Voudry v. Brackett CV-93-249-JD 01/10/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John M. Voudry, et al.

v. Civil No. 93-249-JD

James Brackett, et al.

O R D E R

The plaintiffs, John M. Voudry, Mark E. Hoffman, John L.

Matulevich, John G. Sears, William B. Getman, Henry Gubnitsky and

Gregg Wolf, have brought a civil rights action pursuant to

, 1988 and the First, Fourth and Fourteenth

Amendments against officers known and unknown employed by the

city of Nashua and the state of New Hampshire. The action names

as defendants James Brackett, Neil Casale, Robert Johnson, John

Doe ("local officers") and John McMasters and Richard Roe1

("state officers") individually and in their capacities as police

officers.2 The defendants now move for summary judgment

1John Doe and Richard Roe respectively represent unknown members of the local and state police forces.

20n November 29, 1994, the court dismissed the action against the state officers in their official capacity and provided the plaintiffs' with notice and an opportunity to respond to the court's concerns regarding the action against the local officers in their official capacity. On December 21, 1994, the court was notified by counsel for the plaintiffs that they did not intend to pursue action against the local officers in their official capacities. The court therefore dismisses the action against the local officers in their official capacities (documents nos. 29 and 30). For the following reasons both

motions are granted.

Background

Prior to October 1991, the FDIC acguired several New

Hampshire banks, including Nashua Trust Bank ("Nashua Trust"),

located in Nashua. To secure the takeover of these banks, the

FDIC hired the plaintiffs and several others to act as security

guards. The plaintiffs were associated with Burns International

Security Services of New York ("Burns").

New Hampshire law reguires persons to obtain a license from

the Commissioner of Safety prior to working as a security guard.

N.H. Rev. Stat. Ann. ("RSA") § 106-F:6 (1990 & Supp. 1992). At

the time of the takeovers, however, there was an exclusion from

the licensing reguirement for "any unarmed security guard

employed solely to secure the premises of his employer." RSA §

106-F:2 (1990) .3

On October 9, 1991, Stephen J. Judge, Senior Assistant

Attorney General, forwarded the following letter to an FDIC

attorney:

sua soonte.

3Ihe section was amended in 1992. RSA § 106-F:2 (Supp. 1992) .

2 Enclosed is a copy of RSA 106-F. As we have discussed, there is an exclusion in RSA 106-F:2 for unarmed guards securing the premises of their employer. You have indicated to me that FDIC will be the owner of the premises and the employer of the guards. It is imperative that the guards be unarmed. Please ensure that all necessary individuals at FDIC and particularly the security guards understand that they must be unarmed.

See Memorandum of Law in Support of Motion to Dismiss by

Defendants Brackett, Casale, Johnson, Doe and Roe ("Motion to

Dismiss"), Appendix B (Facsimile from Stephen Judge). On October

10, the security guards met in New Hampshire where they were

briefed by the FDIC and each given a copy of the Judge letter.

The plaintiffs were then sent to work at Nashua Trust.

That same day. Defendant McMasters, a sergeant with the New

Hampshire State Police, was notified by the operator of New

England Detective Agency, a security guard company, that

unlicensed security guards employed by Burns were coming to New

Hampshire to assist with the FDIC takeovers. McMasters

Interrogatories, No. 12. McMasters was authorized by his

superior to issue a teletype to state and local law enforcement.

See id., Teletype, State Officers' Motion for Summary Judgment,

Exhibit D. Later that day, the Nashua police received the

teletype which indicated that security officers employed to

secure area banks, including Nashua Trust, might not be properly

licensed. See Teletype, State Officers' Motion for Summary

3 Judgment, Exhibit D. The teletype requested those departments

with banks undergoing takeover in their jurisdiction to verify

the "license status" of the security guards. Id. The teletype

included a phone number for obtaining license verification. Id.

Defendants Johnson, Casale and the officer (s) known for

purposes of this litigation as defendant John Doe were dispatched

to the bank. They were met by an FDIC official and Gubnitsky,

the Burns representative, and shown copies of the Judge letter.

Voudry Affidavit, 55 10, 11. The officers left the bank but

eventually returned and arrested the plaintiffs for performing

security guard services without a license.

Following the arrests, the plaintiffs initiated litigation.

In response, the local officers and defendant Richard Roe brought

a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6), on

qualified immunity grounds. The court converted the motion to

dismiss into a motion for summary judgment, giving each party an

opportunity to submit additional information. After additional

evidence was submitted, the court denied the motion, concluding

that the local officers failed to show they were entitled to

qualified immunity because they offered no uncontested objective

facts that would lead a reasonable officer to believe the

plaintiffs had violated the law. The court then limited

discovery to the issue of qualified immunity to promote prompt

4 resolution of the issues. These motions followed.

Discussion

The local officers argue they are entitled to qualified

immunity for their actions on October 10, 1990, because they

could have reasonably believed they had probable cause to arrest

the plaintiffs. Local Officers' Motion for Summary Judgment at

1. The state officers similarly argue that the plaintiffs'

Fourth Amendment claims fail on the merits because probable cause

existed to effect the arrest. State Officers' Motion for Summary

Judgment at 1-2. In addition, the state officers argue that the

plaintiffs' First and Fourteenth Amendment claims should be

dismissed because they have set forth no facts to support these

claims. Id. The plaintiffs' counter that the defendants are not

immune because the local officers had neither an arrest warrant

nor probable cause to arrest and therefore knowingly violated the

plaintiffs' rights. See Affidavit of James D. Linnan, 55 23, 34-

35.

I. Fourth Amendment Claims

" [G]overnment officials performing discretionary functions

generally are shielded from liability for civil damages insofar

as their conduct does not violate any clearly established

5 statutory or constitutional rights of which a reasonable person

would have known." Harlow v. Fitzgerald,

(1982). To be "clearly established," the contours of the right

must be sufficiently clear so that a reasonable official would

understand his or her actions violate that right. Anderson v.

Creighton,

(1987). When deciding if a

defendant is entitled to gualified immunity, the court does not

consider whether a defendant actually violated a plaintiff's

constitutional rights but focuses solely on whether the

defendant's behavior was "objectively reasonable, as a matter of

federal law," at the time and under the circumstances of the

action at issue. See Quintero de Quintero v. Aponte-Rogue,

(1st Cir. 1992); see also Amsden v. Moran,

(1st Cir. 1990), cert. denied, ___ U.S. , 111 S. C t .

713 (1991).4 Mistakes in judgment are protected as long as they

are reasonable. Hunter, ___ U.S. , , 112 S.C t . 534, 537

4The objective legal reasonableness standard eliminates from the court's consideration allegations regarding a government official's subjective state of mind, such as bad faith or malicious intent. Flovd v. Farrell,

(1st Cir. 1985). As such, the court notes the plaintiffs' allegation of ulterior motives is not relevant to the court's decision of whether the gualified immunity defense is applicable. In addition, the objective legal reasonableness of the local officer's conduct is not measured against their actual knowledge of the constitutional standards and the probable constitutionality of the actions taken, but rather against a relatively uniform level of "presumptive knowledge" of constitutional standards. Flovd,

.

6 (per curiam) (1991); Anderson,

. Qualified

immunity protects "all but the plainly incompetent or those who

knowingly violate the law." Hunter, ___ U.S. at ,112 S. C t .

at 537 (quoting Mallev v. Briggs,

(1986)).

The court, not the jury, is responsible for deciding the

question of immunity, and must make the decision as long before

trial as feasible. Hunter, ___ U.S. at , 112 S.C t . at 537.

When a defendant uses qualified immunity as a basis for summary

judgment, however, the court must remain " [c]onsistent with the

method of Fed. R. Civ. P. 56(c) . . . ." Buenrostro v. Collazo,

(1st Cir. 1992). As a result, the court grants

summary judgment only if "the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment

as a matter of law." Fed. R. Civ. P. 56(c).

The defendants bear the burden of establishing the lack of a

genuine issue of material fact.5 Celotex Corp. v. Catrett,

(1986); Quintero de Quintero,

.

The court cannot resolve factual issues in the movants' favor.

5It is plaintiff's burden to demonstrate defendant's infringement of a "clearly established" federal right. Quintero de Quintero,

; Castro-Aponte v. Liqia-Rubero, 953 F .2d 1429, 1430 (1st Cir. 1990).

7 Buenrostro,

(citing Unwin v. Campbell,

(1st Cir. 1988)), but rather views the entire record in

the light most favorable to the plaintiffs, "'indulging all

reasonable inferences in [their] favor.1" Mesnick v. General

El e c . C o .,

(1st Cir. 1991) (guoting Griqqs-Ryan

v. Smith,

(1st Cir. 1990), cert, denied, ___

U.S. ___ ,

(1992).

A. Warrantless Arrest

The plaintiffs claim the local officers violated their

Fourth Amendment rights by conducting a warrantless arrest. A

warrantless arrest is not a per se violation of an established

right. 2 Wayne R. Lafave, Search and Seizure § 5.1(b) (2d Ed.

1987). The plaintiffs were arrested for violating RSA § 106-F:2,

a misdemeanor offense. RSA § 106-F:16 (1992). In New Hampshire,

officers may make warrantless misdemeanor arrests as long as

there is probable cause to believe the persons arrested committed

the violation in their presence. RSA § 594:10 1(a) (1986 & Supp.

1992). Because the plaintiffs were acting as security guards at

the time and place of the arrest, the alleged offense necessarily

occurred in the presence of the arresting officers. Therefore,

the warrantless arrest only violated the plaintiffs' statutory or

constitutional rights if the local officers had no basis to believe there was probable cause to arrest the plaintiffs. As a

result, the viability of the claim is dependent on the probable

cause analysis set forth below.

B. Probable Cause

The plaintiffs' primary claim is based on an alleged

violation of the Fourth Amendment right to be free from

unreasonable searches and seizures. It is well established that

the police must have more than mere suspicion in order to make an

arrest with or without a warrant. Wong Sun v. United States,

(1963). An arrest must be supported by probable

cause. Beck v. Ohio,

(1964).

The gualified immunity defense is not burdensome. Ricci v.

Urso,

(1st Cir. 1992). The defendants do not have

to show that there was probable cause for the arrests, but only

that "objectively reasonable grounds" existed such that "a

reasonably competent police officer could have believed probable

cause existed." I d . at 6-7. "[S]o long as probable cause is

arguable," the officers are protected. I d . at 7. The defendants

can meet their burden by showing that, at the time of the arrest,

the facts and circumstances within the local officers' personal

knowledge or obtained from a trustworthy source would lead a

reasonably prudent person to believe there had been a violation of the law. Hunter v. Bryant, ___ U.S. ___ , ___ , 112 S. C t . at

537 .

The court, drawing every reasonable inference in the

plaintiffs' favor, must determine whether it was objectively

reasonable for the local officers to believe they had probable

cause to arrest the plaintiffs for violating the licensing

statute. The local officers have submitted twenty-five exhibits

in support of their contention that it was at least arguable for

them to believe that the plaintiffs were acting as security

guards, had no licenses to act as such, and were not covered by

the exclusion. The plaintiffs do not contest that they were

acting as security guards at the bank and were without licenses

at the time the incident occurred. Brackett Affidavit, 5 4;

Opposition to Local Officers' Motion for Summary Judgment at 2.

Thus, the inguiry becomes whether there were objectively

reasonable grounds for the local officers to conclude the

plaintiffs were not employed to secure the premises of their

employer and therefore outside the scope of the exclusion to RSA

§ 10 6-F:6.

The court finds that the defendants could have reasonably

believed they had probable cause to arrest the plaintiffs. The

local officers received a teletype message from the New Hampshire

State Police stating that there may be an ongoing violation of

10 RSA § 106-F:6 committed by personnel employed at banks being

taken over by the FDIC. Brackett Affidavit, 55 2, 3, 4. The

teletype requested that the status of personnel be verified. Id.

The plaintiffs, all of whom refer to themselves as Burns

employees (Voudry Affidavit, 5 3, 7; Sears Affidavit, 5 4; Wolf

Affidavit, 5 3; Hoffman Affidavit, 5 4; Gubnitsky Affidavit, 5 4,

5), were wearing Burns uniforms consisting of a blue blazer, grey

trousers, a white shirt, black shoes and a Burns photo

identification card at the time the local officers arrived at the

bank to investigate. Wolf Affidavit at 17; Voudry

Interrogatories, No. 7; Wolf Interrogatories, No. 7; Hoffman

Interrogatories, No. 7; Matulevich Interrogatories, No. 7; Sears

Interrogatories, No. 7.

Moreover, despite the plaintiffs' contentions, the Judge

letter did not establish that the plaintiffs were covered by the

exclusion to RSA § 106-F:6. The letter made no reference to any

particular bank or any particular guard. Nothing in the Judge

letter stated or even intimated that the plaintiffs were FDIC

employees. In fact, the letter did no more than state the

relevant law, that is, if the FDIC was both owner of the premises

and employer of the guards, then, assuming all other criteria

were met, the guards would be covered by the exclusion. Given

these circumstances, it was reasonable for the local officers to

11 believe that the plaintiffs were employed by Burns, not the FDIC,

and guarding the premises in violation of local law.

The plaintiffs argue that the local officers should not be

granted gualified immunity "on the fine legal distinction of

whether or not the plaintiffs were actually employed by the

FDIC." Opposition to Local Officer's Motion for Summary Judgment

at 3. The plaintiffs assert that in "spirit" they were employees

of the FDIC in compliance with the statute. Id. However, the

plaintiffs' recognition that a fine-line distinction existed at

the time of arrest and that they were in compliance with the

spirit and purpose though not necessarily the letter of the

statute gives further credence to the defendants' contention that

probable cause was arguable. The local officers are entitled to

gualified immunity.

The plaintiffs' also assert a Fourth Amendment claim against

the state officers. The state officers had no direct involvement

in the arrests. Even assuming, however, that their actions in

issuing the teletype somehow led to the arrests, because the

arrests are supported by probable cause, the state officers are

also entitled to gualified immunity.

II. First and Fourteenth Amendment Claims.

The state defendants also argue that the plaintiffs "present

12 no fact which would make out a claim under any provision of the

First Amendment nor establish a procedural or substantive due

process violation under the Fourteenth Amendment." State

Officers' Memorandum in Support of Motion for Summary Judgment at

23-24. The court agrees. The plaintiffs have made no effort to

respond to the state officers' motion for summary judgment on the

First and Fourteenth Amendment claims and have failed to provide

support for these claims in their pleadings and throughout the

pendency of this action. Accordingly, the plaintiffs have, in

effect, treated these claims as waived. See, e.g., Alan Corp. v.

International Surplus Lines, Inc.,

, 343 n.4. (1st

Cir. 1994). Summary Judgment is granted for the defendants on

the First and Fourteenth Amendment claims.

Conclusion

The claims brought against the local officers in their

official capacities are dismissed sua soonte. All defendants are

entitled to gualified immunity from the plaintiffs' Fourth

Amendment claims. The First and Fourteenth Amendment claims are

without any factual support. Therefore, the motions for summary

judgment (documents nos. 29 and 30) are granted. The Clerk of

13 Court shall enter final judgment.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge January 10, 1995

cc: Andru H. Volinsky, Esquire James D. Linnan, Esquire Robert E. McDaniel, Esquire Claire L. Gregory, Esquire

14