Broderick v. Roache

USCA1 Opinion

June 23, 1993

United States Court of Appeals

United States Court of Appeals

For the First Circuit

For the First Circuit

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No. 92-2389

WILLIAM T. BRODERICK, ET AL.,

Plaintiffs, Appellees,

v.

FRANCIS ROACHE, ET AL.,

Defendants, Appellees.

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ARTHUR MORGAN, JR.,

Defendant, Appellant.

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ERRATA SHEET

Please make the following correction in the opinion in the above

listed case released on June 18, 1993:

ARTHUR MORGAN, JR.,

Defendant, Appellant.

United States Court of Appeals

United States Court of Appeals

For the First Circuit

For the First Circuit

____________________

No. 92-2389

WILLIAM T. BRODERICK, ET AL.,

Plaintiffs, Appellees,

v.

FRANCIS ROACHE, ET AL.,

Defendants, Appellees.

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ARTHUR MORGAN, JR.,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. David Mazzone, U.S. District Judge]

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Before

Torruella and Stahl, Circuit Judges,

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and Burns,* District Judge.

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Walter B. Prince with whom Peckham, Lobel, Casey, Prince & Tye

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was on brief for appellant.

James F. Lamond with whom Alan J. McDonald and McDonald, Noonan

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and Lamond were on brief for appellees William T. Broderick, et al.

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June 18, 1993

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*Of the District of Oregon, sitting by designation

STAHL, Circuit Judge. In this appeal, defendant-

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appellant Arthur Morgan, Jr. ("Morgan") challenges the

district court's ruling that he was not entitled to qualified

immunity. Finding no error in the district court's ruling,

we affirm.

I.

I.

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BACKGROUND

BACKGROUND

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On May 12, 1990, plaintiffs-appellees the Boston

Police Superior Officers Federation ("Federation") and

William Broderick ("Broderick"), an employee of the Boston

Police Department ("Department")1 and an official of the

Federation,2 initiated this action against Morgan, the

Department's Deputy Superintendent in charge of the Internal

Affairs Division ("IAD"); the City of Boston ("City");

Francis Roache, the Department's Commissioner; Paul Evans,

the Department's Superintendent-in-Chief in charge of the

Bureau of Field Services; Robert Conlon, a sergeant detective

within the Department's IAD; and Charles Burke, the

Department's Deputy Director of the Bureau of Administrative

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1. Broderick has been employed by the Department since 1969,

has been a police officer since 1977, and has been a sergeant

since 1986.

2. Broderick served as Federation vice-president from

January 1987, through December 31, 1988, and has served as

Federation president since January 1, 1989.

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Services.3 The complaint alleges that defendants have

engaged in a series of acts designed to harass Broderick and

retaliate against him for exercising his First Amendment

rights (1) to speak on matters of public concern; (2) to

participate in union activities; and (3) to file actions in

court. Plaintiffs proceed pursuant to 42 U.S.C. 1983 and

the Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws

Ann. ch. 12, 11H and I (West 1986).4

At issue in this appeal is Morgan's involvement in

four separate incidents wherein Broderick was disciplined,

ostensibly for violating Department rules and regulations.

Specifically, plaintiffs claim that Morgan, prompted by a

desire to harass and retaliate against Broderick, abused the

power of his position by developing and bringing charges

against Broderick for his role in the four incidents. The

particulars of these incidents, along with the implicated

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3. All defendants other than the City are sued in their

individual and official capacities.

4. This case, despite its pretrial status, has an extensive

procedural history. The district court has already issued

four previous memoranda and orders relative to various

pretrial motions brought by the parties. See Broderick v.

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Roache, 751 F. Supp. 290 (D. Mass. 1990) (inter alia,

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dismissing plaintiffs' civil RICO claim); Broderick v. City

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of Boston, 755 F. Supp. 482 (D. Mass. 1991) (inter alia,

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denying the City's motion to dismiss the Federation);

Broderick v. Roache, 767 F. Supp. 20 (D. Mass. 1991)

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(resolving in Broderick's favor the question of whether

certain statements he made were matters of public concern and

thus protected speech); Broderick v. Roache, 803 F. Supp. 480

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(D. Mass. 1992) (denying the City's motion for summary

judgment on plaintiffs' claim against it under the MCRA).

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factual disputes, are delineated in the district court's

thorough memorandum and order and need not be restated at

length. See Broderick v. Roache, Civil Action No. 90-11500-

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MA, slip op. at 3-9 (D. Mass. Oct. 22, 1992) (hereinafter

"Broderick V"). Instead, we summarize the incidents as

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follows:

1. In early 1989, Morgan received a complaint that

Broderick was abusing the "release time" available

to him as a Federation officer. "Release time" is

time during which elected officials of the

Federation are allowed to conduct Federation

business during on-duty hours. Broderick asserts

that Morgan departed from ordinary procedures in

subsequently developing and bringing charges

against him and recommending a disciplinary

hearing. Among the departures from ordinary

procedures alleged by Broderick is that, prior to

the hearing, Morgan never afforded Broderick an

opportunity to explain what happened and/or to

accept a lesser form of discipline in order to

avoid the hearing.

2. In April 1989, Broderick received notice that

he would be required to undergo a second

disciplinary hearing on charges that he had

violated Department rules and regulations during an

arrest of Kathleen Bean the previous February.

Broderick claims, inter alia, that Morgan departed

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from ordinary procedures in pressuring Bean into

filing the charges, disregarding the recommendation

of Broderick's commanding officer that the charges

be classified as "unfounded" (which Morgan had

never done before), and subsequently urging

Broderick's commanding officer to approve charges

with which he disagreed.

3. In December 1989, Morgan was present at an

interrogation of Broderick conducted by Super-

intendent Evans. The interrogation concerned

certain remarks, critical of the Department, that

were attributed to Broderick in an article

appearing in the Boston Globe. Broderick

essentially contends that Morgan exceeded his

authority in attending the interrogation and

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improperly allowing the interrogation to extend

beyond the scope of the Globe article.

4. In May 1990, Broderick received notice that he

would be required to undergo a third disciplinary

hearing on charges that he had violated Department

rules and regulations while arresting Ezekiel Oluh

the previous November. Broderick asserts, inter

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alia, that Morgan departed from ordinary procedures

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by ensuring that IAD, rather than Broderick's

district, conducted the initial investigation into

Oluh's complaint, and by becoming personally

involved in the investigation. During the course

of the IAD investigation, Oluh filed a second

complaint against Broderick, asserting that

Broderick had threatened him during the course of

the criminal trial which followed the initial

arrest. Broderick claims that Morgan departed from

ordinary procedures by again disregarding the

recommendation of Broderick's commanding officer

that the charges in this second complaint be

classified as "unfounded." He also contends that

Morgan used this second set of charges to retaliate

against him for seeking an injunction in a lawsuit

brought by the Federation against the Department

over civil service promotions.

On March 4, 1992, Morgan filed a motion for summary

judgment, arguing that the doctrine of qualified immunity

shielded him from liability. As we have noted, the district

court, by memorandum and order dated October 22, 1992,

rejected that argument. In so doing, the court found genuine

issues of material fact regarding Morgan's motive in the

actions he took against Broderick, and that the question of

qualified immunity could not, therefore, properly be resolved

by pretrial motion. See Caro v. Aponte-Roque, 878 F.2d 1 , 2-

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4 (1st Cir. 1989) (genuine issues of material fact on the

question of defendant's motive for taking adverse personnel

action against plaintiff made proceeding to trial on question

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of qualified immunity appropriate).5 It is from this ruling

that Morgan now appeals.

II.

II.

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DISCUSSION

DISCUSSION

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Before discussing the merits of Morgan's appeal, we

pause to note that which we need not resolve. In moving for

summary judgment before the district court, Morgan neither

challenged the court's ruling that Broderick's conduct is

constitutionally protected nor contended that the rights at

issue were not "clearly established," see Harlow v.

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Fitzgerald, 457 U.S. 800, 818 (1982), at the time the

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relevant incidents occurred. See, e.g., Rodriguez-Pinto v.

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Tirado-Delgado, 982 F.2d 34, 38 (1st Cir. 1993) (awarding

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defendant qualified immunity from damage claim because the

implicated constitutional right was not clearly established

at the time of the complained of acts). Moreover, Morgan

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expressly conceded to the district court that he could "be

presumed to know that it was unlawful to retaliate against

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5. The court also has found, and the parties apparently

agree, that this is a "mixed motive" case governed by Mount

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Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274

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(1977). Under the Mount Healthy framework, Broderick bears

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the initial burden of proving that his conduct was

constitutionally protected and that it was a "substantial" or

"motivating" factor for the complained of adverse actions

taken by defendants. See id. at 287 . If Broderick meets

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this burden, defendants must then prove "by a preponderance

of the evidence" that they would have acted in the same way

towards Broderick "even in the absence of the protected

conduct." Id.

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Broderick for Broderick's First Amendment protected

conduct[.]" To the extent, therefore, that Morgan now is

attempting to argue otherwise,6 he is precluded from so

doing. See, e.g., Dedham Water v. Cumberland Farms Dairy,

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Inc., 972 F.2d 453, 459 (1st Cir. 1992) ("It is hornbook law

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that theories not raised squarely in the district court

cannot be surfaced for the first time on appeal.") (quoting

McCoy v. Massachusetts Inst. of Technology, 950 F.2d 13 , 22

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(1st Cir. 1991), cert. denied, 112 S. Ct. 1939 (1992)); see

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also Buenrostro v. Collazo, 973 F.2d 39, 44 (1st Cir. 1992)

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(refusing to allow appellants to assert on appeal a different

basis for a qualified immunity defense than that argued to

the district court).

When Morgan's brief is stripped of this

procedurally defaulted chaff, only three arguments, the first

two of which are interrelated, remain: (1) that the question

of a defendant's intent/motive is immaterial to a properly

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6. Although it is not entirely clear, Morgan, citing, inter

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alia, Busby v. City of Orlando, 931 F.2d 764, 774-75 (11th

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Cir. 1991) (the special disciplinary concerns of quasi-

military organizations like police departments should be

taken into account when evaluating the reasonableness of

police officials' actions in enforcing regulations that delay

an employee's access to public forum), does seem to be

challenging the district court's determinations that

Broderick's conduct is protected by the First Amendment and

that the rights in question were clearly established at the

time the relevant incidents occurred. Similarly, Morgan

argues that the circumstances of this case "are sufficiently

different from other cases in this Circuit involving First

Amendment violations that Morgan could not have known his

actions may have been considered unlawful."

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conducted qualified immunity analysis; (2) that, as a matter

of law, Morgan's actions in developing and bringing the

charges against Broderick, absent any consideration of the

issue of his intent/motive in so doing, were objectively

reasonable, see Anderson v. Creighton, 483 U.S. 635 , 639

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(1987), in light of the information he possessed at the times

he acted; and (3) that there are no genuine issues of

material fact as to whether Morgan's intent/motive in

developing and bringing the charges against Broderick was

retaliatory. We discuss each in turn.

A. Intent and Qualified Immunity

A. Intent and Qualified Immunity

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Morgan's first argument, that the question of his

intent is immaterial to the qualified immunity analysis, is

premised upon a broad reading of certain language in Harlow.

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Concerned that too many insubstantial civil rights claims

were proceeding to trial and reacting particularly to the

"substantial costs attend[ant to] the litigation of the

subjective good faith of government officials[,]" see id.,

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457 U.S. at 815-17 , the Harlow Court overruled previous

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contrary authority7 and jettisoned the "subjective" element

of the qualified immunity defense, stating:

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7. Prior to Harlow, a court conducting a qualified immunity

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inquiry had to determine whether the defendant official

asserting a qualified immunity defense "knew or should have

known" both of the right at issue and whether his/her conduct

violated the constitutional norm. See, e.g., Procunier v.

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Navarette, 434 U.S. 555, 562 (1978).

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[W]e conclude today that bare allegations

of malice should not suffice to subject

government officials either to the costs

of trial or the burdens of broad-reaching

discovery. We therefore hold that

government officials performing

discretionary functions, generally are

shielded from liability for civil damages

insofar as their conduct does not violate

clearly established statutory or

constitutional rights of which a

reasonable person would have known.

Id. at 817-18. In subsequent cases, the Court has reaffirmed

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that the "reasonableness" of the defendant official's actions

should be determined according to an objective, rather than a

subjective, standard. See, e.g., Anderson, 483 U.S. at 645

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("Harlow . . . replac[ed] the inquiry into subjective malice

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so frequently required at common law with an objective

inquiry into the legal reasonableness of the official

action."); Malley v. Briggs, 475 U.S. 335, 341 (1986) ("Under

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the Harlow standard . . . an allegation of malice is not

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sufficient to defeat immunity if the defendant acted in an

objectively reasonable manner.").

Morgan argues that such language not only precludes

us from inquiring into whether he himself knew whether the

First Amendment rights at issue were clearly established at

the time in question, but also prohibits us from examining

the actual reasons for his actions. In other words, Morgan

would have us read Harlow in such a way as to immunize him

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from liability even if he did intend to retaliate against

Broderick for engaging in protected conduct.

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The short answer to Morgan's contention is that, in

a recent decision not cited by any of the parties, we

rejected this very argument. See Feliciano-Angulo v. Rivera-

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Cruz, 858 F.2d 40, 45-47 (1st Cir. 1988). To the extent that

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Morgan implicitly is inviting us to revisit our ruling in

Feliciano-Angulo, we decline. It is settled that, "[i]n a

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multi-panel circuit, newly constituted panels, generally

speaking, are bound by prior panel decisions on point."

Metcalf & Eddy, Inc. v. Puerto Rico Aqueduct and Sewer Auth.,

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No. 91-1602, slip op. at 6 n.3 (1st Cir. May 3, 1993). So it

is here.

Moreover, we continue to believe that our ruling in

Feliciano-Angulo is sounder than the interpretation of Harlow

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urged by Morgan. Although we see no reason to engage in

recapitulation here, we again note that the adoption of

Morgan's argument "`would insulate officials from liability

in all cases in which the substantive prescription makes the

official's state of mind an essential component of the

alleged constitutional violation.'" Feliciano-Angulo, 858

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F.2d at 46 (quoting Martin v. District of Columbia Metro.

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Police Dept., 812 F.2d 1425 , 1433 (D.C. Cir.), en banc order

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vacated and Section IV and dissenting opinion reinstated, 824

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F.2d 1240 (D.C. Cir. 1987)). For the reasons set forth in

Feliciano-Angulo, we think it clear that the Supreme Court

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intended no such result. See id. at 46-47. Accordingly, we

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reject Morgan's argument that the district court erred in

taking into consideration his intent while conducting its

qualified immunity analysis.

B. The Objective Reasonableness of Morgan's Actions

B. The Objective Reasonableness of Morgan's Actions

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Morgan's second argument, that he is entitled to

qualified immunity because his actions in developing and

bringing the charges against Broderick, absent any

consideration of his intent/motive in so doing, were

objectively reasonable, falls with our rejection of its

condition precedent. Simply put, the objective

reasonableness of Morgan's actions absent any consideration

of his intent is irrelevant.8 If Broderick can show that an

intent to retaliate against him for engaging in protected

conduct was a "substantial" or "motivating" factor in

Morgan's decision to act as he did, he has met his burden as

articulated in Mount Healthy. See supra note 5. Of course,

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Morgan may still prevail in the face of such a showing if he

can prove, by a preponderance of the evidence, that he would

have taken the actions he did even if Broderick had not

engaged in protected conduct. Id. Such argument is,

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8. We note that whether or not a disputed action violates

clearly established law often depends on the intent with

which it was performed. Auriemma v. Rice, 910 F.2d 1449 ,

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1453 (7th Cir. 1990) (citing Halperin v. Kissinger, 807 F.2d

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180, 184 (D.C. Cir. 1986) (Scalia, J.)), cert. denied, 111 S.

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Ct. 2796 (1991).

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however, for the factfinder and has no bearing upon our

qualified immunity analysis.

C. Genuine Issues of Material Fact

C. Genuine Issues of Material Fact

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Finally, Morgan contends that the district court

erred in finding that genuine issues of material fact on the

question of his intent/motive precluded the entry of judgment

in his favor. However, our review of the record, conducted

in the light most favorable to Broderick, see Cookish v.

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Powell, 945 F.2d 441, 443 (1st Cir. 1991) (in examining

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whether the district court's denial of a summary judgment

motion based upon qualified immunity is proper, we employ

normal summary judgment principles and examine the record in

the manner most hospitable to the party opposing the motion),

persuades us that the court did not so err. Again, we note

that the district court's memorandum and order thoroughly

sets forth the genuine and material factual disputes relevant

to the incidents at issue. See Broderick V, slip op. at 3-9,

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12-13. Therefore, we believe it sufficient to state in

summary fashion our agreement with the court that, at a

minimum, Broderick's supported allegations that Morgan (1)

failed to offer Broderick an opportunity to accept a lesser

form of discipline in the Time Release incident in order to

avoid a hearing thereon; (2) rejected the recommendations of

Broderick's commanding officer in the Bean and Oluh

incidents; and (3) became unusually involved in the

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investigation of the first Oluh complaint, are sufficient to

create a genuine and material factual issue as to whether

Morgan was motivated by a desire to retaliate against

Broderick for exercising his First Amendment rights. See

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Mount Healthy, 429 U.S. at 287 .9 Accordingly, we share the

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district court's conclusion that the question of Morgan's

qualified immunity cannot be resolved at the summary judgment

stage.10 Morgan remains free, of course, to press his

qualified immunity defense at a later point in the

proceedings.

III.

III.

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CONCLUSION

CONCLUSION

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Because the district court correctly ruled that

Morgan's entitlement to qualified immunity cannot be decided

prior to trial, we affirm its denial of Morgan's motion for

summary judgment.

Affirmed. Costs to appellees.

Affirmed. Costs to appellees.

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9. In so ruling, we are mindful that "[i]n cases where . . .

the state of mind of one of the parties is crucial to the

outcome of the case, resort to summary judgment is vested

with more than the usual difficulty." Stepanischen v.

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Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir.

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1983).

10. Morgan also argues that, because he is entitled to

qualified immunity from plaintiffs' First Amendment 1983

claim, he should be granted summary judgment on plaintiffs'

MCRA and civil conspiracy claims. Having rejected the

premise upon which these arguments rest, we are compelled to

reject their conclusions as well.

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