June 16, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2468
LEE J. TOPP,
Plaintiff, Appellee,
v.
THOMAS J. WOLKOWSKI
and THOMAS J. LOMBARDI,
Defendants, Appellants.
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ERRATA SHEET
Please make the following corrections in the opinion in the above
case released on June 3, 1993:
Page 4, line 2: delete all extra spaces.
Page 5, line 17: insert the word "charge" following the word
"conduct".
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2468
LEE J. TOPP,
Plaintiff, Appellee,
v.
THOMAS J. WOLKOWSKI
and THOMAS J. LOMBARDI,
Defendants, Appellants.
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APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Dickran M. Tevrizian,* U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin and Oakes,** Senior Circuit Judges.
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Claire L. Gregory, Assistant Attorney General, with whom Jeffrey
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R. Howard, Attorney General, and Robert E. Dunn, Jr., Assistant
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Commissioner, New Hampshire Department of Safety, were on brief for
appellants.
Lynn D. Morse for appellee.
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June 3, 1993
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* Of the District of Central California, sitting by designation.
**Of the Second Circuit, sitting by designation.
OAKES, Senior Circuit Judge. New Hampshire State
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Troopers Thomas J. Lombardi and Thomas J. Wolkowski appeal
from a judgment of the District Court for the District of
New Hampshire, Dickran Tevrizian, Judge1, denying their
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motion for summary judgment in this 42 U.S.C. 1983 (1988)
action brought by Lee J. Topp. Topp's complaint alleged
that Lombardi and Wolkowski violated Topp's civil rights and
committed a variety of common law torts against him when
they arrested him for making an illegal lane change on an
interstate highway. Neither Lombardi nor Wolkowski actually
saw Topp make the lane change. They were radioed to pull
over Topp's car by another state trooper, David Benoit, who
did see the lane change.
The district court concluded that Lombardi and
Wolkowski did not have qualified immunity to make an arrest
on the basis of another officer's probable cause
determination, since a New Hampshire statute bars troopers
from making arrests for traffic violations not committed in
their "presence." N.H. Rev. Stat. Ann. 594:10 I(a)
(1986). We conclude that the officers violated no clearly
established federal or state standards in arresting Topp,
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1Judge Tevrizian, a District Judge of the Central District
of California, was designated to sit in the District of New
Hampshire.
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particularly in light of state case law interpreting the
"presence" requirement as permitting any member of a team of
officers to make an arrest for an offense seen by another
member of the team. Consequently, we reverse the denial of
summary judgment.
BACKGROUND
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Topp filed this 42 U.S.C. 1983 action after
Lombardi and Wolkowski arrested him for making an illegal
lane change on Interstate 95, southbound near Portsmouth.
The officers were part of a detail; Officer Benoit,
stationed one-quarter mile north of Lombardi, Wolkowski and
two others, spotted traffic violators and signalled to the
other officers which cars to pull over. At oral argument,
the New Hampshire Assistant Attorney General candidly
described this setup as a "speed trap."
According to the state troopers, Benoit saw Topp
make a sudden lane change into the fastest of the four
lanes, forcing another car in the fourth lane into the high-
speed breakdown lane. Topp agrees that he made a sudden,
unsignalled lane change, but says that he did so only as an
emergency measure to avoid hitting a car that had braked
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suddenly in front of him. Topp also agrees that Benoit
radioed to Lombardi to stop Topp's car. Lombardi did so,
and Benoit, who had watched Topp's car as it travelled to
Lombardi's position, signalled to Lombardi that he had
stopped the right car.
Topp, however, refused to take the ticket without
talking to the officer who had seen his lane change.
Lombardi radioed Benoit for more details, and Benoit told
him that Topp had made a sudden, unsignalled lane change,
forcing another car into the high-speed breakdown lane and
"nearly caus[ing] an accident." Topp agrees that Benoit
conveyed this version of events to Lombardi, though he
contends that this was not what happened, and that Benoit
therefore could not have seen it happen. In any event,
Lombardi told Topp that he could challenge the ticket in
court, not on the highway, and that Officer Benoit would not
come to speak with him directly.
In the face of Topp's alleged continuing refusal
to take the ticket or to leave the scene,2 Lombardi told
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2The actions of both Topp and the officers after Topp's
initial refusal to take the ticket are the subject of a
factual dispute. We need not -- and, indeed, may not --
resolve this dispute. The significant fact for this
interlocutory appeal is that Topp made, and was seen making,
a sudden, unsignalled lane change. There is no dispute on
this point.
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Topp that if he did not take the ticket, he would be
arrested, and then that he was under arrest. Seeing the
commotion, Lombardi's superior officer, Sergeant Wolkowski,
came up to the car. Lombardi explained that Topp would not
take the ticket. After further arguments, Wolkowski also
told Topp that he was under arrest. Topp then allegedly
started his car and moved half a car length down the road.
Wolkowski leaned in to the open convertible, turned the car
off, opened the door, and, when Topp would not get out,
pulled Topp from his car. Wolkowski allegedly directed Topp
to the rear of his car, holding one of Topp's wrists high
behind his back, and then pushed Topp's head onto the trunk
of the car twice. Lombardi then handcuffed Topp. Topp was
charged not only with the illegal lane change, but also with
disorderly conduct and resisting arrest.
The charges were later dismissed: the disorderly
conduct on the theory that the underlying statute had been
found unconstitutional in a case involving protestors
against the Seabrook Nuclear Power Plant; the other charges
because the Portsmouth District Court found that the
complaints had not been properly sworn.
Topp then filed this action, naming officers
Lombardi and Wolkowski as defendants in both their
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individual and official capacities and charging due process
and unspecified equal protection violations. The complaint
also raised state common law claims of assault, false
arrest, false imprisonment, and malicious prosecution.3
Topp, who was represented by counsel, sought compensatory
and punitive damages of $800,000 for psychological harm and
resultant business losses. Topp alleged that officers
Lombardi and Wolkowski had had no probable cause to arrest
him, because they had not seen the lane change themselves
and because the lane change was justified. The officers
moved for summary judgment on all claims except the assault
conduct. The district court dismissed the claims against
the officers in their official capacity, as barred by the
Eleventh Amendment; dismissed the equal protection claim for
failure to state a claim; and dismissed the claims of
malicious prosecution on grounds of absolute prosecutorial
immunity. The court denied summary judgment on the other
claims on the theory that there was a dispute of fact as to
whether the officers had probable cause to arrest, and that
the officers did not have qualified immunity.
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3The complaint did not, however, raise a claim of invasion
of privacy from the officer's reaching into Topp's vehicle,
nor could it. Harbulak v. County of Suffolk, 654 F.2d 194
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(2d Cir. 1981).
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The officers then filed this interlocutory appeal
of the ruling on qualified immunity.
DISCUSSION
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As a preliminary matter, we note that, although
interlocutory, the appeal is proper. This court will hear
interlocutory appeals of denials of motions for summary
judgment on grounds of absolute or qualified immunity.
Floyd v. Farrell, 765 F.2d 1, 2-3 (1st Cir. 1985).
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The only question before us is whether the motion
for summary judgment on grounds of qualified immunity should
have been granted. In general, the doctrine of qualified
immunity provides that "government officials performing
discretionary functions . . . 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." Harlow v.
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Fitzgerald, 457 U.S. 800, 818 (1982). See also Anderson v.
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Creighton, 483 U.S. 635, 640 (1987) ("The contours of the
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right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that
right."); Malley v. Briggs, 475 U.S. 335, 341 (1986)
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(qualified immunity protects "all but the plainly
incompetent or those who knowingly violate the law"). In
cases applying this standard to police arrests in this
circuit, an arrest challenged as unsupported by probable
cause is deemed "'objectively reasonable'" unless "there
clearly was no probable cause at the time the arrest was
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made." Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985).
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The undisputed facts demonstrate that Lombardi and
Wolkowski could easily have believed that they had probable
cause to believe Topp had committed a traffic violation.
Topp agrees that the arresting officers acted on the basis
of Officer Benoit's statement that he had just seen Topp
force another car off the road in the course of making a
sudden, unsignalled lane change. Topp concedes that he made
the lane change without signalling. All agree that Benoit
described Topp's white Chrysler convertible to Lombardi and
confirmed that Lombardi had stopped the right car.
The crux of Topp's case is his contention that
Officers Lombardi and Wolkowski had no authority to arrest
him because they did not themselves see him make the
allegedly illegal lane change. Topp claims that, under New
Hampshire law, probable cause to believe he had made an
improper lane change is not enough. In New Hampshire, he
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says, an officer cannot make a warrantless arrest for a
violation, such as an improper lane change, unless the
officer "has probable cause to believe that the person to be
arrested has committed a . . . violation in his presence."
N.H. Rev. Stat. Ann. 594:10. Thus, Topp claims that the
troopers violated New Hampshire's "presence" requirement,
and that this violation raises a federal civil rights claim
as well.
However, New Hampshire case law interpreting this
provision quite strongly suggests that where one member of a
law enforcement team has seen the violation, any member of
the team can make the arrest. State v. Standish, 116 N.H.
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483, 363 A.2d 404 (1976) (driving under the influence;
vehicle was inoperable by time arresting officer arrived),
citing State v. Cook, 399 P.2d 835 (Kan. 1965) (arresting
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officer received information from airplane tracking highway
speeds). Topp attempts to distinguish Standish, since the
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arresting officer in that case arguably had independent
probable cause to believe that the offense had occurred
(Standish was drunk, in his car, and crashed against a tree,
enough to suggest to the arresting officer that he had
driven the car into the tree). However, the language of the
case is more sweeping than that. The Standish court
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justified its result not by arguing that the arresting
officer had independent probable cause to arrest, but by
relying on the concept of team arrests and on case law in
other states, including the Cook case. These cases
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interpret similar statutes setting forth "presence"
requirements for misdemeanor arrests as permitting arrests
to be made by any member of a team of officers so long as
one of the officers was "present."
Furthermore, the officers in this case were using
routine procedures. It cannot have been clear to them, in
light of established practice and the supportive case law,
that the procedure of using one officer to spot violators
and others to effect the actual arrests, with confirmation
that the correct vehicle was stopped, was inconsistent with
the statute. Thus, even assuming that 1983 requires
officers to comply with the requirements of a state statute
defining probable cause more narrowly than the federal
Constitution requires, the standard is met because the
officers were not clearly wrong in believing that they were
acting properly. In light of case law and established
practice, their interpretation of the "presence" requirement
of the New Hampshire misdemeanor arrest statute was
reasonable.
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CONCLUSION
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Accordingly, we reverse the judgment of the
district court, insofar as it denied the officers' motion
for summary judgment on grounds of qualified immunity.
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