827 F.2d 836 (1st Cir. 1987), 86-1886, Borucki v. Ryan

Docket Nº:86-1886.
Citation:827 F.2d 836
Party Name:Robert A. BORUCKI, Plaintiff, Appellee, v. W. Michael RYAN, etc., Defendant, Appellant.
Case Date:August 27, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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827 F.2d 836 (1st Cir. 1987)

Robert A. BORUCKI, Plaintiff, Appellee,


W. Michael RYAN, etc., Defendant, Appellant.

No. 86-1886.

United States Court of Appeals, First Circuit

August 27, 1987

Heard April 9, 1987.

Roberta Thomas Brown, Legal Counsel to the Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Boston, was on brief for defendant, appellant.

Thomas F. McGuire, Fall River, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and MALETZ, [*] Senior Judge.

MALETZ, Senior Judge.

Plaintiff-appellee Robert Borucki filed a complaint in the United States District Court for the District of Massachusetts against defendant-appellant Michael Ryan, District Attorney for the Northwestern District of Massachusetts, seeking damages under federal and state civil rights laws for, inter alia, violation of Borucki's constitutional right of privacy. 42 U.S.C. Secs. 1983, 1985, 1986, 1988 (1982); Mass.Gen.Laws Ann. ch. 12, Sec. 11I (West 1980). The district court (Freedman, J.) held that Ryan did not have qualified immunity, and thus denied his motion to dismiss the complaint, 658 F.Supp. 325. This appeal followed. 1

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On this appeal from the denial of Ryan's motion to dismiss, we take all facts alleged in the complaint as true. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Williams v. City of Boston, 784 F.2d 430, 433 (1st Cir.1986).

Borucki was arrested and arraigned in February 1983 in connection with damage to twenty-three aircraft at an airport in Northampton, Massachusetts. He did not raise an insanity defense, but the state district court ordered him committed for examinations to determine his competency to stand trial, and to determine his criminal responsibility. See Mass.Gen.Laws Ann. ch. 123, Sec. 15(a) (West Supp.1987) (whenever court doubts whether defendant is competent to stand trial or is criminally responsible by reason of mental illness it may order examination). Separate reports on these topics were presented to the state court. Under Massachusetts law, such reports were to remain "private except in the discretion of the court." Id. at Sec. 36A. Borucki, by his attorney, entered into a stipulation limited to receipt in evidence of the report dealing with his competence to stand trial. On the basis of that report, on March 29, 1983, Borucki was found competent to stand trial; he then returned voluntarily to the state hospital to await trial. On June 17, 1983, Ryan dismissed the criminal charges against Borucki and held press conferences with various news media during which he "openly discussed the contents of the report on criminal responsibility." Complaint para. 32. Borucki then brought this civil rights action in the federal district court. According to his complaint, Ryan's disclosures to the press of the contents of the psychiatric report violated Borucki's right of privacy. Id.

Ryan moved to dismiss the complaint, contending that there was no general right of privacy that would encompass the allegations of the complaint; that if there was such a right, it was not clearly established, so that he was entitled to qualified immunity; that he was entitled to absolute immunity; and that dismissal of the federal claims would in turn necessitate dismissal of the pendent state claims. The district court found that Ryan did have absolute immunity with regard to his conduct in initiating the criminal proceedings, and so dismissed a count of the complaint that had alleged malicious prosecution. 2 However, the court denied Ryan's motion to dismiss those counts of the complaint alleging violation of the constitutional right of privacy, on the ground that a right of privacy applicable to the facts alleged had been clearly established and that Ryan was therefore not entitled to qualified immunity. Because we find that the alleged right of privacy was not clearly established as of the date of Ryan's alleged actions, we hold that Ryan is entitled to qualified immunity, and reverse the determination of the district court.


Qualified Immunity

"[O]fficials can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages...." Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3019, 82 L.Ed.2d 139 (1984). Consequently, "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Bonitz v. Fair, 804 F.2d 164, 166 (1st Cir.1986). Officials will prevail in their defense "as long as their actions

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could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, --- U.S. ----, ----, 107 S.Ct. 3034, 3037-40, 97 L.Ed.2d 523, (1987); Davis v. Scherer, supra, 468 U.S. at 191, 104 S.Ct. at 3017 (whether official may prevail in his qualified immunity defense depends upon objective reasonableness of his conduct, measured by reference to clearly established law).

In some instances, it may be be unclear whether an alleged official action even potentially implicates the constitutional or statutory right relied upon. See, e.g., Ricci v. Key Bancshares of Maine, Inc., 768 F.2d 456, 467 (1st Cir.1985) (official had qualified immunity from charge of discrimination on basis of national origin because it is unclear whether such discrimination unaccompanied by discrimination on basis of physiological characteristics is prohibited under section 1981). On the other hand, the law regarding the alleged violation may have been clearly enunciated, but application of that law to the facts may be unclear. See, e.g., De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1191 (1st Cir.1986). Or, while the right allegedly violated may have been clear in general outline, it may have been unclear how that right would be balanced against competing rights or interests. See, e.g., Davis v. Scherer, supra, 468 U.S. at 192 & n. 10, 104 S.Ct. at 3018 & n. 10 (determination of type of hearing required before discharge would require balancing of competing interests; not unreasonable for defendant to conclude that plaintiff had been provided with fundamentals of due process prior to discharge); Bonitz v. Fair, supra, 804 F.2d at 170, 172 (although clearly established that body searches are subject to fourth amendment balancing test for reasonableness, still necessary to determine whether particular search considered unreasonable under prevailing law).

Thus, in assessing a claim of qualified immunity, it is not sufficient for a court to ascertain in a general sense that the alleged right existed, otherwise "[p]laintiffs would be able to convert the rule of qualified immunity ... into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." Anderson v. Creighton, supra, --- U.S. at ----, 107 S.Ct. at 3039; see De Abadia v. Izquierdo Mora, supra, 792 F.2d at 1190 ("clearly established" means something less than requiring official to show that principle of law did not exist or there would be few cases in which officials could succeed). For example, although it is clear that there is a right to freedom of speech, it may not be clear that censoring a prisoner's mail will violate that right; and, although it is clear that there is a right to freedom of religion, it may not be clear that shaving off a prisoner's beard grown for religious reasons will violate that right. See Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978); Jihaad v. O'Brien, 645 F.2d 556 (6th Cir.1981); cf. Chapman v. Pickett, 586 F.2d 22, 25-26 (7th Cir.1978) (not clear that prisoner had right to refuse to handle foodstuffs forbidden by his religion; right must be established in particularized way). Accordingly, a court must determine whether an alleged right was established with sufficient particularity that a reasonable official could anticipate that his actions would violate that right. See Anderson v. Creighton, supra, --- U.S. at ----, 107 S.Ct. at 3038; Davis v. Scherer, supra, 468 U.S. at 195, 104 S.Ct. at 3019.

In short, while an official has a presumptive knowledge of constitutional standards, Floyd v. Farrell, 765 F.2d 1, 4-5 (1st Cir.1985), he is not expected to determine the manner in which the law's grey areas will be clarified and defined. See Procunier v. Navarette, supra, 434 U.S. at 565, 98 S.Ct. at 861 (officials could not reasonably have been expected to be aware of constitutional right that had not yet been declared); Harlow v. Fitzgerald, supra, 457 U.S. at 818, 102 S.Ct. at 2738 (official could not reasonably be expected to anticipate subsequent legal developments); De Abadia v. Izquierdo Mora, supra, 792 F.2d at 1190 (process of change in law usually involves sharpening of lines in law's grey areas, absent which there could reasonably be excusable

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mistakes). Against this background, we consider whether Ryan's act of revealing the contents of Borucki's psychiatric report violated a right of privacy clearly established as of June 17, 1983, the date of Ryan's press conferences. 3


Right of Privacy

A. "[A] right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution." Roe v. Wade, 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d 147 (1973). In Roe v. Wade, the Supreme Court placed the origins of that right in the fourteenth amendment's concept of personal liberty. Id. at 153, 93 S.Ct. at 726; Whalen v. Roe, 429 U.S. 589, 598-99 n. 23, 97 S.Ct. 869, 876 n. 23...

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