Iacobucci v. Town of Pembroke

United States Court of Appeals

For the First Circuit

Nos. 97-1485 & 97-1585

RICHARD IACOBUCCI,

Plaintiff, Appellee,

v.

WILLARD BOULTER,

Defendant, Appellant.

No. 97-1586

RICHARD IACOBUCCI,

Plaintiff, Appellant,

v.

WILLARD BOULTER,

Defendant, Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

J. Russell Hodgdon, with whom Petze & Hodgdon was on brief,

for plaintiff.

Stephen C. Pfaff, with whom Douglas I. Louison and Merrick,

Louison & Costello were on brief, for defendant.

October 4, 1999

SELYA, Circuit Judge. Earlier this year, the Supreme

Court decided Kolstad v. American Dental Ass'n, 119 S. Ct. 2118

(1999), affording a fresh perspective on the circumstances under

which juries may award punitive damages in federal civil rights

cases. These cross-appeals require us to revisit the punitive

damages threshold in light of Kolstad. After acquitting this

responsibility and addressing other pertinent issues, we affirm the

judgment below.

I. BACKGROUND

On the evening of March 26, 1991, Richard Iacobucci, the

plaintiff herein, visited the Pembroke Town Hall to videotape a

scheduled meeting of the Pembroke Historic District Commission (the

Commission). Such forays were mother's milk to Iacobucci, who

intermittently filmed sessions of local boards, including the

Commission, for a weekly news program that he produced and

broadcast via a cable television outlet.

On the evening in question, the Commission's stated

purpose was to review building applications. The commissioners sat

along three sides of a four-sided conference table. As he had done

in the past, Iacobucci positioned his tripod at the unoccupied end

of the table. Soon after the meeting commenced, the chairman, Otis

Hathon, twice asked Iacobucci to move his equipment across the

room. Iacobucci declined, explaining that his view of the

commissioners' and applicants' faces would be obstructed. Hathon

did not suffer rejection gladly; at one point, he extinguished the

lights, remarking: "I hope your camera can see in the dark." When

this petulance failed to sway Iacobucci, Hathon warned him of the

possibility of arrest should he fail to move. That warning, too,

fell on deaf ears, prompting a commissioner to alert the local

constabulary.

Two Pembroke police officers, Flannery and Jenness,

responded. They asked Iacobucci to turn off the camera and talk

with them in the corridor. Iacobucci replied that he had a right

to record the proceedings, that he intended to exercise it, and

that he would not converse until the meeting ended. The stalemated

officers called their superior, Sergeant Willard Boulter (the

principal defendant herein).

The meeting adjourned before Sgt. Boulter arrived,

presumably because the last applicant had not appeared. Iacobucci

packed his gear. He then noticed the commissioners speaking in the

hallway with a man carrying a set of plans. Believing that man to

be the tardy applicant, Iacobucci retrieved his camera and began

filming the group on the assumption that he was witnessing a de

facto resumption of the adjourned meeting. Iacobucci persisted

despite importunings from some of the commissioners to stop.

Sgt. Boulter arrived at that juncture, stepped in front

of the lens, and demanded that Iacobucci cease and desist.

Iacobucci demurred, sidestepped adroitly, and resumed his

journalistic endeavor. This pas de deux continued until Sgt.

Boulter gave Iacobucci an ultimatum: sit down or be arrested.

When Iacobucci kept filming, Boulter took the camera from him,

grabbed his elbow, led him into another room, handcuffed him, and

placed him under arrest.

The police transported Iacobucci to the station house and

charged him with disorderly conduct and disrupting a public

assembly. Iacobucci spent about four hours in custody before the

authorities released him. When he reclaimed his camera, he

discovered that the videotape no longer contained any images and

that the sound track was barely audible.

The criminal charges eventually were dismissed, but

Iacobucci (a law school graduate, although not a practicing

attorney) filed a pro se civil action that asserted a golconda of

claims against numerous defendants. We need not dwell on the

details, because pretrial proceedings winnowed the trialworthy

issues to three claims pressed by Iacobucci against Boulter. These

included claims under 42 U.S.C. 1983 premised on false arrest and

excessive force, respectively, and a state-law claim premised on

intentional infliction of emotional distress. The three claims

were tried to a jury, which found for Boulter on two of them. On

the section 1983 false arrest claim, however, the jury sided with

Iacobucci and awarded him $75,000 in compensatory damages and

$135,000 in punitive damages.

The verdict did not please Boulter. He renewed his

earlier motion for judgment as a matter of law and asked,

alternatively, for a new trial or for a remittitur. The district

court struck the punitive damages, but otherwise denied Boulter's

post-trial motions. Both parties now appeal.

II. BOULTER'S APPEAL

Like all Gaul, Boulter's appeal is divided into three

parts. He assails the district court's handling of the section

1983 false arrest claim because the court (1) should not have

permitted the claim, if ever properly in the case, to go to trial;

(2) improvidently admitted evidence that was both irrelevant and

prejudicial; and (3) erred in rejecting a qualified immunity

defense. We examine these asseverations seriatim.

A. The Status of the Section 1983 False Arrest Claim.

The wrangling over this issue breaks down into two

subsidiary questions: Was the section 1983 false arrest claim

properly pled? If so, did it survive summary judgment? The

district court answered both questions affirmatively. So do we.

In narrowing the issues immediately prior to trial, a

dispute arose concerning what claims were outstanding. Boulter

considered only two claims to be zoetic: a section 1983 excessive

force claim and a state-law claim for intentional infliction of

emotional distress. In contrast, Iacobucci took the position that

a section 1983 false arrest claim also remained in the case. After

reviewing the complaint and the summary judgment record, the lower

court concluded that Iacobucci had adequately pled a section 1983

false arrest claim, and that this claim had not been addressed (let

alone terminated) at the summary judgment stage. Consequently, the

court allowed Iacobucci to litigate the claim.

Fed. R. Civ. P. 8(a)(2) requires that a complaint contain

a "short and plain statement of the claim showing that the pleader

is entitled to relief." The complaint in this case satisfied that

undemanding criterion vis--vis the section 1983 false arrest

claim: it specifically alleged that Boulter, while acting under

color of state law, violated Iacobucci's constitutional "right to

be secure in his person" and "wrongfully deprived him of his

liberty." This language, coupled with a prayer for money damages,

adequately stated a section 1983 false arrest claim.

To be sure, the claim could have been pled more clearly.

Here, however, Boulter has not identified a scintilla of prejudice

that may have resulted from any obscurity in the wording of the

plaintiff's complaint, nor is any such prejudice readily apparent.

The section 1983 false arrest claim arises out of the same nucleus

of operative fact as the other two tried claims (both of which

Boulter acknowledges were in the case all along), and the parties'

discussions with the court immediately before the start of trial

clarified any uncertainty about whether the section 1983 false

arrest claim was to be litigated. The sockdolager is this: had

prejudice loomed, Boulter could have asked the court for a

continuance. His failure to do so leads ineluctably to the

conclusion that any claim of unfairness that he now might assert is

nothing more than a post hoc rationalization sparked by a verdict

that was not to his liking. See Faigin v. Kelly, F.3d ,

(1st Cir. 1999) [No. 98-1589, slip op. at 34] (explaining that "a

reviewing court may attribute special significance to the party's

eschewal of a continuance and assume that the party did not require

additional time to adjust his litigation strategy").

We likewise reject Boulter's plaint that the section 1983

false arrest claim, even if pled, did not survive the district

court's summary judgment order. In hawking this proposition,

Boulter points to the concluding passage in the trial court's

summary judgment ruling, in which Judge Saris stated: "With

respect to Sergeant Boulter, the motion is DENIED on the excessive

force claim pursuant to 42 U.S.C. 1983, and the intentional

infliction of emotional distress claim. Otherwise it is ALLOWED."

Boulter maintains that these final four words laid to rest any

incipient section 1983 false arrest claim.

This argument is too cute by half. It overlooks that

Boulter's motion, which set the stage for the court's summary

judgment ruling, never sought brevis disposition as to the section

1983 false arrest claim. Thus, when Boulter made this very

argument below, the district court rejected it, explaining that the

"otherwise" language spoke only to the claims that had been debated

in the summary judgment papers and that the section 1983 false

arrest claim was not among that number. A trial court ordinarily

is the best expositor of its own orders, see United States v.

Podolsky, 158 F.3d 12, 17 (1st Cir. 1998); Martha's Vineyard Scuba

Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam

Vessel, 833 F.2d 1059, 1066-67 (1st Cir. 1987), and Boulter offers

no convincing reason why we should ignore this salutary principle

here. Because the district court reasonably interpreted its own

order as not terminating the section 1983 false arrest claim, we

honor its interpretation.

B. The Evidentiary Question.

Boulter next insists that the trial court erred in

admitting the partially erased videotape into evidence. He bases

this insistence on three grounds: lack of relevance, lack of a

proper foundation, and undue prejudice. We review challenges to

orders admitting or excluding evidence for abuse of discretion.

See Faigin, F.3d at [slip op. at 24]; Williams v. Drake,

146 F.3d 44, 47 (1st Cir. 1998). We discern none here.

The facts are these. The videotape itself had been

erased by parties unknown (although Iacobucci understandably

suspected the police). At any rate, the audio portion of the tape

picked up after the time that the police took Iacobucci into

custody. It apparently recorded contemporaneous conversations

amongst Boulter and his fellow officers. Boulter's objection runs

to the admissibility of those comments.

Boulter's first line of attack emphasizes the temporal

sequence. He argues that an after-the-fact recording necessarily

lacks relevance. This ipse dixit is simply wrong. Evidence of

subsequent events frequently sheds light upon, and thus assumes

relevance in relation to, antecedent acts. See United States v.

Lara, 181 F.3d 183, 204 (1st Cir. 1999); United States v. Sutton,

970 F.2d 1001, 1007 (1st Cir. 1992); United States v. Mena, 933

F.2d 19, 25 n.5 (1st Cir. 1991).

In this instance, the district court supportably

determined that rational jurors might find that some of the

statements made on the tape referred back to what had transpired at

the time of the arrest. We recount a sampling in the margin.

Relevancy is a fluid concept under the Evidence Rules. See Fed. R.

Evid. 401 (defining relevant evidence as "having any tendency to

make the existence" of any material fact "more probable or less

probable than it would be without the evidence"). Consequently,

relevancy typically presents a rather low barrier to admissibility.

See, e.g., Fitzgerald v. Expressway Sewerage Constr., Inc., 177

F.3d 71, 75 (1st Cir. 1999); United States v. Saccoccia, 58 F.3d

754, 780 (1st Cir. 1995). Taking into account that the excessive

force, emotional distress, and false arrest claims were being tried

together, we conclude that Judge Saris acted within the encincture

of her discretion in deciding that the challenged statements

cleared this hurdle.

Boulter's second line of attack centers on his contention

that the audio portion of the tape ought to have been excluded

because Iacobucci's enhancement of it somehow destroyed the tape's

integrity. This contention amounts to a claim that the evidence

lacked a proper foundation. Such claims are committed to the trial

judge's informed discretion. See United States v. Ladd, 885 F.2d

954, 956 (1st Cir. 1989); see also Fed. R. Evid. 901(a), 1001(2) &

1002.

Boulter's contention trenches on the frivolous.

Iacobucci testified to the chain of custody. He also testified

that he did not alter the tape in any way, but, rather, enhanced

the sound by the simple expedient of listening to it on a high-

quality play-back system that increased its audibility. The judge

(and the jury, for that matter) were free to credit this testimony,

especially since Boulter offered no evidence to contradict it. No

more was exigible.

Boulter's final line of attack postulates that the

failure to identify the voices on the tape prior to its admission

into evidence created unfair prejudice. See Fed. R. Evid. 403.

This argument, too, strikes us as insubstantial.

As noted above, the tape itself was properly

authenticated prior to its admission. Thereafter, several

witnesses (mainly police officers) testified as to the identities

of the speakers. Moreover, the officers whose voices were alleged

to have been captured on the tape (Boulter among them) testified at

trial; the jury thus had the opportunity to determine for itself

who spoke which lines.

Against this backdrop, we see no Rule 403 problem. The

rule does not aspire to eliminate prejudice after all, most

evidence is offered precisely because the proponent believes it

will prejudice the factfinder in his favor but only to eliminate

unfair prejudice. See, e.g., Veranda Beach Club Ltd. Partnership

v. Western Sur. Co., 936 F.2d 1364, 1372 (1st Cir. 1991); United

States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989).

Given the sound track's potentially significant probative value

(especially in regard to Boulter's state of mind as it pertained to

the section 1983 excessive force claim) and the absence of any

unfairly prejudicial impact, we cannot fault the district court's

overruling of Boulter's Rule 403 objection. See Freeman v. Package

Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988) ("Only rarely and

in extraordinarily compelling circumstances will we, from the

vista of a cold appellate record, reverse a district court's on-

the-spot judgment concerning the relative weighing of probative

value and unfair effect.").

C. Qualified Immunity.

42 U.S.C. 1983 provides a private right of action

against officials who, while acting under color of state law,

deprive individuals of federally assured rights. But this kind of

rights-violating conduct does not translate automatically into

money damages, for a state actor may enjoy an immunity (absolute or

qualified). In this instance, Boulter says that the lower court

erred in failing to exonerate him based on the doctrine of

qualified immunity.

Qualified immunity is a medium through which "the law

strives to balance its desire to compensate those whose rights are

infringed by state actors with an equally compelling desire to

shield public servants from undue interference with the performance

of their duties and from threats of liability which, though

unfounded, may nevertheless be unbearably disruptive." Buenrostro

v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 806 (1982)). "Hence, state officials

exercising discretionary authority are entitled to qualified

immunity insofar as their conduct does not transgress clearly

established constitutional or federal statutory rights of which a

reasonably prudent official should have been aware." Id. To

ascertain a defendant's eligibility for such immunity, a court must

inquire into the objective legal reasonableness of the defendant's

actions, gauged in connection with the mosaic of legal rules that

were clearly established when the defendant acted. See Anderson v.

Creighton, 483 U.S. 635, 639 (1987). In operation, the outcome of

this inquiry "depends substantially upon the level of generality at

which the relevant 'legal rule' is to be identified." Id.

Iacobucci asserts that Boulter, a policeman acting under

color of his official authority, lacked probable cause to arrest

him and thereby violated his Fourth Amendment rights. In this

wise, he observes that a citizen's right to be free from arrest in

the absence of probable cause has long been clearly established.

See, e.g., Beck v. Ohio, 379 U.S. 89, 91 (1964). That observation

sweeps so broadly, however, that it bears very little relationship

to the objective legal reasonableness vel non of Boulter's harm-

inducing conduct. See Wilson v. Layne, 119 S. Ct. 1692, 1699-1700

(1999). The "right the official is alleged to have violated must

have been 'clearly established' in a more particularized, and hence

more relevant, sense." Anderson, 483 U.S. at 640. Our inquiry,

then, reduces to whether a reasonable police officer, standing in

Boulter's shoes, would have known that arresting Iacobucci for

disorderly conduct, under all the attendant circumstances, would

contravene clearly established law. That inquiry must proceed in

light of the commonly held understanding that probable cause exists

only if the facts and circumstances within the arresting officer's

knowledge "are sufficient to lead an ordinarily prudent officer to

conclude that an offense has been, is being, or is about to be

committed, and that the putative arrestee is involved in the

crime's commission." Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir.

1997).

Before wrestling with this question, we pause to voice

some procedural concerns. Boulter first raised the issue of

qualified immunity in a pretrial motion for summary judgment.

Although he tries in this forum to assign error to the denial of

that motion, a pair of procedural impediments frustrates the

attempt. For one thing, an order denying summary judgment

typically does not merge into the final judgment and therefore is

not an independently appealable event if the case thereafter

proceeds to trial. See Eastern Mountain Platform Tennis, Inc. v.

Sherwin-Williams Co., 40 F.3d 492, 497 (1st Cir. 1994).

For another thing, in his notice of appeal, Boulter

purported to challenge only the amended judgment entered by the

district court on March 31, 1997 a decree sparked by the court's

denial of his motion for judgment as a matter of law. "It is

black-letter law that a notice of appeal must specify the order or

judgment to which the appeal is addressed." Lehman v. Revolution

Portfolio LLC, 166 F.3d 389, 395 (1st Cir. 1999) (citing Fed. R.

App. P. 3(c)). Boulter's failure to specify the order denying

summary judgment in his notice of appeal thus bars his current

attempt to contest the propriety of that ruling. See id.

In all events, the district court supportably concluded

that Boulter's summary judgment motion did not seek to test the

bona fides of the section 1983 false arrest claim. See supra Part

II(A). Since the scope of the protection afforded by the doctrine

of qualified immunity is claim-specific, see, e.g., Feliciano-

Angulo v. Rivera-Cruz, 858 F.2d 40, 48 (1st Cir. 1988); Vazquez

Rios v. Hernandez Colon, 819 F.2d 319, 326-28 (1st Cir. 1987), this

omission means that Boulter could not have raised a qualified

immunity defense as to that claim at the summary judgment stage.

And Boulter's assertion in the motion papers of a qualified

immunity defense in regard to Iacobucci's section 1983 excessive

force claim cannot fill this void.

Notwithstanding these infirmities, the qualified

immunity issue is not a dead letter. Although qualified immunity

normally should be resolved early in the litigation, see Mitchell

v. Forsyth, 472 U.S. 511, 526 (1985), the defense, if preserved,

may be pressed at later stages, including in a timeous post-trial

motion. See, e.g., Consolo v. George, 58 F.3d 791, 794 (1st Cir.

1995). Because Boulter filed such a motion and now assigns error

to its denial, the issue must be addressed.

In the ordinary course, we review the district court's

denial of qualified immunity de novo, aligning the evidence most

favorably to the non-movant and drawing all reasonable inferences

in his favor. See, e.g., Camilo-Robles v. Hoyos, 151 F.3d 1, 8

(1st Cir. 1998); Amsden v. Moran, 904 F.2d 748, 752-53 (1st Cir.

1990). But this familiar formulation of the standard arises in

connection with pretrial orders granting or denying qualified

immunity, and Iacobucci maintains that the intervening trial and

verdict pretermit (or, at least, reconfigure) the inquiry. He

points out that when Boulter made the arrest, he charged Iacobucci

with having committed two offenses: disorderly conduct and

disturbing a public assembly. Iacobucci notes correctly that this

charging decision circumscribes the inquiry into probable cause.

Building on this foundation, he posits that we need not look beyond

the verdict, in which the jury, answering a special interrogatory,

found that no reasonable police officer would have believed that

Iacobucci had committed either offense. Boulter resists this

approach: he asserts that the jury's merits determination neither

extinguishes nor bears upon his claim of entitlement to qualified

immunity.

Not surprisingly, there is a middle ground. A state

actor may be entitled to qualified immunity for rights-violating

conduct as long as he had an objectively reasonable basis for

believing that his conduct would not abridge the rights of others.

See Camilo-Robles v. Zapata, 175 F.3d 41, 43 (1st Cir. 1999);

Quintero de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st Cir.

1992). This means, of course, that the reasonableness standards

underlying the probable cause and qualified immunity inquiries are

not coterminous. See Anderson, 483 U.S. at 641. Thus, the jury's

determination does not squarely answer the question whether

Boulter's conduct in arresting Iacobucci satisfied the criterion of

objective legal reasonableness so as to entitle him to qualified

immunity.

Nor does the procedural posture in which Boulter's appeal

arises greatly influence the standard of review. When a qualified

immunity defense is pressed after a jury verdict, the evidence must

be construed in the light most hospitable to the party that

prevailed at trial. See Thompson v. Mahre, 110 F.3d 716, 721 (9th

Cir. 1997); Karnes v. Skrutski, 62 F.3d 485, 494 (3d Cir. 1995);

Posr v. Doherty, 944 F.2d 91, 95-96 (2d Cir. 1991). One difference

is that, in such an exercise, deference should be accorded to the

jury's discernible resolution of disputed factual issues. See

Frazell v. Flanigan, 102 F.3d 877, 886 (7th Cir. 1996).

With this paradigm in mind, we turn to the facts. The

first of the two charges on which Boulter arrested Iacobucci

disorderly conduct implicated Mass. Gen. Laws c. 272, 53. In

pertinent part, the statute makes it a misdemeanor to be a

"disorderly person." To stave off constitutional attacks, the

Massachusetts Supreme Judicial Court (SJC) originally construed

section 53 to provide that one is guilty under that rubric

. . . if, with purpose to cause public

inconvenience, annoyance or alarm, or

recklessly creating a risk thereof, he: (a)

engages in fighting or threatening, or in

violent or tumultuous behavior; or (b) makes

unreasonable noise or offensively coarse

utterance, gesture or display, or addresses

abusive language to any person present; or (c)

creates a hazardous or physically offensive

condition by any act which serves no

legitimate purpose of the actor.

Alegata v. Commonwealth, 231 N.E.2d 201, 211 (Mass. 1967) (quoting

Proposed Official Draft of Model Penal Code 250.2).

In the next decade, the SJC narrowed this definition of

disorderly conduct to encompass only activities not implicating the

"lawful exercise of a First Amendment right." Commonwealth v. A

Juvenile, 334 N.E.2d 617, 628 (Mass. 1975). To ensure that result,

the SJC modified its earlier definition by striking subsection (b)

entirely and interpreting subsections (a) and (c) to cover only

conduct, not expressive activity. See id. at 629. Consistent with

this approach, the SJC subsequently held that a verbal challenge,

even when coupled with a refusal to obey a police officer's orders,

does not constitute disorderly conduct within the meaning of

section 53 as long as done in furtherance of a legitimate purpose.

See Commonwealth v. Feigenbaum, 536 N.E.2d 325, 328 (Mass. 1989).

To this extent, then, the contours of the disorderly conduct

statute were clearly visible when Boulter confronted Iacobucci at

the Pembroke Town Hall.

Context is important in police work, as elsewhere in

human intercourse. Thus, upon being apprised of the ongoing events

at the Town Hall, Boulter recognized that the circumstances

required a reasonable police officer to take into account the

Massachusetts Open Meeting Law, Mass. Gen. Laws c. 39, 23B, and

he took steps to refresh his recollection of that enactment. The

statute requires that "[a]ll meetings of a governmental body . . .

be open to the public," and confers a right to videotape such

meetings on "any person in attendance." The right to videotape is

not unfettered: the camera must be "fixed in one or more

designated locations determined by the governmental body," and the

taping may not actively interfere "with the conduct of the

meeting." Id. Withal, the statute does "not apply to any chance

meeting, or a social meeting at which matters relating to official

business are discussed so long as no final agreement is reached."

Id.

Given this background, we are constrained to conclude

that, taking the evidence in the light most flattering to

Iacobucci, his constitutional right to act as he did without being

arrested for disorderly conduct was "sufficiently clear that a

reasonable official would [have understood] that what he [was]

doing violate[d] that right." Anderson, 483 U.S. at 640; accord

Wagenmann v. Adams, 829 F.2d 196, 209 (1st Cir. 1987).

Taking first the events that transpired in the meeting

room, we note that Iacobucci had satisfied the basic prerequisites

for entitlement to videotape a public meeting under the Open

Meeting Law: he had situated his tripod in the only stationary

location that would allow the mounted camera to capture the faces

of both the commissioners and the applicants and there is no

significantly probative evidence that his activities interfered

with the ongoing meeting. Indeed, his equipment had been placed

in the very same location during prior Commission meetings, without

incident. Moreover, after Hathon tired of trying to bully

Iacobucci, the instant meeting proceeded without disruption and the

Commission completed its business unimpeded by the filming.

Iacobucci remained cool, calm, and collected throughout. Under the

circumstances and in light of the clearly established law that

obtained at the time of the incident, we agree with Judge Saris

that an objectively reasonable officer would not have thought that

Iacobucci was subject to arrest for disorderly conduct.

Taking next the hallway episode, we find nothing whatever

to suggest that Iacobucci was "fighting or threatening," or was

engaged in any "violent or tumultuous behavior." A Juvenile, 334

N.E.2d at 628; see also Sheehy v. Plymouth, F.3d , (1st

Cir. 1999) [No. 98-2080, slip op. at 16]. On any version of the

events reflected in the record, no objectively reasonable police

officer would have believed that Iacobucci had created a "hazardous

or physically offensive condition . . . which serve[d] no

legitimate purpose." A Juvenile, 334 N.E.2d at 628. Even if the

gathering was not a public meeting at that point, Iacobucci was

doing nothing wrong: he was in a public area of a public building;

he had a right to be there; he filmed the group from a comfortable

remove; and he neither spoke to nor molested them in any way.

Boulter's repeated demands that Iacobucci cease recording

do not change the disorderly conduct calculus. A police officer is

not a law unto himself; he cannot give an order that has no

colorable legal basis and then arrest a person who defies it. So it

is here: because Iacobucci's activities were peaceful, not

performed in derogation of any law, and done in the exercise of his

First Amendment rights, Boulter lacked the authority to stop them.

The other ground of arrest fares no better under close

scrutiny. That ground implicated Mass. Gen. Laws c. 272, 40,

which makes it a misdemeanor to "willfully interrupt[] or disturb[]

a school or other assembly." As to the events that transpired in

the meeting room, the record, read as it must be in the light most

favorable to Iacobucci, contains no evidence that he "interrupted

or disturbed" the Commission's meeting. See supra note 5 and

accompanying text. As to the events that transpired in the

hallway, Boulter was adamant in his insistence that the hallway

gathering was not a public meeting.

There is no point in flogging a dead horse. We conclude

that the district court did not err in holding that Boulter's

arrest of Iacobucci failed to attain the level of objective legal

reasonableness. Hence, Boulter was not entitled to qualified

immunity.

III. IACOBUCCI'S APPEAL

Although voicing doubts about whether a satisfactory

foundation for punitive damages had been laid, the district court

prudently reserved judgment on that question and sent it to the

jury. After the jurors awarded Iacobucci $75,000 in compensatory

damages and $135,000 in punitive damages, Boulter moved for relief.

Concluding that the evidence failed to warrant punitive damages,

the district court struck that portion of the award (albeit leaving

intact the compensatory damages). Iacobucci contests this ruling.

We review the lower court's decision de novo, taking the facts and

the reasonable inferences therefrom in the light most congenial to

the jury's verdict. See Correa v. Hospital San Francisco, 69 F.3d

1184, 1188 (1st Cir. 1995).

The district court's approach accurately foretold that

taken by the Supreme Court a few months later in Kolstad v.

American Dental Ass'n, 119 S. Ct. 2118 (1999). Punitive damages

become a discretionary matter for the jury in a section 1983 action

only if the plaintiff makes an adequate threshold showing. A

plaintiff reaches that threshold when "the defendant's conduct is

shown to be motivated by evil motive or intent, or when it involves

reckless or callous indifference to the federally protected rights

of others." Smith v. Wade, 461 U.S. 30, 56 (1983).

Kolstad sheds considerable light on Smith and the

circumstances under which a judge may permit a jury to consider a

request for punitive damages in a civil rights case. The Smith

standard, visualized through the Kolstad lens, confirms that there

is a different focus for compensatory as opposed to punitive

damages. See Kolstad, 119 S. Ct. at 2124. The special showing

needed to trigger eligibility for punitive damages, which the Smith

Court called "evil motive" or "reckless or callous indifference,"

Smith, 461 U.S. at 56, pertains to the defendant's "knowledge that

[he] may be acting in violation of federal law, not [his] awareness

that [he] is engaging in discrimination," Kolstad, 119 S. Ct. at

2124. Thus, the standard requires proof that the defendant acted

"in the face of a perceived risk that [his] actions [would] violate

federal law." Id. at 2125. While "egregious or outrageous acts

may serve as evidence supporting an inference of the requisite

'evil motive,'" the presence (or absence) of such acts does not in

itself determine the propriety (or lack of propriety) of punitive

damages in a given case. Id. at 2126.

To make out a jury question on punitive damages under

this subjectively oriented test, Iacobucci needed to adduce

evidence sufficient to prove that Boulter arrested him in the face

of a perceived risk that doing so would violate Iacobucci's

federally assured rights. More specifically, Iacobucci needed to

adduce evidence sufficient to show that Boulter determined to

effectuate the arrest knowing that he lacked probable cause to do

so, or, at least, with conscious indifference to the possibility

that he lacked probable cause.

We realize that the district court instructed the jury to

determine whether Boulter had acted intentionally or recklessly in

arresting Iacobucci, and that the jury, by returning a plaintiff's

verdict on the section 1983 false arrest claim, necessarily found

that Boulter's conduct fit into that proscribed category. This

mens rea finding, however, does not clear the way for punitive

damages. The state of mind required to make out a cognizable

section 1983 claim (at least one grounded in false arrest) differs

importantly from that required to justify punitive damages. See

Kolstad, 119 S. Ct. at 2124. The former requirement relates only

to the conduct, not to the consequence; that is, it entails an

intent to do the act, not to effect a civil rights violation. See

id.

On this issue, the district court concluded that although

Boulter made an objectively unreasonable split-second decision when

he arrested Iacobucci, no evidence suggested that he harbored any

malice or acted with reckless indifference to Iacobucci's

constitutional rights. After carefully scrutinizing the record, we

agree with this assessment. Viewed most favorably to Iacobucci,

the evidence reveals that when apprised of the contretemps, Boulter

called a selectman to get a better sense of the Open Meeting Law.

Upon his arrival, he attempted to piece together a complete picture

of the evening's events. He then made several attempts to defuse

a contentious situation. Only after his attempted intercessions

were rebuffed did he effect an arrest. This constellation of facts

does not lend itself to the inference that Boulter acted with an

evil motive or a conscious awareness that the arrest might violate

Iacobucci's civil rights. Where, as here, the evidence shows no

more than that an exasperated police officer, acting in the heat of

the moment, made an objectively unreasonable mistake, punitive

damages will not lie.

Laboring to close this gap, Iacobucci suggests that the

partially erased videotape contains evidence indicative of a state

of mind conducive to punitive damages. He points to a statement

contained therein from which (he says) the jury could have inferred

that the videotape had been erased to provide cover against a

potential excessive force claim. The jury, however, found for

Boulter on the section 1983 excessive force count and the

videotape contains nothing that bears on Boulter's motives in

connection with the arrest. We conclude, therefore, that this

evidence fails to lift the punitive damages issue into the realm of

the jury's discretion.

To summarize, the district court acted appropriately in

defenestrating the punitive damages award. The dearth of record

evidence, direct or circumstantial, as to Boulter's evil motive

and/or subjective awareness that he lacked probable cause to arrest

Iacobucci suffices to defeat the claim for punitive damages as a

matter of law.

We add a coda. Precedent in this circuit had interpreted

Smith to mean that in civil rights cases requiring proof of

intentional wrongdoing, "the state of mind necessary to trigger

liability for the wrong is at least as culpable as that required to

make punitive damages applicable." Rowlett v. Anheuser-Busch,

Inc., 832 F.2d 194, 205 (1st Cir. 1987). Kolstad plainly rejects

that interpretation. To the extent that Rowlett fails to draw a

distinction between the state of mind requirement anent the actor's

conduct and the state of mind requirement anent the effects of that

conduct, it is no longer good law, and we disavow it.

IV. CONCLUSION

We need go no further. For the reasons set forth above,

we reject all three appeals and leave the parties where we found

them.

Affirmed. Each party to bear his own costs.