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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br>Nos. 97-1485 & 97-1585 <br>                        RICHARD IACOBUCCI, <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                         WILLARD BOULTER, <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br>No. 97-1586 <br>                        RICHARD IACOBUCCI, <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                         WILLARD BOULTER, <br>                       Defendant, Appellee. <br> <br> <br> <br>          APPEALS FROM THE UNITED STATES DISTRICT COURT <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>            [Hon. Patti B. Saris, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                   Cyr, Senior Circuit Judge, <br>                   and Lipez, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>     J. Russell Hodgdon, with whom Petze & Hodgdon was on brief, <br>for plaintiff. <br>     Stephen C. Pfaff, with whom Douglas I. Louison and Merrick, <br>Louison & Costello were on brief, for defendant. <br> <br> <br> <br> <br>October 4, 1999 <br> <br> <br> <br>                                 <br>

  SELYA, Circuit Judge.  Earlier this year, the Supreme <br>Court decided Kolstad v. American Dental Ass'n, 119 S. Ct. 2118 <br>(1999), affording a fresh perspective on the circumstances under <br>which juries may award punitive damages in federal civil rights <br>cases.  These cross-appeals require us to revisit the punitive <br>damages threshold in light of Kolstad.  After acquitting this <br>responsibility and addressing other pertinent issues, we affirm the <br>judgment below. <br>I.  BACKGROUND <br>  On the evening of March 26, 1991, Richard Iacobucci, the <br>plaintiff herein, visited the Pembroke Town Hall to videotape a <br>scheduled meeting of the Pembroke Historic District Commission (the <br>Commission).  Such forays were mother's milk to Iacobucci, who <br>intermittently filmed sessions of local boards, including the <br>Commission, for a weekly news program that he produced and <br>broadcast via a cable television outlet. <br>  On the evening in question, the Commission's stated <br>purpose was to review building applications.  The commissioners sat <br>along three sides of a four-sided conference table.  As he had done <br>in the past, Iacobucci positioned his tripod at the unoccupied end <br>of the table.  Soon after the meeting commenced, the chairman, Otis <br>Hathon, twice asked Iacobucci to move his equipment  across the <br>room.  Iacobucci declined, explaining that his view of the <br>commissioners' and applicants' faces would be obstructed.  Hathon <br>did not suffer rejection gladly; at one point, he extinguished the <br>lights, remarking:  "I hope your camera can see in the dark."  When <br>this petulance failed to sway Iacobucci, Hathon warned him of the <br>possibility of arrest should he fail to move.  That warning, too, <br>fell on deaf ears, prompting a commissioner to alert the local <br>constabulary. <br>  Two Pembroke police officers, Flannery and Jenness, <br>responded.  They asked Iacobucci to turn off the camera and talk <br>with them in the corridor.  Iacobucci replied that he had a right <br>to record the proceedings, that he intended to exercise it, and <br>that he would not converse until the meeting ended.  The stalemated <br>officers called their superior, Sergeant Willard Boulter (the <br>principal defendant herein). <br>  The meeting adjourned before Sgt. Boulter arrived, <br>presumably because the last applicant had not appeared.  Iacobucci <br>packed his gear.  He then noticed the commissioners speaking in the <br>hallway with a man carrying a set of plans.  Believing that man to <br>be the tardy applicant, Iacobucci retrieved his camera and began <br>filming the group on the assumption that he was witnessing a de <br>facto resumption of the adjourned meeting.  Iacobucci persisted <br>despite importunings from some of the commissioners to stop. <br>  Sgt. Boulter arrived at that juncture, stepped in front <br>of the lens, and demanded that Iacobucci cease and desist.  <br>Iacobucci demurred, sidestepped adroitly, and resumed his <br>journalistic endeavor.  This pas de deux continued until Sgt. <br>Boulter gave Iacobucci an ultimatum:  sit down or be arrested.  <br>When Iacobucci kept filming, Boulter took the camera from him, <br>grabbed his elbow, led him into another room, handcuffed him, and <br>placed him under arrest. <br>  The police transported Iacobucci to the station house and <br>charged him with disorderly conduct and disrupting a public <br>assembly.  Iacobucci spent about four hours in custody before the <br>authorities released him.  When he reclaimed his camera, he <br>discovered that the videotape no longer contained any images and <br>that the sound track was barely audible. <br>  The criminal charges eventually were dismissed, but <br>Iacobucci (a law school graduate, although not a practicing <br>attorney) filed a pro se civil action that asserted a golconda of <br>claims against numerous defendants.  We need not dwell on the <br>details, because pretrial proceedings winnowed the trialworthy <br>issues to three claims pressed by Iacobucci against Boulter.  These <br>included claims under 42 U.S.C.  1983 premised on false arrest and <br>excessive force, respectively, and a state-law claim premised on <br>intentional infliction of emotional distress.  The three claims <br>were tried to a jury, which found for Boulter on two of them.  On <br>the section 1983 false arrest claim, however, the jury sided with <br>Iacobucci and awarded him $75,000 in compensatory damages and <br>$135,000 in punitive damages. <br>  The verdict did not please Boulter.  He renewed his <br>earlier motion for judgment as a matter of law and asked, <br>alternatively, for a new trial or for a remittitur.  The district <br>court struck the punitive damages, but otherwise denied Boulter's <br>post-trial motions.  Both parties now appeal. <br>II.  BOULTER'S APPEAL <br>  Like all Gaul, Boulter's appeal is divided into three <br>parts.  He assails the district court's handling of the section <br>1983 false arrest claim because the court (1) should not have <br>permitted the claim, if ever properly in the case, to go to trial; <br>(2) improvidently admitted evidence that was both irrelevant and <br>prejudicial; and (3) erred in rejecting a qualified  immunity <br>defense.  We examine these asseverations seriatim. <br>      A.  The Status of the Section 1983 False Arrest Claim. <br>  The wrangling over this issue breaks down into two <br>subsidiary questions:  Was the section 1983 false arrest claim <br>properly pled?  If so, did it survive summary judgment?  The <br>district court answered both questions affirmatively.  So do we. <br>  In narrowing the issues immediately prior to trial, a <br>dispute arose concerning what claims were outstanding.  Boulter <br>considered only two claims to be zoetic:  a section 1983 excessive <br>force claim and a state-law claim for intentional infliction of <br>emotional distress.  In contrast, Iacobucci took the position that <br>a section 1983 false arrest claim also remained in the case.  After <br>reviewing the complaint and the summary judgment record, the lower <br>court concluded that Iacobucci had adequately pled a section 1983 <br>false arrest claim, and that this claim had not been addressed (let <br>alone terminated) at the summary judgment stage.  Consequently, the <br>court allowed Iacobucci to litigate the claim. <br>  Fed. R. Civ. P. 8(a)(2) requires that a complaint contain <br>a "short and plain statement of the claim showing that the pleader <br>is entitled to relief."  The complaint in this case satisfied that <br>undemanding criterion vis--vis the section 1983 false arrest <br>claim:  it specifically alleged that Boulter, while acting under <br>color of state law, violated Iacobucci's constitutional "right to <br>be secure in his person" and "wrongfully deprived him of his <br>liberty."  This language, coupled with a prayer for money damages, <br>adequately stated a section 1983 false arrest claim. <br>  To be sure, the claim could have been pled more clearly.  <br>Here, however, Boulter has not identified a scintilla of prejudice <br>that may have resulted from any obscurity in the wording of the <br>plaintiff's complaint, nor is any such prejudice readily apparent.  <br>The section 1983 false arrest claim arises out of the same nucleus <br>of operative fact as the other two tried claims (both of which <br>Boulter acknowledges were in the case all along), and the parties' <br>discussions with the court immediately before the start of trial <br>clarified any uncertainty about whether the section 1983 false <br>arrest claim was to be litigated.  The sockdolager is this:  had <br>prejudice loomed, Boulter could have asked the court for a <br>continuance.  His failure to do so leads ineluctably to the <br>conclusion that any claim of unfairness that he now might assert is <br>nothing more than a post hoc rationalization sparked by a verdict <br>that was not to his liking.  See Faigin v. Kelly, ___ F.3d ___, ___ <br>(1st Cir. 1999) [No. 98-1589, slip op. at 34] (explaining that "a <br>reviewing court may attribute special significance to the party's <br>eschewal of a continuance and assume that the party did not require <br>additional time to adjust his litigation strategy"). <br>  We likewise reject Boulter's plaint that the section 1983 <br>false arrest claim, even if pled, did not survive the district <br>court's summary judgment order.  In hawking this proposition, <br>Boulter points to the concluding passage in the trial court's <br>summary judgment ruling, in which Judge Saris stated:  "With <br>respect to Sergeant Boulter, the motion is DENIED on the excessive <br>force claim pursuant to 42 U.S.C.  1983, and the intentional <br>infliction of emotional distress claim.  Otherwise it is ALLOWED."  <br>Boulter maintains that these final four words laid to rest any <br>incipient section 1983 false arrest claim. <br>  This argument is too cute by half.  It overlooks that <br>Boulter's motion, which set the stage for the court's summary <br>judgment ruling, never sought brevis disposition as to the section <br>1983 false arrest claim.  Thus, when Boulter made this very <br>argument below, the district court rejected it, explaining that the <br>"otherwise" language spoke only to the claims that had been debated <br>in the summary judgment papers   and that the section 1983 false <br>arrest claim was not among that number.  A trial court ordinarily <br>is the best expositor of its own orders, see United States v. <br>Podolsky, 158 F.3d 12, 17 (1st Cir. 1998); Martha's Vineyard Scuba <br>Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam <br>Vessel, 833 F.2d 1059, 1066-67 (1st Cir. 1987), and Boulter offers <br>no convincing reason why we should ignore this salutary principle <br>here.  Because the district court reasonably interpreted its own <br>order as not terminating the section 1983 false arrest claim, we <br>honor its interpretation. <br>                  B.  The Evidentiary Question. <br>  Boulter next insists that the trial court erred in <br>admitting the partially erased videotape into evidence.  He bases <br>this insistence on three grounds:  lack of relevance, lack of a <br>proper foundation, and undue prejudice.  We review challenges to <br>orders admitting or excluding evidence for abuse of discretion.  <br>See Faigin, ___ F.3d at ___ [slip op. at 24]; Williams v. Drake, <br>146 F.3d 44, 47 (1st Cir. 1998).  We discern none here. <br>  The facts are these.  The videotape itself had been <br>erased by parties unknown (although Iacobucci understandably <br>suspected the police).  At any rate, the audio portion of the tape <br>picked up after the time that the police took Iacobucci into <br>custody.  It apparently recorded contemporaneous conversations <br>amongst Boulter and his fellow officers.  Boulter's objection runs <br>to the admissibility of those comments. <br>  Boulter's first line of attack emphasizes the temporal <br>sequence.  He argues that an after-the-fact recording necessarily <br>lacks relevance.  This ipse dixit is simply wrong.  Evidence of <br>subsequent events frequently sheds light upon, and thus assumes <br>relevance in relation to, antecedent acts.  See United States v. <br>Lara, 181 F.3d 183, 204 (1st Cir. 1999); United States v. Sutton, <br>970 F.2d 1001, 1007 (1st Cir. 1992); United States v. Mena, 933 <br>F.2d 19, 25 n.5 (1st Cir. 1991). <br>  In this instance, the district court supportably <br>determined that rational jurors might find that some of the <br>statements made on the tape referred back to what had transpired at <br>the time of the arrest.  We recount a sampling in the margin.  <br>Relevancy is a fluid concept under the Evidence Rules.  See Fed. R. <br>Evid. 401 (defining relevant evidence as "having any tendency to <br>make the existence" of any material fact "more probable or less <br>probable than it would be without the evidence").  Consequently, <br>relevancy typically presents a rather low barrier to admissibility.  <br>See, e.g., Fitzgerald v. Expressway Sewerage Constr., Inc., 177 <br>F.3d 71, 75 (1st Cir. 1999); United States v. Saccoccia, 58 F.3d <br>754, 780 (1st Cir. 1995).  Taking into account that the excessive <br>force, emotional distress, and false arrest claims were being tried <br>together, we conclude that Judge Saris acted within the encincture <br>of her discretion in deciding that the challenged statements <br>cleared this hurdle. <br>  Boulter's second line of attack centers on his contention <br>that the audio portion of the tape ought to have been excluded <br>because Iacobucci's enhancement of it somehow destroyed the tape's <br>integrity.  This contention amounts to a claim that the evidence <br>lacked a proper foundation.  Such claims are committed to the trial <br>judge's informed discretion.  See United States v. Ladd, 885 F.2d <br>954, 956 (1st Cir. 1989); see also Fed. R. Evid. 901(a), 1001(2) & <br>1002. <br>  Boulter's contention trenches on the frivolous.  <br>Iacobucci testified to the chain of custody.  He also testified <br>that he did not alter the tape in any way, but, rather, enhanced <br>the sound by the simple expedient of listening to it on a high- <br>quality play-back system that increased its audibility.  The judge <br>(and the jury, for that matter) were free to credit this testimony, <br>especially since Boulter offered no evidence to contradict it.  No <br>more was exigible. <br>  Boulter's final line of attack postulates that the <br>failure to identify the voices on the tape prior to its admission <br>into evidence created unfair prejudice.  See Fed. R. Evid. 403.  <br>This argument, too, strikes us as insubstantial. <br>  As noted above, the tape itself was properly <br>authenticated prior to its admission.  Thereafter, several <br>witnesses (mainly police officers) testified as to the identities <br>of the speakers.  Moreover, the officers whose voices were alleged <br>to have been captured on the tape (Boulter among them) testified at <br>trial; the jury thus had the opportunity to determine for itself <br>who spoke which lines. <br>  Against this backdrop, we see no Rule 403 problem.  The <br>rule does not aspire to eliminate prejudice   after all, most <br>evidence is offered precisely because the proponent believes it <br>will prejudice the factfinder in his favor   but only to eliminate <br>unfair prejudice.  See, e.g., Veranda Beach Club Ltd. Partnership <br>v. Western Sur. Co., 936 F.2d 1364, 1372 (1st Cir. 1991); United <br>States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989).  <br>Given the sound track's potentially significant probative value <br>(especially in regard to Boulter's state of mind as it pertained to <br>the section 1983 excessive force claim) and the absence of any <br>unfairly prejudicial impact, we cannot fault the district court's <br>overruling of Boulter's Rule 403 objection.  See Freeman v. Package <br>Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988) ("Only rarely   and <br>in extraordinarily compelling circumstances   will we, from the <br>vista of a cold appellate record, reverse a district court's on- <br>the-spot judgment concerning the relative weighing of probative <br>value and unfair effect."). <br>                     C.  Qualified Immunity. <br>  42 U.S.C.  1983 provides a private right of action <br>against officials who, while acting under color of state law, <br>deprive individuals of federally assured rights.  But this kind of <br>rights-violating conduct does not translate automatically into <br>money damages, for a state actor may enjoy an immunity (absolute or <br>qualified).  In this instance, Boulter says that the lower court <br>erred in failing to exonerate him based on the doctrine of <br>qualified immunity. <br>  Qualified immunity is a medium through which "the law <br>strives to balance its desire to compensate those whose rights are <br>infringed by state actors with an equally compelling desire to <br>shield public servants from undue interference with the performance <br>of their duties and from threats of liability which, though <br>unfounded, may nevertheless be unbearably disruptive."  Buenrostro <br>v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992) (citing Harlow v. <br>Fitzgerald, 457 U.S. 800, 806 (1982)).  "Hence, state officials <br>exercising discretionary authority are entitled to qualified <br>immunity insofar as their conduct does not transgress clearly <br>established constitutional or federal statutory rights of which a <br>reasonably prudent official should have been aware."  Id.  To <br>ascertain a defendant's eligibility for such immunity, a court must <br>inquire into the objective legal reasonableness of the defendant's <br>actions, gauged in connection with the mosaic of legal rules that <br>were clearly established when the defendant acted.  See Anderson v. <br>Creighton, 483 U.S. 635, 639 (1987).  In operation, the outcome of <br>this inquiry "depends substantially upon the level of generality at <br>which the relevant 'legal rule' is to be identified."  Id. <br>  Iacobucci  asserts that Boulter, a policeman acting under <br>color of his official authority, lacked probable cause to arrest <br>him and thereby violated his Fourth Amendment rights.  In this <br>wise, he observes that a citizen's right to be free from arrest in <br>the absence of probable cause has long been clearly established.  <br>See, e.g., Beck v. Ohio, 379 U.S. 89, 91 (1964).  That observation <br>sweeps so broadly, however, that it bears very little relationship <br>to the objective legal reasonableness vel non of Boulter's harm- <br>inducing conduct.  See Wilson v. Layne, 119 S. Ct. 1692, 1699-1700 <br>(1999).  The "right the official is alleged to have violated must <br>have been 'clearly established' in a more particularized, and hence <br>more relevant, sense."  Anderson, 483 U.S. at 640.  Our inquiry, <br>then, reduces to whether a reasonable police officer, standing in <br>Boulter's shoes, would have known that arresting Iacobucci for <br>disorderly conduct, under all the attendant circumstances, would <br>contravene clearly established law.  That inquiry must proceed in <br>light of the commonly held understanding that probable cause exists <br>only if the facts and circumstances within the arresting officer's <br>knowledge "are sufficient to lead an ordinarily prudent officer to <br>conclude that an offense has been, is being, or is about to be <br>committed, and that the putative arrestee is involved in the <br>crime's commission."  Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir. <br>1997). <br>  Before wrestling with this question, we pause to voice <br>some procedural concerns.  Boulter first raised the issue of <br>qualified immunity in a pretrial motion for summary judgment.  <br>Although he tries in this forum to assign error to the denial of <br>that motion, a pair of procedural impediments frustrates the <br>attempt.  For one thing, an order denying summary judgment <br>typically does not merge into the final judgment and therefore is <br>not an independently appealable event if the case thereafter <br>proceeds to trial.  See Eastern Mountain Platform Tennis, Inc. v. <br>Sherwin-Williams Co., 40 F.3d 492, 497 (1st Cir. 1994). <br>  For another thing, in his notice of appeal, Boulter <br>purported to challenge only the amended judgment entered by the <br>district court on March 31, 1997   a decree sparked by the court's <br>denial of his motion for judgment as a matter of law.  "It is <br>black-letter law that a notice of appeal must specify the order or <br>judgment to which the appeal is addressed."  Lehman v. Revolution <br>Portfolio LLC, 166 F.3d 389, 395 (1st Cir. 1999) (citing Fed. R. <br>App. P. 3(c)).  Boulter's failure to specify the order denying <br>summary judgment in his notice of appeal thus bars his current <br>attempt to contest the propriety of that ruling.  See id. <br>  In all events, the district court supportably concluded <br>that Boulter's summary judgment motion did not seek to test the <br>bona fides of the section 1983 false arrest claim.  See supra Part <br>II(A).  Since the scope of the protection afforded by the doctrine <br>of qualified immunity is claim-specific, see, e.g., Feliciano- <br>Angulo v. Rivera-Cruz, 858 F.2d 40, 48 (1st Cir. 1988); Vazquez <br>Rios v. Hernandez Colon, 819 F.2d 319, 326-28 (1st Cir. 1987), this <br>omission means that Boulter could not have raised a qualified <br>immunity defense as to that claim at the summary judgment stage.  <br>And Boulter's assertion in the motion papers of a qualified <br>immunity defense in regard to Iacobucci's section 1983 excessive <br>force claim cannot fill this void. <br>  Notwithstanding these infirmities,  the qualified <br>immunity issue is not a dead letter.  Although qualified immunity <br>normally should be resolved early in the litigation, see Mitchell <br>v. Forsyth, 472 U.S. 511, 526 (1985), the defense, if preserved, <br>may be pressed at later stages, including in a timeous post-trial <br>motion.  See, e.g., Consolo v. George, 58 F.3d 791, 794 (1st Cir. <br>1995).  Because Boulter filed such a motion and now assigns error <br>to its denial, the issue must be addressed. <br>  In the ordinary course, we review the district court's <br>denial of qualified immunity de novo, aligning the evidence most <br>favorably to the non-movant and drawing all reasonable inferences <br>in his favor.  See, e.g., Camilo-Robles v. Hoyos, 151 F.3d 1, 8 <br>(1st Cir. 1998); Amsden v. Moran, 904 F.2d 748, 752-53 (1st Cir. <br>1990).  But this familiar formulation of the standard arises in <br>connection with pretrial orders granting or denying qualified <br>immunity, and Iacobucci maintains that the intervening trial and <br>verdict pretermit (or, at least, reconfigure) the inquiry.  He <br>points out that when Boulter made the arrest, he charged Iacobucci <br>with having committed two offenses:  disorderly conduct and <br>disturbing a public assembly.  Iacobucci notes correctly that this <br>charging decision circumscribes the inquiry into probable cause.  <br>Building on this foundation, he posits that we need not look beyond <br>the verdict, in which the jury, answering a special interrogatory, <br>found that no reasonable police officer would have believed that <br>Iacobucci had committed either offense.  Boulter resists this <br>approach:  he asserts that the jury's merits determination neither <br>extinguishes nor bears upon his claim of entitlement to qualified <br>immunity. <br>  Not surprisingly, there is a middle ground.  A state <br>actor may be entitled to qualified immunity for rights-violating <br>conduct as long as he had an objectively reasonable basis for <br>believing that his conduct would not abridge the rights of others.  <br>See Camilo-Robles v. Zapata, 175 F.3d 41, 43 (1st Cir. 1999); <br>Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st Cir. <br>1992).  This means, of course, that the reasonableness standards <br>underlying the probable cause and qualified immunity inquiries are <br>not coterminous.  See Anderson, 483 U.S. at 641.  Thus, the jury's <br>determination does not squarely answer the question whether <br>Boulter's conduct in arresting Iacobucci satisfied the criterion of <br>objective legal reasonableness so as to entitle him to qualified <br>immunity. <br>  Nor does the procedural posture in which Boulter's appeal <br>arises greatly influence the standard of review.  When a qualified <br>immunity defense is pressed after a jury verdict, the evidence must <br>be construed in the light most hospitable to the party that <br>prevailed at trial.  See Thompson v. Mahre, 110 F.3d 716, 721 (9th <br>Cir. 1997); Karnes v. Skrutski, 62 F.3d 485, 494 (3d Cir. 1995); <br>Posr v. Doherty, 944 F.2d 91, 95-96 (2d Cir. 1991).  One difference <br>is that, in such an exercise, deference should be accorded to the <br>jury's discernible resolution of disputed factual issues.  See <br>Frazell v. Flanigan, 102 F.3d 877, 886 (7th Cir. 1996). <br>  With this paradigm in mind, we turn to the facts.  The <br>first of the two charges on which Boulter arrested Iacobucci   <br>disorderly conduct   implicated Mass. Gen. Laws c. 272,  53.  In <br>pertinent part, the statute makes it a misdemeanor to be a <br>"disorderly person."  To stave off constitutional attacks, the <br>Massachusetts Supreme Judicial Court (SJC) originally construed <br>section 53 to provide that one is guilty under that rubric  <br>    . . . if, with purpose to cause public <br>  inconvenience, annoyance or alarm, or <br>  recklessly creating a risk thereof, he:  (a) <br>  engages in fighting or threatening, or in <br>  violent or tumultuous behavior; or (b) makes <br>  unreasonable noise or offensively coarse <br>  utterance, gesture or display, or addresses <br>  abusive language to any person present; or (c) <br>  creates a hazardous or physically offensive <br>  condition by any act which serves no <br>  legitimate purpose of the actor. <br> <br>Alegata v. Commonwealth, 231 N.E.2d 201, 211 (Mass. 1967) (quoting <br>Proposed Official Draft of Model Penal Code  250.2). <br>  In the next decade, the SJC narrowed this definition of <br>disorderly conduct to encompass only activities not implicating the <br>"lawful exercise of a First Amendment right."  Commonwealth v. A <br>Juvenile, 334 N.E.2d 617, 628 (Mass. 1975).  To ensure that result, <br>the SJC modified its earlier definition by striking subsection (b) <br>entirely and interpreting subsections (a) and (c) to cover only <br>conduct, not expressive activity.  See id. at 629.  Consistent with <br>this approach, the SJC subsequently held that a verbal challenge, <br>even when coupled with a refusal to obey a police officer's orders, <br>does not constitute disorderly conduct within the meaning of <br>section 53 as long as done in furtherance of a legitimate purpose.  <br>See Commonwealth v. Feigenbaum, 536 N.E.2d 325, 328 (Mass. 1989).  <br>To this extent, then, the contours of the disorderly conduct <br>statute were clearly visible when Boulter confronted Iacobucci at <br>the Pembroke Town Hall. <br>  Context is important in police work, as elsewhere in <br>human intercourse.  Thus, upon being apprised of the ongoing events <br>at the Town Hall, Boulter recognized that the circumstances <br>required a reasonable police officer to take into account the <br>Massachusetts Open Meeting Law, Mass. Gen. Laws c. 39,  23B, and <br>he took steps to refresh his recollection of that enactment.  The <br>statute requires that "[a]ll meetings of a governmental body . . . <br>be open to the public," and confers a right to videotape such <br>meetings on "any person in attendance."  The right to videotape is <br>not unfettered:  the camera must be "fixed in one or more <br>designated locations determined by the governmental body," and the <br>taping may not actively interfere "with the conduct of the <br>meeting."  Id.  Withal, the statute does "not apply to any chance <br>meeting, or a social meeting at which matters relating to official <br>business are discussed so long as no final agreement is reached."  <br>Id. <br>  Given this background, we are constrained to conclude <br>that, taking the evidence in the light most flattering to <br>Iacobucci, his constitutional right to act as he did without being <br>arrested for disorderly conduct was "sufficiently clear that a <br>reasonable official would [have understood] that what he [was] <br>doing violate[d] that right."  Anderson, 483 U.S. at 640; accord <br>Wagenmann v. Adams, 829 F.2d 196, 209 (1st Cir. 1987). <br>  Taking first the events that transpired in the meeting <br>room, we note that Iacobucci had satisfied the basic prerequisites <br>for entitlement to videotape a public meeting under the Open <br>Meeting Law:  he had situated his tripod in the only stationary <br>location that would allow the mounted camera to capture the faces <br>of both the commissioners and the applicants and there is no <br>significantly probative evidence that his activities interfered <br>with the ongoing meeting.  Indeed, his equipment had been placed <br>in the very same location during prior Commission meetings, without <br>incident.  Moreover, after Hathon tired of trying to bully <br>Iacobucci, the instant meeting proceeded without disruption and the <br>Commission completed its business unimpeded by the filming.  <br>Iacobucci remained cool, calm, and collected throughout.  Under the <br>circumstances and in light of the clearly established law that <br>obtained at the time of the incident, we agree with Judge Saris <br>that an objectively reasonable officer would not have thought that <br>Iacobucci was subject to arrest for disorderly conduct. <br>  Taking next the hallway episode, we find nothing whatever <br>to suggest that Iacobucci was "fighting or threatening," or was <br>engaged in any "violent or tumultuous behavior."  A Juvenile, 334 <br>N.E.2d at 628; see also Sheehy v. Plymouth, ___ F.3d ___, ___ (1st <br>Cir. 1999) [No. 98-2080, slip op. at 16].  On any version of the <br>events reflected in the record, no objectively reasonable police <br>officer would have believed that Iacobucci had created a "hazardous <br>or physically offensive condition . . . which serve[d] no <br>legitimate purpose."  A Juvenile, 334 N.E.2d at 628.  Even if the <br>gathering was not a public meeting at that point, Iacobucci was <br>doing nothing wrong:  he was in a public area of a public building; <br>he had a right to be there; he filmed the group from a comfortable <br>remove; and he neither spoke to nor molested them in any way. <br>  Boulter's repeated demands that Iacobucci cease recording <br>do not change the disorderly conduct calculus.  A police officer is <br>not a law unto himself; he cannot give an order that has no <br>colorable legal basis and then arrest a person who defies it. So it <br>is here:  because Iacobucci's activities were peaceful, not <br>performed in derogation of any law, and done in the exercise of his <br>First Amendment rights, Boulter lacked the authority to stop them. <br>  The other ground of arrest fares no better under close <br>scrutiny.  That ground implicated Mass. Gen. Laws c. 272,  40, <br>which makes it a misdemeanor to "willfully interrupt[] or disturb[] <br>a school or other assembly."  As to the events that transpired in <br>the meeting room, the record, read as it must be in the light most <br>favorable to Iacobucci, contains no evidence that he "interrupted <br>or disturbed" the Commission's meeting.  See supra note 5 and <br>accompanying text.  As to the events that transpired in the <br>hallway, Boulter was adamant in his insistence that the hallway <br>gathering was not a public meeting. <br>  There is no point in flogging a dead horse.  We conclude <br>that the district court did not err in holding that Boulter's <br>arrest of Iacobucci failed to attain the level of objective legal <br>reasonableness.  Hence, Boulter was not entitled to qualified <br>immunity. <br>III.  IACOBUCCI'S APPEAL <br>  Although voicing doubts about whether a satisfactory <br>foundation for punitive damages had been laid, the district court <br>prudently reserved judgment on that question and sent it to the <br>jury.  After the jurors awarded Iacobucci $75,000 in compensatory <br>damages and $135,000 in punitive damages, Boulter moved for relief.  <br>Concluding that the evidence failed to warrant punitive damages, <br>the district court struck that portion of the award (albeit leaving <br>intact the compensatory damages).  Iacobucci contests this ruling.  <br>We review the lower court's decision de novo, taking the facts and <br>the reasonable inferences therefrom in the light most congenial to <br>the jury's verdict.  See Correa v. Hospital San Francisco, 69 F.3d <br>1184, 1188 (1st Cir. 1995). <br>  The district court's approach accurately foretold that <br>taken by the Supreme Court a few months later in Kolstad v. <br>American Dental Ass'n, 119 S. Ct. 2118 (1999).  Punitive damages <br>become a discretionary matter for the jury in a section 1983 action <br>only if the plaintiff makes an adequate threshold showing.  A <br>plaintiff reaches that threshold when "the defendant's conduct is <br>shown to be motivated by evil motive or intent, or when it involves <br>reckless or callous indifference to the federally protected rights <br>of others."  Smith v. Wade, 461 U.S. 30, 56 (1983). <br>  Kolstad sheds considerable light on Smith and the <br>circumstances under which a judge may permit a jury to consider a <br>request for punitive damages in a civil rights case.  The Smith <br>standard, visualized through the Kolstad lens, confirms that there <br>is a different focus for compensatory as opposed to punitive <br>damages.  See Kolstad, 119 S. Ct. at 2124.  The special showing <br>needed to trigger eligibility for punitive damages, which the Smith <br>Court called "evil motive" or "reckless  or callous indifference," <br>Smith, 461 U.S. at 56, pertains to the defendant's "knowledge that <br>[he] may be acting in violation of federal law, not [his] awareness <br>that [he] is engaging in discrimination," Kolstad, 119 S. Ct. at <br>2124.  Thus, the standard requires proof that the defendant acted <br>"in the face of a perceived risk that [his] actions [would] violate <br>federal law."  Id. at 2125.  While "egregious or outrageous acts <br>may serve as evidence supporting an inference of the requisite <br>'evil motive,'" the presence (or absence) of such acts does not in <br>itself determine the propriety (or lack of propriety) of punitive <br>damages in a given case.  Id. at 2126. <br>  To make out a jury question on punitive damages under <br>this subjectively oriented test, Iacobucci needed to adduce <br>evidence sufficient to prove that Boulter arrested him in the face <br>of a perceived risk that doing so would violate Iacobucci's <br>federally assured rights.  More specifically, Iacobucci needed to <br>adduce evidence sufficient to show that Boulter determined to <br>effectuate the arrest knowing that he lacked probable cause to do <br>so, or, at least, with conscious indifference to the possibility <br>that he lacked probable cause. <br>  We realize that the district court instructed the jury to <br>determine whether Boulter had acted intentionally or recklessly in <br>arresting Iacobucci, and that the jury, by returning a plaintiff's <br>verdict on the section 1983 false arrest claim, necessarily found <br>that Boulter's conduct fit into that proscribed category.  This <br>mens rea finding, however, does not clear the way for punitive <br>damages.  The state of mind required to make out a cognizable <br>section 1983 claim (at least one grounded in false arrest) differs <br>importantly from that required to justify punitive damages.  See <br>Kolstad, 119 S. Ct. at 2124.  The former requirement relates only <br>to the conduct, not to the consequence; that is, it entails an <br>intent to do the act, not to effect a civil rights violation.  See <br>id. <br>  On this issue, the district court concluded that although <br>Boulter made an objectively unreasonable split-second decision when <br>he arrested Iacobucci, no evidence suggested that he harbored any <br>malice or acted with reckless indifference to Iacobucci's <br>constitutional rights.  After carefully scrutinizing the record, we <br>agree with this assessment.  Viewed most favorably to Iacobucci, <br>the evidence reveals that when apprised of the contretemps, Boulter <br>called a selectman to get a better sense of the Open Meeting Law.  <br>Upon his arrival, he attempted to piece together a complete picture <br>of the evening's events.  He then  made several attempts to defuse <br>a contentious situation.  Only after his attempted intercessions <br>were rebuffed did he effect an arrest.  This constellation of facts <br>does not lend itself to the inference that Boulter acted with an <br>evil motive or a conscious awareness that the arrest might violate <br>Iacobucci's civil rights.  Where, as here, the evidence shows no <br>more than that an exasperated police officer, acting in the heat of <br>the moment, made an objectively unreasonable mistake, punitive <br>damages will not lie. <br>  Laboring to close this gap, Iacobucci suggests that the <br>partially erased videotape contains evidence indicative of a state <br>of mind conducive to punitive damages.  He points to a statement <br>contained therein from which (he says) the jury could have inferred <br>that the videotape had been erased to provide cover against a <br>potential excessive force claim.  The jury, however, found for <br>Boulter on the section 1983 excessive force count   and the <br>videotape contains nothing that bears on Boulter's motives in <br>connection with the arrest.  We conclude, therefore, that this <br>evidence fails to lift the punitive damages issue into the realm of <br>the jury's discretion. <br>  To summarize, the district court acted appropriately in <br>defenestrating the punitive damages award.  The dearth of record <br>evidence, direct or circumstantial, as to Boulter's evil motive <br>and/or subjective awareness that he lacked probable cause to arrest <br>Iacobucci suffices to defeat the claim for punitive damages as a <br>matter of law. <br>  We add a coda.  Precedent in this circuit had interpreted <br>Smith to mean that in civil rights cases requiring proof of <br>intentional wrongdoing, "the state of mind necessary to trigger <br>liability for the wrong is at least as culpable as that required to <br>make punitive damages applicable."  Rowlett v. Anheuser-Busch, <br>Inc., 832 F.2d 194, 205 (1st Cir. 1987).  Kolstad plainly rejects <br>that interpretation.  To the extent that Rowlett fails to draw a <br>distinction between the state of mind requirement anent the actor's <br>conduct and the state of mind requirement anent the effects of that <br>conduct, it is no longer good law, and we disavow it. <br>IV.  CONCLUSION <br>  We need go no further.  For the reasons set forth above, <br>we reject all three appeals and leave the parties where we found <br>them. <br> <br>Affirmed.  Each party to bear his own costs.</pre>

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