Fletcher v. Town of Clinton

United States Court of Appeals

For the First Circuit

No. 99-1377

LORI FLETCHER,

Plaintiff, Appellee,

v.

TOWN OF CLINTON, DEAN BESSEY, and TODD GENEST,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]

Before

Stahl, Circuit Judge,

John R. Gibson, Senior Circuit Judge,

and Lynch, Circuit Judge.

Edward R. Benjamin, Jr., with whom Thompson & Bowie was

on brief, for appellants.

C.H. Spurling for appellee.

November 8, 1999

LYNCH, Circuit Judge. On July 17, 1997, Lori Fletcher

obtained an ex parte domestic violence restraining order against

her abusive boyfriend, William McDonald. McDonald was ordered to

stay away from Fletcher and her residence. Informed that McDonald

had been seen in Fletcher's home recently, two Clinton, Maine

police officers drove by her house on July 31, 1997. They saw

McDonald there. Aware of the restraining order and past occasions

on which Fletcher sought police help, the police entered her home,

despite her objections and her assertion that McDonald was not in

the house. A fracas resulted during which Fletcher was arrested

and McDonald escaped. McDonald turned himself in the next day. No

charges were ever prosecuted against Fletcher.

Fletcher then brought a federal civil rights action

against the officers, the Town, and the bail commissioner. A

Magistrate Judge denied the defendants' motion for summary judgment

on the grounds of qualified immunity, and they appeal. We affirm

in part and reverse in part, hold that the officers have qualified

immunity as to Counts I and II of the complaint, and find the

defendants have waived their appeal from the denial of immunity as

to Count III. We vacate the Magistrate Judge's denial of summary

judgment as to the Town of Clinton, and remand for further

proceedings.

I

Fletcher filed suit against police officers Dean Bessey

and Todd Genest, bail commissioner William Cyr, and the Town of

Clinton, Maine on May 15, 1998, alleging violations of 42 U.S.C.

1983 and state tort and criminal laws. Count I of the complaint

alleges violations of 1983 stemming from the officers' first

entry into her home and her subsequent arrest; Count II concerns

the officers' second entry into her home that night and "her

subsequent detention and interrogation." Finally, Count III

alleges a 1983 violation stemming from the bail process.

The Magistrate Judge denied the motion for summary

judgment as to the officers and the Town, concluding that the

officers violated Fletcher's clearly established Fourth Amendment

rights in circumstances in which no reasonable officer could have

believed that his or her actions were not in violation of such

rights. In concluding that there were no exigent circumstances

justifying the officers' actions, the Magistrate Judge relied on

the officers' "lack of haste" in going to Fletcher's home after

hearing that McDonald had been seen there earlier, the lack of a

history of physical violence in the pair's relationship, and the

fact that the police "saw nothing to suggest Plaintiff was in

danger" that evening.

II

We briefly address the question of appellate

jurisdiction. Fletcher argues that this court is without

jurisdiction to hear the defendants' appeal, as that appeal is

"based on allegations of factual error by the court below."

The jurisdictional rules in this area are clear.

Ordinarily, appeals from denials of summary judgment will not be

entertained. See Buenrostro v. Collazo, 973 F.2d 39, 41 (1st Cir.

1992). There is, however, a narrow exception for denials of

pretrial motions based on claims of qualified immunity. See

Johnson v. Jones, 515 U.S. 304, 311-12 (1995). Such denials are

reviewable "only to the extent that the qualified immunity defense

turns upon a 'purely legal' question." Daz v. Daz Martnez, 112

F.3d 1, 3 (1st Cir. 1997); see also Tang v. Rhode Island, 120 F.3d

325, 326 (1st Cir. 1997). "[A] district court's pretrial rejection

of a qualified immunity defense is not immediately appealable to

the extent that it turns on either an issue of fact or an issue

perceived by the trial court to be an issue of fact." Daz, 112

F.3d at 3 (quoting Stella v. Kelley, 63 F.3d 71, 74 (1st Cir.

1995)) (internal quotation marks omitted).

Fletcher is correct that there would be no appellate

jurisdiction here if summary judgment were properly denied because

there were material facts in dispute. Fletcher is also correct

that there are disputes of fact concerning many of the details of

the events in question. But the Magistrate Judge clearly based his

decision on a determination that summary judgment was not available

as a matter of law. See id. ("If the pretrial rejection of the

qualified immunity defense is based on a purely legal ground, such

as a finding that the conduct described by the plaintiff, assuming

it occurred, transgressed a clearly established right, then the

denial may be challenged through an interlocutory appeal."). Our

independent review of the record shows that the disputed facts are

not material and that the issue of immunity may properly be decided

on the basis of the undisputed facts.

III

The essentials of the event are undisputed. We view the

facts in the light most favorable to Fletcher. See Swain v.

Spinney, 117 F.3d 1, 8 (1st Cir. 1997).

Before the night of July 31, 1997, Fletcher had called

the police for help with McDonald three separate times before she

obtained a restraining order. On May 22, 1997, Fletcher called the

police and complained that McDonald was extremely angry, was

refusing to leave her home, and had thrown her kitten across her

apartment. Officer Genest went to Fletcher's home, where Fletcher

told him that things were now under control. A pastor from

Fletcher's church had arrived and McDonald had agreed to leave with

him. The police left once McDonald did.

About two weeks later, on June 6, 1997, Fletcher called

the police again. She told the dispatcher that McDonald was drunk,

had refused to leave, and was stealing her property and threatening

to damage her car. The dispatcher heard McDonald tell Fletcher to

hang up the phone and call someone to come pick him up; the

dispatcher urged Fletcher to stay on the line until officers

arrived. The dispatcher heard an escalating argument and got

McDonald on the phone. Officers Genest and Bessey arrived shortly

thereafter and found McDonald outside the home. Despite their

orders not to do so and their warnings of arrest if he persisted,

McDonald tried to go back into Fletcher's home. McDonald was

arrested and charged with criminal trespass. McDonald was later

released on bail on the condition that he not have any direct or

indirect contact with Fletcher or her home.

On July 16, 1997, Fletcher again called the police, this

time from the home of Clinton Police Sergeant Steve Trahan (or his

mother). Fletcher said that her "ex-boyfriend" McDonald was in her

home in violation of his bail conditions and that she had been

forced to flee to call for help. Fletcher told the police that

McDonald had been at her home when she returned from work, that

they had argued, and that Fletcher had fled to her car. She was

talking to McDonald's ex-girlfriend (who had called to speak with

McDonald) on her cordless phone. McDonald had been "screaming in

the background." When Fletcher asked McDonald's ex-girlfriend to

call for help, McDonald had grabbed the phone away and thrown it

into a field. Fletcher went for help and the ex-girlfriend called

the police. Fletcher did not know Sergeant Trahan, but she had

seen a police car parked outside of the house and was "just taking

a chance hoping someone was there that could help [her]."

Officers picked up Fletcher and took her home. McDonald

was gone. They saw that McDonald had damaged Fletcher's property,

and noted that her kitten's eye was swollen shut. McDonald

telephoned Fletcher while the police were with her; he told her

that he was in Fairfield, Maine. It was a ruse. When the police

left to find him, McDonald appeared outside of Fletcher's house.

Fletcher once again called the police. McDonald was arrested later

that evening, his bail was revoked, and he was returned to jail.

The next day, July 17, Fletcher applied for an ex parte

temporary restraining order against McDonald in the state district

court. Under Maine law at the time, temporary ex parte orders of

protection could be granted on a showing of "[i]mmediate and

present danger of physical abuse to the plaintiff." Me. Rev. Stat.

Ann. tit. 19, 765(2). In her application, Fletcher swore that

she was "in immediate and present danger of abuse by the

defendant." She described the previous day's events -- the same

events she had described to the police the night before -- and

reported that she had "called for help on previous occassions [sic]

because [she] was freightened [sic] for [her] safety and for the

safety of [her] property." Fletcher also told the court that

McDonald had "threatened [her] on several occassions, [sic] that if

I leave him he will wreck my car and my belongings." The court

issued an order that prohibited McDonald from, among other things,

entering Fletcher's home and having any contact, direct or

indirect, with her. The order was served on McDonald in jail. A

copy was also delivered to the Clinton Police Department, as the

agency responsible for enforcing the order.

On the evening of July 31, 1997, the date of the

incidents in question, Officers Genest and Bessey went on duty at

6 p.m. Shortly before going on duty, Trahan informed Genest that

he had seen McDonald at Fletcher's home, when Fletcher was not

there, earlier in the day or the day before. Both Genest and

Bessey were aware of the history of problems between Fletcher and

McDonald. Genest had responded to Fletcher's May 22 and June 6

calls for help, and Bessey had responded to the June 6 call.

Additionally, both officers were aware of the events of July 16 and

knew that Fletcher had obtained a restraining order against

McDonald. Before leaving the station, Genest called the Kennebec

County Sheriff's Office and was informed that the restraining order

was still in effect.

At approximately 9 p.m. that evening, the officers drove

past Fletcher's home. As they drove by, they both saw a man they

recognized as McDonald through a first floor window. He was

standing in Fletcher's bedroom and talking to her.

The officers did not see any sign of conflict between

Fletcher and McDonald. Their prior experiences with McDonald as

well as their knowledge that a protective order existed made them

concerned for Fletcher's safety, however. As Genest stated in his

affidavit, "[i]t was apparent to me that the situation had

escalated to the point that Ms. Fletcher feared for her safety to

the point of repeatedly calling for police assistance and obtaining

a court order prohibiting Mr. McDonald from having any contact with

her or her property." Bessey reacted similarly, concluding that

Fletcher's life was in danger because of "Mr. McDonald's violent

nature," "Mr. McDonald's drinking, her calling us, calling the

county, [and] her putting a protection order on him." The officers

turned their cruiser around and stopped briefly to contact Trahan.

Trahan once again confirmed that the restraining order was in

effect and told them to pick up McDonald and bring him in.

On returning to Fletcher's home, Bessey knocked on the

front door while Genest went to the window where they had seen

Fletcher and McDonald earlier "to ensure that McDonald did not harm

Fletcher" and to "watch McDonald in case he tried to flee." When

Genest approached the window, he saw Fletcher in her bedroom.

Although Bessey's knocking was audible in the bedroom and although

Fletcher had seen the police cruiser outside, she ignored the

knocking at her door. Speaking through her window, Genest told

Fletcher that he was from the Police Department, that he knew

McDonald was in the home, and that she should go to the door. He

said that he would arrest her if she did not. She denied that

McDonald was there.

Genest and Bessey say that Fletcher eventually went to

the door and opened it. Fletcher, in contrast, says that she never

opened the door, but that the officers let themselves in through

the front door, which might have been locked. We will take

Fletcher's version of events.

Once inside, the officers saw Fletcher and told her that

they were looking for McDonald and knew he was in her home.

Fletcher denied that McDonald was there, said that a friend of hers

was in the bathroom, and ordered the officers to leave. McDonald

spoke from behind the bathroom door, saying he was someone else.

The ploy backfired. The officers immediately recognized McDonald's

distinctive accent.

Bessey observed that Fletcher "acted kind of shook up and

wanted us to leave" and that it seemed as though "Mr. McDonald was

directing Ms. Fletcher to request that we leave the residence."

Genest knew that McDonald had interfered with Fletcher's attempts

to get help on a previous occasion and said that he "did not know

if that was the case in this situation, or whether Mr. McDonald had

threatened to harm Ms. Fletcher if she told us he was in the

apartment and had him arrested."

The officers decided to go further inside the house. As

they moved toward the bathroom, Fletcher picked up the phone and

dialed 911. Genest took the phone from her hand, told the

dispatcher who he was, and explained that no assistance was needed

at that time. He hung up the phone and the officers went to the

bathroom door. Fletcher stayed close to the officers, demanding

they leave and insisting that they had no legal right to be there.

Fletcher was warned that she would be arrested if she did not stop

interfering with their efforts to reach McDonald. She continued

and Genest handcuffed her and placed her in the bedroom.

The officers eventually got the bathroom door open.

After a struggle with McDonald, the officers sprayed pepper spray

into the bathroom and McDonald slammed the door closed, leaving the

officers outside. When the officers opened the door after waiting

for the pepper spray to clear, they found McDonald had escaped out

the bathroom window. Both officers left the house to pursue

McDonald.

As Genest left the house, he heard the door close and

lock behind him. Fearing that McDonald had reentered the home and

knowing that Fletcher was vulnerable in her handcuffed position,

Genest returned to the front door, found it locked, and shouted a

demand that the door be opened. Fletcher did not hear Genest's

demand. When there was no response, Genest kicked the door in. He

discovered that Fletcher had slipped out of her handcuffs and that

she was the one who had locked the front door. She had again

called 911, and Genest again removed the phone from her hand and

spoke to the dispatcher. Genest then handcuffed Fletcher and took

her to the police cruiser.

Meanwhile, Bessey had not found McDonald. Genest radioed

for assistance and the officers who reported to the scene proceeded

to search for McDonald. They did not find him.

Fletcher was eventually taken by Genest and Bessey to the

police station, where she waited until the bail commissioner

arrived. Fletcher was released on bail that evening. No charges

were ever prosecuted against Fletcher. McDonald turned himself in

the next day, and was released on bail. He eventually pled guilty

to violation of the protective order.

IV

We review the grant or denial of summary judgment de

novo. See Swain, 117 F.3d at 5. Qualified immunity analysis is

two-pronged. "First, the court must establish whether the

constitutional right asserted by the plaintiff was 'clearly

established' at the time of the alleged violation." St. Hilaire v.

City of Laconia, 71 F.3d 20, 24 (1st Cir. 1995). Under this prong,

"[t]he contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing violates

that right." Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)) (internal quotation marks omitted). Second, the court must

ascertain "whether a reasonable official situated in the same

circumstances should have understood that the challenged conduct

violated that established right." Id. (quoting Hegarty v. Somerset

County, 53 F.3d 1367, 1373 (1st Cir. 1995)) (internal quotation

marks omitted). This is an objective inquiry that involves asking

"whether the agents acted reasonably under settled law in the

circumstances, not whether another reasonable, or more reasonable,

interpretation of the events can be constructed . . . after the

fact." Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam).

We analyze this case under the second prong.

A. The Warrantless Entry Claims

Fletcher claims that both the initial entry into her home

and the reentry after McDonald had escaped through the bathroom

window violated her Fourth Amendment rights. Both entries were

without warrant and we evaluate these claims together.

It is clearly established that a search warrant is

ordinarily required to enter the home of a third person to arrest

an individual who is believed to be inside the home. See Steagald

v. United States, 451 U.S. 204, 216 (1981). This rule applies

regardless of the existence of an arrest warrant. See id. Just as

clearly established, however, is the "exigent circumstances"

exception to this rule. See Joyce v. Town of Tewksbury, 112 F.3d

19, 21-22 (1st Cir. 1997) (en banc). Exigent circumstances exist

where "there is such a compelling necessity for immediate action as

will not brook the delay of obtaining a warrant." United States v.

Almonte, 952 F.2d 20, 22 (1st Cir. 1991) (quoting United States v.

Adams, 621 F.2d 41, 44 (1st Cir. 1980)) (internal quotation marks

omitted).

There are four recognized categories of exigent

circumstance: "(1) 'hot pursuit' of a fleeing felon; (2) threatened

destruction of evidence inside a residence before a warrant can be

obtained; (3) a risk that the suspect may escape from the residence

undetected; or (4) a threat, posed by a suspect, to the lives or

safety of the public, the police officers, or to herself."

Hegarty, 53 F.3d at 1374. The defendants say that "safety"

exigencies justified their warrantless entries into Fletcher's

home.

An officer's reasonable belief that the delay needed to

obtain a warrant would pose "a threat to police or the public

safety" is sufficient to create exigent circumstances. United

States v. Curzi, 867 F.2d 36, 42 (1st Cir. 1989) (internal

quotation marks and citation omitted). "[T]he Supreme Court's

standard of reasonableness is comparatively generous to the police

in cases where potential danger, emergency conditions or other

exigent circumstances are present." Roy v. Inhabitants of

Lewiston, 42 F.3d 691, 695 (1st Cir. 1994). Fletcher, ably

represented, argues that the police were required to obtain a

warrant because it was unreasonable to conclude that her safety was

threatened.

To the extent that the decision below rested on the

ground that the officers did not see McDonald being violent toward

Fletcher, that ground alone is inadequate to deny immunity.

Evidence of extreme danger in the form of shots fired, screaming,

or blood is not required for there to be some reason to believe

that a safety risk exists. See Tierney v. Davidson, 133 F.3d 189,

198 (2d Cir. 1998) ("[T]he absence of blood, overturned furniture

or other signs of tumult" did not render the officer's belief that

danger existed unreasonable and did not require the officer "to

withdraw and go about other business, or stand watch outside the

premises listening for the sounds of splintering furniture.");

United States v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995) ("We do

not think that the police must stand outside an apartment, despite

legitimate concerns about the welfare of the occupant, unless they

can hear screams. Doubtless outcries would justify entry, but they

are not essential." (citation omitted)).

On the spot reasonable judgments by officers about risks

and dangers are protected. Deference to those judgments may be

particularly warranted in domestic disputes. In those disputes,

violence may be lurking and explode with little warning. Domestic

violence victims may be intimidated or suffer from a dependence

inherent in the abusive relationship. The signs of danger may be

masked. See generally State v. Greene, 784 P.2d 257, 259 (Ariz.

1989) (en banc) (noting that domestic violence calls "commonly

involve dangerous situations in which the possibility for physical

harm or damage escalates rapidly"); S. Rep. No. 102-197, at 38

(1991) (noting that "fear of retaliation and the lingering stigma

of sex crimes and violence in the home" mean that "[b]oth literally

and figuratively, these crimes remain hidden from public view");

Charles Patrick Ewing, Battered Women Who Kill 19 (1987) (noting

that battered women often form a "traumatic bond" with their

abusers, which leads them to become "extremely dependent" on their

abuser and makes them "more incapable of fending for themselves");

Bureau of Justice Statistics, U.S. Dep't of Justice, Rep. No. NCJ-

167237, Violence by Intimates at v (1998) (noting that one of the

"most common reasons given by victims for not contacting the

police" was that they "feared retaliation"). Maine has had many

episodes of domestic disputes turning violent and even fatal. See

Maine Coalition for Family Crisis Services, Domestic Abuse in

Maine: Data Project 1990-1995, at 26 (n.d.) (finding that 51% of

all homicides in Maine from 1990-1995 were "domestic violence

related").

Police must often make balanced choices. Domestic

violence situations require police to make particularly delicate

and difficult judgments quickly. See Tierney, 133 F.3d at 197

("Courts have recognized the combustible nature of domestic

disputes, and have accorded great latitude to an officer's belief

that warrantless entry was justified by exigent circumstances when

the officer had substantial reason to believe that one of the

parties to the dispute was in danger."). At the same time,

officers must respect basic freedoms guaranteed by the Fourth

Amendment. A person's home is her sanctuary, not ordinarily to be

entered by the police unless that entry is authorized by a warrant.

See Payton v. New York, 445 U.S. 573, 585-87 (1980). This is true,

even when the officers want to enter the home in order to arrest a

third person whom they believe is there. See Steagald, 451 U.S.

at 216. Victims of domestic violence do not give up their

constitutional rights or the sanctity of their homes as the price

for obtaining a restraining order against an abuser.

The balanced choice the officers must make is protected

by qualified immunity if it is an objectively reasonable one. The

officers here chose not to seek a warrant, which inevitably would

have caused delay. If their choice not to delay but to enter

Fletcher's home was an objectively reasonable one, then the

officers receive the protection of qualified immunity. Such

immunity is given not only for the protection of the officers, but

also to protect victims of crime. In the domestic violence

context, immunity is given so that officers will not have strong

incentives to do nothing when they believe a domestic abuse victim

is in danger. Permitting suit against officers who have acted

reasonably when there is reason to fear would create exactly the

wrong incentives. Indeed, if the officers had done nothing, and

Fletcher had been injured, they would have faced the threat of

suit. In either event, their choice would be protected if it was

objectively reasonable in light of clearly settled law.

Officers' decisions to enter a home to ensure the safety

of those believed to be at risk of domestic violence have been

found reasonable by other courts. Cf. United States v. Gwinn, 46

F. Supp. 2d 479, 482-83 (S.D. W. Va. 1999) (finding entry to be

reasonable, even though alleged abuser had been detained, because

alleged victim was crying and might have needed assistance);

Greene, 784 P.2d at 259 ("The call [to 911] itself creates a

sufficient indication that an exigency exists allowing the officer

to enter a dwelling if no circumstance indicates that entry is

unnecessary."); State v. Lynd, 771 P.2d 770, 773 (Wash. Ct. App.

1989) (concluding that entry was reasonable where there had been a

hang-up call to 911 and the husband, who was outside the house,

reported that he and his wife had been arguing).

In this case, Fletcher's arguments -- that the officers'

belief that there was a threat to her safety was unreasonable -- do

have some weight. The officers saw no violence occurring within

the home. Fletcher clearly told the officers that she did not want

them in her home that night. McDonald had not been physically

violent with Fletcher, Fletcher had not hesitated to call the

police when she felt in danger, and the officers saw no evidence of

violence. Despite these facts, the officers intervened, and

Fletcher, who had sought the protection of the law, was the one

arrested. But Fletcher's subjective view of the facts is not the

test. We conclude that an objectively reasonable officer, facing

the circumstances that Genest and Bessey faced that evening, could

have concluded that both of the warrantless entries into Fletcher's

home were justified by the threat to Fletcher's safety.

It was reasonable to conclude that Fletcher was at risk.

The sequence of events described earlier -- three calls to the

police, a protective order, McDonald's being jailed -- could easily

lead the officers to the conclusion that Fletcher was at risk on

the night of July 31, indeed at greater risk than she had been

previously. There was good reason to believe that McDonald might

well be vindictive and try to hurt Fletcher for having him arrested

on July 16 and sending him back to jail. Fletcher's own testimony

was that she sought the protective order because she felt that the

situation might escalate dangerously.

I was afraid that he would come back to my apartment when

he did get out of jail and be very, very upset that they

had arrested him and tried [sic] to blame it on me. . . .

I was afraid that he could hurt me because -- he had

never hurt me, but he had hurt people in the past and he

had thrown my kittens, so, yes, I was afraid.

Fletcher's fear was well-founded. Arrests, protective

orders, and other attempts to break the cycle of violence often

increase the short-term danger to abuse victims. See Women and

Violence: Hearings before the Comm. on the Judiciary, U.S. Senate,

on Legislation to Reduce the Growing Problem of Violent Crime

Against Women, 101st Cong. 2d 145 (1991) (statement of Susan Kelly-

Dreiss, Executive Director, Pennsylvania Coalition Against Domestic

Violence); Ewing, supra, at 13 ("Violence against battered women

often escalates any time they attempt to take any control over

their lives or the battering relationship."); Lenore E. Walker et

al., Beyond the Juror's Ken: Battered Women, 7 Vt. L. Rev. 1, 12

(1982) ("One of the most dangerous times for both partners is at

the point, or threat, of separation."). The officers also knew

that McDonald was in violation of both the protective order and his

bail conditions. His defiance of court orders, at the risk of

going back to jail, suggested a man out of control or bent on

revenge.

Fletcher's refusal to admit the officers and her denial

that McDonald was in the home did not make the officers' conclusion

that her safety was threatened unreasonable. Instead of opening

the door and telling the officers that McDonald was there with her

permission and was not threatening her safety, Fletcher ignored the

knocking at her door and later lied about McDonald's presence.

This gave them additional reason to fear for her safety, given

their knowledge that McDonald had previously interfered with

Fletcher's efforts to contact the police. In domestic violence

situations, officers may reasonably consider whether the victim is

acting out of fear or intimidation, or out of some desire to

protect the abuser, both common syndromes. See United States v.

Bartelho, 71 F.3d 436, 438 (1st Cir. 1995) (noting that officers

are often trained not to take the statements of abuse victims at

face value, but instead to consider whether the victims are acting

out of fear). Indeed, one commentator has estimated that domestic

violence victims are uncooperative in eighty to ninety percent of

attempted criminal prosecutions against their batterers. See Lisa

Marie De Sanctis, Bridging the Gap Between the Rules of Evidence

and Justice for Victims of Domestic Violence, 8 Yale J.L. &

Feminism 359, 367-68 (1996). This same commentator concluded that

victims often lie "to minimize the violence and protect the

batterer." Id. at 392 n.197; see also Mary Ann Dutton,

Understanding Women's Responses to Domestic Violence: A

Redefinition of Battered Woman Syndrome, 21 Hofstra L. Rev. 1191,

1232-35 (1993). Particularly given their knowledge of the prior

incidents between Fletcher and McDonald, the officers were not

required to accept Fletcher's statements. Thus, the officers are

entitled to qualified immunity as to the first entry.

The officers' second entry into Fletcher's home was also

justified by the exigencies of the situation. When Genest entered

Fletcher's home the second time, he knew that someone had locked

him out. It was reasonable for him to believe that McDonald might

have done so by reentering the home. And he knew that if McDonald

had reentered the house, Fletcher would be vulnerable in her

handcuffed position. Further, the situation had, at this point,

escalated, increasing the possibility that McDonald might engage in

violence.

The Magistrate Judge, in denying summary judgment, found

that the officers' "lack of haste" meant that exigent circumstances

did not exist to justify the entries. In particular, he relied

upon the fact that the officers learned around 6 p.m. that McDonald

had been seen at Fletcher's home sometime in the last day or two,

but did not go by her house until approximately 9 p.m. This

analysis ignores the fact that these officers did not themselves

have any information that McDonald was still at the house and,

thus, that Fletcher was in danger until they drove past her house

at 9 p.m. At that point, they delayed only briefly to confirm that

the protective order was in effect and to receive instructions from

Trahan as to how they should proceed. The information that they

received before they went on duty that evening -- that McDonald had

been seen in Fletcher's home, when she was not there, at some time

during the last two days -- did not create an exigency. The

exigent circumstances arose when Genest and Bessey saw McDonald in

the house with Fletcher, and they did not delay unreasonably in

acting to address the safety risk they perceived at that time. See

United States v. Rengifo, 858 F.2d 800, 804 (1st Cir. 1988) ("An

agent does not avoid or delay applying for a warrant if he or she

is conducting an investigation spurred by suspicion, but without,

in her reasonable judgment, sufficient evidence to establish

probable cause to support a warrant.").

The officers are entitled to qualified immunity as to

both entries, and thus to dismissal of these claims in Count I and

Count II.

B. The Warrantless Arrests

Count I and Count II also allege that Fletcher's Fourth

Amendment rights were violated when Genest arrested her. The gist

of the complaint seems to be that Genest lacked probable cause to

arrest Fletcher and to charge her with hindering apprehension and

escape. This question is somewhat closer than the wrongful entry

claim.

The law in this area is also clear. Warrantless arrests

are permissible when supported by probable cause. See Rivera v.

Murphy, 979 F.2d 259, 263 (1st Cir. 1992). 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. (quoting United States v. Figueroa, 818 F.2d 1020,

1023 (1st Cir. 1987)) (internal quotation marks omitted)

(alterations in original). Again, we turn to the second prong of

the immunity analysis -- whether an objectively reasonable officer

would have found probable cause for the arrest.

Police are afforded immunity "so long as the presence of

probable cause is at least arguable." Floyd v. Farrell, 765 F.2d

1, 5 (1st Cir. 1985). Under this standard, Genest's arrest of

Fletcher for hindering apprehension, while questionable, is not so

unreasonable as to deprive him of qualified immunity. Fletcher's

conduct brought her within the literal terms of Maine's hindering

apprehension statute:

1. A person is guilty of hindering apprehension or

prosecution if, with the intent to hinder, prevent or

delay the discovery, apprehension, prosecution,

conviction or punishment of another person for the

commission of a crime, he:

A. Harbors or conceals the other person; or

. . .

E. Obstructs by force, intimidation or deception anyone

from performing an act which might aid in the discovery,

apprehension, prosecution or conviction of such

person . . . .

Me. Rev. Stat. Ann. tit. 17-A, 753. Fletcher's own testimony is

that she lied to the officers and said McDonald was not in the

house or in the bathroom. Her actions, therefore, fit within the

statutory language.

It is important to note that Fletcher's refusal to let

the officers into her house cannot serve as the justification for

her arrest. Fletcher says that Genest threatened her with arrest

if she denied them access to the house so that they could arrest

McDonald. If that were the justification for Fletcher's arrest,

that arrest would be in clear violation of the Fourth Amendment.

That is not this case, however.

Fletcher also complains that the officers lacked probable

cause to arrest her for escape, which requires that she "without

official permission . . . intentionally leaves official

custody . . . ." Me. Rev. Stat. Ann. tit. 17-A, 755(1). This

charge was based on Fletcher's slipping out of the handcuffs and

locking the door behind the officers. While it is unclear

precisely when Genest charged Fletcher with the crime of escape, it

is clear that this charge was made sometime after Fletcher was

handcuffed for the second time. But we need not consider whether

the officers had probable cause to arrest Fletcher for escape. In

handcuffing Fletcher for the second time, Genest was doing no more

than bringing her back into lawful custody. Her initial arrest for

hindering apprehension was supported by probable cause and Fletcher

has not provided, nor have we found, any cases suggesting that a

later charge may in any way affect the lawfulness of the initial

arrest. Cf. 1 Wayne R. LaFave & Jerold H. Israel, Criminal

Procedure 3.5, at 243 (1984) (stating generally that "the

lawfulness of the arrests should be determined upon the basis of

the facts at hand when they were made and not because of the

characterization employed"); Sheehy v. Town of Plymouth, No. 98-

2080, 1999 WL 685670, at *1 (1st Cir. Sept. 8, 1999). The charge

of escape did not result in a violation of her clearly established

constitutional rights, and the officers are, therefore, protected

by qualified immunity.

C. The Bail Proceedings

Count III of Fletcher's complaint alleges constitutional

violations stemming from the process by which her bail conditions

were determined. The defendants have not challenged on appeal the

Magistrate Judge's denial of summary judgment on this Count.

Defendants stated at oral argument that they did not consider the

Magistrate Judge to have issued a final ruling on this portion of

their motion for summary judgment because the opinion's legal

analysis focused almost entirely on the officers' qualified

immunity as to the claimed Fourth Amendment violations.

Regardless, the Magistrate Judge clearly disposed of the summary

judgment motion as to Count III, stating in his opinion that

"Defendants' Motion for Summary Judgment is hereby GRANTED as to

Counts IV through IX, and DENIED as to Counts I through III."

Thus, the defendants have waived their right to appeal the denial

of qualified immunity as to Count III. See United States v. Slade,

980 F.2d 27, 30 n.3 (1st Cir. 1992) ("[T]heories neither briefed

nor argued on appeal are deemed to have been waived.").

D. The Municipal Defendant

The Town of Clinton also appeals from the denial of

summary judgment. The Town seems to assume that it either has

qualified immunity or gets the benefit of the individual officers'

qualified immunity. The Magistrate Judge took a similar approach,

dismissing the Town's motion for summary judgment by relying on his

qualified immunity analysis.

Fletcher does not make a separate argument of lack of

jurisdiction over the Town's appeal. If, of course, the denial of

summary judgment was based on immunity grounds, there would be

appellate jurisdiction. But both the Magistrate and Town are wrong

to view this in immunity terms.

To the extent there is a question as to whether we have

appellate jurisdiction, we exercise very limited pendent

jurisdiction. Both the parties and the Magistrate Judge

demonstrate that the decision on the Town's motion for summary

judgment was "inextricably intertwined with that court's decision

to deny the individual defendants' qualified immunity motions."

Swint v. Chambers County Comm'n, 514 U.S. 35, 51 (1995); see also

Mattox v. City of Forest Park, 183 F.3d 515, 524 (6th Cir. 1999).

Because pendent jurisdiction is discouraged, see, e.g., Roque-

Rodriguez v. Lema Moya, 926 F.2d 103, 105 & n.2 (1st Cir. 1991)

(noting that restrictions on pendent jurisdiction are "self-

imposed" and mean that "interlocutory review of a qualified

immunity order does not in and of itself confer jurisdiction over

other contested issues in the case"), we assume jurisdiction over

this claim only to vacate the Magistrate Judge's denial of the

Town's motion for summary judgment and remand for full

consideration of the issues raised by the Town's motion.

The Magistrate Judge's resolution of the officers'

request for qualified immunity did not dispose of the Town's motion

for summary judgment. A municipality's position in a 1983 suit

differs from that of the individual defendants in two key ways.

First, the municipality enjoys no immunity from damages liability

under 1983. See Owen v. City of Independence, 445 U.S. 622, 657

(1980). This means that it is "not impossible for a municipality

to be held liable for the actions of lower-level officers who are

themselves entitled to qualified immunity." Joyce, 112 F.3d at 23.

Second, a municipality cannot be held liable under a respondeat

superior theory. See Monell v. Department of Social Servs., 436

U.S. 658, 691 (1978). This means that even if the individual

defendants are liable, the municipality may not be. Something more

than liability on the part of the individual defendants must be

shown to impose liability on the municipality. A plaintiff seeking

damages against the municipality must show that "the action that is

alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted

and promulgated by [the municipality's] officers" or is "pursuant

to governmental 'custom' even though such a custom has not received

formal approval through the body's official decisionmaking

channels." Id. at 690, 691. If the allegation against the

municipality involves a failure to train, the plaintiff must put

forth evidence of a failure to train that amounts to "deliberate

indifference to the rights of persons with whom the police come

into contact." City of Canton v. Harris, 489 U.S. 378, 388 (1989).

Finally, plaintiffs must show a direct causal link between the

municipal action and the deprivation of federal rights. See Board

of the County Comm'rs v. Brown, 520 U.S. 397, 404 (1997).

For these reasons, motions for summary judgment brought

by individual defendants and municipalities often involve distinct

legal issues. This is particularly true when, as in this case, the

resolution of the officers' claim for qualified immunity hinges on

a court's decision that the law was clearly established at the

time. While a finding that the law was not clearly established may

foreclose municipal liability for failure to train, see Joyce, 112

F.3d at 23, a finding that the law was clearly established does not

dispose of the municipality's motion for summary judgment. Rather,

the court must go on to consider whether allegations of a municipal

policy or practice have been made that are sufficient to survive

summary judgment.

The Magistrate Judge incorrectly conflated the issues

involved in the motion for summary judgment brought by the Town and

the individual defendants. We vacate the denial of summary

judgment as to the Town and remand for consideration of the

remaining issues.

V

Accordingly, we affirm in part and reverse in part the

Magistrate Judge's denial of the motion for summary judgment as to

the individual defendants, and instruct that Counts I and II

against the officers be dismissed. We vacate the denial of the

Town's motion for summary judgment and remand for proceedings

consistent with this decision.