Eldredge v. TOWN OF FALMOUTH, MA

United States Court of Appeals

For the First Circuit

No. 11-1151

JAMES R. ELDREDGE,

Plaintiff, Appellant,

v.

TOWN OF FALMOUTH, MA; ANTHONY RIELLO, individually and in his

official capacity as the Chief of the Falmouth Police Department;

THOMAS MAGUIRE, individually and in his official capacity

as an Officer of the Falmouth Police Department; MICHAEL

SIMONEAU, individually and in his official capacity as an officer

of the Falmouth Police Department, a/k/a "The Seminole",

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Howard and Thompson,

Circuit Judges.

George F. Gormley, with whom George F. Gormley, P.C. was on

brief, for appellant.

Daniel G. Skirp, with whom Pierce, Davis & Perritano, LLP was

on brief, for appellees.

November 22, 2011

HOWARD, Circuit Judge. This is an appeal from the

dismissal of a complaint alleging Section 1983 unreasonable seizure

claims against two Falmouth, Massachusetts police officers.

Plaintiff-appellant James R. Eldredge, who tragically was struck by

a police cruiser during the course of the officers' response to a

911 call, challenges the district court's determination that

qualified immunity shielded the officers from suit. Discerning no

error, we affirm.

I. BACKGROUND

Because this appeal involves a dismissal for failure to

state a claim, Fed. R. Civ. P. 12(b)(6), we recount the relevant

facts based upon the well-pleaded allegations in the amended

complaint. S.E.C. v. Tambone, 597 F.3d 436, 438 (1st Cir. 2010)

(en banc).

On a Wednesday evening in the summer of 2009, James

Eldredge left his Falmouth home at approximately 10:30 p.m.,

accompanied by a friend, Jonathan Dubois, to walk to a nearby

convenience store. Shortly thereafter, at around 10:50 p.m., the

Falmouth Police received an unrelated 911 call reporting a domestic

disturbance at a local residence. The call included, in part, the

following exchange:

Operator: Falmouth Police recorded line, may

I help you?

Caller: . . . [Suspect] is now leaving in a

little blue Toyota Tercel. Um, we've had an

argument. He's been drinking. I asked him to

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leave. The relationship's over. He just

shoved everything off the top of my

refrigerator, smashed it all to the floor.

The kids are here. We've had DSS involved

before and I just, I want him gone. He's got

all his stuff out. I just want him to leave

me alone. I'm very afraid right now.

Operator: Okay. What's your address?

Caller: xxx Sandwich Road number one.

After verifying her full name and that of the suspect, the caller

stated that her ex-boyfriend was "outside trashing my porch right

now." Armed with this information, three patrolmen – defendant

Michael Simoneau and defendant Thomas Maguire, as well as Officer

Clifford Harris – set out to respond in three separate police

cruisers.1

As the police responders drove towards the site of the

disturbance these two heretofore unrelated events converged. In

1

The Falmouth Police Department originally dispatched two

patrol cars, manned by Officers Simoneau and Harris, to answer the

call. It became clear that Officer Maguire would be joining

Simoneau and Harris when at or around 10:57 p.m. he radioed the

station stating, "[w]e're going out shortly," and requesting the

name for the domestic disturbance. The dispatcher responded to

Maguire's request by summarizing the disturbance as follows:

"[Caller] the calling party; said [Suspect] who things are now over

between them. Um, [Caller] in fear [Suspect] has trashed the

inside of [Caller's] house, tossed things off [Caller's]

refrigerator. And [Suspect] now outside on the porch doing same."

As the plaintiff himself acknowledges, we cannot be certain

based on this radio transcript whether Maguire was informed of the

full details of the 911 call, including, in particular, the

caller's mention of the alleged assailant's automobile. We need

not speculate one way or another. Rather, we assume for present

purposes that Maguire was so informed, because even with this

assumption made in the plaintiff's favor, his claims are subject to

dismissal for the reasons set forth infra.

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the lead, Officer Maguire drove north along Sandwich Road at

varying speeds over the posted limit, with his cruiser lights

flashing and siren activated. His course would soon bring the

officers abreast of Eldredge and Dubois, who were walking against

traffic on the grass shoulder of the same road.

As Officer Maguire approached Eldredge and Dubois about

half a mile from his destination, he suddenly decelerated. The

cruiser "nose-dived" to a virtual stop alongside the pedestrians.

Maguire simultaneously activated a spotlight aimed at the men,

causing them to stop and squint at the blinding light. Through the

open passenger side window, Maguire shouted: "Stand right there!"

Both men complied.

Unfortunately, the story does not end there. Officer

Simoneau had been following in his cruiser closely behind Maguire

and rapidly closed the distance between the two vehicles when

Maguire suddenly braked. Mere moments after Maguire shouted to

Eldredge and Dubois, Simoneau's cruiser "rear ended" Maguire's,

caromed off it, and hit Eldredge. Upon impact, Eldredge was

wrapped onto the vehicle's hood and propelled several feet through

the air, suffering serious injuries. According to the complaint,

this collision occurred sometime between 10:57 and 10:59 p.m.

In the aftermath of this event, Eldredge sought recovery

against Officers Maguire and Simoneau, the Town of Falmouth, and

the chief of the Falmouth Police Department. Invoking 42 U.S.C.

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§ 1983, Eldredge claimed that Maguire's show of authority

constituted an unreasonable seizure of him because it amounted to

a detention without adequate justification; that Simoneau also

unreasonably seized him when, similarly lacking adequate

justification, he struck Eldredge with his police cruiser; and that

the Town and its police chief failed to adequately train their

personnel on how to safely respond to incidents reported to the

police. In addition to the federal claims, Eldredge alleged

parallel state civil rights violations, see Mass. Const. art. XIV;

Mass. Gen. Laws ch.12, § 11(I), as well as a state law tort claim

based on the officers' alleged negligence and recklessness during

the event in question, Mass. Gen. Laws ch. 258, § 2.

The defendants moved to dismiss Eldredge's claims

pursuant to Fed. R. Civ. P. 12(b)(6). The district court granted

the motion with respect to the federal claims, concluding that the

individual officers were entitled to qualified immunity and that

the failure to train claims were therefore foreclosed, as well.

With only state law claims remaining, the district court declined

to exercise supplemental jurisdiction and remanded the matter to

state court. This timely appeal ensued.

II. ANALYSIS

On appeal, the plaintiff pursues only his Section 1983

claims against the individual officers. Accordingly, our review is

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limited to an assessment of whether the district court erred in

dismissing those claims on qualified immunity grounds.

A. Standard of Review

We review de novo an order of dismissal for failure to

state a claim. Tambone, 597 F.3d at 441. In conducting this

review, "we accept as true all well-pleaded facts set forth in the

complaint and draw all reasonable inferences therefrom in the

pleader's favor." Artuso v. Vertex Pharmaceuticals, Inc., 637 F.3d

1, 5 (1st Cir. 2011) (citing Tambone, 597 F.3d at 441).

"To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to 'state a claim to

relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.

Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). A claim is facially plausible if supported by

"factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged."

Id. While "[t]he plausibility standard is not akin to a

'probability requirement,'" it demands "more than a sheer

possibility that a defendant has acted unlawfully." Id. Unless

the alleged facts push a claim "across the line from conceivable to

plausible," the complaint is subject to dismissal. Id. at 1951

(quoting Twombly, 550 U.S. at 570).

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B. Qualified Immunity

The doctrine of qualified immunity is designed to

"balance[] two important interests – the need to hold public

officials accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably." Pearson v.

Callahan, 555 U.S. 223, 231 (2009). We apply a two-prong analysis

in determining whether this balance weighs in favor of granting a

defendant qualified immunity. Maldonado v. Fontanes, 568 F.3d 263,

269 (1st Cir. 2009). We ask "(1) whether the facts alleged . . .

by the plaintiff make out a violation of a constitutional right;

and (2) if so, whether the right at issue was 'clearly established'

at the time of the defendant's alleged violation." Id. (citing

Pearson, 555 U.S. at 232). A right is "clearly established" if,

given the legal contours of the right allegedly violated and the

facts of the particular case, a reasonable officer would have

understood that his conduct violated that right. Id. "The

relevant, dispositive inquiry . . . is whether it would be clear to

a reasonable officer that his conduct was unlawful in the situation

he confronted." Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199

(2004)).

Applying that framework to this case, the claim against

Officer Simoneau is readily dispensed with under the first prong of

the analysis. The plaintiff contends that Simoneau seized him by

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striking him with his police cruiser and did so without adequate

justification, thereby effecting an unreasonable seizure in

violation of the Fourth Amendment. This argument fails at the

outset.

To constitute a seizure implicating the Fourth Amendment,

there must be an "intentional acquisition of physical control."

Brower v. County of Inyo, 489 U.S. 593, 596 (1989)(emphasis added);

see also Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 794-95 (1st

Cir. 1990). The plaintiff acknowledges as much and concedes that

there are no facts from which to infer that Simoneau intended to

seize him, but he argues that we should impute Maguire's intent to

conduct an investigatory stop to Simoneau. Even were we to indulge

this exhortation, however, it would not be enough. The Supreme

Court has made clear that a Fourth Amendment seizure does not take

place "whenever there is a governmentally caused termination of an

individual's freedom of movement . . . , nor even whenever there is

a governmentally caused and governmentally desired termination of

an individual's freedom of movement . . . , but only when there is

a governmental termination of movement through means intentionally

applied." Brower, 489 U.S. at 596-97 (emphasis in original); see

also, e.g., Horta v. Sullivan, 4 F.3d 2, 10 (1st Cir. 1993)

(holding that no seizure occurred where police officer did not

intend pursuit to end by means of collision with another police

vehicle). There are no facts alleged in the complaint to support

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the inference that Simoneau intended to stop the plaintiff by

striking him with his cruiser. Quite the contrary, the allegations

that Simoneau had been following Maguire at high speeds and

"rear-ended" Maguire's cruiser before "carom[ing]" into the

plaintiff lead to the undeniable conclusion that the collision was

unintentional. As such, the complaint fails to allege a colorable

claim of constitutional dimension against Simoneau.

The plaintiff attempts to blunt the force of this

conclusion by invoking the joint tortfeasor doctrine. With this

invocation, he appears to advance the argument that Simoneau acted

as part of a "team effort" with Maguire to respond to the 911 call

and should therefore be held jointly responsible for what he claims

were the foreseeable consequences of their miscalculated efforts.

Eldredge seeks support for this novel application of the joint

tortfeasor doctrine from our decision in Gutierrez-Rodriguez v.

Cartagena, 882 F.2d 553 (1st Cir. 1989). That case does not,

however, stand for the proposition that an officer's participation

in a group operation, without more, is sufficient grounds for

imputing liability for constitutional injuries arising out of that

effort. In reaching the conclusion in Gutierrez-Rodriguez that two

members of a police squad could be deemed the proximate cause of an

automobile driver's injuries notwithstanding that the bullet that

ultimately struck the driver came from a weapon fired by another

squad member, we emphasized that each member of the squad had

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alighted from an unmarked police car and approached the driver's

parked automobile in plainclothes with weapons drawn and ready to

fire. 882 F.2d at 560-61. Each of the officers participating in

this "team effort" had, in other words, intentionally engaged in a

series of acts that would foreseeably result in some member of the

team inflicting constitutional injury. The same simply cannot be

said of Officer Simoneau's actions here.2

Turning to the claim against Maguire, we first note that

it is not mandatory to address the qualified immunity prongs

sequentially. Pearson, 555 U.S. at 236. Because a finding that a

right was not "clearly established" under the second prong of the

analysis is sufficient to warrant a grant of qualified immunity,

see id. at 236-37, discussion of the first prong will in some cases

result "in a substantial expenditure of scarce judicial resources

on difficult questions that have no effect on the outcome of the

case," id. We therefore proceed directly to the "clearly

2

To the extent that Simoneau's "shadowing of Maguire's

cruiser created a situation in which it was foreseeable that

Simoneau would be unable to safely stop in the event that Maguire

might have reason to make a sudden stop," the plaintiff colorably

has alleged a tort, for which the appropriate relief is a state law

tort suit rather than federal civil rights litigation. Pursuant to

the district court's order, that claim now resides in state court.

We note that the defendants have moved to strike transcripts

of two police radio calls that were not part of the record before

the district court but which the plaintiff attached as exhibits to

his reply brief in an attempt to bolster his "team effort" theory.

Assuming without deciding that we could consider the transcripts,

they do not change our analysis. Accordingly, the defendants'

motion to strike has become moot.

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established" prong of the analysis in assessing the claim against

Maguire.

The defendant acknowledges, as he must, that the Fourth

Amendment right to be free from investigatory stops in the absence

of reasonable suspicion was clearly established long before this

tragic event occurred. See, e.g., United States v. Sokolow, 490

U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 30 (1968). But the

relevant inquiry for qualified immunity purposes is not whether

reasonable suspicion to conduct the stop in fact existed, but

whether a reasonable officer could have believed that it did. Put

another way, qualified immunity exists "so long as the presence of

[reasonable suspicion] is at least arguable." McInnis v. Maine,

638 F.3d 18, 22 (1st Cir. 2011) (quoting Prokey v. Watkins, 942

F.2d 67, 72 (1st Cir. 1991)). Accordingly, Maguire urges that,

even assuming that he effected an investigatory stop of the

plaintiff without reasonable suspicion, he is nonetheless entitled

to qualified immunity because the unlawfulness of the detention

would not have been apparent to a reasonable officer standing in

his shoes. We agree.

An investigatory stop, commonly known as a Terry stop,

"requires only articulable facts giving rise to a reasonable

suspicion that a suspect may be involved in criminal activity."

Morelli v. Webster, 552 F.3d 12, 20 (1st Cir. 2009) (citations

omitted). Here, Officer Maguire was responding to a 911 call in

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which a fearful caller relayed an urgent situation that was still

unfolding – namely, that her ex-boyfriend, who had been drinking,

had already "trashed" the inside of her home where children were

present and at the time of the call was continuing his destructive

behavior outside. As Maguire drove towards the site of the

disturbance, he spotted the plaintiff, a male, walking on Sandwich

Road after dark on a weeknight, just minutes after a fresh 911 call

originating only half a mile away. These facts could reasonably

support the suspicion that the plaintiff was the caller's

ex-boyfriend leaving the site of the disturbance. Officer Maguire

was therefore entitled to qualified immunity.

The plaintiff resists this conclusion on two grounds. We

find neither persuasive.

First, Eldredge emphasizes that he did not match the 911

caller's description of her alleged assailant, an individual male

who would presumably be leaving her residence in a blue Toyota

Tercel. Rather, he was found accompanied by a friend and traveling

by foot at a distance that, Eldredge argues, one could not have

reasonably walked in the seven to nine minutes that had passed

since the time of the call. To be sure, these factors may have

reduced the likelihood that the plaintiff was the alleged

assailant. But reasonable suspicion requires "sufficient

probability, not certainty." New Jersey v. T.L.O., 469 U.S. 325,

346 (1985) (quoting Hill v. California, 401 U.S. 797, 804 (1971)).

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Particularly when viewed through the lens of an officer making a

split-second judgment, see Graham v. Connor, 490 U.S. 386 (1989)

("The calculus of reasonableness must embody allowance for the fact

that police officers are often forced to make split second

judgments . . . ."), we cannot say that Maguire's assessment was so

obviously misguided that no reasonable officer could have reached

the same conclusion.

Second, Eldredge urges us to evaluate Officer Maguire's

actions in the context of his "responsibility to the 911 caller."

He argues that the responding officers' paramount responsibility

was to locate and protect the caller, not to conduct an

investigatory stop of someone whom the caller could readily

identify for questioning at a later time. In effect, he asks us to

consider whether Maguire's course of action was the most sound one

under the circumstances. We decline this invitation to impose a

requirement that the Fourth Amendment does not. Cf. United States

v. LaFrance, 879 F.2d 1, 10 (1st Cir. 1989) (citing United States

v. West, 731 F.2d 90, 93 (1st Cir. 1984)) ("Simply proving that

more efficacious approaches were available does not prove that the

method actually used was unreasonable.").

III. CONCLUSION

The judgment of the district court is affirmed.

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