Flowers v. Fiore

• Citation: 359 F.3d 24
• Decision Date: 25 February 2004
• Docket Number: No. 03-1170.,No. 03-1533.,03-1170.,03-1533.
• Parties: Bernard FLOWERS, Plaintiff, Appellant, v. Officer Darren FIORE, Officer Lawrence Silvestri, Officer Michael Garafola, and the Town of Westerly, Rhode Island, Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

359 F.3d 24

Bernard FLOWERS, Plaintiff, Appellant, v. Officer Darren FIORE, Officer Lawrence Silvestri, Officer Michael Garafola, and the Town of Westerly, Rhode Island, Defendants, Appellees.

No. 03-1170.

No. 03-1533.

United States Court of Appeals, First Circuit.

Heard December 4, 2003.

Decided February 25, 2004.

Thomas G. Briody for appellant.

Michael J. Colucci, with whom Olenn & Penza LLP was on brief for appellees.

Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and STAHL, Senior Circuit Judge.

STAHL, Senior Circuit Judge.

Plaintiff-appellant Bernard Flowers appeals from the district court's grant of summary judgment in favor of defendant-appellees Darren Fiore, Michael Garafola, Lawrence Silvestri, and the Town of Westerly, Rhode Island ("Town"). Flowers' suit asserted violations of his constitutional rights under the Fourth and Fourteenth Amendments as well as pendent state law claims arising out of his stop and detention by members of the Westerly Police Department.

I. BACKGROUND

We draw the following recitation of facts from the summary judgment record, which includes Flowers' complaint, affidavits submitted by the defendant police officers, logs of radio transmissions and telephone calls related to the incident, and a complaint submitted by Flowers to the ACLU. We note where facts are in dispute.

On September 24, 2001, at approximately 11:55 a.m., the Westerly Police received a telephone call from Nunzio Gaccione, a Westerly resident. Gaccione "guess[ed] there was a little fight there with Butch Corbin and a couple other people" and that he "just got word that Corbin is sending two colored people over here to start some trouble." The dispatcher then radioed for Officer Fiore to respond to the complaint at Gaccione's residence on Ashaway Road. Fiore arrived at the residence within four to five minutes and met with Gaccione. Gaccione related that he received a call from Maurice O'Rourke, who stated that another individual, Michael Corbin, was sending two African-American men to Gaccione's home with a gun. Gaccione said that he believed this was because his grandson, Jason Bolduc, "works with a guy that Corbin knows and they had some type of falling out." Fiore claims to be familiar with Corbin and Bolduc, as both in the past have been involved in several disturbances and possible drug activity.

Gaccione then told Fiore that he had seen two African-American men in a small gray or black vehicle drive by his home about five minutes prior to Fiore's arrival. Gaccione believed that these men may have been the ones to whom O'Rourke referred.

At 12:12 p.m., Fiore detailed Gaccione's complaint, including the description of the suspects, into his log. Fiore alerted on his radio that police should be looking for a small gray or black vehicle with two black men, possibly armed. He further stated that he was "not too sure what it is" and that "they made threats over here at the Gaccione complex."

Next, Fiore took a post at the intersection of Route 3 and Danielle Drive, which is about half a mile east of the Gaccione residence along Route 3. He chose this particular location upon a belief that the suspect vehicle would return to the Gaccione residence after having passed by the Gaccione residence the first time. Some twenty to thirty minutes later, Fiore noticed a small gray car moving through the intersection of Route 3 and Danielle Drive. Fiore thought that about twenty minutes had elapsed since he took his position on Route 3. He conceded, however, that the time interval may have been as long as thirty minutes, as radio logs indicated. He "caught a side view of [the occupant of the car] and saw that it was a black male." Prior to observing this particular vehicle, Fiore did not notice any other cars with African-American male occupants drive by his post.

Fiore decided to follow this vehicle because "it fit the description of the Gaccione complaint and it was heading in the direction of the Gaccione residence."¹ Although he noticed only one occupant, he believed that the other suspect either could have been dropped off at another location or was hiding in the vehicle. At 12:42 p.m., Fiore notified dispatchers that he was following a vehicle on Route 3. He based his "probable cause" to stop the vehicle on his belief that "the description of the vehicle fit the description by Mr. Gaccione, there was a black male that was operating the vehicle ... the close proximity of the time of the call and the fact that it was heading toward Mr. Gaccione's residence."

After following the vehicle approximately one mile, Fiore activated his lights and signaled for Flowers to pull over. Both eventually stopped on High Street, approximately half a mile west of the Gaccione residence along Route 3. Fiore assumed that dispatch would send backup "because of the situation," and accordingly pulled Flowers over to a location near where he "knew backup was coming from a car stop." He instructed Flowers over the loudspeaker to remain in the vehicle. Next, two backup officers, Lawrence Silvestri and Michael Garafola, arrived in separate police cruisers. Garafola left his vehicle with a shotgun ready in hand. Fiore, again using the loudspeaker, directed Flowers to extend his arms out the window and then open the car door and exit the vehicle. Flowers complied. Fiore then directed Flowers to turn around with his hands in the air and walk backwards towards the officers. From the time they arrived and exited their vehicles, each officer had his weapon drawn.

Flowers contends that when he reached the officers, his "hands were forced behind [him], handcuffs were placed [on him] and [he] was dropped to [his knees]." Fiore claims that the officers directed Flowers to kneel on the road beside his car and lace his fingers behind his head, and that then Flowers was handcuffed, frisked, and placed in the back of Fiore's cruiser. All three officers also claim that they followed standard procedure for a high-risk (or felony) stop and that it was necessary to do so because they felt that there was a danger to their safety.²

While Flowers was in the back of the police cruiser, the backup officers searched Flowers' vehicle for weapons and a possible other suspect. Fiore claims that when nothing was recovered, he took Flowers out of the cruiser, removed his handcuffs, and explained why he was stopped. Flowers claims that Fiore first approached him and said, "Mr. Gaccione reported two black men threatened him and they had guns so you understand why I had to do what I had to do." Fiore then added that the two black men had a gray vehicle. With no apology, Flowers was ordered back to his car.

Fiore contends that he explained the situation to Flowers, at which time Flowers became very angry and accused him of racial profiling. Flowers then asked Fiore to use his phone so he could call his wife (who was working nearby and awaiting his arrival). Fiore responded that he did not have a phone. He suggested that Flowers use the phone at the gym across the street and then ordered Flowers to move his car. Flowers then went back to his car and drove to the local hospital, where his wife worked.

By this time, both backup officers had driven away. Fiore proceeded to make "a couple passes by the Gaccione residence" until the end of his shift. Thereafter, he did not re-take a post to look for a suspect vehicle "because of the time that had gone by" and his belief that "the immediate threat had pretty much diminished."

Pursuant to 42 U.S.C. § 1983, Flowers brought this action against Officers Fiore, Silvestri, and Garafola, and the Town of Westerly, claiming (1) that the police officers detained him because of his race, in violation of the Equal Protection Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, § 1; and (2) that the officers detained him without probable cause and used excessive force, and that the Town failed to properly train and supervise the officers, in violation of his right against unreasonable government search and seizure under the Fourth and Fourteenth Amendments of the federal Constitution. Flowers also asserted state law claims for assault and battery, false imprisonment, and intentional infliction of emotional distress, as well as for violations of his rights under Article 1, sections 2 and 6 of the Rhode Island Constitution. After the close of discovery, defendants moved for summary judgment, arguing that there were no constitutional violations, and that they were shielded from liability by the doctrine of qualified immunity. Upon determining that no constitutional rights had been violated, the court did not reach the issue of qualified immunity and granted summary judgment in favor of the defendants.³ This appeal followed.

II. DISCUSSION

We review a grant of summary judgment de novo. Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 31 (1st Cir.2002). Only where there is no genuine issue of material fact will the moving party be entitled to summary judgment. Fed.R.Civ.P. 56(c). A genuine issue of material fact is one that "properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit" under the applicable legal standard. Id. at 248, 106 S.Ct. 2505. In deciding whether a genuine issue of material fact exists, we view the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in that party's favor. See Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir.2002); United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992).

A. The Stop and Detention

For purposes of determining whether the stop and detention were constitutionally permissible, we must first decide whether the officers' actions amounted to an investigatory stop or was so...