Mlodzinski v. Lewis

• Decision Date: 02 June 2011
• Docket Number: 10–1967.,Nos. 10–1966,s. 10–1966
• Citation: 648 F.3d 24
• Parties: Thomas MLODZINSKI; Tina Mlodzinski, individually and as mother and next friend of J.M., Plaintiffs, Appellees,v.Michael F. LEWIS, in his individual and official capacities as Bristol Police Department Sergeant; Timothy J. Woodward, in his individual and official capacities as Bristol Police Department Officer; Gordon C. Ramsay, in his individual and official capacities as Bristol Police Department Officer; Richard Arell, in his individual and official capacities as Northfield Police Department Officer; Central New Hampshire Special Operations Unit, a/k/a CNHSOU; Robert Cormier, in his individual and official capacities as Plymouth Police Department Officer; Chris Tyler, in his individual and official capacities as Littleton Police Department Officer; Rick Tyler, in his individual and official capacities as Grafton Sheriff's Department Officer, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

648 F.3d 24

Thomas MLODZINSKI; Tina Mlodzinski, individually and as mother and next friend of J.M., Plaintiffs, Appellees,

v.Michael F. LEWIS, in his individual and official capacities as Bristol Police Department Sergeant; Timothy J. Woodward, in his individual and official capacities as Bristol Police Department Officer; Gordon C. Ramsay, in his individual and official capacities as Bristol Police Department Officer; Richard Arell, in his individual and official capacities as Northfield Police Department Officer; Central New Hampshire Special Operations Unit, a/k/a CNHSOU; Robert Cormier, in his individual and official capacities as Plymouth Police Department Officer; Chris Tyler, in his individual and official capacities as Littleton Police Department Officer; Rick Tyler, in his individual and official capacities as Grafton Sheriff's Department Officer, Defendants, Appellants.

Nos. 10–1966

10–1967.

United States Court of Appeals, First Circuit.

Heard April 7, 2011.Decided June 2, 2011.

Charles P. Bauer, with whom Gallagher, Callahan & Gartrell, P.C. was on brief, for appellants Lewis, Woodward, and Ramsay.William G. Scott, with whom Boynton, Waldron, Doleac, Woodman & Scott, P.A. was on brief, for appellants Central New Hampshire Special Operations Unit, Arell, Cormier, Chris Tyler, and Rick Tyler.Matthew J. Lahey for appellees.Before LYNCH, Chief Judge, SELYA and HOWARD, Circuit Judges.LYNCH, Chief Judge.

This § 1983 action alleges that on August 2, 2006, defendant law enforcement officers from the Bristol, New Hampshire police force and the Central New Hampshire Special Operations Unit (CNHSOU) used excessive force in executing search and arrest warrants. Plaintiffs, who are family members of the suspect arrested, allege that their Fourth Amendment rights were violated by the officers' treatment of them while they were detained during the execution of the warrants. Plaintiffs also bring state law claims of assault and battery.

Seeking to avoid a trial, both sets of law enforcement officers moved for summary judgment, arguing that they did not violate plaintiffs' rights, and that even if they had, they were entitled to qualified immunity on the grounds that their actions were not clearly unlawful. Plaintiffs opposed, citing a number of material issues of disputed fact. Indeed, on most of the key issues, the two sides offer vastly different versions of the facts. The district court denied the motions. Mlodzinski v. Lewis, 731 F.Supp.2d 157, 184 (D.N.H.2010). Defendants have appealed from the denial of qualified immunity. We affirm in part and reverse in part.

I.

An interlocutory appeal from a denial of summary judgment on qualified immunity grounds lies only if the material facts are taken as undisputed and the issue on appeal is one of law. Rodríguez–Rodríguez v. Ortiz–Vélez, 391 F.3d 36, 39 (1st Cir.2004).

In 1995, the Supreme Court in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), cut back on the broad scope of appeals from denials of summary judgment on qualified immunity that was thought to exist under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). The Court stressed that the collateral order doctrine requires that a defendant's claim of immunity be conceptually distinct from the merits of a plaintiff's claim that his or her rights were violated, Johnson, 515 U.S. at 312, 115 S.Ct. 2151, and it held that questions of “evidence sufficiency” are not sufficiently distinct to warrant interlocutory appeal, id. at 313–14, 115 S.Ct. 2151. The Court explained that allowing an interlocutory appeal on a question of evidentiary sufficiency “makes unwise use of appellate courts' time, by forcing them to decide in the context of a less developed record, an issue very similar to one they may well decide anyway later, on a record that will permit a better decision.” Id. at 317, 115 S.Ct. 2151. Thus, it balanced interests in finality and avoidance of advisory opinions against the policy reasons for permitting interlocutory appeals so that government officials can avoid trial. Id. at 317–18, 115 S.Ct. 2151.

This court has explored this aspect of Johnson on several occasions, initially in Stella v. Kelley, 63 F.3d 71 (1st Cir.1995). There, we held that we had interlocutory jurisdiction over the legal question of whether a particular constitutional right existed, but not over the fact-based question of whether the evidence showed that a defendant's actions violated that right. ¹ Id. at 75. We explained that Johnson “permits immediate review of the rejection of a qualified immunity claim when the issue appealed concerns not what facts the litigants might (or might not) be able to prove, but, rather, whether a given set of facts shows a violation of a federally protected right.” Id.

This court has assumed interlocutory appellate jurisdiction where defendants have accepted as true all facts and inferences proffered by plaintiffs, and defendants argue that even on plaintiffs' best case, they are entitled to immunity. Rodríguez–Rodríguez, 391 F.3d at 40; see also Valdizán v. Rivera–Hernandez, 445 F.3d 63, 65 (1st Cir.2006) (accepting jurisdiction over issue of whether, on a given set of facts, an employee occupied a position for which political affiliation is an appropriate qualification). If even on plaintiffs' best case, there is no violation of their rights, or the law was not clearly established, or an objectively reasonable officer could have concluded (even mistakenly) that his or her conduct did not violate their rights, then qualified immunity must be granted. Accepting appellate review and granting immunity in this type of case furthers public officials' strong interests in resolving immunity issues as quickly as possible. Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir.2009).

Although we accept interlocutory jurisdiction in this case, we do so against a background in which even plaintiffs' best case against the CNHSOU officers is not entirely clear. This not only raises some of the same concerns that led the Supreme Court in Johnson to limit interlocutory jurisdiction, but also leads us to question whether this use of appellate review is in the best interests of those seeking immunity. Defendants, however, have opted not to create a summary judgment record of greater clarity, but rather to accept plaintiffs' version in order to test the immunity issue, so we accept jurisdiction. See Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996).

II.

While a claim of qualified immunity requires deference to the objectively reasonable beliefs and actions of the defendants, even if they are mistaken, the summary judgment standard requires that we draw all reasonable inferences in plaintiffs' favor, as long as they are based on facts that “are put forward on personal knowledge or otherwise documented by materials of evidentiary quality.” Morelli v. Webster, 552 F.3d 12, 18–19 (1st Cir.2009); see also Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ( “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”). We identify the “version of events that best comports with the summary judgment standard and then ask[ ] whether, given that set of facts, a reasonable officer should have known that his actions were unlawful.” Morelli, 552 F.3d at 19. Here, the facts of the events leading up to the execution of the search and arrest warrants are undisputed and common to all defendants. Thereafter, the parties' versions diverge, as do the actions of the two groups of defendants and the claims of the individual plaintiffs.

In late July 2006, Bristol Police Department Sergeant Michael Lewis and Officer Gordon Ramsay had probable cause to believe that seventeen-year-old Michael Rothman had severely beaten a young male victim, Brandon Stachulski, with an expandable nightstick. They responded to the scene of the attack and interviewed one of Stachulski's assailants, and Stachulski identified Rothman as the other. Stachulski, who bore several clearly visible marks that were consistent with the use of a nightstick, told the officers where Rothman lived and “that he is known to carry a firearm.”

On these grounds, Sergeant Lewis applied for warrants to arrest Rothman for second-degree assault and to search his residence for the nightstick. The Plymouth District Court issued the warrants at around 9:30 p.m. on August 1, 2006, authorizing execution of the warrants “at any time of day or night.”

That evening, Sergeant Lewis contacted defendant Robert Cormier, Commander of defendant CNHSOU, to request help executing the warrants. The CNHSOU is comprised of officers from the police departments of several towns in central New Hampshire and is trained for high-risk warrant executions. Lewis considered the execution high-risk due to the “viciousness of the assault and the allegations that Rothman was armed with an expandable baton and possibly a gun.” Lewis also considered “the size of the structure occupied by Rothman and the likelihood that there would be other persons present.” Cormier ordered fifteen members of the CNHSOU to meet at the Bristol police station.

After discussing the situation with Lewis, Cormier decided to use the assembled CNHSOU team to execute the warrants, entering the apartment before sunrise in order to catch Rothman by surprise and “thereby reduce the possibility of injury to police officers and third parties and to limit Rothman's opportunity to escape and dispose of the nightstick.” It is standard operating procedure for CNHSOU members to carry automatic assault rifles, with the safety catches off, and to wear military-style camouflage uniforms and helmets.

During the preparations for the execution of...