Broderick v. Roache

• Decision Date: 05 April 1993
• Docket Number: No. 92-2389,92-2389
• Citation: 996 F.2d 1294
• Parties: William T. BRODERICK, et al., Plaintiffs, Appellees, v. Francis ROACHE, et al., Defendants, Appellees. Arthur Morgan, Jr., Plaintiff, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1294

996 F.2d 1294

William T. BRODERICK, et al., Plaintiffs, Appellees, v. Francis ROACHE, et al., Defendants, Appellees Arthur Morgan, Jr., Plaintiff, Appellant.

No. 92-2389.

United States Court of Appeals First Circuit.

Heard April 5, 1993.

Decided June 18, 1993.

Walter B. Prince with whom Peckham, Lobel, Casey, Prince & Tye, Boston, MA, was on brief for plaintiff, appellant.

James F. Lamond with whom Alan J. McDonald and McDonald, Noonan and Lamond, Newton, MA, were on brief for defendants, appellees William T. Broderick, et al.

Before TORRUELLA and STAHL, Circuit Judges, and BURNS, ^* District Judge.

STAHL, Circuit Judge.

In this appeal, defendant-appellant Arthur Morgan, Jr. ("Morgan") challenges the district court's ruling that he was not entitled to qualified immunity. Finding no error in the district court's ruling, we affirm.

I. BACKGROUND

On May 12, 1990, plaintiffs-appellees the Boston Police Superior Officers Federation ("Federation") and William Broderick ("Broderick"), an employee of the Boston Police Department ("Department") ¹ and an official of the Federation, ² initiated this action against Morgan, the Department's Deputy Superintendent in charge of the Internal Affairs Division ("IAD"); the City of Boston ("City"); Francis Roache, the Department's Commissioner; Paul Evans, the Department's Superintendent-in-Chief in charge of the Bureau of Field Services; Robert Conlon, a sergeant detective within the Department's IAD; and Charles Burke, the Department's Deputy Director of the Bureau of Administrative Services. ³ The complaint alleges that defendants have engaged in a series of acts designed to harass Broderick and retaliate against him for exercising his First Amendment rights (1) to speak on matters of public concern; (2) to participate in union activities; and (3) to file actions in court. Plaintiffs proceed pursuant to 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act ("MCRA"), Mass.Gen.Laws Ann. ch. 12, §§ 11H and I (West 1986). ⁴

At issue in this appeal is Morgan's involvement in four separate incidents wherein Broderick was disciplined, ostensibly for violating Department rules and regulations. Specifically, plaintiffs claim that Morgan 1. In early 1989, Morgan received a complaint that Broderick was abusing the "release time" available to him as a Federation officer. "Release time" is time during which elected officials of the Federation are allowed to conduct Federation business during on-duty hours. Broderick asserts that Morgan departed from ordinary procedures in subsequently developing and bringing charges against him and recommending a disciplinary hearing. Among the departures from ordinary procedures alleged by Broderick is that, prior to the hearing, Morgan never afforded Broderick an opportunity to explain what happened and/or to accept a lesser form of discipline in order to avoid the hearing.

                prompted by a desire to harass and retaliate against Broderick, abused the power of his position by developing and bringing charges against Broderick for his role in the four incidents.   The particulars of these incidents, along with the implicated factual disputes, are delineated in the district court's thorough memorandum and order and need not be restated at length.   See Broderick v. Roache, 1992 WL 512164, Civil Action No. 90-11500-MA, slip op. at 3-9 (D.Mass. Oct. 22, 1992) (hereinafter "Broderick V ").   Instead, we summarize the incidents as follows:
                

2. In April 1989, Broderick received notice that he would be required to undergo a second disciplinary hearing on charges that he had violated Department rules and regulations during an arrest of Kathleen Bean the previous February. Broderick claims, inter alia, that Morgan departed from ordinary procedures in pressuring Bean into filing the charges, disregarding the recommendation of Broderick's commanding officer that the charges be classified as "unfounded" (which Morgan had never done before), and subsequently urging Broderick's commanding officer to approve charges with which he disagreed.

3. In December 1989, Morgan was present at an interrogation of Broderick conducted by Superintendent Evans. The interrogation concerned certain remarks, critical of the Department, that were attributed to Broderick in an article appearing in the Boston Globe. Broderick essentially contends that Morgan exceeded his authority in attending the interrogation and improperly allowing the interrogation to extend beyond the scope of the Globe article.

4. In May 1990, Broderick received notice that he would be required to undergo a third disciplinary hearing on charges that he had violated Department rules and regulations while arresting Ezekiel Oluh the previous November. Broderick asserts, inter alia, that Morgan departed from ordinary procedures by ensuring that IAD, rather than Broderick's district, conducted the initial investigation into Oluh's complaint, and by becoming personally involved in the investigation. During the course of the IAD investigation, Oluh filed a second complaint against Broderick, asserting that Broderick had threatened him during the course of the criminal trial which followed the initial arrest. Broderick claims that Morgan departed from ordinary procedures by again disregarding the recommendation of Broderick's commanding officer that the charges in this second complaint be classified as "unfounded." He also contends that Morgan used this second set of charges to retaliate against him for seeking an injunction in a lawsuit brought by the Federation against the Department over civil service promotions.

On March 4, 1992, Morgan filed a motion for summary judgment, arguing that the doctrine of qualified immunity shielded him from liability. As we have noted, the district court, by memorandum and order dated October 22, 1992, rejected that argument. In so doing, the court found genuine issues of material fact regarding Morgan's motive in the actions he took against Broderick, and that the question of qualified immunity could not, therefore, properly be resolved by pretrial motion. See Caro v. Aponte-Roque, 878 F.2d 1, 2-4 (1st Cir.1989) (genuine issues of material fact on the question of defendant's motive for taking adverse personnel action against plaintiff made proceeding to trial on question of qualified immunity

                appropriate). 5  It is from this ruling that Morgan now appeals.
                

II. DISCUSSION

Before discussing the merits of Morgan's appeal, we pause to note that which we need not resolve. In moving for summary judgment before the district court, Morgan neither challenged the court's ruling that Broderick's conduct is constitutionally protected nor contended that the rights at issue were not "clearly established," see Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), at the time the relevant incidents occurred. See, e.g., Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 38 (1st Cir.1993) (awarding defendant qualified immunity from damage claim because the implicated constitutional right was not clearly established at the time of the complained of acts). Moreover, Morgan expressly conceded to the district court that he could "be presumed to know that it was unlawful to retaliate against Broderick for Broderick's First Amendment protected conduct[.]" To the extent, therefore, that Morgan now is attempting to argue otherwise, ⁶ he is precluded from so doing. See, e.g., Dedham Water v. Cumberland Farms Dairy, Inc., 972 F.2d 453, 459 (1st Cir.1992) ("It is hornbook law that theories not raised squarely in the district court cannot be surfaced for the first time on appeal.") (quoting McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13, 22 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1939, 118 L.Ed.2d 545 (1992)); see also Buenrostro v. Collazo, 973 F.2d 39, 44 (1st Cir.1992) (refusing to allow appellants to assert on appeal a different basis for a qualified immunity defense than that argued to the district court).

When Morgan's brief is stripped of this procedurally defaulted chaff, only three arguments, the first two of which are interrelated, remain: (1) that the question of a defendant's intent/motive is immaterial to a properly conducted qualified immunity analysis; (2) that, as a matter of law, Morgan's actions in developing and bringing the charges against Broderick, absent any consideration of the issue of his intent/motive in so doing, were objectively reasonable, see Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987), in light of the information he possessed at the times he acted; and (3) that there are no genuine issues of material fact as to whether Morgan's intent/motive in developing and bringing the charges against Broderick was retaliatory. We discuss each in turn.

A. Intent and Qualified Immunity

Morgan's first argument, that the question of his intent is immaterial to the qualified immunity analysis, is premised upon a broad reading of certain language in Harlow. Concerned that too many insubstantial civil rights claims were proceeding to trial and reacting particularly to the "substantial costs attend[ant to] the litigation of the subjective good faith of government officials[,]" see id., 457 U.S. at 815-17, 102 S.Ct. at 2736-38, the Harlow Court overruled previous contrary [W]e conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or the burdens of broad-reaching discovery. We therefore hold that 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.

authority ⁷ and jettisoned the "subjective" element of the qualified immunity defense, stating:

Id. at 817-18, 102 S.Ct. at 2738. In subsequent cases, the Court has...