
USCA1 Opinion

	




          November 10, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1688                                     EMMA RIVERA,                                Plaintiff, Appellant,                                          v.                                     PAUL MURPHY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Jennifer  Petersen,  with whom  Andrew  Stockwell-Alpert,  was  on            __________________              ________________________        brief, for appellant.            William J. Walsh, Assistant Corporation Counsel, with whom  Albert            ________________                                            ______        W. Wallis, Corporation Counsel, City of Boston, and Gerard A. Pugsley,        _________                                           _________________        Assistant  Corporation Counsel,  City of  Boston,  were on  brief, for        appellee.                                 ____________________                                 ____________________                      BOWNES, Senior Circuit  Judge.  This appeal  arises                              _____________________            out  of an action brought by Emma Rivera against Paul Murphy,            a  Boston Police officer, for violations of 42 U.S.C.   1983,            Mass. Gen. L. ch. 12,   11I, and  for state law  tort claims,            including:    assault  and   battery;  false  arrest;   false            imprisonment;  malicious prosecution;  intentional infliction            of emotional  distress; and, negligence.   Rivera alleged she            suffered   physical  and   emotional  injuries   when  Murphy            subjected  her  to a  warrantless  arrest  for possession  of            cocaine in violation of Mass. Gen. L. ch. 94C,    34.  Murphy            moved for summary judgment on the ground that he was entitled            to qualified immunity  because he had probable  cause to make            the arrest from which the alleged violations and torts arose.            Anderson v. Creighton, 483 U.S. 635 (1987); Malley v. Briggs,            ________    _________                       ______    ______            475  U.S. 335  (1986);  Harlow v.  Fitzgerald,  457 U.S.  800                                    ______     __________            (1982).  The  district court granted  the motion for  summary            judgment as  to the   1983 claim and six of the seven pendent            state law claims.                      Rivera appeals this ruling and has asked us to find            that Murphy was not entitled to qualified immunity because he            lacked  probable cause to arrest her, and that, in any event,            the district court  should have dismissed without  prejudice,            rather than  granted summary  judgment on, the  pendent state            law claims.  We agree with Rivera.  We reverse and remand the            case to the district court.                                          I                                          I                                  Standard of Review                                  Standard of Review                                  __________________                      Summary judgment  is appropriate when  "there is no            genuine issue  as to any material  fact and . .  . the moving            party is entitled to a judgment as a matter of law."  Fed. R.            Civ. P. 56(c); see, e.g., Prokey v.  Watkins, 942 F.2d 67, 72                           ___  ____  ______     _______            (1st Cir.  1991).  This court's  review of a district court's            grant of  summary  judgment is  plenary.   Hoffman v.  Reali,                                                       _______     _____            No. 91-1703,  slip  op.  at 9  (1st  Cir.  August  27, 1992);            Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.            _______________    _____________            1992);  Griggs-Ryan v.  Smith, 904  F.2d  112, 115  (1st Cir.                    ___________     _____            1990).  On appeal, as below, we must "view  the entire record            in the light  most hospitable to  the party opposing  summary            judgment, indulging all reasonable inferences in that party's            favor."  Griggs-Ryan,  904 F.2d at 115.  In  the absence of a                     ___________            dispute over  the  underlying material  facts, a  defendant's            entitlement to qualified immunity is a question of law and is            reserved for plenary review by this court.  Hoffman, slip op.                                                        _______            at 9 (citations omitted).   We begin by setting out the facts            of this case in the light most favorable to Rivera.                                          II                                          II                                        Facts                                        Facts                                        _____                      On  the evening  of  October 25,  1988, Rivera  was            double-parked  in downtown  Boston.   A man  known to  her as                                         -3-            Torres  said  "hi" as  he walked  past  her on  the sidewalk,            approximately ten feet from the car in which she was sitting.            Rivera responded  in kind, at which  point their conversation            terminated.   Torres  never came within  ten feet  of Rivera.            Moments later, an unmarked police car stopped behind Rivera's            vehicle.  Paul Murphy,  a plainclothes Boston police officer,            stopped Torres,  searched him,  and placed him  under arrest.            Officer Murphy subsequently approached Rivera  and asked that            she get out of the car.  Rivera complied without objection or            resistance.   Murphy then  instructed Rivera to  turn around.            Again,  Rivera complied.  She was handcuffed and placed under            arrest.  In handcuffing  Rivera, Officer Murphy tightened the            handcuffs to a degree that  caused her pain.  After  a police            cruiser  arrived at the scene, Rivera was taken to the police            station and placed in a holding cell.                      On October 26, 1988, Rivera was arraigned in Boston            Municipal Court  and was charged with  possession of cocaine.            She  was  tried on  March  7,  1989.   At  the  close of  the            Commonwealth's evidence, Rivera was found not guilty.  Torres            was  convicted  for  unlawful  possession  of  cocaine  at  a            separate trial.                      On  April  1, 1991,  Rivera  filed  a complaint  in            Suffolk County Superior Court against both the City of Boston            and  Paul Murphy,  individually,  and in  his  capacity as  a            police officer of the City of Boston.  The complaint included                                         -4-                                          4            eight  counts:   (I)  violations of  42  U.S.C.    1983; (II)            violations of  Mass. Gen. L. ch. 12,   11I; (III) assault and            battery;  (IV) false  arrest;  (V) false  imprisonment;  (VI)            malicious  prosecution;  (VII)   intentional  infliction   of            emotional  distress;  and   (VIII) negligence.     Defendants            removed  the case to the United States District Court for the            Eastern District  of Massachusetts,  pursuant to 42  U.S.C.              1441.   The  City of  Boston filed  a motion  to  dismiss the            complaint as to itself, which uncontested motion was allowed.                      Pursuant  to  Fed. R.  Civ.  P.  56, the  remaining            defendant,   Officer  Murphy,  filed  a  motion  for  summary            judgment. Murphy  attached an affidavit to  the memorandum in            support of this motion, stating in pertinent part:                 2.   I have been a Boston Police Officer since                      May 15, 1985;                 3.   I   have   received   training  in   Drug                      Investigations through  the Boston Police                      Academy and various on the job training;                 4.   I  have received the following awards for                      meritorious police work;  the William  J.                      Taylor  Award  and   the  Boston   Police                      Department Medal of Honor;                 5.   I  have a bachelor's  degree in Marketing                      from Boston College (Class of 1982);                 6.   On  October 25,  1988 I responded  to 680                      Tremont  Street  at the  direction  of my                      superiors    Lieutenant   Cellucci    and                      Sergeant Famolare, as there was  a report                      of  drug trafficking taking place at that                      location;                 7.   I  observed  the  Plaintiff  Emma  Rivera                      involved in what I  believed to be a drug                                         -5-                                          5                      transaction  based  on  my  observations,                      training and experience;                 8.   I  arrested Emma Rivera, Roberto Cruz and                      Jesus  Torres  on   probable  cause   and                      without a  warrant  for possession  of  a                      Class "B" substance to wit Cocaine;                 9.   I  formed   my   probable  cause   on   a                      reasonable  good  faith belief  under the                      attendant circumstances.                      On May 5, 1992, the district court allowed Murphy's            motion  for summary  judgment  with respect  to counts  I-VII            after finding that Murphy was entitled to qualified immunity.            The  court   dismissed  count   VIII  for  lack   of  pendent            jurisdiction.  Rivera filed a timely appeal.                      There is no genuine dispute over the material facts            of this  case.  The two affidavits that were before the court            below, and which  are before  this court on  appeal, are  not            inconsistent.  Rivera contends  that Torres never came within            ten feet of her on the night when she was  arrested.  Officer            Murphy contends that he saw Rivera engaged in what he thought            was a  drug transaction based on  his "observations, training            and experience."   Officer  Murphy's affidavit does  not deny            any  of the factual allegations  of Rivera.   He says nothing            whatsoever about  what facts led  him to believe  that Rivera            was involved in a drug transaction.   As far as his affidavit            is concerned,  he arrested Rivera  simply because, for  a few            seconds,  she  was at  a distance  of  ten feet  from Torres.            Officer Murphy's statement  is not at  variance with that  of                                         -6-                                          6            Rivera.    Rivera does  not,  because she  cannot,  rebut the            subjective and conclusory assertion of Murphy.                      At issue on appeal is the legal conclusion asserted            by Officer Murphy  in his  affidavit and relied  upon by  the            court  below.   That  is, taking  the  facts as  asserted  in            Rivera's affidavit as true, summary judgment should have been            granted  in  favor of  Officer  Murphy only  if  a reasonable            police officer could have believed  he had probable cause  to            arrest  Rivera which  would have  cloaked him  with qualified            immunity.    We  must  therefore  determine  whether  Officer            Murphy's stated  cause for  arresting Rivera entitles  him to            the protection of qualified immunity.                                         III                                         III                                  Qualified Immunity                                  Qualified Immunity                                  __________________                      The Supreme  Court  announced the  general rule  of            qualified immunity in Harlow, when it stated that "government                                  ______            officials performing discretionary  functions, generally  are            shielded from  liability for  civil damages insofar  as their            conduct  does not  violate clearly  established statutory  or            constitutional rights of which a reasonable person would have            known."   457  U.S.  at  818.   See  also  Hunter v.  Bryant,                                            ___  ____  ______     ______            112 S. Ct. 534,  536 (1991) (per curiam);  Anderson, 483 U.S.                                                       ________            at  641.   Officer  Murphy  is  entitled  to  immunity  if  a            reasonable  officer could  have believed that  probable cause                                         -7-                                          7            existed  to arrest Rivera.  Hunter, 112  S. Ct. at 537.  This                                        ______            is not a  stringent test.  Indeed, "[t]he  qualified immunity            standard  `gives  ample  room  for  mistaken  judgments'   by            protecting  `all but  the  plainly incompetent  or those  who            knowingly  violate  the law.'"   Hunter,  112  S. Ct.  at 537                                             ______            (quoting  Malley, 475 U.S. at  343, 341).1   The officers are                      ______            therefore  entitled to  qualified  immunity "so  long as  the            presence of probable cause  is at least arguable."   Ricci v.                                                                 _____            Urso, No. 91-2067, slip  op. at 5 (1st Cir. August 31, 1992);            ____            Prokey,  942 F.2d 67, 72  (1st Cir. 1991);  Floyd v. Farrell,            ______                                      _____    _______            765 F.2d 1, 5 (1st Cir. 1985).                      Under the  Fourth Amendment,2 the right  to be free            from unreasonable  seizures of  the  person gives  rise to  a            requirement  that arrests  be  supported  by probable  cause.            See, e.g.,  Beck v.  Ohio, 379  U.S. 89, 91  (1964).   As the            ___  ____   ____     ____            Court  explained in Wong Sun  v. United States,  371 U.S. 471                                ________     _____________            (1963):                                            ____________________            1  The  law  provides  immunity for  such  reasonable  errors            because  "officials  should not  err  always on  the  side of            caution" out of a fear of  civil suit.  Davis v. Scherer, 468                                                    _____    _______            U.S. 183, 196 (1984).            2 The Fourth Amendment provides that:                 [t]he  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  affirmation,                 and  particularly   describing  the  place   to  be                 searched, and the persons or things to be seized.            U.S. Const. amend. IV.                                         -8-                                          8                 It  is  basic  that an  arrest  with  or without  a                 warrant  must stand  upon firmer  ground  than mere                 suspicion . . . , though the arresting officer need                 not have  in hand  evidence which would  suffice to                 convict.     The   quantum  of   information  which                 constitutes  probable cause    evidence which would                 "warrant a man of reasonable caution in the belief"                 that a  felony has  been committed . . .    must be                 measured by the facts of the particular case.            Id. at 479 (citations  omitted).  The probable cause  test is            ___            an  objective one, for, as  the Supreme Court  noted in Beck,                                                                    ____            "[i]f  subjective  good  faith   alone  were  the  test,  the            protections of the Fourth  Amendment would evaporate, and the            people would be `secure in their  persons, houses, papers and            effects,' only in the  discretion of the police."   Beck, 379                                                                ____            U.S.  at 97.  Therefore,  we have stated  that probable cause            exists when "`the facts  and circumstances within [the police            officers']  knowledge  and  of   which  they  had  reasonably            trustworthy information were sufficient to  warrant a prudent            [person] in  believing that the [defendant]  had committed or            was committing an offense.'"  United States  v. Figueroa, 818                                          _____________     ________            F.2d 1020, 1023 (1st Cir. 1987) (quoting Beck, 379 U.S. at 91                                                     ____            (1964)).  Finally, in  reviewing any determination  regarding            the  sufficiency  of  cause  to  effect  an  arrest  we  must            "consider  the  totality  of circumstances  to  evaluate  the            government's demonstration of sufficient `[p]robability . . .            of criminal activity.'"   United States v.  Maguire, 918 F.2d                                      _____________     _______            254, 258 (1st Cir. 1990) (quoting Illinois v. Gates, 462 U.S.                                              ________    _____            213, 235 (1983)).        Officer   Murphy's   affidavit  sets                                         -9-                                          9            forth  no facts to support  his legal conclusion  that he had            probable cause to effect  the arrest of Rivera.   Stripped to            its bare  essentials, Murphy's  affidavit states that  he saw            what  he saw,  so he did  what he  did.   Nowhere does Murphy            state  precisely what it was  that he saw.   His observations            were  recorded as just that:   "observations".  The affidavit            simply   makes  the   bald  assertion   that  based   on  his            "observations,  training  and  experience,"  he  had probable            cause to make the arrest.                      In order to have probable cause for a Terry stop (a                                                            _____            minimal intrusion relative to  arrest), a police officer must            have "specific  and articulable  facts which, taken  together            with rational  inferences from  those facts," could  create a            reasonable suspicion sufficient to  justify a brief detention            of an individual.  Terry v.  Ohio, 392 U.S. 1, 21, 27 (1968).                               _____     ____            Here,   Officer  Murphy  recounts   no  such   "specific  and            articulable  facts."  If he  could not have  met the standard            for  such  a  brief  investigatory detention  of  Rivera,  he            certainly  does not  meet the  requirements for  a full-blown            arrest.  Absent any specific and articulable observations, it            cannot be said that it was even arguable as to whether Murphy            had probable cause to make a warrantless arrest.                      The experience  and  training of  a police  officer            are, of course, factors to be considered in the determination            of probable  cause, but,  the "relevance [of  such experience                                         -10-                                          10            and  training]  in a  particular  case  must be  sufficiently            conveyed so that . .  . it `can be understood by  the average            reasonably prudent person.'"   Wayne R. LaFave,  1 Search and            Seizure 575 (2d ed. 1987) (quoting United States v. Chadwick,                                               _____________    ________            393  F. Supp. 763, 769  (D. Mass. 1975), aff'd,  532 F.2d 773                                                     _____            (1st Cir. 1976), aff'd, 433 U.S. 1 (1977)).  See, e.g., Brown                             _____                       ___  _ _   _____            v. Texas, 443 U.S. 47, 51-52 & n. 2 (1979);  United States v.               _____                                     _____________            Brignoni-Ponce,  422  U.S.  873,  884-86   (1975);  see  also            ______________                                      ___  ____            Maguire, 918 F.2d at 258.     Were we to affirm  the district            _______            court's  ruling  below,  we  would  give  license  to  police            officers  to make  unwarranted arrests, and  retain qualified            immunity  from civil suits so long as they asserted that they            thought they had probable  cause to make the arrest  based on            their "observations, training and experience."  Creating such            a  talisman  would effectively  transform the  police officer            into a judge, and the court into a rubber stamp.                      Officer   Murphy  should  not   have  been  granted            qualified immunity  by the court  below because there  are no            facts alleged  in Murphy's  affidavit showing, or  tending to            show, that he had probable cause to arrest Rivera.                                          IV                                          IV                               Pendent State Law Claims                               Pendent State Law Claims                               ________________________                      Upon granting summary judgment in favor of  Officer            Murphy on the basis of qualified immunity, the district court                                         -11-                                          11            granted summary judgment on the state  law claims asserted in            Counts II-VII of Rivera's complaint, and dismissed Count VIII            (negligence).  Because  we hold that Murphy  was not entitled            to qualified immunity  and that summary  judgment on Count  I            should not,  therefore, have  been granted  in his  favor, we            also  hold that the court erred  in granting summary judgment            on Rivera's pendent state law claims.                      Even  had the court  been correct  in its  grant of            summary judgment on the   1983 claim, it  would not have been            proper to grant  summary judgment  on the  pendent state  law            claims.    Rather,  in  this  case,  the  court  should  have            dismissed the pendent  claims over which the  court no longer            had jurisdiction,  thereby allowing  the plaintiff  to pursue            the action in state court where it was first brought.  As the            Supreme Court stated in  Carnegie-Mellon Univ. v. Cohill, 484                                     _____________________    ______            U.S. 343 (1987):                 Under Gibbs,  a federal court  should consider  and                       _____                 weigh  in  each case,  and  at every  stage  of the                 litigation,   the   values  of   judicial  economy,                 convenience,  fairness,  and  comity  in  order  to                 decide whether to exercise jurisdiction over a case                 brought in  that court involving  pendent state-law                 claims.     When  the  balance  of   these  factors                             _______________________________________                 indicates  that a  case  properly belongs  in state                 ___________________________________________________                 court, as when the  federal-law claims have dropped                 ___________________________________________________                 out  of the lawsuit  in its  early stages  and only                 ___________________________________________________                 state-law claims remain,  the federal court  should                 ___________________________________________________                 decline the exercise  of jurisdiction by dismissing                 ___________________________________________________                 the case without prejudice.                 __________________________            Id. at 350 (emphasis supplied) (footnote omitted).   See also            ___                                                  ___ ____            Cullen v. Mattaliano, 690 F. Supp. 93 (D. Mass. 1988) ("it is            ______    __________                                         -12-                                          12            the  settled  rule in  this Circuit  that in  a non-diversity            case,  where pendent state  claims are joined  with a federal            cause  of  action and  that federal  cause  of action  is the            subject of a successful  summary judgment motion, the pendent            state claims should be dismissed.").  Id. at 99.                                                  ___                      The court had federal question jurisdiction to hear            the     1983 claim  and  therefore had  jurisdiction  to hear            pendent  state  law claims  which  "derive[d]  from a  common            nucleus of  operative fact" and were "such that [a plaintiff]            would  ordinarily be expected to try them all in one judicial            proceeding."    United  Mine  Workers of  America  v.  Gibbs,                            _________________________________      _____            383 U.S. 715,  725 (1966); see also  Carnegie-Mellon Univ. v.                                       ___ ____  _____________________            Cohill, 484 U.S. 343 (1988).            ______                                          V                                          V                      The judgment of the  district court is reversed and            the case is remanded.                                         -13-                                          13
