585 F.3d 500 (1st Cir. 2009), 08-1582, Holder v. Town of Sandown

Docket Nº:08-1582.
Citation:585 F.3d 500
Opinion Judge:RIPPLE, Circuit Judge.
Party Name:Ralph HOLDER, Plaintiff, Appellant, v. TOWN OF SANDOWN, J. Scott Currier, Jason R. Morrow, and Derek Feather, Defendants, Appellees.
Attorney:Sven D. Wiberg and Wiberg Law Office, PLLC, on brief, for appellant. Brian J.S. Cullen and Cullen Collimore, PLLC, on brief, for appellees.
Judge Panel:Before LYNCH, Chief Judge, TORRUELLA, and RIPPLE,[*] Circuit Judges.
Case Date:October 29, 2009
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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585 F.3d 500 (1st Cir. 2009)

Ralph HOLDER, Plaintiff, Appellant,


TOWN OF SANDOWN, J. Scott Currier, Jason R. Morrow, and Derek Feather, Defendants, Appellees.

No. 08-1582.

United States Court of Appeals, First Circuit.

October 29, 2009

Submitted Sept. 10, 2009.

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Sven D. Wiberg and Wiberg Law Office, PLLC, on brief, for appellant.

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Brian J.S. Cullen and Cullen Collimore, PLLC, on brief, for appellees.

Before LYNCH, Chief Judge, TORRUELLA, and RIPPLE,[*] Circuit Judges.

RIPPLE, Circuit Judge.

After he was arrested for the simple assault of his estranged wife, Ralph Holder brought this § 1983 action against the Town of Sandown, one Sandown police officer and the Sandown Chief of Police. In his complaint, Mr. Holder alleged, in addition to other claims not relevant to this appeal, that the officer had lacked probable cause to effect the arrest and therefore had violated his rights under the Fourth Amendment to the Constitution of the United States, as made applicable to the states through the Fourteenth Amendment. In due course, the defendants moved for summary judgment and, after a hearing, the district court granted the motion. Mr. Holder appeals, contending that the district court erred in concluding that the officer had probable cause for the arrest. For the reasons set forth in this opinion, we affirm the judgment of the district court.



Because this case is before us on an appeal from the grant of summary judgment, we must take the facts in the light most favorable to the non-moving party, Mr. Holder, and must draw all reasonable inferences in his favor. Crawford v. Metro. Gov't of Nashville & Davidson County, Tenn., __ U.S. __, 129 S.Ct. 846, 849 n. 1, 172 L.Ed.2d 650 (2009); Taylor v. American Chemistry Council, 576 F.3d 16, 21 (1st Cir.2009).

On October 4, 2003, Ralph Holder attended his son's soccer game. His estranged wife, Maria, also was in attendance. When it began to rain, Mr. Holder approached his wife and asked her if she had a long-sleeved shirt for their son. When told that she did not, he asked if she could make sure that she had one next time. At this point, Ms. Holder yelled at Mr. Holder that he needed to " keep [his] black mouth shut," R.10, Att. 5 at 1, and unexpectedly bumped him. Mr. Holder " instinctively" pushed her away. Id. Ms. Holder challenged him to a fight and said that he needed " to keep [his] hands off [her]" and called him a " black bastard." R.20 ¶ 9; R.10, Att. 5 at 2. She then called the police.

Officer Jason Morrow was the first to arrive on the scene, and he spoke with Ms. Holder. She identified Mr. Holder and told the officer that he pushed her. Officer Morrow then went over and talked to Mr. Holder. While this discussion was taking place, Officer Derek Feather arrived.

Mr. Holder told Officer Morrow that Ms. Holder had initiated a verbal confrontation that had escalated to the point where she made contact with him before he pushed her back.1 He also informed the officers that his estranged wife's true objective was to obtain a restraining order to keep him from having contact with his son. Mr. Holder also told them that he and his estranged wife were involved in a bitter and protracted divorce and child

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custody battle, and he urged the officers to speak with nearby witnesses.

Mr. Holder was arrested and charged with simple assault.2 The determination of probable cause was made by Officer Morrow; Officer Feather merely assisted with the arrest. That assistance included providing his handcuffs for use in the arrest.

After the arrest, Officer Feather spoke with Ms. Holder and three witnesses. He received the impression that the witnesses did not want to get involved, but one of them did say that Ms. Holder had been verbally aggressive to Mr. Holder and, in the view of the witness, had precipitated the dispute. The other two witnesses seemed to agree. However, the witness who spoke with Officer Feather based his opinion only on what he had heard; he had not seen anything.

The case against Mr. Holder eventually was dismissed.


In his complaint, Mr. Holder alleged, in addition to several supplemental state law claims, that the officers had lacked probable cause to effect the arrest, that the officers had discriminated against him on the basis of race and gender and that the officers had violated his due process rights by not interviewing witnesses and by not allowing him to conduct his own investigation.3 The complaint named as defendants the Town of Sandown, Sandown's then-Chief of Police, J. Scott Currier, Officer Morrow and Officer Feather. By the time Mr. Holder brought this action, however, Officer Morrow had left the Sandown Police Department; he never was served and therefore never became a defendant in this action.

The district court granted summary judgment for the defendants on the Fourth Amendment claim. The district court held that, as a matter of law, Mr. Holder's constitutional right to be free from an unreasonable seizure had not been violated. With respect to Officer Feather, moreover, the court determined that, because he had played no role in effecting the arrest, there was no basis for any liability. With respect to the Town, the court determined that there was no evidence of a policy, custom or inadequate hiring and training practices that could constitute the basis of liability. Similarly, with respect to the Chief of Police, the court held there was no evidence that he had encouraged, condoned or acquiesced in any illegal arrest. Failure to take action against the officers after the fact was not sufficient to expose him to liability.

The court also granted summary judgment on the remaining federal claims and dismissed the state claims without prejudice. Mr. Holder now appeals the district

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court's ruling with respect to whether there was probable cause to effect his arrest.



An arrest is lawful if the officer has " probable cause." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). A police officer has probable cause when, at the time of the arrest, the " facts and circumstances...

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