Diaz v. City of Fitchburg, 176 F.3d 560, 1st Cir. (1999)
Diaz v. City of Fitchburg, 176 F.3d 560, 1st Cir. (1999)
Diaz v. City of Fitchburg, 176 F.3d 560, 1st Cir. (1999)
3d 560
Plaintiffs Julio Diaz, Ruben Diaz, Jeffrey Duenes, Guillermo Plaza, Amilcar
Rodriguez, and Andre Rosado brought civil rights and common law claims for
damages and equitable relief against the City of Fitchburg, Massachusetts, and
several officers of the Fitchburg Police Department. They alleged, inter alia,
that their custodial arrest for offending a city ordinance punishable only by a
fine was unconstitutional and/or contrary to Massachusetts public policy.
Plaintiffs appeal from the district court's sua sponte award of summary
Since 1993, the City of Fitchburg has had in effect an ordinance that prohibits
obstruction of public passages within the city ("Ordinance"). See Fitchburg,
Mass., Code art. III, 132-34 (1994).1 A violation of the Ordinance is
punishable only by a $300 fine. See id.
On the evening of October 14, 1993, the Fitchburg Police Department and its
Special Response Team ("SRT") executed a search warrant at a private
residence. The SRT is a special unit of the police department comprised of
officers trained to respond to high-risk situations. SRT officers dress in black
uniforms and hooded masks which do not bear any identifying insignia.
Perhaps because of the SRT's garb, plaintiffs refer to the team as a
"paramilitary" unit.
After observing the raid and as they were leaving the scene following the
search, Captain Mark Louney and Sergeant John O'Leary noticed plaintiffs
congregated outside a nearby residence. The two officers stopped and ordered
the group to move. Plaintiffs did not comply with this directive. Several
minutes later, apparently with the understanding that plaintiffs were violating
the Ordinance, Captain Louney summoned the SRT, which had returned to a
nearby police station, to arrest plaintiffs. Within minutes and without a warrant,
approximately ten members of the team arrived in an unmarked van and exited
with guns drawn. Plaintiffs claim that they then were forced to the ground,
frisked, handcuffed, and thrown face down in the van on top of one another.
Plaintiffs further allege that, en route to the police station, they were
threatened, punched, stepped and spit on, and subjected to racial insults.
Plaintiffs were charged with violating the Ordinance, processed, and jailed until
released on bail. Criminal complaints were filed against them. Complaints
against two plaintiffs were continued without a finding to August 19, 1994,
although these two plaintiffs were ordered to pay $50 in court costs.
Complaints against the remaining plaintiffs were dismissed after the City failed
to comply with a court order to disclose the names of the SRT members who
participated in the arrest.
Plaintiffs moved for summary judgment with respect to Count II. The district
court referred the motion to Magistrate Judge Swartwood for a report and
recommendation. On September 26, 1997, the magistrate judge recommended
that, inter alia, plaintiffs' motion for summary judgment on Count II be denied.
Acting sua sponte, he also recommended that summary judgment be entered for
defendants on Count II. On October 24, 1997, the district court adopted the
report and recommendation.2
10
In April 1998, a jury returned a verdict for defendants on all counts including,
inter alia, excessive force, false arrest, false imprisonment, and assault and
battery. Plaintiffs subsequently filed a motion for a new trial, which the district
court denied. On June 30, 1998, Magistrate Judge Swartwood entered final
judgment for defendants on all counts.
II.
11
12
Plaintiffs have framed their Fourth Amendment argument in very broad terms.
As we have indicated, plaintiffs ask us to declare that a custodial arrest made in
14
This litigation demonstrates why the Supreme Court has favored the case-bycase approach over bright-line rules. The Ordinance (the constitutionality of
which is not here challenged) is violated only after the offender has refused a
police officer's order to move along. See supra note 1. In other words, the
Ordinance only comes into play when a person unlawfully obstructing a
highway or other public passage persists in his or her violation. Thus, a
Fitchburg police officer confronting a person in violation of the Ordinance has
limited options: the officer may either allow the criminal obstruction to
continue (perhaps issuing the offender a citation, as plaintiff's counsel
suggested at oral argument) or end it by seizing the offender and removing him
or her from the scene of the offense. If the officer always were obligated to
allow the criminal obstruction to continue, he or she would be unable to satisfy
the Ordinance's apparent purpose of assuring public convenience and safety
except in exigent circumstances. Plaintiffs, however, have not even attempted
to establish the contours of their proposed "exigent circumstances" exception. If
the concept were understood to encompass only emergency situations, as it is
understood in other contexts,4 an officer seemingly could not clear the
obstructed passage merely to ensure public convenience. This strikes us as
sufficient reason to reject a per se rule.
15
17
In any event, we think it sufficient to observe that both federal courts and
Massachusetts courts train their focus on whether the government has acted in a
reasonable manner. See Mass. Const. part I, art. XIV ("[e]very subject has a
right to be secure from all unreasonable searches, and seizures, of his person,
his houses, his papers, and all his possessions"). And for the very same reasons
that lead us to reject a per se rule under the Fourth Amendment, see supra at
561-562, we believe that the Massachusetts Supreme Judicial Court would
reject a per se rule under Article Fourteen. In so ruling, we recognize that, in
marginal cases, there are differences between the manner in which the federal
courts and the Massachusetts courts have assessed constitutional
reasonableness. We simply do not believe that this is a marginal case.
18
III.
19
For the reasons set forth above, we affirm the district court's judgment in all
respects.
20
The district court may grant summary judgment of its own volition where "the
litigation is sufficiently advanced that both parties have had a reasonable
opportunity to present any material evidence in their favor." Bank v.
International Bus. Machines Corp., 145 F.3d 420, 431 (1st Cir.1998) (citation
omitted). The magistrate judge reasoned that a sua sponte grant of summary
judgment in favor of defendants was appropriate because:
(1) whether the Defendants' arrest of the Plaintiffs was a per se violation of the
Massachusetts and federal constitutions is a question of law which does not
depend on the development of further facts, and (2) Plaintiffs' [Count II] does
not allege a claim that it was a violation of their constitutional rights for them to
be arrested by the SRT team.
Diaz v. City of Fitchburg, No. 94-40157-NMG, slip op. at 14 n. 5 (D.Mass.
Sep. 26, 1997) (order and report and recommendation). Plaintiffs do not
challenge the lower court's decision to act sua sponte.
unpreserved, see Poliquin v. Garden Way, Inc., 989 F.2d 527, 531 (1st
Cir.1993) (stating that, "[t]o raise an issue on appeal, a litigant must generally
show the issue was raised in the trial court by a proper request"), and
inadequately argued on appeal, see United States v. Zannino, 895 F.2d 1, 17
(1st Cir.1990) (holding that "issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived")
4
Some courts have concluded that custodial arrests for specific offenses are or
could be unreasonable under the Fourth Amendment. See, e.g., Pierce v.
Multnomah County, 76 F.3d 1032, 1041 (9th Cir.1996) (holding that a jury
could find unconstitutional city's policy of allowing custodial arrest to verify
arrestee's identification for purposes of issuing a citation for a non-arrestable
offense); Thomas v. Florida, 614 So.2d 468, 471 (Fla.1993) (holding that a full
custodial arrest for violation of a municipal ordinance regulating noncriminal
conduct was unreasonable under the Fourth Amendment); Barnett v. United
States, 525 A.2d 197, 198-99 (D.C.1987) (holding unconstitutional a full
custodial arrest for the civil infraction of walking to create a hazard)
Although plaintiffs have not made the trial transcript or the jury instructions a
part of the appellate record, it appears that plaintiffs were able to argue to the
jury that a custodial arrest in the circumstances presented here was
unreasonable. The jury rejected this claim