

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 96-1949
                 ABIODUN ABRAHAM and HENRY AJAO,

                      Plaintiffs, Appellees,
                                v.

                          JOSEPH NAGLE,
                      Defendant, Appellant.

                                           
No. 96-2008

                 ABIODUN ABRAHAM and HENRY AJAO,
                     Plaintiffs, Appellants,

                                v.
                      JOSEPH NAGLE, ET AL.,

                      Defendants, Appellees.
                                      

                        PERRY ROY, ET AL.,
                      Defendants, Appellees.

                                           
          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS
           [Hon. Nancy J. Gertner, U.S. District Judge]                                                                

                                           
                              Before

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

                                           

  Susan   M.  Weise,  Chief  of  Litigation,  City   of  Boston  Law                             
Department, with whom  Merita A. Hopkins, Corporation  Counsel, was on                                                
brief for defendants.
  George C.  Deptula,  with whom  George  C.  Deptula, P.C.  was  on                                                                     
consolidated brief for plaintiffs.

                                           

                           June 9, 1997
                                           

       BOUDIN, Circuit  Judge.  Abiodun Abraham  and Henry Ajao                                       

  sued several police officers and the City of Boston for false

  arrest  and for  other  alleged wrongs.    During trial,  the

  district judge directed  a verdict  in favor of  Ajao on  his

  false  arrest claim  against  the  defendant  officer  Joseph

  Nagle; the jury found in favor of the defendants on all other

  claims.  Before us are cross-appeals by the plaintiffs and by

  Nagle.

       Our main concern is  with the directed verdict and,  for

  that  purpose alone, we set  forth the evidence  in the light

  most  favorable  to Nagle.   Fashion  House,  Inc. v.  K mart                                                                         

  Corp., 892  F.2d 1076, 1088  (1st Cir. 1989).   On August 18,                 

  1990, at about 11 p.m., the plaintiffs, both black immigrants

  from  Nigeria, arrived with three white women at the Venus de

  Milo  nightclub in Boston.  After waiting in line for several

  minutes,  the group  reached the  club entrance.    The three

  women were admitted, but the plaintiffs were not.

       The  bouncer told  Abraham that  he could not  enter the

  club because he  was wearing  jeans and  because Abraham  and

  Ajao were "a  little intoxicated."  The plaintiffs  said that

  other people wearing  jeans were being admitted  and that the

  real  reason for excluding them was their race.  When Abraham

  continued  to  protest, a  club  employee  summoned Nagle,  a

  Boston  police  officer  who   was  "on  detail"  at  another

  establishment down the block.

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       Nagle talked with the  plaintiffs for 15 to  20 minutes,

  telling them  that the club was  not going to  admit them and

  that they  should leave;  he says  that the  plaintiffs never

  told  him   of  the  alleged  discrimination.     During  the

  discussion, Abraham became  increasingly agitated,  continued

  to protest loudly,  and at one point  hit or pushed Nagle  in

  the  chest.   Nagle  then  arrested Abraham  for  assault and

  battery on a police officer.

       Nagle   sought  to  handcuff   Abraham  but  the  latter

  struggled free.  Nagle  radioed for help and was  soon joined

  by  officer   Thomas  Boyle.    Together,   Nagle  and  Boyle

  handcuffed Abraham and tried to bring him to Boyle's cruiser,

  which was  double-parked in the street.   Abraham resisted by

  going limp.  As Nagle and Boyle sought to move Abraham to the

  car, Ajao circled the officers and yelled, "why are you doing

  this to my  friend," "this isn't  South Africa, you're  white

  racist cops."

       According to  Boyle, Ajao was "trying to prevent us from

  getting to the police car."  At one point Boyle  said that he

  "had to actually push [Ajao]  out of my way" as the  officers

  wrestled with Abraham.  Several  times the officers told Ajao

  to "get  away."   Eventually,  with Ajao  still present,  the

  officers pushed Abraham  into the  back seat of  the car;  he

  then  prevented the door from  closing by kicking  at it, but

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  the officers forced it closed.  By this time a crowd of 20 or

  so had gathered to watch.

       In the meantime,  as Abraham continued to  yell from the

  cruiser, Ajao circled  it and  came up behind  the left  rear

  quarter of the  car.  Ajao was told: "Police, leave, get away

  from  the cruiser"; Nagle later testified  that he had feared

  that Ajao might try to open the car door and release Abraham.

  Ajao  failed to move.  Nagle then  arrested Ajao, who in turn

  struggled with Nagle, Boyle and a third officer, once kicking

  Nagle in the mid-section, before being restrained.

       In due course,  Abraham and Ajao were both  charged with

  assault and battery and disorderly  conduct.  Mass. Gen. Laws

  ch. 265,   13D; id. ch. 272,   53.  They were tried  in state                               

  court in November 1990 and acquitted.  In February 1993, they

  in turn brought suit  in state court against Nagle  and other

  police officers,  and the city, charging  the defendants with

  false arrest under  42 U.S.C.   1983  and state law and  with

  various other  wrongs.1  The defendants removed the action to

  federal court and, following  discovery, trial began in March

  1995.

       After all of the evidence  was taken, the district court

  granted  Ajao's motion  for a directed  verdict in  his favor

                                                      

       1The other claims, some  of which were dropped  prior to
  or   during  trial,   charged  the   defendants  with   false
  imprisonment, racial discrimination, violation of free speech
  rights, assault and battery, and use of excessive force.

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  against Nagle, see Fed. R. Civ. P. 50(a); in  an oral ruling,                              

  the trial  judge declared  that Nagle was  liable under  both

  federal and state law for falsely arresting Ajao in violation

  of  the  latter's First  and  Fourth Amendment  rights.   The

  court's  primary rationale,  as we  read the  transcript, was

  that  (in the district judge's view)  Ajao's conduct prior to

  his arrest did not "rise to the level of disorderly conduct .

  . . ."  The balance of the case was submitted to the jury.

       By responses to special interrogatories, the  jury fixed

  Ajao's  damages at  $8,500 to  vindicate his  "rights against

  false  arrest," but made  no separate award  for violation of

  free  speech rights.   On  all of  the plaintiffs'  remaining

  claims, the jury found against the plaintiffs and in favor of

  the defendants.  Thereafter,  the district court awarded Ajao

  attorney's fees  of $24,858.50.   Nagle now appeals  from the

  directed verdict  against him.   The plaintiffs  also appeal,

  urging  that  they  are entitled  to  a  new  trial on  their

  unsuccessful claims,  to  an  injunction,  and  to  increased

  attorney's fees.  We begin with Nagle's appeal.

       On  review of a  directed verdict, we  take the evidence

  most  favorably to the losing party and ask de novo whether a                                                               

  reasonable jury  had inevitably  to  decide in  favor of  the

  victor.   Smith v.  F.W. Morse &amp;  Co., 76 F.3d  413, 425 (1st                                                 

  Cir. 1996).  Here, putting aside some loose ends, the central

  question  is  whether Nagle  at the  time  of the  arrest had

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  probable cause to believe that Ajao had committed the offense

  of disorderly conduct.  If so, this largely defeats the false

  arrest  claim under  both federal  and state  law.   Logue v.                                                                      

  Dore, 103  F.3d 1040, 1044 (1st Cir.  1997); see Commonwealth                                                                         

  v. Grise, 496 N.E.2d 162, 163 (Mass. 1986).                    

       Of  course, it  would  be much  easier to  conclude that

  Nagle,  on his own version  of events, had  probable cause to

  charge  Ajao with assault  and battery: Nagle  said that Ajao

  kicked him.  But the kick occurred after Ajao's arrest; prior                                                    

  to  the  arrest, the  only  pertinent  charge was  disorderly

  conduct.   We  reserve for  another  day various  issues that

  would  arise  if the  original  arrest  were unjustified  but

  resistance  to  it  provided  grounds  for  a  valid  charge.

  Compare Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d                                                   

  Cir.  1995), with United States v. Dawdy, 46 F.3d 1427, 1430-                                                    

  31 (8th Cir.), cert. denied, 116 S. Ct. 195 (1995).                                       

       In defining disorderly conduct, Mass. Gen. Laws ch. 272,

    53 provides  for the punishment,  inter alia, of  "idle and                                                          

  disorderly  persons."   In 1967,  the Supreme  Judicial Court

  rejected    a    challenge    that    this    provision   was

  unconstitutionally  vague by  interpreting it  to incorporate

  the  Model  Penal Code's  definition  of  disorderly conduct.

  Alegata v.  Commonwealth, 231  N.E.2d 201, 211  (Mass. 1967).                                    

  That definition states:

       A person  is guilty of disorderly  conduct if, with
       purpose to cause public inconvenience, annoyance or

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       alarm, or recklessly  creating a risk thereof,  he:
       (a)  engages in  fighting  or  threatening,  or  in
       violent  or  tumultuous  behavior;  or   (b)  makes
       unreasonable noise or offensively coarse utterance,
       gesture or  display, or addresses  abusive language
       to any  person present, or (c)  creates a hazardous
       or  physically offensive condition by any act which
       serves no legitimate purpose of the actor.

Id.  (quoting ALI,  Model Penal  Code   250.2  (Proposed Official                                               

Draft 1962)).

       Several years  later, the  Supreme  Judicial Court  struck

down  subsection  (b)  of this  definition  as unconstitutionally

overbroad.   Commonwealth  v.  A Juvenile,  334  N.E.2d 617,  622                                                   

(Mass. 1975).  And  to avoid First Amendment concerns,  the court

ruled  that  the  remaining  subsections  (a)  and  (c)  must  be

construed to cover only conduct, not activities which involve the

"lawful exercise of a  First Amendment right."   Id. at 628;  see                                                                           

also Commonwealth v. LePore, 666 N.E.2d 152, 155 (Mass. App. Ct.)                                     

("To be disorderly within  the sense of the statute,  the conduct

must disturb  through acts other  than speech  . . .  ."), review                                                                           

denied, 668 N.E.2d 356 (Mass. 1996).                

       Nagle  testified  that he  arrested Ajao  under subsection

(c), not subsection (a),  and we doubt that Ajao's  conduct prior                                                                           

to his arrest would support a charge under subsection (a).  Thus,

the question for us is whether a reasonable jury could have found

that Nagle had probable  cause to believe that Ajao  had violated

subsection (c) by "creat[ing] a hazardous . . . condition by  any

act  which serves no legitimate purpose of  the actor."  We think

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that a reasonable  jury, if  it accepted the  defense version  of

events, could have so found.

       An arrest  of a struggling  defendant--here, Abraham--is a

serious  business.   Even without a  gathering crowd  and traffic

blocked by a  police cruiser,  there is a  potential for  serious

violence and of  injury both to  the suspect  and to the  police.

Yet, assuming  the truth  of the defense  evidence, Ajao--despite

repeated  requests to get  out of  the way--circled  the officers

while shouting, at least once got directly in their way, and then

refused to move away from the cruiser.

       Such  behavior can fairly be taken to fall directly within

the literal language of subsection (c): creating "a hazardous . .

.  condition" by acts "which serve[] no legitimate purpose of the

actor."   Indeed,  a number  of Massachusetts  cases have  upheld

disorderly conduct arrests where a refusal to obey  police orders

created  a safety threat.  See Commonwealth v. Mulero, 650 N.E.2d                                                               

360, 363 (Mass. App.  Ct.), review denied, 652 N.E.2d  145 (Mass.                                                   

1995); Commonwealth  v. Bosk, 556  N.E.2d 1055, 1058  (Mass. App.                                      

Ct. 1990); Commonwealth v.  Carson, 411 N.E.2d 1337,  1338 (Mass.                                            

App. Ct. 1980).  

       Literal  language is  not  the full  story.   The  state's

highest court has glossed  the statute not to apply  wherever the

activities  are  themselves  the  "lawful  exercise  of  a  First

Amendment right."  A Juvenile, 334 N.E.2d at 628.  And Ajao had a                                       

free-speech right to protest the arrest of his companion, even if

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this distressed  or annoyed the  police.  But by  the same token,

"the  mere fact that the conduct of the defendant was accompanied

by speech  does not preclude  a conviction" under  the disorderly

conduct law.  Carson, 411 N.E.2d at 1337.                                

       We  have  very  little  difficulty  in  separating  Ajao's

protected  speech   from  his  physical  interference   with  two

policemen  struggling to arrest and  detain a third person, which

is  not protected.  Indeed, in Colten  v. Kentucky, 407 U.S. 104,                                                            

109  (1972), the Supreme Court  upheld a conviction  for far less

disruptive conduct, observing that "Colten's conduct in  refusing

to move on after being directed to  do so" was not protect by the

First Amendment.  See also City of Houston v. Hill, 482 U.S. 451,                                                            

463 n.11 (1987).

       In  some  cases,  peaceful  demonstration   and  protected

expression  may appear  to  merge.   Possibly,  this may  explain

Commonwealth  v. Feigenbaum,  536 N.E.2d  325, 328  (Mass. 1989),                                     

where  the state court  held that the  disorderly conduct statute

did not  extend to  the blocking  of traffic in  the course  of a

peaceful  political  rally  because the  defendant's  purpose was

legitimate.   But Ajao's  alleged conduct in  the present  case--

disrupting a  police attempt  to arrest a  struggling companion--

seems to us both more dangerous and less legitimate.

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       Further, even  if Feigenbaum  were given its  most extreme                                             

reading,2 making a good  purpose a complete defense, it  would be

up to  a jury  to determine  whether Ajao  was acting  to express

protected  speech or whether he also sought to interfere with the

arrest.   The latter aim could not be a legitimate purpose on any

view of the matter.  Yet a jury could infer, assuming it accepted

the  defense version of events, that Ajao was trying to frustrate

the arrest by getting  in the way or distracting the officers and

not simply trying to convey his objections.

       In  this case, the jury  certainly did not  have to accept

the police  version of the  events.   The plaintiffs gave  a more

benign   account   of  their   conduct   and   there  were   some

contradictions  in the defendants' own testimony.  But it was the

jury's province,  after observing Nagle, the  other officers, and

the plaintiffs on  the witness  stand to decide  whom the  jurors

believed.   We simply disagree  with the trial judge's conclusion

that she was free to make that credibility determination.  If the

district judge  thought that  the credibility issues  fell within

her province, this  was a  mistaken view of  the governing  rule.

See Smith, 76 F.3d at 425.3                   

                                                      

       2At  least two  state  court decisions  after Feigenbaum                                                                         
  suggest  that an extreme  reading is  unwarranted and  that a
  defendant can be liable for disorderly conduct even where his
  main objective is to  protest police decisions.  See  Mulero,                                                                        
  650 N.E.2d at 363; Bosk, 556 N.E.2d at 1058.                                   

       3Nagle  points to  the  trial judge's  comment (made  in
  discussing jury  instructions) that "I am  basing my findings
  with respect to Mr. Ajao on my evaluations of the credibility

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       Three loose ends remain.   One is the possibility  that an

arrest based on  probable cause  might still be  unlawful if  the

police  officer  acted  simply   for  the  purpose  of  punishing

protected speech.   There is  some law on  this subject,  compare                                                                           

Whren v. United States, 116 S. Ct. 1769, 1774 (1996), with Sloman                                                                           

v. Tadlock, 21  F.3d 1462, 1469 (9th Cir. 1994),  but we need not                    

pursue the issue here.  Plaintiffs have not pointed to any direct

evidence that Nagle acted  out of an improper motive  to suppress

speech, and  certainly  nothing would  remotely justify  deciding

that issue against him by a directed verdict.

       The second is  the possibility, on remand, of  a qualified

immunity  defense for  Nagle.   This  defense,  preserved in  the

district  court, has  been successfully  invoked in  this circuit

where a police  officer made a reasonable,  if arguably mistaken,

call on a  close legal issue.  E.g., Joyce  v. Town of Tewksbury,                                                                          

112 F.3d 19 (1st Cir. 1997); Veilleux v. Perschau, 101  F.3d 1, 3                                                           

(1st Cir. 1996).  We have ignored the issue here only because the

city  has chosen, for reasons not explained, to fight this appeal

on the merits.

       Third, for the sake of completeness, we note that in 1995-

-well after  the incident  in this case--Massachusetts  enacted a

separate "resisting arrest"  statute that also covers  situations

in which the person charged prevented or attempted to prevent the

                                                      

  of the witnesses as well as my evaluations of the sufficiency
  of the evidence . . . ."  

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arrest of another.  Mass. Gen. Laws ch. 268,   32B.   We need not

consider whether Ajao could have been charged under this statute,

which is narrower in focus but  more severe in penalties than the

disorderly conduct statute applied here.  There is no  indication

that the adoption  of the new statute  was meant to  eliminate or

alter  the availability of the  disorderly conduct law  as a less

severe remedy for addressing  disorderly interference with police

activity.

       Turning now to the plaintiffs' appeal, we begin with their

claim that the district  court erred in denying them  a new trial

on  their other  claims which  were rejected  by the  jury.   The

arguments are largely conventional ones  turning on the weight of

the evidence,  the propriety  of closing arguments,  and possible

confusion on the part of the jury evidenced by an inquiry made by

the jury during its deliberations.

       The  denial of a new trial motion  under Fed R. Civ. P. 59

is reviewed for abuse of  discretion.  Bogosian v.  Mercedes-Benz                                                                           

of  North America,  Inc.,  104 F.3d  472,  482 (1st  Cir.  1997).                                  

Without describing  the plaintiffs' arguments in  detail, we find

no abuse here in rejecting each of the new-trial grounds thus far

mentioned.  A  potentially more  serious claim is  that the  jury

pool  may  have  excluded  minorities, but  the  plaintiffs  have

pointed to nothing in the record to support the charge or to show

that it was even raised in the trial court.

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       The plaintiffs also object to the district court's failure

to grant injunctive relief.  The relief sought was to prevent the

Boston police from continuing to  use, at least without revision,

a  training  bulletin  that  sets  forth  the  Model  Penal  Code

definition  of  disorderly conduct  but  fails  to indicate  that

subsection  (b) has  been  struck down  by  the Supreme  Judicial

Court.  The city, which has not responded on this point, would be

well advised to clarify the manual on its own.

       But the plaintiffs were  not charged under subsection (b);

in  fact, Nagle testified that he had been taught that subsection

(b) had been held invalid.  Nor did the plaintiffs show that they

faced  any  real threat  of future  injury,  e.g., by  threats to                                                           

enforce subsection (b) against them  in the future.  City  of Los                                                                           

Angeles v. Lyons,  461 U.S. 95, 102 (1983).   The district court,                          

exercising its  equitable authority  to grant or  deny injunctive

relief, certainly did not have to grant any here.

       To conclude, we vacate the  judgment against Nagle on  the                                       

false arrest  claim and the  now-mooted award of  attorney's fees

against him and otherwise affirm the judgment entered on the jury                                          

verdicts in favor of the  defendants.  The false arrest claim  is

remanded for further proceedings consistent with this opinion.                  

       It is so ordered.                                  

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