63 F.3d 71 (1st Cir. 1995), 95-1223, Stella v. Kelley

Docket Nº:95-1223.
Citation:63 F.3d 71
Party Name:Charles STELLA, et al., Plaintiffs, Appellees, v. John J. KELLEY, Jr., et al., Defendants, Appellants.
Case Date:August 23, 1995
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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63 F.3d 71 (1st Cir. 1995)

Charles STELLA, et al., Plaintiffs, Appellees,


John J. KELLEY, Jr., et al., Defendants, Appellants.

No. 95-1223.

United States Court of Appeals, First Circuit

August 23, 1995

Heard Aug. 1, 1995.

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Richard E. Brody, with whom Thomas M. Elcock and Morrison, Mahoney & Miller, Boston, MA, were on brief, for appellants.

Harvey A. Schwartz, with whom Schwartz, Shaw & Griffith, Boston, MA, was on brief, for appellees.

Before SELYA, CYR and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

This appeal, which requires us to apply the teachings of Johnson v. Jones, --- U.S. ----, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), furnishes virtually a textbook model of the limits of interlocutory review of qualified immunity matters in the post-Johnson era. We conclude that we have jurisdiction over only one facet of the appeal and, on that facet, we affirm the challenged order.


This case comes before us for the second time. See Stella v. Town of Tewksbury, 4 F.3d 53 (1st Cir.1993). We retell the tale only to the extent necessary to put the issues that we must decide into workable perspective.

In Tewksbury, Massachusetts (the Town), the five members of the Zoning Board of Appeals (the Board) are appointed for fixed terms by the Town's governing body (the Board of Selectmen) and may be removed during their terms only for cause. Plaintiffs Charles Stella, J. Peter Downing and Bruce Gordon formerly served on the Board. In that capacity, they voted to grant several controversial variances. When residents complained and the selectmen urged stricter enforcement of the Town's zoning code, the Board balked. Even after the selectmen instigated a citizens' petition demanding greater rigor, and succeeded in attracting over 1,000 signatures, the Board did not mend its ways.

In October of 1989, the selectmen created a two-member subcommittee to investigate the Board's performance. The subcommittee held public hearings at which various complaints were aired. When the Board refused to change course, the selectmen decided to clean house. After the Commonwealth's attorney general thwarted an effort by two selectmen, John J. Kelley, Jr. and William J. Hurton, to reduce the size of the Board from five members to three, the selectmen instituted proceedings regarding the possible removal of Board members for cause. 1 This time, a bare majority of the selectmen--Kelley, Hurton, and Thomas Camara--succeeded in ousting members of the Board from office on a series of three-to-two votes. 2

In May 1991, three of the casualties of this putsch filed suit against Kelley, Hurton, Camara, and the Town pursuant to 42 U.S.C. Sec. 1983 (1988). Their flagship claim was that the selectmen cashiered them in retaliation for their speech (the votes they had cast),

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thus abridging the First Amendment. 3

We need not recount the murmur of skirmishes that ensued. It suffices to say that after two notoriously false starts (one of which sparked the parties' earlier journey to this court) the selectmen moved for summary judgment on qualified immunity grounds. The district court at first granted the motion but, on reconsideration, reversed its field. The selectmen now appeal from the order denying summary judgment.


We begin with the architecture of the qualified immunity defense. We then consider the teachings gleaned from Johnson v. Jones. Finally, we apply the lessons we have learned to the problems that confront us.


Public officials accused of civil rights violations may raise the defense of qualified immunity as a shield against claims for damages arising out of their actions. If, however, the official's conduct violated some right emanating from federal law, and if the law was clearly established at the time of the infringement, so that an objectively reasonable actor would have realized that his conduct violated the plaintiff's rights, then the qualified immunity defense is unavailable. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982); Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir.1992). Thus, the doctrine of qualified immunity limits a plaintiff's damages against state actors "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.

The meaning of the adjectival phrase "clearly established," as it operates in the qualified immunity arena, has not always been clearly established. The Court has, however, attempted to explicate the phrase:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law the unlawfulness must be apparent.

Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citation omitted); see also Crooker v. Metallo, 5 F.3d 583, 585 (1st Cir.1993); Rodi v. Ventetuolo, 941 F.2d 22, 30 (1st Cir.1991). We recently wrote: "The inquiry into the nature of a constitutional right for the purpose of ascertaining clear establishment seeks to discover whether the right was reasonably well settled at the time of the challenged conduct and whether the manner in which the right related to the conduct was apparent." Martinez v. Colon, 54 F.3d 980, 988 (1st Cir.1995).


The qualified immunity defense is, in part, an immunity from trial as well as an immunity from damage awards. See Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). Thus, the defense may be asserted by a pretrial motion and, if the motion is rejected, immediate appellate review is sometimes available. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985).

In Johnson v. Jones, the Supreme Court cast new light on the circumstances under which an immediate appeal will lie from the denial of a pretrial motion asserting a qualified immunity defense. The plaintiff, Houston Jones, brought a section 1983 action against five police officers, claiming that they used excessive force incident to his arrest and detention. Three of the five officers proffered a qualified immunity defense and moved for summary judgment, contending that they knew...

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