
USCA1 Opinion

	




United States Court of Appeals

For the First Circuit




No. 00-2543


MICHAEL K. KELLEY AND LENORE T. KELLEY,


Plaintiffs, Appellants,


v.


JOSEPH W. LAFORCE, ROBERT FONTAINE,

MELANIE A. JENKINS, DAVID DARRIN,

RICHARD CHABOT, DOUGLAS BLOOD,

PETER FULLAM AND THE TOWN OF

NORTH BROOKFIELD, MASSACHUSETTS,


Defendants, Appellees.




APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS


[Hon. Nathaniel M. Gorton, U.S. District Judge]




Before

Torruella and Lipez, Circuit Judges,


and Zobel, (1) District Judge.





Gary S. Brackett, with whom Brackett & Lucas was on brief, for
appellants.
 Kenneth H. Anderson, with whom William L. O'Brien, Thomas
Drechsler and Finneran, Byrne, Drechsler, & O'Brien, L.L.P. were on
brief, for appellees.




April 26, 2002
Corrected Opinion



TORRUELLA, Circuit Judge.  This is an appeal from summary
judgment entered in favor of defendants-appellees in a civil rights and
pendent state tort suit brought by plaintiffs-appellants Michael and
Lenore Kelley.  Appellants allege that their property interest in a
restaurant and liquor establishment, located in the Town of North
Brookfield ("Town"), was violated under 42 U.S.C. § 1983 and the
Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, §§ 11H, 11I, by
the Town, three Town police officers, two Town officials, the seller of
the establishment, and an agent of the seller.  In addition, appellants
brought state law claims against these same defendants for conversion,
intentional interference with prospective advantage and contractual
rights, and fraud.
	This Court reviews a district court's decision to grant
summary judgment de novo.  See Abreu-Guzmán v. Ford, 241 F.3d 69, 73
(1st Cir. 2001).  Because a motion for summary judgment can only be
granted when the evidence shows that there is no genuine issue of
material fact and that the moving party is entitled to summary judgment
as a matter of law, Fed. R. Civ. P. 56, we examine the facts according
to appellants' version of events.  See Abreu-Guzmán, 241 F.3d at 73
(stating that evidence must be viewed in light most favorable to non-moving party when reviewing grant of summary judgment).  For the
reasons given below, we reverse in part and affirm in part.
I.

	Appellant Michael Kelley ("Kelley") entered into a purchase
and sale agreement for a restaurant and liquor establishment, Jessica's
Pub ("the Pub"), with Joseph LaForce on January 20, 1996.  Pursuant to
this agreement, Kelley agreed to purchase the Pub for $43,000,
conditioned upon the successful transfer of LaForce's liquor license to
Kelley.  At the same time, Kelley and LaForce also signed a management
agreement under which Kelley was to assume all responsibility for
managing the Pub.  The management agreement included specific
conditions that prohibited LaForce from (1) removing Kelley from his
management position, (2) excluding Kelley from the premises, or (3)
resuming possession and operation of the business.
	Prior to the date of the alleged civil rights violation,
Kelley had paid LaForce a sum exceeding $38,000 for the Pub. 
Additionally, the Kelleys had begun operating the Pub, including hiring
employees, purchasing stock and equipment, and paying vendors for the
Pub's obligations.  Kelley also had entered into a lease agreement for
the real estate upon which the Pub was located.  Although Kelley had
attempted to place the liquor license under his name, he had not
succeeded in this effort yet.  All of the necessary business licenses
for the Pub remained in LaForce's name.
	On October 29, 1996, Robert Fontaine, bearing a power of
attorney from LaForce that designated Fontaine as the new manager,
attempted to take possession of the Pub from Kelley.  At the time, Al
Mascroft, Kelley's employee, was managing the Pub.  Kelley was not at
the Pub because he was incarcerated on an unrelated charge.
	When Fontaine confronted Mascroft with the power of attorney,
Mascroft refused to surrender control of the Pub.  As a result,
Fontaine sought assistance from the Town's police department.  Fontaine
informed Chief David Darrin that he had been appointed as the new
manager by LaForce, the owner of the Pub, and that an employee,
Mascroft, refused to leave after being terminated.  Chief Darrin
telephoned LaForce, who was then in Florida, to verify his ownership
and his wishes regarding the Pub.
	Fontaine subsequently returned to the Pub, accompanied by
Officer Douglas Blood and Deputy Chief Peter Fullam, and informed
Mascroft that he should leave.  When Mascroft asked the officers for a
court order, they responded by threatening to bring Chief Darrin to
arrest him.  One of the officers then left, returning shortly
thereafter with Chief Darrin.
	Chief Darrin told Mascroft that Kelley was having financial
problems, was operating the Pub contrary to the liquor license, and
that Mascroft should leave.  Faced with no alternative, Mascroft left
the Pub.  Appellants allege that they were thereafter barred from the
Pub, under threat of arrest, until January 2, 1997, when the state
court issued a preliminary injunction enjoining LaForce and his agents
from interfering with Kelley's use and possession of the Pub. 
Appellants claim that Melanie Jenkins, the Town administrator, and
Richard Chabot, Town selectman, authorized the police officers'
actions.
	After the issuance of the preliminary injunction in state
court, the case was removed to the District Court for the District of
Massachusetts.  On September 7, 1999, the district court denied
defendants' motion to vacate the preliminary injunction.  On March 13,
2000, the district court granted the defendants' motion for summary
judgment, both on the civil rights claims, under 42 U.S.C. § 1983 and
the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 12, §§
11H, 11I, and on the state tort claims.  Judgment for defendants
Jenkins, Darrin, Chabot, Blood, Fullam, and the Town was entered on
November 1, 2000, based on the court's finding that the individual
defendants were entitled to qualified immunity and that the Town could
not be held liable under § 1983 or the MCRA.  The district court
dismissed the case as to defendants LaForce and Fontaine because they
were not served and never entered an appearance.  Plaintiffs-appellants
appeal only the summary judgment, and not the dismissal as to LaForce
and Fontaine. (2)
II.

	Section 1983 provides a cause of action for a plaintiff to
seek money damages from a defendant who acted under color of state law
to deprive plaintiff of a right guaranteed by the Constitution or by
federal law.  See 42 U.S.C. § 1983; Camilo-Robles v. Hoyos, 151 F.3d 1,
5 (1st Cir. 1998).  In this case, appellants bring a § 1983 claim
against both individual defendants (Town officers and officials) and
the Town itself.  Since a different standard is used to determine
liability for individual and municipal defendants, we will discuss the
§ 1983 claims against these two sets of defendants separately.
A.  Qualified Immunity
	Although government officials are subject to suit for federal
constitutional or statutory violations under § 1983, they are generally
shielded from civil damages liability under the principle of qualified
immunity so long as their actions do 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).  In
practice, this means that "whether an official protected by qualified
immunity may be held personally liable for an allegedly unlawful action
generally turns on the objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at
the time it was taken."  Anderson v. Creighton, 483 U.S. 635, 639
(1987) (internal quotation marks omitted).
	A court evaluating a claim of qualified immunity must engage
in a two-step inquiry.  See Wilson v. Layne, 526 U.S. 603, 609 (1999)
(setting forth an order of analysis for qualified immunity); Abreu-Guzmán, 241 F.3d at 73 (recognizing Supreme Court's "preferred method
of analysis" for qualified immunity).  First, the court must determine
whether plaintiff has alleged a deprivation of a constitutional or
federal right by the defendant official.  See Abreu-Guzmán, 241 F.3d at
73; Camilo-Robles, 151 F.3d at 6.  If so, the court must "determine
whether that right was clearly established at the time of the
[official's] alleged violation."  Wilson, 526 U.S. at 609 (quoting Conn
v. Gabbert, 526 U.S. 286, 290 (1999)) (internal quotation marks
omitted).  Only after both these questions are answered affirmatively
should the court address "the particular conduct in question," Abreu-Guzmán, 241 F.3d at 73, to decide whether an objectively reasonable
official would have believed that his conduct was lawful "in light of
clearly established law and the information the official possessed at
the time of his allegedly unlawful conduct," McBride v. Taylor, 924
F.2d 386, 389 (1st Cir. 1991).
	As the Supreme Court has explained, "[t]his order of
procedure is designed to spare a defendant not only unwarranted
liability, but unwarranted demands customarily imposed upon those
defending a long drawn out lawsuit.  Deciding the constitutional
question before addressing the qualified immunity question also
promotes clarity in the legal standards for official conduct, to the
benefit of both the officers and the general public."  Wilson, 526 U.S.
at 609 (citations omitted).  Here, however, the district court failed
to consider the first part of the qualified immunity analysis that the
Supreme Court laid out in Wilson.  It never determined whether
appellants had alleged a violation of a "clearly established" right. 
See 526 U.S. at 609; Abreu-Guzmán, 241 F.3d at 73.  Instead, the court
stated that even if appellants were able to show a due process
violation, the defendants still would be protected by qualified
immunity because their actions were reasonable in light of their belief
that LaForce owned the Pub.  "That belief was reasonable," the court
concluded, "because LaForce was the holder of the liquor license under
which the Pub operated.  LaForce represented to the police that
Fontaine was to be the new manager and thus, the officers reasonably
believed that they were evicting a terminated employee at the direction
of an absentee employer, not confiscating property interests."
	A determination of objective reasonableness "will often
require examination of the information possessed" by the defendant
officials.  Anderson, 483 U.S. at 641 (explaining that objective
reasonableness assessment may include examination of the facts known to
defendant, but not defendant's subjective intent); see also Abreu-Guzmán, 241 F.3d at 74-75 (discussing facts known to police which
provided basis for probable cause, thereby making plaintiff's arrest
objectively reasonable); Swain v. Spinney, 117 F.3d 1, 9-10 (1st Cir.
1997) (noting that the objective reasonableness inquiry is "highly fact
specific").  Although "[w]e recognize that the immunity question should
be resolved, where possible, in advance of trial," pre-trial resolution
sometimes will be impossible because of a dispute as to material facts. 
Swain, 117 F.3d at 10.  In such a case, the factual issues must be
decided by the trier of fact, (3) thereby precluding summary judgment.  See
id.  Only after the facts have been settled can the court determine
whether the actions were objectively reasonable so as to fall under the
qualified immunity umbrella.  See id.
	This is such a case.  The district court concluded that the
officers believed that LaForce owned the Pub and, further, that such a
belief was reasonable in light of the information the officers
possessed at the time of their allegedly unlawful conduct.  However,
appellants claim that the Town police officers knew of the Kelleys'
ownership interest in the Pub.  In their opposition to defendants'
motion for summary judgment, appellants offered several pieces of
evidence to support this claim.  First, the Pub is located directly
across the street from the police station, in a town populated by only
4,300 people and six bars, so the police would have had occasion to
notice that Kelley had been running the pub.  Second, Town police
reports referred to Kelley as being either the owner or manager of the
Pub, or both.  Chief Darrin reviewed these reports.  Third, Deputy
Chief Fullam testified in his deposition that he believed Kelley was
either the owner of the Pub or was in the process of buying the Pub. (4)
	On the other hand, appellees claim that they had no knowledge
of Kelley's ownership interest in the Pub.  They believed Mascroft to
be an employee of the owner LaForce and that Mascroft was being
terminated pursuant to the power of attorney granted to Fontaine. 
Therefore, the police claim that they were merely assisting Fontaine in
evicting a trespassing terminated employee, rather than confiscating
any property interest.
	To support this allegation, appellees, in their motion for
summary judgment, offered evidence to show that the officers did not
have any knowledge of Kelley's ownership interest in the Pub.  First,
the liquor license to the Pub remained in LaForce's name, since
Kelley's license application had been denied.  Although Kelley also
filed a petition with the licensing board for change of manager, naming
himself as the Pub's manager, this did not demonstrate any property
interest in the Pub.  Second, Chief Darrin verified LaForce's ownership
interest in the Pub when he telephoned LaForce in Florida.
	Thus, when the district court was deciding the appellees'
summary judgment motion, the court faced a factual dispute as to
whether the officers knew of Kelley's ownership interest in the Pub. 
This factual dispute is material because it determines whether the
police were knowingly confiscating Kelley's property or whether they
believed they were evicting a terminated employee.  The district court,
however, did not consider the appellants' evidence as to the officers'
knowledge and found that the police had a reasonable belief that
LaForce was the owner, based upon his holding of the liquor license. 
As a result, the district court found that the officers acted in an
objectively reasonable manner and were thus entitled to qualified
immunity.
	We hold that the district court erred in granting summary
judgment in favor of the appellees on that basis.  The reasonableness
of the officers' conduct, in this case, turns on the officers'
knowledge.  If the police knew that Kelley was the owner of the Pub,
then their action might have amounted to a confiscation of property
without any process. (5)  However, if the police reasonably believed
LaForce to be the owner, then their action might not have been
unreasonable. (6)  In sum, assuming, but not deciding, that the appellants
adequately alleged a violation of a clearly established due process
right, the district court was faced with a material factual dispute as
to whether the defendants' conduct was reasonable so as to entitle them
to immunity.  This factual dispute needed to be resolved by a trier of
fact and was an inappropriate matter for summary judgment.  See Swain,
117 F.3d at 10.
	Therefore, as to the grant of summary judgment in favor of
Chief Darrin, Deputy Chief Fullam, and Officer Blood, we reverse and
remand for proceedings consistent with this opinion.
	The district court also granted summary judgment in favor of
defendants Jenkins and Chabot, two Town officials, after finding that
they were entitled to qualified immunity for the same reasons as the
police officers.  Since appellants do not challenge the court's finding
of qualified immunity for these officials in their brief, this issue is
deemed waived.  See United States v. Sacko, 247 F.3d 21, 24 (1st Cir.
2001) ("It is well-settled that arguments not raised in appellant's
initial brief are waived.").
B.  Municipal Liability
	Appellants further appeal the district court's grant of
summary judgment in favor of the Town.  The district court determined
that appellants failed to establish municipal liability on either of
their two proffered theories: (1) that the defendant Town officials or
officers had final policy-making authority; and (2) there was an
official Town policy of inadequate training or supervision.  Appellants
only challenge the rejection of the first theory on this appeal. 
Because we agree with the district court's determination that
appellants have not offered sufficient evidence to allow a jury to find
that the Town officers or officials had final policy-making authority,
we affirm the court's grant of summary judgment in favor of the Town on
the § 1983 claim.
	It is well established that municipalities may be sued under
§ 1983 only in limited circumstances.  "[A] local government may not be
sued under § 1983 for an injury inflicted solely by its employees or
agents.  Instead, it is when execution of a government's policy or
custom . . . inflicts the injury that the government as an entity is
responsible under § 1983."  Monell v. Dep't of Soc. Servs., 436 U.S.
658, 694 (1978).  In other words, a municipality cannot be held liable
under § 1983 for the actions of its employees based solely on a theory
of respondeat superior.  See id. at 691.  Rather, liability can be
imposed on a local government only where that government's policy or
custom is responsible for causing the constitutional violation or
injury.  See id. at 690-91.
	 Government policy or custom, though, may be established  by
"a single decision by municipal policymakers under appropriate
circumstances."  Pembaur v. City of Cincinnati, 475 U.S. 469, 480
(1986).  Thus, "where action is directed by those who establish
governmental policy," the municipality may be held liable for that
action under § 1983.  Id. at 481.  However, liability of the
municipality under such circumstances will only attach where the
"decisionmaker possesses final authority to establish municipal policy
with respect to the action ordered."  Id. at 481 (plurality opinion).
	On appeal, appellants allege that it was error for the
district court to decide on summary judgment that Chief Darrin's
actions did not constitute actions of a policy-making official for
purposes of the Town's liability. (7)  Appellants cite to Pembaur for the
proposition that a county sheriff has final policy-making authority in
law enforcement so as to attribute his actions to the municipality.
	Although Pembaur did hold that action of the county sheriff
might constitute municipal policy based upon state law, see 475 U.S. at
484-85, appellants here have not offered any support for their
allegation that Chief Darrin has such final policy-making authority
under Massachusetts law.  In fact, appellants' complaint asserts that
the Town administrator, Jenkins, authorized Kelley's ejection from the
Pub.  This claim effectively undermines the argument that Chief Darrin
has final policy-making authority with respect to the action in
question.  Without any evidence of Chief Darrin's policy-making
authority, the district court correctly concluded that the alleged
constitutional violation in this case was not caused by a municipal
policy or custom.  Therefore, summary judgment in favor of the Town is
appropriate as a matter of law.
III.

	Appellants further appeal the district court's grant of
summary judgment for the defendants on their civil rights claim under
the MCRA, Mass. Gen. Laws ch. 12, §§ 11H, 11I.  Determining that § 1983
and the MCRA are "parallel statutes" involving similar analyses, the
district court held that the Town officers and Town officials were
entitled to qualified immunity under the MCRA for the same reasons they
were entitled to qualified immunity under § 1983.  The court also held
that the Town itself could not be held liable under the MCRA for lack
of an official policy in violation of the constitution or federal law.
	The MCRA provides a cause of action for any person whose
rights under the Constitution, federal law, or state law have been
interfered with by threats, intimidation, or coercion of another.  See
Mass. Gen. Laws ch. 12, §§ 11H, 11I.  The Supreme Judicial Court of
Massachusetts has interpreted the MCRA to be co-extensive with § 1983
except for two disparities: (1) the MCRA does not require any state
action (i.e., there is no "under color of state law" requirement), and
(2) a claim under the MCRA requires a violation by threats,
intimidation, or coercion.  See Duca v. Martins, 941 F. Supp. 1281,
1294 (D. Mass. 1996); Duarte v. Healy, 537 N.E.2d 1230, 1232 (Mass.
1989).
	The same qualified immunity standard that applies under §
1983 has also been held to apply to claims under the MCRA.  See Duarte,
537 N.E.2d at 1232.  Therefore, a state official cannot be held liable
under the MCRA for discretionary official actions that violate (federal
or state) constitutional or statutory rights unless those rights were
clearly established at the time of the violation and the official's
actions were objectively unreasonable.  See id. at 1232-33.
	Because we determined that the Town police officers were not
entitled to summary judgment on qualified immunity under § 1983, we
also find that summary judgment for the officers is inappropriate under
the MCRA.  Therefore, we reverse the district court's grant of summary
judgment in favor of the officers on the MCRA claim, and remand for a
determination as to whether the officers are entitled to qualified
immunity under the analysis set forth above. (8)
	As appellants do not challenge the district court's grant of
summary judgment for the Town officials, Jenkins and Chabot, on the
MCRA claim (9) in their brief, any appeal on this issue is waived.  See
Sacko, 247 F.3d at 24.
	In addition, because we determined under our § 1983 analysis
that appellants failed to present any evidence of a Town policy or
custom, we affirm the district court's grant of summary judgment for
the Town on the MCRA claim. (10)
IV.

	Appellants further appeal the district court's grant of
summary judgment in favor of defendants on the three state tort claims. 
We also review these claims de novo, viewing the facts in the light
most favorable to appellants.  See Abreu-Guzmán, 241 F.3d at 73.
A.  Conversion
	Appellants allege that the Town officers and officials acted
jointly with Fontaine to intentionally deprive appellants of their
personal property in the Pub, which included inventory of alcohol and
food, equipment, and cash.  Moreover, appellants were precluded from
recovering this property because the defendants caused or permitted the
locks of the Pub to be changed.
	In their motion for summary judgment, the Town officers and
officials argued that they were entitled to summary judgment as a
matter of law because there were no facts to support a finding that
they exercised any "dominion or control" over any of the appellants'
chattel.  The district court, agreeing with defendants, granted summary
judgment in their favor.
	The tort of conversion requires an intentional or wrongful
exercise of dominion or control over personal property of another by
one with no right to immediate possession.  See Third Nat'l Bank v.
Continental Ins. Co., 446 N.E.2d 380, 383 (Mass. 1983); Restatement
(Second) of Torts § 222A (1965).  An action for conversion "'cannot be
maintained without proof that the defendant either did some positive
wrongful act with the intention to appropriate the property to himself
or to deprive the rightful owner of it, or destroyed the property.'"
Grande v. PFL Life Ins. Co., No. 9663, 2000 WL 1476676, at *4 (Mass.
App. Div. Sept. 27, 2000) (quoting Spooner v. Manchester, 133 Mass.
270, 273 (1882)).  It is no defense to conversion for defendant to
claim that he acted in good faith, reasonably believing that he had a
legal right to possession of the goods.  See Kelly v. Dubrow, No. 1313,
2001 WL 287490, at *3 (Mass. App. Div. Mar. 20, 2001).
	According to the facts alleged by appellants, the Town
officers, acting upon authorization from Jenkins and Chabot, assisted
Fontaine in retaking possession of the Pub (and the personal property
located therein) on behalf of LaForce.  Appellants further allege that
the defendants caused or permitted the locks to be changed on the Pub
and that LaForce and/or Fontaine appropriated appellants' chattel for
their own use.
	Although defendants may not have acted with the intent to
appropriate the appellants' personal property for themselves,
appellants offered evidence to show that the defendants acted with
intent to deprive the alleged owners of their property.  Under
Massachusetts law, intentional deprivation of property from the
rightful owner is sufficient to demonstrate "dominion or control."  See
Grande, 2000 WL 1476676, at *4 (finding that defendant did not exercise
any "wrongful control" of insurance payments because it did not attempt
to appropriate them from plaintiff); Spooner v. Manchester, 133 Mass.
270, 273 (1882).  Moreover, even if defendants believed they were just
putting the Pub and the personal property back into possession of the
rightful owner, this is no defense.  See Kelly, 2001 WL 287490, at *3. 
Defendants have still exercised "the rights of an owner" by depriving
appellants of their property.  Spooner, 133 Mass. at 273.
	The defendants concede in their motion for summary judgment
that a cause of action for conversion should lie against LaForce and
Fontaine because they were given control of the Pub (and therefore the
personal property within it) by the Town police.  Delivery of the Pub
and the chattel therein to LaForce and Fontaine, though, may constitute
an exercise of control by the police because the act of wresting
control from appellants was itself an act of "dominion or control." (11)
	Thus, we find that the appellants have presented evidence to
support a claim for conversion which, in light of the factual dispute,
makes summary judgment for the individual defendants inappropriate.  We
therefore reverse the district court's grant of summary judgment for
defendants Darrin, Fullam, Blood, Chabot, and Jenkins.
	As for the Town, however, appellants have not presented any
evidence to show that the Town was complicit in the alleged conversion. 
Moreover, a municipality enjoys governmental immunity for intentional
torts under the Massachusetts Tort Claims Act.  See Mass. Gen. Laws
Ann. ch. 258, § 10(c) (governmental immunity is retained for "any claim
arising out of an intentional tort, including assault, battery, false
imprisonment, . . . misrepresentation, deceit, . . . interference with
advantageous relations or interference with contractual relations");
Howcroft, 747 N.E.2d at 747; Rezendes-Walsh v. City of Boston, No. Civ.
A. 95-3707-E, 1996 WL 679673, at * 2 (Mass. Super. Nov. 25, 1996). 
Conversion, even though not enumerated in § 10(c), is an intentional
tort, thereby barring appellants' claim against the Town.  See
Rezendes-Walsh, 1996 WL 679673, at * 2 (noting that the Supreme
Judicial Court of Massachusetts has found § 10(c)'s list of intentional
torts to be illustrative, rather than exhaustive).  As a result, we
affirm the district court's grant of summary judgment  for the Town on
the claim of conversion.
B.  Intentional Interference with Contractual Rights
	Appellants further allege that defendants are liable for
intentional interference with appellants' contractual rights.  The
district court, concluding that LaForce, rather than defendants, caused
the disintegration of the contractual relationship, granted summary
judgment in favor of defendants.
	To state a claim for intentional interference with a
contract, the plaintiff must prove that: (1) he had a contract with a
third party; (2) the defendant knowingly induced the third party to
break that contract; (3) the defendant's conduct was for an improper
purpose or by improper means; and (4) the plaintiff was harmed by the
defendant's actions.  See United Truck Leasing Corp. v. Geltman, 551
N.E.2d 20, 21, 23 (Mass. 1990); Jenkins v. DeTucci, 668 N.E.2d 1345,
1350 (Mass. App. Ct. 1996).  As the district court properly found, even
if we make all inferences in favor of the non-moving party for summary
judgment, the appellants have not alleged facts to support the
requisite element that defendants knowingly induced the third party to
breach the contract.  Rather, appellants have claimed the contrary:
that LaForce intended to reclaim the Pub, in violation of their
agreement, and that he requested the police to assist him in this
endeavor.  Thus, the defendants did not induce LaForce to breach the
contract, but LaForce induced the defendants to breach his own
contract.  A party to a contract cannot be held liable for intentional
interference with that contract.  See Harrison v. NetCentric Corp., 744
N.E.2d 622, 632 (Mass. 2001).
	Therefore, since appellants failed to present evidence that
would support a claim for intentional interference with contractual
rights, we affirm the district court's grant of summary judgment in
favor of all of the defendants. (12)
C.  Fraud
	Appellants contend that the defendants are also liable for
fraud because the defendants falsely represented that they had the
authority to remove appellants and appellants' agent from the Pub.  To
establish a prima facie case of fraud, a plaintiff must present
evidence that: (1) the defendants made a false representation of
material fact; (2) defendants knew of its falsity; (3) the
representation was made for purposes of inducing the plaintiff to act
upon it; and (4) the plaintiff relied upon its supposed truth to his
detriment.  See Barrett Assocs., Inc. v. Aronson, 190 N.E.2d 867, 868
(Mass. 1963).  The district court, finding that the officers were not
acting to gain an advantage and that Mascroft did not rely on the
defendants' representations as true, granted summary judgment for the
defendants.
	Appellants allege that the officers, by stating that they
would arrest Mascroft if he refused to vacate the Pub, indicated that
they had authority to force Mascroft to leave.  However, if appellants'
allegations are true, the defendants did not possess the authority to
evict Mascroft because they knew appellants were the legitimate owners
of the Pub.  Thus, the police made a false statement with knowledge of
its falsity.  The officers allegedly threatened to arrest Mascroft for
the very purpose of forcing him to leave, and Mascroft eventually did
so, fearing arrest.
	Appellees, and the district court, argue that Mascroft, the
plaintiffs' agent, did not rely on the officers' representation of
authority as true because Mascroft initially resisted their order to
leave the Pub.  Rather, Mascroft asked the officers for a court order. 
Only after the police indicated that a court order was unnecessary did
Mascroft agree to leave.  Whether Mascroft left because he believed
that the officers, without a court order, could arrest him for failure
to vacate the premises or whether he left voluntarily, even though he
knew a court order was required, seems to be a question of fact, which
should be determined by the fact-finder, rather than resolved by the
court on summary judgment.
	The district court also found that appellants' fraud claim
was meritless because appellants did not allege that the officers were
acting to gain an advantage.  Acting to gain an advantage, however, is
not an element of fraud.  See Commonwealth v. O'Brien, 26 N.E.2d 235,
238 (Mass. 1940) (defining fraud as "any artifice whereby he who
practices it gains, or attempts to gain, some undue advantage to
himself, or to work some wrong or do some injury to another" by making
a false representation (emphasis added)).  Thus, failure to offer
evidence that the officers were acting for their own advantage is an
insufficient ground for granting summary judgment in favor of
defendants.
	Accordingly, viewing the evidence in the light most favorable
to appellants, we find that appellants have offered sufficient evidence
of fraud for their claim to be heard by a fact-finder.  Thus, we
reverse the district court's grant of summary judgment for the
individual defendants on this claim and remand for proceedings
consistent with this opinion.  As for the municipality, we affirm the
district court's grant of summary judgment for the Town because the
Town is not liable for intentional torts of employees under a
respondeat superior theory of liability.  See Howcroft, 747 N.E.2d at
747; Nardone v. Cambridge Hosp., No. 9600998, 1998 WL 1181149, at *2-3
(Mass. Super. Oct. 20, 1998).
V.

	For the reasons stated above, we affirm in part and reverse
in part, remanding this case to the district court for further
proceedings.
1.   Of the District of Massachusetts, sitting by designation.
2.   Thus, for the purposes of this opinion, when we collectively refer
to "defendants" or "appellees," we are referring to Chabot, Jenkins,
Darrin, Fullam, Blood, and the Town, but not LaForce or Fontaine.
3.   We have previously noted that the Supreme Court has not clearly
indicated whether the judge may act as fact-finder when there is a
factual dispute underlying the qualified immunity defense or whether
this function must be fulfilled by a jury.  See St. Hilaire v. City of
Laconia, 71 F.3d 20, 24 n.1 (1st Cir. 1995).  In any event, when facts
are in dispute, "'we doubt the Supreme Court intended this dispute to
be resolved from the bench by fiat.'" Id. (quoting Prokey v. Watkins,
942 F.2d 67, 72 (1st Cir. 1991)).
4.   Appellants also offered evidence to indicate that even if the
officers did not have actual knowledge of Kelley's ownership interest,
a reasonable inquiry by the officers would have revealed such property
interest.  Kelley had signed a sale agreement with LaForce, which
specifically prohibited LaForce from resuming control of the Pub.  In
addition, Kelley had entered into a real estate lease for the property
on which the Pub was located.  The officers, however, made only a one-sided inquiry by calling LaForce to verify his ownership before seizing
the property.  Appellants argue that such a limited inquiry to
determine the legal owner was objectively unreasonable in light of
clearly established law, given that there was no emergency situation
and the proper method for resolving property disputes is through the
courts.  Although the district court did not address this argument
directly, its conclusion that the officers' belief that LaForce owned
the Pub was "reasonable" suggests that it rejected the notion that a
more thorough inquiry was required.  Given our conclusion that a
genuine factual dispute exists as to what the police actually knew, we
need not resolve the question whether their belief (whatever it was)
was reasonable.
5.   It is unclear exactly which constitutional right appellants believe
was violated.  In their opposition to defendants' motion for summary
judgment, appellants allege that their Fourteenth Amendment procedural
and substantive due process rights were violated.  However, appellants'
brief asserts that the seizure of the Pub was in violation of the
Fourth Amendment.  Because the district court did not reach the issue
of whether there was a constitutional violation, we decline to address
its merits.  For the sake of clarity, we have omitted any references to
appellants' Fourth Amendment claim, and proceeded as if they have
alleged only a violation of their due process rights.
6.   As noted, we decline to decide whether the officers, if they lacked
knowledge of Kelley's ownership interest, acted reasonably, since this
is not necessary to our decision.
7.   Although appellants had originally claimed that defendants Chabot,
Jenkins, Chief Darrin, and Deputy Chief Fullam were all policy-making
officials for purposes of municipal liability, appellants only renew
this argument in their brief as to Chief Darrin.  Therefore, the
argument that Chabot, Jenkins, and Fullam are policy-making officials
is waived because it was not raised in appellants' brief.  See Sacko,
247 F.3d at 24.
8.   We note that if the district court decides, on remand, that the
officers are not protected by qualified immunity, then the court will
also have to determine whether appellants have offered sufficient
evidence of threats, intimidation, or coercion so as to make out a
claim under the MCRA.  See Columbus v. Biggio, 76 F. Supp. 2d 43, 54
(D. Mass. 1999) (dismissing claim under MCRA for failure to allege that
constitutional deprivations were brought about by threats,
intimidation, or coercion); Cignetti v. Healy, 89 F. Supp. 2d 106, 125
(D. Mass. 2000) (examining alleged "threat" objectively); Rogan v.
Menino, 973 F. Supp. 72, 77 (D. Mass. 1997) (dismissing MCRA claim for
failure to allege "'actual or potential physical confrontations
involving a threat of harm'" (quoting Planned Parenthood League of
Mass., Inc. v. Blake, 631 N.E.2d 985, 989 n.8 (Mass. 1994))).
9.   Appellants' brief, in appealing the grant of summary judgment on the
MCRA claim, simply incorporates the arguments set forth challenging the
summary judgment on the § 1983 claim.  Since appellants did not
challenge the district court's finding of qualified immunity under §
1983 for Chabot and Jenkins, as mentioned in Section II above, there is
no argument appealing the MCRA claim to incorporate.
10.   The Town is also entitled to summary judgment on the MCRA claim
because under Massachusetts law a municipality cannot be sued under the
MCRA.  See Howcroft v. City of Peabody, 747 N.E.2d 729, 744 (Mass. App.
Ct. 2001) (concluding that, unlike § 1983, a municipality is not a
"person" within the terms of the MCRA).
11.   If appellants' allegation that Chabot and Jenkins authorized
Mascroft's eviction is true, then Chabot and Jenkins could also be
complicit in the conversion. See Refrigeration Discount Corp. v.
Catino, 112 N.E.2d 790, 793 (Mass. 1953) ("All parties engaged in
committing a conversion of the goods of another may be held jointly or
severally for the wrong.").
12.   We note that summary judgment for the Town was appropriate for the
additional reason that the claim of intentional interference with
contractual rights against the Town is barred by the Massachusetts Tort
Claims Act.  See Mass. Gen. Laws. Ann. ch. 258, § 10(c).



