
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1962                                     DEBRA HORTA,                                Plaintiff, Appellant,                                          v.                             CHARLES B. SULLIVAN, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Sheila M. Tierney  with whom Tierney Law  Office was on brief  for            _________________            ___________________        appellant.            Linda M. Walsh with whom Kroll & Tract  was on brief for appellees            ______________           _____________        Charles  B. Sullivan,  Paul G.  Sadeck, Edward Mello  and the  Town of        Freetown.            James F. Gettens  with whom Healy &  Rocheleau, P.C. was on  brief            ________________            ________________________        for  appellees Jeffrey  Mennino,  James K.  Bowles,  and the  Town  of        Lakeville.                                  ____________________                                   August 31, 1993                                 ____________________                      CAMPBELL,   Senior  Circuit  Judge.    A  passenger                                  ______________________            injured after  police officers  had chased the  motorcycle on            which she was riding sued the police officers, the towns, and            the  town police chiefs in the district court under 42 U.S.C.              1983 and  state law.   The district  court granted  summary            judgment  for  all  defendants  on  all  counts.    Appellant            appeals, but only as to the   1983 claims against the  police            officers and the pendent Massachusetts Tort Claims Act claims            against the two towns.  We affirm in  part, vacate and remand            in part, and certify  a question of law to  the Massachusetts            Supreme Judicial Court.                                          I.                                          I.                      The following facts are not in dispute.  On Friday,            August 5, 1988, at  approximately 9:18 p.m., appellee Jeffrey            Meninno,  a Lakeville  Police Officer,  was traveling  in his            police  cruiser   north   on  County   Road   in   Lakeville,            Massachusetts, when he observed a motorcycle approaching  him            in  the southbound lane in excess of the posted speed limit.1            Officer Meninno  activated the  cruiser's blue lights  as the            motorcycle approached.  He then turned his cruiser around and                                            ____________________            1.  Officer Meninno stated that  his radar gun, which he  was            operating  as  he  drove  along  County  Road,  measured  the            motorcycle's  speed as 59 miles  per hour.   The posted speed            limit on County Road was 40  miles per hour.  A photograph of            the  radar gun, showing a  reading of 59  miles per hour, was            attached as an exhibit to Meninno's deposition.                                         -2-            began   to pursue the  motorcycle.  Instead  of pulling over,            the motorcycle accelerated.                        When appellant  Debra Horta, riding on  the back of            the motorcycle,  realized that  the police car  was following            them,   she  told   the   motorcycle   operator,   James   F.            Demoranville,   to  stop   because  "it   isn't  worth   it."            Demoranville  refused.   "He  just said  to  tuck my  head in            between  his shoulders  and  hang on."   Appellant  remembers            nothing about what occurred after that moment.                      Officer Meninno accelerated to keep up and followed            the motorcycle along  County Road  from a distance  of a  few            hundred  feet, backing off a number of times when it appeared            that the bike  was wobbling  and the riders  might fall  off.            The chase reached speeds of  seventy-five to eighty miles per            hour, as Meninno  watched the  motorcycle drive  erratically,            pass at  least one  car, and  swerve into  and  drive in  the            opposite lane.   Meninno unsuccessfully  attempted to  record            the motorcycle's license plate number.                      As the  pursuit continued  on County Road,  Officer            Meninno radioed a report  to the Lakeville police dispatcher,            telling  her  of the  pursuit and  asking  her to  notify the            police department  in the  neighboring town of  Freetown that            the  motorcycle  was  heading  toward  the Lakeville-Freetown            line.   Appellee  Charles  B. Sullivan,  a police  officer in            Freetown,  heard  Meninno's  transmission  but  did  not  yet                                         -3-            contact Lakeville.  At  that time Sullivan and  appellee Paul            G. Sadeck,  another Freetown  police officer, were  parked in            separate cruisers  on Route  18 in  Freetown.   Sullivan told            Sadeck  about  the chase  and then  drove  south on  Route 18            toward  the intersection of Route  18 and Mason  Road.  Mason            Road  runs  between  County  Road  and  Route  18.    Meninno            contacted the Lakeville dispatcher  again, notifying her that            the  motorcycle  had  left  Lakeville and  entered  Freetown.            Sullivan  then informed the  Lakeville dispatcher and Meninno            that the Freetown police would assist.  The motorcycle slowed            down to thirty miles  per hour, with Meninno doing  the same,            before  turning left  from County  Road onto  Mason Road  and            accelerating again to  over sixty miles  per hour.2   Officer            Meninno kept  up and told Sullivan  by radio that he  and the            motorcycle  were now proceeding eastbound on  Mason Road.  He            also  warned Sullivan  that,  "He's driving  recklessly.   Be            careful."  Sullivan informed Meninno  that he was now  coming            in  the other  direction  on Mason  Road,  getting closer  to            Meninno and the speeding motorcycle.                                            ____________________            2.  Mason  Road is  a paved,  two-lane road  approximately 24            feet wide  with a  double  solid yellow  line separating  the            lanes and  a posted speed  limit of 30  miles per hour.   The            segments of County Road  and Mason Road on which  the pursuit            took place are sparsely populated residential and undeveloped            areas.   That  evening, Mason  Road was  dry and  traffic was            light.                                         -4-                      As  the  motorcycle and  Meninno continued  east on            Mason Road,  Officer Sullivan  stopped his police  cruiser in            the eastbound lane  of the  two-lane road, facing  west.   He            left the transmission in  Drive and "stood on the  brakes" to            keep  the cruiser  stationary.   The westbound  lane directly            next to  Sullivan's cruiser was  unobstructed.3  In  front of            the cruiser, the road ran straight for approximately 480 feet            before it turned.   Sullivan could not see around the bend to            the  approaching motorcycle  and  police car,  nor could  the            latter yet see his  car.  Sullivan illuminated  the cruiser's            blue   lights,  take-down   lights,4  and  headlights.     No            streetlight illuminated  the point  at which the  cruiser was            parked, but  the road was lit  at the bend  and the take-down            lights illuminated part of the road in front of the cruiser.                      Officer Meninno  and the motorcycle  were traveling            along Mason Road at  sixty or sixty-five miles per  hour when            Officer  Sullivan advised  Meninno  by radio  of his  precise                                            ____________________            3.  Officer Sadeck, in another cruiser, was heading for Mason            Road at this time but did not arrive on the scene until after            the crash.   While appellant  alleged in  her complaint  that            Sadeck arrived prior to the crash and that his cruiser formed            part  of  a "staggered  roadblock,"  there  is no  admissible            evidence in the record supporting this allegation.  See infra                                                                _________            Part II.            4.  Take-down lights  are small  white lights affixed  to the            roof of the police cruiser and located in between two sets of            flashing  blue  lights.    The take-down  lights  on  Officer            Sullivan's  cruiser were  directed  toward the  front of  the            cruiser and illuminated a portion of the area in front of the            car.                                         -5-            location,  warned him to "back off"  and that he had the road            "blocked."    Meninno says  that he  did  slow down,  but the            motorcycle continued on apace.                      Fifteen to twenty  seconds elapsed before  Sullivan            saw the  motorcycle, with  Demoranville and appellant  on it,            round  the bend  in  Mason Road  with Meninno's  cruiser some            distance  behind it.5    Demoranville, still  driving in  the            eastbound  lane, appeared to  slow the  cycle down  and steer            toward  the roadside  on his  right.  However,  he apparently            lost  control of the motorcycle,  which fell on  its side and            slid  along the roadway until  it collided with  the front of            Officer Sullivan's  stationary police  cruiser.  The  cruiser            rose up  in the  air  on impact,  Demoranville became  wedged            underneath the  car, and  appellant Horta fell  backwards off            the motorcycle.  Meninno eventually  stopped without skidding            or taking evasive  action.  Demoranville died within the hour            and Horta sustained serious, permanent injuries, resulting in            a month-long coma and eventual amputation of her left leg.                      Three to four minutes elapsed from the time Officer            Meninno began the pursuit to the time the motorcycle collided            with  Sullivan's cruiser.  The pursuit covered 3.2 miles.  At                                            ____________________            5.  Meninno   stated   in   his   deposition  that   he   was            approximately 250 feet behind  the motorcycle when he rounded            the  turn.  Sullivan estimated only that the distance was "no            less than"  50 to 75 feet.  The evidence is unclear as to how            fast the motorcycle was  going when it rounded the  last bend            on Mason Road.                                           -6-            no time  did Officer  Meninno's police cruiser  make physical            contact with the motorcycle or its passengers.6                      Appellant Horta brought this civil action for money            damages on June 25, 1991, in the United States District Court            for the District of Massachusetts against seven defendants               Officers Meninno, Sullivan, and Sadeck; the Town of Lakeville            and the Town of Freetown; and Lakeville Police Chief James K.            Bowles and Freetown Police Chief Edward Mello.  The complaint            contained  six counts, alleging  that Meninno,  Sullivan, and            Sadeck  were liable to Horta under 42 U.S.C.    1983 and 1985            for violation  of her constitutional rights  (Count I); under            Mass. Gen. L. ch. 12,    11H and I for violation of her civil            rights (Count  II); and  under the Massachusetts  Tort Claims            Act,  Mass. Gen.  L.  ch. 258,  for  negligence (Count  III).            Horta  also alleged that the towns  of Lakeville and Freetown            were liable to  her under the  Massachusetts Tort Claims  Act            for the  negligent actions  of Meninno, Sullivan,  and Sadeck            (Count IV), and that Chief Bowles, Chief Mello, Lakeville and            Freetown were liable to her under 42 U.S.C.    1983, 1985 and            1988 (Count  V) and under Mass.  Gen. L.    11H  and I (Count            VI).                                              ____________________            6.  It  is   undisputed  that   no  non-police   vehicles  or            pedestrians were on Mason Road near the accident scene at the            time of the collision.                                         -7-                      The  defendants moved  for summary  judgment, which            the district  court granted  on July  8, 1992.7    Horta  now            appeals from the final judgment dismissing her complaint.                                            ____________________            7.  The  district court  separately granted  Meninno's motion            for judgment on  the pleadings  as to Count  III.   Appellant            filed  no opposition to the  motion and does  not appeal from            that portion of the district court's order.                                         -8-                                         II.                                         II.                      Horta challenges only the district court's granting            of summary judgment  on Counts  I and IV,  hence waiving  any            appeal concerning Counts II, III, V and VI.  See Fed. R. App.                                                         ___            P. 28(a)(3), (5); Brown v. Trustees of Boston Univ., 891 F.2d                              _____    ________________________            337, 352 (1st Cir. 1989), cert. denied, 496 U.S. 937 (1990).                                      ____________                      We turn first to a disagreement over what materials            are properly in the summary judgment record.  Appellees moved            in  the district  court  to  strike  seven  exhibits      two            affidavits, three  newspaper articles and  other documents               that  Horta submitted with  her opposition to  the motion for            summary  judgment.   Appellees argued,  inter alia,  that the                                                    _____ ____            exhibits contained  inadmissible hearsay, were not  in proper            form,  and were not properly sworn to or certified under Fed.            R. Civ.  P. 56.    The district  court denied  the motion  to            strike without comment.   Appellees now assert that we should            disregard  the exhibits  for  purposes of  deciding, in  this            appeal, whether or not to uphold summary judgment.  See Carey                                                                ___ _____            v. Bahama Cruise Lines, 864 F.2d 201, 203 n.1 (1st Cir. 1988)               ___________________            ("An  appellee need not cross-appeal 'to argue that there are            alternative  grounds  that   support  the  judgment  below.'"            (quoting Jasany v. United States Postal Serv., 755 F.2d 1244,                     ______    __________________________            1248 n.1 (6th Cir. 1985))).                      Summary  judgment   is  to  be   decided  on   "the            pleadings,  depositions,  answers  to   interrogatories,  and                                         -9-            admissions on  file, together  with the affidavits,  if any."            Fed. R.  Civ. P. 56(c).   In addition, a court  may take into            account any  material that would  be admissible or  usable at            trial.  10A Charles Alan Wright, Arthur R. Miller &  Mary Kay            Kane,  Federal Practice and Procedure    2721, at  40 (2d ed.                   ______________________________            1983).  However, inadmissible evidence may not be considered.            Finn v. Consolidated Rail Corp., 782 F.2d 13, 16-17 (1st Cir.            ____    _______________________            1986).   "Mere allegations, or conjecture  unsupported in the            record, are insufficient to raise a genuine issue of material            fact."   August v. Offices Unlimited, Inc., 981 F.2d 576, 580                     ______    _______________________            (1st Cir. 1992).                      We  need   consider  only  one  of  the  challenged            exhibits as none of the others, even if admissible, would add            to  or subtract from Horta's ability to raise a genuine issue            of  material fact.  The significant exhibit is a photocopy of            a newspaper article indicating that Officer  Sadeck's cruiser            had  arrived on  the  scene  before  the  crash  and  was  so            positioned  with  Officer Sullivan's  cruiser  as  to form  a            "staggered roadblock."  This  account is contrary to  all the            other reports before  the court.   Sadeck stated  in his  own            affidavit that he was  on Route 18, not on  Mason Road (where            the crash occurred) when  he saw smoke coming from  the front            of Officer  Sullivan's cruiser and heard  Sullivan report the            collision to  the Freetown  dispatcher.  Officer  Sadeck says            that  he immediately  drove down  Mason Road  and  parked his                                         -10-            cruiser in  the westbound lane approximately  150 feet behind            Officer Sullivan's cruiser, which  was in the eastbound lane.            He exited his car, saw two  injured persons on the ground and            ran back to  his cruiser  to summon an  ambulance and  obtain            first  aid   equipment.     Officers  Meninno  and   Sullivan            corroborate  Sadeck's story,  stating that  they did  not see            Officer  Sadeck  on  the  scene until  after  the  collision.            Freetown  Police  Chief  Mello's  affidavit  states  that  an            official investigation of the  incident turned up no evidence            that Officer Sadeck  was on Mason  Road before the  collision            occurred.                      Appellant  alleged in  her  complaint that  Officer            Sadeck was on Mason Road before the collision, and had parked            his vehicle  in the westbound  lane, 150 feet  behind Officer            Sullivan's cruiser  in the eastbound lane,  to establish with            Sullivan  a  staggered  roadblock.    The  newspaper  article            offered  in  support  of  this appeared  two  days  after the            accident.   It reports Freetown Police Chief Mello as stating            that two  Freetown police  vehicles were positioned  on Mason            Road  to create  a staggered  roadblock.8   No  affidavits or                                            ____________________            8.  The unidentified reporter wrote, in part:                           James F. Demoranville,  40, died  of                      multiple injuries at St.  Luke's Hospital                      in  New Bedford  at  10  p.m.,  about  45                      minutes  after he  lost  control  of  his                      motorcycle and slid into  one of 2 police                      cruisers poised to slow him down. . . .                                         -11-            depositions  from  the  unidentified  newspaper  reporter  or            reporters were submitted to the court.                      This   article  should   have   been  stricken   on            appellees'  motion  and  cannot  be  considered  in  deciding            whether Horta  has raised a  genuine issue of  material fact.            See Garside v.  Osco Drug, Inc.,  895 F.2d  46, 50 (1st  Cir.            ___ _______     _______________            1990); Bolen  v. Paragon  Plastics, Inc.,  754 F. Supp.  221,                   _____     _______________________            224-25 (D. Mass. 1990).  The account is hearsay, inadmissible            at  trial to establish  the truth of the  reported facts.  In            fact, the newspaper account  is hearsay within hearsay.   See                                                                      ___            Fed. R. Evid.  805.  Even were appellee Chief  Mello the sole            source of  the article's information, so  that his statements            could  be regarded  as the nonhearsay  admissions of  a party            opponent,  see Fed.  R. Evid.  801(d)(2), the  article itself                       ___            constitutes   inadmissible    out-of-court   statements,   by            unidentified  persons,  offered to  prove  the  truth of  the                                            ____________________                           [] Freetown police set up  a partial                      road  block  by  staggering two  cruisers                      along the road, according to Police Chief                      Edward  Mello.  The  staggered road block                      is   designed   to  slow   down  speeding                      vehicles,  leaving  an  opening  for  the                      vehicle to continue driving, he said.                           Mr.   DeMoranville   did  slow   his                      motorcycle but  lost control of it  as he                      tried   to   avoid  hitting   a  cruiser,                      according to reports.  The motorcycle and                      its  passengers then slid  into the front                      end of one of the cruisers.            Chase  Ends in  Death, New  Bedford (Mass.)  Sunday Standard-            _____________________            Times, Aug. 7, 1988.                                         -12-            matter  asserted.  See Fed. R. Evid. 801(c); New England Mut.                               ___                       ________________            Life  Ins. Co. v. Anderson,  888 F.2d 646,  650-51 (10th Cir.            ______________    ________            1989).   Such inadmissible material  is not a  proper part of            the  record  for  summary  judgment  purposes.    See,  e.g.,                                                              ___   ____            Garside, 895  F.2d at  50 (refusing  to consider,  on summary            _______            judgment  motion,  an  interrogatory  answer  describing  the            anticipated  testimony  of  an expert  because  it  contained            inadmissible hearsay); FDIC v. Roldan Fonseca, 795 F.2d 1102,                                   ____    ______________            1110  (1st  Cir.  1986)  (refusing  to  consider  on  summary            judgment photocopies  of three  money orders offered  to show            amount  paid  on  a   note  because  they  were  inadmissible            hearsay).   Accordingly,  the  newspaper article  may not  be            regarded in  determining whether a genuine  issue of material            fact exists.                                         III.                                         III.                      Appellant alleged in Count I that  Officers Sadeck,            Meninno,  and Sullivan were liable  to her under  42 U.S.C.              1983 because  they deprived  her of her  constitutional right            under  the  Fourth Amendment  to  be  free from  unreasonable            seizures.9   In granting summary judgment  for appellees, the                                            ____________________            9.  The Fourth  Amendment to the  United States  Constitution            provides:                           The right of the people to be secure                      in  their  persons,  houses, papers,  and                      effects,  against  unreasonable  searches                      and seizures, shall  not be violated, and                      no   Warrants   shall  issue,   but  upon                      probable  cause,  supported  by  Oath  or                                         -13-            district  court  ruled  that   all  three  were  entitled  to            qualified immunity.  We affirm, although on different grounds            as to Sadeck  and Meninno.  See Aunyx Corp.  v. Canon U.S.A.,                                        ___ ___________     _____________            Inc., 978 F.2d 3, 6 (1st Cir. 1992) ("We are free, on appeal,            ____            to affirm a judgment on any independently sufficient ground."            (citations omitted)), cert. denied, 113 S. Ct. 1416 (1993).                                  ____________                 A.  Officer Sadeck                   A.  Officer Sadeck                     ______________                                            ____________________                      affirmation, and  particularly describing                      the place to be  searched, and the person                      or things to be seized.            42 U.S.C.   1983 provides in relevant part:                           Every person who, under color of any                      statute,  ordinance,  regulation, custom,                      or usage,  of any  State or  Territory or                      the  District  of Columbia,  subjects, or                      causes  to be  subjected, any  citizen of                      the United States  or other person within                      the    jurisdiction   thereof    to   the                      deprivation of any rights, privileges, or                      immunities  secured  by the  Constitution                      and laws,  shall be  liable to  the party                      injured  in an  action  at law,  suit  in                      equity,  or  other proper  proceeding for                      redress. . . .                      Appellant  also  alleged  in Count  I  that Sadeck,            Meninno, and  Sullivan were  liable under 42  U.S.C.    1985.            However, the   1985 claims were never discussed below, either            by the parties or the court, and the record  does not support            a    1985 claim.  See United Bhd. of Carpenters v. Scott, 463                              ___ _________________________    _____            U.S. 825,  834-37 (1983) (reaffirming that    1985 requires a            showing  of  some racial,  or perhaps  otherwise class-based,            animus   behind  the   conspirators'  actions);   Griffin  v.                                                              _______            Breckenridge, 403 U.S. 88, 102-03 (1971) (explaining elements            ____________            of a claim  under   1985(3)).  Hence, we  consider Count I to            include claims only under   1983.                                         -14-                      Appellant's  claim against Sadeck is based entirely            on  the allegation that he  parked his vehicle  on Mason Road            before the  collision, helping  Officer Sullivan to  create a            staggered roadblock  which led to appellant's  injuries.  The            undisputed facts on  the record show that  Officer Sadeck did            not arrive  on  Mason  Road  until after  the  accident  and,            therefore,  was  not  causally   connected  to  the  injuries            sustained by appellant.  Consequently, Sadeck was entitled to            judgment as a matter of law  on the   1983 claim against him.            See  Lossman v. Pekarske, 707  F.2d 288, 291  (7th Cir. 1983)            ___  _______    ________            ("[T]he  principles of tort causation apply to constitutional            as to other tort suits.").                  B.  Officer Meninno                   B.  Officer Meninno                     _______________                      We do not reach qualified immunity, the ground upon            which  the court  below  dismissed the    1983  claim against            Officer Meninno.  Rather, we find that Meninno is entitled to            prevail  as a matter of law because his conduct, construed in            the  light  most  favorable  to  appellant,  could  not  have            constituted a "seizure" of  her person within the  meaning of            the Fourth Amendment.                      The Supreme Court, in Brower v. County of Inyo, 489                                            ______    ______________            U.S. 593 (1989), clarified the scope of the Fourth  Amendment            in the context of police pursuits and roadblocks.                      Violation   of   the   Fourth   Amendment                      requires  an  intentional acquisition  of                      physical  control.  A seizure occurs even                      when an unintended person or thing is the                                         -15-                      object  of the  detention or  taking, but                      the detention or  taking must be willful.                      This  is implicit in  the word "seizure,"                      which  can  hardly   be  applied  to   an                      unknowing act.  . . . In  sum, the Fourth                      Amendment  addresses  "misuse of  power,"                      not the accidental  effects of  otherwise                      lawful government conduct.                           Thus,  if  a  parked and  unoccupied                      police car  slips  its brake  and pins  a                      passerby  against a  wall,  it is  likely                      that  a  tort  has  occurred,  but  not a                      violation of the  Fourth Amendment.   And                      the  situation would  not  change if  the                      passerby happened, by lucky chance, to be                      a serial murderer for  whom there was  an                      outstanding arrest warrant    even if, at                      the time  he was  thus pinned, he  was in                      the  process of  running  away  from  two                      pursuing  constables.   It  is clear,  in                      other  words,  that  a  Fourth  Amendment                      seizure  does not occur whenever there is                      a governmentally caused termination of an                      individual's  freedom  of  movement  (the                      innocent  passerby),  nor  even  whenever                      there  is  a  governmentally  caused  and                      governmentally desired  termination of an                                     _______                      individual's  freedom  of  movement  (the                      fleeing felon), but only when  there is a                      governmental  termination  of freedom  of                      movement   through   means  intentionally                                 ______________________________                      applied.  That is the reason there was no                      _______                      seizure  in  the  hypothetical  situation                      that  concerned  the  Court  of  Appeals.                      [I.e.,  a  police   chase  in  which  the                      suspect unexpectedly loses control of his                      car  and crashes.]   The  pursuing police                      car  sought to stop  the suspect  only by                      the  show  of  authority  represented  by                      flashing  lights and  continuing pursuit;                      and though he was in fact stopped, he was                      stopped by a different means     his loss                      of  control  of   his  vehicle  and   the                      subsequent crash.   If, instead  of that,                      the police cruiser  had pulled  alongside                      the  fleeing  car   and  sideswiped   it,                      producing the crash, then the termination                      of  the  suspect's  freedom  of  movement                      would have been a seizure.                                         -16-            Id. at 596-97 (citations omitted) (emphasis in original).            ___                      Applying the  Court's  reasoning in  Brower to  the                                                           ______            present facts, it is clear  that Officer Meninno's pursuit of            the motorcycle  on which Horta was riding,  without more, was            not a Fourth Amendment seizure.   "A Fourth Amendment seizure            does not occur when a police officer turns on his blue lights            and  thereby signals the driver  of a vehicle  to pull over."            Willhauck  v. Halpin, 953 F.2d 689, 716  (1st Cir. 1991).  If            _________     ______            the  driver speeds off, pursued  by the officer,  and a crash            ensues,  this  does  not  necessarily  constitute  a seizure,            either.    Hence, if  during  the  chase here  Demoranville's            motorcycle  had accidentally  collided with  a tree  on Mason            Road  there would  plainly have been  no seizure,  as Meninno            would  not  have  terminated  Horta's  "freedom  of  movement            through means intentionally applied," (i.e.,  Meninno did not            ___________________________________            intentionally  cause  the  motorcycle  to  strike the  tree).            Brower,  489 U.S. at 597;  see, e.g., Campbell  v. White, 916            ______                     ___  ____  ________     _____            F.2d 421,  423 (7th Cir.  1990) (holding no  seizure occurred            where  police officer accidentally collided with motorcyclist            being pursued), cert. denied, 111 S. Ct. 1314 (1991); Apodaca                            ____________                          _______            v. Rio  Arriba County  Sheriff's Dept.,  905 F.2d  1445, 1447               ___________________________________            (10th Cir.  1990) (holding  no seizure occurred  where police            officer responding to burglar alarm  unintentionally collided            with bystander's  vehicle); Roach v.  City of  Fredericktown,                                        _____     ______________________            882  F.2d  294, 296  (8th  Cir.  1989)  (holding  no  seizure                                         -17-            occurred where police officer  did not intend pursuit  to end            by means of a collision with another vehicle).                        By  the  same  token,  it is  not  sufficient  that            Meninno pursued and the pursuit resulted in a collision  with            another  police   vehicle.     Even  if  Officer   Sullivan's            independent  conduct in blocking the lane were deemed to be a            Fourth  Amendment seizure,  see  infra  Part III.C.,  Officer                                        __________            Meninno  did  not  necessarily  share responsibility.    "The            Supreme  Court  in  Brower  carefully  distinguished  between                                ______            police action  directed toward producing  a particular result                           _______________                in Fourth Amendment parlance, 'an intentional acquisition            of physical control'    and  police action that simply causes                                                                   ______            a particular  result.   Unless  the restraint  of liberty  at            issue  resulted  from  an  attempt to  gain  control  of  the            individual,  the  Court  stated,  there has  been  no  Fourth            Amendment seizure."   Landol-Rivera  v. Cruz Cosme,  906 F.2d                                  _____________     __________            791,  795  (1st  Cir.  1990)  (emphasis  in  original).    To            establish that  Meninno seized her, appellant  must show that            the collision  with Officer Sullivan's cruiser  was the means            intended by Meninno to end the pursuit.              ___________________                      Reading the  record in the light  most favorable to            appellant,  there is  no  basis for  a jury  to  find that  a            collision  between the motorcycle  and another police vehicle            was  the means intended by Meninno  to terminate the pursuit.            Meninno himself attempted  to stop the  motorcycle only by  a                                         -18-            show of authority, i.e.,  his flashing lights and siren.   He            did not request  the Lakeville police to establish  a partial            roadblock, nor is there anything to show that he contemplated            forcing the fleeing motorcycle into a collision.                        Appellant   asserts   that  Meninno   intentionally            brought about the collision  by "herding" the motorcycle into            Sullivan's cruiser.   But Meninno's cruiser did not touch the            motorcycle; he consistently matched his speed to  that of the            motorcycle and  maintained a distance  of a few  hundred feet            behind.  Demoranville slowed down (to  thirty miles per hour)            and  sped up  (to seventy-five  miles per  hour) a  number of            times  during the  chase.   Nothing prevented  the motorcycle            operator from slowing  down and stopping  had he so  desired.            It was  Demoranville, not Meninno,  who elected to  head into            Freetown and to turn onto Mason Road.                        Meninno,  moreover,  never  proposed nor  discussed            with anyone the idea  of blocking the traffic lane.   Officer            Sullivan  volunteered his  assistance,  and Officer  Meninno,            though in radio contact with Sullivan,  had no authority over            him.  Sullivan's  decision to  park his car  in the  oncoming            traffic lane of Mason Road  was made independently and, until            just before the crash,  without Meninno's knowledge.  Meninno            was first informed,  by radio, of the  partial roadblock when            Officer  Sullivan  told  him  to  "back  off,"  approximately                                         -19-            fifteen seconds before the  collision.  Meninno said  that he            did slow down, although the motorcycle kept going.                      We  hold  that  appellant  did  not  produce  facts            creating a genuine issue  as to whether the motorcycle-police            cruiser collision  was the means intended  by Officer Meninno            to  terminate appellant's  freedom of  movement.10   Appellee            Meninno was entitled to summary judgment on Count I.                 C.  Officer Sullivan                   C.  Officer Sullivan                     ________________                      The  district court found  appellee Sullivan  to be            protected  by  qualified  immunity  from  appellant's    1983            claim.                       Appellant  challenges  the  finding   of  qualified            immunity, first arguing  that Sullivan was  not engaged in  a            "discretionary function" when he  participated in the pursuit            of  appellant  and  Demoranville.     His  actions  were  not            discretionary, she  argues, because the Town  of Freetown had            in effect high speed guidelines which governed his conduct.                       In   its   landmark  case   establishing  qualified            immunity  doctrine, the  Supreme  Court  indeed  stated  that            "government  officials  performing  discretionary  functions,                                                ________________________            generally  are  shielded  from liability  for  civil  damages                                            ____________________            10.  We do not consider  to what extent, if any,  appellant's            claim of a Fourth Amendment seizure is weakened by her status            as a mere  passenger on  the motorcycle,  not the  motorcycle            operator being pursued by the police for violation of traffic            laws.   See Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795-96                    ___ _____________    __________            (1st Cir. 1990).                                         -20-            insofar as their conduct does not violate clearly established            statutory or  constitutional  rights of  which  a  reasonable            person would  have known."   Harlow  v. Fitzgerald,  457 U.S.                                         ______     __________            800, 818 (1982)  (emphasis supplied).   But in  spite of  the            reference  to   discretionary functions,  it has  never since            been  clear  exactly  what  role,  if  any,  this concept  is            supposed  to  play in  applying  qualified  immunity.   Judge            Cummings, writing  for the  Seventh Circuit, warned  that "it            would be unwise to engage in a case  by case determination of            Section  1983  immunity  based  upon  the  ministerial versus            discretionary  nature   of   the  particular   official   act            challenged."   Coleman v. Frantz, 754 F.2d 719, 727 (7th Cir.                           _______    ______            1985).  Judge Arnold, writing for the Eighth Circuit, said,                      The  distinction between  ministerial and                      discretionary duties  of public officials                      has  a   long  history.     However,  the                      plaintiffs  have cited, and  we can find,                      no recent case other than that  before us                      in which  a court has  rejected qualified                      immunity simply because  the official  in                      question  was  performing  a  ministerial                      duty.            McIntosh v. Weinberger, 810  F.2d 1411, 1432 (8th  Cir. 1987)            ________    __________            (citations omitted), partially vacated  and remanded on other                                 ________________________________________            grounds sub nom.  Turner v. McIntosh, 487 U.S. 1212 and cert.            ________________  ______    ________                ___ _____            denied,  487  U.S.  1217  (1988).    See  Gagne  v.  City  of            ______                               ___  _____      ________            Galveston, 805  F.2d 558, 559  (5th Cir. 1986)  (holding that            _________            officials do not lose qualified immunity merely because their            conduct violates some unambiguous statutory or administrative                                         -21-            provision), cert. denied, 483 U.S. 1021 (1987); see also F.E.                        ____________                        ________ ____            Trotter,  Inc. v. Watkins,  869 F.2d 1312,  1314-15 (9th Cir.            ______________    _______            1989); cf. Ricci v.  Key Bancshares of Maine, Inc.,  768 F.2d                   __  _____     _____________________________            456, 464 (1st Cir. 1985) ("[B]reaking down discretionary acts            . . . into  discretionary  and  ministerial components  would            seem  to  vitiate much  of  the  protection of  discretionary            action which absolute immunity was designed to provide.").                       Since   Harlow  the   Supreme  Court   has  neither                              ______            repudiated  nor  much  explained  the  role of  discretionary            functions relative to qualified  immunity.  However, in Davis                                                                    _____            v.  Scherer,  468 U.S.  183  (1984),  the  Court rejected  an                _______            argument  almost  identical  to  the  one  put  to  us  here.            Officials  being sued  for alleged  constitutional violations            were  accused  of  having   ignored  the  commands  of  state            administrative   regulations,  and   hence  of   violating  a            ministerial rather than  a discretionary duty.   Id. at  193,                                                             ___            196  & n.14.   Because of this,  it was argued  that they had            forfeited any claim to qualified immunity.  In rejecting this            contention, the Court made two points:   first, the officials            could lose their  immunity only  if the breach  of the  state            regulation rather than of a  constitutional duty gave rise to            plaintiff's damages claim; and, second, the officials' duties            were  not merely  ministerial,  as the  officials retained  a            considerable measure  of personal discretion  in applying the            administrative regulations.  Id. at 196 & n.14.                                         ___                                         -22-                      The same  factors bar appellant's claim  here.  The            damages  claim  in Count  I is  based  on a  purported Fourth            Amendment violation, not upon the breach of the Freetown high            speed   pursuit  guidelines.    And  the  pursuit  guidelines            required   Sullivan   to   exercise   discretion   in   their            interpretation.11                       Generally,     police     exercise     "inescapably            discretionary  functions replete with  close judgment calls."            Gooden  v. Howard County, 954  F.2d 960, 964  (4th Cir. 1992)            ______     _____________            (en  banc).    The promulgation  by  a  police department  of            general guidelines and standard procedures does not transform            police officers' discretionary actions into ministerial ones.            "A  law that  fails to  specify the  precise action  that the            official   must   take   in  each   instance   creates   only            discretionary authority . . . ."  Davis v.  Scherer, 468 U.S.                                              _____     _______            at  197  n.14.     The  Freetown  guidelines,  an  eight-page            collection  of  rules  and  suggestions  labeled  "High Speed                                            ____________________            11.  Confusingly, appellant also argues at some points in her            brief that Freetown did not  have guidelines in place, citing                                    ___            three documents from  Freetown public  records which  suggest            that  a new set of high speed pursuit guidelines were adopted            in late 1988, after the collision.  These documents, however,            are not  inconsistent with  the uncontradicted  statements by            appellees Sullivan and Mello  that written guidelines were in            effect on August 5, 1988.                 It would  weaken    and not help    appellant's position            were  it to  be found  that no  guidelines existed  governing            Sullivan's actions.   With no rules  or regulations to  guide            his  decision  making,  Sullivan's  decision to  aid  in  the            pursuit  and block off  the lane would  necessarily have been            discretionary.                                         -23-            Pursuit      General  Considerations  and  Guidelines,"  left            Sullivan with a  substantial amount of discretion as  to when            and how to conduct and terminate high speed pursuits.                        We  conclude  that   insofar  as  the   concept  of            discretionary  function is  relevant at  all in  the immunity            sphere, Sullivan was engaged in a discretionary function.                      The more  serious question under Harlow  is whether                                                       ______            Sullivan   violated  a   clearly  established   statutory  or            constitutional right  of  which a  reasonable police  officer            would  have known.  The theory of appellant's   1983 claim is            that Sullivan violated her  rights under the Fourth Amendment            to be free  from unreasonable seizures by  placing his police            car  in the  traffic  lane in  which  he knew  appellant  and            Demoranville were traveling at  high speed.  Appellant argues            that a reasonable police officer would have known that, under            clearly established law, this sort of a partial roadblock was            unlawful.                      Appellant  has the burden of demonstrating that the            law  on this issue was clearly established on August 5, 1988.            Davis,  468  U.S.  at  197.    For  a  right  to  be  clearly            _____            established,   "[t]he  contours   of   the   right  must   be            sufficiently   clear   that  a   reasonable   official  would            understand  that  what  he  is doing  violates  that  right."            Anderson  v. Creighton,  483  U.S. 635,  640  (1987).   While            ________     _________            appellant need not show that "the very action in question has                                         -24-            previously been held  unlawful," she must  show that, in  the            light  of preexisting  law,  the unlawfulness  of the  action            would have  been apparent  to the reasonable  police officer.            Id.              ___                      The Supreme  Court required  "any assessment as  to            whether police  conduct amounts to a  seizure implicating the            Fourth Amendment . . .  [to] take into  account '"all of  the            circumstances  surrounding the incident"'  in each individual            case."   Michigan v.  Chesternut, 486  U.S.  567, 572  (1988)                     ________     __________            (citations  omitted).   There  must  be a  balancing  of "the            nature  and  quality of  the  intrusion  on the  individual's            Fourth  Amendment  interests  against the  importance  of the            governmental  interests  alleged to  justify  the intrusion."            Tennessee  v.  Garner,  471   U.S.  1,  8  (1985)  (citations            _________      ______            omitted).  "[W]henever a  balancing of interests is required,            the facts of  the existing caselaw must closely correspond to            the contested action before the defendant official is subject            to liability under Harlow."  Benson v. Allphin, 786 F.2d 268,                               ______    ______    _______            276 (7th Cir.), cert. denied, 479 U.S. 848 (1986); see Medina                            ____________                       ___ ______            v.  City of  Denver, 960  F.2d 1493,  1498 (10th  Cir. 1992);                _______________            Frazier  v.  Bailey,  957  F.2d 920,  931  (1st  Cir.  1992).            _______      ______            Consequently, appellant here  must demonstrate  that, by  the            time in  question,  there were  fairly  analogous  precedents            establishing that  Sullivan's conduct violated  a plaintiff's            Fourth Amendment right to be free from unreasonable seizures.                                         -25-                      The hodgepodge of  cases cited by appellant12  show            the opposite:  it was  not  at all  clear  at the  time  that            Sullivan's  actions  violated  a  person's  Fourth  Amendment            rights.   As discussed below,  Brower v. County  of Inyo, 489                                           ______    _______________            U.S.  593  (1989),  holding  that a  total  roadblock  (i.e.,                                                 _____            tractor trailer  placed broadside  across entire road)  was a            seizure, was not decided until seven months after the present            events  had occurred.    The strongest case  decided prior to            this incident  in appellant's favor was Jamieson v. Shaw, 772                                                    ________    ____            F.2d  1205 (5th    Cir. 1985),  in  which the  plaintiff  was            seriously injured when the  car in which she was  a passenger            struck  a "deadman's"  roadblock placed  across a  highway by            defendant police  officers.   Id.  at 1206.   "The  roadblock                                          ___            consisted of an unlighted police  car parked laterally in the                                            ____________________            12.  We have considered  all of the cases cited  by appellant            and discuss  only the  ones which  best support her  argument            that Sullivan  violated clearly established  Fourth Amendment            rights.                 Appellant cites one decision  from Texas which found the            use of an unlit, total roadblock to stop speeding motorcycles            to be an unconstitutional  excessive use of force.   See City                                                                 ___ ____            of Amarillo v. Langley, 651 S.W.2d 906, 913-14 (Tex. Ct. App.            ___________    _______            7th  Dist.  1983).   The Langley  court  did not  discuss the                                     _______            Fourth Amendment.  As  far as we can tell, appellant  has not            alleged that  Sullivan violated her  substantive due  process            rights to be free from excessive force.  Even if she had, the            Supreme  Court made clear in  Graham v. Connor,  490 U.S. 386                                          ______    ______            (1989), that where "the  excessive force claim arises in  the            context of an arrest or investigatory stop of a free citizen,            it  is  most  properly  characterized  as  one  invoking  the            protections of the Fourth Amendment . . . ."  Id. at 394; see                                                          ___         ___            Landol-Rivera  v. Cruz  Cosme, 906  F.2d  791, 796  (1st Cir.            _____________     ___________            1990).                                         -26-            middle of the highway just over the crest of a hill.  Just as            [the pursued] car, still  traveling at a high rate  of speed,            reached the top  of the  hill, [a police  officer] flashed  a            bright   spotlight  in  [the  driver's]  eyes,  blinding  him            momentarily  and causing him to  lose control of  the car and            crash into the roadblock."  Id. at  1207.  The Jamieson court                                        ___                ________            held  that plaintiff's  complaint stated  a claim  cognizable            under  the Fourth  Amendment,  but did  not resolve  whether,            under  the   circumstances,  the  police   officers'  actions            actually constituted  an unreasonable seizure.   Id. at 1211;                                                             ___            see  also Stanulonis v. Marzec,  649 F. Supp.  1536, 1545 (D.            _________ __________    ______            Conn. 1986)  (holding that creating  "an immediate risk  of a            collision" by placing police car in path of speeding  vehicle            could constitute use of excessive force).                      In direct contrast  to Jamieson, the Ninth  Circuit                                             ________            decided in 1987  that such a total roadblock was not a Fourth            Amendment  violation.  See Brower v. County of Inyo, 817 F.2d                                   ___ ______    ______________            540  (9th  Cir. 1987),  rev'd, 489  U.S.  593 (1989).   After                                    _____            pursuing  a  suspect at  high  speeds for  twenty  miles, the            defendant police  officers decided  to create a  roadblock to            stop him.  Id., 817 F.2d at 542.  A tractor-trailer truck was                       ___            placed across the highway to block both lanes of the two-lane            highway.  Id.   Plaintiffs alleged that  the police concealed                      ___            the roadblock by  placing it  behind a curve  and leaving  it            unilluminated.  Brower,  489 U.S.  at 594.   The police  then                            ______                                         -27-            positioned  a police car in front of the tractor trailer with            its headlights  purposely aimed  to blind the  suspect as  he            approached the unlit roadblock.  Id.                                             ___                      The Ninth  Circuit held that use  of this roadblock            did not implicate the Fourth Amendment.                        Although  Brower  was   stopped  in   the                      literal  sense  by  his  impact  with the                      roadblock,  he  was not  'seized'  by the                      police   in  the   constitutional  sense.                      Prior to his failure to stop voluntarily,                      his   freedom   of  movement   was  never                      arrested or restrained.  He had  a number                      of opportunities to  stop his  automobile                      prior to the impact.                           An  analogous   situation  arose  in                      Galas [v. McKee,  801 F.2d 200 (6th  Cir.                      _____     _____                      1986)] where a  police officer engaged in                      a  high-speed chase of  a fleeing traffic                      offender.    The  chase  ended  when  the                      fleeing driver lost control  and crashed.                      The question arose whether the  crash was                      a "seizure" under  the fourth  amendment.                      The court  concluded that there  had been                      no  seizure  by  the  police  because the                      officers had failed  to impose  restraint                      on  the individual's  freedom to  stop or                      drive away. . . .                           We  agree  with the  Galas decision.                                                _____                      In  this case,  as the  twenty-mile chase                      makes plain, Brower consciously  chose to                      avoid official restraint.  That decision,                      an exercise of autonomy, cannot fairly be                      viewed  as a  "seizure"  by  the  police,                      under  the  fourth  amendment.   Brower's                      seizure,  if any,  was the result  of his                      own    effort   in    avoiding   numerous                      opportunities to stop.            Brower, 817 F.2d at 546; see also Reed v. County of  Allegan,            ______                   ________ ____    __________________            688 F. Supp. 1239, 1243 (W.D. Mich. 1988) (applying the Ninth                                         -28-            Circuit's Brower decision to hold that use of a roadblock did                      ______            not constitute a seizure).                        The Supreme  Court subsequently reversed  the Ninth            Circuit's decision in Brower, holding that a "seizure" within                                  ______            the  meaning  of  the  Fourth  Amendment  had  occurred,  and            remanded the case for a finding as to whether the seizure was            "unreasonable."  Brower v.  County of Inyo, 489 U.S.  at 599-                             ______     ______________            600.    However,  as  we  have  stated, the  Supreme  Court's            decision  in Brower was issued in March of 1989, seven months                         ______            after the Mason Road incident.13            _____                      Where at  the time of the  present occurrence there            were conflicting circuit decisions as  to whether or not even            the   more  deadly  full  roadblocks  were  unconstitutional,                                ____            Sullivan's parking of his illuminated  cruiser in one lane of            a  straightaway  cannot  be  said to  have  violated  clearly            established rights.                      Appellant  argues   that   it  had   been   clearly            established in Tennessee v.  Garner, 471 U.S. 1 (1985),  that                           _________     ______            the use of  deadly force  to seize  an unarmed,  nondangerous            suspect  violates the Fourth Amendment, id. at 11.  According                                                    ___            to  appellant,   a  reasonable  police  officer   would  have            analogized  the   use  of   the  present  roadblock   to  the                                            ____________________            13.  Appellant  suggests  that  a  reasonable  police officer            would  have realized  that  the Ninth  Circuit's decision  in            Brower was  incorrect because  the Supreme Court  had already            ______            granted  certiorari on August 5, 1988.  Clairvoyance is not a            prerequisite for qualified immunity.                                         -29-            intentional  shooting  of   a  fleeing  suspect.     However,            Tennessee v. Garner applied only to "seizures" and it was not            _________    ______            yet  clear  that   a  stopping  by  a   roadblock  might,  in            appropriate circumstances,  be a seizure.  Id.  at 7; Brower,                                                       ___        ______            817  F.2d at 546; Fernandez  v. Leonard, 784  F.2d 1209, 1217                              _________     _______            (1st Cir. 1986).  Four years elapsed before the Supreme Court            held in Brower that a roadblock could be a "seizure."  During                    ______            this  period the Ninth  Circuit rejected the  argument that a            roadblock fell  into the "seizure" category.  See Brower, 817                                                          ___ ______            F.2d  at 546-47  (distinguishing Tennessee  v. Garner  on the                                             _________     ______            grounds that use of a  roadblock is not a seizure).   Nor was            it clear to all federal courts that a successful roadblock or            high  speed pursuit ending in a crash constituted the "use of            deadly force."   Compare Reed  v. County of  Allegan, 688  F.                             _______ ____     __________________            Supp.  at 1243 (holding that a  roadblock does not constitute            use of deadly  force) with Moyer v. Dunn County, 691 F. Supp.                                  ____ _____    ___________            164,  170-71 (W.D.  Wis.  1988) (suggesting  that high  speed            pursuit of  suspect resulting in collision with police car or            off-road crash could constitute use of deadly force).                      As  it  stood  at  the time  this  tragic  accident            occurred, the law was  not so clear that a  reasonable police            officer would know that establishing  an illuminated, partial            roadblock  at  the  end  of a  straightaway  violated  Fourth            Amendment rights.  Because Sullivan did not violate a clearly            established   right  of   appellant's,  the   district  court                                         -30-            correctly found  that he  was entitled to  qualified immunity            from a claim under 42 U.S.C.   1983.                      In holding  that Sullivan is  entitled to qualified            immunity,  we  do  not mean  to  imply  that  on the  present            showing, there would otherwise necessarily be a triable issue            concerning whether or not  this partial roadblock amounted to            a seizure under the Fourth Amendment.  We need not reach that            question.    It may  be that  the  illuminated blocking  of a            single lane at  a point  some distance from  where the  block            could  be seen by the  pursued vehicle would  not amount to a            seizure.  On the other hand, the converse can be argued.  See                                                                      ___            Brower, 489 U.S. at 598-99.  We leave that  issue for another            ______            day.  What is abundantly  clear is that, on the  law existing            at  the time of the  events in question,  a reasonable police            officer would  not  have  known  that the  partial  block  in            question violated the Fourth Amendment.                                         -31-                                         IV.                                         IV.                      In  Count IV,  appellant alleged  that the  Town of            Lakeville  and   Town  of  Freetown  are   liable  under  the            Massachusetts Tort Claims Act, Mass. Gen. L. ch. 258,    1 et                                                                       __            seq., for the allegedly negligent actions of Officers Meninno            ____            and   Sullivan,   respectively.14     A   public   employer's            liability  for the negligence of  its employees is created by            section 2 of Chapter 258, which provides in relevant part:                           Public employers shall be liable for                      injury  or loss  of property  or personal                      injury or death  caused by the  negligent                      or wrongful act or omission of any public                      employee while acting within the scope of                      his  office  or employment,  in  the same                      manner  and  to  the  same  extent  as  a                      private     individual     under     like                      circumstances, . . . .            Mass.  Gen.  L. ch.  258,    2.   The  liability of  a public            employer under  section 2  is subject to  several exceptions,            including  the  "discretionary function"  exception  found in            Mass. Gen. L. ch. 258,   10(b):                      The provisions of  sections one to eight,                      inclusive, shall not apply to:                               (a) . . .                           (b)   any   claim  based   upon  the                      exercise or performance or the failure to                      exercise   or  perform   a  discretionary                                            ____________________            14.  Appellant also alleged that  Freetown was liable for the            negligence of the third police  officer, Sadeck.  However, as            explained in Part III.A.,  there is nothing in the  record to            support a finding that Sadeck was in any way involved  in the            pursuit and  collision which injured appellant.   His actions            are not actionable under Mass. Gen. L. ch. 258,   2.                                         -32-                      function or duty on  the part of a public                      employer   or  public   employee,  acting                      within   the  scope  of   his  office  or                      employment, whether or not the discretion                      involved is abused;                      . . . .            Mass. Gen. L. ch. 258,   10.                      We agree  with  appellant that  the district  court            erred in reasoning that  because the police officers' actions            were "discretionary" for  the purposes of  qualified immunity            under federal law, they  were also performing  "discretionary            functions" for the purposes of the   10(b) exception.   As we            have  already explained,  supra,  it would  be the  rare case                                      _____            indeed where an officer  is denied qualified immunity because            the officer is found to have engaged  in "ministerial" rather            than  "discretionary" conduct.    The discretionary  function            exception  in both  the Massachusetts  and the  Federal Torts            Claims  acts  is  altogether different  from  whatever narrow            exception   may   still   exist  under   immunity   law   for            nondiscretionary  ("ministerial") conduct.   "Because  of the            limitation  of the  [  10(b)]  exemption to  conduct that  is            policymaking or planning,  the words 'discretionary function'            are somewhat misleading  as a  name of the  concept."   Harry                                                                    _____            Stoller & Co.  v. City of Lowell,  412 Mass. 139,  587 N.E.2d            _____________     ______________            780, 783  (1992) (hereinafter Stoller).   The proper approach                                          _______            is to  apply Massachusetts law on  the discretionary function            exception to appellant's Massachusetts Tort Claims Act claims            against Lakeville and Freetown.                                           -33-                      After extensive consideration of Massachusetts case            law on the discretionary function exception, we are unable to            determine  whether the  exception applies  to the  actions of            Officer  Meninno.  Because answering that question implicates            important policy  questions under Massachusetts state law, we            certify  the  question  to  the  Supreme  Judicial  Court  of            Massachusetts.   As  for the  liability of  Freetown  for the            actions  of Officer Sullivan, we find in Section B infra that                                                               _____            the  district court prematurely  granted summary judgment for            Freetown because there  is a genuine  issue of material  fact            regarding  Sullivan's discretion  to engage in  the allegedly            tortious conduct.                 A. Liability of Lakeville for Meninno's Conduct                 A. Liability of Lakeville for Meninno's Conduct                    ____________________________________________                      1.   Discretionary   Function  Exception   Doctrine                      1.   Discretionary   Function  Exception   Doctrine                           ______________________________________________            Appellee Lakeville  argues that  it is immune  from liability            under the  Massachusetts  Tort Claims  Act because  Meninno's            conduct falls within the discretionary function exception  of            section  10(b),  Mass.  Gen.  L.  ch.  258,     10(b).    The            discretionary  function exception  was  first  introduced  in            Massachusetts  in Whitney  v. Worcester,  373 Mass.  208, 366                              _______     _________            N.E.2d  1210  (1977),  which preceded  enactment  of  section            10(b).  The Whitney court distinguished immune from nonimmune                        _______            conduct by  drawing a dividing line  "between those functions            which rest  on the exercise  of judgment  and discretion  and            represent planning and policymaking and those functions which                                         -34-            involve the implementation and execution of such governmental            policy or planning."  Id., 366 N.E.2d at 1216.  Massachusetts                                  ___            courts still  rely on the  analysis in Whitney  as containing                                                   _______            "guiding  principles  for   determining  the  scope   of  the            discretionary function  exception."   Stoller, 587 N.E.2d  at                                                  _______            783.  Massachusetts courts also look for guidance  to federal            court  decisions  interpreting  the   discretionary  function            exception of the Federal Torts Claims Act ("FTCA"), 28 U.S.C.              2680(a).   Id.  After the Massachusetts legislature adopted                         ___            section  10(b), the  test for  whether particular  conduct is            within the  exception evolved  over the years  as the  courts            confronted the  application of the exception  to various fact            scenarios.      Like  the   federal   discretionary  function            exception, see id., the Massachusetts doctrine has not always                       ___ ___            developed along a straight  and clear line.  Compare  Cady v.                                                         _______  ____            Plymouth-Carver Regional  Sch. Dist., 17 Mass.  App. Ct. 211,            ____________________________________            457   N.E.2d  294   (1983)  (holding   that  a   function  is            discretionary if there is  no "fixed or readily ascertainable            standards  to fall back upon") and Kelley v. Rossi, 395 Mass.                                           ___ ______    _____            659,  481 N.E.2d 1340, 1344  n.6 (1985) (using  the "fixed or            readily  ascertainable standard"  test of  Cady) and  A.L. v.                                                       ____  ___  ____            Commonwealth,  402 Mass.  234, 521  N.E.2d 1017,  1024 (1988)            ____________            (same) with Stoller, 587 N.E.2d  at 784 n.2 (criticizing Cady                   ____ _______                                      ____            test and asserting that the S.J.C. had never adopted it).                                         -35-                      For years, courts relied upon a distinction between            activities that  occur  at the  "planning" and  "operational"            levels  of government  to decide  whether certain  conduct is            immune  from liability.   See  Patrazza v.  Commonwealth, 398                                      ___  ________     ____________            Mass. 464, 497  N.E.2d 271,  274 (1986).   The Supreme  Court            questioned this distinction in  United States v. S.A. Empresa                                            _____________    ____________            de Viacao Aerea  Rio Grandense (Varig Airlines), 467 U.S. 797            _______________________________________________            (1984),  and recently in United States v. Gaubert, 111 S. Ct.                                     _____________    _______            1267  (1992),  the  Court  expressly  rejected the  planning-            operational distinction.                      A discretionary act is one  that involves                      choice or judgment;  there is nothing  in                      that description  that refers exclusively                      to  policymaking  or planning  functions.                      Day-to-day management of banking affairs,                      like the management of  other businesses,                      regularly require judgment as to which of                      a  range  of permissible  courses  is the                      wisest.    Discretionary  conduct is  not                      confined to the policy or planning level.                      "[I]t  is  the  nature  of  the  conduct,                      rather than the status of the actor, that                      governs    whether   the    discretionary                      function  exception  applies  in a  given                      case."  Varig Airlines, [] at 813, 104 S.                              ______________                      Ct., at 2764.            Gaubert  at 1267.    Whether an  official's duties  primarily            _______            involve operations and administration as opposed to  planning            is irrelevant  because  "it is  the  nature of  the  conduct,            rather than the status of the actor, that governs whether the            discretionary function  exception applies  in a  given case."            Varig Airlines,  467  U.S. at  813;  see Attallah  v.  United            ______________                       ___ ________      ______            States, 955 F.2d 776, 783 (1st Cir. 1992).  The Court instead            ______                                         -36-            articulated a two-part test,  developed in Varig Airlines and                                                       ______________            Berkovitz  v. United States, 486  U.S. 531 (1988).   The FTCA            _________     _____________            discretionary  function exception  applies  if, (1)  the  act            involved  an  element of  judgment  or choice,  and,  (2) the            action  or decision  was  based on  considerations of  public            policy.  Gaubert at 1273-74.                     _______                      The  Massachusetts  Supreme  Judicial  Court  cited            Gaubert with  approval in  Stoller, its most  recent decision            _______                    _______            construing section 10(b), and  apparently adopted much of its            reasoning.   The  S.J.C.  rejected  the  planning-operational            distinction,  writing  that, "[e]ven  decisions  made at  the            operational  level, as opposed to those made at the policy or            planning  level,  would  involve  conduct  immunized  by  the            discretionary  function exception  if  the  conduct were  the            result of policy determinations."  Stoller, 587 N.E.2d at 784                                               _______            (citing  Gaubert).  Stoller held that the proper test is: (1)                     _______    _______            whether  the governmental  actor  had discretion  as to  what            course   of  conduct   to   follow,  and   (2)  whether   the            discretionary conduct involves policymaking or planning.  Id.                                                                      ___            at  782-83.     If  both  elements  are  present,   then  the            discretionary function exception applies.                        2. Application of Stoller Test to Meninno's Conduct                      2. Application of Stoller Test to Meninno's Conduct                         ________________________________________________            To  apply the two-part test  here, we first  must define what            conduct  or  course  of   action  taken  by  Officer  Meninno            appellant claims was negligent.  She does not allege that her                                         -37-            injury came about because  Meninno operated his vehicle  in a            negligent manner  while  pursuing the  motorcycle.    Compare                                                                  _______            Gaubert, 111  S. Ct. at  1275 n.7  ("If one of  the officials            _______            involved in  this [bank regulation] case  drove an automobile            on  a   mission  connected  with  his   official  duties  and            negligently collided  with another  car, the  exception would            not apply.").  Instead,  she apparently claims that Meninno's            decision to keep pursuing the motorcycle for  3.2 miles after            ________            it failed to stop was  negligent.15  She proposes to show  at            trial  that  a  reasonable  police  officer  would  not  have            persisted in such a pursuit under the circumstances.                      The  first element  of  the discretionary  function            test  set  out  in  Stoller  is  whether  Meninno  "had   any                                _______            discretion  at all as to  what course of  conduct to follow."            Stoller,  587 N.E.2d  at 782.   A  governmental actor  has no            _______            discretion  if  "a course  of  action  was  prescribed  by  a            statute, regulation,  or established agency  practice."   Id.                                                                      ___            Appellant  concedes in  her brief  that, under  the Lakeville            "High Speed Pursuit  General Considerations and  Guidelines,"            Meninno had discretion  to make the final decision  to pursue            at  high speed,  but  argues that  the guidelines  completely            regulate the  manner in which an officer  conducts a pursuit,                                            ____________________            15.  As  discussed  in  Part  III.B.  supra,  appellant  also                                                  _____            alleged that Meninno "herded"  the motorcycle into Sullivan's            parked  vehicle.    Nothing   in  the  record  supports  this            allegation.                                         -38-            leaving Meninno  no discretion  to make policy  judgments and            mandating his every move.                      We  find  this   argument  unpersuasive.    Whether            Meninno properly weighed the guideline factors in deciding to            pursue  is perhaps open to  debate,16 but if     as appellant                                            ____________________            16.  The first  pages of  the guidelines explain  the general            policy of Lakeville regarding high speed pursuits:                           As a general  statement, high  speed                      pursuit  is  not recommended  or favored.                      This is because  the potential danger  to                      the  officer  and   the  general   public                      outweighs  the   potential  advantage  of                      apprehending  a  fleeing vehicle  by such                      means.  Stated simply, pursuit is clearly                      inappropriate  when  the  pursuit  itself                      endangers  life more  than the  escape of                      the   person   pursued.     Delay,  while                      distasteful, may be the wiser choice when                      the person  is known and he  or she poses                      no immediate threat to the community.                           Under     certain     circumstances,                      however,  continuous  high speed  pursuit                      may be authorized.  When  such pursuit is                      undertaken,  the  purpose  should  be  to                      apprehend quickly and safely. . . .                            When    the    pursuit   would    be                      authorized,  each  officer  must use  his                      discretion in determining whether  or not                      to commence a chase.  Many factors should                      have a bearing on his choice, but some of                      the major ones may be listed:                           1. road conditions;                           2. traffic conditions;                           3. time of day;                           4. type of vehicle involved;                           5. nature of the offense.                           Once made, the decision to pursue is                      not   irrevocable,   and   it    is   the                      intelligent  officer  who  knows when  to                                         -39-            has  conceded    the call  was within his  authority to make,            the  existence of rules governing the manner of the chase did            not  remove  his discretion.    These  rules forbade  certain            conduct, such  as pursuing  while nonpolice personnel  are in            the  police cruiser;  and  they mandate  other conduct,  like            wearing  a seat  belt.   The  crucial  decisions, however                including  whether and when to begin a pursuit, what speed to            maintain  during it, how  close to tail  the pursued vehicle,            and how and when to terminate  the pursuit    are left to the            officer's  discretion.17   For  example, the  only  guideline            that  speaks to  the  question of  when  to stop  pursuing  a            vehicle states: "[T]he officer  in pursuit shall  voluntarily            abandon  pursuit when  he determines  that conditions  of the                                            ____________________                      discontinue the chase.  Briefly, and as a                      general rule of thumb, it is often better                      to  abandon the pursuit where the risk of                      danger  to  himself or  to the  public is                      high  or weather  or road  conditions are                      poor.  The experience and common sense of                      each officer should also guide him in his                      decision.            17.  Horta  also points to the following guideline provision:            "[A] continuing high speed  pursuit . . . is  authorized, but            only when the pursuing  officer . . . has  reasonable grounds            to arrest  the person pursued for  a serious felony .  . . or            when  the vehicle being pursued  is being operated  in such a            manner as to endanger the public."                 Horta  argues  that there  was  no evidence  of  a prior            felony.   However, Meninno was entitled to determine that the            motorcycle was endangering public safety.  In his deposition,            Meninno  testified  that  the  motorcycle  veered   into  the            oncoming lane at  times and, at  one point, drove close  to a            group  of pedestrians on  the roadside, causing  them to jump            back.  In his opinion, the motorcycle driver was intoxicated.                                         -40-            road, weather, traffic  or other  factors necessitates  [sic]            abandonment."   This,  like the  other  guidelines, is  not a            strict rule  prescribing certain conduct.   Assuming  Meninno            had  discretion to determine whether or not to pursue, we can            find nothing in the  regulations that removed that discretion            on  the facts  of this  case.   Accordingly, Meninno  had the            requisite discretion prescribed in Stoller.                                               _______                      "The  second  and far  more  difficult  step is  to            determine whether  the discretion that  the actor had  is the            kind of discretion for  which section 10(b) provides immunity            from  liability."     Stoller,  587  N.E.2d  at  782.     The                                  _______            discretionary    function    exception,   under    both   the            Massachusetts  Tort Claims  Act and  the Federal  Tort Claims            Act, provides  immunity only for discretionary  "conduct that            involves  policymaking  or  planning."    Id.  at  783.   The                                                      ___            question  is not whether the  employee worked at a "planning"            or "operational" level, but whether  the type of decision  or            action  at issue, by whatever level employee, is one based on            considerations of governmental policy.  Id.  at 784; see also                                                    ___          ___ ____            Gaubert, 111 S. Ct.  at 1275-76; Varig Airlines, 467  U.S. at            _______                          ______________            813.    Not only  broad,  abstract  decisions of  policy  are            immune.  Discretionary functions include specific, individual            applications  of  policy,  "those  [decisions]  in   which  a            government official  determines what action to  take based on            an   individual,  case-by-case  analysis  and  in  which  his                                         -41-            decision includes elements of judgment and discretion."  Pina                                                                     ____            v.  Commonwealth, 400 Mass.  408, 510 N.E.2d  253, 257 (1987)                ____________            (quoting Bartel v. Federal Aviation Admin., 617 F. Supp. 190,                     ______    _______________________            196 n.29 (D.D.C. 1985)); Patrazza, 497 N.E.2d at 274.                                     ________                      This  is obviously  not a  bright-line rule,  and a            court must assess cases  on their facts, keeping in  mind the            purposes of  the discretionary function exception.   Stoller,                                                                 _______            587  N.E.2d at 783.   Only  discretionary acts  and decisions            based on considerations of public policy are exempted because            "the  purpose  of  the  exception  is  to  'prevent  judicial            "second-guessing" of legislative and administrative decisions            grounded in  social, economic,  and political policy  through            the medium  of an action in  tort.'"  Gaubert, 111  S. Ct. at                                                  _______            1273  (quoting Varig Airlines, 467 U.S. at 814).  Thus, "[i]f                           ______________            the  injury-producing  conduct   was  an  integral  part   of            government policymaking  or  planning, if  the imposition  of            liability might  jeopardize the quality  of the  governmental            process, or if the case could not be decided without usurping            the  power and  responsibility of  either the  legislative or            executive  branch of government,  governmental immunity would            probably  attach."    Stoller,  587  N.E.2d  at  783  (citing                                  _______            Whitney, 366 N.E.2d  at 1217).  If none of  these factors are            _______            present, the general rule is one of no governmental immunity.            Whitney, 366 N.E.2d at 1217.            _______                                         -42-                      Applying the above principles  to the facts of this            case, without regard for the particular result of the Stoller                                                                  _______            case,  see  infra,  it   can  be  forcefully  contended  that                   ___  _____            Meninno's  decisions  were  of   the  type  based  on  policy            considerations.   Clearly, the Commonwealth has  a policy for            enforcement of  the laws  by constables and  police officers.            The Lakeville police department  and its officers are charged            by the Legislature with  the duty to enforce the laws, see 41                                                                   ___            M.G.L.A.   98, within  the limits imposed by the  federal and            state constitutions  and the legislature.   Police chiefs are            authorized  to promulgate  regulations for their  officers in            furtherance  of  these  duties.    See  41  M.G.L.A.     97A.                                               ___            Lakeville  adopted guidelines  that  allow  Lakeville  police            officers to  conduct and  participate in high  speed pursuits            when,  in  their   judgment,  the  benefit  of   apprehension            outweighs the risk  to public safety.  See also 41 M.G.L.A.                                                     ___ ____            98A  (authorizing police  to  arrest suspects  "on fresh  and            continued  pursuit" in  other jurisdictions).   Acting within            discretion conferred  by the guidelines, Meninno decided that            the best  way to fulfill his duty to enforce the law here was            to  pursue a violator who  had refused to  obey his signal to            pull  over.   Surely,  such a  decision  was based  on policy            considerations.   Compare Irwin  v. Town  of Ware,  392 Mass.                              _______ _____     _____________            745,  467  N.E.2d  1292,  1299 (1984)  (holding  that  police            officer   was  not   performing  discretionary   function  in                                         -43-            releasing  known drunk  driver because  he acted  contrary to            established  policy); Gaubert,  111 S.  Ct.  at 1275  n.7 (in                                  _______            hypothetical,  negligent driving  by  bank regulator  has  no            connection to regulatory policy of banking agency).                      Appellant   clearly  could   not  argue   that  the            Lakeville  police   department's  adoption  of   the  pursuit            guidelines was itself a negligent act for which it is liable.            See Patrazza, 497  N.E.2d at  274 & n.3.   That  legitimately            ___ ________            adopted policy required Meninno to exercise his own judgment,            under the  particular circumstances  of each incident,  as to            how best to  fulfill the policy's dual goals  of apprehending            lawbreakers and  protecting public safety.  "When established            governmental  policy, as  expressed  or  implied by  statute,            regulation, or  agency guidelines, allows a  Government agent            to exercise discretion, it must be presumed that  the agent's                                    ___________________            acts are grounded in policy when exercising that discretion."            Gaubert,  111 S. Ct. at  1274 (emphasis added).   Thus, under            _______            the  Gaubert analysis,  it would  be presumed  that Meninno's                 _______            actions were grounded in policy.                      This  presumption  prevails  unless  the  plaintiff            points  to facts in the record "which would support a finding            that  the challenged actions are not the kind of conduct that            can be  said to be  grounded in the policy  of the regulatory            regime."  Id. at 1275.  Plaintiff has pointed to nothing that                      ___            would  support  a   finding  that  the   allegedly  negligent                                         -44-            decisions of Meninno are not the kind of conduct  that can be            said  to be  grounded in policy.   For example,  she does not            allege that Meninno accidentally  lost control of his vehicle            and  hit the motorcycle, or  that he acted  for some ulterior            purpose.  Therefore, if  the rules laid out in  Gaubert apply                                                            _______            in Massachusetts,  it would  seem that Meninno's  conduct was            within the section 10(b) exception.                      3. Purposes of Discretionary Function Exception  As                      3. Purposes of Discretionary Function Exception                         ____________________________________________            mentioned above,  Massachusetts law also requires  a court to            consider whether  the purposes of  the discretionary function            exception  are  fulfilled by  including  the alleged  conduct            within the scope of the section 10(b) exception.  Making that            judgment here is difficult.                      In favor  of Lakeville,  one could argue  that "the            imposition of  liability might jeopardize the  quality of the            governmental  process."   Stoller,  587  N.E.2d at  783.   If                                      _______            suspects  and  their  accomplices   can  sue  towns  for  the            strategic decisions  of police  officers  during attempts  to            apprehend them, then towns    especially those with financial            difficulties already    will have a strong incentive to avoid            pursuing suspected  and known lawbreakers.   If the otherwise            legitimate  enforcement  of  laws   is  chilled  by  fear  of            liability,   all  types  of   criminals,  not   only  traffic            violators, would  be able  to more easily  avoid apprehension            and  prosecution.   Police departments  would be  hampered in                                         -45-            their ability  to control  crime and fulfill  their statutory            duty to enforce the laws of the Commonwealth.                      In addition,  one could argue, "the  case could not            be decided  without usurping the power  and responsibility of            [] the .  . . executive branch of government."  By permitting            judges  and  juries to  pass on  the  strategies used  by the            police (assuming  they do not violate  constitutional norms),            the power  of police  departments to fulfill  their statutory            duty  to enforce  the  law  could  be  usurped.    The  state            legislature could have,  but did  not, impose  limits on  the            police  power  to pursue  suspects.   See  41 M.G.L.A.    98A                                                  ___            (authorizing  police  to  arrest   suspects  "on  fresh   and            continued pursuit" in other jurisdictions without restriction            on  the means of pursuit); compare Irwin, 467 N.E.2d at 1299,                                       _______ _____            1302 (finding that legislature imposed duty on police to take            all suspected drunk drivers into custody).                      "Other relevant considerations  are the  reasonable            expectations  of  the  injured  person with  respect  to  his            relationship  to  the  governmental entity  in  question, the            nature of  the  duty  running  from  the  government  to  the            governed  in  the particular  case,  and  the nature  of  the            injury."  Whitney, 366 N.E.2d at 1217.  It would be difficult                      _______            for Horta  to argue that  she, as  a passenger  on a  vehicle            attempting to  evade police pursuit,  reasonably expected the                                         -46-            police to avoid all potentially risky attempts to capture her            and her companion.                      On the other hand,  appellant could argue with some            persuasiveness  that the injury-producing conduct was not "an            integral  part  of  governmental  policymaking  or planning."            This  consideration may  refer  to general,  legislative-type            decisions as opposed to  administrative or operational tasks.            See  Dobos v. Driscoll, 404  Mass. 634, 537  N.E.2d 558, 568,            ___  _____    ________            cert. denied, 493 U.S.  850 (1989); Pina, 510 N.E.2d  at 256.            ____________                        ____            Moreover, appellant  has no adequate  alternative remedy  for            her  injuries, Whitney, 366 N.E.2d at 1217, except perhaps to                           _______            sue the estate of the motorcycle operator.                      Hence, it  is unclear  whether the purposes  of the            discretionary  function exception are  advanced by immunizing            Lakeville   here.     Nonetheless,   not   all   the  Whitney                                                                  _______            considerations must  point to  immunity for the  exception to            apply.  See, e.g., Pina, 510 N.E.2d at 256.                    ___  ____  ____                      4.  Comparison  of   Analogous  Massachusetts   and                      4.  Comparison  of   Analogous  Massachusetts   and                          _______________________________________________            Federal Cases   There is no  Massachusetts case precisely  on            Federal Cases            _____________            point,  and the few  cases cited by  appellant provide little            guidance.  In Irwin v. Town of Ware, the court held that "the                          _____    ____________            decision  of  a  police  officer  [not]  to  remove  from the            roadways  a driver  who  he knows  or has  reason to  know is            intoxicated" is not a discretionary act within the meaning of            section  10(b).   Id.,  467 N.E.2d  at  1298.   Unlike  here,                              ___                                         -47-            however, the court in  Irwin expressly found that  the police                                   _____            officer, once he knew or  had reason to know that  the driver            he stopped was intoxicated, had no policy-based discretion to            permit the driver to go back on the road.  Id.  at 1299.  The                                                       ___            Irwin court  interpreted several state statutes as obligating            _____                                              __________            police officers to remove  known intoxicated drivers from the            roads, determining that the  officer's decision not to remove                                                            ___            a  drunk  driver  could  not   have  been  based  on   policy            considerations  because "the policy  and planning decision to            remove   such  drivers   has   already  been   made  by   the            Legislature."   Id.   As  discussed  above, Meninno  was  not                            ___            obligated by  statute or regulation  to take or  refrain from            taking the actions at  issue.  Instead, he was  authorized by            written policies to  use his own judgment as to  how and when            to enforce  the law  by means  of a high  speed pursuit.   In            Stuart v. Town of  Brookline, 412 Mass. 251, 587  N.E.2d 1384            ______    __________________            (1992),  the court upheld  a finding  of liability  against a            town for  injuries caused  by the  negligent  operation of  a            police cruiser, but  section 10(b) immunity  was not even  an            issue in that case.                      Appellant's citation of Kelley v. Rossi, is equally                                              ______    _____            unavailing.  There  the court  wrote, in two  sentences in  a            footnote,  that a  doctor  employed by  a  city hospital  and            accused  of   medical  malpractice   is  not  engaged   in  a            discretionary  function when  treating a  patient.   Id., 481                                                                 ___                                         -48-            N.E.2d at 1344 n.6.  "The doctor was governed by the standard            of  accepted  medical  practice,  an  ascertainable guide  to            proper  conduct."      Id. (citing  Cady  v.  Plymouth-Carver                                   ___          ____      _______________            Regional Sch. Dist.).   There  is no evidence  in the  record            ___________________            that Meninno's actions were governed by such a fixed standard            for  police conduct.    Moreover,  the Massachusetts  Supreme            Judicial Court recently criticized  the reasoning in the case            relied upon by the Kelley court:                               ______                           In Cady  v. Plymouth-Carver Regional                              ____     ________________________                      School Dist., 17 Mass.  App. Ct. 211, 457                      ____________                      N.E.2d  294  (1983),  the  Appeals  Court                      announced  a  principle  that it  thought                      distinguished between  functions that are                      discretionary and those that are not.  If                      the  employee has  no  "fixed or  readily                      ascertainable  standards   to  fall  back                      upon,"   the    employee's   conduct   is                      discretionary.  Id.  at  215, 457  N.E.2d                                      ___                      294. . . .    The  United States  Supreme                      Court has not adopted the rule.  Nor have                      we.  The  existence of  fixed or  readily                      ascertainable standards could be relevant                      in deciding whether a  governmental actor                      owed   a   duty   to  another   that   he                      negligently  failed  to  fulfill, but  it                      tells us nothing about whether particular                      discretionary  conduct  has  a policy  or                      planning foundation.            Stoller, 587 N.E.2d  at 784  n.2.  The  many other  decisions            _______            applying  section  10(b)  depend  heavily on  the  facts  and            provide no  general principles  beyond  those articulated  in            Stoller.  See Stoller, 587 N.E.2d at 784 (summarizing cases).            _______   ___ _______                      As instructed by Stoller, we also look for guidance                                       _______            to  federal court decisions.   A finding of  immunity in this            case  would  be  consistent  with  many  cases  holding  that                                         -49-            decisions  of  law enforcement  officers,  although seemingly            "operational" and made in the heat of the moment, fall within            the  FTCA  discretionary   function  exception.    Generally,            although  law enforcement  agents  have a  mandatory duty  to            enforce the law,  decisions as  to how best  to fulfill  that            duty are protected by the discretionary function exception to            the FTCA.  Abernathy v. United States, 773 F.2d 184, 188 (8th                       _________    _____________            Cir.  1985); Redmond v.  United States, 518  F.2d 811, 816-17                         _______     _____________            (7th  Cir. 1975); United States v. Faneca, 332 F.2d 872, 874-                              _____________    ______            75 (5th Cir. 1964),  cert. denied, 380 U.S. 971  (1965).  For                                 ____________            example, we  held that  a decision by  United States  Customs            agents not  to stop and  search a particular  passenger falls            within  the  discretionary  function exception  of  the  FTCA            because the applicable statute and regulations authorize, but            do not obligate, the agents to search passengers.   Attallah,                                                                ________            955 F.2d at 784.  Like the situation here, "there is room for            choice  on the part of  the Customs agents  when carrying out            their duties," and "[t]he decision an agent makes is of great            importance in  fulfilling the mandate of  the Customs Service               to protect the  integrity of our national borders."   Id.;                                                                     ___            see  also Prelvitz  v. Milsop,  831 F.2d  806, 810  (8th Cir.            _________ ________     ______            1987)   (finding   FTCA   discretionary  function   exception            applicable  to customs inspector's  decisions to  detain four            intoxicated  men in an automobile at a border crossing and to            "appoint" a different driver).  In Buchanan v. United States,                                               ________    _____________                                         -50-            915 F.2d  969 (5th Cir.  1990), the court held  that a prison            warden's and staff members' "minute-to-minute decision making            in the chaotic circumstances of  a riot" met the requirements            of  the discretionary  function exception.   Id. at  972; see                                                         ___          ___            also Faneca, 332  F.2d at 874-75 (holding  that decisions and            ____ ______            tactics  used   by  federal  law  enforcement   officials  in            enforcing desegregation orders  and handling resulting  riots            were within the FTCA discretionary function exception); Smith                                                                    _____            v.  United States, 330 F. Supp. 867, 868-70 (E.D. Mich. 1971)                _____________            (holding that FTCA  discretionary function exception  applied            to  law  enforcement officials'  plans  and  decisions as  to            handling of Detroit riots); Nichols  v. United States, 236 F.                                        _______     _____________            Supp.  260,  262-63  (N.D.  Miss. 1964)  (holding  that  FTCA            discretionary function  exception applied to methods  used by            federal law enforcement  officials in enforcing desegregation            orders and quelling  riots).  FBI agents' decisions to arrest            bank  robbers and to  employ certain  tactics to  arrest them            were also found to be protected by the discretionary function            exception  from  a  suit  by  one bank  robber  for  injuries            sustained  during the arrest.  Amato v. United States, 549 F.                                           _____    _____________            Supp. 863,  866-67 (D.N.J.  1982), aff'd,  729 F.2d  1445 (3d                                               _____            Cir.  1984).  But see  Hetzel v. United  States, No. 91-2986,                          ___ ___  ______    ______________            1993 U.S. Dist. LEXIS 7506, at *12-*13 (D.D.C. 1993) (finding            that government  agents' high-speed pursuit  on crowded  city            streets  of  suspected drug  trafficker,  whose identity  and                                         -51-            address were  known, violated approved procedures  and so was            not within the FTCA discretionary function  exception); Patel                                                                    _____            v.  United States,  806  F. Supp.  873,  878 (N.D.Cal.  1992)                _____________            (holding that decisions by  DEA agents to investigate, obtain            search  warrant   and  raid   suspected  drug  hideout   were            discretionary functions,  but decision  to destroy  house and            kill occupants with  firebombs was not  made pursuant to  DEA            policy and thus not immune).                      5. Holding in Stoller  So far, it would appear that                      5. Holding in Stoller                          __________________            the principles of the section 10(b)  exception doctrine    as            articulated  in Stoller  and,  by analogy,  Gaubert     point                            _______                     _______            toward  tort   immunity  under  the   discretionary  function            exception.   We have  yet,  however, to  consider the  actual            holding in Stoller.   Doing so, we are unable  to reconcile a                       _______            finding of immunity here with that holding.                      In Stoller,  the  owner of  buildings destroyed  by                         _______            fire sought damages pursuant to the Massachusetts Tort Claims            Act   from   the   city   of   Lowell,   whose   firefighters            unsuccessfully fought  the blaze.   He alleged  negligence on            the  firefighters'  part  in  failing to  use  the  sprinkler            systems in one of  the buildings.  The city  conceded that it            had  a duty to the  building owner and  that the firefighters            could  have been  found negligent  in failing  to follow  the            standard firefighting technique of use of available sprinkler            systems.  The  city, nonetheless, argued  that it was  immune                                         -52-            under  section  10(b)   because  the  firefighters'   conduct            involved a discretionary function.  Id., 587 N.E.2d at 782.                                                  ___                      The trial  judge agreed  that the city  was immune,            but the  Supreme Judicial Court reversed.   Applying the two-            part  test discussed  supra, the  court found  that, (1)  the                                  _____            firefighters had  "discretion in  the sense that  no statute,            regulation,  or established  municipal practice  required the            firefighters to use the sprinklers  (or, for that matter,  to            use  hoses exclusively)," but  that, (2) "whatever discretion            they had was  not based  on a policy  or planning  judgment."            Id. at 785.            ___                           There  are  aspects of  firefighting                      that  can  have  an  obvious  planning or                      policy basis.  The number and location of                      fire stations, the amount of equipment to                      purchase,   the   size   of    the   fire                      department,  the  number and  location of                      hydrants, and  the quantity of  the water                      supply  involve   policy  considerations,                      especially  the  allocation of  financial                      resources.      In  certain   situations,                      firefighting  involves determinations  of                      what  property to attempt to save because                      the  resources  available  to   combat  a                      conflagration   are   or   seem   to   be                      insufficient   to  save   all  threatened                      property.      In   such  cases,   policy                      determinations  might  be  involved,  and                      application of the discretionary function                      exception would be required.                           The  case  before  us is  different.                      The  negligent  conduct  that caused  the                      fire  to  engulf   all  the   plaintiff's                      buildings  was not founded on planning or                      policy  considerations.     The  question                      whether  to put higher  water pressure in                      the sprinkler systems involved  no policy                      choice or planning decision.  There was a                                         -53-                      dispute  on the  evidence whether  it was                      negligent  to  fail  to  fight  the  fire                      through the buildings' sprinkler systems.                      .  .   .  The   jury  decided   that,  in                      exercising  their  discretion not  to use                      the  buildings'  sprinkler  systems,  the                      Lowell   firefighters   were    negligent                      because   they   failed  to   conform  to                      generally      accepted      firefighting                      practices.      When   the   firefighters                      exercised  that  discretion,  policy  and                      planning    considerations    were    not                      involved.   Therefore,  the discretionary                      function  exception  does not  shield the                      city from liability.            Id.            ___                      It   is   hard   to   differentiate   between   the            firefighters'  conduct in Stoller and the allegedly negligent                                      _______            decision to pursue of Officer  Meninno.  The firefighters, in            execution of their duty to fight fires, deliberately chose at            the time what we assume they considered to be the appropriate            strategy for fighting the fire.  While, in  retrospect, their            judgment  may have  been  flawed, no  statute, regulation  or            municipal  policy  required  any  different,  and  they  were            authorized, indeed required, to  make such a determination on            their own.  An injured party alleged and eventually persuaded            a  jury that their  strategic choice, made  pursuant to their            governmental  duties  and   in  conformance  with  applicable            policies,  was  negligent.     Here,  a  police  officer,  in            execution  of   his  duty   to  enforce   the  laws   of  the            Commonwealth, deliberately chose what he considered to be the            best  strategy for  apprehending a  lawbreaker.   No statute,                                         -54-            regulation or policy prohibited  his actions.  A  town policy            expressly  authorized and  required him  to exercise  his own            judgment as to how to proceed.   An injured party now alleges            and  hopes to persuade a jury that his strategic decision was            negligent.  Comparing the result in Stoller to this case, one                                                _______            can argue that section 10(b) does not shelter  Lakeville from            liability  for  Meninno's actions.    Still, it  may  be that            Stoller turned on the firefighters'  having violated standard            _______            practices with no apparent policy justification, hence is not            to  be  read  as   more  generally  eliminating  lower  level            firefighting  and  police decisions  from  the section  10(b)            exception.                      In attempting  to understand  the reasoning  of the            Stoller  court, we  have  reviewed similar  cases from  other            _______            jurisdictions.   A sizable number of  them reach the opposite            result  in  analogous  circumstances.    See  57  Am.  Jur.2d                                                     ___            Municipal, County, School and State Tort Liability    484, at            __________________________________________________            449  (summarizing cases  from ten  states).  For  example, in            City of Daytona Beach  v. Palmer, 469 So.2d 121  (Fla. 1985),            _____________________     ______            the Florida Supreme Court explained:                           The  decisions  of  how to  properly                      fight  a particular  fire, how  to rescue                      victims in  a fire, or what  and how much                      equipment   to  send   to  a   fire,  are                      discretionary judgmental  decisions which                      are  inherent  in   this  public   safety                      function  of fire  protection.  . .  . To                      hold  a  city  liable  for  the negligent                      decisions  of   its  fire-fighters  would                      require a judge  or jury to second  guess                                         -55-                      fire-fighters  in making  these decisions                      and would  place the judicial branch in a                      supervisory  role  over  basic  executive                      branch,  public  protection functions  in                      violation  of  the  separation of  powers                      doctrine.                           We   distinguish   these  types   of                      discretionary   fire-fighting   decisions                      from   negligent  conduct   resulting  in                      personal injury while  fire equipment  is                      being driven  to the  scene of a  fire or                      personal injury to  a spectator from  the                      negligent  handling  of equipment  at the                      scene.            Id. at 123.              ___                      We feel  unable to determine the  precise aspect of            the circumstances  in the  firefighters'  conduct in  Stoller                                                                  _______            that led the court to find their actions were not of the type            based on policy  considerations.  And  we are disinclined  to            introduce new doctrines or fine  distinctions of our own into            Massachusetts law in order to  differentiate the firefighters            from Meninno.   Yet,  neither can  we ignore the  principles,            rules and  guidelines articulated by  the Massachusetts court            in Stoller  and in  other cases,  which  apparently point  in               _______            another direction, so as seemingly to  lead to the conclusion            that  Lakeville is  entitled  to immunity  for the  strategic            decisions of its police officers made in furtherance of their            duties.                       6.  Certification  Essentially,  we are  faced with                      6.  Certification                          _____________            this  dilemma:  the   Massachusetts  discretionary   function            doctrine    as expounded in Stoller and Gaubert    suggests a                                        _______     _______                                         -56-            finding of immunity,  while the  result in  Stoller seems  to                                                        _______            mandate the opposite.   Resolution of the issue in  this case            requires reconciling  Stoller with Gaubert  and other federal                                  _______      _______            and state cases, a project properly left to the courts of the            Commonwealth because  it may  require the development  of new            rules or  distinctions.   Moreover, whichever way  we decided            the  issue, our  opinion would  be seen  in  Massachusetts as            either  barring  or  permitting  many other  actions  against            public employers  for decisions  made by police  officers and            other municipal servants.  We also take notice of the current            debate  in the Commonwealth  on the closely  related issue of            the public duty rule.  See Jean W. v. Commonwealth, 414 Mass.                                   ___ _______    ____________            496, 610  N.E.2d 305  (Mass. 1993)  (abolishing court-created            public   duty  rule  prospectively   after  1993  legislative            session); see also Cyran v. Town of Ware, 413 Mass.  452, 597                      ___ ____ _____    ____________            N.E.2d  1352  (1992) (holding,  in  3-2  decision, that  town            firefighters owed  no special duty to  homeowners whose house            was destroyed  by fire).   The difficult questions  raised by            the various concurring opinions in Jean W., and the lack of a                                               _______            majority opinion, cautions us about the complexity and social            importance of the municipal liability issue in Massachusetts.            For these reasons, the best course for a federal court, bound            to apply state law as it stands, is certification.                                         -57-                      On our own  motion, we will  certify in a  separate            certification order  the  following question  to the  Supreme            Judicial Court of Massachusetts pursuant to S.J.C. Rule 1:03:                      Do  the  discretionary  decisions   of  a                      police officer to  begin and continue the                      high-speed  pursuit  of  a  vehicle  then                      being  operated  in   violation  of   law                      involve  policymaking   or  planning  for                      purposes of  immunity under Massachusetts                      General Law ch. 258,   10(b)?            If the  question  is answered  in the  affirmative, then  the            discretionary function exception applies to Meninno's conduct            and  the  district  court's  grant of  summary  judgment  for            Lakeville on this claim will be affirmed.  If the question is            answered in the negative,  then summary judgment was improper            and  the claim  will be  remanded to  the district  court for            further  proceedings.    We  would, of  course,  welcome  any            guidance the S.J.C. may care to provide, beyond answering the            question, concerning  the  effect and  proper application  of            Massachusetts law in these circumstances.  The  clerk of this            court shall  forward as an  appendix the briefs  and appendix            furnished to us by the parties.                   B. Liability of Freetown for Sullivan's Conduct                 B. Liability of Freetown for Sullivan's Conduct                    ____________________________________________                      Appellee  Freetown argues  that it  is immune  from            liability  under  the Massachusetts  Tort Claims  Act because            Sullivan's  conduct falls  within the  discretionary function            exception of  section 10(b).   After reviewing the  record in            the light most favorable  to the appellant, we hold  that the                                         -58-            district court  should not have granted  summary judgment for            Freetown  on this issue because  there is a  genuine issue of            material fact  concerning the  first element of  the two-part            test  for discretionary  function immunity:  whether Sullivan            had discretion to engage  in the allegedly negligent conduct.                      The Freetown  pursuit guidelines  in effect  at the            time were identical to Lakeville's, and are silent as to most            of  the  decisions  made  by Sullivan.    However,  appellant            sensibly  asks how  Sullivan's  decision to  erect a  partial            roadblock  could be  within his discretionary  authority when            paragraph  12 of  the Freetown  guidelines  expressly states,            "Intentional contact between a police vehicle and the vehicle            pursued,  or use  of  a police  vehicle  as a  roadblock,  is            strictly forbidden."  The  language of this departmental rule            appears  on  its face  to forbid  the  very actions  taken by            Sullivan.  But the record also contains  testimony by Officer            Sullivan that he interpreted Paragraph 12 to mean merely that            police vehicles may not  be used to block an  entire roadway,                                                          ______            as when a cruiser is  placed sideways so as to obstruct  both            lanes  of a two-lane road.   According to  Sullivan, the term            "roadblock" has  not been interpreted by  the Freetown police            to include a  partial roadblock, such as  the one established                                         -59-            by  Sullivan when he parked his cruiser in the oncoming lane,            which leaves room for a vehicle to pass on one side.18                                              ____________________            18.  The  affidavit of  appellee Mello,  the Freetown  police            chief, indicates that an official investigation of Sullivan's            actions concluded that  Officer Sullivan acted  appropriately            in the circumstances.   Chief Mello stated that Freetown  had            pursuit  guidelines in  place, but  he did  not suggest  that            Sullivan  had  violated any  of these  guidelines by  using a            partial roadblock.                 The  following colloquy  regarding paragraph  12 of  the            Freetown guidelines appears in Officer Sullivan's deposition:                 Q:   [Mr. Gillis, plaintiff's attorney]:  So, prior                      to the  collision that is the  subject of this                      lawsuit, you had in your possession a handbook                      given  to you by  your commanding  officer, is                      that correct?                 A:   [Sullivan]:  Yes, it is.                 Q:   Okay.   That  handbook contained a  section on                      the policies of the Freetown Police Department                      concerning pursuing other motor  vehicles, did                      it not?                 A:   Yes, it did.                 Q:   Did  it  also have  a  section on  the  use or                      nonuse  of roadblocks;  of  blocking the  road                      during pursuits?                 A:   Mr. Gillis,  could you define for  me what you                      think,  what you would  say was  a "roadblock"                      and what is "blocking the  road"?  I think  in                      my mind they're two different things.                 Q:   Why don't  you tell me?   What's "blocking the                      road" mean to you, sir?                 A:   Blocking  the roadway  would  be blocking  the                      total roadway so that nothing could  pass your                      point.                 Q:   Okay.  And what is a "roadblock"?                 A:   A roadblock would  be one and  the same.   The                      roadblock would be blocking the whole roadway.                      . . .                 Q:   Was there  a section  in this manual  that you                      were given before  August 5, 1988,  concerning                                         -60-                      On  this record,  there is  an unresolved  issue of            fact   regarding   Sullivan's   discretion  under   pertinent            regulations  to   have  created  a   partial  roadblock,  the            allegedly  negligent  conduct   on  his  part.     Sullivan's            testimony,  and   Chief   Mello's  affidavit,   suggest   the            possibility of a narrowed reading of the  rule so as to allow            Sullivan  to do  what he  did.   See,  e.g., Kelly  v. United                                             ___   ____  _____     ______            States, 924 F.2d 355, 360-61  (1st Cir. 1991) (holding  that,            ______                                            ____________________                      the use of roadblocks or blocking the roadway?                      Is  there a  policy for  that in  the Town  of                      Freetown?                 A:   Roadblocks as blocking the whole roadway?                 Q:   Yes.                 A:   Yes, there is.                 Q:   And what was that?                 A:   Roadblocks blocking the  whole roadway are not                      allowed under the policy.                      . . .                 Q:   (Pause)   Again, referring to that manual that                      you  mentioned  before,  that you  were  given                      sometime in 1987, or  at least prior to August                      5, 1988, does the manual say anything specific                      about blocking the roadway?                 A:   Okay.   Again,  when  you  say  "blocking  the                      roadway," do you mean a roadblock                     Q:   I mean blocking the roadway in any manner.                 A:   Yes, it does.                 Q:   Blocking a travel lane,  or blocking the other                      lane, in  any manner.  What does  it say about                      blocking the road?                 A:   The manual  advises that to block one lane-way                      of  a  roadway, to  block  some  portion of  a                      roadway is  permissible.   But you are  not to                      block the whole roadway.                                         -61-            to avoid  summary judgment, plaintiff DEA  agent was required            to rebut defendants' evidence that seemingly nondiscretionary            regulation was  consistently interpreted by  DEA officials to            permit  use  of  discretion).    But  the  language  of   the            regulation, read in the light  most favorable to Horta, seems            rather directly to forbid such conduct.  There is, therefore,            a factual issue over whether the regulation should be read to            withhold   discretion  here   or  whether   the  departmental            interpretation  claimed by Sullivan  actually existed and was            sufficiently consistent and longstanding  so as to render his            conduct discretionary.   Because  of this factual  issue over            whether  the first  element  of  the  discretionary  function            exception  test  was  fulfilled,  we  do  not  reach  whether            Sullivan's   conduct  was   based  on   policy  or   planning            considerations.   The latter is,  in large measure,  the same            question certified to the S.J.C. in the case of Meninno.  The            S.J.C.'s resolution regarding Meninno may answer it.  For the            moment, we  hold simply  that Freetown  was  not entitled  to            summary judgment on the  issue of section 10(b)  immunity and            remand  Horta's  claim  to  the district  court  for  further            proceedings.19                                          V.                                          V.                                            ____________________            19.  We do not  consider to  what extent  resolution of  this            issue is within the province of the district judge as opposed            to  the jury.  The district court, with the assistance of the            parties, should initially determine this.                                         -62-                      In  conclusion:  we  affirm  the grant  of  summary            judgment for appellees Sadeck, Meninno, and Sullivan on Count            I, alleging liability under  42 U.S.C.   1983; we  affirm the            grant  of summary judgment for Freetown on Count IV under the            Massachusetts Tort Claims Act for  the actions of Sadeck, and            vacate the grant of summary judgment for Freetown on Count IV            under the Massachusetts  Tort Claims Act  for the actions  of            Sullivan and  remand that  claim for further  proceedings; we            certify  a question of law  to the Supreme  Judicial Court of            Massachusetts on the issue  of Lakeville's liability on Count            IV  under the Massachusetts Tort Claims Act and, pending that            court's determination, retain jurisdiction on that issue; and            we  affirm  dismissal of  all  the  remaining claims  because            appellant  did not  appeal  their dismissal  by the  district            court.                      Affirmed in part, vacated and remanded in part, and                      ___________________________________________________            a  question  certified  to  the  Supreme  Judicial  Court  of            _____________________________________________________________            Massachusetts,  with  jurisdiction   retained  pending   that            _____________________________________________________________            determination.  No costs.            _____________   ________                                         -63-                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________            No. 92-1962                                     DEBRA HORTA,                                Plaintiff, Appellant,                                          v.                             CHARLES B. SULLIVAN, ET AL.,                                Defendants, Appellees.                                ______________________                                    CERTIFICATION                                ______________________                      For the  reasons discussed  in our opinion  in this            case, Horta  v. Sullivan,  No. 92-1962, (see  especially Part                  _____     ________            IV.A., at  pp. 32-55), the  resolution of an  important issue            depends  upon questions of Massachusetts  law on which we are            unable to find clear,  controlling precedent in the decisions            of the Supreme Judicial Court of Massachusetts.  Accordingly,            we  certify the  following question  to the  Supreme Judicial            Court of Massachusetts pursuant to its Rule 1:03.                      Do  the  discretionary  decisions   of  a                      police officer to begin and  continue the                      high-  speed pursuit  of  a vehicle  then                      being  operated  in   violation  of   law                      involve  policymaking   or  planning  for                      purposes of  immunity under Massachusetts                      General Law ch. 258,   10(b)?            The relevant  facts are discussed in the  separate opinion in            this case.   In putting the above  question, we wish  to make            clear that we  would, of  course, welcome the  advice of  the            court on  any other  question of  Massachusetts law it  deems            material to this case on which it would wish to comment.                      The Clerk of this court will transmit this question            and our separate opinion  in this case, along with  copies of            the  briefs and appendix in this case to the Supreme Judicial            Court of Massachusetts.                                          United States Court of Appeals                                          for the First Circuit                                              ___________________________                                          By: Juan R. Torruella                                              Circuit Judge            Dated:  August   , 1993                                        - 65 -
