The opinion
Clark v . Palmer CV-95-297-SD 10/03/96
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Martha Clark
v. Civil N o . 95-297-SD
Todd Palmer
O R D E R
This civil action arises from plaintiff Martha Clark's
placement in protective custody for intoxication after she was
pulled over for driving with an inoperative front headlight in
Barnstead, New Hampshire. Invoking 42 U.S.C. § 1983, the
complaint asserts that defendant Todd Palmer, a police officer
for the town of Barnstead, New Hampshire, infringed on
plaintiff's rights secured by the Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution.
Presently before the court is defendant Palmer's motion for
summary judgment, to which plaintiff has interposed an objection.
Background1
On August 1 2 , 1993, at approximately 10:00 p.m., plaintiff
Clark and a friend named James Burnham were driving to her home
1
All references are to the complaint unless otherwise noted.
in Alton, New Hampshire, from Concord, New Hampshire, where the
two had attended a funeral and then had consumed beer at a
lounge. When the Clark vehicle reached Barnstead, it was stopped
by Palmer, who was in uniform and on duty at the time. Palmer
asked for Clark's license and registration and told her that one
of her headlights was out (which upon examination by Clark the
next day turned out to be true). See Deposition of Martha A .
Clark at 16 (attached to defendant's motion for summary
judgment).
Detecting the odor of alcohol on Clark's breach, Palmer
began to ask Clark several specific questions such as where she
was coming from and where she was going. See Deposition of Todd
Palmer at 19 (attached to plaintiff's objection). Clark admitted
to Palmer at one point that she had consumed alcoholic beverages
before driving. Clark Deposition at 5 0 .
Some time later, Palmer asked Clark to perform field
sobriety tests, including heel-to-toe paces along the white line
at the side of the road, which Clark did not complete with
perfect accuracy. See Clark Deposition at 2 0 . Palmer then took
Clark into custody and transported her to the Wolfeboro, New
Hampshire, police department, where he asked that she take a
breathalyzer test. At approximately 11:26 p.m., Clark's blood
alcohol concentration tested at . 0 6 . Palmer believed this figure
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was too low to show that Clark was driving under the influence of
alcohol under New Hampshire law. Nonetheless, Palmer placed
Clark under protective custody for violating a New Hampshire law
governing intoxication. Clark was then detained in the Belknap
County Jail in Laconia, New Hampshire, from 12:27 a.m. until 6:28
a.m. Clark now challenges this detention as violating her
constitutional rights.
Discussion
1. Summary Judgment Standard
Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to a
judgment as a matter of law. Rule 56(c), Fed. R. Civ. P.; Lehman
v . Prudential Ins. C o . of Am., 74 F.3d 323, 327 (1st Cir. 1996).
Since the purpose of summary judgment is issue finding, not issue
determination, the court's function at this stage "'is not [ ] to
weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.'" Stone &
Michaud Ins., Inc. v . Bank Five for Savings, 785 F. Supp. 1065,
1068 (D.N.H. 1992) (quoting Anderson v . Liberty Lobby, Inc., 477
U.S. 2 4 2 , 249 (1986)).
When the non-moving party bears the burden of persuasion at
trial, to avoid summary judgment he must make a "showing
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sufficient to establish the existence of [the] element[s]
essential to [his] case." Celotex Corp. v . Catrett,, 477 U.S.
317, 322-23 (1986). It is not sufficient to "'rest upon mere
allegation[s] or denials of his pleading.'" LeBlanc v . Great Am.
Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993) (quoting Anderson,
supra, 477 U.S. at 2 5 6 ) , cert. denied, ___ U.S. ___, 114 S . C t .
1398 (1994). Rather, to establish a trialworthy issue, there
must be enough competent evidence "to enable a finding favorable
to the non-moving party." Id. at 842 (citations omitted).
In determining whether summary judgment is appropriate, the
court construes the evidence and draws all justifiable inferences
in the non-moving party's favor. Anderson, supra, 477 U.S. at
255.
2. Plaintiff's Civil Rights Claims
Invoking 42 U.S.C. § 1983, Clark claims that Palmer placed
her into protective custody without probable cause in violation
of the Fourth Amendment. In response, Palmer states, inter alia,
that (1) since the arrest was supported by probable cause,
plaintiff's constitutional rights were not violated and,
alternatively, (2) he is qualifiedly immune. Finding the second
argument to be the more persuasive, the court addresses that
claim first.
4
Government officials, including law enforcement officers,
who perform discretionary functions are entitled to qualified
immunity from suit in civil rights actions under section 1983,
provided "their conduct did 'not violate clearly established
statutory or constitutional rights of which a reasonable
[government official] would have known.'" Hegarty v . Somerset
County, 53 F.3d 1367, 1372 (1st Cir.) (quoting Harlow v .
Fitzgerald, 457 U.S. 8 0 0 , 818 (1982), and citing Burns v .
Loranger, 907 F.2d 233, 235 (1st Cir. 1990)), cert. denied, ___
U.S. ___, 116 S . C t . 675 (1995).
Thus the court should assess whether the constitutional
right allegedly violated was clearly established at the time of
the violation and whether "an objectively reasonable [official],
similarly situated, could have believed that the challenged [ ]
conduct did not violate . . . constitutional rights." Hegarty,
supra, 53 F.3d at 1373 (citing Burns, supra, 907 F.2d at 236)
(emphasis in Hegarty).
The defense of qualified immunity shields law enforcement
officials "who reasonably but mistakenly conclude that probable
cause is present." Anderson v . Creighton, 483 U.S. 635, 641
(1987). Mistaken judgments are to be given "'ample room,'" and
"'all but the plainly incompetent or those who knowingly violate
the law'" are protected. Hunter v . Bryant, 502 U.S. 2 2 4 , 229
5
(1991) (quoting Malley v . Briggs, 475 U.S. 335, 343, 341 (1986)).
In this circuit, when a plaintiff asserts that an arrest
lacked probable cause, the officer's conduct "is deemed
'"objectively reasonable"' unless 'there clearly was no probable
cause at the time the arrest was made.'" Topp v . Wolkowski, 994
F.2d 4 5 , 48 (1st Cir. 1993) (quoting Floyd v . Farrell, 765 F.2d
1 , 5 (1st Cir. 1985)). Moreover, the issue of qualified immunity
is a matter of law for the court to determine. See Hegarty,
supra, 53 F.3d at 1373-74.
The undisputed facts in this case show that Palmer could
have believed that he had probable cause to place Clark in
protective custody pursuant to New Hampshire Revised Statutes
Annotated (RSA) 172-B:3 (1994). Said statute provides:
When a peace officer encounters a person who, in
the judgment of the officer, is intoxicated as
defined in RSA 172-B:1, X , the officer may take
such person into protective custody and shall take
whichever of the following actions i s , in the
judgment of the officer, the most appropriate to
ensure the safety and welfare of the public, the
individual, or both:
. . . .
(c) Lodge the person in a local jail or county
correctional facility for said person's
protection, for up to 24 hours or until the keeper
of said jail or facility judges the person to be
no longer intoxicated.
RSA 172-B:3, I ( c ) . The statute defines "intoxicated" as "a
condition in which the mental or physical functioning of an
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individual is substantially impaired as a result of the presence
of alcohol in his system." RSA 172-B:1, X .
It is undisputed that Palmer detected alcohol on Clark's
breath, that Clark admitted to consuming alcoholic beverages
before getting into her car, and that her blood alcohol
concentration subsequently tested as being at .06 percent. In
addition, it is also undisputed that Clark did not perform the
field sobriety tests properly, although there is some dispute as
to the level of her performance. Moreover, Clark agrees that it
was reasonable for Palmer to have taken her into custody to
investigate whether she had been driving under the influence of
alcohol.2 See Clark Deposition at 50 (attached to defendant's
motion for summary judgment). Finally, although not dispositive
of the issue, Palmer also knew that Clark was in the company of
Burnham, who was disorderly at the time of the arrest. Based on
2
At the time, the New Hampshire statute pertaining to
driving under the influence of alcohol provided:
I . No person shall drive or attempt to drive a
vehicle upon any way:
(a) While he is under the influence of
intoxicating liquor or any controlled
drug or any combination of intoxicating
liquor and controlled drugs or
(b) While he has an alcohol
concentration of 0.10 or more.
RSA 265:82.
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these facts, Palmer reasonably could have believed that he was
justified in placing Clark in protective custody for
intoxication. C f . Babb v . Dorman, 33 F.3d 4 7 2 , 478 (5th Cir.
1994) (police officer entitled to qualified immunity for holding
driver for public intoxication,3 although driver violated no
traffic laws, where it was shown officer knew driver had consumed
five beers resulting in blood alcohol concentration of .08 and
extremely intoxicated passenger was in c a r ) . This conclusion is
further buttressed by the significant amount of discretion Palmer
was afforded by the intoxication statute. Accordingly, the court
finds and herewith rules that Palmer, being qualifiedly immune,
is entitled to summary judgment on plaintiff's claim under the
Fourth Amendment.4
3
Unlike the New Hampshire statute, the Texas statute in
question did not require "substantial" impairment of functioning.
Nonetheless, as that statute requires impairment to the degree
that a person "may endanger himself or another," it is
sufficiently similar to the New Hampshire statute to use by
comparison.
4
It should be added that the court has reviewed plaintiff's
objection in detail, but has found it to lack persuasive value.
For example, plaintiff argues that Palmer had a mistaken
impression of the standards enunciated in the intoxication
statute in that Palmer believed that intoxication meant a
"noticeable deviation from what would be considered normal
behavior or performance of sobriety checks," while the statute
defines intoxication as being "substantial[ly]" impaired in
mental or physical functioning. Although Palmer's
misunderstanding of the law may be unforgivable, it does not bear
on the probable cause analysis, which requires only an inquiry
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3 . The Due Process Claims
Plaintiff also alleges that her "imprisonment" violated both
the Fourteenth Amendment and the Fifth Amendment, insofar as it
was made applicable to the states by the Fourteenth Amendment, in
that she had a right "not to be imprisoned and deprived of her
liberty without due process of law." Complaint ¶ 1 9 . There
being no additional allegations set forth to support such claim,
the court has assumed that the allegations underlying plaintiff's
claim under the Fourth Amendment are the same as those underlying
her due process claims.
The court has previously held that the proper vehicle to
redress an arrest or detention not based on probable cause is the
Fourth Amendment, rather than the Due Process Clause of the
Fourteenth Amendment. See Filion v . Bellows Falls Foods, Inc.,
N o . 93-641-SD, slip o p . 8-10 (D.N.H. June 1 , 1995). In that
opinion, this court noted that the Supreme Court has held "that
all claims that law enforcement officers have used excessive
force--deadly or not--in the course of an arrest, investigatory
stop, or other 'seizure' of a free citizen should be analyzed
under the Fourth Amendment and its 'reasonableness' standard,
into the objective reasonableness of the officer's behavior, and
not into his subjective state of mind at the time. See Alexis v .
McDonald's Restaurants, 67 F.3d 3 4 1 , 349 (1st Cir. 1995).
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rather than under a 'substantive due process' approach." Graham
v . Connor, 490 U.S. 386, 395 (1989). In so holding, the Court
reasoned that "[b]ecause the Fourth Amendment provides an
explicit textual source of constitutional protection against this
sort of physically intrusive governmental conduct, that
Amendment, not the more generalized notion of 'substantive due
process,' must be the guide for analyzing these claims." Id.
More recently, the Supreme Court has held that the right to
be free from prosecution without probable cause "is properly
analyzed under the Fourth Amendment rather than under the heading
of substantive due process." Albright v . Oliver, 510 U.S. 266,
___, 114 S . C t . 8 0 7 , 814 (1994) (Ginsberg, J., concurring).
Similarly, in this case, the allegations underlying
plaintiff's due process claims are identical to those supporting
her claim under the Fourth Amendment and should therefore be
analyzed pursuant to the standards of that amendment, rather than
pursuant to a theory of due process. Accordingly, the court
finds and rules that defendant is entitled to entry of judgment
as a matter of law on plaintiff's due process claims.
Conclusion
For the foregoing reasons, defendant Palmer is entitled to
qualified immunity with respect to plaintiff's claims under the
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Fourth Amendment and to judgment as a matter of law on the
remaining counts of the complaint. Accordingly, the court finds
and rules that defendant's motion for summary judgment is
granted. The clerk is instructed to enter judgment.
SO ORDERED.
Shane Devine, Senior Judge
United States District Court
October 3 , 1996
cc: Philip T . McLaughlin, Esq.
Daniel D. Crean, Esq.
James G. Walker, Esq.
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