
USCA1 Opinion

	




          June 23, 1993                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2389                            WILLIAM T. BRODERICK, ET AL.,                                Plaintiffs, Appellees,                                          v.                               FRANCIS ROACHE, ET AL.,                                Defendants, Appellees.                                 ____________________                                 ARTHUR MORGAN, JR.,                                Defendant, Appellant.                                 ____________________                                     ERRATA SHEET            Please make the following correction in  the opinion in the  above        listed case released on June 18, 1993:                                 ARTHUR MORGAN, JR.,                                Defendant, Appellant.                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-2389                            WILLIAM T. BRODERICK, ET AL.,                                Plaintiffs, Appellees,                                          v.                               FRANCIS ROACHE, ET AL.,                                Defendants, Appellees.                                 ____________________                                 ARTHUR MORGAN, JR.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                         Torruella and Stahl, Circuit Judges,                                              ______________                             and Burns,* District Judge.                                         ______________                                 ____________________            Walter  B. Prince with  whom Peckham,  Lobel, Casey,  Prince & Tye            _________________            _____________________________________        was on brief for appellant.            James F.  Lamond with whom Alan  J. McDonald  and McDonald, Noonan            ________________           _________________      ________________        and Lamond were on brief for appellees William T. Broderick, et al.        __________                                 ____________________                                    June 18, 1993                                 ____________________        ____________________        *Of the District of Oregon, sitting by designation                      STAHL, Circuit Judge.   In this appeal,  defendant-                             _____________            appellant  Arthur  Morgan,  Jr.  ("Morgan")   challenges  the            district court's ruling that he was not entitled to qualified            immunity.   Finding no error in the  district court's ruling,            we affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      On  May 12,  1990, plaintiffs-appellees  the Boston            Police  Superior  Officers   Federation  ("Federation")   and            William Broderick  ("Broderick"), an employee  of the  Boston            Police  Department  ("Department")1 and  an  official of  the            Federation,2  initiated  this   action  against  Morgan,  the            Department's Deputy Superintendent in  charge of the Internal            Affairs  Division  ("IAD");  the  City  of  Boston  ("City");            Francis  Roache, the  Department's Commissioner;  Paul Evans,            the  Department's  Superintendent-in-Chief in  charge  of the            Bureau of Field Services; Robert Conlon, a sergeant detective            within   the  Department's   IAD;  and  Charles   Burke,  the            Department's Deputy  Director of the Bureau of Administrative                                            ____________________            1.  Broderick has been employed by the Department since 1969,            has been a police officer since 1977, and has been a sergeant            since 1986.            2.  Broderick  served  as   Federation  vice-president   from            January  1987, through December  31, 1988, and  has served as            Federation president since January 1, 1989.                                         -2-                                          2            Services.3    The  complaint  alleges  that  defendants  have            engaged  in a series of acts designed to harass Broderick and            retaliate  against him  for  exercising his  First  Amendment            rights  (1) to  speak on  matters of  public concern;  (2) to            participate in union  activities; and (3) to  file actions in            court.  Plaintiffs proceed  pursuant to 42 U.S.C.    1983 and            the Massachusetts Civil Rights  Act ("MCRA"), Mass. Gen. Laws            Ann. ch. 12,    11H and I (West 1986).4                      At issue in this  appeal is Morgan's involvement in            four  separate incidents  wherein Broderick  was disciplined,            ostensibly  for violating  Department rules  and regulations.            Specifically,  plaintiffs claim  that Morgan,  prompted  by a            desire to harass and  retaliate against Broderick, abused the            power  of his  position  by developing  and bringing  charges            against  Broderick for his role  in the four  incidents.  The            particulars of  these  incidents, along  with the  implicated                                            ____________________            3.  All defendants  other  than the  City are  sued in  their            individual and official capacities.            4.  This case, despite its  pretrial status, has an extensive            procedural history.   The  district court has  already issued            four  previous  memoranda  and  orders  relative  to  various            pretrial  motions brought by  the parties.   See Broderick v.                                                         ___ _________            Roache,  751  F. Supp.  290  (D.  Mass.  1990)  (inter  alia,            ______                                           _____  ____            dismissing plaintiffs'  civil RICO claim);  Broderick v. City                                                        _________    ____            of  Boston, 755  F. Supp.  482 (D.  Mass. 1991)  (inter alia,            __________                                        _____ ____            denying   the  City's  motion  to  dismiss  the  Federation);            Broderick  v.  Roache,  767  F.  Supp.  20  (D.  Mass.  1991)            _________      ______            (resolving  in Broderick's  favor  the  question  of  whether            certain statements he made were matters of public concern and            thus protected speech); Broderick v. Roache, 803 F. Supp. 480                                    _________    ______            (D.  Mass.  1992)  (denying  the City's  motion  for  summary            judgment on plaintiffs' claim against it under the MCRA).                                         -3-                                          3            factual  disputes,  are delineated  in  the  district court's            thorough memorandum  and order  and need not  be restated  at            length.  See Broderick v.  Roache, Civil Action No. 90-11500-                     ___ _________     ______            MA, slip op.  at 3-9  (D. Mass. Oct.  22, 1992)  (hereinafter            "Broderick  V").   Instead,  we  summarize  the incidents  as             ____________            follows:                 1.  In early 1989, Morgan received a complaint that                 Broderick was abusing  the "release time" available                 to him as a Federation officer.   "Release time" is                 time   during  which   elected  officials   of  the                 Federation  are  allowed   to  conduct   Federation                 business  during on-duty hours.   Broderick asserts                 that  Morgan departed  from ordinary  procedures in                 subsequently   developing   and  bringing   charges                 against   him   and  recommending   a  disciplinary                 hearing.     Among  the  departures  from  ordinary                 procedures alleged by Broderick  is that, prior  to                 the hearing,  Morgan  never afforded  Broderick  an                 opportunity  to explain  what  happened  and/or  to                 accept  a lesser  form  of discipline  in order  to                 avoid the hearing.                  2.   In April 1989, Broderick  received notice that                 he   would  be   required  to   undergo   a  second                 disciplinary  hearing  on   charges  that  he   had                 violated Department rules and regulations during an                 arrest  of  Kathleen  Bean  the  previous February.                 Broderick  claims, inter alia, that Morgan departed                                    _____ ____                 from  ordinary procedures  in pressuring  Bean into                 filing the charges, disregarding the recommendation                 of  Broderick's commanding officer that the charges                 be  classified  as  "unfounded" (which  Morgan  had                 never   done   before),  and   subsequently  urging                 Broderick's commanding officer  to approve  charges                 with which he disagreed.                 3.   In December  1989,  Morgan was  present at  an                 interrogation  of  Broderick  conducted  by  Super-                 intendent  Evans.    The   interrogation  concerned                 certain remarks, critical  of the Department,  that                 were   attributed  to   Broderick  in   an  article                 appearing  in   the   Boston  Globe.      Broderick                 essentially  contends  that  Morgan   exceeded  his                 authority  in  attending   the  interrogation   and                                         -4-                                          4                 improperly  allowing  the  interrogation to  extend                 beyond the scope of the Globe article.                 4.  In  May 1990, Broderick received notice that he                 would be  required to undergo  a third disciplinary                 hearing on charges that  he had violated Department                 rules  and regulations while arresting Ezekiel Oluh                 the  previous November.   Broderick  asserts, inter                                                               _____                 alia, that Morgan departed from ordinary procedures                 ____                 by  ensuring  that  IAD,  rather  than  Broderick's                 district, conducted the initial  investigation into                 Oluh's  complaint,  and   by  becoming   personally                 involved in  the investigation.  During  the course                 of the  IAD  investigation,  Oluh  filed  a  second                 complaint   against   Broderick,   asserting   that                 Broderick had threatened him  during the course  of                 the  criminal  trial  which  followed  the  initial                 arrest.  Broderick claims that Morgan departed from                 ordinary  procedures  by  again   disregarding  the                 recommendation  of  Broderick's commanding  officer                 that  the  charges  in  this  second  complaint  be                 classified as "unfounded."   He also contends  that                 Morgan used this second set of charges to retaliate                 against him for seeking  an injunction in a lawsuit                 brought  by the  Federation against  the Department                 over civil service promotions.                      On March 4, 1992, Morgan filed a motion for summary            judgment,  arguing that  the doctrine  of  qualified immunity            shielded  him from liability.  As we have noted, the district            court,  by  memorandum  and  order dated  October  22,  1992,            rejected that argument.  In so doing, the court found genuine            issues  of material  fact  regarding Morgan's  motive in  the            actions  he took against Broderick,  and that the question of            qualified immunity could not, therefore, properly be resolved            by pretrial motion.  See Caro v. Aponte-Roque, 878 F.2d 1, 2-                                 ___ ____    ____________            4 (1st Cir.  1989) (genuine  issues of material  fact on  the            question of  defendant's motive for taking  adverse personnel            action against plaintiff made proceeding to trial on question                                         -5-                                          5            of qualified immunity appropriate).5  It  is from this ruling            that Morgan now appeals.                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      Before discussing the merits of Morgan's appeal, we            pause to note that which we  need not resolve.  In moving for            summary judgment  before the  district court,  Morgan neither            challenged  the  court's ruling  that Broderick's  conduct is            constitutionally  protected nor contended  that the rights at            issue  were   not  "clearly  established,"   see  Harlow   v.                                                         ___  ______            Fitzgerald, 457  U.S.  800,  818  (1982),  at  the  time  the            __________            relevant incidents occurred.   See, e.g., Rodriguez-Pinto  v.                                           ___  ____  _______________            Tirado-Delgado,  982 F.2d  34, 38  (1st Cir.  1993) (awarding            ______________            defendant qualified  immunity from  damage claim  because the            implicated constitutional  right was not  clearly established            at the time  of the  complained of acts).   Moreover,  Morgan            __ ___ ____            expressly  conceded to the  district court that  he could "be            presumed to  know that it  was unlawful to  retaliate against                                            ____________________            5.  The  court also  has  found, and  the parties  apparently            agree, that this is  a "mixed motive" case governed  by Mount                                                                    _____            Healthy City Sch. Dist.  Bd. of Educ. v. Doyle, 429  U.S. 274            _____________________________________    _____            (1977).   Under the Mount Healthy  framework, Broderick bears                                _____________            the  initial   burden  of   proving  that  his   conduct  was            constitutionally protected and that it was a "substantial" or            "motivating"  factor  for the  complained of  adverse actions            taken by  defendants.  See  id. at  287.  If  Broderick meets                                   ___  ___            this burden,  defendants must then prove  "by a preponderance            of the  evidence" that they would have  acted in the same way            towards  Broderick  "even in  the  absence  of the  protected            conduct."  Id.                        ___                                         -6-                                          6            Broderick   for   Broderick's   First   Amendment   protected            conduct[.]"   To the  extent, therefore, that  Morgan now  is            attempting  to  argue otherwise,6  he  is  precluded from  so            doing.  See,  e.g., Dedham Water  v. Cumberland Farms  Dairy,                    ___   ____  ____________     ________________________            Inc., 972 F.2d  453, 459 (1st Cir. 1992) ("It is hornbook law            ____            that  theories  not raised  squarely  in  the district  court            cannot  be surfaced for the  first time on appeal.") (quoting            McCoy v. Massachusetts Inst. of  Technology, 950 F.2d 13,  22            _____    __________________________________            (1st Cir. 1991), cert.  denied, 112 S. Ct. 1939  (1992)); see                             _____  ______                            ___            also Buenrostro v. Collazo,  973 F.2d 39, 44 (1st  Cir. 1992)            ____ __________    _______            (refusing to allow appellants to assert on appeal a different            basis for  a qualified immunity  defense than that  argued to            the district court).                      When   Morgan's   brief   is   stripped   of   this            procedurally defaulted chaff, only three arguments, the first            two of which are interrelated, remain:  (1) that the question            of a  defendant's intent/motive  is immaterial to  a properly                                            ____________________            6.  Although it is not  entirely clear, Morgan, citing, inter                                                                    _____            alia,  Busby v. City of  Orlando, 931 F.2d  764, 774-75 (11th            ____   _____    ________________            Cir.  1991)  (the  special  disciplinary concerns  of  quasi-            military  organizations  like  police departments  should  be            taken into  account  when evaluating  the  reasonableness  of            police officials' actions in enforcing regulations that delay            an  employee's  access to  public  forum),  does seem  to  be            challenging   the   district   court's  determinations   that            Broderick's conduct  is protected by the  First Amendment and            that the rights in  question were clearly established at  the            time  the  relevant  incidents occurred.    Similarly, Morgan            argues that the circumstances  of this case "are sufficiently            different from  other cases  in this Circuit  involving First            Amendment  violations that  Morgan could  not have  known his            actions may have been considered unlawful."                                          -7-                                          7            conducted qualified immunity analysis;  (2) that, as a matter            of  law,  Morgan's actions  in  developing  and bringing  the            charges against  Broderick, absent any  consideration of  the            issue  of his  intent/motive  in so  doing, were  objectively            reasonable,  see Anderson  v.  Creighton, 483  U.S. 635,  639                         ___ ________      _________            (1987), in light of the information he possessed at the times            he  acted;  and  (3) that  there  are  no  genuine issues  of            material  fact  as  to  whether   Morgan's  intent/motive  in            developing and  bringing  the charges  against Broderick  was            retaliatory.  We discuss each in turn.                 A.  Intent and Qualified Immunity                 A.  Intent and Qualified Immunity                 _________________________________                      Morgan's first argument, that  the question of  his            intent is  immaterial to the qualified  immunity analysis, is            premised upon a broad reading  of certain language in Harlow.                                                                  ______            Concerned  that  too many  insubstantial civil  rights claims            were  proceeding to  trial and  reacting particularly  to the            "substantial  costs  attend[ant  to]  the  litigation  of the            subjective  good faith  of government officials[,]"  see id.,                                                                 ___ ___            457  U.S.  at 815-17,  the  Harlow  Court overruled  previous                                        ______            contrary  authority7 and jettisoned  the "subjective" element            of the qualified immunity defense, stating:                                            ____________________            7.  Prior to Harlow, a  court conducting a qualified immunity                         ______            inquiry  had to  determine  whether  the  defendant  official            asserting a  qualified immunity defense "knew  or should have            known" both of the right at issue and whether his/her conduct            violated the  constitutional norm.   See, e.g.,  Procunier v.                                                 ___  ____   _________            Navarette, 434 U.S. 555, 562 (1978).            _________                                         -8-                                          8                      [W]e conclude today that bare allegations                      of malice  should not suffice  to subject                      government officials either to  the costs                      of trial or the burdens of broad-reaching                      discovery.    We   therefore  hold   that                      government      officials      performing                      discretionary  functions,  generally  are                      shielded from liability for civil damages                      insofar as their conduct does not violate                      clearly    established    statutory    or                      constitutional   rights    of   which   a                      reasonable person would have known.            Id. at 817-18.  In subsequent cases, the Court has reaffirmed            ___            that the "reasonableness" of the defendant official's actions            should be determined according to an objective, rather than a            subjective,  standard.  See, e.g., Anderson,  483 U.S. at 645                                    ___  ____  ________            ("Harlow . .  . replac[ed] the inquiry into subjective malice              ______            so  frequently  required  at  common law  with  an  objective            inquiry  into  the  legal  reasonableness  of  the   official            action."); Malley v. Briggs, 475 U.S. 335, 341 (1986) ("Under                       ______    ______            the  Harlow standard  . .  . an allegation  of malice  is not                 ______            sufficient to  defeat immunity if  the defendant acted  in an            objectively reasonable manner.").                        Morgan argues that such language not only precludes            us from  inquiring into whether  he himself knew  whether the            First Amendment  rights at issue were  clearly established at            the  time in question,  but also prohibits  us from examining            the actual reasons for  his actions.  In other  words, Morgan            would have  us read Harlow in  such a way as  to immunize him                                ______            from liability  even if  he did intend  to retaliate  against            Broderick for engaging in protected conduct.                                         -9-                                          9                      The short answer to Morgan's contention is that, in            a  recent  decision  not cited  by  any  of  the parties,  we            rejected this very argument.  See Feliciano-Angulo v. Rivera-                                          ___ ________________    _______            Cruz, 858 F.2d 40, 45-47 (1st Cir. 1988).  To the extent that            ____            Morgan implicitly  is inviting  us to  revisit our  ruling in            Feliciano-Angulo, we  decline.  It  is settled that,  "[i]n a            ________________            multi-panel  circuit,  newly  constituted  panels,  generally            speaking,  are  bound by  prior  panel  decisions on  point."            Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth.,            ____________________    ____________________________________            No. 91-1602, slip op. at 6 n.3 (1st Cir. May 3, 1993).  So it            is here.                      Moreover, we continue to believe that our ruling in            Feliciano-Angulo is sounder than the interpretation of Harlow            ________________                                       ______            urged by  Morgan.   Although we  see no  reason to  engage in            recapitulation  here,  we again  note  that  the adoption  of            Morgan's argument "`would  insulate officials from  liability            in all cases in which the substantive  prescription makes the            official's  state  of  mind  an essential  component  of  the            alleged  constitutional  violation.'"   Feliciano-Angulo, 858                                                    ________________            F.2d at  46 (quoting  Martin v. District  of Columbia  Metro.                                  ______    _____________________________            Police  Dept., 812 F.2d 1425, 1433 (D.C. Cir.), en banc order            _____________                                   __ ____ _____            vacated and Section IV and dissenting opinion reinstated, 824            _______ ___ __________ ___ __________ _______ __________            F.2d 1240  (D.C. Cir. 1987)).   For the reasons  set forth in            Feliciano-Angulo, we  think it  clear that the  Supreme Court            ________________            intended no such result.  See  id. at 46-47.  Accordingly, we                                      ___  ___                                         -10-                                          10            reject  Morgan's argument  that the  district court  erred in            taking into  consideration  his intent  while conducting  its            qualified immunity analysis.                 B.  The Objective Reasonableness of Morgan's Actions                 B.  The Objective Reasonableness of Morgan's Actions                 ____________________________________________________                      Morgan's second  argument, that  he is  entitled to            qualified  immunity because  his  actions  in developing  and            bringing   the   charges   against   Broderick,   absent  any            consideration   of  his  intent/motive   in  so  doing,  were            objectively  reasonable,  falls  with  our  rejection  of its            condition    precedent.      Simply    put,   the   objective            reasonableness of  Morgan's actions absent  any consideration            of his  intent is irrelevant.8  If Broderick can show that an            intent  to retaliate  against him  for engaging  in protected            conduct  was  a  "substantial"  or   "motivating"  factor  in            Morgan's decision to act as he did, he has met  his burden as            articulated in Mount Healthy.  See supra  note 5.  Of course,                           _____________   ___ _____            Morgan may still prevail in the  face of such a showing if he            can  prove, by a preponderance of the evidence, that he would            have  taken  the actions  he did  even  if Broderick  had not            engaged  in  protected  conduct.   Id.    Such  argument  is,                                               ___                                            ____________________            8.  We note  that whether or  not a disputed  action violates            clearly  established law  often  depends on  the intent  with            which it was  performed.   Auriemma v. Rice,  910 F.2d  1449,                                       ________    ____            1453 (7th Cir. 1990) (citing Halperin v. Kissinger,  807 F.2d                                         ________    _________            180, 184 (D.C. Cir. 1986) (Scalia, J.)), cert. denied, 111 S.                                                     _____ ______            Ct. 2796 (1991).                                         -11-                                          11            however,  for  the factfinder  and  has no  bearing  upon our            qualified immunity analysis.                   C.  Genuine Issues of Material Fact                 C.  Genuine Issues of Material Fact                 ___________________________________                      Finally,  Morgan contends  that the  district court            erred  in finding that genuine issues of material fact on the            question of his intent/motive precluded the entry of judgment            in his favor.   However, our review of the  record, conducted            in the  light  most favorable  to Broderick,  see Cookish  v.                                                          ___ _______            Powell,  945 F.2d  441,  443 (1st  Cir.  1991) (in  examining            ______            whether  the district  court's denial  of a  summary judgment            motion  based upon  qualified immunity  is proper,  we employ            normal summary judgment principles  and examine the record in            the manner most hospitable to the party opposing the motion),            persuades us that the court  did not so err.  Again,  we note            that  the  district court's  memorandum and  order thoroughly            sets forth the genuine and material factual disputes relevant            to the incidents at issue.  See Broderick V, slip op. at 3-9,                                        ___ ___________            12-13.   Therefore,  we  believe it  sufficient  to state  in            summary  fashion  our agreement  with  the court  that,  at a            minimum,  Broderick's supported  allegations that  Morgan (1)            failed to offer  Broderick an opportunity to  accept a lesser            form of discipline in  the Time Release incident in  order to            avoid a hearing thereon;  (2) rejected the recommendations of            Broderick's  commanding   officer  in  the   Bean  and   Oluh            incidents;   and  (3)   became  unusually  involved   in  the                                         -12-                                          12            investigation of the first  Oluh complaint, are sufficient to            create a  genuine and  material factual issue  as to  whether            Morgan  was  motivated  by  a  desire  to  retaliate  against            Broderick  for exercising  his First  Amendment rights.   See                                                                      ___            Mount Healthy, 429 U.S.  at 287.9  Accordingly, we  share the            _____________            district  court's conclusion  that the  question of  Morgan's            qualified immunity cannot be resolved at the summary judgment            stage.10    Morgan  remains  free, of  course,  to  press his            qualified  immunity   defense  at   a  later  point   in  the            proceedings.                                         III.                                         III.                                         ____                                      CONCLUSION                                      CONCLUSION                                      __________                      Because  the  district court  correctly  ruled that            Morgan's entitlement to qualified  immunity cannot be decided            prior to trial, we  affirm its denial of Morgan's  motion for            summary judgment.                      Affirmed.  Costs to appellees.                      Affirmed.  Costs to appellees.                                            ____________________            9.  In so ruling, we are mindful that "[i]n cases where . . .            the state  of mind of  one of the  parties is crucial  to the            outcome of  the case,  resort to summary  judgment is  vested            with  more  than  the  usual difficulty."    Stepanischen  v.                                                         ____________            Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir.            ________________________________            1983).            10.  Morgan  also  argues that,  because  he  is entitled  to            qualified immunity  from plaintiffs'  First Amendment    1983            claim, he  should be granted summary  judgment on plaintiffs'            MCRA  and  civil  conspiracy  claims.   Having  rejected  the            premise  upon which these arguments rest, we are compelled to            reject their conclusions as well.                                         -13-                                          13
