Clancy v. McCabe

Ireland, J.

(dissenting). I respectfully dissent from the court’s opinion, because, in my view, the plaintiff has introduced sufficient evidence to reach a jury on the question whether the defendant’s supervision of Rivera was so insufficient as to amount to deliberate indifference to the constitutional rights of female motorists. As the court correctly notes, ante at 318, to prove that a particular supervisor’s actions or inactions amounted to deliberate indifference, the plaintiff must show that (1) there existed a grave risk of harm, (2) the supervisor had actual or constructive knowledge of the circumstances that created that risk, and (3) the supervisor failed to take easily available measures to correct the problem. Figueroa-Torres v. Toledo-Davila, 232 F.3d 270, 279 (1st Cir. 2000). In addition, the plaintiff must show that the supervisor’s action or inaction *325 caused the plaintiff’s harm. 1 Id. Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998), cert. denied, 525 U.S. 1105 (1999).

On this record, the plaintiff has presented sufficient evidence that Rivera’s behavior created a grave risk of harm to female motorists. Furthermore, it is undisputed that in 1988 the defendant had actual notice of both a pattern of Rivera’s menacing conduct toward female motorists and the severe sanctions recommended by the internal affairs unit. Specifically, on February 22, 1988, the defendant was presented with a report by the internal affairs unit of its investigation of Rivera’s behavior. The report included detailed descriptions of complaints made by four female motorists against Rivera for inappropriate conduct, and mentioned that Rivera had been warned several times that his conduct could jeopardize his future employment with the State police. 2 Captain Wayne Harding of the internal affairs unit concluded that Rivera was “unfit to carry on the affairs of his office in a professional and creditable manner.” Harding characterized Rivera’s actions “in dealing with the female motoring public [as] totally inappropriate and unprofessional,” and opined that Rivera had “at the very least an unstable, emotional attitude in dealing with female motorists.” Harding concluded the report by recommending that Rivera be dealt with “in a manner that will show the victims of these incidents and the general public, that the Massachusetts State Police will not tolerate these types of activities.” Harding’s opinion, inherent in the report, was that Rivera should not be allowed to continue as a trooper.

*326 The jury also could have concluded that the defendant, possessed of this actual knowledge of Rivera’s improper conduct, failed to take easily available measures to correct the problem. Dobos v. Driscoll, 404 Mass. 634, 657-658 , cert. denied sub nom. Kehoe v. Dobos, 493 U.S. 850 (1989) (finding deliberate indifference where supervisors failed to impose proper safeguards on return to duty of trooper disciplined for prior abusive conduct toward motoring public). See Camilo-Robles v. Hoyos, supra at 12-14 (supervisor hable where he was on notice of subordinate’s behavior likely to result in violation of citizens’ constitutional rights, but failed to “take obvious steps within his power to reduce or eliminate that risk”). On receiving the report and discussing it with the deputy superintendent of the State police, who recommended that Rivera be terminated, the defendant initially decided to recommend that Rivera be discharged for “conduct unbecoming an officer.” However, after negotiations with Rivera’s counsel (as discussed infra), the defendant concluded that Rivera should be suspended without pay for six months and, on his return, be required to report to the State police counselling unit (also known as the “stress unit” or “stress team”). 3 The defendant testified that he believed that the stress unit would not be able properly to address Rivera’s needs. Nevertheless, he neither ordered that the stress unit refer Rivera to an outside professional, nor followed up with the stress unit on Rivera’s progress. After returning from suspension, Rivera reported to the stress unit. Rivera testified at his deposition that he could not remember whether he had met with members of the “stress team” more than three times; he claimed he did not even know why he had been referred there. Rivera was reassigned as a road trooper with no restrictions on his road duties, no further discipline, no evaluation of his treatment from the stress unit, and no measures instituted to monitor his behavior. 4

Contrary to the court’s assertion, ante at 314-316, the record, *327 through the defendant’s own deposition testimony, amply supports the motion judge’s conclusion that the defendant agreed not to recommend that Rivera be discharged because Rivera’s counsel threatened to bring a racial discrimination suit against the department of State police on the ground that it had never terminated a white officer for “conduct unbecoming an officer.” See Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999) (in reviewing summary judgment, appellate court will “resolve all evidentiary inferences in favor” of non-moving party). The threat of a lawsuit does not justify the defendant’s failure to take adequate steps to discipline Rivera and thereby prevent future violations of constitutional rights of female motorists. In addition, to the extent that the defendant’s motivation is an issue of material fact, it cannot be resolved on a motion for summary judgment. Mass. R. Civ. R 56, 365 Mass. 824 (1974). SeeAugat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

Furthermore, there is sufficient evidence to create a genuine issue of material fact regarding the existence of an affirmative causal link between the defendant’s conduct toward Rivera and Rivera’s subsequent violation of the plaintiff’s constitutional rights. See Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994) (“A causal link may ... be forged if there exists a known history of [a subordinate’s] widespread abuse sufficient to alert a supervisor to ongoing violations [and] the supervisor . . . fails to take [adequate] corrective action, [such as] by . . . closer oversight . . . ”). On this record, a jury could have concluded that, with “even the minimal amount of proper supervision and discipline,” Rivera would not have been in the position to illegally strip search the plaintiff in November of 1992. See Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 564 (1st Cir. 1989). A jury may have found that had *328 the defendant not been deliberately indifferent to his duties, he would have taken appropriate steps to remedy “the Rivera problem” well before November of 1992. See id.

Finally, it goes without saying that police work, like teaching and medicine, is a line of work that intersects with many, if not all, sectors of society. The police perform a variety of roles: they serve the community by protecting life and property, preventing crime, enforcing the law, and upholding order for all citizens. One of the most important police functions is to create and maintain a feeling of security in communities. To that end, it is extremely important for the police to gain and preserve the public trust, maintain public confidence in the integrity of police officers, and avoid an abuse of power by law enforcement officials. In the context of this case, motorists, while anticipating the possibility of being stopped by the police for a traffic violation, trust that they will not then be subjected to extreme abuse and humiliation. Although Rivera’s behavior alone betrayed that trust, the defendant’s failure to “show the victims of these incidents and the general public that the Massachusetts State Police will not tolerate these types of activities” undermined that trust even more. Cf. Brum v. Dartmouth, 428 Mass. 684, 709 (1999) (Ireland, J., concurring, with whom Abrams and Marshall, JJ., joined) (“Underlying ... the entire relationship between school and family is the parents’ basic assumption that school officials will do all they can to protect the children who they entrust to the school’s care”). In my opinion, police officials should, at the very least, “be expected to take reasonable measures to protect [the public] when they have advance notice of danger,” id. at 710 , especially when that danger comes from their own subordinates.

The third element of a supervisory liability claim, namely the requirement that the relevant law be clearly established so that the supervisor knew or should have known that his actions or inactions would lead to violation of constitutional rights of others, is not in dispute. See ante at 318.

While “the failure of a police department to discipline in a specific instance” has been held insufficient to support a claim of deliberate indifference, Santiago v. Fenton, 891 F.2d 373, 382 (1st Cir. 1989), supervisors have been found liable for failing to take remedial action against subordinates after multiple complaints, especially for use of inadequate disciplinary systems effectively permitting officers to continue to violate citizens’ rights. See Shaw v. Stroud, 13 F.3d 791, 800 (4th Cir.), cert. denied, 513 U.S. 813 , and 513 U.S. 814 (1994) (supervisor’s inaction in light of three complaints concerning subordinate’s use of excessive force raised genuine issue of material fact whether supervisor acted with deliberate indifference); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 563-564 (1st Cir. 1989).

Rivera was never required to acknowledge any wrongdoing.

Lou Reiter, a retired deputy chief for the Los Angeles police department and an expert consultant and instructor on police practices, stated in his affidavit that any discipline of Rivera short of discharge should have incorporated easily available police supervisory practices and techniques to curb similar misconduct by Rivera in the future. According to Reiter, some of such easily available and reasonable measures that the defendant could have *327 taken, but did not, included having supervisors (1) evaluate Rivera’s citations, warnings, and recorded stops to determine the percentage of females versus males stopped to identify imbalance and alert the supervisors to possible discriminatory stops; (2) conduct “call-backs” to females stopped by Rivera to evaluate Rivera’s performance, demeanor, and conduct during these stops; and (3) initiate an “integrity check” for Rivera by putting an undercover officer or a cooperating citizen in a position to be encountered in the field by Rivera, and evaluating his conduct.