June 23, 1993
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.
____________________
ARTHUR MORGAN, JR.,
Defendant, Appellant.
____________________
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.
____________________
ARTHUR MORGAN, JR.,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Torruella and Stahl, Circuit Judges,
______________
and Burns,* District Judge.
______________
____________________
Walter B. Prince with whom Peckham, Lobel, Casey, Prince & Tye
_________________ _____________________________________
was on brief for appellant.
James F. Lamond with whom Alan J. McDonald and McDonald, Noonan
________________ _________________ ________________
and Lamond were on brief for appellees William T. Broderick, et al.
__________
____________________
June 18, 1993
____________________
____________________
*Of the District of Oregon, sitting by designation
STAHL, Circuit Judge. In this appeal, defendant-
_____________
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.
__
BACKGROUND
BACKGROUND
__________
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
____________________
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.
-2-
2
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
____________________
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.
___ _________
Roache, 751 F. Supp. 290 (D. Mass. 1990) (inter alia,
______ _____ ____
dismissing plaintiffs' civil RICO claim); Broderick v. City
_________ ____
of Boston, 755 F. Supp. 482 (D. Mass. 1991) (inter alia,
__________ _____ ____
denying the City's motion to dismiss the Federation);
Broderick v. Roache, 767 F. Supp. 20 (D. Mass. 1991)
_________ ______
(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
_________ ______
(D. Mass. 1992) (denying the City's motion for summary
judgment on plaintiffs' claim against it under the MCRA).
-3-
3
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-
___ _________ ______
MA, slip op. at 3-9 (D. Mass. Oct. 22, 1992) (hereinafter
"Broderick V"). Instead, we summarize the incidents as
____________
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
_____ ____
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
-4-
4
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
_____
alia, that Morgan departed from ordinary procedures
____
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-
___ ____ ____________
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
-5-
5
of qualified immunity appropriate).5 It is from this ruling
that Morgan now appeals.
II.
II.
___
DISCUSSION
DISCUSSION
__________
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.
___ ______
Fitzgerald, 457 U.S. 800, 818 (1982), at the time the
__________
relevant incidents occurred. See, e.g., Rodriguez-Pinto v.
___ ____ _______________
Tirado-Delgado, 982 F.2d 34, 38 (1st Cir. 1993) (awarding
______________
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
__ ___ ____
expressly conceded to the district court that he could "be
presumed to know that it was unlawful to retaliate against
____________________
5. The court also has found, and the parties apparently
agree, that this is a "mixed motive" case governed by Mount
_____
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
_____________________________________ _____
(1977). Under the Mount Healthy framework, Broderick bears
_____________
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
___ ___
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.
___
-6-
6
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,
___ ____ ____________ ________________________
Inc., 972 F.2d 453, 459 (1st Cir. 1992) ("It is hornbook law
____
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
_____ __________________________________
(1st Cir. 1991), cert. denied, 112 S. Ct. 1939 (1992)); see
_____ ______ ___
also Buenrostro v. Collazo, 973 F.2d 39, 44 (1st Cir. 1992)
____ __________ _______
(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
____________________
6. Although it is not entirely clear, Morgan, citing, inter
_____
alia, Busby v. City of Orlando, 931 F.2d 764, 774-75 (11th
____ _____ ________________
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."
-7-
7
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
___ ________ _________
(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
_________________________________
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.
______
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.,
___ ___
457 U.S. at 815-17, the Harlow Court overruled previous
______
contrary authority7 and jettisoned the "subjective" element
of the qualified immunity defense, stating:
____________________
7. Prior to Harlow, a court conducting a qualified immunity
______
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.
___ ____ _________
Navarette, 434 U.S. 555, 562 (1978).
_________
-8-
8
[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
___
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
___ ____ ________
("Harlow . . . replac[ed] the inquiry into subjective malice
______
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
______ ______
the Harlow standard . . . an allegation of malice is not
______
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
______
from liability even if he did intend to retaliate against
Broderick for engaging in protected conduct.
-9-
9
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-
___ ________________ _______
Cruz, 858 F.2d 40, 45-47 (1st Cir. 1988). To the extent that
____
Morgan implicitly is inviting us to revisit our ruling in
Feliciano-Angulo, we decline. It is settled that, "[i]n a
________________
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.,
____________________ ____________________________________
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
________________ ______
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
________________
F.2d at 46 (quoting Martin v. District of Columbia Metro.
______ _____________________________
Police Dept., 812 F.2d 1425, 1433 (D.C. Cir.), en banc order
_____________ __ ____ _____
vacated and Section IV and dissenting opinion reinstated, 824
_______ ___ __________ ___ __________ _______ __________
F.2d 1240 (D.C. Cir. 1987)). For the reasons set forth in
Feliciano-Angulo, we think it clear that the Supreme Court
________________
intended no such result. See id. at 46-47. Accordingly, we
___ ___
-10-
10
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
____________________________________________________
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,
_____________ ___ _____
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,
___
____________________
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,
________ ____
1453 (7th Cir. 1990) (citing Halperin v. Kissinger, 807 F.2d
________ _________
180, 184 (D.C. Cir. 1986) (Scalia, J.)), cert. denied, 111 S.
_____ ______
Ct. 2796 (1991).
-11-
11
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
___________________________________
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.
___ _______
Powell, 945 F.2d 441, 443 (1st Cir. 1991) (in examining
______
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,
___ ___________
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
-12-
12
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
___
Mount Healthy, 429 U.S. at 287.9 Accordingly, we share the
_____________
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.
____
CONCLUSION
CONCLUSION
__________
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.
____________________
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.
____________
Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st Cir.
________________________________
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.
-13-
13