The opinion
Austin v . Brookline CV-00-284-JD 09/21/01
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
James Austin and Joanne Dunn
v. No. 0
Opinio n N o . 2001 DNH 171
Town of Brookline, et a l .
O R D E R
The plaintiffs, James Austin and Joanne Dunn, bring civil
rights claims and a state law negligence claim against the towns
of Brookline and Hollis, New Hampshire, two Brookline police
officers, and one Hollis officer, arising from the plaintiffs’
arrests for ringing church bells in Brookline around midnight on
July 3 , 1997. The plaintiffs allege that their arrests were
illegal, and Dunn also contends that she was subjected to an
illegal strip search. The defendants move for summary judgment,
and the plaintiffs object.
Standard of Review
Summary judgment is appropriate when “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P.
56(c). The record evidence is construed in the light most
favorable to the nonmoving party and all reasonable inferences
are construed in that party’s favor. See Mauser v . Raytheon Co.
Pension Plan for Salaried Employees, 239 F.3d 5 1 , 56 (1st Cir.
2001). A material fact is one that “has the potential to change
the outcome of the suit under the governing law” and a factual
dispute is genuine if “the evidence about the fact is such that a
reasonable jury could resolve the point in favor of the nonmoving
party.” Grant’s Dairy--Me., LLC v . Comm’r of M e . Dep’t of
Agric., Food & Rural Res., 232 F.3d 8 , 14 (1st Cir. 2000).
A party opposing a properly supported motion for summary
judgment must present competent evidence of record that shows a
genuine issue for trial. See Anderson v . Liberty Lobby, Inc.,
477 U.S. 2 4 2 , 256 (1986); Torres v . E.I. Dupont De Nemours & Co.,
219 F.3d 1 3 , 18 (1st Cir. 2000). The party with the burden of
proof cannot rely on speculation or conjecture and must present
“more than a mere scintilla of evidence in her favor.” Invest
Almaz v . Temple-Inland Forest Prods. Corp., 243 F.3d 5 7 , 76 (1st
Cir. 2001). “All properly supported material facts set forth in
the moving party’s factual statement shall be deemed admitted
unless properly opposed by the adverse party.” LR 7.2(b)(2).
2
Background
Town residents traditionally rang the bell in the Brookline
Church of Christ at midnight on July 3 . Brookline Chief of
Police Thomas Goulden met with his department in anticipation of
the bell ringing. Officer Deborah Clark, who was to be on duty
that night, understood that she was to be aware of the ringing
and respond to the church if the department received complaints.
At about midnight, the dispatcher told Clark that a
complaint had been received from Amanda Conaway about the bell
ringing. Clark drove to the church and found about fifteen or
twenty people outside. Inside the church, Clark talked with a
church representative, Peter Cook, who said that the ringing was
almost over. Almost immediately the dispatcher notified Clark
that another complaint about the ringing had been made and by
12:30 a.m. the dispatcher said more complaints were coming in.
Clark returned to the church. Men standing downstairs in
the church told her that she would have to go up herself if she
wanted the ringing to stop. She climbed to the second floor and
found James Austin ringing the bell, with the minister, Reverend
Jerry Maske, and a church deacon, Keith Venuti, watching. Clark
told Austin to stop because people were complaining, but Austin
continued to ring the bell.
Austin said that Clark would have to arrest him if she
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wanted the ringing to stop. Clark noticed that Austin’s breath
smelled of alcohol, and Clark asserts that Austin responded to
her with profanity, although Austin disputes that he used
profanity. Clark said that she would arrest him if he did not
stop and grabbed the rope to stop the ringing. Austin contends
that Clark told him he was under arrest. Austin let go of the
rope and went down the stairs, and Clark followed him out of the
church.
Austin stopped on the church stairs and told his cousin,
Danny Bent, that he was being arrested for ringing the bell.
Bent yelled to the crowd that Clark was arresting Austin for
ringing the bell. Clark told the crowd that the bell ringing was
over and that they should all leave. Austin argued with Clark
about whether any complaints had been received about the bell
ringing. Margaret Hays came forward and said that she had
complained. Austin’s response to Hays frightened her. Clark
handcuffed Austin and took him into custody.1
The crowd became more aggressive as Clark took Austin into
1
The parties differ on exactly when Austin was arrested.
Austin says that Clark told him he was under arrest while he was
ringing the bell. Austin and Bent testified that Clark
handcuffed Austin as soon as they came out of the church, and
Bent said that she was in the process of handcuffing Austin when
the exchange with Hays occurred. Clark states that she arrested
Austin outside of the church when he ignored her order to leave
the area.
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custody. Clark called the Hollis Police Department for back up,
and the crowd responded to her call for help by yelling
obscenities and sexist remarks at her. As Clark was putting
Austin into the police cruiser, Joanne Dunn confronted Clark,
saying Clark would have to arrest her and all of the other people
who had been ringing the bell.
Sergeant Steven Desilets from Hollis arrived. Clark
arrested Dunn and handcuffed her. The turmoil continued, and
officers from other towns arrived to help control the crowd.
Eventually, after several more arrests, the crowd dispersed.
Clark charged Austin and Dunn with disorderly conduct in
violation of N.H. Rev. Stat. Ann. § (“RSA”) 644:2 for knowingly
refusing to comply with her order to leave the area in front of
the church.2 Following a bench trial, the court found Austin and
Dunn not guilty. Austin and Dunn brought suit in this court
alleging a variety of federal and state claims.
Discussion
Austin and Dunn allege that their “constitutional rights”
were violated because they were illegally arrested by Clark,
2
The defendants did not include a copy of the complaint
against Dunn in the record filed for summary judgment but they
represent that she was charged with the same offense.
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because Brookline failed to properly supervise and train Clark,
and because Chief Thomas Goulden failed to properly brief Clark.
They bring claims of negligent hiring and supervision against
Brookline based on the same circumstances. Dunn also brings a
claim that she was subjected to an illegal search, alleging that
an unnamed police officer from the town of Hollis told her to
remove her pants.
The defendants move for summary judgment with respect to the
claims of illegal arrest and negligent supervision against
Brookline, Goulden, and Clark, combining their arguments on the
merits of the plaintiffs’ claims with their defense of qualified
immunity. Although the defendants state in their motion that the
plaintiffs “fail to plead and substantiate a claim against the
Town of Hollis,” they do not address the illegal search claim
brought by Dunn. Similarly, the defendants reference to the
plaintiffs’ punitive damage claim, in a footnote, is insufficient
to present the issue for summary judgment. Therefore, the court
interprets the defendants’ motion as one for partial summary
judgment, addressing counts one, two, and four.
A. Federal Claims Against Officer Clark
Austin and Dunn argue that their arrests were in violation
of their constitutional rights. “Warrantless arrests are
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permissible when supported by probable cause.” Fletcher v . Town
of Clinton, 196 F.3d 4 1 , 35 (1st Cir. 1999). “In turn, probable
cause exists when the facts and circumstances within the police
officers’ knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent person in
believing that the defendant had committed or was committing an
offense.” Id. (internal quotation omitted).
In this case, Clark charged Austin and Dunn with violating
RSA 644:2 for “knowingly refus[ing] to comply with a lawful order
of a peace officer, Officer Deborah Clark of the Brookline
Police[,] to move from a public place, to wit: Main Street in
the Town of Brookline, NH.” Def. Ex. D. The issue is whether
Clark had probable cause to believe that Austin and Dunn
knowingly refused to comply with her order to leave Main Street
in Brookline before they were arrested. There appears to be no
dispute that the area in front of the church where the crowd had
gathered was the area referred to in the complaint as Main Street
in Brookline or that the church area constituted a public place
within the meaning of the statute. Because the circumstances of
each arrest are different, they are considered separately.
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1. Arrest of Austin.
The circumstances of Austin’s arrest are disputed. In the
complaint, Austin contends that he was arrested in the church
while he was ringing the bell and was handcuffed immediately as
he left the church. Austin asserts that he did not use
profanity, that his cousin yelled to the crowd that he was being
arrested, and that Clark was already handcuffing him when the
exchange with Margaret Hays occurred. Clark contends that she
did not arrest Austin until after they left the church, after she
told everyone to leave, and after Austin began inciting the crowd
and yelling at Margaret Hays. For purposes of the defendants’
motion for summary judgment, however, the facts must be taken in
the light most favorable to Austin.
Taken in the appropriate light, the record indicates that
Clark told Austin he was under arrest while he was ringing the
bell and handcuffed him as soon as they left the church, before
the other incidents occurred. Based on that scenario, which
Clark denies, Clark would have to have had a reasonable basis to
believe that she ordered Austin to leave the church area and he
failed to obey her order before either of them even left the
church. Since Clark’s order inside the church was to stop
ringing the bell, not to leave the public church area, that
version of events does not fit the offense charged. Therefore,
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the defendants have not shown that no reasonable jury could find
in Austin’s favor, if they were to believe his version of events.
The factual dispute about the circumstances of Austin’s
arrest also precludes summary judgment in Clark’s favor based on
a qualified immunity defense. In analyzing a qualified immunity
defense, the court must first “‘determine whether the plaintiff
has alleged the deprivation of an actual constitutional right”
and second “‘determine whether that right was clearly established
at the time of the alleged violation.’” Abreu-Guzman v . Ford,
241 F.3d 6 9 , 73 (1st Cir. 2001) (quoting Wilson v . Layne, 526
U.S. 603, 609 (1999)). Only if the first two questions are
answered affirmatively does the court consider whether “an
objectively reasonable officer, performing discretionary
functions, would have understood his or her conduct violated that
clearly established constitutional right.” Id.
The first two questions are answered affirmatively here.
Austin has alleged that the arrest violated his Fourth Amendment
rights, as discussed above. The right not to be arrested absent
probable cause and the provisions of RSA 644:2 have been clearly
established for a long time. See id.; see also Iacobucci v .
Boulter, 193 F.3d 1 4 , 23-24 (1st Cir. 1999). The remaining issue
is whether an objectively reasonable officer, standing in Clark’s
shoes, would have found probable cause to arrest Austin while he
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was ringing the bell for failing to comply with her order to
leave the church area.
Despite the absence of probable cause, an officer is
entitled to qualified immunity if “[she] had an objectively
reasonable basis for believing that [her] conduct would not
abridge the rights of others.” Iacobucci, 193 F.3d at 2 3 .
Stated another way, an officer will be protected by immunity if
“‘probable cause is at least arguable.’” Fletcher, 196 F.3d at
53 (quoting Floyd v . Farrell, 765 F.2d 1 , 5 (1st Cir. 1985)).
Therefore, the qualified immunity “standard is favorable to the
officer, protecting ‘all but the plainly incompetent or those who
knowingly violate the law.’” Liu v . Phillips, 234 F.3d 5 5 , 57
(1st Cir. 2000) (quoting Malley v . Briggs, 475 U.S. 335, 341
(1986)).
Based on Austin’s version of the circumstances surrounding
his arrest, however, there appears to be no objective basis for
Clark to have believed she had probable cause to arrest Austin
for his failure to comply with her order to leave the public
church area, before she gave that order. Clark contends that she
is nevertheless entitled to immunity because Austin’s conduct
could have been the basis for probable cause to arrest him on a
different disorderly conduct charge, under RSA 644:2, III(a),
II(a), or I .
10
The related crimes defense affords immunity to an officer
who did not have probable cause to arrest for the offense charged
but the same conduct alleged as a basis for the arrest would
provide probable cause to arrest for a related offense. See
Sheehy v . Town of Plymouth, 191 F.3d 1 5 , 19-20 (1st Cir. 1999).
In order to employ the related crimes defense, the officer must
show that “the crime with which the arrestee is charged and the
crime offered to the court as a justification for the arrest must
relate to the same conduct” and “the two crimes must share
similar elements or be directed generally at prohibiting the same
type of conduct.” Id.
All three of the related crimes cited by Clark generally
pertain to disorderly conduct. The crimes, however, aim at
distinctly different conduct. The crime with which Austin was
charged, RSA 644:2, II(e) is that he “[k]nowingly refuse[d] to
comply with a lawful order of a peace officer to move from any
public place . . . .” The conduct Clark cited in support of the
charge was Austin’s failure to comply with her order to leave the
church area.
The first alternative raised by Clark, RSA 644:2, III(a),
prohibits “[m]aking loud or unreasonable noises in a public
place, or making loud or unreasonable noises in a private place
which can be heard in a public place or other private places,
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which noises would disturb a person of average sensibilities.”
While Austin’s bell ringing might provide an objective basis to
believe probable cause existed to arrest him under RSA 644:2,
III(a), Clark did not cite bell ringing as the reason for his
arrest. Austin’s cited behavior does not involve making loud
noises. Similarly, RSA 644:2, I and II(a), which prohibit
creating a hazardous condition and violent or threatening
behavior in a public place, do not involve failure to comply with
an order to leave a public place. Therefore, Clark has not shown
that she is entitled to qualified immunity under a related crimes
theory.
As Clark has not shown that she is entitled to qualified
immunity on summary judgment, due to the factual dispute about
the circumstances of Austin’s arrest, a trialworthy issue remains
on the defense.
2. Joanne Dunn
The factual circumstances of Dunn’s arrest are much less
conflicted than those surrounding Austin’s arrest. Despite
Dunn’s attempt to suggest that Clark never told her personally to
leave, she does not dispute that Clark told the crowd outside the
church, which included Dunn, to leave. She does not dispute that
instead of leaving she was harassing Clark while Clark was taking
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Austin into custody and putting him in the cruiser.
Dunn raises a question as to whether Clark’s order to the
crowd to leave was lawful, as required by RSA 644:2, II(e). RSA
644:2, IV(a) provides that a lawful order is any command to
prevent a person from committing the offenses in RSA 644:2, or
other cited sections, when the officer has reasonable grounds to
believe the person is about to commit the offense or her conduct
makes the offense imminent, or to prevent the person from
continuing to commit such an offense.
Dunn argues that Clark’s only reason for arresting her was
to prevent her from returning to the church to ring the bell and
that she had no reasonable basis to believe that she would do
that. The testimony Dunn cites indicates that Clark arrested her
because she refused to leave the area, because of her yelling and
behavior, and because she was concerned Dunn would continue to
ring the bell. Dunn’s conduct, including her statement to Clark
that she would have to arrest her and everyone else who had been
ringing the bell, provides a reasonable basis to believe that she
would return to bell ringing. In addition, whether or not Dunn
was likely to ring the bell again, the undisputed circumstances
at the time Dunn was arrested would support a reasonable basis to
believe that Dunn was committing or would imminently commit the
offenses listed in 644:2, II(a), ( b ) , ( e ) , and III(a). The
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orders to leave were therefore lawful.
Based on the circumstances of Dunn’s arrest, Clark had
probable cause to arrest Dunn for failing to comply with her
lawful order to leave the church area. Therefore, Clark is
entitled to summary judgment in her favor as to the claims
against her brought by Dunn.
B. Federal Claims against Chief Goulden and the Towns of Hollis
and Brookline
Since Dunn has not shown that she suffered a constitutional
violation based on her arrest, she does not have a claim against
Goulden or the towns based on the arrest.3 See Nieves v .
McSweeney, 241 F.3d 4 6 , 50 (1st Cir. 2001). With respect to
Chief Goulden, Austin alleges that Goulden failed to properly
brief Clark and failed to issue policies and procedures to deal
with the bell ringing, both with deliberate indifference to
constitutionally protected rights. Austin alleges that Brookline
failed to properly train and supervise Clark, which represented
the town’s policy of deliberate indifference to constitutionally
protected rights, that led to Austin’s arrest. He makes no
3
As noted above, however, the defendants have not moved for
summary judgment on Dunn’s claim alleging an unconstitutional
search conducted at the Hollis police station. That claim,
therefore, is not considered here.
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claims against the town of Hollis.
To prove his claim against Goulden, Austin must be able to
show that Goulden’s “conduct or inaction amounts to ‘reckless or
callous indifference’ of [his] constitutional rights and that an
‘affirmative link’ existed between the constitutional violation
and his acts or omissions.” Miller v . Kennebec County, 219 F.3d
8 , 13 (1st Cir. 2000) (quoting Gutierrez-Rodriguez v. Cartagena,
882 F.2d 553, 562 (1st Cir. 1989)). To meet the indifference
element for supervisory liability, Austin must show “‘(1) a grave
risk of harm, (2) the defendant’s actual or constructive
knowledge of that risk, and (3) his failure to take easily
available measures to address the risk.’” Figueroa-Torres v .
Toledo-Davila, 232 F.3d 270, 279 (1st Cir. 2000).
The record facts show that Goulden met with the minister of
the church prior to July 4 , 1997. Reverend Maske told Goulden
that he and about twelve church members would be at the church on
the night of July 3 for the bell ringing, to avoid vandalism,
which had happened in previous years. Goulden understood that
the police department would respond if anyone from the church
contacted them. Goulden had a meeting with the police officers
the last week in June when Goulden explained that the bell
ringing event took place and that they were to respond if needed.
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Clark, who was new in the Brookline department and was a
part-time officer, was to be on duty during the evening of July
3. On July 3 , Goulden told the full-time officer on duty during
the day to stay on with Clark if they were busy. Goulden told
Clark to respond to the church if the department received calls
about the bell ringing and to enforce the law as in any other
situation. That evening was rainy and unusually slow so the
full-time officer left and Clark remained on duty alone.
Based on the record facts, Goulden inquired about the bell
ringing event and briefed his officers, including Clark, about
the event. Even if Austin could show that Goulden had been
negligent, mere negligence is insufficient for a supervisory
liability claim. See Maldonado-Denis v . Castillo-Rodriguez, 23
F.3d 576, 582 (1st Cir. 1994). Nothing in Goulden’s conduct or
the surrounding circumstances indicates that he was indifferent
to whether rowdy bell ringers would be arrested without probable
cause. As Austin has not shown any trialworthy issue with
respect to his claim against Goulden, Goulden is entitled to
summary judgment.
Austin alleges that Brookline failed to properly train Clark
which represented a municipal custom or policy of deliberate
16
indifference to constitutionally protected rights.4
A municipality is liable under 42 U.S.C. § 1983 only if its
policymaker made a deliberate choice to act or not act in a
certain way and that decision caused a constitutional injury.
See Board of County Comm’rs of Bryan County, Okla. v . Brown, 520
U.S. 397, 404 (1997). The inadequacy of police training may be a
basis for municipal liability “only where the failure to train
amounts to deliberate indifference to the rights of persons with
whom the police come into contact.” Canton v . Harris, 489 U.S.
378, 388 (1989). Therefore, a single incident of inadequate
training is not a sufficient basis for municipal liability. See
Swain v . Spinney, 117 F.3d 1 , 11 (1st Cir. 1997).
Austin alleges only that Brookline failed to properly train
Clark, who was a probationary officer. Even if that were true,
which the facts of record indicate it is not, failure to train
Clark, which allegedly resulted in a single arrest without
probable cause, is insufficient to support Austin’s municipal
liability claim.5
4
Absent a constitutional violation by the supervisor,
Goulden, Austin’s claim that Brookline failed to adequately
supervise Clark also fails. See Nieves, 241 F.3d at 5 0 .
5
Clark had completed training at the New Hampshire Police
Academy and was a state certified police officer. Before joining
the Brookline department, Clark was a part-time police officer in
Hollis for seven years and a part-time patrol officer in
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C. State Law Negligence Claim
Austin also alleges that Brookline breached its duty to
train and supervise its police officers when it allowed Clark to
be on duty over the night of July 3 . Brookline contends that
discretionary function immunity under New Hampshire law bars
its liability under Austin’s negligence claim. Brookline also
argues that Austin did not properly plead the claim and lacks an
expert to prove the claim.6
When the New Hampshire Supreme Court abrogated municipal
immunity, it retained immunity for discretionary functions. See
Hacking v . Belmont, 143 N.H. 546, 549 (1999). Municipalities are
immune from liability for “acts and omissions that constitute
‘the exercise of an executive or planning function involving the
making of a basic policy decision which is characterized by the
exercise of a high degree of official judgment or discretion.’”
Id. (quoting Merrill v . Manchester, 114 N.H. 722, 729 (1974)).
Decisions regarding training and supervision of employees are
Pepperell for two years. She had received training in Hollis on,
among other things, the disorderly conduct statute, crowd and
riot control, noise complaints, and arrest procedures.
6
Although the negligence claim is alleged in the complaint
against Brookline, the plaintiffs mistakenly refer in their
objection to state law claims against Goulden and ignore the
claim brought against Brookline. There are no state law claims
against Goulden in the complaint.
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discretionary decisions entitled to immunity. See id. at 550-51.
Therefore, since Brookline is protected by discretionary
function immunity from liability under the plaintiffs’ negligence
claim, summary judgment is appropriate on that claim as well.
For that reason, the court does not reach the other grounds
raised by the defendants.
Conclusion
For the foregoing reasons, the defendants’ partial motion
for summary judgment (document n o . 14) is granted as to the
claims brought in Counts II and IV.
SO ORDERED.
Joseph A . DiClerico, Jr.
District Judge
September 2 1 , 2001
cc: Richard C . Mooney, Esquire
Donald Gardner, Esquire
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