     [NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT]
               United States Court of Appeals
                   For the First Circuit

No. 99-1312

                      PETER A. CRAWFORD,

                    Plaintiff, Appellant,

                              v.

                   CITY OF QUINCY, ET AL.,

                    Defendants, Appellees.

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. William G. Young, U.S. District Judge]

                            Before

                   Torruella, Chief Judge,
             Selya and Boudin, Circuit Judges.

   Peter A. Crawford on brief pro se.
   James S. Timmins on brief for appellee, City of Quincy.
   Richard J. Conner on brief for appellees, One Stop Gas, Inc.,
Petar's Automotive, Inc., Michael Elder and Albert Galano.

February 17, 2000

          Per Curiam.  At a gas station in Quincy,
Massachusetts, appellant Crawford quarreled with the station
attendants over what he perceived to be a misleading pricing
practice.  An attendant called the police.  Within minutes, the
police arrested Crawford on a misdemeanor disorderly conduct
charge.  Money was taken from him at the scene to pay the price
shown on the pump, and his automobile was towed to an adjacent
lot.  When he sought to retrieve his vehicle the next day, he
was charged a towing fee in excess of any allowed by state
regulation.
          A jury acquitted Crawford on the misdemeanor charge. 
He then mounted this federal suit under 42 U.S.C.  1983,
against the police officer and the City of Quincy (the public
defendants), the two gas station attendants and their employer,
One Stop Gas, Inc., and the towing company, Petar's Automotive,
Inc. (the private defendants).  Both corporate defendants are
wholly owned by one Peter Palmer.
          Crawford alleged, inter alia, that the police officer
had deprived him of his liberty and property without probable
cause in violation of the Fourth and Fourteenth Amendments,
that the private defendants had conspired with the officer to
effect the deprivations, that both sets of defendants had
violated state civil rights and tort laws, and that the private
defendants had engaged in deceptive practices in violation of
Mass. Gen. Laws ch. 93A. 
          A trial ensued.  After both sides had rested, the
district court granted in part the defendants' motions for
judgment as a matter of law.  The court then submitted the
remaining claims to the jury which exonerated the private
defendants, but found the public defendants liable for
deprivation of Crawford's civil rights, wrongful arrest, and an
invasion of privacy.  The jury awarded damages in the amount of
$4,116.  In addition, the court granted equitable relief in the
form of an order expunging the record of the arrest (including
fingerprints and a photograph taken at the time of booking in
violation of a state law). 
          At a later hearing, the court granted the private
defendants' motion for attorneys' fees, awarding them "the
amount that [Crawford] recovers of the City of Quincy and no
more," and decreeing that "the City of Quincy may discharge the
judgment entered in Mr. Crawford's favor by either paying off
One Stop and these other [private] defendants or reaching an
accommodation with them."   Judge Young added: 
                    The result is that Mr. Crawford gets no
          monetary benefits, he gets the
          satisfaction of having litigated and won
          against able and ethical counsel, having
          vindicated his rights as against a police
          officer who arrested him without probable
          cause, and he gets the expungement of that
          arrest and all collateral documents in the
          . . . City of Quincy.
          Crawford -- and only Crawford -- appeals.  He assigns
as error (1) the district court's entry of judgment as a matter
of law on various claims; (2) certain aspects of the jury
instructions; (3) the court's rejection of his motion for
judgment as a matter of law on his Chapter 93A claims; and (4)
the fee award.   
                              I.
          Upon de novo review, we affirm the judgment as a
matter of law.  We briefly recount our reasons.  In all
instances, we have taken the evidence in the light most
favorable to Crawford.  See CPC Int'l, Inc. v. Northbrook
Excess &amp; Surplus Ins. Co., 46 F.3d 1211, 1214 (1st Cir. 1995).
                              A.
          As to the section 1983 claims against the private
defendants, Crawford alleged several conspiracy theories. 
There was insufficient proof at trial, however, to sustain a
reasonable inference that a mutual understanding arose between
the station attendants and the police officer prior to
Crawford's arrest.  The attendants and the officer testified
without contradiction that they were utter strangers to one
another before this incident.  Although different witnesses
offered different versions of the relevant events, all the
testimony pointed to a sudden, unilateral decision by the
officer to effect the arrest.  We have held before, and today
reaffirm, that "merely initiating a good-faith request for
police protection [will] not attach liability for the
subsequent unconstitutional conduct of arresting officers." 
Wagenmann v. Adams, 829 F.2d 196, 209 (1st Cir. 1987). 
          To be sure, there was proof that after the arrest the
attendants conversed with the officer and cooperated in the
taking of Crawford's money and in arranging for towing of
Crawford's automobile.  But this evidence, without more, was
insufficient to permit a jury reasonably to infer that the
private defendants thereby knowingly "collogued [with the
officer] to deprive the plaintiff of his civil rights."  Id.  
          Crawford was similarly unsuccessful in making out a
section 1983 claim against the towing company.  The defense
adduced undisputed testimony that the attendants did not work
for the towing company and there was no proof that any agent of
the towing company knew of the events preceding the police
authorization to tow.  Thus, even if the towing company might
be considered a public actor subject to individual liability
under section 1983 (due to its municipal towing contract and 
other facts), there is nothing in the record that serves to
contradict its assertion of good faith in accepting (and acting
upon) the facially valid police authorization.  This same
reasoning likewise supports the district court's entry of
judgment for the towing company on Crawford's conversion claim.
                              B.
          The district court did not err in entering judgment
as a matter of law on two damages claims against the public
defendants.  First, the court decided not to submit to the jury
a separate claim for compensatory damages for mental distress
stemming from the "invasion of privacy" that allegedly occurred
during the booking process.  Given that Crawford did not
testify to any emotional distress traceable separately to the
booking process, but, rather, described only an
undifferentiated emotional upset following the entire incident,
the decision was proper. 
          Second, the court declined to submit to the jury a
claim for punitive damages arising from the unlawful arrest. 
We discern no error.  "Where . . . the evidence shows no more
than that an exasperated police officer, acting in the heat of
the moment, made an objectively unreasonable mistake, punitive
damages will not lie."  Iacobucci v. Boulter, 193 F.3d 14, 26
(1st Cir. 1999).  There was no proof that the officer harbored
any evil motive nor that he possessed a "conscious awareness"
that the arrest might violate Crawford's civil rights.  Id.  
                             II.
          Neither the jury instructions nor the Chapter 93A
claims need detain us.  As to the instructions, it suffices to
say that they sufficiently conveyed the relevant substance of
most of the matters that Crawford had wanted explained in
greater detail to the jury.
          Crawford's Chapter 93A argument, as explicated on
appeal, seems to be that two of One Stop's  pump signs
allegedly violated Mass. Regs. Code tit. 202,  2.06(2), and
that, therefore, regardless of whether he relied on those
signs, the court should have found a "per se" violation of
Chapter 93A.  This argument is unpreserved, and we reject it on
that basis.  For one thing, it was not squarely presented below
in Crawford's omnibus motion for judgment as a matter of law. 
For another thing, he compounded the waiver by acquiescing in
a defense request for a supplementary instruction directing the
jury to find liability only if it found that he had relied on
a deceptive practice. 
                             III.
          We are unable to sustain the district court's
decision to award attorneys' fees to the prevailing private
defendants under 42 U.S.C.  1988.    
          A prevailing defendant in a civil rights case is
entitled to fees and costs only if the defendant can establish
that the suit was "totally unfounded, frivolous, or otherwise
unreasonable" when brought, or that the plaintiff continued the
litigation after it clearly became so.  Bercovitch v. Baldwin
Sch., Inc., 191 F.3d 8, 10 (1st Cir. 1999) (quoting Casa Marie
Hogar Geriatrico, Inc. v. Rivera-Santos, 38 F.3d 615, 618 (1st
Cir. 1994)).  This is a necessary precondition to any fee award
in favor of a defendant under section 1988 (although other
facts may persuade the court that fees should be denied or
reduced).  See  Tang v. Rhode Island Dep't of Elderly Affairs,
163 F.3d 7, 13-15 (1st Cir. 1998); Foster v. Mydas Assocs.,
Inc., 943 F.2d 139, 145 (1st Cir. 1991).  
          We review fee awards deferentially, and reverse only
for abuse of discretion.  See Casa Marie, 38 F.3d at 618.  We
may find such an abuse if the lower court ignores a material
factor, relies upon an improper factor, or makes a serious
mistake in weighing the relevant factors.  See Coutin v. Young
&amp; Rubicam P. R., Inc., 124 F.3d 331, 336 (1st Cir. 1997).  In
all events, an appellate court "must engage the district
court's [fee] decision critically."  Id.  
          We have instructed trial judges who make (or decline
to make) fee awards to explain their actions so that "at a bare
minimum, the order awarding fees, read against the backdrop of
the record as a whole ...expose[s] the district court's thought
process and show[s] the method and manner underlying its
decisional calculus."  Id.  In this instance, the judge gave
three reasons for the fee award: (1) that the "federal claim of
conspiracy was brought without any basis to support it,"
although, "the rest . . . was a triable case;" (2) that the
suit had grown out of a  $1.86 dispute but had consumed three
days of trial time and thus judicial resources valued (by the
judge) at more than $60,000; and (3) that Crawford previously
had brought "successful lawsuits about minor matters."
          The second and third reasons are troubling; even if
taken at face value, neither seems sufficient to justify a
decision to award fees against a civil rights plaintiff.  Even
more troubling, however, is that the court's basic precondition
for the award -- the finding that the federal conspiracy claim
was baseless when brought -- does not withstand scrutiny.
          We have reviewed the record in detail.  While the
evidence supports the decision to dismiss the section 1983
claims against the private defendants at the close of the
trial, that is not the proper coign of vantage.  To the precise
contrary, in awarding fees to a prevailing defendant, a "court
must resist the understandable temptation to engage in post hoc
reasoning by concluding that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable or
without foundation."  Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 421-22 (1978).  When Crawford brought suit, there was
a plausible (if circumstantial) foundation for his conspiracy
claims.  Crawford had been arrested without apparent cause or
police investigation within a few moments of the officer's
arrival on the scene in response to an attendant's telephoned
complaint.  The officer and the two attendants then conversed
amongst themselves and all three participated in an improper
confiscation of money and in the unauthorized towing of
Crawford's automobile.  To make appearances worse, the towing
was accomplished by a municipal contractor, and the company's
owner (who also owned the service station) was familiar with
various police officials.  The towing firm then conditioned
Crawford's retrieval of his vehicle on the payment of a towing
fee.  This is the sort of circumstantial sequence that  has
troubled even seasoned jurists, see, e.g.,Alexis v. McDonald's
Restaurants of Massachusetts, Inc., 67 F.3d 341, 354 (1st Cir.
1995) (Bownes, J. dissenting in part); Moore v. The Marketplace
Restaurant, Inc., 754 F.2d 1336, 1362 (7th Cir. 1985) (Gibson,
J. dissenting in part), and we think it is unreasonable to hold
the plaintiff to a higher standard.     
          In sum, we hold that the district court erred in
finding that the federal conspiracy claims were utterly without
foundation when suit was brought.  Once that finding falls from
the case, we cannot affirm a fee award to the prevailing
private defendants under 42 U.S.C.  1988.
          Affirmed in part and reversed in part.  No costs.
