June 16, 1993     UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT
                                        

No. 92-2468

                        LEE J. TOPP,

                    Plaintiff, Appellee,

                             v.

                    THOMAS J. WOLKOWSKI 
                  and THOMAS J. LOMBARDI,

                  Defendants, Appellants.
                                   

                        ERRATA SHEET

Please make the following corrections in the opinion in the above
case released on June 3, 1993:

Page 4, line 2:  delete all extra spaces.

Page  5, line 17:   insert the  word "charge"  following the word
"conduct".

               UNITED STATES COURT OF APPEALS
                   FOR THE FIRST CIRCUIT

                                        

No. 92-2468

                        LEE J. TOPP,

                    Plaintiff, Appellee,

                             v.

                    THOMAS J. WOLKOWSKI 
                  and THOMAS J. LOMBARDI,

                  Defendants, Appellants.

                                        

  APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT

             FOR THE DISTRICT OF NEW HAMPSHIRE

     [Hon. Dickran M. Tevrizian,* U.S. District Judge]
                                                     

                                        

                           Before

                   Boudin, Circuit Judge,
                                        
         Coffin and Oakes,** Senior Circuit Judges.
                                                  
                                        

Claire L. Gregory,  Assistant Attorney General, with whom  Jeffrey
                                                                 
R.  Howard,  Attorney General,  and  Robert  E. Dunn,  Jr.,  Assistant
                                                     
Commissioner, New Hampshire  Department of Safety,  were on brief  for
appellants.
Lynn D. Morse for appellee.
            

                                        

                        June 3, 1993
                                        

                

* Of the District of Central California, sitting by designation.
**Of the Second Circuit, sitting by designation.

          OAKES,  Senior Circuit Judge.  New Hampshire State
                                      

Troopers Thomas  J. Lombardi and Thomas  J. Wolkowski appeal

from  a judgment of the  District Court for  the District of

New  Hampshire, Dickran  Tevrizian,  Judge1,  denying  their
                                          

motion  for summary judgment in this 42 U.S.C.   1983 (1988)

action brought  by Lee J.  Topp.   Topp's complaint  alleged

that Lombardi and Wolkowski violated Topp's civil rights and

committed  a variety of  common law  torts against  him when

they  arrested him for making  an illegal lane  change on an

interstate highway.  Neither Lombardi nor Wolkowski actually

saw Topp  make the lane change.   They were  radioed to pull

over Topp's car by another  state trooper, David Benoit, who

did see the lane change.  

          The district  court  concluded that  Lombardi  and

Wolkowski did not have qualified immunity to make  an arrest

on   the   basis   of  another   officer's   probable  cause

determination, since  a New Hampshire statute  bars troopers

from making arrests for  traffic violations not committed in

their  "presence."    N.H. Rev.  Stat.  Ann.    594:10  I(a)

(1986).  We  conclude that the officers violated  no clearly

established federal  or state standards  in arresting  Topp,

                    

1Judge Tevrizian,  a District Judge of  the Central District
of  California, was designated to sit in the District of New
Hampshire.

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                             2

particularly  in light  of state  case law  interpreting the

"presence" requirement as permitting any member of a team of

officers  to make an arrest  for an offense  seen by another

member  of the team.  Consequently, we reverse the denial of

summary judgment.

                       BACKGROUND   
                                 

          Topp  filed this  42  U.S.C.    1983 action  after

Lombardi and  Wolkowski arrested  him for making  an illegal

lane change  on Interstate  95, southbound  near Portsmouth.

The  officers  were  part   of  a  detail;  Officer  Benoit,

stationed one-quarter mile north of Lombardi,  Wolkowski and

two others,  spotted traffic violators and  signalled to the

other officers which cars  to pull over.  At  oral argument,

the   New  Hampshire  Assistant  Attorney  General  candidly

described this setup as a "speed trap."   

          According to  the state troopers, Benoit  saw Topp

make  a  sudden lane  change into  the  fastest of  the four

lanes, forcing another car in the fourth lane into the high-

speed  breakdown lane.  Topp  agrees that he  made a sudden,

unsignalled lane  change, but says that he did so only as an

emergency measure  to avoid  hitting a  car that  had braked

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                             3

suddenly  in front  of him.   Topp  also agrees  that Benoit

radioed  to Lombardi to stop  Topp's car.   Lombardi did so,

and  Benoit, who had watched  Topp's car as  it travelled to

Lombardi's  position,  signalled  to Lombardi  that  he  had

stopped the right car.  

          Topp, however, refused to take the  ticket without

talking  to  the officer  who  had  seen  his  lane  change.

Lombardi radioed  Benoit for  more details, and  Benoit told

him that  Topp had made  a sudden, unsignalled  lane change,

forcing another  car into the high-speed  breakdown lane and

"nearly  caus[ing] an accident."    Topp  agrees that Benoit

conveyed  this  version of  events  to  Lombardi, though  he

contends that this  was not what  happened, and that  Benoit

therefore  could not  have seen  it happen.   In  any event,

Lombardi told  Topp that he  could challenge  the ticket  in

court, not on the highway, and that Officer Benoit would not

come to speak with him directly. 

          In the  face of Topp's alleged  continuing refusal

to take the  ticket or  to leave the  scene,2 Lombardi  told

                    

2The  actions of  both Topp  and the  officers  after Topp's
initial  refusal to  take the  ticket are  the subject  of a
factual  dispute.  We  need not --  and, indeed, may  not --
resolve  this  dispute.    The  significant  fact  for  this
interlocutory appeal is that Topp made, and was seen making,
a sudden, unsignalled lane  change.  There is no  dispute on
this point.

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                             4

Topp  that if  he  did  not take  the  ticket,  he would  be

arrested, and then  that he  was under arrest.   Seeing  the

commotion, Lombardi's superior officer,  Sergeant Wolkowski,

came up to the car.  Lombardi  explained that Topp would not

take the  ticket.   After further arguments,  Wolkowski also

told Topp that  he was  under arrest.   Topp then  allegedly

started his car and moved  half a car length down the  road.

Wolkowski leaned in to the open convertible,  turned the car

off,  opened the  door, and,  when Topp  would not  get out,

pulled Topp from his car.  Wolkowski allegedly directed Topp

to the  rear of his car,  holding one of  Topp's wrists high

behind  his back, and then pushed Topp's head onto the trunk

of the car twice.  Lombardi then handcuffed Topp.   Topp was

charged not only with the illegal lane change, but also with

disorderly conduct and resisting arrest.  

          The charges  were later dismissed:  the disorderly

conduct on the theory that  the underlying statute had  been

found  unconstitutional  in   a  case  involving  protestors

against the Seabrook Nuclear  Power Plant; the other charges

because  the  Portsmouth  District  Court  found   that  the

complaints had not been properly sworn.  

          Topp  then  filed  this  action,  naming  officers

Lombardi  and   Wolkowski  as   defendants  in  both   their

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                             5

individual  and official capacities and charging due process

and unspecified  equal protection violations.  The complaint

also  raised  state  common  law claims  of  assault,  false

arrest,  false  imprisonment,  and  malicious  prosecution.3

Topp, who was  represented by  counsel, sought  compensatory

and punitive damages of  $800,000 for psychological harm and

resultant  business  losses.    Topp  alleged  that officers

Lombardi and Wolkowski had had  no probable cause to  arrest

him, because  they had not  seen the lane  change themselves

and because the  lane change  was justified.   The  officers

moved  for summary judgment on all claims except the assault

conduct.   The district  court dismissed the  claims against

the officers in  their official capacity,  as barred by  the

Eleventh Amendment; dismissed the equal protection claim for

failure to  state  a  claim;  and dismissed  the  claims  of

malicious prosecution on  grounds of absolute  prosecutorial

immunity.   The court  denied summary judgment  on the other

claims on the theory that there  was a dispute of fact as to

whether the officers had probable cause  to arrest, and that

the officers did not have qualified immunity.

                    

3The complaint  did not, however, raise a  claim of invasion
of privacy from the  officer's reaching into Topp's vehicle,
nor could it.   Harbulak v. County of Suffolk,  654 F.2d 194
                                             
(2d Cir. 1981).  

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                             6

          The  officers then filed this interlocutory appeal

of the ruling on qualified immunity.  

                         DISCUSSION
                                   

          As  a preliminary matter,  we note  that, although

interlocutory,  the appeal is proper.   This court will hear

interlocutory  appeals  of denials  of  motions for  summary

judgment  on grounds  of  absolute  or  qualified  immunity.

Floyd v. Farrell, 765 F.2d 1, 2-3 (1st Cir. 1985).  
                

          The only question before  us is whether the motion

for summary judgment on grounds of qualified immunity should

have been granted.   In general,  the doctrine of  qualified

immunity  provides  that  "government  officials  performing

discretionary functions  . .  . are shielded  from liability

for civil damages  insofar as their conduct does not violate

clearly  established statutory  or constitutional  rights of

which a  reasonable person  would have  known."   Harlow  v.
                                                            

Fitzgerald,  457 U.S. 800, 818 (1982).  See also Anderson v.
                                                            

Creighton,  483 U.S. 635,  640 (1987) ("The  contours of the
         

right must be sufficiently  clear that a reasonable official

would  understand  that  what  he  is  doing  violates  that

right.");  Malley  v.  Briggs,  475  U.S.  335,  341  (1986)
                             

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                             7

(qualified   immunity  protects   "all   but   the   plainly

incompetent  or those who  knowingly violate the  law").  In

cases  applying  this standard  to  police  arrests in  this

circuit,  an arrest  challenged as  unsupported by  probable

cause is  deemed  "'objectively reasonable'"  unless  "there

clearly was no  probable cause  at the time  the arrest  was
       

made."  Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985).  
                        

          The undisputed facts demonstrate that Lombardi and

Wolkowski could easily have  believed that they had probable

cause  to believe  Topp had  committed a  traffic violation.

Topp agrees that  the arresting officers acted on  the basis

of Officer  Benoit's statement  that he  had just  seen Topp

force another car  off the road  in the course  of making  a

sudden, unsignalled lane change.  Topp concedes that he made

the  lane change without signalling.   All agree that Benoit

described Topp's  white Chrysler convertible to Lombardi and

confirmed that Lombardi had stopped the right car.  

          The  crux of  Topp's case  is his  contention that

Officers Lombardi  and Wolkowski had no  authority to arrest

him because  they  did  not  themselves  see  him  make  the

allegedly illegal lane change.   Topp claims that, under New

Hampshire law,  probable cause  to  believe he  had made  an

improper  lane change is not  enough.  In  New Hampshire, he

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                             8

says,  an  officer cannot  make a  warrantless arrest  for a

violation,  such  as an  improper  lane  change, unless  the

officer "has probable cause to believe that the person to be

arrested has committed a  . . . violation in  his presence."

N.H. Rev. Stat.  Ann.   594:10.  Thus,  Topp claims that the

troopers  violated  New Hampshire's  "presence" requirement,

and that this  violation raises a federal civil rights claim

as well. 

          However, New Hampshire  case law interpreting this

provision quite strongly suggests that where one member of a

law enforcement team  has seen the violation, any  member of

the team can  make the arrest.  State v.  Standish, 116 N.H.
                                                  

483,  363  A.2d 404  (1976)  (driving  under the  influence;

vehicle was  inoperable by time  arresting officer arrived),

citing State  v. Cook, 399  P.2d 835 (Kan.  1965) (arresting
                     

officer  received information from airplane tracking highway

speeds).   Topp attempts to distinguish  Standish, since the
                                                 

arresting  officer in  that  case  arguably had  independent

probable  cause to  believe  that the  offense had  occurred

(Standish was drunk, in his car, and crashed against a tree,

enough  to suggest  to  the arresting  officer  that he  had

driven the car into the tree).  However, the language of the

case  is  more  sweeping  than that.    The  Standish  court
                                                     

                            -9-
                             9

justified  its  result not  by  arguing  that the  arresting

officer  had independent  probable cause  to arrest,  but by

relying on the  concept of team arrests  and on case  law in

other  states,  including  the   Cook  case.    These  cases
                                     

interpret   similar   statutes   setting  forth   "presence"

requirements for  misdemeanor arrests as  permitting arrests

to  be made by any  member of a team of  officers so long as

one of the officers was "present."  

          Furthermore, the  officers in this case were using

routine procedures.  It  cannot have been clear to  them, in

light of  established practice and the  supportive case law,

that the  procedure of using  one officer to  spot violators

and others  to effect the actual  arrests, with confirmation

that the correct vehicle  was stopped, was inconsistent with

the  statute.   Thus,  even assuming  that    1983  requires

officers to comply  with the requirements of a state statute

defining  probable  cause  more narrowly  than  the  federal

Constitution  requires,  the  standard is  met  because  the

officers were not clearly wrong in  believing that they were

acting properly.    In light  of  case law  and  established

practice, their interpretation of the "presence" requirement

of  the  New   Hampshire  misdemeanor  arrest   statute  was

reasonable.

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                             10

                         CONCLUSION
                                   

          Accordingly,  we  reverse  the  judgment   of  the

district court,  insofar as  it denied the  officers' motion

for summary judgment on grounds of qualified immunity.  

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                             11
