Floyd v. Farrell, 84-2031

Decision Date19 June 1985
Docket NumberNo. 84-2031,84-2031
Citation765 F.2d 1
PartiesBarry Eric FLOYD, Plaintiff, Appellee, v. Richard J. FARRELL, Jr., Individually and in his Capacity as a Trooper for the New Hampshire State Police, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Douglas L. Patch, Asst. Atty. Gen., Div. of Legal Counsel, Concord, N.H., with whom Stephen E. Merrill, Atty. Gen., Concord, N.H., was on brief for defendant, appellant.

Edward B. Mulligan, IV, Laconia, N.H., with whom Snierson, McKean & Mattson, P.A., Laconia, N.H., was on brief for plaintiff, appellee.

Before LEVIN H. CAMPBELL, Chief Judge, and BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

This appeal arises out of a 42 U.S.C. Sec. 1983 action brought by Barry Floyd against Richard Farrell, a trooper for the New Hampshire State Police. Floyd alleged that Farrell had intentionally and maliciously arrested him on the felony charge of receiving stolen property in the absence of any probable cause to believe such a felony had been committed and had then caused bail to be set at the sum of $5,000, which resulted in Floyd's incarceration for eleven days. Farrell moved for summary judgment on the ground that, even if the record was viewed in the light most favorable to the plaintiff, the doctrine of qualified immunity provided him with a complete defense to any liability. The district court denied the motion, holding that "[t]he issue of qualified immunity is almost universally one which presents a question of fact to be determined by the trier of fact." Farrell has appealed this ruling and has asked us to find that, as a matter of law, he is immune from any civil liability arising out of his arrest of Floyd and that, consequently, his motion for summary judgment should have been granted.

Although we do not ordinarily permit interlocutory appeals of denials of summary judgment, this circuit has recently held that where the issue at summary judgment is either absolute or qualified immunity, we will accept jurisdiction over such appeals. Krohn v. United States, 742 F.2d 24 (1st Cir.1984). We found that "the inhospitality ... evidenced [by the Supreme Court's modification of the qualified immunity standard in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ] towards groundless suits against officials, would best be effected by making denials of the immunity immediately appealable, assuming a plausible claim thereto." Id. at 28. The question before us is, therefore, whether under the standard of qualified immunity established by Harlow, the facts establishing Farrell's qualified immunity were sufficiently complete and uncontroverted to require that summary judgment be granted.

I

The events leading up to Floyd's arrest began on July 18, 1983, when Farrell stopped a 1975 Chevrolet station wagon with a Massachusetts registration number because its left headlight was not operating. The stop was made around 9:45 P.M. in Moultonboro, New Hampshire. Barry Floyd was the driver of the car and his mother was a passenger in the car. Farrell asked Floyd for his license and registration. Floyd produced an expired Massachusetts driver's license but was unable to produce the registration. His mother looked through the glove compartment and found a copy of a car rental agreement from a Massachusetts rental agency. The rental agreement had expired as of April 15, 1983, and had limited the use of the car to Massachusetts.

Farrell returned to his cruiser and radioed his headquarters to run a National Crime Information Center (NCIC) computer check on both the car and the driver. The NCIC computer showed that the car had been reported as stolen and that an arrest warrant for the theft of the car had been issued for Frank Floyd. The computer also showed that Floyd himself was on parole for various breaking and entering convictions. After assuring himself that Floyd was unarmed, Farrell asked him if he knew the car was stolen. Floyd did not respond to the question. After a short interruption occasioned by the arrival of additional cruisers, Farrell returned to Floyd and asked him whether Frank Floyd was his father. Floyd told him that Frank Floyd was his father. Farrell then asked him again whether the car was stolen. According to Farrell's deposition, Floyd said, "What do you mean, stolen?" Farrell then told Floyd that the computer indicated that the car was stolen, showed him the expired rental agreement, and told him that his father was wanted for the theft of the car. Floyd's response to this, according to Farrell's deposition, was, "He probably dumped it in New Hampshire. It was getting too hot." At this point, Farrell read Floyd his Miranda rights. Sometime during this period, Floyd also said several times, "My father, that son-of-a-bitch, I'll kill him."

After the Miranda rights had been read, Farrell began to question Floyd more closely about what he knew about the car. Farrell's deposition shows that Floyd said to him, "Yes the car's probably stolen. He dumped it or ditched it here in New Hampshire." Farrell then asked Floyd where his father was and Floyd told him that he and his mother were just returning from dropping his father at the bus station when they were stopped. When Farrell asked Floyd why his father hadn't taken the car himself, Floyd replied, "It's pretty obvious, don't you think?" or something to that effect. Floyd then told him that his father had left the car for the use of his mother, who lived in New Hampshire.

Farrell then drove Floyd to the Carroll County Jail in Ossipee, New Hampshire, where the bail commissioner set bail at $5,000. According to Farrell's deposition, he played no part in setting this amount; however, when Floyd was arraigned the next morning and the Judge brought up the issue of bail, Farrell recommended that it be kept at $5,000. In his deposition Farrell stated that he made this recommendation since he was concerned that Floyd would be tempted to flee because of his prior criminal record and because he was probably in violation of his parole. During the arraignment, Farrell spoke to Floyd's brother, recommending that he get a New Hampshire lawyer for Floyd and suggesting that he might try to get his father involved because he might be able to testify for Floyd on the issue of whether Floyd knew the car was stolen.

Floyd's brother arranged for a Boston attorney named Levanson to represent Floyd. According to Farrell's deposition, Levanson called him frequently during the next several days and suggested a deal whereby, if the father turned himself into the Massachusetts police, New Hampshire would reduce the charges against Floyd. Farrell's deposition testimony was that he consistently told Levanson that the matter was in the hands of the county attorney and that he could do nothing about it. Levanson then transferred the case to a New Hampshire attorney named Snierson. Snierson contacted Farrell and, according to Farrell's deposition, they discussed the plea bargain proposal suggested by Levanson and Farrell told Snierson that this could only be worked out through the county attorney's office.

A somewhat different story of Farrell's conversations with Levanson and Snierson emerges from Snierson's deposition and affidavit, both of which were submitted with Floyd's opposition to the motion for summary judgment. According to Snierson, Levanson told him that it was Farrell who had proposed the deal reducing the charge against Floyd if his father turned himself in to Massachusetts authorities. Furthermore, Snierson testified in his deposition that when he spoke to Farrell himself that Farrell brought up a deal whereby if the father turned himself in, Farrell would ask to have Floyd's bail reduced to $500 and the felony charge reduced to unlawful use of a motor vehicle, a misdemeanor. Farrell indicated that this would all have to happen fairly quickly, as a grand jury would be available on August 9, and gave Snierson the name of the county attorney. According to Snierson's deposition, he then asked Farrell if "these charges were brought to flush out the father?" and Farrell replied, "You got it."

On July 19, 1983, there was a probable cause hearing on the felony charge and the court found no probable cause for a felony charge. Floyd then pled guilty to the offense of driving without a license and was released. In September of 1983, Floyd filed suit against Farrell alleging violations of his civil rights and malicious prosecution. He asserted that his comments to Farrell at the time of his arrest made it clear that he did not know the car was stolen prior to being informed of that fact by Farrell and that Farrell's conversations with both Levanson and Snierson indicated that Farrell knew there was no probable cause to charge Floyd with receipt of stolen property, but had charged him and arranged for a high bail in an attempt to get Floyd's father to turn himself in.

II

The general rule of qualified immunity, set out in Harlow, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 is 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." Id. at 818, 102 S.Ct. at 2738. This standard eliminates from consideration allegations about the...

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