Beruflich Dokumente
Kultur Dokumente
____________________
March 22, 1995
____________________
____________________
*
1983
William T.
and
state
under 42 United
tort law1
from
Broderick ("Broderick")
States Code
Defendants,
and Commissioner
Sergeant
Francis M.
Flynn;
and the
City of
who
was
sued
in
Boston
for damages
caused by
of Lazar Lowinger.
Defendant
his
individual
and
official
to
The district
court concluded
judgment
contained genuine
and
denied Broderick's
motion.
We
now
the
September 9, 1987,
Boston Police
district located
after
Department,
in Brighton
midnight, Broderick
as a
responded
was assigned
to
a police
patrol supervisor.
Shortly
to a
complaint of
a loud
possession of
a false liquor
purchase identification
____________________
1
The state law counts in the Complaint include false
imprisonment,
malicious
prosecution,
interference
with
contractual relations, intentional
infliction of
emotional
distress, negligence, and loss of consortium.
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card.
where he was
approximately
the
same
time as
Quinn's
arrest,
to
Quinn.
Broderick,
regarding
who
refused to
police station
undertake
provide
phone.
any
information
Lowinger
went to the
presented
himself
at
the
counter
in
the
tape
recorder, stating
intended to record
that he
wanted
the "proceedings."
to see
Quinn and
At that time,
Broderick
expressly
told
Lowinger
that he
the counter,
Broderick
and proceeded to
regarding
the
use
did
authorize
the
The
have a
of
not
the
"heated discussion"
recorder
during
with
which
-3-
felony.2
The
upshot of
the discussion
was that
Lowinger was
moving
speaking
inside.
at
the
It
is
time the
disputed whether
machine
was
Broderick
recording.
violation
state
of
Massachusetts
interception of communications.
on and the
law
against
was
Broderick
custody for
unauthorized
recorder after the state court concluded that, because there were
only a "few
merely
dictating a
memo
to
himself
he
turned
on
the
recorder.
Lowinger
action
and his
for Defendants'
wife, Audrey,
commenced this
alleged infringement
for violations
of state tort
civil
on the
Lowingers'
law.
Broderick
Plaintiffs filed
an untimely response
to the motion
of the
____________________
2
Broderick was making reference to a Massachusetts criminal
statute which imposes penalties upon any person who: "willfully
commits an interception [or] attempts to commit an interception
. . . of any wire or oral communication." Mass. Gen. Laws. Ann.
ch. 272,
99(C)(1). As provided in that section's definitions,
"'interception' means to secretly hear [or] secretly record . . .
the contents of any wire or oral communication through the use of
any interception device by any person other than a person given
prior authority by all parties to such communication."
Id.
___
99(B)(4).
-4-
by the
Massachusetts District
unsuccessful criminal
summary
judgment
motion
prosecution of
was
and
issue
the state
of
decided
Court during
Lowinger.3
in recorded
When the
proceedings
material
fact
Findings,
existed
concluding that
regarding
whether
This interlocutory
II. ANALYSIS
II. ANALYSIS
_____________
A. Jurisdiction
A. Jurisdiction
________________
order" from
is
well-settled
that
court
of
appeals
has
of qualified immunity.
(1985).
The
whether absolute
entitling
its
avoid
"essential attribute" of
standing trial.
liability; and
. .
. it is
effectively lost
Thus, the
a mere defense
if a
case is
____________________
3
The Commonwealth of Massachusetts sought review of the
District Court's Order suppressing the recorder but
later
withdrew its appeal. Appendix at 63-65.
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erroneously permitted to
go to trial."
Id. at
___
526.
See also
_________
Court, time
and
again, has
heeded the
Supreme
appeals, including
appeals from
several
summary
See,
___
Court
e.g.,
____
has reversed
(1st
Mariani-Gir n v. Acevedo-Ruiz,
_____________
____________
officials
since those
court's
denial of
Betancourt___________
1989);
If the
in denying summary
discovery
and
are
22 (1st
in error
unnecessarily
conclusions
and,
Cir.
1989).
the
Febus-Rodr guez v.
_______________
that had
occasions, this
judgment.
district courts
questions of
subject
to
trial.
here is
law, the
plenary review.
central
the district
demonstrated
genuine
Broderick's
question
presented
court properly
issues
entitlement
of
to
by
this
concluded that
material
immunity
appeal
the record
fact
and,
is
regarding
therefore,
that
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Broderick
entitled to
argues on
summary judgment as
erred when
the motion.
Although
record in this
of
case
it concluded
a matter
of
in this
for
inquiry for
summary
qualified immunity
judgment
district court's
brought by
is "whether a reasonable
an
resolution on
official
seeking
clearly established
law and the information the official possessed at the time of his
allegedly unlawful
Taylor,
______
any
conduct."
summary judgment
inferences are
Id.
___
at
determination,
construed in
91 (quoting
all
favor of the
McBride
_______
v.
Although, as with
facts and
reasonable
nonmoving party,
the
4
Broderick raises certain procedural issues in his appeal,
which we do not reach today. Specifically, Broderick argues that
since the Lowingers' opposition to his Motion for Summary
Judgment was untimely under local rules, it should have been
disregarded by the district court.
Further, Broderick argues
that the district court erred by relying on the state court's
Findings in lieu of affidavits or other submissions from the
Lowingers.
This Court's primary analysis of the denial of
summary judgment here has assumed that the District Court
properly considered Plaintiffs' response and the Findings in
opposition to the motion for summary judgment. Since, even with
those assumptions, we conclude that Broderick was entitled to
summary judgment, we need not decide whether the district court
should have disregarded either Plaintiffs' response or the
Findings of the state court.
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summary
judgment is
mistaken, conclusion
quite
generous.
A "reasonable,
although
not
subject
government
official
to
personal
liability."
979 F.2d
Bryant, 116
______
259, 263
(1st Cir.
1992) (quoting
analysis,
"A
court
reasonableness'
reference to
at 1116.
This Court
of
must
an
look
to
official's
curiam)).
the
Rivera v.
______
Hunter v.
______
Under this
'objective
conduct,
plainly
as
legal
measured
by
to
merits of
at
reasonable
cause
police officer
to arrest
subsequent
could have
the plaintiff,"
remarks
that
its
believed he
it is
true
clear from
focus
was
the court's
merits
of
the
had probable
of whether the
Appendix at 776.
-8-
constituted
consideration
proper
on
form
summary
of
supporting
judgment
district court
certain conclusions
existence
of
genuine
of the
issue
documentation
motion,5
was in error
state court
of
this
when it
to
material
for
Court
relied
determine the
fact
regarding
motion states:
I then attempted to
answer Attorney
Lowinger's questions regarding the person
he identified as his client.
Within a
short time after I started doing so, I
observed that Attorney Lowinger had the
tape recorder cupped within his hands.
Despite this, I observed a red light
illuminated on the recorder, and that the
tape was turning in the recorder.
App.
at
40.
It is
beyond
dispute
that
this
statement by
violation
of a
state criminal
Findings considered by
statute.6
his permission
The
state court
generate a factual
dispute on
on
the recorder
to
dictate a
memo
to himself
regarding
the
____________________
5
relative to this
whole incident, on
tape
tape a
Findings,
by Broderick
Instead,
the
however,
in
do
nothing
the above-quoted
Findings
address
to
refute the
portion of
the
merits
his
of
of material
qualified
fact germane
immunity
adversarial
fact,
____
to the
here.
summary judgment
While
subsequent
Lowinger was
not
___
analysis for
investigation and
secretly taping
his conversation
with
based
upon his
observations
conversation
not
reasonably
merely
does
at the
negate
what
time,
he
Similarly,
recording of that
Broderick
had
previously
concluded based
upon all
of the
circumstances, but
supports Lowinger's
position
before
the
Massachusetts
____________________
7 Thus, this case does not present the scenario of the "rare
case" described in Prokey v. Watkins, 942 F.2d 67, 73 (1st Cir.
______
_______
1991), in which a determination of qualified immunity as a matter
of law, after assuming all facts in a plaintiff's favor, is
"impossible" due to conflicting evidence as to the "underlying
historical facts."
Such facts could include "if what the
policeman knew prior to the arrest is genuinely in dispute, and
if a reasonable officer's perception of probable cause would
differ depending on the correct version, that factual dispute
must be resolved by a fact finder."
Id.
Here, there is no
___
dispute about what Broderick knew at the time but, rather, the
dispute is over whether his perception was accurate.
Only the
former is relevant to the qualified immunity analysis.
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District
Court
that
he
was
not
guilty
of
intercepting
communications.
The district court
conclusion that a
inference
Plaintiffs
Court.8
More
operation
not
affidavit
the
precise
however,
moment he
whether
noticed
_______
produce any
evidence
on this point.
to
on the recording.
belief that
did
importantly,
Finding submitted by
at
Broderick's affidavit
The basis
speaking
its
Broderick
the
recorder
in
conversation.
directly refute
There is no
was
Plaintiffs
Broderick's
that he knew
at that time that none of his words had been or would be recorded
____________
___________
was recording.
the proceedings
Broderick's part
That perception,
below,
establishes a
that Lowinger
was attempting to
on
secretly tape
Lowinger also
____________________
relevant to
this motion
since
Broderick's credibility."
Brief of
position regarding
the
demonstrates
recording
that
they "present[]
Appellee at 23.
to the
qualified immunity.
his perceptions
and beliefs
was
made.9
At
Broderick
may
have been
most,
noted
such
mistaken
________
at the
evidence
in
such
preliminary determination
of entitlement
to
As
to
a challenge
beliefs.
create a
Accordingly,
Broderick on
____________________
9
The issue facing the district court would have been quite
different if, for example, Plaintiffs could provide evidence of
actions or statements by Broderick at the time of the incident
which would tend to negate his statements of his observations as
provided in his affidavit. If such truly conflicting evidence
were presented, then the court would have been faced with the
scenario described in Prokey, note 7 supra, and entry of summary
______
_____
judgment for Broderick would be inappropriate.
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