Limone v. Condon

Decision Date10 June 2004
Docket NumberNo. 03-2212.,No. 03-2130.,03-2130.,03-2212.
Citation372 F.3d 39
CourtU.S. Court of Appeals — First Circuit
PartiesPeter J. LIMONE et al., Plaintiffs, Appellees, v. Dennis CONDON et al., Defendants, Appellants.

John M. Connolly, with whom Michael B. Meyer and Meyer, Connolly, Sloman & MacDonald LLP were on brief, for appellant Condon.

James M. Chernetsky, Assistant Corporation Counsel, City of Boston, with whom Thomas R. Donohue, Assistant Corporation Counsel, was on brief, for appellant Walsh.

Michael Avery, with whom Juliane Balliro, Ronald J. Snyder, and Perkins, Smith & Cohen, LLP were on consolidated brief, for appellees Limone and Tameleo et al.

John Foskett, with whom Richard D. Bickelman, Lawrence R. Holland, and Deutsch Williams Brooks Derensis & Holland, P.C. were on brief, for appellees Werner (Executrix of the Estate of Louis Greco) et al.

Before SELYA, Circuit Judge, GIBSON,* Senior Circuit Judge, and HOWARD, Circuit Judge.

SELYA, Circuit Judge.

These interlocutory appeals follow the entry of an order denying motions to dismiss based on qualified immunity. See Limone v. United States, 271 F.Supp.2d 345, 349 (D.Mass.2003). The appellants exhort us to reverse that decree or, alternatively, to exercise pendent appellate jurisdiction over another (potentially dispositive) issue. We conclude that at this stage of the proceedings (i) the district court appropriately rejected the appellants' qualified immunity defenses, and (ii) the scope of these interlocutory appeals should not be broadened to encompass an unrelated issue. Consequently, we affirm the denial of qualified immunity and remand for further development of the facts.


These appeals arise out of two separate but closely related suits, consolidated in the district court. An explication of the underlying facts requires the juridical equivalent of an archeological dig. The relevant events date back almost four decades to the 1965 murder of Edward "Teddy" Deegan and the 1968 convictions of several individuals, including Peter Limone, Louis Greco, and Henry Tameleo, for that slaying. Notwithstanding the jury's verdict and the subsequent rejection of their direct appeals, see Commonwealth v. French, 357 Mass. 356, 259 N.E.2d 195 (1970), the three men steadfastly maintained their innocence and mounted a campaign to clear their names. The facts, as now revealed, seemingly support their claims of innocence. The instant actions seek damages against those allegedly responsible for their wrongful convictions.

For present purposes, the operative pleadings are the two amended complaints.1 Those complaints are separate but similar. We compile the following account of the facts by reading the amended complaints in tandem, drawing all reasonable inferences therefrom in the light most agreeable to the plaintiffs (as the parties opposing the motions to dismiss). We note, however, that the district court recounted the factual allegations set out in the amended complaints at some length, see Limone, 271 F.Supp.2d at 349-53, and we urge those who hunger for greater detail to consult that rescript.

The plaintiffs — Limone (the only surviving member of the trio), the estates of Greco and Tameleo, and various relatives asserting derivative claims — have sued both a quondam agent of the Federal Bureau of Investigation (FBI) and a retired Boston police officer.2 The amended complaints allege that the former FBI agent, Dennis Condon, and the former Boston detective, Frank L. Walsh, framed Limone, Greco, and Tameleo, assisted the Commonwealth of Massachusetts in wrongly convicting them on a charge of first-degree murder, participated in a coverup, and allowed the three innocent men to languish in prison for years.3 In relevant part, the complaints assert Bivens claims against Condon, see Bivens v. Six Unknown Named Agents of the FBN, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and section 1983 claims against Walsh, see 42 U.S.C. § 1983 (2000). The central theme of these claims is the accusation that Condon and Walsh, inter alias, violated the Constitution by developing one Joseph "Baron" Barboza as a witness for the prosecution in spite of their knowledge that Barboza would perjure himself and falsely implicate three innocent men in Deegan's murder.

Condon and Walsh (appellants here) moved to dismiss both amended complaints based on the doctrine of qualified immunity. They simultaneously moved to dismiss the suits brought on behalf of Greco and Tameleo on the ground that those plaintiffs had failed to satisfy the favorable termination requirement (described infra Part III) laid down by the Supreme Court in Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The district court rebuffed these initiatives. As to qualified immunity, the court found it inconceivable that, at the time of the relevant events, "a reasonable law enforcement officer would have thought it permissible to frame somebody for a crime he or she did not commit." Limone, 271 F.Supp.2d at 365-66. As to Heck, the court found the favorable termination requirement satisfied vis-à-vis the Greco and Tameleo plaintiffs on a theory of constructive reversal and, alternatively, on a theory of estoppel. Id. at 361. These timely appeals ensued.


Condon and Walsh have appealed from the district court's order denying their motions to dismiss based on qualified immunity. An interlocutory appeal lies from such an order where, as here, qualified immunity turns on abstract legal questions. Stella v. Kelley, 63 F.3d 71, 74 (1st Cir.1995). We review the district court's order de novo, directing dismissal of the complaints "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

We begin with first principles. Qualified immunity is a judge-made doctrine. The elementary justification for the doctrine is that public officials performing discretionary functions should be free to act without fear of retributive suits for damages except when they should have understood that particular conduct was unlawful. Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). That awareness depends, in large part, on the extent to which legal rules were clearly established when the official acted. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). It follows that an inquiry into the reasonableness of an officer's conduct must focus both on what the officer did (or failed to do) and on the state of the law at the time of the alleged act or omission. Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir.2003) (en banc), cert. denied, 540 U.S. 1109, 124 S.Ct. 1074, 157 L.Ed.2d 895 (2004); Iacobucci v. Boulter, 193 F.3d 14, 21 (1st Cir.1999). In the end, the qualified immunity defense should prevail unless the unlawfulness of the challenged conduct was "apparent" when undertaken. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

Although these appeals involve claims based on two different legal theories — Bivens and section 1983 — the analytical framework is, for our purposes, identical. See Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Drawing on Supreme Court precedent, see, e.g., Saucier v. Katz, 533 U.S. 194, 200-02, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), we have developed a three-part algorithm for assessing whether a federal or state actor is entitled to qualified immunity. We consider (i) whether the plaintiff's allegations, if true, establish a constitutional violation; (ii) whether the constitutional right at issue was clearly established at the time of the putative violation; and (iii) whether a reasonable officer, situated similarly to the defendant, would have understood the challenged act or omission to contravene the discerned constitutional right. Savard, 338 F.3d at 27. More often than not, proper development of the law of qualified immunity is advanced if courts treat these three questions sequentially. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151; Fabiano v. Hopkins, 352 F.3d 447, 453 (1st Cir.2003).


The threshold question in a qualified immunity appeal centers on the current state of the law. On a motion to dismiss, this question asks whether the facts alleged, viewed in the light most favorable to the complaining party, show that the officer's conduct violated some constitutional right. Siegert v. Gilley, 500 U.S. 226, 232-33, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991); Santana v. Calderon, 342 F.3d 18, 23 (1st Cir.2003). We turn directly to that question.

The amended complaints paint a sordid picture. Although the misdeeds described therein are many and varied, the plaintiffs' claims may be distilled into two basic allegations: first, that the appellants purposefully suborned false testimony from a key witness; and second, that the appellants suppressed exculpatory evidence in an effort both to cover up their own malefactions and to shield the actual murderers (one of whom was being groomed as an FBI informant). The complaints weave these allegations together. From that platform, the plaintiffs asseverate that an individual's right not to be convicted by these tawdry means — his right not to be framed by the government — is beyond doubt.

This is easy pickings. Although constitutional interpretation occasionally can prove recondite, some truths are self-evident. This is one such: if any concept is fundamental to our American system of justice, it is that those charged with upholding the law are prohibited from deliberately fabricating evidence and framing individuals for crimes they did not commit. See, e.g., Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir.2001) (en banc). Actions taken in...

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