Dirrane v. Brookline Police Dept.

• Decision Date: 31 December 2002
• Docket Number: No. 01-2613.,No. 01-2523.,01-2523.,01-2613.
• Citation: 315 F.3d 65
• Parties: John B. DIRRANE, Plaintiff, Appellant/Cross-Appellee, v. The BROOKLINE POLICE DEPARTMENT; Town of Brookline; and Daniel C. O'Leary, in his official capacity as Chief of Police, Defendants, Appellees, Daniel C. O'Leary, in his individual capacity; Thomas Keaveney; and Thomas Heavey, Defendants, Appellees/Cross-Appellants.
• Court: U.S. Court of Appeals — First Circuit

315 F.3d 65

John B. DIRRANE, Plaintiff, Appellant/Cross-Appellee, v. The BROOKLINE POLICE DEPARTMENT; Town of Brookline; and Daniel C. O'Leary, in his official capacity as Chief of Police, Defendants, Appellees, Daniel C. O'Leary, in his individual capacity; Thomas Keaveney; and Thomas Heavey, Defendants, Appellees/Cross-Appellants.

No. 01-2523.

No. 01-2613.

United States Court of Appeals, First Circuit.

Heard August 1, 2002.

Decided December 31, 2002.

COPYRIGHT MATERIAL OMITTED

Eric S. Maxwell for plaintiff.

Lisa M. Asiaf with whom Paul V. Kelly and Kelly, Libby & Hoopes, P.C. were on brief for defendants, appellees, cross-appellants Daniel C. O'Leary, Thomas Keaveney and Thomas Heavey.

David Lee Turner, Office of Town Counsel, with whom Jennifer Dopazo was on brief for defendants, appellees the Brookline Police Department, the Town of Brookline and Daniel C. O'Leary.

Before BOUDIN, Chief Judge, GIBSON,^* Senior Circuit Judge, and TORRUELLA, Circuit Judge.

BOUDIN, Chief Judge.

This case began when John Dirrane, a police officer in the Brookline Police Department, brought a civil action to recover for alleged retaliation against him for reporting abuses in the police force, primarily within his own unit. Certain of the individual defendants counterclaimed for defamation. The district court ultimately dismissed all claims — some on a motion to dismiss and some on summary judgment — and both sides have appealed.

Dirrane joined the Brookline police force in 1980 and, in 1986, joined the Identification Unit ("ID Unit") of the Detective Division. The ID Unit deals with photographs, fingerprints, and the like. Dirrane's immediate supervisor was Sergeant Thomas Heavey. In the early years, the head of the Detective Division was Captain Hayes; Hayes was succeeded by Captain Thomas Keaveney. The Chief of Police in Brookline was Howard Brackett until 1995 and then Daniel O'Leary.

According to Dirrane, work increased in the ID Unit beginning in the early 1990s and thereafter Heavey and the other officer in the unit engaged in a continuing array of abuses. Dirrane complained repeatedly to Heavey and, when rebuffed, took his complaints on a number of occasions to Keaveney, Hayes, and O'Leary. Dirrane's complaints ranged from minor to quite serious. His initial complaints, which started in 1992, were relatively minor; he claimed that certain officers were playing cards during work hours, that his supervisors had improperly waived firearm licensing requirements, and that the accounting safeguards in his unit were inadequate. He then started to make more serious allegations charging Heavey and the other officer in the unit with falsifying fingerprint reports and destroying fingerprint evidence. He alleged that Heavey instructed him to falsify reports as well. He also continued to make less serious complaints, objecting to the manner in which evidence was stored and logged in the unit.

In Dirrane's view, these senior figures promised to look into matters but did very little. By contrast, according to the defense, Keaveney and O'Leary (Hayes is not a defendant and his role can be ignored) concluded that much of what Dirrane was alleging was wrong or could not be substantiated, that Dirrane was a continuing cause of friction and disruption, that he needed to talk with a department psychologist, and (ultimately) that he ought to work somewhere else in the department.

In March or April 1997, Keaveney changed Dirrane's work hours from 6 a.m. to 2 p.m. to a more normal schedule (8 a.m. to 4 p.m.) but one that Dirrane said conflicted with his wife's schedule and their need to care for their child. Under some stress, Dirrane then asked for a transfer to the Patrol Division or to another detective unit. On April 17, Internal Affairs officers asked Dirrane for his office keys and his firearm, and on April 18, O'Leary and Keaveney told Dirrane that he was moving to the Patrol Division. Because of the stress, he was given ten-days leave before reporting.

During the next several months Dirrane received some psychological counseling while serving in the Patrol Division, and his firearm was returned to him about a year later. Dirrane continued to earn his ordinary police-officer income but claims to have suffered severe and permanent emotional trauma as a result of his overall experience. On April 7, 1999, just short of two years after his transfer, Dirrane brought the present action in state court.

In relevant part, Dirrane's complaint alleged a violation of the Massachusetts whistleblower statute (count II), Mass. Gen. Laws ch. 149, § 185 (2000), and a violation of his First Amendment rights subject to redress under 42 U.S.C. § 1983 (2000) (count III).¹ The pertinent remaining defendants are the Town of Brookline, Chief O'Leary and Captain Keaveney. Although Sergeant Heavey was also named, he did not cause the alleged retaliation complained of and on appeal Dirrane makes no effort to implicate him. The individual defendants counterclaimed against Dirrane for defamation based on statements Dirrane made to the press about the matter. The defense removed the case to federal district court pursuant to 28 U.S.C. § 1441 (2000).

After removal to federal court and discovery, the district court in two successive orders dismissed all claims on both sides. The section 1983 damage claims against the individual officers were dismissed on qualified immunity grounds. As to the town, the court found no evidence whatsoever of any policy or custom that could warrant municipal liability under the Monell doctrine. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The court also declined to order injunctive relief against the town or Chief O'Leary.

The district court dismissed the state whistleblower claim because concededly Dirrane had not provided the "written notice" that the court found to be required by the statute. The court also said, in the alternative, that neither the state nor the federal claims could succeed because Dirrane had himself requested the transfer. Finally, the court dismissed the counterclaims for defamation on the ground that the "malice" requirement could not be met. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Cross-appeals followed.

1. We begin with Dirrane's attack on the dismissal of his First Amendment claims for damages against the individual officers. As to these claims, the district court assumed the truth of the allegations in the complaint; but it concluded that Dirrane could identify no doctrine or precedent "clearly" establishing that the defendants' conduct under the circumstances alleged violated his constitutional rights. Accordingly, it held that the officers were protected against damages claims by the doctrine of qualified immunity. Our review on this issue is de novo. Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002).

Some First Amendment issues are governed by clear-cut rules, even though there may be close cases on the facts. E.g., Branti v. Finkel, 445 U.S. 507, 517, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) (political allegiance as a permissible job qualification for policymakers). But for alleged "disruptive speech" by government whistleblowers, the Supreme Court has adopted only a balancing test: the whistle-blower is entitled to protection against retaliation if his speech interests, along with the public's interest in hearing the speech, outweigh the government's need to limit distractions, conserve resources, and maintain esprit in the workplace. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 150-51, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987).

This uncertain standard implicates the companion legal doctrine of qualified immunity. Under section 1983, a government employee is immune to damages where a reasonable official could believe (the test is objective), albeit mistakenly, that his conduct did not violate the First Amendment. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Immunity exists even where the abstract "right" invoked by the plaintiff is well-established, so long as the official could reasonably have believed "on the facts" that no violation existed. See Suboh v. Dist. Attorney's Office, 298 F.3d 81, 90 (1st Cir.2002); Swain v. Spinney, 117 F.3d 1, 9-10 (1st Cir.1997).

In a decision issued after the district court ruled, the Supreme Court has instructed us to start not with the immunity issue but with the question whether the facts as alleged make out a violation of the First Amendment. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).² This makes sense where the issue is whether some abstract right exists; otherwise the "rights" issue may never be resolved. Id. But it is an uncomfortable exercise where, as here, the answer whether there was a violation may depend on a kaleidoscope of facts not yet fully developed. It may be that Saucier was not strictly intended to cover the latter case.

Nevertheless, assuming arguendo that Saucier applies, we agree with Dirrane that a colorable constitutional claim would be made out if everything asserted by Dirrane in his very lengthy complaint were established as true and — perhaps more importantly — defendants had no other facts with which to justify their actions. It is difficult to be more definitive because of a lack of case law; usually, the plaintiff is derailed before the court reaches the merits question because the plaintiff was a policymaker who could be fired or demoted because of his speech, or because pre-Saucier qualified immunity mooted the merits question.

In all events, the constitutional standard already set forth requires a balancing of the considerations on both sides. Those in Dirrane's favor are fairly easy to state. Some of...