

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1962

                         DEBRA HORTA,

                    Plaintiff, Appellant,

                              v.

                 CHARLES B. SULLIVAN, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. A. David Mazzone, U.S. District Judge]                                                                

                                         

                            Before

                   Torruella, Circuit Judge,                                                       

               Campbell, Senior Circuit Judge,                                                         

                  and Stahl, Circuit Judge.                                                      

                                         

Sheila M. Tierney  with whom Tierney Law  Office was on brief  for                                                            
appellant.
Linda M. Walsh with whom Kroll &amp; Tract  was on brief for appellees                                                  
Charles  B. Sullivan,  Paul G.  Sadeck, Edward Mello  and the  Town of
Freetown.
James F. Gettens  with whom Healy &amp;  Rocheleau, P.C. was on  brief                                                                
for  appellees Jeffrey  Mennino,  James K.  Bowles,  and the  Town  of
Lakeville. 

                                         

                       August 31, 1993
                                         

          CAMPBELL,   Senior  Circuit  Judge.    A  passenger                                                        

injured after  police officers  had chased the  motorcycle on

which she was riding sued the police officers, the towns, and

the  town police chiefs in the district court under 42 U.S.C.

  1983 and  state law.   The district  court granted  summary

judgment  for  all  defendants  on  all  counts.    Appellant

appeals, but only as to the   1983 claims against the  police

officers and the pendent Massachusetts Tort Claims Act claims

against the two towns.  We affirm in  part, vacate and remand

in part, and certify  a question of law to  the Massachusetts

Supreme Judicial Court.

                              I.                                          I.

          The following facts are not in dispute.  On Friday,

August 5, 1988, at  approximately 9:18 p.m., appellee Jeffrey

Meninno,  a Lakeville  Police Officer,  was traveling  in his

police  cruiser   north   on  County   Road   in   Lakeville,

Massachusetts, when he observed a motorcycle approaching  him

in  the southbound lane in excess of the posted speed limit.1

Officer Meninno  activated the  cruiser's blue lights  as the

motorcycle approached.  He then turned his cruiser around and

                                                    

1.  Officer Meninno stated that  his radar gun, which he  was
operating  as  he  drove  along  County  Road,  measured  the
motorcycle's  speed as 59 miles  per hour.   The posted speed
limit on County Road was 40  miles per hour.  A photograph of
the  radar gun, showing a  reading of 59  miles per hour, was
attached as an exhibit to Meninno's deposition.

                             -2-

began   to pursue the  motorcycle.  Instead  of pulling over,

the motorcycle accelerated.  

          When appellant  Debra Horta, riding on  the back of

the motorcycle,  realized that  the police car  was following

them,   she  told   the   motorcycle   operator,   James   F.

Demoranville,   to  stop   because  "it   isn't  worth   it."

Demoranville  refused.   "He  just said  to  tuck my  head in

between  his shoulders  and  hang on."   Appellant  remembers

nothing about what occurred after that moment.

          Officer Meninno accelerated to keep up and followed

the motorcycle along  County Road  from a distance  of a  few

hundred  feet, backing off a number of times when it appeared

that the bike  was wobbling  and the riders  might fall  off.

The chase reached speeds of  seventy-five to eighty miles per

hour, as Meninno  watched the  motorcycle drive  erratically,

pass at  least one  car, and  swerve into  and  drive in  the

opposite lane.   Meninno unsuccessfully  attempted to  record

the motorcycle's license plate number.

          As the  pursuit continued  on County Road,  Officer

Meninno radioed a report  to the Lakeville police dispatcher,

telling  her  of the  pursuit and  asking  her to  notify the

police department  in the  neighboring town of  Freetown that

the  motorcycle  was  heading  toward  the Lakeville-Freetown

line.   Appellee  Charles  B. Sullivan,  a police  officer in

Freetown,  heard  Meninno's  transmission  but  did  not  yet

                             -3-

contact Lakeville.  At  that time Sullivan and  appellee Paul

G. Sadeck,  another Freetown  police officer, were  parked in

separate cruisers  on Route  18 in  Freetown.   Sullivan told

Sadeck  about  the chase  and then  drove  south on  Route 18

toward  the intersection of Route  18 and Mason  Road.  Mason

Road  runs  between  County  Road  and  Route  18.    Meninno

contacted the Lakeville dispatcher  again, notifying her that

the  motorcycle  had  left  Lakeville and  entered  Freetown.

Sullivan  then informed the  Lakeville dispatcher and Meninno

that the Freetown police would assist.  The motorcycle slowed

down to thirty miles  per hour, with Meninno doing  the same,

before  turning left  from County  Road onto  Mason Road  and

accelerating again to  over sixty miles  per hour.2   Officer

Meninno kept  up and told Sullivan  by radio that he  and the

motorcycle  were now proceeding eastbound on  Mason Road.  He

also  warned Sullivan  that,  "He's driving  recklessly.   Be

careful."  Sullivan informed Meninno  that he was now  coming

in  the other  direction  on Mason  Road,  getting closer  to

Meninno and the speeding motorcycle.

                                                    

2.  Mason  Road is  a paved,  two-lane road  approximately 24
feet wide  with a  double  solid yellow  line separating  the
lanes and  a posted speed  limit of 30  miles per hour.   The
segments of County Road  and Mason Road on which  the pursuit
took place are sparsely populated residential and undeveloped
areas.   That  evening, Mason  Road was  dry and  traffic was
light.

                             -4-

          As  the  motorcycle and  Meninno continued  east on

Mason Road,  Officer Sullivan  stopped his police  cruiser in

the eastbound lane  of the  two-lane road, facing  west.   He

left the transmission in  Drive and "stood on the  brakes" to

keep  the cruiser  stationary.   The westbound  lane directly

next to  Sullivan's cruiser was  unobstructed.3  In  front of

the cruiser, the road ran straight for approximately 480 feet

before it turned.   Sullivan could not see around the bend to

the  approaching motorcycle  and  police car,  nor could  the

latter yet see his  car.  Sullivan illuminated  the cruiser's

blue   lights,  take-down   lights,4  and  headlights.     No

streetlight illuminated  the point  at which the  cruiser was

parked, but  the road was lit  at the bend  and the take-down

lights illuminated part of the road in front of the cruiser.

          Officer Meninno  and the motorcycle  were traveling

along Mason Road at  sixty or sixty-five miles per  hour when

Officer  Sullivan advised  Meninno  by radio  of his  precise

                                                    

3.  Officer Sadeck, in another cruiser, was heading for Mason
Road at this time but did not arrive on the scene until after
the crash.   While appellant  alleged in  her complaint  that
Sadeck arrived prior to the crash and that his cruiser formed
part  of  a "staggered  roadblock,"  there  is no  admissible
evidence in the record supporting this allegation.  See infra                                                                         
Part II.

4.  Take-down lights  are small  white lights affixed  to the
roof of the police cruiser and located in between two sets of
flashing  blue  lights.    The take-down  lights  on  Officer
Sullivan's  cruiser were  directed  toward the  front of  the
cruiser and illuminated a portion of the area in front of the
car.

                             -5-

location,  warned him to "back off"  and that he had the road

"blocked."    Meninno says  that he  did  slow down,  but the

motorcycle continued on apace.

          Fifteen to twenty  seconds elapsed before  Sullivan

saw the  motorcycle, with  Demoranville and appellant  on it,

round  the bend  in  Mason Road  with Meninno's  cruiser some

distance  behind it.5    Demoranville, still  driving in  the

eastbound  lane, appeared to  slow the  cycle down  and steer

toward  the roadside  on his  right.  However,  he apparently

lost  control of the motorcycle,  which fell on  its side and

slid  along the roadway until  it collided with  the front of

Officer Sullivan's  stationary police  cruiser.  The  cruiser

rose up  in the  air  on impact,  Demoranville became  wedged

underneath the  car, and  appellant Horta fell  backwards off

the motorcycle.  Meninno eventually  stopped without skidding

or taking evasive  action.  Demoranville died within the hour

and Horta sustained serious, permanent injuries, resulting in

a month-long coma and eventual amputation of her left leg.

          Three to four minutes elapsed from the time Officer

Meninno began the pursuit to the time the motorcycle collided

with  Sullivan's cruiser.  The pursuit covered 3.2 miles.  At

                                                    

5.  Meninno   stated   in   his   deposition  that   he   was
approximately 250 feet behind  the motorcycle when he rounded
the  turn.  Sullivan estimated only that the distance was "no
less than"  50 to 75 feet.  The evidence is unclear as to how
fast the motorcycle was  going when it rounded the  last bend
on Mason Road.  

                             -6-

no time  did Officer  Meninno's police cruiser  make physical

contact with the motorcycle or its passengers.6

          Appellant Horta brought this civil action for money

damages on June 25, 1991, in the United States District Court

for the District of Massachusetts against seven defendants   

Officers Meninno, Sullivan, and Sadeck; the Town of Lakeville

and the Town of Freetown; and Lakeville Police Chief James K.

Bowles and Freetown Police Chief Edward Mello.  The complaint

contained  six counts, alleging  that Meninno,  Sullivan, and

Sadeck  were liable to Horta under 42 U.S.C.    1983 and 1985

for violation  of her constitutional rights  (Count I); under

Mass. Gen. L. ch. 12,    11H and I for violation of her civil

rights (Count  II); and  under the Massachusetts  Tort Claims

Act,  Mass. Gen.  L.  ch. 258,  for  negligence (Count  III).

Horta  also alleged that the towns  of Lakeville and Freetown

were liable to  her under the  Massachusetts Tort Claims  Act

for the  negligent actions  of Meninno, Sullivan,  and Sadeck

(Count IV), and that Chief Bowles, Chief Mello, Lakeville and

Freetown were liable to her under 42 U.S.C.    1983, 1985 and

1988 (Count  V) and under Mass.  Gen. L.    11H  and I (Count

VI).  

                                                    

6.  It  is   undisputed  that   no  non-police   vehicles  or
pedestrians were on Mason Road near the accident scene at the
time of the collision.

                             -7-

          The  defendants moved  for summary  judgment, which

the district  court granted  on July  8, 1992.7    Horta  now

appeals from the final judgment dismissing her complaint.

                                                    

7.  The  district court  separately granted  Meninno's motion
for judgment on  the pleadings  as to Count  III.   Appellant
filed  no opposition to the  motion and does  not appeal from
that portion of the district court's order.

                             -8-

                             II.                                         II.

          Horta challenges only the district court's granting

of summary judgment  on Counts  I and IV,  hence waiving  any

appeal concerning Counts II, III, V and VI.  See Fed. R. App.                                                            

P. 28(a)(3), (5); Brown v. Trustees of Boston Univ., 891 F.2d                                                               

337, 352 (1st Cir. 1989), cert. denied, 496 U.S. 937 (1990).                                                  

          We turn first to a disagreement over what materials

are properly in the summary judgment record.  Appellees moved

in  the district  court  to  strike  seven  exhibits      two

affidavits, three  newspaper articles and  other documents   

that  Horta submitted with  her opposition to  the motion for

summary  judgment.   Appellees argued,  inter alia,  that the                                                              

exhibits contained  inadmissible hearsay, were not  in proper

form,  and were not properly sworn to or certified under Fed.

R. Civ.  P. 56.    The district  court denied  the motion  to

strike without comment.   Appellees now assert that we should

disregard  the exhibits  for  purposes of  deciding, in  this

appeal, whether or not to uphold summary judgment.  See Carey                                                                         

v. Bahama Cruise Lines, 864 F.2d 201, 203 n.1 (1st Cir. 1988)                                  

("An  appellee need not cross-appeal 'to argue that there are

alternative  grounds  that   support  the  judgment  below.'"

(quoting Jasany v. United States Postal Serv., 755 F.2d 1244,                                                         

1248 n.1 (6th Cir. 1985))).

          Summary  judgment   is  to  be   decided  on   "the

pleadings,  depositions,  answers  to   interrogatories,  and

                             -9-

admissions on  file, together  with the affidavits,  if any."

Fed. R.  Civ. P. 56(c).   In addition, a court  may take into

account any  material that would  be admissible or  usable at

trial.  10A Charles Alan Wright, Arthur R. Miller &amp;  Mary Kay

Kane,  Federal Practice and Procedure    2721, at  40 (2d ed.                                                 

1983).  However, inadmissible evidence may not be considered.

Finn v. Consolidated Rail Corp., 782 F.2d 13, 16-17 (1st Cir.                                           

1986).   "Mere allegations, or conjecture  unsupported in the

record, are insufficient to raise a genuine issue of material

fact."   August v. Offices Unlimited, Inc., 981 F.2d 576, 580                                                      

(1st Cir. 1992).

          We  need   consider  only  one  of  the  challenged

exhibits as none of the others, even if admissible, would add

to  or subtract from Horta's ability to raise a genuine issue

of  material fact.  The significant exhibit is a photocopy of

a newspaper article indicating that Officer  Sadeck's cruiser

had  arrived on  the  scene  before  the  crash  and  was  so

positioned  with  Officer Sullivan's  cruiser  as  to form  a

"staggered roadblock."  This  account is contrary to  all the

other reports before  the court.   Sadeck stated  in his  own

affidavit that he was  on Route 18, not on  Mason Road (where

the crash occurred) when  he saw smoke coming from  the front

of Officer  Sullivan's cruiser and heard  Sullivan report the

collision to  the Freetown  dispatcher.  Officer  Sadeck says

that  he immediately  drove down  Mason Road  and  parked his

                             -10-

cruiser in  the westbound lane approximately  150 feet behind

Officer Sullivan's cruiser, which  was in the eastbound lane.

He exited his car, saw two  injured persons on the ground and

ran back to  his cruiser  to summon an  ambulance and  obtain

first  aid   equipment.     Officers  Meninno  and   Sullivan

corroborate  Sadeck's story,  stating that  they did  not see

Officer  Sadeck  on  the  scene until  after  the  collision.

Freetown  Police  Chief  Mello's  affidavit  states  that  an

official investigation of the  incident turned up no evidence

that Officer Sadeck  was on Mason  Road before the  collision

occurred.

          Appellant  alleged in  her  complaint that  Officer

Sadeck was on Mason Road before the collision, and had parked

his vehicle  in the westbound  lane, 150 feet  behind Officer

Sullivan's cruiser  in the eastbound lane,  to establish with

Sullivan  a  staggered  roadblock.    The  newspaper  article

offered  in  support  of  this appeared  two  days  after the

accident.   It reports Freetown Police Chief Mello as stating

that two  Freetown police  vehicles were positioned  on Mason

Road  to create  a staggered  roadblock.8   No  affidavits or

                                                    

8.  The unidentified reporter wrote, in part:

               James F. Demoranville,  40, died  of
          multiple injuries at St.  Luke's Hospital
          in  New Bedford  at  10  p.m.,  about  45
          minutes  after he  lost  control  of  his
          motorcycle and slid into  one of 2 police
          cruisers poised to slow him down. . . .

                             -11-

depositions  from  the  unidentified  newspaper  reporter  or

reporters were submitted to the court.

          This   article  should   have   been  stricken   on

appellees'  motion  and  cannot  be  considered  in  deciding

whether Horta  has raised a  genuine issue of  material fact.

See Garside v.  Osco Drug, Inc.,  895 F.2d  46, 50 (1st  Cir.                                           

1990); Bolen  v. Paragon  Plastics, Inc.,  754 F. Supp.  221,                                                    

224-25 (D. Mass. 1990).  The account is hearsay, inadmissible

at  trial to establish  the truth of the  reported facts.  In

fact, the newspaper account  is hearsay within hearsay.   See                                                                         

Fed. R. Evid.  805.  Even were appellee Chief  Mello the sole

source of  the article's information, so  that his statements

could  be regarded  as the nonhearsay  admissions of  a party

opponent,  see Fed.  R. Evid.  801(d)(2), the  article itself                          

constitutes   inadmissible    out-of-court   statements,   by

unidentified  persons,  offered to  prove  the  truth of  the

                                                    

               [] Freetown police set up  a partial
          road  block  by  staggering two  cruisers
          along the road, according to Police Chief
          Edward  Mello.  The  staggered road block
          is   designed   to  slow   down  speeding
          vehicles,  leaving  an  opening  for  the
          vehicle to continue driving, he said.

               Mr.   DeMoranville   did  slow   his
          motorcycle but  lost control of it  as he
          tried   to   avoid  hitting   a  cruiser,
          according to reports.  The motorcycle and
          its  passengers then slid  into the front
          end of one of the cruisers.

Chase  Ends in  Death, New  Bedford (Mass.)  Sunday Standard-                                 
Times, Aug. 7, 1988.

                             -12-

matter  asserted.  See Fed. R. Evid. 801(c); New England Mut.                                                                         

Life  Ins. Co. v. Anderson,  888 F.2d 646,  650-51 (10th Cir.                                      

1989).   Such inadmissible material  is not a  proper part of

the  record  for  summary  judgment  purposes.    See,  e.g.,                                                                        

Garside, 895  F.2d at  50 (refusing  to consider,  on summary                   

judgment  motion,  an  interrogatory  answer  describing  the

anticipated  testimony  of  an expert  because  it  contained

inadmissible hearsay); FDIC v. Roldan Fonseca, 795 F.2d 1102,                                                         

1110  (1st  Cir.  1986)  (refusing  to  consider  on  summary

judgment photocopies  of three  money orders offered  to show

amount  paid  on  a   note  because  they  were  inadmissible

hearsay).   Accordingly,  the  newspaper article  may not  be

regarded in  determining whether a genuine  issue of material

fact exists.

                             III.                                         III.

          Appellant alleged in Count I that  Officers Sadeck,

Meninno,  and Sullivan were liable  to her under  42 U.S.C.  

1983 because  they deprived  her of her  constitutional right

under  the  Fourth Amendment  to  be  free from  unreasonable

seizures.9   In granting summary judgment  for appellees, the

                                                    

9.  The Fourth  Amendment to the  United States  Constitution
provides:

               The right of the people to be secure
          in  their  persons,  houses, papers,  and
          effects,  against  unreasonable  searches
          and seizures, shall  not be violated, and
          no   Warrants   shall  issue,   but  upon
          probable  cause,  supported  by  Oath  or

                             -13-

district  court  ruled  that   all  three  were  entitled  to

qualified immunity.  We affirm, although on different grounds

as to Sadeck  and Meninno.  See Aunyx Corp.  v. Canon U.S.A.,                                                                         

Inc., 978 F.2d 3, 6 (1st Cir. 1992) ("We are free, on appeal,                

to affirm a judgment on any independently sufficient ground."

(citations omitted)), cert. denied, 113 S. Ct. 1416 (1993).                                              

     A.  Officer Sadeck                   A.  Officer Sadeck                                   

                                                    

          affirmation, and  particularly describing
          the place to be  searched, and the person
          or things to be seized.

42 U.S.C.   1983 provides in relevant part:

               Every person who, under color of any
          statute,  ordinance,  regulation, custom,
          or usage,  of any  State or  Territory or
          the  District  of Columbia,  subjects, or
          causes  to be  subjected, any  citizen of
          the United States  or other person within
          the    jurisdiction   thereof    to   the
          deprivation of any rights, privileges, or
          immunities  secured  by the  Constitution
          and laws,  shall be  liable to  the party
          injured  in an  action  at law,  suit  in
          equity,  or  other proper  proceeding for
          redress. . . .

          Appellant  also  alleged  in Count  I  that Sadeck,
Meninno, and  Sullivan were  liable under 42  U.S.C.    1985.
However, the   1985 claims were never discussed below, either
by the parties or the court, and the record  does not support
a    1985 claim.  See United Bhd. of Carpenters v. Scott, 463                                                                    
U.S. 825,  834-37 (1983) (reaffirming that    1985 requires a
showing  of  some racial,  or perhaps  otherwise class-based,
animus   behind  the   conspirators'  actions);   Griffin  v.                                                                     
Breckenridge, 403 U.S. 88, 102-03 (1971) (explaining elements                        
of a claim  under   1985(3)).  Hence, we  consider Count I to
include claims only under   1983.

                             -14-

          Appellant's  claim against Sadeck is based entirely

on  the allegation that he  parked his vehicle  on Mason Road

before the  collision, helping  Officer Sullivan to  create a

staggered roadblock  which led to appellant's  injuries.  The

undisputed facts on  the record show that  Officer Sadeck did

not arrive  on  Mason  Road  until after  the  accident  and,

therefore,  was  not  causally   connected  to  the  injuries

sustained by appellant.  Consequently, Sadeck was entitled to

judgment as a matter of law  on the   1983 claim against him.

See  Lossman v. Pekarske, 707  F.2d 288, 291  (7th Cir. 1983)                                    

("[T]he  principles of tort causation apply to constitutional

as to other tort suits."). 

     B.  Officer Meninno                   B.  Officer Meninno                                    

          We do not reach qualified immunity, the ground upon

which  the court  below  dismissed the    1983  claim against

Officer Meninno.  Rather, we find that Meninno is entitled to

prevail  as a matter of law because his conduct, construed in

the  light  most  favorable  to  appellant,  could  not  have

constituted a "seizure" of  her person within the  meaning of

the Fourth Amendment.

          The Supreme Court, in Brower v. County of Inyo, 489                                                                    

U.S. 593 (1989), clarified the scope of the Fourth  Amendment

in the context of police pursuits and roadblocks.

          Violation   of   the   Fourth   Amendment
          requires  an  intentional acquisition  of
          physical  control.  A seizure occurs even
          when an unintended person or thing is the

                             -15-

          object  of the  detention or  taking, but
          the detention or  taking must be willful.
          This  is implicit in  the word "seizure,"
          which  can  hardly   be  applied  to   an
          unknowing act.  . . . In  sum, the Fourth
          Amendment  addresses  "misuse of  power,"
          not the accidental  effects of  otherwise
          lawful government conduct.
               Thus,  if  a  parked and  unoccupied
          police car  slips  its brake  and pins  a
          passerby  against a  wall,  it is  likely
          that  a  tort  has  occurred,  but  not a
          violation of the  Fourth Amendment.   And
          the  situation would  not  change if  the
          passerby happened, by lucky chance, to be
          a serial murderer for  whom there was  an
          outstanding arrest warrant    even if, at
          the time  he was  thus pinned, he  was in
          the  process of  running  away  from  two
          pursuing  constables.   It  is clear,  in
          other  words,  that  a  Fourth  Amendment
          seizure  does not occur whenever there is
          a governmentally caused termination of an
          individual's  freedom  of  movement  (the
          innocent  passerby),  nor  even  whenever
          there  is  a  governmentally  caused  and
          governmentally desired  termination of an                                            
          individual's  freedom  of  movement  (the
          fleeing felon), but only when  there is a
          governmental  termination  of freedom  of
          movement   through   means  intentionally                                                               
          applied.  That is the reason there was no                             
          seizure  in  the  hypothetical  situation
          that  concerned  the  Court  of  Appeals.
          [I.e.,  a  police   chase  in  which  the
          suspect unexpectedly loses control of his
          car  and crashes.]   The  pursuing police
          car  sought to stop  the suspect  only by
          the  show  of  authority  represented  by
          flashing  lights and  continuing pursuit;
          and though he was in fact stopped, he was
          stopped by a different means     his loss
          of  control  of   his  vehicle  and   the
          subsequent crash.   If, instead  of that,
          the police cruiser  had pulled  alongside
          the  fleeing  car   and  sideswiped   it,
          producing the crash, then the termination
          of  the  suspect's  freedom  of  movement
          would have been a seizure.

                             -16-

Id. at 596-97 (citations omitted) (emphasis in original).               

          Applying the  Court's  reasoning in  Brower to  the                                                                 

present facts, it is clear  that Officer Meninno's pursuit of

the motorcycle  on which Horta was riding,  without more, was

not a Fourth Amendment seizure.   "A Fourth Amendment seizure

does not occur when a police officer turns on his blue lights

and  thereby signals the driver  of a vehicle  to pull over."

Willhauck  v. Halpin, 953 F.2d 689, 716  (1st Cir. 1991).  If                                

the  driver speeds off, pursued  by the officer,  and a crash

ensues,  this  does  not  necessarily  constitute  a seizure,

either.    Hence, if  during  the  chase here  Demoranville's

motorcycle  had accidentally  collided with  a tree  on Mason

Road  there would  plainly have been  no seizure,  as Meninno

would  not  have  terminated  Horta's  "freedom  of  movement

through means intentionally applied," (i.e.,  Meninno did not                                               

intentionally  cause  the  motorcycle  to  strike the  tree).

Brower,  489 U.S. at 597;  see, e.g., Campbell  v. White, 916                                                                    

F.2d 421,  423 (7th Cir.  1990) (holding no  seizure occurred

where  police officer accidentally collided with motorcyclist

being pursued), cert. denied, 111 S. Ct. 1314 (1991); Apodaca                                                                         

v. Rio  Arriba County  Sheriff's Dept.,  905 F.2d  1445, 1447                                                  

(10th Cir.  1990) (holding  no seizure occurred  where police

officer responding to burglar alarm  unintentionally collided

with bystander's  vehicle); Roach v.  City of  Fredericktown,                                                                        

882  F.2d  294, 296  (8th  Cir.  1989)  (holding  no  seizure

                             -17-

occurred where police officer  did not intend pursuit  to end

by means of a collision with another vehicle).  

          By  the  same  token,  it is  not  sufficient  that

Meninno pursued and the pursuit resulted in a collision  with

another  police   vehicle.     Even  if  Officer   Sullivan's

independent  conduct in blocking the lane were deemed to be a

Fourth  Amendment seizure,  see  infra  Part III.C.,  Officer                                                  

Meninno  did  not  necessarily  share responsibility.    "The

Supreme  Court  in  Brower  carefully  distinguished  between                                      

police action  directed toward producing  a particular result                                          

    in Fourth Amendment parlance, 'an intentional acquisition

of physical control'    and  police action that simply causes                                                                         

a particular  result.   Unless  the restraint  of liberty  at

issue  resulted  from  an  attempt to  gain  control  of  the

individual,  the  Court  stated,  there has  been  no  Fourth

Amendment seizure."   Landol-Rivera  v. Cruz Cosme,  906 F.2d                                                              

791,  795  (1st  Cir.  1990)  (emphasis  in  original).    To

establish that  Meninno seized her, appellant  must show that

the collision  with Officer Sullivan's cruiser  was the means

intended by Meninno to end the pursuit.                                 

          Reading the  record in the light  most favorable to

appellant,  there is  no  basis for  a jury  to  find that  a

collision  between the motorcycle  and another police vehicle

was  the means intended by Meninno  to terminate the pursuit.

Meninno himself attempted  to stop the  motorcycle only by  a

                             -18-

show of authority, i.e.,  his flashing lights and siren.   He

did not request  the Lakeville police to establish  a partial

roadblock, nor is there anything to show that he contemplated

forcing the fleeing motorcycle into a collision.  

          Appellant   asserts   that  Meninno   intentionally

brought about the collision  by "herding" the motorcycle into

Sullivan's cruiser.   But Meninno's cruiser did not touch the

motorcycle; he consistently matched his speed to  that of the

motorcycle and  maintained a distance  of a few  hundred feet

behind.  Demoranville slowed down (to  thirty miles per hour)

and  sped up  (to seventy-five  miles per  hour) a  number of

times  during the  chase.   Nothing prevented  the motorcycle

operator from slowing  down and stopping  had he so  desired.

It was  Demoranville, not Meninno,  who elected to  head into

Freetown and to turn onto Mason Road.  

          Meninno,  moreover,  never  proposed nor  discussed

with anyone the idea  of blocking the traffic lane.   Officer

Sullivan  volunteered his  assistance,  and Officer  Meninno,

though in radio contact with Sullivan,  had no authority over

him.  Sullivan's  decision to  park his car  in the  oncoming

traffic lane of Mason Road  was made independently and, until

just before the crash,  without Meninno's knowledge.  Meninno

was first informed,  by radio, of the  partial roadblock when

Officer  Sullivan  told  him  to  "back  off,"  approximately

                             -19-

fifteen seconds before the  collision.  Meninno said  that he

did slow down, although the motorcycle kept going.

          We  hold  that  appellant  did  not  produce  facts

creating a genuine issue  as to whether the motorcycle-police

cruiser collision  was the means intended  by Officer Meninno

to  terminate appellant's  freedom of  movement.10   Appellee

Meninno was entitled to summary judgment on Count I.

     C.  Officer Sullivan                   C.  Officer Sullivan                                     

          The  district court found  appellee Sullivan  to be

protected  by  qualified  immunity  from  appellant's    1983

claim. 

          Appellant  challenges  the  finding   of  qualified

immunity, first arguing  that Sullivan was  not engaged in  a

"discretionary function" when he  participated in the pursuit

of  appellant  and  Demoranville.     His  actions  were  not

discretionary, she  argues, because the Town  of Freetown had

in effect high speed guidelines which governed his conduct. 

          In   its   landmark  case   establishing  qualified

immunity  doctrine, the  Supreme  Court  indeed  stated  that

"government  officials  performing  discretionary  functions,                                                                        

generally  are  shielded  from liability  for  civil  damages

                                                    

10.  We do not consider  to what extent, if any,  appellant's
claim of a Fourth Amendment seizure is weakened by her status
as a mere  passenger on  the motorcycle,  not the  motorcycle
operator being pursued by the police for violation of traffic
laws.   See Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795-96                                                   
(1st Cir. 1990).

                             -20-

insofar as their conduct does not violate clearly established

statutory or  constitutional  rights of  which  a  reasonable

person would  have known."   Harlow  v. Fitzgerald,  457 U.S.                                                              

800, 818 (1982)  (emphasis supplied).   But in  spite of  the

reference  to   discretionary functions,  it has  never since

been  clear  exactly  what  role,  if  any,  this concept  is

supposed  to  play in  applying  qualified  immunity.   Judge

Cummings, writing  for the  Seventh Circuit, warned  that "it

would be unwise to engage in a case  by case determination of

Section  1983  immunity  based  upon  the  ministerial versus

discretionary  nature   of   the  particular   official   act

challenged."   Coleman v. Frantz, 754 F.2d 719, 727 (7th Cir.                                            

1985).  Judge Arnold, writing for the Eighth Circuit, said,

          The  distinction between  ministerial and
          discretionary duties  of public officials
          has  a   long  history.     However,  the
          plaintiffs  have cited, and  we can find,
          no recent case other than that  before us
          in which  a court has  rejected qualified
          immunity simply because  the official  in
          question  was  performing  a  ministerial
          duty.

McIntosh v. Weinberger, 810  F.2d 1411, 1432 (8th  Cir. 1987)                                  

(citations omitted), partially vacated  and remanded on other                                                                         

grounds sub nom.  Turner v. McIntosh, 487 U.S. 1212 and cert.                                                                         

denied,  487  U.S.  1217  (1988).    See  Gagne  v.  City  of                                                                         

Galveston, 805  F.2d 558, 559  (5th Cir. 1986)  (holding that                     

officials do not lose qualified immunity merely because their

conduct violates some unambiguous statutory or administrative

                             -21-

provision), cert. denied, 483 U.S. 1021 (1987); see also F.E.                                                                         

Trotter,  Inc. v. Watkins,  869 F.2d 1312,  1314-15 (9th Cir.                                     

1989); cf. Ricci v.  Key Bancshares of Maine, Inc.,  768 F.2d                                                              

456, 464 (1st Cir. 1985) ("[B]reaking down discretionary acts

. . . into  discretionary  and  ministerial components  would

seem  to  vitiate much  of  the  protection of  discretionary

action which absolute immunity was designed to provide."). 

          Since   Harlow  the   Supreme  Court   has  neither                                    

repudiated  nor  much  explained  the  role of  discretionary

functions relative to qualified  immunity.  However, in Davis                                                                         

v.  Scherer,  468 U.S.  183  (1984),  the  Court rejected  an                       

argument  almost  identical  to  the  one  put  to  us  here.

Officials  being sued  for alleged  constitutional violations

were  accused  of  having   ignored  the  commands  of  state

administrative   regulations,  and   hence  of   violating  a

ministerial rather than  a discretionary duty.   Id. at  193,                                                                

196  &amp; n.14.   Because of this,  it was argued  that they had

forfeited any claim to qualified immunity.  In rejecting this

contention, the Court made two points:   first, the officials

could lose their  immunity only  if the breach  of the  state

regulation rather than of a  constitutional duty gave rise to

plaintiff's damages claim; and, second, the officials' duties

were  not merely  ministerial,  as the  officials retained  a

considerable measure  of personal discretion  in applying the

administrative regulations.  Id. at 196 &amp; n.14.                                            

                             -22-

          The same  factors bar appellant's claim  here.  The

damages  claim  in Count  I is  based  on a  purported Fourth

Amendment violation, not upon the breach of the Freetown high

speed   pursuit  guidelines.    And  the  pursuit  guidelines

required   Sullivan   to   exercise   discretion   in   their

interpretation.11 

          Generally,     police     exercise     "inescapably

discretionary  functions replete with  close judgment calls."

Gooden  v. Howard County, 954  F.2d 960, 964  (4th Cir. 1992)                                    

(en  banc).    The promulgation  by  a  police department  of

general guidelines and standard procedures does not transform

police officers' discretionary actions into ministerial ones.

"A  law that  fails to  specify the  precise action  that the

official   must   take   in  each   instance   creates   only

discretionary authority . . . ."  Davis v.  Scherer, 468 U.S.                                                               

at  197  n.14.     The  Freetown  guidelines,  an  eight-page

collection  of  rules  and  suggestions  labeled  "High Speed

                                                    

11.  Confusingly, appellant also argues at some points in her
brief that Freetown did not  have guidelines in place, citing                                       
three documents from  Freetown public  records which  suggest
that  a new set of high speed pursuit guidelines were adopted
in late 1988, after the collision.  These documents, however,
are not  inconsistent with  the uncontradicted  statements by
appellees Sullivan and Mello  that written guidelines were in
effect on August 5, 1988.

     It would  weaken    and not help    appellant's position
were  it to  be found  that no  guidelines existed  governing
Sullivan's actions.   With no rules  or regulations to  guide
his  decision  making,  Sullivan's  decision to  aid  in  the
pursuit  and block off  the lane would  necessarily have been
discretionary.

                             -23-

Pursuit      General  Considerations  and  Guidelines,"  left

Sullivan with a  substantial amount of discretion as  to when

and how to conduct and terminate high speed pursuits.  

          We  conclude  that   insofar  as  the   concept  of

discretionary  function is  relevant at  all in  the immunity

sphere, Sullivan was engaged in a discretionary function.

          The more  serious question under Harlow  is whether                                                             

Sullivan   violated  a   clearly  established   statutory  or

constitutional right  of  which a  reasonable police  officer

would  have known.  The theory of appellant's   1983 claim is

that Sullivan violated her  rights under the Fourth Amendment

to be free  from unreasonable seizures by  placing his police

car  in the  traffic  lane in  which  he knew  appellant  and

Demoranville were traveling at  high speed.  Appellant argues

that a reasonable police officer would have known that, under

clearly established law, this sort of a partial roadblock was

unlawful.

          Appellant  has the burden of demonstrating that the

law  on this issue was clearly established on August 5, 1988.

Davis,  468  U.S.  at  197.    For  a  right  to  be  clearly                 

established,   "[t]he  contours   of   the   right  must   be

sufficiently   clear   that  a   reasonable   official  would

understand  that  what  he  is doing  violates  that  right."

Anderson  v. Creighton,  483  U.S. 635,  640  (1987).   While                                  

appellant need not show that "the very action in question has

                             -24-

previously been held  unlawful," she must  show that, in  the

light  of preexisting  law,  the unlawfulness  of the  action

would have  been apparent  to the reasonable  police officer.

Id.                 

          The Supreme  Court required  "any assessment as  to

whether police  conduct amounts to a  seizure implicating the

Fourth Amendment . . .  [to] take into  account '"all of  the

circumstances  surrounding the incident"'  in each individual

case."   Michigan v.  Chesternut, 486  U.S.  567, 572  (1988)                                            

(citations  omitted).   There  must  be a  balancing  of "the

nature  and  quality of  the  intrusion  on the  individual's

Fourth  Amendment  interests  against the  importance  of the

governmental  interests  alleged to  justify  the intrusion."

Tennessee  v.  Garner,  471   U.S.  1,  8  (1985)  (citations                                 

omitted).  "[W]henever a  balancing of interests is required,

the facts of  the existing caselaw must closely correspond to

the contested action before the defendant official is subject

to liability under Harlow."  Benson v. Allphin, 786 F.2d 268,                                                          

276 (7th Cir.), cert. denied, 479 U.S. 848 (1986); see Medina                                                                         

v.  City of  Denver, 960  F.2d 1493,  1498 (10th  Cir. 1992);                               

Frazier  v.  Bailey,  957  F.2d 920,  931  (1st  Cir.  1992).                               

Consequently, appellant here  must demonstrate  that, by  the

time in  question,  there were  fairly  analogous  precedents

establishing that  Sullivan's conduct violated  a plaintiff's

Fourth Amendment right to be free from unreasonable seizures.

                             -25-

          The hodgepodge of  cases cited by appellant12  show

the opposite:  it was  not  at all  clear  at the  time  that

Sullivan's  actions  violated  a  person's  Fourth  Amendment

rights.   As discussed below,  Brower v. County  of Inyo, 489                                                                    

U.S.  593  (1989),  holding  that a  total  roadblock  (i.e.,                                                      

tractor trailer  placed broadside  across entire road)  was a

seizure, was not decided until seven months after the present

events  had occurred.    The strongest case  decided prior to

this incident  in appellant's favor was Jamieson v. Shaw, 772                                                                    

F.2d  1205 (5th    Cir. 1985),  in  which the  plaintiff  was

seriously injured when the  car in which she was  a passenger

struck  a "deadman's"  roadblock placed  across a  highway by

defendant police  officers.   Id.  at 1206.   "The  roadblock                                             

consisted of an unlighted police  car parked laterally in the

                                                    

12.  We have considered  all of the cases cited  by appellant
and discuss  only the  ones which  best support her  argument
that Sullivan  violated clearly established  Fourth Amendment
rights.

     Appellant cites one decision  from Texas which found the
use of an unlit, total roadblock to stop speeding motorcycles
to be an unconstitutional  excessive use of force.   See City                                                                         
of Amarillo v. Langley, 651 S.W.2d 906, 913-14 (Tex. Ct. App.                                  
7th  Dist.  1983).   The Langley  court  did not  discuss the                                            
Fourth Amendment.  As  far as we can tell, appellant  has not
alleged that  Sullivan violated her  substantive due  process
rights to be free from excessive force.  Even if she had, the
Supreme  Court made clear in  Graham v. Connor,  490 U.S. 386                                                          
(1989), that where "the  excessive force claim arises in  the
context of an arrest or investigatory stop of a free citizen,
it  is  most  properly  characterized  as  one  invoking  the
protections of the Fourth Amendment . . . ."  Id. at 394; see                                                                         
Landol-Rivera  v. Cruz  Cosme, 906  F.2d  791, 796  (1st Cir.                                         
1990).

                             -26-

middle of the highway just over the crest of a hill.  Just as

[the pursued] car, still  traveling at a high rate  of speed,

reached the top  of the  hill, [a police  officer] flashed  a

bright   spotlight  in  [the  driver's]  eyes,  blinding  him

momentarily  and causing him to  lose control of  the car and

crash into the roadblock."  Id. at  1207.  The Jamieson court                                                                   

held  that plaintiff's  complaint stated  a claim  cognizable

under  the Fourth  Amendment,  but did  not resolve  whether,

under  the   circumstances,  the  police   officers'  actions

actually constituted  an unreasonable seizure.   Id. at 1211;                                                                

see  also Stanulonis v. Marzec,  649 F. Supp.  1536, 1545 (D.                                          

Conn. 1986)  (holding that creating  "an immediate risk  of a

collision" by placing police car in path of speeding  vehicle

could constitute use of excessive force).

          In direct contrast  to Jamieson, the Ninth  Circuit                                                     

decided in 1987  that such a total roadblock was not a Fourth

Amendment  violation.  See Brower v. County of Inyo, 817 F.2d                                                               

540  (9th  Cir. 1987),  rev'd, 489  U.S.  593 (1989).   After                                         

pursuing  a  suspect at  high  speeds for  twenty  miles, the

defendant police  officers decided  to create a  roadblock to

stop him.  Id., 817 F.2d at 542.  A tractor-trailer truck was                          

placed across the highway to block both lanes of the two-lane

highway.  Id.   Plaintiffs alleged that  the police concealed                         

the roadblock by  placing it  behind a curve  and leaving  it

unilluminated.  Brower,  489 U.S.  at 594.   The police  then                                  

                             -27-

positioned  a police car in front of the tractor trailer with

its headlights  purposely aimed  to blind the  suspect as  he

approached the unlit roadblock.  Id.                                                

          The Ninth  Circuit held that use  of this roadblock

did not implicate the Fourth Amendment.  

          Although  Brower  was   stopped  in   the
          literal  sense  by  his  impact  with the
          roadblock,  he  was not  'seized'  by the
          police   in  the   constitutional  sense.
          Prior to his failure to stop voluntarily,
          his   freedom   of  movement   was  never
          arrested or restrained.  He had  a number
          of opportunities to  stop his  automobile
          prior to the impact.

               An  analogous   situation  arose  in
          Galas [v. McKee,  801 F.2d 200 (6th  Cir.                                     
          1986)] where a  police officer engaged in
          a  high-speed chase of  a fleeing traffic
          offender.    The  chase  ended  when  the
          fleeing driver lost control  and crashed.
          The question arose whether the  crash was
          a "seizure" under  the fourth  amendment.
          The court  concluded that there  had been
          no  seizure  by  the  police  because the
          officers had failed  to impose  restraint
          on  the individual's  freedom to  stop or
          drive away. . . .

               We  agree  with the  Galas decision.                                                     
          In  this case,  as the  twenty-mile chase
          makes plain, Brower consciously  chose to
          avoid official restraint.  That decision,
          an exercise of autonomy, cannot fairly be
          viewed  as a  "seizure"  by  the  police,
          under  the  fourth  amendment.   Brower's
          seizure,  if any,  was the result  of his
          own    effort   in    avoiding   numerous
          opportunities to stop.

Brower, 817 F.2d at 546; see also Reed v. County of  Allegan,                                                                        

688 F. Supp. 1239, 1243 (W.D. Mich. 1988) (applying the Ninth

                             -28-

Circuit's Brower decision to hold that use of a roadblock did                            

not constitute a seizure).  

          The Supreme  Court subsequently reversed  the Ninth

Circuit's decision in Brower, holding that a "seizure" within                                        

the  meaning  of  the  Fourth  Amendment  had  occurred,  and

remanded the case for a finding as to whether the seizure was

"unreasonable."  Brower v.  County of Inyo, 489 U.S.  at 599-                                                      

600.    However,  as  we  have  stated, the  Supreme  Court's

decision  in Brower was issued in March of 1989, seven months                               

after the Mason Road incident.13                 

          Where at  the time of the  present occurrence there

were conflicting circuit decisions as  to whether or not even

the   more  deadly  full  roadblocks  were  unconstitutional,                                    

Sullivan's parking of his illuminated  cruiser in one lane of

a  straightaway  cannot  be  said to  have  violated  clearly

established rights.

          Appellant  argues   that   it  had   been   clearly

established in Tennessee v.  Garner, 471 U.S. 1 (1985),  that                                               

the use of  deadly force  to seize  an unarmed,  nondangerous

suspect  violates the Fourth Amendment, id. at 11.  According                                                       

to  appellant,   a  reasonable  police  officer   would  have

analogized  the   use  of   the  present  roadblock   to  the

                                                    

13.  Appellant  suggests  that  a  reasonable  police officer
would  have realized  that  the Ninth  Circuit's decision  in
Brower was  incorrect because  the Supreme Court  had already                  
granted  certiorari on August 5, 1988.  Clairvoyance is not a
prerequisite for qualified immunity.

                             -29-

intentional  shooting  of   a  fleeing  suspect.     However,

Tennessee v. Garner applied only to "seizures" and it was not                               

yet  clear  that   a  stopping  by  a   roadblock  might,  in

appropriate circumstances,  be a seizure.  Id.  at 7; Brower,                                                                        

817  F.2d at 546; Fernandez  v. Leonard, 784  F.2d 1209, 1217                                                   

(1st Cir. 1986).  Four years elapsed before the Supreme Court

held in Brower that a roadblock could be a "seizure."  During                          

this  period the Ninth  Circuit rejected the  argument that a

roadblock fell  into the "seizure" category.  See Brower, 817                                                                    

F.2d  at 546-47  (distinguishing Tennessee  v. Garner  on the                                                                 

grounds that use of a  roadblock is not a seizure).   Nor was

it clear to all federal courts that a successful roadblock or

high  speed pursuit ending in a crash constituted the "use of

deadly force."   Compare Reed  v. County of  Allegan, 688  F.                                                                

Supp.  at 1243 (holding that a  roadblock does not constitute

use of deadly  force) with Moyer v. Dunn County, 691 F. Supp.                                                           

164,  170-71 (W.D.  Wis.  1988) (suggesting  that high  speed

pursuit of  suspect resulting in collision with police car or

off-road crash could constitute use of deadly force).

          As  it  stood  at  the time  this  tragic  accident

occurred, the law was  not so clear that a  reasonable police

officer would know that establishing  an illuminated, partial

roadblock  at  the  end  of a  straightaway  violated  Fourth

Amendment rights.  Because Sullivan did not violate a clearly

established   right  of   appellant's,  the   district  court

                             -30-

correctly found  that he  was entitled to  qualified immunity

from a claim under 42 U.S.C.   1983.

          In holding  that Sullivan is  entitled to qualified

immunity,  we  do  not mean  to  imply  that  on the  present

showing, there would otherwise necessarily be a triable issue

concerning whether or not  this partial roadblock amounted to

a seizure under the Fourth Amendment.  We need not reach that

question.    It may  be that  the  illuminated blocking  of a

single lane at  a point  some distance from  where the  block

could  be seen by the  pursued vehicle would  not amount to a

seizure.  On the other hand, the converse can be argued.  See                                                                         

Brower, 489 U.S. at 598-99.  We leave that  issue for another                  

day.  What is abundantly  clear is that, on the  law existing

at  the time of the  events in question,  a reasonable police

officer would  not  have  known  that the  partial  block  in

question violated the Fourth Amendment.

                             -31-

                             IV.                                         IV.

          In  Count IV,  appellant alleged  that the  Town of

Lakeville  and   Town  of  Freetown  are   liable  under  the

Massachusetts Tort Claims Act, Mass. Gen. L. ch. 258,    1 et                                                                         

seq., for the allegedly negligent actions of Officers Meninno                

and   Sullivan,   respectively.14     A   public   employer's

liability  for the negligence of  its employees is created by

section 2 of Chapter 258, which provides in relevant part:

               Public employers shall be liable for
          injury  or loss  of property  or personal
          injury or death  caused by the  negligent
          or wrongful act or omission of any public
          employee while acting within the scope of
          his  office  or employment,  in  the same
          manner  and  to  the  same  extent  as  a
          private     individual     under     like
          circumstances, . . . .

Mass.  Gen.  L. ch.  258,    2.   The  liability of  a public

employer under  section 2  is subject to  several exceptions,

including  the  "discretionary function"  exception  found in

Mass. Gen. L. ch. 258,   10(b):

          The provisions of  sections one to eight,
          inclusive, shall not apply to:    

               (a) . . .

               (b)   any   claim  based   upon  the
          exercise or performance or the failure to
          exercise   or  perform   a  discretionary

                                                    

14.  Appellant also alleged that  Freetown was liable for the
negligence of the third police  officer, Sadeck.  However, as
explained in Part III.A.,  there is nothing in the  record to
support a finding that Sadeck was in any way involved  in the
pursuit and  collision which injured appellant.   His actions
are not actionable under Mass. Gen. L. ch. 258,   2.

                             -32-

          function or duty on  the part of a public
          employer   or  public   employee,  acting
          within   the  scope  of   his  office  or
          employment, whether or not the discretion
          involved is abused;
          . . . .

Mass. Gen. L. ch. 258,   10.

          We agree  with  appellant that  the district  court

erred in reasoning that  because the police officers' actions

were "discretionary" for  the purposes of  qualified immunity

under federal law, they  were also performing  "discretionary

functions" for the purposes of the   10(b) exception.   As we

have  already explained,  supra,  it would  be the  rare case                                           

indeed where an officer  is denied qualified immunity because

the officer is found to have engaged  in "ministerial" rather

than  "discretionary" conduct.    The discretionary  function

exception  in both  the Massachusetts  and the  Federal Torts

Claims  acts  is  altogether different  from  whatever narrow

exception   may   still   exist  under   immunity   law   for

nondiscretionary  ("ministerial") conduct.   "Because  of the

limitation  of the  [  10(b)]  exemption to  conduct that  is

policymaking or planning,  the words 'discretionary function'

are somewhat misleading  as a  name of the  concept."   Harry                                                                         

Stoller &amp; Co.  v. City of Lowell,  412 Mass. 139,  587 N.E.2d                                            

780, 783  (1992) (hereinafter Stoller).   The proper approach                                                 

is to  apply Massachusetts law on  the discretionary function

exception to appellant's Massachusetts Tort Claims Act claims

against Lakeville and Freetown.  

                             -33-

          After extensive consideration of Massachusetts case

law on the discretionary function exception, we are unable to

determine  whether the  exception applies  to the  actions of

Officer  Meninno.  Because answering that question implicates

important policy  questions under Massachusetts state law, we

certify  the  question  to  the  Supreme  Judicial  Court  of

Massachusetts.   As  for the  liability of  Freetown  for the

actions  of Officer Sullivan, we find in Section B infra that                                                                    

the  district court prematurely  granted summary judgment for

Freetown because there  is a genuine  issue of material  fact

regarding  Sullivan's discretion  to engage in  the allegedly

tortious conduct.

     A. Liability of Lakeville for Meninno's Conduct                 A. Liability of Lakeville for Meninno's Conduct                                                                

          1.   Discretionary   Function  Exception   Doctrine                      1.   Discretionary   Function  Exception   Doctrine                                                                         

Appellee Lakeville  argues that  it is immune  from liability

under the  Massachusetts  Tort Claims  Act because  Meninno's

conduct falls within the discretionary function exception  of

section  10(b),  Mass.  Gen.  L.  ch.  258,     10(b).    The

discretionary  function exception  was  first  introduced  in

Massachusetts  in Whitney  v. Worcester,  373 Mass.  208, 366                                                   

N.E.2d  1210  (1977),  which preceded  enactment  of  section

10(b).  The Whitney court distinguished immune from nonimmune                               

conduct by  drawing a dividing line  "between those functions

which rest  on the exercise  of judgment  and discretion  and

represent planning and policymaking and those functions which

                             -34-

involve the implementation and execution of such governmental

policy or planning."  Id., 366 N.E.2d at 1216.  Massachusetts                                     

courts still  rely on the  analysis in Whitney  as containing                                                          

"guiding  principles  for   determining  the  scope   of  the

discretionary function  exception."   Stoller, 587 N.E.2d  at                                                         

783.  Massachusetts courts also look for guidance  to federal

court  decisions  interpreting  the   discretionary  function

exception of the Federal Torts Claims Act ("FTCA"), 28 U.S.C.

  2680(a).   Id.  After the Massachusetts legislature adopted                            

section  10(b), the  test for  whether particular  conduct is

within the  exception evolved  over the years  as the  courts

confronted the  application of the exception  to various fact

scenarios.      Like  the   federal   discretionary  function

exception, see id., the Massachusetts doctrine has not always                              

developed along a straight  and clear line.  Compare  Cady v.                                                                      

Plymouth-Carver Regional  Sch. Dist., 17 Mass.  App. Ct. 211,                                                

457   N.E.2d  294   (1983)  (holding   that  a   function  is

discretionary if there is  no "fixed or readily ascertainable

standards  to fall back upon") and Kelley v. Rossi, 395 Mass.                                                              

659,  481 N.E.2d 1340, 1344  n.6 (1985) (using  the "fixed or

readily  ascertainable standard"  test of  Cady) and  A.L. v.                                                                      

Commonwealth,  402 Mass.  234, 521  N.E.2d 1017,  1024 (1988)                        

(same) with Stoller, 587 N.E.2d  at 784 n.2 (criticizing Cady                                                                         

test and asserting that the S.J.C. had never adopted it).

                             -35-

          For years, courts relied upon a distinction between

activities that  occur  at the  "planning" and  "operational"

levels  of government  to decide  whether certain  conduct is

immune  from liability.   See  Patrazza v.  Commonwealth, 398                                                                    

Mass. 464, 497  N.E.2d 271,  274 (1986).   The Supreme  Court

questioned this distinction in  United States v. S.A. Empresa                                                                         

de Viacao Aerea  Rio Grandense (Varig Airlines), 467 U.S. 797                                                           

(1984),  and recently in United States v. Gaubert, 111 S. Ct.                                                             

1267  (1992),  the  Court  expressly  rejected the  planning-

operational distinction.

          A discretionary act is one  that involves
          choice or judgment;  there is nothing  in
          that description  that refers exclusively
          to  policymaking  or planning  functions.
          Day-to-day management of banking affairs,
          like the management of  other businesses,
          regularly require judgment as to which of
          a  range  of permissible  courses  is the
          wisest.    Discretionary  conduct is  not
          confined to the policy or planning level.
          "[I]t  is  the  nature  of  the  conduct,
          rather than the status of the actor, that
          governs    whether   the    discretionary
          function  exception  applies  in a  given
          case."  Varig Airlines, [] at 813, 104 S.                                            
          Ct., at 2764.

Gaubert  at 1267.    Whether an  official's duties  primarily                   

involve operations and administration as opposed to  planning

is irrelevant  because  "it is  the  nature of  the  conduct,

rather than the status of the actor, that governs whether the

discretionary function  exception applies  in a  given case."

Varig Airlines,  467  U.S. at  813;  see Attallah  v.  United                                                                         

States, 955 F.2d 776, 783 (1st Cir. 1992).  The Court instead                  

                             -36-

articulated a two-part test,  developed in Varig Airlines and                                                                     

Berkovitz  v. United States, 486  U.S. 531 (1988).   The FTCA                                       

discretionary  function exception  applies  if, (1)  the  act

involved  an  element of  judgment  or choice,  and,  (2) the

action  or decision  was  based on  considerations of  public

policy.  Gaubert at 1273-74.                            

          The  Massachusetts  Supreme  Judicial  Court  cited

Gaubert with  approval in  Stoller, its most  recent decision                                              

construing section 10(b), and  apparently adopted much of its

reasoning.   The  S.J.C.  rejected  the  planning-operational

distinction,  writing  that, "[e]ven  decisions  made at  the

operational  level, as opposed to those made at the policy or

planning  level,  would  involve  conduct  immunized  by  the

discretionary  function exception  if  the  conduct were  the

result of policy determinations."  Stoller, 587 N.E.2d at 784                                                      

(citing  Gaubert).  Stoller held that the proper test is: (1)                                       

whether  the governmental  actor  had discretion  as to  what

course   of  conduct   to   follow,  and   (2)  whether   the

discretionary conduct involves policymaking or planning.  Id.                                                                         

at  782-83.     If  both  elements  are  present,   then  the

discretionary function exception applies.  

          2. Application of Stoller Test to Meninno's Conduct                      2. Application of Stoller Test to Meninno's Conduct                                                                         

To  apply the two-part test  here, we first  must define what

conduct  or  course  of   action  taken  by  Officer  Meninno

appellant claims was negligent.  She does not allege that her

                             -37-

injury came about because  Meninno operated his vehicle  in a

negligent manner  while  pursuing the  motorcycle.    Compare                                                                         

Gaubert, 111  S. Ct. at  1275 n.7  ("If one of  the officials                   

involved in  this [bank regulation] case  drove an automobile

on  a   mission  connected  with  his   official  duties  and

negligently collided  with another  car, the  exception would

not apply.").  Instead,  she apparently claims that Meninno's

decision to keep pursuing the motorcycle for  3.2 miles after                    

it failed to stop was  negligent.15  She proposes to show  at

trial  that  a  reasonable  police  officer  would  not  have

persisted in such a pursuit under the circumstances.

          The  first element  of  the discretionary  function

test  set  out  in  Stoller  is  whether  Meninno  "had   any                                       

discretion  at all as to  what course of  conduct to follow."

Stoller,  587 N.E.2d  at 782.   A  governmental actor  has no                   

discretion  if  "a course  of  action  was  prescribed  by  a

statute, regulation,  or established agency  practice."   Id.                                                                         

Appellant  concedes in  her brief  that, under  the Lakeville

"High Speed Pursuit  General Considerations and  Guidelines,"

Meninno had discretion  to make the final decision  to pursue

at  high speed,  but  argues that  the guidelines  completely

regulate the  manner in which an officer  conducts a pursuit,

                                                    

15.  As  discussed  in  Part  III.B.  supra,  appellant  also                                                       
alleged that Meninno "herded"  the motorcycle into Sullivan's
parked  vehicle.    Nothing   in  the  record  supports  this
allegation.

                             -38-

leaving Meninno  no discretion  to make policy  judgments and

mandating his every move.

          We  find  this   argument  unpersuasive.    Whether

Meninno properly weighed the guideline factors in deciding to

pursue  is perhaps open to  debate,16 but if     as appellant

                                                    

16.  The first  pages of  the guidelines explain  the general
policy of Lakeville regarding high speed pursuits:

               As a general  statement, high  speed
          pursuit  is  not recommended  or favored.
          This is because  the potential danger  to
          the  officer  and   the  general   public
          outweighs  the   potential  advantage  of
          apprehending  a  fleeing vehicle  by such
          means.  Stated simply, pursuit is clearly
          inappropriate  when  the  pursuit  itself
          endangers  life more  than the  escape of
          the   person   pursued.     Delay,  while
          distasteful, may be the wiser choice when
          the person  is known and he  or she poses
          no immediate threat to the community.

               Under     certain     circumstances,
          however,  continuous  high speed  pursuit
          may be authorized.  When  such pursuit is
          undertaken,  the  purpose  should  be  to
          apprehend quickly and safely. . . . 

               When    the    pursuit   would    be
          authorized,  each  officer  must use  his
          discretion in determining whether  or not
          to commence a chase.  Many factors should
          have a bearing on his choice, but some of
          the major ones may be listed:

               1. road conditions;
               2. traffic conditions;
               3. time of day;
               4. type of vehicle involved;
               5. nature of the offense.

               Once made, the decision to pursue is
          not   irrevocable,   and   it    is   the
          intelligent  officer  who  knows when  to

                             -39-

has  conceded    the call  was within his  authority to make,

the  existence of rules governing the manner of the chase did

not  remove  his discretion.    These  rules forbade  certain

conduct, such  as pursuing  while nonpolice personnel  are in

the  police cruiser;  and  they mandate  other conduct,  like

wearing  a seat  belt.   The  crucial  decisions, however    

including  whether and when to begin a pursuit, what speed to

maintain  during it, how  close to tail  the pursued vehicle,

and how and when to terminate  the pursuit    are left to the

officer's  discretion.17   For  example, the  only  guideline

that  speaks to  the  question of  when  to stop  pursuing  a

vehicle states: "[T]he officer  in pursuit shall  voluntarily

abandon  pursuit when  he determines  that conditions  of the

                                                    

          discontinue the chase.  Briefly, and as a
          general rule of thumb, it is often better
          to  abandon the pursuit where the risk of
          danger  to  himself or  to the  public is
          high  or weather  or road  conditions are
          poor.  The experience and common sense of
          each officer should also guide him in his
          decision.

17.  Horta  also points to the following guideline provision:
"[A] continuing high speed  pursuit . . . is  authorized, but
only when the pursuing  officer . . . has  reasonable grounds
to arrest  the person pursued for  a serious felony .  . . or
when  the vehicle being pursued  is being operated  in such a
manner as to endanger the public."

     Horta  argues  that there  was  no evidence  of  a prior
felony.   However, Meninno was entitled to determine that the
motorcycle was endangering public safety.  In his deposition,
Meninno  testified  that  the  motorcycle  veered   into  the
oncoming lane at  times and, at  one point, drove close  to a
group  of pedestrians on  the roadside, causing  them to jump
back.  In his opinion, the motorcycle driver was intoxicated.

                             -40-

road, weather, traffic  or other  factors necessitates  [sic]

abandonment."   This,  like the  other  guidelines, is  not a

strict rule  prescribing certain conduct.   Assuming  Meninno

had  discretion to determine whether or not to pursue, we can

find nothing in the  regulations that removed that discretion

on  the facts  of this  case.   Accordingly, Meninno  had the

requisite discretion prescribed in Stoller.                                                      

          "The  second  and far  more  difficult  step is  to

determine whether  the discretion that  the actor had  is the

kind of discretion for  which section 10(b) provides immunity

from  liability."     Stoller,  587  N.E.2d  at  782.     The                                         

discretionary    function    exception,   under    both   the

Massachusetts  Tort Claims  Act and  the Federal  Tort Claims

Act, provides  immunity only for discretionary  "conduct that

involves  policymaking  or  planning."    Id.  at  783.   The                                                         

question  is not whether the  employee worked at a "planning"

or "operational" level, but whether  the type of decision  or

action  at issue, by whatever level employee, is one based on

considerations of governmental policy.  Id.  at 784; see also                                                                         

Gaubert, 111 S. Ct.  at 1275-76; Varig Airlines, 467  U.S. at                                                           

813.    Not only  broad,  abstract  decisions of  policy  are

immune.  Discretionary functions include specific, individual

applications  of  policy,  "those  [decisions]  in   which  a

government official  determines what action to  take based on

an   individual,  case-by-case  analysis  and  in  which  his

                             -41-

decision includes elements of judgment and discretion."  Pina                                                                         

v.  Commonwealth, 400 Mass.  408, 510 N.E.2d  253, 257 (1987)                            

(quoting Bartel v. Federal Aviation Admin., 617 F. Supp. 190,                                                      

196 n.29 (D.D.C. 1985)); Patrazza, 497 N.E.2d at 274.                                             

          This  is obviously  not a  bright-line rule,  and a

court must assess cases  on their facts, keeping in  mind the

purposes of  the discretionary function exception.   Stoller,                                                                        

587  N.E.2d at 783.   Only  discretionary acts  and decisions

based on considerations of public policy are exempted because

"the  purpose  of  the  exception  is  to  'prevent  judicial

"second-guessing" of legislative and administrative decisions

grounded in  social, economic,  and political policy  through

the medium  of an action in  tort.'"  Gaubert, 111  S. Ct. at                                                         

1273  (quoting Varig Airlines, 467 U.S. at 814).  Thus, "[i]f                                         

the  injury-producing  conduct   was  an  integral  part   of

government policymaking  or  planning, if  the imposition  of

liability might  jeopardize the quality  of the  governmental

process, or if the case could not be decided without usurping

the  power and  responsibility of  either the  legislative or

executive  branch of government,  governmental immunity would

probably  attach."    Stoller,  587  N.E.2d  at  783  (citing                                         

Whitney, 366 N.E.2d  at 1217).  If none of  these factors are                   

present, the general rule is one of no governmental immunity.

Whitney, 366 N.E.2d at 1217.                   

                             -42-

          Applying the above principles  to the facts of this

case, without regard for the particular result of the Stoller                                                                         

case,  see  infra,  it   can  be  forcefully  contended  that                             

Meninno's  decisions  were  of   the  type  based  on  policy

considerations.   Clearly, the Commonwealth has  a policy for

enforcement of  the laws  by constables and  police officers.

The Lakeville police department  and its officers are charged

by the Legislature with  the duty to enforce the laws, see 41                                                                      

M.G.L.A.   98, within  the limits imposed by the  federal and

state constitutions  and the legislature.   Police chiefs are

authorized  to promulgate  regulations for their  officers in

furtherance  of  these  duties.    See  41  M.G.L.A.     97A.                                                  

Lakeville  adopted guidelines  that  allow  Lakeville  police

officers to  conduct and  participate in high  speed pursuits

when,  in  their   judgment,  the  benefit  of   apprehension

outweighs the risk  to public safety.  See also 41 M.G.L.A.                                                             

98A  (authorizing police  to  arrest suspects  "on fresh  and

continued  pursuit" in  other jurisdictions).   Acting within

discretion conferred  by the guidelines, Meninno decided that

the best  way to fulfill his duty to enforce the law here was

to  pursue a violator who  had refused to  obey his signal to

pull  over.   Surely,  such a  decision  was based  on policy

considerations.   Compare Irwin  v. Town  of Ware,  392 Mass.                                                             

745,  467  N.E.2d  1292,  1299 (1984)  (holding  that  police

officer   was  not   performing  discretionary   function  in

                             -43-

releasing  known drunk  driver because  he acted  contrary to

established  policy); Gaubert,  111 S.  Ct.  at 1275  n.7 (in                                         

hypothetical,  negligent driving  by  bank regulator  has  no

connection to regulatory policy of banking agency).

          Appellant   clearly  could   not  argue   that  the

Lakeville  police   department's  adoption  of   the  pursuit

guidelines was itself a negligent act for which it is liable.

See Patrazza, 497  N.E.2d at  274 &amp; n.3.   That  legitimately                        

adopted policy required Meninno to exercise his own judgment,

under the  particular circumstances  of each incident,  as to

how best to  fulfill the policy's dual goals  of apprehending

lawbreakers and  protecting public safety.  "When established

governmental  policy, as  expressed  or  implied by  statute,

regulation, or  agency guidelines, allows a  Government agent

to exercise discretion, it must be presumed that  the agent's                                                       

acts are grounded in policy when exercising that discretion."

Gaubert,  111 S. Ct. at  1274 (emphasis added).   Thus, under                   

the  Gaubert analysis,  it would  be presumed  that Meninno's                        

actions were grounded in policy.

          This  presumption  prevails  unless  the  plaintiff

points  to facts in the record "which would support a finding

that  the challenged actions are not the kind of conduct that

can be  said to be  grounded in the policy  of the regulatory

regime."  Id. at 1275.  Plaintiff has pointed to nothing that                         

would  support  a   finding  that  the   allegedly  negligent

                             -44-

decisions of Meninno are not the kind of conduct  that can be

said  to be  grounded in policy.   For example,  she does not

allege that Meninno accidentally  lost control of his vehicle

and  hit the motorcycle, or  that he acted  for some ulterior

purpose.  Therefore, if  the rules laid out in  Gaubert apply                                                                   

in Massachusetts,  it would  seem that Meninno's  conduct was

within the section 10(b) exception.

          3. Purposes of Discretionary Function Exception  As                      3. Purposes of Discretionary Function Exception                                                                     

mentioned above,  Massachusetts law also requires  a court to

consider whether  the purposes of  the discretionary function

exception  are  fulfilled by  including  the alleged  conduct

within the scope of the section 10(b) exception.  Making that

judgment here is difficult.

          In favor  of Lakeville,  one could argue  that "the

imposition of  liability might jeopardize the  quality of the

governmental  process."   Stoller,  587  N.E.2d at  783.   If                                             

suspects  and  their  accomplices   can  sue  towns  for  the

strategic decisions  of police  officers  during attempts  to

apprehend them, then towns    especially those with financial

difficulties already    will have a strong incentive to avoid

pursuing suspected  and known lawbreakers.   If the otherwise

legitimate  enforcement  of  laws   is  chilled  by  fear  of

liability,   all  types  of   criminals,  not   only  traffic

violators, would  be able  to more easily  avoid apprehension

and  prosecution.   Police departments  would be  hampered in

                             -45-

their ability  to control  crime and fulfill  their statutory

duty to enforce the laws of the Commonwealth.

          In addition,  one could argue, "the  case could not

be decided  without usurping the power  and responsibility of

[] the .  . . executive branch of government."  By permitting

judges  and  juries to  pass on  the  strategies used  by the

police (assuming  they do not violate  constitutional norms),

the power  of police  departments to fulfill  their statutory

duty  to enforce  the  law  could  be  usurped.    The  state

legislature could have,  but did  not, impose  limits on  the

police  power  to pursue  suspects.   See  41 M.G.L.A.    98A                                                     

(authorizing  police  to  arrest   suspects  "on  fresh   and

continued pursuit" in other jurisdictions without restriction

on  the means of pursuit); compare Irwin, 467 N.E.2d at 1299,                                                    

1302 (finding that legislature imposed duty on police to take

all suspected drunk drivers into custody).

          "Other relevant considerations  are the  reasonable

expectations  of  the  injured  person with  respect  to  his

relationship  to  the  governmental entity  in  question, the

nature of  the  duty  running  from  the  government  to  the

governed  in  the particular  case,  and  the nature  of  the

injury."  Whitney, 366 N.E.2d at 1217.  It would be difficult                             

for Horta  to argue that  she, as  a passenger  on a  vehicle

attempting to  evade police pursuit,  reasonably expected the

                             -46-

police to avoid all potentially risky attempts to capture her

and her companion.

          On the other hand,  appellant could argue with some

persuasiveness  that the injury-producing conduct was not "an

integral  part  of  governmental  policymaking  or planning."

This  consideration may  refer  to general,  legislative-type

decisions as opposed to  administrative or operational tasks.

See  Dobos v. Driscoll, 404  Mass. 634, 537  N.E.2d 558, 568,                                  

cert. denied, 493 U.S.  850 (1989); Pina, 510 N.E.2d  at 256.                                                    

Moreover, appellant  has no adequate  alternative remedy  for

her  injuries, Whitney, 366 N.E.2d at 1217, except perhaps to                                  

sue the estate of the motorcycle operator.

          Hence, it  is unclear  whether the purposes  of the

discretionary  function exception are  advanced by immunizing

Lakeville   here.     Nonetheless,   not   all   the  Whitney                                                                         

considerations must  point to  immunity for the  exception to

apply.  See, e.g., Pina, 510 N.E.2d at 256.                                   

          4.  Comparison  of   Analogous  Massachusetts   and                      4.  Comparison  of   Analogous  Massachusetts   and                                                                         

Federal Cases   There is no  Massachusetts case precisely  on            Federal Cases                         

point,  and the few  cases cited by  appellant provide little

guidance.  In Irwin v. Town of Ware, the court held that "the                                               

decision  of  a  police  officer  [not]  to  remove  from the

roadways  a driver  who  he knows  or has  reason to  know is

intoxicated" is not a discretionary act within the meaning of

section  10(b).   Id.,  467 N.E.2d  at  1298.   Unlike  here,                                 

                             -47-

however, the court in  Irwin expressly found that  the police                                        

officer, once he knew or  had reason to know that  the driver

he stopped was intoxicated, had no policy-based discretion to

permit the driver to go back on the road.  Id.  at 1299.  The                                                          

Irwin court  interpreted several state statutes as obligating                                                                         

police officers to remove  known intoxicated drivers from the

roads, determining that the  officer's decision not to remove                                                               

a  drunk  driver  could  not   have  been  based  on   policy

considerations  because "the policy  and planning decision to

remove   such  drivers   has   already  been   made  by   the

Legislature."   Id.   As  discussed  above, Meninno  was  not                               

obligated by  statute or regulation  to take or  refrain from

taking the actions at  issue.  Instead, he was  authorized by

written policies to  use his own judgment as to  how and when

to enforce  the law  by means  of a high  speed pursuit.   In

Stuart v. Town of  Brookline, 412 Mass. 251, 587  N.E.2d 1384                                        

(1992),  the court upheld  a finding  of liability  against a

town for  injuries caused  by the  negligent  operation of  a

police cruiser, but  section 10(b) immunity  was not even  an

issue in that case.

          Appellant's citation of Kelley v. Rossi, is equally                                                             

unavailing.  There  the court  wrote, in two  sentences in  a

footnote,  that a  doctor  employed by  a  city hospital  and

accused  of   medical  malpractice   is  not  engaged   in  a

discretionary  function when  treating a  patient.   Id., 481                                                                    

                             -48-

N.E.2d at 1344 n.6.  "The doctor was governed by the standard

of  accepted  medical  practice,  an  ascertainable guide  to

proper  conduct."      Id. (citing  Cady  v.  Plymouth-Carver                                                                         

Regional Sch. Dist.).   There  is no evidence  in the  record                               

that Meninno's actions were governed by such a fixed standard

for  police conduct.    Moreover,  the Massachusetts  Supreme

Judicial Court recently criticized  the reasoning in the case

relied upon by the Kelley court:                                     

               In Cady  v. Plymouth-Carver Regional                                                               
          School Dist., 17 Mass.  App. Ct. 211, 457                                  
          N.E.2d  294  (1983),  the  Appeals  Court
          announced  a  principle  that it  thought
          distinguished between  functions that are
          discretionary and those that are not.  If
          the  employee has  no  "fixed or  readily
          ascertainable  standards   to  fall  back
          upon,"   the    employee's   conduct   is
          discretionary.  Id.  at  215, 457  N.E.2d                                         
          294. . . .    The  United States  Supreme
          Court has not adopted the rule.  Nor have
          we.  The  existence of  fixed or  readily
          ascertainable standards could be relevant
          in deciding whether a  governmental actor
          owed   a   duty   to  another   that   he
          negligently  failed  to  fulfill, but  it
          tells us nothing about whether particular
          discretionary  conduct  has  a policy  or
          planning foundation.

Stoller, 587 N.E.2d  at 784  n.2.  The  many other  decisions                   

applying  section  10(b)  depend  heavily on  the  facts  and

provide no  general principles  beyond  those articulated  in

Stoller.  See Stoller, 587 N.E.2d at 784 (summarizing cases).                                 

          As instructed by Stoller, we also look for guidance                                              

to  federal court decisions.   A finding of  immunity in this

case  would  be  consistent  with  many  cases  holding  that

                             -49-

decisions  of  law enforcement  officers,  although seemingly

"operational" and made in the heat of the moment, fall within

the  FTCA  discretionary   function  exception.    Generally,

although  law enforcement  agents  have a  mandatory duty  to

enforce the law,  decisions as  to how best  to fulfill  that

duty are protected by the discretionary function exception to

the FTCA.  Abernathy v. United States, 773 F.2d 184, 188 (8th                                                 

Cir.  1985); Redmond v.  United States, 518  F.2d 811, 816-17                                                  

(7th  Cir. 1975); United States v. Faneca, 332 F.2d 872, 874-                                                     

75 (5th Cir. 1964),  cert. denied, 380 U.S. 971  (1965).  For                                             

example, we  held that  a decision by  United States  Customs

agents not  to stop and  search a particular  passenger falls

within  the  discretionary  function exception  of  the  FTCA

because the applicable statute and regulations authorize, but

do not obligate, the agents to search passengers.   Attallah,                                                                        

955 F.2d at 784.  Like the situation here, "there is room for

choice  on the part of  the Customs agents  when carrying out

their duties," and "[t]he decision an agent makes is of great

importance in  fulfilling the mandate of  the Customs Service

   to protect the  integrity of our national borders."   Id.;                                                                        

see  also Prelvitz  v. Milsop,  831 F.2d  806, 810  (8th Cir.                                         

1987)   (finding   FTCA   discretionary  function   exception

applicable  to customs inspector's  decisions to  detain four

intoxicated  men in an automobile at a border crossing and to

"appoint" a different driver).  In Buchanan v. United States,                                                                        

                             -50-

915 F.2d  969 (5th Cir.  1990), the court held  that a prison

warden's and staff members' "minute-to-minute decision making

in the chaotic circumstances of  a riot" met the requirements

of  the discretionary  function exception.   Id. at  972; see                                                                         

also Faneca, 332  F.2d at 874-75 (holding  that decisions and                       

tactics  used   by  federal  law  enforcement   officials  in

enforcing desegregation orders  and handling resulting  riots

were within the FTCA discretionary function exception); Smith                                                                         

v.  United States, 330 F. Supp. 867, 868-70 (E.D. Mich. 1971)                             

(holding that FTCA  discretionary function exception  applied

to  law  enforcement officials'  plans  and  decisions as  to

handling of Detroit riots); Nichols  v. United States, 236 F.                                                                 

Supp.  260,  262-63  (N.D.  Miss. 1964)  (holding  that  FTCA

discretionary function  exception applied to methods  used by

federal law enforcement  officials in enforcing desegregation

orders and quelling  riots).  FBI agents' decisions to arrest

bank  robbers and to  employ certain  tactics to  arrest them

were also found to be protected by the discretionary function

exception  from  a  suit  by  one bank  robber  for  injuries

sustained  during the arrest.  Amato v. United States, 549 F.                                                                 

Supp. 863,  866-67 (D.N.J.  1982), aff'd,  729 F.2d  1445 (3d                                                    

Cir.  1984).  But see  Hetzel v. United  States, No. 91-2986,                                                           

1993 U.S. Dist. LEXIS 7506, at *12-*13 (D.D.C. 1993) (finding

that government  agents' high-speed pursuit  on crowded  city

streets  of  suspected drug  trafficker,  whose identity  and

                             -51-

address were  known, violated approved procedures  and so was

not within the FTCA discretionary function  exception); Patel                                                                         

v.  United States,  806  F. Supp.  873,  878 (N.D.Cal.  1992)                             

(holding that decisions by  DEA agents to investigate, obtain

search  warrant   and  raid   suspected  drug  hideout   were

discretionary functions,  but decision  to destroy  house and

kill occupants with  firebombs was not  made pursuant to  DEA

policy and thus not immune).

          5. Holding in Stoller  So far, it would appear that                      5. Holding in Stoller                                            

the principles of the section 10(b)  exception doctrine    as

articulated  in Stoller  and,  by analogy,  Gaubert     point                                                               

toward  tort   immunity  under  the   discretionary  function

exception.   We have  yet,  however, to  consider the  actual

holding in Stoller.   Doing so, we are unable  to reconcile a                              

finding of immunity here with that holding.

          In Stoller,  the  owner of  buildings destroyed  by                                

fire sought damages pursuant to the Massachusetts Tort Claims

Act   from   the   city   of   Lowell,   whose   firefighters

unsuccessfully fought  the blaze.   He alleged  negligence on

the  firefighters'  part  in  failing to  use  the  sprinkler

systems in one of  the buildings.  The city  conceded that it

had  a duty to the  building owner and  that the firefighters

could  have been  found negligent  in failing  to follow  the

standard firefighting technique of use of available sprinkler

systems.  The  city, nonetheless, argued  that it was  immune

                             -52-

under  section  10(b)   because  the  firefighters'   conduct

involved a discretionary function.  Id., 587 N.E.2d at 782.                                                     

          The trial  judge agreed  that the city  was immune,

but the  Supreme Judicial Court reversed.   Applying the two-

part  test discussed  supra, the  court found  that, (1)  the                                       

firefighters had  "discretion in  the sense that  no statute,

regulation,  or established  municipal practice  required the

firefighters to use the sprinklers  (or, for that matter,  to

use  hoses exclusively)," but  that, (2) "whatever discretion

they had was  not based  on a policy  or planning  judgment."

Id. at 785.               

               There  are  aspects of  firefighting
          that  can  have  an  obvious  planning or
          policy basis.  The number and location of
          fire stations, the amount of equipment to
          purchase,   the   size   of    the   fire
          department,  the  number and  location of
          hydrants, and  the quantity of  the water
          supply  involve   policy  considerations,
          especially  the  allocation of  financial
          resources.      In  certain   situations,
          firefighting  involves determinations  of
          what  property to attempt to save because
          the  resources  available  to   combat  a
          conflagration   are   or   seem   to   be
          insufficient   to  save   all  threatened
          property.      In   such  cases,   policy
          determinations  might  be  involved,  and
          application of the discretionary function
          exception would be required.

               The  case  before  us is  different.
          The  negligent  conduct  that caused  the
          fire  to  engulf   all  the   plaintiff's
          buildings  was not founded on planning or
          policy  considerations.     The  question
          whether  to put higher  water pressure in
          the sprinkler systems involved  no policy
          choice or planning decision.  There was a

                             -53-

          dispute  on the  evidence whether  it was
          negligent  to  fail  to  fight  the  fire
          through the buildings' sprinkler systems.
          .  .   .  The   jury  decided   that,  in
          exercising  their  discretion not  to use
          the  buildings'  sprinkler  systems,  the
          Lowell   firefighters   were    negligent
          because   they   failed  to   conform  to
          generally      accepted      firefighting
          practices.      When   the   firefighters
          exercised  that  discretion,  policy  and
          planning    considerations    were    not
          involved.   Therefore,  the discretionary
          function  exception  does not  shield the
          city from liability.

Id.               

          It   is   hard   to   differentiate   between   the

firefighters'  conduct in Stoller and the allegedly negligent                                             

decision to pursue of Officer  Meninno.  The firefighters, in

execution of their duty to fight fires, deliberately chose at

the time what we assume they considered to be the appropriate

strategy for fighting the fire.  While, in  retrospect, their

judgment  may have  been  flawed, no  statute, regulation  or

municipal  policy  required  any  different,  and  they  were

authorized, indeed required, to  make such a determination on

their own.  An injured party alleged and eventually persuaded

a  jury that their  strategic choice, made  pursuant to their

governmental  duties  and   in  conformance  with  applicable

policies,  was  negligent.     Here,  a  police  officer,  in

execution  of   his  duty   to  enforce   the  laws   of  the

Commonwealth, deliberately chose what he considered to be the

best  strategy for  apprehending a  lawbreaker.   No statute,

                             -54-

regulation or policy prohibited  his actions.  A  town policy

expressly  authorized and  required him  to exercise  his own

judgment as to how to proceed.   An injured party now alleges

and  hopes to persuade a jury that his strategic decision was

negligent.  Comparing the result in Stoller to this case, one                                                       

can argue that section 10(b) does not shelter  Lakeville from

liability  for  Meninno's actions.    Still, it  may  be that

Stoller turned on the firefighters'  having violated standard                   

practices with no apparent policy justification, hence is not

to  be  read  as   more  generally  eliminating  lower  level

firefighting  and  police decisions  from  the section  10(b)

exception.

          In attempting  to understand  the reasoning  of the

Stoller  court, we  have  reviewed similar  cases from  other                   

jurisdictions.   A sizable number of  them reach the opposite

result  in  analogous  circumstances.    See  57  Am.  Jur.2d                                                        

Municipal, County, School and State Tort Liability    484, at                                                              

449  (summarizing cases  from ten  states).  For  example, in

City of Daytona Beach  v. Palmer, 469 So.2d 121  (Fla. 1985),                                            

the Florida Supreme Court explained:

               The  decisions  of  how to  properly
          fight  a particular  fire, how  to rescue
          victims in  a fire, or what  and how much
          equipment   to  send   to  a   fire,  are
          discretionary judgmental  decisions which
          are  inherent  in   this  public   safety
          function  of fire  protection.  . .  . To
          hold  a  city  liable  for  the negligent
          decisions  of   its  fire-fighters  would
          require a judge  or jury to second  guess

                             -55-

          fire-fighters  in making  these decisions
          and would  place the judicial branch in a
          supervisory  role  over  basic  executive
          branch,  public  protection functions  in
          violation  of  the  separation of  powers
          doctrine.

               We   distinguish   these  types   of
          discretionary   fire-fighting   decisions
          from   negligent  conduct   resulting  in
          personal injury while  fire equipment  is
          being driven  to the  scene of a  fire or
          personal injury to  a spectator from  the
          negligent  handling  of equipment  at the
          scene.

Id. at 123.                 

          We feel  unable to determine the  precise aspect of

the circumstances  in the  firefighters'  conduct in  Stoller                                                                         

that led the court to find their actions were not of the type

based on policy  considerations.  And  we are disinclined  to

introduce new doctrines or fine  distinctions of our own into

Massachusetts law in order to  differentiate the firefighters

from Meninno.   Yet,  neither can  we ignore the  principles,

rules and  guidelines articulated by  the Massachusetts court

in Stoller  and in  other cases,  which  apparently point  in                      

another direction, so as seemingly to  lead to the conclusion

that  Lakeville is  entitled  to immunity  for the  strategic

decisions of its police officers made in furtherance of their

duties. 

          6.  Certification  Essentially,  we are  faced with                      6.  Certification                                       

this  dilemma:  the   Massachusetts  discretionary   function

doctrine    as expounded in Stoller and Gaubert    suggests a                                                           

                             -56-

finding of immunity,  while the  result in  Stoller seems  to                                                               

mandate the opposite.   Resolution of the issue in  this case

requires reconciling  Stoller with Gaubert  and other federal                                                      

and state cases, a project properly left to the courts of the

Commonwealth because  it may  require the development  of new

rules or  distinctions.   Moreover, whichever way  we decided

the  issue, our  opinion would  be seen  in  Massachusetts as

either  barring  or  permitting  many other  actions  against

public employers  for decisions  made by police  officers and

other municipal servants.  We also take notice of the current

debate  in the Commonwealth  on the closely  related issue of

the public duty rule.  See Jean W. v. Commonwealth, 414 Mass.                                                              

496, 610  N.E.2d 305  (Mass. 1993)  (abolishing court-created

public   duty  rule  prospectively   after  1993  legislative

session); see also Cyran v. Town of Ware, 413 Mass.  452, 597                                                    

N.E.2d  1352  (1992) (holding,  in  3-2  decision, that  town

firefighters owed  no special duty to  homeowners whose house

was destroyed  by fire).   The difficult questions  raised by

the various concurring opinions in Jean W., and the lack of a                                                      

majority opinion, cautions us about the complexity and social

importance of the municipal liability issue in Massachusetts.

For these reasons, the best course for a federal court, bound

to apply state law as it stands, is certification.

                             -57-

          On our own  motion, we will  certify in a  separate

certification order  the  following question  to the  Supreme

Judicial Court of Massachusetts pursuant to S.J.C. Rule 1:03:

          Do  the  discretionary  decisions   of  a
          police officer to  begin and continue the
          high-speed  pursuit  of  a  vehicle  then
          being  operated  in   violation  of   law
          involve  policymaking   or  planning  for
          purposes of  immunity under Massachusetts
          General Law ch. 258,   10(b)?

If the  question  is answered  in the  affirmative, then  the

discretionary function exception applies to Meninno's conduct

and  the  district  court's  grant of  summary  judgment  for

Lakeville on this claim will be affirmed.  If the question is

answered in the negative,  then summary judgment was improper

and  the claim  will be  remanded to  the district  court for

further  proceedings.    We  would, of  course,  welcome  any

guidance the S.J.C. may care to provide, beyond answering the

question, concerning  the  effect and  proper application  of

Massachusetts law in these circumstances.  The  clerk of this

court shall  forward as an  appendix the briefs  and appendix

furnished to us by the parties.  

     B. Liability of Freetown for Sullivan's Conduct                 B. Liability of Freetown for Sullivan's Conduct                                                                

          Appellee  Freetown argues  that it  is immune  from

liability  under  the Massachusetts  Tort Claims  Act because

Sullivan's  conduct falls  within the  discretionary function

exception of  section 10(b).   After reviewing the  record in

the light most favorable  to the appellant, we hold  that the

                             -58-

district court  should not have granted  summary judgment for

Freetown  on this issue because  there is a  genuine issue of

material fact  concerning the  first element of  the two-part

test  for discretionary  function immunity:  whether Sullivan

had discretion to engage  in the allegedly negligent conduct.

          The Freetown  pursuit guidelines  in effect  at the

time were identical to Lakeville's, and are silent as to most

of  the  decisions  made  by Sullivan.    However,  appellant

sensibly  asks how  Sullivan's  decision to  erect a  partial

roadblock  could be  within his discretionary  authority when

paragraph  12 of  the Freetown  guidelines  expressly states,

"Intentional contact between a police vehicle and the vehicle

pursued,  or use  of  a police  vehicle  as a  roadblock,  is

strictly forbidden."  The  language of this departmental rule

appears  on  its face  to forbid  the  very actions  taken by

Sullivan.  But the record also contains  testimony by Officer

Sullivan that he interpreted Paragraph 12 to mean merely that

police vehicles may not  be used to block an  entire roadway,                                                                

as when a cruiser is  placed sideways so as to obstruct  both

lanes  of a two-lane road.   According to  Sullivan, the term

"roadblock" has  not been interpreted by  the Freetown police

to include a  partial roadblock, such as  the one established

                             -59-

by  Sullivan when he parked his cruiser in the oncoming lane,

which leaves room for a vehicle to pass on one side.18  

                                                    

18.  The  affidavit of  appellee Mello,  the Freetown  police
chief, indicates that an official investigation of Sullivan's
actions concluded that  Officer Sullivan acted  appropriately
in the circumstances.   Chief Mello stated that Freetown  had
pursuit  guidelines in  place, but  he did  not suggest  that
Sullivan  had  violated any  of these  guidelines by  using a
partial roadblock.
     The  following colloquy  regarding paragraph  12 of  the
Freetown guidelines appears in Officer Sullivan's deposition:

     Q:   [Mr. Gillis, plaintiff's attorney]:  So, prior
          to the  collision that is the  subject of this
          lawsuit, you had in your possession a handbook
          given  to you by  your commanding  officer, is
          that correct?
     A:   [Sullivan]:  Yes, it is.

     Q:   Okay.   That  handbook contained a  section on
          the policies of the Freetown Police Department
          concerning pursuing other motor  vehicles, did
          it not?
     A:   Yes, it did.

     Q:   Did  it  also have  a  section on  the  use or
          nonuse  of roadblocks;  of  blocking the  road
          during pursuits?
     A:   Mr. Gillis,  could you define for  me what you
          think,  what you would  say was  a "roadblock"
          and what is "blocking the  road"?  I think  in
          my mind they're two different things.

     Q:   Why don't  you tell me?   What's "blocking the
          road" mean to you, sir?
     A:   Blocking  the roadway  would  be blocking  the
          total roadway so that nothing could  pass your
          point.

     Q:   Okay.  And what is a "roadblock"?
     A:   A roadblock would  be one and  the same.   The
          roadblock would be blocking the whole roadway.

          . . .

     Q:   Was there  a section  in this manual  that you
          were given before  August 5, 1988,  concerning

                             -60-

          On  this record,  there is  an unresolved  issue of

fact   regarding   Sullivan's   discretion  under   pertinent

regulations  to   have  created  a   partial  roadblock,  the

allegedly  negligent  conduct   on  his  part.     Sullivan's

testimony,  and   Chief   Mello's  affidavit,   suggest   the

possibility of a narrowed reading of the  rule so as to allow

Sullivan  to do  what he  did.   See,  e.g., Kelly  v. United                                                                         

States, 924 F.2d 355, 360-61  (1st Cir. 1991) (holding  that,                  

                                                    

          the use of roadblocks or blocking the roadway?
          Is  there a  policy for  that in  the Town  of
          Freetown?
     A:   Roadblocks as blocking the whole roadway?

     Q:   Yes.
     A:   Yes, there is.

     Q:   And what was that?
     A:   Roadblocks blocking the  whole roadway are not
          allowed under the policy.

          . . .

     Q:   (Pause)   Again, referring to that manual that
          you  mentioned  before,  that you  were  given
          sometime in 1987, or  at least prior to August
          5, 1988, does the manual say anything specific
          about blocking the roadway?
     A:   Okay.   Again,  when  you  say  "blocking  the
          roadway," do you mean a roadblock    

     Q:   I mean blocking the roadway in any manner.
     A:   Yes, it does.

     Q:   Blocking a travel lane,  or blocking the other
          lane, in  any manner.  What does  it say about
          blocking the road?
     A:   The manual  advises that to block one lane-way
          of  a  roadway, to  block  some  portion of  a
          roadway is  permissible.   But you are  not to
          block the whole roadway.

                             -61-

to avoid  summary judgment, plaintiff DEA  agent was required

to rebut defendants' evidence that seemingly nondiscretionary

regulation was  consistently interpreted by  DEA officials to

permit  use  of  discretion).    But  the  language  of   the

regulation, read in the light  most favorable to Horta, seems

rather directly to forbid such conduct.  There is, therefore,

a factual issue over whether the regulation should be read to

withhold   discretion  here   or  whether   the  departmental

interpretation  claimed by Sullivan  actually existed and was

sufficiently consistent and longstanding  so as to render his

conduct discretionary.   Because  of this factual  issue over

whether  the first  element  of  the  discretionary  function

exception  test  was  fulfilled,  we  do  not  reach  whether

Sullivan's   conduct  was   based  on   policy  or   planning

considerations.   The latter is,  in large measure,  the same

question certified to the S.J.C. in the case of Meninno.  The

S.J.C.'s resolution regarding Meninno may answer it.  For the

moment, we  hold simply  that Freetown  was  not entitled  to

summary judgment on the  issue of section 10(b)  immunity and

remand  Horta's  claim  to  the district  court  for  further

proceedings.19

                              V.                                          V.

                                                    

19.  We do not  consider to  what extent  resolution of  this
issue is within the province of the district judge as opposed
to  the jury.  The district court, with the assistance of the
parties, should initially determine this.

                             -62-

          In  conclusion:  we  affirm  the grant  of  summary

judgment for appellees Sadeck, Meninno, and Sullivan on Count

I, alleging liability under  42 U.S.C.   1983; we  affirm the

grant  of summary judgment for Freetown on Count IV under the

Massachusetts Tort Claims Act for  the actions of Sadeck, and

vacate the grant of summary judgment for Freetown on Count IV

under the Massachusetts  Tort Claims Act  for the actions  of

Sullivan and  remand that  claim for further  proceedings; we

certify  a question of law  to the Supreme  Judicial Court of

Massachusetts on the issue  of Lakeville's liability on Count

IV  under the Massachusetts Tort Claims Act and, pending that

court's determination, retain jurisdiction on that issue; and

we  affirm  dismissal of  all  the  remaining claims  because

appellant  did not  appeal  their dismissal  by the  district

court.

          Affirmed in part, vacated and remanded in part, and                                                                         

a  question  certified  to  the  Supreme  Judicial  Court  of                                                                         

Massachusetts,  with  jurisdiction   retained  pending   that                                                                         

determination.  No costs.                                    

                             -63-

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1962

                         DEBRA HORTA,

                    Plaintiff, Appellant,

                              v.

                 CHARLES B. SULLIVAN, ET AL.,

                    Defendants, Appellees.

                                          

                        CERTIFICATION

                                          

          For the  reasons discussed  in our opinion  in this

case, Horta  v. Sullivan,  No. 92-1962, (see  especially Part                                    

IV.A., at  pp. 32-55), the  resolution of an  important issue

depends  upon questions of Massachusetts  law on which we are

unable to find clear,  controlling precedent in the decisions

of the Supreme Judicial Court of Massachusetts.  Accordingly,

we  certify the  following question  to the  Supreme Judicial

Court of Massachusetts pursuant to its Rule 1:03.

          Do  the  discretionary  decisions   of  a

          police officer to begin and  continue the

          high-  speed pursuit  of  a vehicle  then

          being  operated  in   violation  of   law

          involve  policymaking   or  planning  for

          purposes of  immunity under Massachusetts

          General Law ch. 258,   10(b)?

The relevant  facts are discussed in the  separate opinion in

this case.   In putting the above  question, we wish  to make

clear that we  would, of  course, welcome the  advice of  the

court on  any other  question of  Massachusetts law it  deems

material to this case on which it would wish to comment.

          The Clerk of this court will transmit this question

and our separate opinion  in this case, along with  copies of

the  briefs and appendix in this case to the Supreme Judicial

Court of Massachusetts.

                              United States Court of Appeals
                              for the First Circuit

                                                             
                              By: Juan R. Torruella
                                  Circuit Judge

Dated:  August   , 1993

                            - 65 -
