
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1949                           ABIODUN ABRAHAM and HENRY AJAO,                                Plaintiffs, Appellees,                                          v.                                    JOSEPH NAGLE,                                Defendant, Appellant.                                 ____________________        No. 96-2008                           ABIODUN ABRAHAM and HENRY AJAO,                               Plaintiffs, Appellants,                                          v.                                JOSEPH NAGLE, ET AL.,                                Defendants, Appellees.                                      __________                                  PERRY ROY, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Nancy J. Gertner, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Lynch, Circuit Judges.                                            ______________                                 ____________________            Susan   M.  Weise,  Chief  of  Litigation,  City   of  Boston  Law            _________________        Department, with whom  Merita A. Hopkins, Corporation  Counsel, was on                               _________________        brief for defendants.            George C.  Deptula,  with whom  George  C.  Deptula, P.C.  was  on            __________________              _________________________        consolidated brief for plaintiffs.                                 ____________________                                     June 9, 1997                                 ____________________                 BOUDIN, Circuit  Judge.  Abiodun Abraham  and Henry Ajao                         ______________            sued several police officers and the City of Boston for false            arrest  and for  other  alleged wrongs.    During trial,  the            district judge directed  a verdict  in favor of  Ajao on  his            false  arrest claim  against  the  defendant  officer  Joseph            Nagle; the jury found in favor of the defendants on all other            claims.  Before us are cross-appeals by the plaintiffs and by            Nagle.                 Our main concern is  with the directed verdict and,  for            that  purpose alone, we set  forth the evidence  in the light            most  favorable  to Nagle.   Fashion  House,  Inc. v.  K mart                                         _____________________     ______            Corp., 892  F.2d 1076, 1088  (1st Cir. 1989).   On August 18,            _____            1990, at about 11 p.m., the plaintiffs, both black immigrants            from  Nigeria, arrived with three white women at the Venus de            Milo  nightclub in Boston.  After waiting in line for several            minutes,  the group  reached the  club entrance.    The three            women were admitted, but the plaintiffs were not.                 The  bouncer told  Abraham that  he could not  enter the            club because he  was wearing  jeans and  because Abraham  and            Ajao were "a  little intoxicated."  The plaintiffs  said that            other people wearing  jeans were being admitted  and that the            real  reason for excluding them was their race.  When Abraham            continued  to  protest, a  club  employee  summoned Nagle,  a            Boston  police  officer  who   was  "on  detail"  at  another            establishment down the block.                                         -2-                                         -2-                 Nagle talked with the  plaintiffs for 15 to  20 minutes,            telling them  that the club was  not going to  admit them and            that they  should leave;  he says  that the  plaintiffs never            told  him   of  the  alleged  discrimination.     During  the            discussion, Abraham became  increasingly agitated,  continued            to protest loudly,  and at one point  hit or pushed Nagle  in            the  chest.   Nagle  then  arrested Abraham  for  assault and            battery on a police officer.                 Nagle   sought  to  handcuff   Abraham  but  the  latter            struggled free.  Nagle  radioed for help and was  soon joined            by  officer   Thomas  Boyle.    Together,   Nagle  and  Boyle            handcuffed Abraham and tried to bring him to Boyle's cruiser,            which was  double-parked in the street.   Abraham resisted by            going limp.  As Nagle and Boyle sought to move Abraham to the            car, Ajao circled the officers and yelled, "why are you doing            this to my  friend," "this isn't  South Africa, you're  white            racist cops."                 According to  Boyle, Ajao was "trying to prevent us from            getting to the police car."  At one point Boyle  said that he            "had to actually push [Ajao]  out of my way" as the  officers            wrestled with Abraham.  Several  times the officers told Ajao            to "get  away."   Eventually,  with Ajao  still present,  the            officers pushed Abraham  into the  back seat of  the car;  he            then  prevented the door from  closing by kicking  at it, but                                         -3-                                         -3-            the officers forced it closed.  By this time a crowd of 20 or            so had gathered to watch.                 In the meantime,  as Abraham continued to  yell from the            cruiser, Ajao circled  it and  came up behind  the left  rear            quarter of the  car.  Ajao was told: "Police, leave, get away            from  the cruiser"; Nagle later testified  that he had feared            that Ajao might try to open the car door and release Abraham.            Ajao  failed to move.  Nagle then  arrested Ajao, who in turn            struggled with Nagle, Boyle and a third officer, once kicking            Nagle in the mid-section, before being restrained.                 In due course,  Abraham and Ajao were both  charged with            assault and battery and disorderly  conduct.  Mass. Gen. Laws            ch. 265,   13D; id. ch. 272,   53.  They were tried  in state                            ___            court in November 1990 and acquitted.  In February 1993, they            in turn brought suit  in state court against Nagle  and other            police officers,  and the city, charging  the defendants with            false arrest under  42 U.S.C.   1983  and state law and  with            various other  wrongs.1  The defendants removed the action to            federal court and, following  discovery, trial began in March            1995.                 After all of the evidence  was taken, the district court            granted  Ajao's motion  for a directed  verdict in  his favor                                            ____________________                 1The other claims, some  of which were dropped  prior to            or   during  trial,   charged  the   defendants  with   false            imprisonment, racial discrimination, violation of free speech            rights, assault and battery, and use of excessive force.                                         -4-                                         -4-            against Nagle, see Fed. R. Civ. P. 50(a); in  an oral ruling,                           ___            the trial  judge declared  that Nagle was  liable under  both            federal and state law for falsely arresting Ajao in violation            of  the  latter's First  and  Fourth Amendment  rights.   The            court's  primary rationale,  as we  read the  transcript, was            that  (in the district judge's view)  Ajao's conduct prior to            his arrest did not "rise to the level of disorderly conduct .            . . ."  The balance of the case was submitted to the jury.                 By responses to special interrogatories, the  jury fixed            Ajao's  damages at  $8,500 to  vindicate his  "rights against            false  arrest," but made  no separate award  for violation of            free  speech rights.   On  all of  the plaintiffs'  remaining            claims, the jury found against the plaintiffs and in favor of            the defendants.  Thereafter,  the district court awarded Ajao            attorney's fees  of $24,858.50.   Nagle now appeals  from the            directed verdict  against him.   The plaintiffs  also appeal,            urging  that  they  are entitled  to  a  new  trial on  their            unsuccessful claims,  to  an  injunction,  and  to  increased            attorney's fees.  We begin with Nagle's appeal.                 On  review of a  directed verdict, we  take the evidence            most  favorably to the losing party and ask de novo whether a                                                        _______            reasonable jury  had inevitably  to  decide in  favor of  the            victor.   Smith v.  F.W. Morse &  Co., 76 F.3d  413, 425 (1st                      _____     _________________            Cir. 1996).  Here, putting aside some loose ends, the central            question  is  whether Nagle  at the  time  of the  arrest had                                         -5-                                         -5-            probable cause to believe that Ajao had committed the offense            of disorderly conduct.  If so, this largely defeats the false            arrest  claim under  both federal  and state  law.   Logue v.                                                                 _____            Dore, 103  F.3d 1040, 1044 (1st Cir.  1997); see Commonwealth            ____                                         ___ ____________            v. Grise, 496 N.E.2d 162, 163 (Mass. 1986).               _____                 Of  course, it  would  be much  easier to  conclude that            Nagle,  on his own version  of events, had  probable cause to            charge  Ajao with assault  and battery: Nagle  said that Ajao            kicked him.  But the kick occurred after Ajao's arrest; prior                                               _____            to  the  arrest, the  only  pertinent  charge was  disorderly            conduct.   We  reserve for  another  day various  issues that            would  arise  if the  original  arrest  were unjustified  but            resistance  to  it  provided  grounds  for  a  valid  charge.            Compare Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d            _______ ______    _____________________            Cir.  1995), with United States v. Dawdy, 46 F.3d 1427, 1430-                         ____ _____________    _____            31 (8th Cir.), cert. denied, 116 S. Ct. 195 (1995).                           ____________                 In defining disorderly conduct, Mass. Gen. Laws ch. 272,              53 provides  for the punishment,  inter alia, of  "idle and                                                __________            disorderly  persons."   In 1967,  the Supreme  Judicial Court            rejected    a    challenge    that    this    provision   was            unconstitutionally  vague by  interpreting it  to incorporate            the  Model  Penal Code's  definition  of  disorderly conduct.            Alegata v.  Commonwealth, 231  N.E.2d 201, 211  (Mass. 1967).            _______     ____________            That definition states:                 A person  is guilty of disorderly  conduct if, with                 purpose to cause public inconvenience, annoyance or                                         -6-                                         -6-                 alarm, or recklessly  creating a risk thereof,  he:                 (a)  engages in  fighting  or  threatening,  or  in                 violent  or  tumultuous  behavior;  or   (b)  makes                 unreasonable noise or offensively coarse utterance,                 gesture or  display, or addresses  abusive language                 to any  person present, or (c)  creates a hazardous                 or  physically offensive condition by any act which                 serves no legitimate purpose of the actor.          Id.  (quoting ALI,  Model Penal  Code   250.2  (Proposed Official          ___                 _________________          Draft 1962)).                 Several years  later, the  Supreme  Judicial Court  struck          down  subsection  (b)  of this  definition  as unconstitutionally          overbroad.   Commonwealth  v.  A Juvenile,  334  N.E.2d 617,  622                       ____________      __________          (Mass. 1975).  And  to avoid First Amendment concerns,  the court          ruled  that  the  remaining  subsections  (a)  and  (c)  must  be          construed to cover only conduct, not activities which involve the          "lawful exercise of a  First Amendment right."   Id. at 628;  see                                                           ___          ___          also Commonwealth v. LePore, 666 N.E.2d 152, 155 (Mass. App. Ct.)          ____ ____________    ______          ("To be disorderly within  the sense of the statute,  the conduct          must disturb  through acts other  than speech  . . .  ."), review                                                                     ______          denied, 668 N.E.2d 356 (Mass. 1996).          ______                 Nagle  testified  that he  arrested Ajao  under subsection          (c), not subsection (a),  and we doubt that Ajao's  conduct prior                                                                      _____          to his arrest would support a charge under subsection (a).  Thus,          the question for us is whether a reasonable jury could have found          that Nagle had probable  cause to believe that Ajao  had violated          subsection (c) by "creat[ing] a hazardous . . . condition by  any          act  which serves no legitimate purpose of  the actor."  We think                                         -7-                                         -7-          that a reasonable  jury, if  it accepted the  defense version  of          events, could have so found.                 An arrest  of a struggling  defendant--here, Abraham--is a          serious  business.   Even without a  gathering crowd  and traffic          blocked by a  police cruiser,  there is a  potential for  serious          violence and of  injury both to  the suspect  and to the  police.          Yet, assuming  the truth  of the defense  evidence, Ajao--despite          repeated  requests to get  out of  the way--circled  the officers          while shouting, at least once got directly in their way, and then          refused to move away from the cruiser.                 Such  behavior can fairly be taken to fall directly within          the literal language of subsection (c): creating "a hazardous . .          .  condition" by acts "which serve[] no legitimate purpose of the          actor."   Indeed,  a number  of Massachusetts  cases have  upheld          disorderly conduct arrests where a refusal to obey  police orders          created  a safety threat.  See Commonwealth v. Mulero, 650 N.E.2d                                     ___ ____________    ______          360, 363 (Mass. App.  Ct.), review denied, 652 N.E.2d  145 (Mass.                                      _____________          1995); Commonwealth  v. Bosk, 556  N.E.2d 1055, 1058  (Mass. App.                 ____________     ____          Ct. 1990); Commonwealth v.  Carson, 411 N.E.2d 1337,  1338 (Mass.                     ____________     ______          App. Ct. 1980).                   Literal  language is  not  the full  story.   The  state's          highest court has glossed  the statute not to apply  wherever the          activities  are  themselves  the  "lawful  exercise  of  a  First          Amendment right."  A Juvenile, 334 N.E.2d at 628.  And Ajao had a                             __________          free-speech right to protest the arrest of his companion, even if                                         -8-                                         -8-          this distressed  or annoyed the  police.  But by  the same token,          "the  mere fact that the conduct of the defendant was accompanied          by speech  does not preclude  a conviction" under  the disorderly          conduct law.  Carson, 411 N.E.2d at 1337.                          ______                 We  have  very  little  difficulty  in  separating  Ajao's          protected  speech   from  his  physical  interference   with  two          policemen  struggling to arrest and  detain a third person, which          is  not protected.  Indeed, in Colten  v. Kentucky, 407 U.S. 104,                                         ______     ________          109  (1972), the Supreme Court  upheld a conviction  for far less          disruptive conduct, observing that "Colten's conduct in  refusing          to move on after being directed to  do so" was not protect by the          First Amendment.  See also City of Houston v. Hill, 482 U.S. 451,                            ________ _______________    ____          463 n.11 (1987).                 In  some  cases,  peaceful  demonstration   and  protected          expression  may appear  to  merge.   Possibly,  this may  explain          Commonwealth  v. Feigenbaum,  536 N.E.2d  325, 328  (Mass. 1989),          ____________     __________          where  the state court  held that the  disorderly conduct statute          did not  extend to  the blocking  of traffic in  the course  of a          peaceful  political  rally  because the  defendant's  purpose was          legitimate.   But Ajao's  alleged conduct in  the present  case--          disrupting a  police attempt  to arrest a  struggling companion--          seems to us both more dangerous and less legitimate.                                         -9-                                         -9-                 Further, even  if Feigenbaum  were given its  most extreme                                   __________          reading,2 making a good  purpose a complete defense, it  would be          up to  a jury  to determine  whether Ajao  was acting  to express          protected  speech or whether he also sought to interfere with the          arrest.   The latter aim could not be a legitimate purpose on any          view of the matter.  Yet a jury could infer, assuming it accepted          the  defense version of events, that Ajao was trying to frustrate          the arrest by getting  in the way or distracting the officers and          not simply trying to convey his objections.                 In  this case, the jury  certainly did not  have to accept          the police  version of the  events.   The plaintiffs gave  a more          benign   account   of  their   conduct   and   there  were   some          contradictions  in the defendants' own testimony.  But it was the          jury's province,  after observing Nagle, the  other officers, and          the plaintiffs on  the witness  stand to decide  whom the  jurors          believed.   We simply disagree  with the trial judge's conclusion          that she was free to make that credibility determination.  If the          district judge  thought that  the credibility issues  fell within          her province, this  was a  mistaken view of  the governing  rule.          See Smith, 76 F.3d at 425.3          ___ _____                                            ____________________                 2At  least two  state  court decisions  after Feigenbaum                                                               __________            suggest  that an extreme  reading is  unwarranted and  that a            defendant can be liable for disorderly conduct even where his            main objective is to  protest police decisions.  See  Mulero,                                                             ___  ______            650 N.E.2d at 363; Bosk, 556 N.E.2d at 1058.                               ____                 3Nagle  points to  the  trial judge's  comment (made  in            discussing jury  instructions) that "I am  basing my findings            with respect to Mr. Ajao on my evaluations of the credibility                                         -10-                                         -10-                 Three loose ends remain.   One is the possibility  that an          arrest based on  probable cause  might still be  unlawful if  the          police  officer  acted  simply   for  the  purpose  of  punishing          protected speech.   There is  some law on  this subject,  compare                                                                    _______          Whren v. United States, 116 S. Ct. 1769, 1774 (1996), with Sloman          _____    _____________                                ____ ______          v. Tadlock, 21  F.3d 1462, 1469 (9th Cir. 1994),  but we need not             _______          pursue the issue here.  Plaintiffs have not pointed to any direct          evidence that Nagle acted  out of an improper motive  to suppress          speech, and  certainly  nothing would  remotely justify  deciding          that issue against him by a directed verdict.                 The second is  the possibility, on remand, of  a qualified          immunity  defense for  Nagle.   This  defense,  preserved in  the          district  court, has  been successfully  invoked in  this circuit          where a police  officer made a reasonable,  if arguably mistaken,          call on a  close legal issue.  E.g., Joyce  v. Town of Tewksbury,                                         ____  _____     _________________          112 F.3d 19 (1st Cir. 1997); Veilleux v. Perschau, 101  F.3d 1, 3                                       ________    ________          (1st Cir. 1996).  We have ignored the issue here only because the          city  has chosen, for reasons not explained, to fight this appeal          on the merits.                 Third, for the sake of completeness, we note that in 1995-          -well after  the incident  in this case--Massachusetts  enacted a          separate "resisting arrest"  statute that also covers  situations          in which the person charged prevented or attempted to prevent the                                            ____________________            of the witnesses as well as my evaluations of the sufficiency            of the evidence . . . ."                                           -11-                                         -11-          arrest of another.  Mass. Gen. Laws ch. 268,   32B.   We need not          consider whether Ajao could have been charged under this statute,          which is narrower in focus but  more severe in penalties than the          disorderly conduct statute applied here.  There is no  indication          that the adoption  of the new statute  was meant to  eliminate or          alter  the availability of the  disorderly conduct law  as a less          severe remedy for addressing  disorderly interference with police          activity.                 Turning now to the plaintiffs' appeal, we begin with their          claim that the district  court erred in denying them  a new trial          on  their other  claims which  were rejected  by the  jury.   The          arguments are largely conventional ones  turning on the weight of          the evidence,  the propriety  of closing arguments,  and possible          confusion on the part of the jury evidenced by an inquiry made by          the jury during its deliberations.                 The  denial of a new trial motion  under Fed R. Civ. P. 59          is reviewed for abuse of  discretion.  Bogosian v.  Mercedes-Benz                                                 ________     _____________          of  North America,  Inc.,  104 F.3d  472,  482 (1st  Cir.  1997).          __  ____________________          Without describing  the plaintiffs' arguments in  detail, we find          no abuse here in rejecting each of the new-trial grounds thus far          mentioned.  A  potentially more  serious claim is  that the  jury          pool  may  have  excluded  minorities, but  the  plaintiffs  have          pointed to nothing in the record to support the charge or to show          that it was even raised in the trial court.                                         -12-                                         -12-                 The plaintiffs also object to the district court's failure          to grant injunctive relief.  The relief sought was to prevent the          Boston police from continuing to  use, at least without revision,          a  training  bulletin  that  sets  forth  the  Model  Penal  Code          definition  of  disorderly conduct  but  fails  to indicate  that          subsection  (b) has  been  struck down  by  the Supreme  Judicial          Court.  The city, which has not responded on this point, would be          well advised to clarify the manual on its own.                 But the plaintiffs were  not charged under subsection (b);          in  fact, Nagle testified that he had been taught that subsection          (b) had been held invalid.  Nor did the plaintiffs show that they          faced  any  real threat  of future  injury,  e.g., by  threats to                                                       ____          enforce subsection (b) against them  in the future.  City  of Los                                                               ____________          Angeles v. Lyons,  461 U.S. 95, 102 (1983).   The district court,          _______    _____          exercising its  equitable authority  to grant or  deny injunctive          relief, certainly did not have to grant any here.                 To conclude, we vacate the  judgment against Nagle on  the                                 ______          false arrest  claim and the  now-mooted award of  attorney's fees          against him and otherwise affirm the judgment entered on the jury                                    ______          verdicts in favor of the  defendants.  The false arrest claim  is          remanded for further proceedings consistent with this opinion.          ________                 It is so ordered.                 _________________                                         -13-                                         -13-
