
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2481                                   DAVID LALLEMAND,                                Plaintiff, Appellant,                                          v.                         UNIVERSITY OF RHODE ISLAND, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                           Boudin and Stahl, Circuit Judges,                                             ______________                             and Fuste,* District Judge.                                         ______________                                 ____________________            Vincent A.  Indeglia with whom  Indeglia & McGovern  was on  brief            ____________________            ___________________        for appellant.            Thomas M.  Elcock with whom David E. Maglio, Stephen P. Harten and            _________________           _______________  _________________        Morrison, Mahoney & Miller were on brief for appellees.        __________________________                                 ____________________                                  November 22, 1993                                 ____________________                                    ____________________        *Of the District of Puerto Rico, sitting by designation.                 BOUDIN, Circuit Judge.   On Friday evening,  October 27,                         _____________            1990, Michelle Eckman,  a student at the  University of Rhode            Island,  attended a fraternity  party at the  TKE fraternity.            Very  early on  Saturday  morning,  Eckman  appeared  at  the            university health  clinic.  She  reported that  she had  been            raped at  the TKE  fraternity around  midnight by a  "pledge"            named  "Dan" who was  about 6  feet tall  with feathered-back            blond hair.  She said that other men had attempted to assault            her.  She  repeated her charge, in interviews  or in writing,            during the next several hours.                   At around 8 a.m. on  Saturday morning, October 28, 1990,            Lieutenant   James   McDonald   of   the  university   police            interviewed Eckman, obtained another description of the rape,            and was told by Eckman  that her assailant wore a TKE  pledge            pin.   Other officers  then obtained separate  photographs of            all 21 TKE pledges and  McDonald brought Eckman to the police            station to view the numbered photographs.  In the presence of            McDonald and  another officer, Eckman  positively and without            hesitation  identified David  Lallemand as  the  man who  had            raped  her.1   Based  on  this  photographic  identification,                                            ____________________                 1Lallemand is about  6 feet 7 inches  tall, considerably            above the 6 foot figure first mentioned by Eckman, and he did            not  have feathered  back blond  hair.   On  the other  hand,            Eckman told McDonald that her assailant was much  taller than            another  police  officer,  who stood  slightly  over  6 feet.            Eckman  also initially said that  Dan lived in her dormitory,            which is not true of  Lallemand, but later indicated that she            had merely seen him there.                                         -2-                                         -2-            McDonald  secured a warrant from a state district court judge            and arrested Lallemand on October 30, 1990.                   On November 3,  1990, Eckman was interviewed  once again            by McDonald and an officer  of the Rhode Island state police.            During   this  interview  Eckman  said  that  she  remembered            Lallemand fondling her  when she entered  the room where  the            rape took place; but she said that she no longer could recall            the  rape itself  and  could not  identify  Lallemand as  the            rapist.  Her explanation was that  her memory was suppressing            the rape.   At  Lallemand's bail hearing on November 7, 1990,            Eckman was unable to identify  Lallemand as the man who raped            her, and  charges against him  were dismissed.  A  grand jury            investigated but returned no indictment.                  Lallemand then filed  a civil complaint in  the present            case  charging McDonald, the university and its president and            others with  violations of 42  U.S.C.   1983.   The complaint            also  made claims  under state  law  but they  have not  been            pursued on this  appeal.   Although the  section 1983  claims            went  beyond  false arrest,  that  is  the  only charge  that            Lallemand has argued in his brief.  The essence of the charge            is  that  McDonald  conducted  an  inadequate  investigation,            ignored  exculpatory information, and did not disclose all of            the evidence to the state judge who issued the warrant.                 Following discovery in this case, McDonald and the other            defendants  moved for  summary judgment  on  the ground  that                                         -3-                                         -3-            McDonald's  conduct was protected by qualified immunity.  The            magistrate  judge  recommended that  the  motion  be granted,            concluding  that  at the  time  of the  arrest,  McDonald had            probable  cause to believe  that Lallemand had  committed the            offense.  The possibility that McDonald might have  done more            investigating,  said  the  magistrate judge,  did  not create            liability under section 1983.  The district court adopted the            report of the magistrate judge  and dismissed the case.  This            appeal followed.                 On this  appeal,  our review  on  the grant  of  summary            judgment is plenary, Hoffman v. Reali, 973 F.2d 980, 984 (1st                                 _______    _____            Cir. 1992),  and we assume that genuinely  disputed facts and            credibility issues  would be  resolved in appellant's  favor.            Prokey  v.  Watkins,  942  F.2d  67,  72  (1st   Cir.  1990).            ______      _______            Qualified immunity is  available if the officer's  action was            objectively  reasonable even if  later found to  be mistaken.            Pierson  v.  Ray,  386 U.S.  547,  555-57  (1967);  Harlow v.            _______      ___                                    ______            Fitzgerald,  457 U.S.  800, 818  (1982).   In a  false arrest            __________            case,  the question normally is whether the arresting officer            could  reasonably  believe  that the  information  he  or she            possessed  constituted probable cause.  Hunter v. Bryant, 112                                                    ______    ______            S. Ct. 534, 537 (1991).                 We begin with the objective reasonableness of McDonald's            conduct,  reserving  for the  moment  Lallemand's alternative            argument that McDonald's  subjective good faith was  an issue                                         -4-                                         -4-            for the jury.  McDonald's  broadest defense on appeal is that            he  is insulated by the decision of  the state judge to issue            an arrest  warrant.  We agree with  Lallemand that McDonald's            reliance on United States v.  Leon, 468 U.S. 897, 928 (1984),                        _____________     ____            is misplaced.   Leon  does not  provide automatic  protection                            ____            when  the  warrant itself  was  issued  on  the basis  of  an            affidavit claimed to  be recklessly false.  468  U.S. at 914.            See  generally Rodriques  v. Furtado,  950 F.2d 805,  812 n.8            ______________ _________     _______            (1st  Cir.  1991).    Lallemand  claims  here  that  McDonald            possessed information, undisclosed to the state  judge, which            negated probable cause.                 We think it plain that the information disclosed to  the            state judge, if taken alone,  established probable cause.  In            substance the  affidavit set  forth Eckman's  version of  the            incident,  and followed  it  with  McDonald's description  of            Eckman  selecting  Lallemand's  photograph from  the  picture            array and  positively identifying  Lallemand as  the man  who            raped her.   Although Eckman said  that the perpetrator  gave            his  name as Dan, despite a few discrepancies in description,            the  affidavit presented facts giving rise to probable cause;            everything turns on  what McDonald knew at the  time but left            out of the affidavit.                 The  single  most important  "fact"  allegedly  known to            McDonald but  not disclosed  in the  affidavit is that  other            eyewitnesses had identified a different man, Michael Lindell,                                         -5-                                         -5-            as the  person who--in  the words  of Lallemand's  brief--was            "Eckman's attacker" and "the perpetrator."  We need not weigh            the legal significance of such an omission in the  affidavit,            because the supposed  "fact" is not supported  by the record.            Rather, Lallemand's brief has misstated the record.                    What the record  indicates is that Michael  Brady, the            head of the fraternity, told McDonald and other officers that            Lindell should  be "checked  out," in  the  words of  Brady's            later handwritten statement.  Although the statement does not            explain  what Brady  told the  campus  police about  Lindell,            Lallemand's brief offers  no record citation to  any evidence            that anyone identified  Lindell as having raped  or attempted            to rape Eckman.   Instead, there are  fragments of evidence--            summaries  of  witness  interviews  apparently  conducted  by            various police  officers--that suggest that Lindell  may have            pulled off Eckman's clothes and attempted to  urinate on her.                 Taking  the interviews at face value, one might conclude            that Lindell, Lallemand  and possibly others had  been taking            various liberties with Eckman, who by her own account had had            a  good deal  to drink.   It  is very hard  to tell  from the            record  when each  witness interview  occurred  and how  much            McDonald  knew of these interviews when  he filed his arrest-            warrant  affidavit.   But  even  if he  knew  everything just            recited,  nothing  Lallemand  has pointed  to  in  the record                                         -6-                                         -6-            suggests that Lindell  was identified by anyone as  a rapist.            Further Eckman had specifically stated that the rapist wore a            TKE pledge  pin; Lallemand was  a TKE pledge and  Lindell was            not.                   Depending on what McDonald knew about Brady's suggestion            that the  police "check out"  Lindell, it might or  might not            have been good police practice to investigate Lindell further            before  arresting Lallemand.    But  given Eckman's  positive            identification  of  Lallemand, there  was  probable  cause to            arrest him, and there would  have been probable cause even if            the affidavit  had disclosed everything  just recounted about            Lindell's possible  involvement.    See  generally  Krohn  v.                                                ______________  _____            United States, 742  F.2d 24,  31 (1st Cir.  1984).  What  the            _____________            witness  said about  Lindell  could  easily  have  been  true            without  casting  any  doubt on  Eckman's  identification  of            Lallemand.                 It  may well be that McDonald  ought to have said in the            affidavit submitted to the state  judge that Eckman had had a            lot to  drink and  was probably drunk  that evening  (several            witnesses,  including one  friendly to  Eckman,  so claimed).            That a  rape victim was  drunk does not, of  course, remotely            excuse the offense; still, the only direct witness was Eckman            and her condition bore upon her credibility.  Once again full            disclosure would not in any way have undercut probable cause.            Eckman's  identification  was  positive,  and  there  is   no                                         -7-                                         -7-            suggestion that she was incoherent or vague when she gave her            statements to police or made the photographic identification.            See Clay v. Conlee, 815 F.2d 1164, 1168 (8th Cir. 1987).            ___ ____    ______                 Two further  claims in Lallemand's  briefs require  less            discussion.   First, contrary to  the brief,  nothing in  the            record citations  shows that  McDonald knew  that Eckman  was            unconscious  "during"  the   rape  and  so  could   not  have            identified anyone; rather, there is some evidence that Eckman            might have passed  out "sometime" during  the assault.   With            this correction, the  passing out admission has  virtually no            bearing  on  probable  cause.    There  is  nothing  remotely            implausible about  seeing one's  attacker  and then  becoming            unconscious.                 Second, Lallemand's brief makes  a considerable point of            the fact  that  McDonald  has admitted  that  he  now  doubts            whether   a  rape  occurred,  a  doubt  based  on  McDonald's            statement that  a "rape  kit" procedure  performed on  Eckman            came back  "negative."   "Not withstanding  [sic] this  known            fact," says Lallemand's brief, McDonald "still" filed charges            against  Lallemand.   Lallemand's  point  is  without  merit.            McDonald's  concession came long  after the arrest,  during a            deposition in this  case, and there is no  indication that he                                         -8-                                         -8-            knew  of  the negative  rape  kit  report  when he  made  the            arrest.2                 Even  less  need  be  said  about Lallemand's  remaining            reasons for his claim that  McDonald lacked probable cause or            filed  an  inadequate  arrest  warrant.    The  discrepancies            concerning the  assailant's first name, hair style, dormitory            and height are trivial, given  their nature and the  positive            identification of Lallemand by  Eckman.  Lallemand's argument            that  McDonald  tampered  with  evidence   is  not  seriously            supported.   The undisputed facts show not only that McDonald            had  an  objectively  reasonable  basis  for  believing  that            probable  cause  existed--which   is  enough  for   qualified            immunity, Hunter, 112  S. Ct. at 536--but  also that probable                      ______            cause actually existed.                 Lallemand also claims that  McDonald acted in subjective            bad faith  and that  this presented a  factual issue  for the            jury.  The Supreme Court in Harlow v. Fitzgerald, 457 U.S. at                                        ______    __________            818,  cast great  doubt on whether  such a claim  has a legal            basis.  See Floyd v. Farrell, 765 F.2d 1, 6 (1st  Cir. 1985).                    ___ _____    _______            In any  event, there is here no  factual basis for the claim.            The main "evidence"  of such bad faith is  the admission made                                            ____________________                 2On the contrary, it  appears that the rape  kit samples            were submitted for analysis at  about the time the arrest was            made.  This may, or may not, have been poor police procedure;            but  a rape kit analysis is not a predicate to probable cause            where the accuser says that she has been raped and identifies            the victim.                                           -9-                                         -9-            by McDonald in his deposition  that the rape kit results made            him question  whether anyone  had raped  Eckman.   Since this            admission and  the knowledge it reflects both  came after the            arrest, they  provide no  evidence of bad  faith at  the only            time that matters.                 This  brings us  to  Lallemand's  final  argument.    It            appears that his counsel sought to subpoena  police files and            grand jury  testimony bearing on this case in connection with            this civil action.  The district  judge quashed the subpoenas            and  entered a protective  order.  On  this appeal, Lallemand            asserts that the files and  grand jury testimony were crucial            to his case--the  assertions of need are  fairly general--and            that the district court erred in not enforcing the subpoenas.                 We  need not pursue the question whether these materials            were  discoverable under Rhode Island law, a question raising            legal  issues  that  Lallemand  does  not  adequately  brief.            McDonald's  brief says  that practically  all  of the  police            files were turned over during a deposition; that the district            court's action  limiting discovery  was expressly subject  to            reconsideration based on a more specific showing of need; and            that in opposing  summary judgment Lallemand did  not ask for            further  discovery  or  claim that  he  could  not adequately            respond because of  the quashed subpoenas.  Lallemand has not                                         -10-                                         -10-            troubled to file  a reply brief contesting  these assertions.            Taking them as conceded, they resolve the matter.                 The last  issue on  appeal  is the  claim of  McDonald's            counsel  that  double  costs and  attorneys'  fees  should be            awarded because the appeal was frivolous, was brought  in bad            faith and was  premised upon a  deliberate distortion of  the            factual record.  See 28 U.S.C.    1912, 1927; Fed. R. App. P.            38.  In  our view, there were  just enough loose ends  in the            investigation to make  the appeal  legitimate, although  very            likely to  fail.   But an appeal  can be weak,  indeed almost            hopeless, without being  frivolous, and we think  an award of            double costs or attorneys' fees is not warranted.                 In this case, the proper objection is not to the pursuit            of the appeal; it is to the various distortions of the record            wrought  by  Lallemand's  brief.   The  worst  examples, some            repeated  twice  or  more  in the  brief,  have  already been            mentioned.  As is  usually the case, these tactics  undermine            rather than bolster  the client's position.   The distortions            are  easily rebutted, and they distract attention from better            arguments.   And once it is lost,  a court's trust in counsel            is not readily restored.                 The  judgment is affirmed  with ordinary costs  taxed to                                  ________            appellant.    Appellees'   request  for   double  costs   and            attorneys' fees is denied.                               ______                                         -11-                                         -11-
