Whiting v. Kirk, s. 91-1726

• Decision Date: 30 March 1992
• Docket Number: Nos. 91-1726,91-1727,s. 91-1726
• Parties: Steven WHITING, Plaintiff, Appellee, v. George I. KIRK, Jr., et al., Defendants, Appellees. Robert S. Choquette, Defendant, Appellant. Steven WHITING, Plaintiff, Appellee, v. George I. KIRK, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 248

960 F.2d 248

Steven WHITING, Plaintiff, Appellee, v. George I. KIRK, Jr., et al., Defendants, Appellees.

Robert S. Choquette, Defendant, Appellant.

Steven WHITING, Plaintiff, Appellee, v. George I. KIRK, Jr., Defendant, Appellant.

Nos. 91-1726, 91-1727.

United States Court of Appeals, First Circuit.

March 30, 1992.

As Amended April 6, 1992.

Terrence G. Simpson, with whom Kelly, Kelleher, Reilly & Simpson, Providence, R.I., was on brief, for defendant, appellant Robert S. Choquette.

Nathaniel J. Nazareth, Jr., with whom Rogers & Nazareth, North Kingstown, R.I., was on brief, for defendant, appellant George I. Kirk, Jr.

Kevin M. Brill, with whom Corrente, Brill & Kusinitz, Providence, R.I., was on brief, for plaintiff, appellee Steven Whiting.

Before TORRUELLA, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.

TORRUELLA, Circuit Judge.

Appellee Steven Whiting filed a 42 U.S.C. § 1983 suit against appellants George I. Kirk Jr., a constable, Lieutenant Robert S. Choquette, a Town of South Kingstown Rhode Island police officer and non-appellants Officer Ernest J. Petrarca (Choquette's subordinate), the Town of South Kingstown and attorney George J. Bauerle, III, seeking damages stemming from an improper administration of a writ of execution which resulted in Whiting's two day incarceration. A jury trial was held and a verdict was returned for Whiting and against appellants and Petrarca, awarding compensatory and punitive damages.

Entering a judgment notwithstanding the verdict on qualified immunity grounds, 768 F.Supp. 26 (D.R.I.1991), the trial judge dismissed the verdict as to Petrarca. Kirk and Choquette appealed. We are to review the reasonableness of appellants' actions in causing Whiting's arrest. Because we believe that appellants' actions were objectively reasonable under the circumstances, we reverse and vacate the award for damages.

FACTS

Appellee Whiting and his wife Katherine were tenants of property owned by Thomas and Theresa Canfield. Because of arrearages in rent which Whiting owed, the Canfields instituted a civil trespass and ejectment proceedings--effectively an eviction. The Whitings were evicted and a money judgment was entered against them in favor of the Canfields. Subsequent to Whiting's unsuccessful appeal of the eviction and pursuant to the issuance of a writ of execution, the Whitings' personal vehicle was seized and sold by the Washington County Rhode Island Sheriff's Department in an attempt to satisfy the judgment. However, the proceeds from the sale of the vehicle were insufficient to satisfy the judgment.

The Canfields' attorney sought a second execution from the Rhode Island Superior Court. On November 24, 1987, Diane Seemann, clerk of the Superior Court for Washington County, prepared a second writ of execution simply by filling in the blanks of a pre-printed statutory form. Seemann, who was not familiar with the form, erroneously completed it, ordering in addition to the Whitings' property, the "tak[ing of] the bodies" or body attachment of Whiting and his wife. ¹ The fully completed writ of execution, with Seemann's signature on the "Clerk['s]" signature line and the official seal of the State of Rhode Island embossed on the document was sent to the Canfields' attorney, who in turn forwarded it to Constable Kirk.

On Saturday, June 4, 1988, Kirk went to the Whitings' residence and served the execution. He called a tow truck to take the Whitings' vehicle. He also summoned a South Kingstown police officer to assure that the execution was carried out peacefully. Officer Petrarca was dispatched to the Whitings' residence. At some point, it was discovered that the execution ordered the arrest of the Whitings, should the property seized not satisfy the judgment. ² Kirk determined that the vehicle would fall short in value of the amount needed in order to satisfy the Canfields' judgment, so he decided to arrest Mr. Whiting as mandated Kirk took Whiting to the Adult Correction Institute in Cranston, Rhode Island. Upon arrival at the institute, Whiting complained of illness, namely, that he was suffering from Lymes disease. Kirk took him to Rhode Island Hospital where he was treated and given medication. After returning from the hospital with Whiting, Kirk was informed that the correction institute no longer had available space to house Whiting. Therefore, Kirk transported Whiting to the state police barracks in Wickford, Rhode Island. At the barracks, Kirk discussed the situation with Lieutenant Weatherspoon of the Rhode Island State Police. Lieutenant Weatherspoon was concerned that he lacked authority to authorize holding Whiting in the barracks. Consequently, Lieutenant Weatherspoon unsuccessfully attempted to contact Chief Judge Giannini of the Rhode Island Superior Court. Lieutenant Weatherspoon then called Judge Calderone of the Rhode Island Superior Court who, at the time, was sitting in Washington County. Kirk explained his dilemma to Judge Calderone who, in turn, authorized Kirk to turn Whiting over to the custody of the Rhode Island State Police. Whiting remained incarcerated at Wickford until Monday morning when he was taken before Judge Calderone and released.

                by the writ of execution. 3  Having never performed a body attachment, Petrarca called the South Kingstown Police Station for assistance and advice.   His superior Choquette arrived shortly thereafter and Mr. Whiting was arrested
                

Whiting filed a § 1983 suit against South Kingstown, the Canfields' attorney, Choquette, Petrarca and Kirk. Attorney Bauerle was dismissed from the suit prior to trial. At the conclusion of the evidence the district court denied the defendants' motion for directed verdict on qualified immunity grounds and entered judgment in favor of Whiting and against Kirk, Choquette and Petrarca. The jury was left to determine the amount of damages and whether there was municipal liability. It found no liability on the part of the Town of South Kingstown, but awarded Whiting $500 for compensatory damages against Choquette, Petrarca and Kirk, plus $9,000 for punitive damages against Kirk and $1,000 for punitive damages against Choquette. All defendants filed motions for judgment notwithstanding the verdict. The district court, on qualified immunity grounds, granted the motion only as to Petrarca, dismissing the jury award in his case. Kirk and Choquette filed this appeal.

The sole question that we address on this appeal is whether appellants Kirk and Choquette are entitled to qualified immunity for claims which arose from the arrest of Mr. Whiting.

STANDARD OF REVIEW

The determination whether or not a party is entitled to qualified immunity is a legal decision and it is reserved for the court. Lewis v. Kendrick, 944 F.2d 949, 953 (1st Cir.1991); Hall v. Ochs, 817 F.2d 920, 924 (1st Cir.1987). Accordingly, "[o]ur review of legal decisions is plenary." Albert v. Maine Central Railroad Co., 905 F.2d 541, 543 (1st Cir.1990).

DISCUSSION

A. Qualified Immunity

Generally, "government officials performing discretionary functions, ... 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." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In other words, "whether an official protected by qualified immunity may be held personally liable for an alleged unlawful official action generally turns on the 'objective legal reasonableness' of the action, ... assessed in light of the legal rules that were 'clearly established' at the time it was taken,...."

Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (quoting Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2738-39) (emphasis added). "Under this standard, the reasonableness of the official conduct is not measured against the official's actual knowledge of constitutional standards and the probable constitutionality of his or her action, but rather against a relatively uniform level of 'presumptive knowledge' of constitutional standards." Floyd v. Farrell, 765 F.2d 1, 4-5 (1st Cir.1985) (quoting Harlow, 457 U.S. at 815, 102 S.Ct. at 2736) (footnote omitted).

Starting from this basic foundation, our de novo review of the record, leads us to but one conclusion--that Constable Kirk and Lieutenant Choquette are entitled to qualified immunity, because their actions in arresting Mr. Whiting were objectively reasonable under the circumstances.

B. The Writ of Execution

The district court found that the writ of execution was facially invalid. For the following reasons, we disagree.

Rhode Island General Laws 9-25-9 provides a statutory form to be used in issuing writs of possession from the Superior Court of Rhode Island. See Addendum Exhibit 1. The only requirement is that "[w]rits of possession issuing from the superior court shall be substantially" the same as the statutory form. R.I.Gen.Laws 9-25-9. The form clearly provides language for body attachments; i.e. "we command you to take the body of [ ]." There is no space left which would denote authorization of the writ by a judge; a signature space is provided only for the clerk. However, pursuant to R.I.Gen.Laws 9-25-15 body attachments are not to be issued "unless so ordered by a justice of the superior court or a justice of the district court...." It follows that a writ of execution, mandating a body attachment, which was procedurally properly issued--one authorized by a judge, as mandated by R.I.Gen.Laws 9-25-15--would on its face appear no different than one which was improperly issued--one issued without the authority of a judge.

The writ of execution issued in this case by Clerk Seemann was a form which tracks identically the verbiage of R.I.Gen.Laws 9-25-9. See Addendum Exhibit 1. There was no judicial order to include the body attachment language in the writ. However, being unfamiliar...