -7-          summary  judgment is  quite  generous.   A "reasonable,  although          mistaken, conclusion  about the lawfulness of  one's conduct does          not  subject  a  government  official   to  personal  liability."          Cookish v. Powell, 945 F.2d 441, 443 (1st Cir. 1991).  This Court          _______    ______          has observed  that the "qualified immunity  standard 'gives ample          room for mistaken judgments'  by protecting 'all but the  plainly          incompetent  or those who knowingly violate the law.'"  Rivera v.                                                                  ______          Murphy,  979 F.2d  259, 263  (1st Cir.  1992) (quoting  Hunter v.          ______                                                  ______          Bryant, 116  L.Ed.2d 589, 596 (1991) (per  curiam)).   Under this          ______          analysis,   "A  court   must   look  to   the  'objective   legal          reasonableness'   of  an  official's   conduct,  as  measured  by          reference to  clearly established law."   Mariani-Gir n, 877 F.2d                                                    _____________          at 1116.   Therefore, since even erroneous decisions by officials          may be entitled to qualified  immunity, the analysis employed  to          determine entitlement to qualified  immunity warrants an entirely          different approach from that  employed to evaluate the  merits of          Plaintiffs' underlying claims.  Id.; Morales v. Ram rez, 906 F.2d                                          ___  _______    _______          784, 787 (1st Cir. 1990).                    Although the district court here correctly observed  at          the  outset that Broderick was entitled to summary judgment "if a          reasonable  police officer  could have  believed he  had probable          cause  to arrest  the plaintiff,"  it is  clear from  the court's          subsequent  remarks  that  its  true  focus  was  the  merits  of          Plaintiffs' underlying case when  it determined whether a genuine          issue of material fact existed on this record.   Appendix at 776.          Without  reaching the issue  of whether the  state court Findings                                         -8-          constituted  a  proper  form   of  supporting  documentation  for          consideration  on   a  summary   judgment  motion,5   this  Court          concludes that the  district court  was in error  when it  relied          upon  certain conclusions  of the  state court  to  determine the          existence  of   a  genuine  issue  of   material  fact  regarding          Broderick's entitlement to summary judgment.                    The portion  of Broderick's affidavit pertinent to this          motion states:                      I  then  attempted  to   answer  Attorney                      Lowinger's questions regarding the person                      he identified as  his client.   Within  a                      short time  after I  started doing so,  I                      observed that Attorney  Lowinger had  the                      tape  recorder  cupped within  his hands.                      Despite  this,  I  observed a  red  light                      illuminated on the recorder, and that the                      tape was turning in the recorder.          App.  at  40.    It is  beyond  dispute  that  this  statement by          Broderick, standing alone, establishes a reasonable belief on his          part that he was  being secretly recorded without  his permission          in  violation  of a  state criminal  statute.6   The  state court          Findings considered by  the district court to  generate a factual          dispute on  this motion were: "Lowinger then  stepped back turned          on  the recorder  to  dictate a  memo  to himself  regarding  the                                        ____________________          5  See supra note 4.                 _____          6  Upon its  review of Broderick's affidavit, the  district court          observed,  "If  these  facts  were  undisputed,  it  appears  the          defendant would  be entitled to summary judgment because on those          facts, a police  officer could reasonably believe  that there was          probable cause  that the plaintiff was  secretly tape-recording a          conversation  with the  defendant."   App. at  78.   Although our          review of such conclusions of law is plenary, we see no reason to          reach a different result, nor have Plaintiffs provided any.                                         -9-          refusal to allow him to see Quinn," and "By stipulation the  tape          recorder contained,  relative to this  whole incident, on  tape a          very  few words indicating that  the two young  men with Lowinger          leave the building."  App. at 61, Findings Nos. 9 and 12.                    These  Findings,  however,  do  nothing  to  refute the          observations  by Broderick  in  the above-quoted  portion of  his          ____________          affidavit.     Instead,  the  Findings  address   the  merits  of          Lowinger's criminal case and, thus, do not create a genuine issue          of material  fact germane  to the  summary judgment  analysis for          qualified  immunity  here.   While  subsequent  investigation and          adversarial  fact-finding hearings may  have established that, in                                                                         __          fact,  Lowinger was  not  secretly taping  his conversation  with          ____                 ___          Broderick, such a conclusion does not contradict the assertion by          Broderick that,  based  upon his  observations  at the  time,  he          thought that Lowinger was  making such a recording.7   Similarly,          _______          the discovery that  the tape did not contain a  recording of that          conversation  does  not  negate  what  Broderick  had  previously          reasonably  concluded based  upon all  of the  circumstances, but          merely  supports Lowinger's  position  before  the  Massachusetts                                        ____________________          7  Thus,  this case does  not present the  scenario of the  "rare          case" described in Prokey v. Watkins,  942 F.2d 67, 73 (1st  Cir.                             ______    _______          1991), in which a determination of qualified immunity as a matter          of  law,  after assuming  all facts  in  a plaintiff's  favor, is          "impossible" due  to conflicting  evidence as to  the "underlying          historical  facts."    Such  facts  could  include "if  what  the          policeman knew prior to  the arrest is genuinely in  dispute, and          if  a reasonable  officer's  perception of  probable cause  would          differ  depending on  the correct  version, that  factual dispute          must be  resolved by a  fact finder."   Id.   Here,  there is  no                                                  ___          dispute  about what Broderick knew  at the time  but, rather, the          dispute  is over whether his  perception was accurate.   Only the          former is relevant to the qualified immunity analysis.                                         -10-          District   Court  that   he  was   not  guilty   of  intercepting          communications.                    The district court  attached great significance to  its          conclusion that a  genuine dispute exists as to whether Broderick          was speaking at the time of the recording.  Broderick's affidavit          suggests  that he was speaking,  but the district  court drew the          inference  that he was not,  based upon the  Finding submitted by          Plaintiffs  that only a "very  few words" were  on the recording.          The basis  for such an inference is  not plainly apparent to this          Court.8    More  importantly,  however,   whether  Broderick  was          speaking  at  the  precise  moment he  noticed  the  recorder  in                                                 _______          operation  is not determinative of whether  he had the reasonable          belief that  Lowinger was taping their  conversation.  Plaintiffs          did  not  produce any  evidence  to  directly refute  Broderick's          affidavit  on this point.   There is no  indication, for example,          that Broderick knew how long the recorder was on or  that he knew          at that time that none of his words had been or would be recorded          ____________                                 ___________          -- he only perceived that the recorder was in close proximity and          that it  was recording.  That perception,  which was unchallenged          in  the proceedings  below,  establishes a  reasonable belief  on          Broderick's part  that Lowinger  was attempting to  secretly tape          their conversation without Broderick's authorization in violation          of Massachusetts law.                    Lowinger also  argues that the contents of the tape are                                        ____________________          8  One  can make a  similar negative inference from  that Finding          that Lowinger was not dictating a memo since there is no evidence          to that effect.                                         -11-          relevant to  this motion  since  they "present[]  a challenge  to          Broderick's credibility."   Brief of  Appellee at 23.   As  noted          already, the tape's contents  do nothing to challenge Broderick's          current  position regarding  his perceptions  and beliefs  at the          time   the  recording  was   made.9    At   most,  such  evidence          demonstrates  that  Broderick  may  have been  mistaken  in  such                                                         ________          perceptions and beliefs but, as explained  above, such errors are          irrelevant  to the  preliminary determination  of entitlement  to          qualified immunity.  In short, while the parties' submissions are          conflicting with respect to  certain facts, they do not  create a          dispute  regarding Broderick's reasonable  beliefs.  Accordingly,          since there is no genuine issue as to any material fact, judgment                                                    ________          should be entered in  favor of Defendant William T.  Broderick on          the basis of his qualified immunity from judgment.                    Reversed and remanded with  directions to enter summary                    _______________________________________________________          judgment  for  Defendant Broderick  on  the claim  made  under 42          _________________________________________________________________          United  States Code Section 1983 and to dismiss without prejudice          _________________________________________________________________          the claims based on state law.          _____________________________                                        ____________________          9   The issue  facing the district  court would  have been  quite          different if,  for example, Plaintiffs could  provide evidence of          actions  or statements by Broderick  at the time  of the incident          which  would tend to negate his statements of his observations as          provided in his  affidavit.  If  such truly conflicting  evidence          were presented, then  the court  would have been  faced with  the          scenario  described in Prokey, note 7 supra, and entry of summary                                 ______         _____          judgment for Broderick would be inappropriate.                                         -12-
