748 F.2d 715 (1st Cir. 1984), 84-1449, Briggs v. Malley

Docket Nº:84-1449.
Citation:748 F.2d 715
Party Name:James R. BRIGGS and Louisa Briggs, Plaintiffs, Appellants, v. Edward MALLEY, et al., Defendants, Appellees.
Case Date:November 19, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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748 F.2d 715 (1st Cir. 1984)

James R. BRIGGS and Louisa Briggs, Plaintiffs, Appellants,


Edward MALLEY, et al., Defendants, Appellees.

No. 84-1449.

United States Court of Appeals, First Circuit

November 19, 1984

Argued Sept. 13, 1984.

John S. Foley, Providence, R.I., with whom Decof & Grimm, Providence, R.I., was on brief for plaintiffs, appellants.

Faith A. LaSalle, Sp. Asst. Atty. Gen., Providence, R.I., with whom Dennis J. Roberts, II, Atty. Gen., Providence, R.I., was on brief for defendants, appellees.

Before BOWNES, Circuit Judge, ALDRICH and SKELTON, [*] Senior Circuit Judges.

BOWNES, Circuit Judge.

Plaintiffs James and Louisa Briggs were arrested in March of 1981 under an arrest warrant which was obviously lacking in

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probable cause. The issue before us is whether the police officer who submitted the inadequate affidavit upon which the arrest warrant was based can be held liable for negligence under 42 U.S.C. Sec. 1983 for damages resulting from the arrest. The district court directed a verdict for the officer, holding that the issuance of the arrest warrant by a judge insulated the officer from liability.

The arrest of Mr. and Mrs. Briggs was triggered by the interception of a telephone call on a court-authorized wiretap in connection with a narcotics investigation of one Paul Driscoll, who was a friend of the Briggs' daughter, Jamie. The police officer on duty noted the substance of this call on a call log. The call log stated that the caller identified himself as "Dr. Shogun" and that there was a general conversation about a party the preceding night. The call log indicated that "caller says I can't believe I was token [sic] in front of Jimmy Briggs--caller states he passed it to Louisa--caller and Paul talk about another party going down tonight--Paul says Nancy was sitting in his lap rolling her thing ...." The investigation was being directed by defendant Edward Malley, who at that time held the rank of corporal with the Rhode Island State Police and was assigned to narcotics duty in the detective division. Malley was not present when the call from "Dr. Shogun" was intercepted, but discussed the drug terminology with his partner, Detective Youngsma. They determined that the call was incriminating because "token" is drug parlance for smoking marijuana and "rolling her thing" means rolling a marijuana cigarette. After the wiretap was shut down, Malley prepared affidavits for the issuance of arrest warrants for twenty-two people based upon the information obtained from the tap on Driscoll's phone.

Based solely on the conversation related above, Malley prepared an affidavit and arrest warrant form and a district court felony complaint form for both James and Louisa Briggs. The crime charged in the felony complaint was conspiracy to possess marijuana, a misdemeanor. 1 After preparing the affidavit, arrest warrant and complaint forms, Malley then appeared before a judge of the Rhode Island District Court, who issued arrest warrants for James and Louisa Briggs as well as twenty other individuals. Plaintiffs were arrested about twenty-three days later in the early hours of the morning. They were taken to the state police barracks and later that day to court for arraignment. The fact of their arrest was published in the local and statewide newspapers. The charges against plaintiffs were subsequently dropped because the grand jury to which the charges were presented returned no true bill.

Plaintiffs commenced an action under 42 U.S.C. Sec. 1983 against both Corporal Malley and the State of Rhode Island alleging fourth and fourteenth amendment violations and additionally filed state law claims of malicious prosecution, defamation and false imprisonment against the same defendants. The case was tried before a jury in February of 1984 and, at the close of plaintiff's evidence, both defendants moved for a directed verdict. The trial judge delivered an opinion from the bench in late February granting the motion as to both defendants. Plaintiffs filed a motion for a new trial, bringing to the trial judge's attention this court's February 6, 1984 decision in B.C.R. Transport Co., Inc. v. Fontaine, 727 F.2d 7 (1st Cir.1984). The district court, in a second opinion, denied plaintiff's motion for a new trial. Plaintiffs have appealed from the judgment in favor of Malley, but not the judgment in favor of Rhode Island.

In its initial opinion directing a verdict for Corporal Malley, the district court relied upon two lines of precedent. Under the First Circuit cases of Madison v. Manter, 441 F.2d 537 (1st Cir.1971), and Stadium Films, Inc. v. Baillargeon, 542 F.2d

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577 (1st Cir.1976), the district court found police officers to be immune from liability for negligently seeking warrants without probable cause. In both these cases, we had applied the state law of privilege or immunity which required malice before a police officer could be held liable for improper prosecution. Madison, 441 F.2d at 538; Stadium Films, 542 F.2d at 578. Acknowledging, however, that this approach may have been undercut by recent developments in good faith immunity set out in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the district court turned to Fifth Circuit precedent because it provided a more solid basis for the same result. In Rodriquez v. Ritchey, 556 F.2d 1185 (5th Cir.1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 894, 54 L.Ed.2d 799 (1978), and Smith v. Gonzales, 670 F.2d 522 (5th Cir.1982), cert. denied, 459 U.S. 1005, 103 S.Ct. 361, 74 L.Ed.2d 397 (1982), the Fifth Circuit held that when "the facts supporting an arrest are put before an intermediary, such as a Magistrate or Grand Jury, the intermediary's decision to issue a warrant or return an indictment, breaks the causal chain and insulates the initiating party." Smith, 670 F.2d at 526. Thus, regardless of any developments in immunity law allowing negligent conduct to ground Sec. 1983 liability, the district court found that the approval of the arrest warrant by the judge removed any causal connection between the acts of the police officer and the damage suffered by the plaintiffs due to their improper arrest.

In its second opinion, reconsidering its decision in light of B.R.C. Transport Co., Inc. v. Fontaine, 727 F.2d 7, the district court indicated that it did not find B.R.C. to be a decisive break with past First Circuit precedent. In B.R.C. Transport Co., Inc. v. Fontaine, we upheld a jury verdict awarding damages against a police officer for a search and seizure which violated the fourth amendment. We held that...

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