298 F.3d 81 (1st Cir. 2002), 01-2272, Suboh v. District Attorney's Office of Suffolk Dist.

Docket Nº:01-2272, 01-2524.
Citation:298 F.3d 81
Party Name:Mouna Kandy SUBOH, Individually, As Administratix Of The Estate Of Ishaq Suboh, And As Next Friend Of Her Minor Daughter Sofia Kandy, Plaintiff, Appellee, v. DISTRICT ATTORNEY'S OFFICE OF THE SUFFOLK DISTRICT, Michael N. Murphy, Carl Borgioli, Defendants, Appellants, Page 82 City Of Revere, Massachusetts; Robert J. Haas Jr.; James Russo; Steven Pis
Case Date:August 01, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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298 F.3d 81 (1st Cir. 2002)
Mouna Kandy SUBOH, Individually, As Administratix Of The Estate Of Ishaq Suboh, And As Next Friend Of Her Minor Daughter Sofia Kandy, Plaintiff, Appellee,


DISTRICT ATTORNEY'S OFFICE OF THE SUFFOLK DISTRICT, Michael N. Murphy, Carl Borgioli, Defendants, Appellants,

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City Of Revere, Massachusetts; Robert J. Haas Jr.; James Russo; Steven Pisano; John McRae; Steven Wallace; Theodore Michalski; Julieann Mavarosa; Antonio Arcos; John M. Azzari; Richard Bachour; Ralph C. Martin Ii; Individually And In Their Official Capacities, Defendants.

Nos. 01-2272, 01-2524.

United States Court of Appeals, First Circuit

August 1, 2002

Heard June 11, 2002

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[Copyrighted Material Omitted]

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Linda A. Wagner, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on the brief for appellants District Attorney's Office and Michael N. Murphy.

Michael J. Akerson with whom Austin M. Joyce and Edward P. Reardon, P.C. were on the brief for appellant Carl Borgioli.

Harvey A. Schwartz with whom Kimberly H. Scheckner, Rodgers, Powers & Schwartz, James R. Knudsen, and Wittenberg & Associates were on the brief for appellee.

Before SELYA and LYNCH, Circuit Judges, and SCHWARZER,[*] Senior District Judge.

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LYNCH, Circuit Judge.

This appeal presents issues of qualified immunity for public officers, beneath which lie significant issues about parents' rights under the United States Constitution. The case history is one of international intrigue and of local law enforcement officers attempting to respond to the requirements of both criminal law and family law. Of the two defendants before us on appeal, we hold that one, Assistant District Attorney Michael Murphy, is entitled to qualified immunity. The other, Revere Police Officer Carl Borgioli, is not so entitled at the summary judgment stage. Consequently, we reverse the district court's denial of summary judgment on this issue as to Murphy and affirm the denial as to Borgioli.


We give the general background and then focus on what was known to the two defendants. We describe the facts in favor of the nonmoving party on summary judgment.

This case arises out of a complicated family dispute, involving three generations and three continents. The end result, according to the plaintiff, is that she has been deprived of custody of her young daughter due to the actions of the defendants.

The plaintiff, Mouna Kandy Suboh, is a native of Morocco and is now a resident of Massachusetts. In 1991, while still living with her parents in Morocco, she became pregnant out of wedlock. Suboh then fled to Holland to avoid what she says was her father's rage at her pregnancy. A daughter, Sofia, was born in Holland on April 9, 1992. Shortly thereafter, Suboh's mother traveled to Holland and convinced her to return to Morocco with the baby. Suboh's parents, the Kandys, then raised Sofia as if she were their own child. At some point, Suboh says, the Kandys obtained a fake birth certificate purporting to certify that Sofia was their biological child. At no point did they ever legally adopt Sofia; according to the plaintiff, Moroccan law does not allow such adoptions and Morocco officially recognizes Suboh as Sofia's mother. Suboh claims that her father is physically abusive and controlling, and that she agreed to her parents pretending to be Sofia's parents only because she feared her parents would not let her see Sofia at all if she did not agree.

In 1995, Suboh met an American citizen, Ishaq Suboh, and moved to Massachusetts to marry him. She says that the Kandys had promised to send Sofia to live with her in the United States, but reneged on that promise once she had left Morocco. Suboh says she returned to Morocco four times, attempting to obtain custody. She also filed a case in the Moroccan court system, but she says that the case was never adjudicated, due to her father's power and influence in Morocco. She eventually dropped the legal case so that her father would allow her to see Sofia again.

In April 1998, the Kandys came to Massachusetts in order for Suboh's father to receive medical treatment. They brought Sofia with them and stayed with Suboh and her husband at their apartment in Revere. On May 26, 1998, Suboh and her husband quarreled with the Kandys about whether Sofia would be returning to Morocco with the Kandys or staying with Suboh in Massachusetts. Following that fight, Suboh's husband called the Boston city councillor's office to explain the situation. An official there advised the pair to keep Sofia with them. Suboh and her husband then packed up their things, took Sofia, and went to the city councillor's office. They took with them Sofia's Dutch birth certificate, Moroccan birth identification

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records showing that Suboh was Sofia's mother, a document from the Dutch hospital where Sofia was born, papers from Suboh's Moroccan attorney, and copies of the Kandys' forged documentation. An official at the city councillor's office told them she would contact an attorney for them, and advised them to stay away from the Kandys and keep Sofia with them in the meantime. Suboh and her husband also went to the Immigration and Naturalization Service office to try to obtain residency papers for Sofia, but were unable to do so because they did not have her passport. Later that day, they checked into a hotel. The following day, after Suboh's husband spoke with Mr. Kandy, the two checked into another hotel.

Mustapha Kandy, Suboh's father, called the Revere police and reported that one of his daughters (Suboh) had kidnapped his other daughter (Sofia). The Kandys told the Revere police that Suboh and Sofia were sisters and that they, the Kandys, were Sofia's parents. The Kandys showed the police a birth certificate in French and Arabic indicating that Sofia was their daughter. This birth certificate was translated by a Revere police officer.

In the early morning of May 28, Officer Borgioli became involved with the case. He reviewed the information that his colleagues had obtained on the previous day. He went to the Revere apartment to interview the Kandys. The Kandys also showed him Sofia's passport and a document that turned out to be the forged birth certificate. While at the apartment, Borgioli also spoke with the officer who had translated the Kandys' documents. Borgioli also spoke with the Kandy's niece, who was visiting at the time. Borgioli stated in an affidavit that the niece told him that the Kandys had raised Sofia from a very young age.

Borgioli testified at his deposition that Mrs. Kandy told either him or one of the FBI agents that Suboh was Sofia's biological mother and that the Kandys had adopted Sofia. In his police report, Borgioli did not include anything about this supposed adoption, or the fact that the Kandys allegedly told him that Suboh was Sofia's biological mother. His affidavit confirms that he learned that Suboh was the biological mother from Suboh herself, when he interviewed her on the following day at the police station. Borgioli testified that he was under the impression, based on something that an Arabic-speaking FBI agent told him, that the Kandys' documents were adoption papers. But he also testified that he did not recall that either the Kandys or anyone else had ever used the word adoption. And this belief was also inconsistent with the document itself, which refers to Mrs. Kandy as the mother and says nothing about adoption.

Mr. Kandy told Borgioli that their son-in-law, Ishaq Suboh, had come to the apartment at some point earlier that day or on the previous day. Mr. Kandy said that, at that time, Ishaq had stolen a Rolex watch from him and asked for money, which he gave him. Mr. Kandy said that Ishaq then asked for more money and said he would call back later to arrange for a time for them to meet. Borgioli stated that Mr. Kandy believed that Suboh and her husband were holding Sofia for ransom money. There is nothing in the record, however, about Ishaq Suboh requesting ransom for the return of Sofia and nothing indicating that Mouna Suboh knew of such requests, if any were made.

Officer Borgioli called the District Attorney's office from the apartment. Borgioli spoke with Assistant District Attorney Murphy, telling him that the case involved a kidnapping for ransom and asking him questions about setting up a tap on the

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apartment's telephone. Murphy did not remember whether Borgioli told him that the Kandys were the biological parents of Sofia, or her custodians, but he says that Borgioli led him to believe that the Kandys had legal custody of Sofia.

While Borgioli was obtaining information from the Kandys, a fellow Revere police officer, who was with him at the Revere apartment, obtained information that Ishaq Suboh had attempted to charge airline tickets to his credit card, which was at its limit. At this point, the FBI was called in to assist with the case.

At some point during the day, Ishaq Suboh called from a number that the police later learned was the Boston City Council. He refused to speak with Mr. Kandy, but spoke with Mrs. Kandy and arranged to meet her at a nearby donut shop. Borgioli says that he understood the purpose of the meeting was to arrange the circumstances for Sofia's return. A special agent from the FBI listened in on the phone conversation. The meeting never took place.

The following day, two Revere police officers (not including Borgioli) located Suboh in a hotel in Maiden. Suboh told the police at that time that Sofia was her daughter and attempted to give them official, certified documentation showing that she was Sofia's birth mother. The police declined to accept the documents at that time.

The police then took Suboh and Sofia to the Revere police station to be interviewed. Borgioli conducted the interview. Suboh told Borgioli that she was Sofia's mother and that the...

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