Mozzochi v. Borden

• Decision Date: 19 March 1992
• Docket Number: D,No. 510,510
• Citation: 959 F.2d 1174
• Parties: Charles MOZZOCHI, Plaintiff-Appellee, v. Richard S. BORDEN, Jr., Paul J. Gibbons, Defendants-Appellants, Richard S. Borden, Jr., Paul J. Gibbons, Town of Glastonbury, Defendants. ocket 91-7634.
• Court: U.S. Court of Appeals — Second Circuit

Page 1174

959 F.2d 1174

Charles MOZZOCHI, Plaintiff-Appellee, v. Richard S. BORDEN, Jr., Paul J. Gibbons, Defendants-Appellants Richard S. Borden, Jr., Paul J. Gibbons, Town of Glastonbury, Defendants.

No. 510, Docket 91-7634.

United States Court of Appeals Second Circuit.

Argued Nov. 20, 1991.

Decided March 19, 1992.

William S. Rogers, Hartford, Conn. (Susan A. Quinn, Tyler Cooper & Alcorn, of counsel), for appellants.

John R. Williams, New Haven, Conn. (Williams & Wise, of counsel), for appellee.

Before: MESKILL, KEARSE and PIERCE, Circuit Judges.

MESKILL, Circuit Judge:

This case raises the question whether government officials enjoy qualified immunity for causing a criminal prosecution to be brought and maintained against an individual where the prosecution was supported by probable cause but was allegedly motivated by a desire to chill the exercise by the criminal defendant of rights guaranteed by the First Amendment. The United States District Court for the District of Connecticut, Dorsey, J., held that the officials were not entitled to such immunity. Because the district court framed the qualified immunity question too generally, it wrongly concluded that the defendant officials' alleged actions violated clearly established constitutional rights. In doing so, the court erred. We therefore reverse the decision and remand this matter to the district court.

BACKGROUND

For over a decade prior to the events that form the basis of this action, the plaintiff, Charles J. Mozzochi, had engaged in a letter writing campaign aimed at one of the defendants, Richard S. Borden. Mozzochi, a resident of Glastonbury, Connecticut, was displeased with the manner in which Borden, the Glastonbury Town Manager, was performing his duties. The mailings that Mozzochi sent to Borden and other In December 1986, Mozzochi sent Borden a newspaper clipping that recounted the story of a disgruntled resident who had murdered the mayor of an Iowa city and wounded two members of the city council. Borden, who was aware that Mozzochi had a gun permit and owned a firearm, reported the mailing to the Chief of the Glastonbury Police Department. Borden expressed his concern, which apparently was shared by members of the Town Council, that Mozzochi was dangerous and that the clipping was a serious threat. Officer Paul J. Gibbons of the Glastonbury Police Department investigated the complaint and spoke to Mozzochi. On February 23, 1987, Gibbons obtained a warrant for Mozzochi's arrest.

Glastonbury officials often contained profane language and expressed Mozzochi's intense personal dislike of Borden.

Mozzochi was arrested and charged with criminal harassment under Conn.Gen.Stat. § 53a-183. That statute proscribes communications made "in a manner likely to cause annoyance or alarm" if made with the intent to harass, annoy or alarm. The basis of the charge was the December 1986 clipping and twenty-three other letters sent to Borden by Mozzochi.

Mozzochi moved to dismiss the complaint on the ground that each of the communications was protected speech under the First Amendment. The state court granted the motion with respect to the twenty-three letters but held that the clipping describing the murder was not protected speech. Mozzochi then moved to suppress the twenty-three letters and the court granted the motion.

Mozzochi's criminal trial was to begin June 30, 1989. On that day, the state prosecutor told Borden that, given the suppression of the twenty-three letters, the case would be very difficult to win and that he was inclined to nolle prosequi (nolle) the case. Borden objected, expressing his feeling that Mozzochi had been harassing him and other town officials and noting that he thought Mozzochi would sue him and the town because of the arrest and prosecution. Borden asked the prosecutor whether it would be possible to obtain a release of civil claims in exchange for the nolle. The prosecutor told Borden that he would propose such an exchange to Mozzochi.

Mozzochi rejected the proposal. The trial of the case began that day. During the proceedings, the state court excluded a photocopy of the newspaper article sent to Borden, further weakening the prosecution. Borden began to testify, but before he could finish the court called a recess until July 6, 1989. On July 3, 1989, Mozzochi filed a motion to dismiss, citing the release-nolle offer by the prosecutor and characterizing that offer as extortion. On July 6, before the trial reconvened, the prosecutor nolled the case.

Mozzochi then brought this action under 42 U.S.C. § 1983 against Borden, Gibbons and the Town of Glastonbury, alleging that the defendants had deprived him of rights secured by the United States Constitution. Specifically, Mozzochi alleged that by causing his arrest and prosecution, the defendants deprived him of the right to free speech, the right of access to the courts and the rights to be free from unreasonable arrest and malicious prosecution. Borden and Gibbons moved for summary judgment on the malicious prosecution and unreasonable arrest claims on the ground that the undisputed facts demonstrated that the prosecution and the arrest were undertaken with probable cause. Borden and Gibbons also moved for summary judgment on the ground of qualified immunity.

Holding that the undisputed facts demonstrated that both the arrest and the prosecution were supported by probable cause, the district court granted the defendants' motion for summary judgment with respect to the unreasonable arrest and malicious prosecution claims. The district court rejected the defendants' summary judgment motion with regard to the free speech and access to the courts claims. The court held that the defendants' motive in initiating and continuing the prosecution was a critical factor in those claims and that there was evidence from which a jury could find that the prosecution was initiated to deter

                Mozzochi's protected speech and was later maintained solely for the purpose of barring Mozzochi from court.   Applying the qualified immunity test set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the district court held that at the time of the arrest and prosecution (1) "a citizen possessed a clearly established constitutional right not to have his speech regulated because the state actor disagreed with its content;"  and (2) "an accused possessed a clearly established right to access the courts to redress constitutional violations."   Because it held that the defendants' motive and conduct, if proven, violated clearly established rights, the district court rejected the defendants' summary judgment motion based on qualified immunity.   The district court did not address defendants' argument that Mozzochi had not suffered any constitutional deprivation
                

DISCUSSION

Although neither party questions our jurisdiction over this interlocutory appeal, as a preliminary matter we must nonetheless address that issue. Natale v. Town of Ridgefield, 927 F.2d 101, 104 (2d Cir.1991). 28 U.S.C. § 1291 provides jurisdiction in the courts of appeals over "final decisions" of the district courts. The denial of a motion for summary judgment is generally not such a "final decision." However, to the extent that it turns on a question of law, a district court's denial of summary judgment on an official's claim of qualified immunity is an appealable "final decision" within the meaning of section 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). The district court's denial of the defendants' motion for summary judgment based on qualified immunity, to the extent that it assumed that the rights allegedly violated were constitutionally protected, turned on a question of law and thus appellate jurisdiction is appropriate.

Public officials are entitled to qualified immunity from liability for civil damages arising out of discretionary functions. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. As long as their conduct does not violate a clearly established statutory or constitutional right, they cannot be held liable. Id. The standard for determining whether an official is entitled to immunity is essentially objective, designed to avoid the "costs of trial" and the "broad-reaching discovery" associated with attempts to prove an individual official's subjective state of mind. Id. at 817-18, 102 S.Ct. at 2737-38.

When addressing a claim of qualified immunity, a court must take care not to pose the issue in terms that are too general or abstract. As the Supreme Court warned in Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987):

The operation of [the qualified immunity] standard ... depends substantially upon the level of generality at which the relevant "legal rule" is to be identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of "clearly established law" were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.... It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.

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