Dwan v. City of Boston

• Decision Date: 27 May 2003
• Docket Number: No. 02-1493.,02-1493.
• Citation: 329 F.3d 275
• Parties: Robert A. DWAN; Catherine M. Dwan; Allyson M. Dwan, by her parents and natural guardians, Robert A. Dwan and Catherine M. Dwan; Brittany C.M. Dwan, by her parents and natural guardians, Robert A. Dwan and Catherine M. Dwan; Madyson E. Dwan, by her parents and natural guardians, Robert A. Dwan And Catherine M. Dwan; Robert A. Dwan, Jr., by his parents and natural guardians, Robert A. Dwan and Catherine M. Dwan; Christopher J. Dwan, by his parents and natural guardians, Robert A. Dwan and Catherine M. Dwan, Plaintiffs, Appellees v. CITY OF BOSTON, Defendant. Paul F. Evans, individually and as the Police Commissioner for the Boston Police Department; Thomas Dowd, individually and as an employee of the City of Boston Police Department, Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

329 F.3d 275

Robert A. DWAN; Catherine M. Dwan; Allyson M. Dwan, by her parents and natural guardians, Robert A. Dwan and Catherine M. Dwan; Brittany C.M. Dwan, by her parents and natural guardians, Robert A. Dwan and Catherine M. Dwan; Madyson E. Dwan, by her parents and natural guardians, Robert A. Dwan And Catherine M. Dwan; Robert A. Dwan, Jr., by his parents and natural guardians, Robert A. Dwan and Catherine M. Dwan; Christopher J. Dwan, by his parents and natural guardians, Robert A. Dwan and Catherine M. Dwan, Plaintiffs, Appellees v. CITY OF BOSTON, Defendant.

Paul F. Evans, individually and as the Police Commissioner for the Boston Police Department; Thomas Dowd, individually and as an employee of the City of Boston Police Department, Defendants, Appellants.

No. 02-1493.

United States Court of Appeals, First Circuit.

Heard December 6, 2003.

Decided May 27, 2003.

Steven P. Perlmutter with whom Michael D. Lurie, Elizabeth C. Sackett and Robinson & Cole, LLP, were on brief for appellants.

Stephen J. Delamere with whom Bruce A. Bierhans and Law Offices of Bruce A. Bierhans, LLC, were on brief for appellees.

Before Boudin, Chief Judge, Farris,^* Senior Circuit Judge, and Torruella, Circuit Judge.

BOUDIN, Chief Judge.

Robert Dwan sued the City of Boston and two superior officers in the Boston Police Department ("Department"), claiming that the defendants violated his Fifth Amendment rights by putting him on paid administrative leave after he refused to testify before a grand jury concerning the vicious beating of another police officer. The district court rejected the officers' claim of qualified immunity, and the officers have appealed. We conclude that Dwan's superiors do have qualified immunity.

This case is an offshoot of the 1995 assault of Boston police officer Michael Cox, described in detail in United States v. Conley, 249 F.3d 38, 40-43 (1st Cir.2001) and United States v. Conley, 186 F.3d 7, 11-15 (1st Cir.1999), cert. denied 529 U.S. 1017, 120 S.Ct. 1417, 146 L.Ed.2d 310 (2000). As to the events involving Dwan, we recount the facts in the light most favorable to Dwan as the party opposing summary judgment. N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 36 (1st Cir.2001).

Robert Dwan joined the Boston Police Department in 1989 as an officer; he has been a sergeant since 1997. On the evening of January 25, 1995, Dwan was on patrol with his partner Kenneth Conley. A broadcast over the police radio reported a robbery at a Boston nightclub and, mistakenly, that a police officer had been shot. Several police cars pursued the suspects. The chase ended at a cul de sac where the suspects ran from their car and were chased on foot. One of the first officers on the scene was Michael Cox, an African-American undercover officer dressed in plainclothes. Dwan and Conley arrived in the fifth car on the scene. Cox pursued one of the suspects to a fence at one end of the cul de sac. The suspect climbed over the fence, but as Cox started to climb after him, he was pulled down by unidentified police officers and beaten severely.

The Department immediately launched an investigation into the Cox beating. Dwan initially cooperated, filing a report in March 1995, describing his actions on the night in question and claiming that he did not see which officers assaulted Michael Cox because he (Dwan) was at the other end of the cul de sac assisting in the arrest of another suspect. Officer Joseph Horton corroborated Dwan's story, stating that he (Horton) assisted in the arrest and saw Dwan assisting as well. An Internal Affairs officer expressed himself satisfied.

Nevertheless, the Department continued to question Dwan. This was partly because no officer ever admitted to beating Cox or seeing anyone else do so, but also because Dwan's version of events was at odds with other evidence. A security guard who was in Michael Cox's car stated that he was present when the second suspect was arrested and that no one fitting Dwan's description assisted in the arrest. In addition, Officer Richard Walker testified that he saw two officers matching Conley and Dwan's descriptions not far from where Cox was beaten.

In May 1997, Dwan was called before a federal grand jury investigating the Cox beating as a potential civil rights violation. Dwan was not given immunity in this proceeding and refused to testify, invoking his Fifth Amendment right against self-incrimination. He was again subpoenaed to testify before the grand jury in October 1998. His attorney told the prosecutor that Dwan would again invoke the Fifth Amendment if he was not given immunity, and the prosecutor withdrew the subpoena.

Eight days later, on October 28, 1998, Dwan was placed on administrative leave with pay. Police Commissioner Paul Evans said in a letter that the decision had been made for "the efficiency of the Department" and should not be considered disciplinary action. In January 1999, the Department charged Dwan with violating regulations in numerous respects (e.g., filing a false report) in regard to the Cox beating. The Department scheduled four hearings over the next year regarding these charges, but cancelled all of them, and the complaint was ultimately abandoned.

Dwan remained on administrative leave for eighteen months (October 1998-March 2000). While on leave, he was paid his regular salary but could not work overtime or special assignments; Dwan claims that the forgone income totaled between 50 and 100 percent of his base salary. He was reinstated in March 2000 after passing the second of two polygraph examinations indicating that he did not participate in the Cox beating and did not see who did participate. Since his reinstatement, Dwan alleges that the Department has denied his requests to work special assignments and to be transferred to another district.

On March 12, 2001, Dwan brought suit for damages in federal court against the Department, Police Commissioner Evans, and Deputy Superintendent Thomas Dowd (who oversaw the Cox investigation).¹ In pertinent part, Dwan's complaint alleged that the defendants violated 42 U.S.C. § 1985 (2000), his First, Fifth, and Fourteenth Amendment rights, which are subject to redress under 42 U.S.C. § 1983 (2000), and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I (2000). His wife and children also sued the defendants for loss of consortium. Mass. Gen. Laws ch. 258, § 2 (2000).

The defendants moved for summary judgment, which the district court granted on all counts except Dwan's Fifth Amendment claim and the claim under the Massachusetts Civil Rights Act, which depends on the Fifth Amendment claim. As to this claim, the district court held that taking all factual inferences in favor of Dwan, "a reasonable jury could conclude that his right against self-incrimination was wrongfully burdened by the defendants' actions" which could constitute "a scheme of harassment designed to chill his Fifth Amendment rights and to coerce Dwan into incriminating himself." The court also held that Dwan's Fifth Amendment rights were "clearly established" so qualified immunity was unavailable.

The individual defendants have appealed from the order denying qualified immunity. An interlocutory appeal lies from such a denial, Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), at least "to the extent that the qualified immunity defense turns upon a `purely legal' question." Fletcher v. Town of Clinton, 196 F.3d 41, 45 (1st Cir.1999). In such an instance, our review is, of course, de novo. Suboh v. Dist. Attorney's Office, 298 F.3d 81, 90 (1st Cir.2002). If qualified immunity is denied because the district court finds a disputed issue of fact reserved for trial, interlocutory review as to that ruling is not available. Diaz v. Martinez, 112 F.3d 1, 3 (1st Cir.1997).

Under well-established law, the individual defendants are entitled to qualified immunity for official action unless (1) their conduct violated Dwan's constitutional rights and, in addition, (2) the law to this effect was "clearly established" under then-existing law so that a reasonable police officer would have known that his behavior was unlawful. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Saucier contemplates, although with possible exceptions not pertinent here, see Dirrane v. Brookline Police Dep't, 315 F.3d 65, 69-70 (1st Cir.2002), that the reviewing court should begin with the former question.

The inquiry is simplified, but only partly, by the defendants' concession (for purposes of this appeal) that Dwan was placed on administrative leave "because" he pleaded or threatened to plead the Fifth Amendment before the federal grand jury. This concession confirms what would otherwise have been a plausible but not inevitable inference from the timing of events: that the administrative leave decision was prompted at least in part by Dwan's action in taking the Fifth Amendment and not solely by an unrelated determination that he should be investigated internally for misconduct.

In a set of decisions in the late 1960s and in the 1970s, the Supreme Court held that public employees could not be coerced into waiving their Fifth Amendment rights.² Most of the cases involved public employees who were fired or otherwise penalized for pleading the Fifth Amendment after being advised that this action would automatically result in such penalty. Although the Supreme Court has not recently revisited the Garrity line of cases, a number of the circuits including this one have focused on the "coercion" issue emphasized by the Court in those cases, making it a claim dependent on such a showing.³

Further, this circuit has held that coercion is lacking so long as the employee was never threatened or forewarned of any sanction for refusing to testify, even though the employee suffers adverse action after-the-fact as a result of refusing to cooperate. See Singer, 49 F.3d at 847 (1st...