405 F.3d 66 (1st Cir. 2005), 04-1226, Burke v. Town of Walpole

Docket Nº:04-1226.
Citation:405 F.3d 66
Party Name:Edmund F. BURKE, Plaintiff, Appellant, v. TOWN OF WALPOLE; Joseph Betro; Richard Stillman; James J. Dolan; William F. Bausch; Lowell Levine; Stephen McDonald; Kevin Shea; Kathleen Crowley, Defendants, Appellees, Robert Martin, Appellee.
Case Date:April 26, 2005
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 66

405 F.3d 66 (1st Cir. 2005)

Edmund F. BURKE, Plaintiff, Appellant,


TOWN OF WALPOLE; Joseph Betro; Richard Stillman; James J. Dolan; William F. Bausch; Lowell Levine; Stephen McDonald; Kevin Shea; Kathleen Crowley, Defendants, Appellees,

Robert Martin, Appellee.

No. 04-1226.

United States Court of Appeals, First Circuit

April 26, 2005

Heard Sept. 13, 2004.

Page 67

[Copyrighted Material Omitted]

Page 68

[Copyrighted Material Omitted]

Page 69

Robert S. Sinsheimer, with whom Susan Sivacek and Sinsheimer & Associates were on brief, for Appellant.

James W. Simpson, Jr., with whom Douglas I. Louison and Merrick, Louison & Costello, LLP, were on brief, for Appellees Town of Walpole, Joseph Betro, Richard Stillman, James J. Dolan, and William F. Bausch.

Erin George, with whom Matthew H. McNamara and Thorn Gershon Tymann and Bonanni, LLP, were on brief, for Appellee Lowell Levine.

Suzanne T. Caravaggio, with whom Joseph P. Kittredge and Law Offices of Timothy M. Burke were on brief, for Appellees Stephen McDonald and Kevin Shea.

Page 70

Robert M. Mendillo, with whom Mendillo & Ross, LLP, was on brief, for Appellee Kathleen Crowley.

Thomas F. Reilly, Attorney General, and Natalie S. Monroe, Assistant Attorney General, on brief for Appellee Robert Martin.

Before SELYA, LIPEZ, and HOWARD, Circuit Judges.

LIPEZ, Circuit Judge.

This civil rights case requires us to decide whether police officers of the Town of Walpole and the Commonwealth of Massachusetts Department of State Police ("Massachusetts State Police" or "MSP") were entitled to summary judgment on Plaintiff-Appellant Edmund F. Burke's claim that they violated his Fourth Amendment rights when they arrested him for a brutal murder he did not commit. We must also decide whether forensic dentists/odontologists who assisted in the murder investigation were entitled to summary judgment on Burke's claims that they fabricated or exaggerated inculpatory bite mark evidence in support of probable cause. Finally, we must decide whether the Chief of Police of the Town of Walpole was entitled to summary judgment on Burke's claim that he defamed Burke after his arrest.

We first identify the defendants and their official positions. Defendants James J. Dolan, William F. Bausch, Joseph Betro, and Richard Stillman were employed in the Police Department of Defendant Town of Walpole, Dolan and Bausch as detectives, Betro as Chief of Police, and Stillman as Lieutenant and press officer. Defendants Stephen McDonald and Kevin Shea were Troopers with the Massachusetts State Police assigned to the Crime Prevention and Control Unit at the Norfolk County Office of the District Attorney,1 with Shea holding the rank of Sergeant. Defendants Dr. Lowell Levine and Dr. Kathleen Crowley were employed as forensic odontologists, Dr. Levine as an independent consultant to the Norfolk County District Attorney's Office, and Dr. Crowley on a part-time basis with the Massachusetts Office of the Chief Medical Examiner. Appellee Robert Martin was employed as a chemist at the MSP Crime Laboratory.

After a careful review of the record, with our focus on Burke's principal § 1983 claim, we conclude the following:

· viewing the evidence as we must on summary judgment, Burke has proffered evidence sufficient to support a finding that he was arrested without probable cause, and hence in violation of his Fourth Amendment right;

· Trooper McDonald's defense of qualified immunity fails because the record contains evidence, sufficient to create a jury question, that he intentionally or recklessly withheld exculpatory DNA evidence from the magistrate who issued the warrant to arrest Burke, and a reasonable officer would know that such conduct violated a clearly established Fourth Amendment right;

· Det. Dolan had a reasonable basis for seeking an arrest warrant and is entitled to summary judgment on the ground of qualified immunity;

· Det. Bausch and Sgt. Shea reasonably relied on a facially valid arrest warrant and are entitled to summary judgment on the ground of qualified immunity;

· the record fails to support Burke's allegation that Dr. Levine or Dr. Crowley intentionally or recklessly fabricated or exaggerated inculpatory bite

Page 71

mark opinions, and they are entitled to summary judgment on the ground of qualified immunity;

· Chief Betro's public statements made in the exercise of his official duties are conditionally privileged, and he is entitled to summary judgment on Burke's defamation claim.2


We recount the facts in the light most favorable to Plaintiff-Appellant Burke. Diaz v. City of Fitchburg, 176 F.3d 560, 561 (1st Cir. 1999). On the morning of December 1, 1998, the partially clothed and mutilated body of 75-year-old Irene Kennedy was found in a wooded area of Bird Park in Walpole, Massachusetts. She had been savagely beaten, strangled, and stabbed multiple times. Her breasts were exposed, and the left breast bore a visible bite mark. Investigators from the Town of Walpole Police Department and the Massachusetts State Police were called to the scene after Kennedy's husband alerted a park caretaker to the body's presence.3 According to police reports, Mr. Kennedy told investigators that he and his wife walked in the park almost daily, but that they took separate routes because an injury prevented him from walking as quickly as his wife. He stated that he had gone looking for his wife when she failed to meet him at their usual time in the parking lot that morning, and that he had discovered her body in an area of the park

Page 72

where he knew she sometimes stopped to urinate.

Upon learning of Mrs. Kennedy's murder, one of the Kennedys' daughters, Nancy Tower, told Det. Bausch that he should speak to Edmund Burke, who lived on the street adjoining the parking lot where her parents routinely parked, and whose brother was married to another of the Kennedys' daughters. According to Det. Bausch's report, Tower told him that Burke was "very odd." Trooper McDonald also reported that Tower told him "that Eddie Burke is abusive to his mother" and that Burke's mother had told Mrs. Kennedy so. Trooper McDonald's report continued, "Ms. Tower stated that as a result of these conversations she felt that her mother was leery of Burke. Ms. Tower stated that subject Burke is unemployed and hangs around his house all day and seems very strange."

Later that morning, when Det. Bausch and another Walpole police officer visited Burke's home, where he lived with his 88-year-old mother, no one responded to their knocks or shouts. When they returned to the house a short time later, Burke's mother and brother were outside the house. According to Det. Bausch's report, Burke's mother told him Burke had been asleep when she left the house earlier that morning, and she seemed reluctant to wake him, but eventually agreed to do so. When Burke came outside, Det. Bausch informed him and his brother of Mrs. Kennedy's death. Burke then agreed to go to the police station to talk to investigators and left with his brother while Det. Bausch remained outside Burke's house.

Meanwhile, investigators at the crime scene employed a K-9 tracking dog to follow any scents detected near the body. According to a report by the dog's handler, the dog was introduced to "a pile of leaves [removed] from between the victim's legs" and then proceeded through the woods and across a field towards the street on which Burke lived. From there, the handler recorded, "we went to the right before the K-9 circled back to the left heading west. [The] K-9 ... traveled along the ... sidewalk past [Burke's house] for about fifteen to twenty feet. The K-9 circled back and traveled to the front door of [Burke's house]...."

Det. Bausch saw the K-9 dog come out of the woods and ultimately stop at Burke's house. Det. Bausch then went to the police station, where he, Sgt. Shea, and Trooper McDonald questioned Burke. According to Sgt. Shea's report, Burke told the officers that he knew the Kennedys but not well, and he described their walking routine, which he knew because he usually saw them in the morning in the parking lot next to his house. Burke stated that he had been asleep at home at the time of the murder until the police arrived and his mother woke him up. Burke also stated that he had not visited the park for two years, intending the statement to mean that he had not gone to the park as a destination during that time. When Det. Bausch told Burke that a K-9 dog had apparently tracked a scent through the park to Burke's front door, Burke stated that he had taken a shortcut through the park late on the Sunday night before the Tuesday morning murder, along with two of his cats. The officers considered this statement to be inconsistent with Burke's earlier statement that he had not visited the park for two years. While at the station, Burke provided a saliva sample for DNA testing and comparison with any foreign DNA collected from the body. He also permitted police to take his jacket in order to test it for forensic evidence.

In the days after the murder, Det. Dolan interviewed potential witnesses who lived in the vicinity of Bird Park or who walked

Page 73

regularly in the park. He recorded statements by several people who reported seeing a person matching Burke's description in the general area of the park in which the body was found in the days before the murder and also in the driveway outside Burke's house on the morning of the murder when Burke said he had been asleep.

Further examination of the victim's body by the Chief Medical Examiner's Office revealed a second bite mark on the other breast. Both bite marks were determined to have been made by a human. The bite marks were photographed and the bite mark on the left breast swabbed to collect DNA evidence from any traces of foreign saliva or skin. The swab from the victim's left breast...

To continue reading