Steven Whiting v. George I. Kirk, Jr., Robert S. Choquette, Steven Whiting v. George I. Kirk, Jr.

*255 BOWNES, Senior Circuit Judge,

dissenting.

My brethren use the cloak of qualified immunity to protect two state officials who blindly and without questioning their authority to do so jailed the plaintiff, who had neither committed a crime nor was suspected of one. The rationale for this deprivation of plaintiffs freedom was that it was objectively reasonable for the defendants to follow the command of a writ — a piece of paper — that was incorrectly made out. I do not think that blind obedience to a writ is objectively reasonable especially where the actors are law enforcement officials who must be presumed . to have some knowledge of the Constitution.

My objection to the majority’s conclusion does not turn on whether the writ was or was not facially valid. For the reasons that follow I am of the opinion that the actions of the constable and police lieutenant were not objectively reasonable.

It must be recognized, at the outset, that “body” attachments for the payment of a civil debt are rare today; they are vestiges of days long gone by. Parts of the majority opinion read as if the use of body attachments was standard practice in Rhode Island. Although the writ may have been facially valid, as the majority finds, it is clear that it commanded that the plaintiff and his wife be jailed because they owed their landlord money for rent not paid. But neither the drastic action called for in the writ, nor the uniqueness of the process resulted in any meaningful inquiry by either of the defendants.

Constable Kirk, who had some experience with writs and executions, testified that the form of the writ was not the usual form used for a body attachment. Despite this, he requested assistance of the town police in arresting plaintiff. Officer Pet-rarca, who arrived to assist Kirk, was the only one worried enough about what was going on to ask for advice. He called his superior, defendant Lieutenant Choquette. Choquette examined the writ and then, without more, he, Kirk and Petrarca, forcibly arrested the plaintiff and incarcerated hjm for two days.

An objectively reasonable constable who knew, as defendant Kirk did, that the form of the writ was not the type used for body attachments would have inquired from the lawyer who obtained the writ and/or the official who issued it whether it was intended that the plaintiff and his wife be arrested. Kirk, at least had the good sense not to arrest plaintiffs wife because that would have left their children alone in the house. He also should have had the good sense to inquire whether the attorney who obtained the writ wanted the plaintiff jailed for the weekend.

Defendant police Lieutenant Choquette made no inquiry on his own at all. It can be fairly assumed that he knew, at least, the basic requirements for making an arrest on criminal process. I think that an objectively reasonable police officer would have questioned a lawyer or judge about arresting the plaintiff on civil process. There is nothing in the record showing that Kirk discussed the form of the writ with Justice Calderone. His inquiry of the Justice was directed to where the plaintiff should be incarcerated, not whether he should be incarcerated. Based on the record, it can only be concluded that neither defendant made any reasonable inquiry as to whether it would be lawful for them to put the plaintiff in jail.

Finally I note that if this arrest had taken place on a weekday, the plaintiff would not have been incarcerated at all. He would have been taken before a justice of the Rhode Island Superior Court and released, as he was on the Monday morning following his weekend in jail. I think that reasonably objective law enforcement officers would have waited until Monday before making the arrest.

I respectfully dissent for the reasons stated and on the basis of the excellent opinion by the district court.