Musso v. Hourigan

• Decision Date: 05 January 1988
• Docket Number: No. 49,49
• Citation: 836 F.2d 736
• Parties: , 43 Ed. Law Rep. 1301 Edward MUSSO, Plaintiff-Appellee, v. Dale HOURIGAN and Lt. Darrell York, Individually and in their official capacities as Officers in the Wallingford Police Department, George Mazzafero and James Millar, Individually and in their official capacities as Members of the Board of Education for the Town of Wallingford, Defendants, George Mazzafero and James Millar, Defendants-Appellants. Docket 87-7226.
• Court: U.S. Court of Appeals — Second Circuit

Page 736

836 F.2d 736

10 Fed.R.Serv.3d 385, 43 Ed. Law Rep. 1301

Edward MUSSO, Plaintiff-Appellee, v. Dale HOURIGAN and Lt. Darrell York, Individually and in their official capacities as Officers in the Wallingford

Police Department, George Mazzafero and James Millar,

Individually and in their official capacities as Members of

the Board of Education for the Town of Wallingford, Defendants,

George Mazzafero and James Millar, Defendants-Appellants.

No. 49 Docket 87-7226.

United States Court of Appeals,

Second Circuit.

Argued Aug. 31, 1987.

Decided Jan. 5, 1988.

Winona W. Zimberlin, Hartford, Conn. (Howd & Ludorf, Hartford, Conn., of counsel), for defendants-appellants.

Mark Rademacher, New Haven, Conn. (Williams & Wise, New Haven, Conn., of counsel), for plaintiff-appellee.

Before FEINBERG, Chief Judge, and PIERCE and ALTIMARI, Circuit Judges.

PIERCE, Circuit Judge:

This is an interlocutory appeal from a decision of the United States District Court for the District of Connecticut, Jose A. Cabranes, Judge, granting in part and denying in part defendants-appellants' joint motion for summary judgment. The district court denied their motions with respect to the plaintiff-appellee's claim for damages under 42 U.S.C. Sec. 1983 for violation of his first amendment rights, on the ground that appellants had not established their defense of qualified immunity. The court granted summary judgment as to one of the appellants, however, and denied it as to the other, on appellee's claim for damages arising out of an alleged false arrest. For the reasons set forth below we (1) accept jurisdiction to review the ruling on qualified immunity only, and (2) affirm in part, and reverse in part, the district court's decision on this issue.

BACKGROUND

This litigation arises out of a series of events that took place during a meeting of the Wallingford, Connecticut, Board of Education (the "Board"), held on September 12, 1983. Among the people in attendance at the meeting that evening were Board members George Mazzafero and James Millar, the appellants herein, as well as several members of the public, including the appellee, Edward Musso. The main topic of discussion that night was whether Mazzafero, who had been filling in as acting chairman of the Board following the resignation of the elected chairman, should be permitted to serve out the remainder of the outgoing chairman's term, or whether a new election would have to be called to fill the vacancy.

During the course of the evening a debate ensued among the members of the Board concerning Mazzafero's right to succeed the former chairman. Although the meeting had progressed beyond the point during which the Board was obliged, by virtue of its bylaws, to entertain questions and comments from the public, several members of the public in attendance nevertheless openly expressed their frustration George [referring to Mazzafero], I think you should adjourn the meeting as Timmy [Reardon, another Board member] said and forget about it. These people that can't think for themselves and have to depend on a superintendent that doesn't know what he is talking about. [sic]

over a lengthy procedural dispute that developed between the Board members who supported Mazzafero, and those, including Millar, who did not. Finally, after the debate had continued for some time, Musso rose from his seat in the audience and stated:

At this point, according to Musso's affidavit, Millar interrupted him, shouted at him, and ordered him to be quiet. Apparently, both Millar and Mazzafero told Musso that he was out of order, "and because of the debate that followed, the police were called to remove Mr. Muzzo [sic] from the room, which they did." Consequently, Musso was placed under arrest for disorderly conduct and interfering with a peace officer, although criminal charges against him were dismissed later.

Musso subsequently commenced a civil action against (1) Dale Hourigan, the officer who had placed him under arrest, and Lieutenant Darrell York, the officer who had set Musso's bond, both individually and in their capacities as officers of the Wallingford Police Department; and (2) Mazzafero and Millar, both individually and in their capacities as members of the Board. Musso alleged, inter alia, that Mazzafero and Millar had acted under color of law to deprive him of the rights secured to him by the United States Constitution, as well as the laws of both the United States and the State of Connecticut. Musso charged that Millar had violated these rights by ordering him to "sit down and shut up," and by ordering a staff member to call the police for the purpose of placing Musso under arrest. Musso further charged that Mazzafero "joined in" Millar's action, and that he "failed to otherwise prevent Mr. Millar from unlawfully ordering Mr. Musso to be silent and unlawfully ordering his arrest." In response, Mazzafero and Millar filed a motion for summary judgment, arguing principally that, under the doctrine of qualified immunity, they could not be held personally liable for whatever wrongs Musso allegedly suffered. In addition, they contend on appeal that, because Musso chose to speak at a time during which public participation was foreclosed by the Board's bylaws, the demand that Musso be silent was simply an application of a reasonable time, place, and manner restriction on Musso's freedom of speech. Following a hearing on the motion, the district court issued a ruling (1) denying summary judgment as to Millar, but granting it as to Mazzafero, on the claim arising out of Musso's arrest; and (2) denying summary judgment as to both defendants on the claim arising out of the alleged silencing of Musso.

Proceeding first to the claim arising out of Musso's arrest, we note that the district court characterized the false arrest claim as presenting an issue of Connecticut state law, rather than federal constitutional law under the fourth amendment. In particular, it does not appear that the court addressed the issue of whether the doctrine of qualified immunity might shield the defendants from liability on the false arrest claim--despite the fact that appellants raised this defense in their memorandum of law in support of the motion. If our reading of the opinion is correct, however, the court's characterization of the false arrest claim as a state law cause of action is at odds with the court's order, issued fourteen months before the ruling on the summary judgment motion, dismissing Musso's state law claims for lack of pendent jurisdiction. See Supplemental Record, Ruling on Defendant's Motion to Dismiss, filed Oct. 9, 1985. In any event, the court found that none of the material submitted by the plaintiff indicated that Mazzafero had been actively involved in having Musso placed under arrest. Moreover, the court reasoned, Mazzafero had no obligation to obstruct the arrest once it was under way, because under Connecticut law such obstruction would have been a criminal offense, regardless of whether the arrest itself was legal or illegal. Accordingly, the court granted summary judgment as to Turning next to Musso's claim that Mazzafero and Millar acted to silence him at the meeting, in violation of his first amendment right to freedom of expression, the district court denied summary judgment on the ground that neither defendant had established the defense of qualified immunity. Applying the objective standard set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the court reasoned that, because the first amendment right to be free of content-based censorship was "clearly established" as of September 12, 1983, the defendants could not be immune from the first amendment claim.

Mazzafero on the false arrest claim. The court denied summary judgment on the false arrest claim as to Millar, however, reasoning that the facts were in dispute as to whether Millar had "instigated" the arrest.

Following the entry of the district court's order, Mazzafero and Millar filed notice of this interlocutory appeal. Consequently, we are called on at this point to decide two principal questions: first, whether we have jurisdiction to hear this interlocutory appeal as to either or both of the claims on which the district court issued its ruling; and second, if we do have jurisdiction, whether the district court's rulings on the motion were correct.

DISCUSSION

A. Jurisdiction

The first issue we must address is whether we have jurisdiction to hear the present appeal. Although the federal courts of appeals normally may exercise jurisdiction only over "final decisions" of the district courts, 28 U.S.C. Sec. 1291 (1982), the United States Supreme Court has recognized that, in some instances, a decision may be "final" for purposes of Sec. 1291 even though it is not the "last order possible to be made in a case." Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964). Under the "collateral order" doctrine, a pre-trial order may be appealable if it falls within "that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949).

In Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), the Court held that a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable "final decision" under 28 U.S.C. Sec. 1291, notwithstanding the absence of a final judgment. In reaching this result, the Court noted that the doctrine of qualified immunity rests on the belief that "where an official's duties legitimately require action in which clearly established rights are not...