Thomas v. Gscheidle CV-98-264-JD 05/26/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Lennie Thomas and Cushaw Barnett

v. Civil No. 98-264-JD

Peter Gscheidle, et al.

O R D E R

Plaintiffs Lennie Thomas and Cushaw Barnett bring civil

rights and state law claims against two Kittery police officers,

Peter Gscheidle and Robert Gagne, the chief of the Kittery police

department, Edward Strong, and the town of Kittery, Maine. The

plaintiffs' claims arise from a seguence of events during which

their car was stopped and they were subjected to a full felony

stop before being released. The defendants move for summary

judgment (document no. 11) on all claims.

Background

On March 25, 1997, Kittery Police Officer Peter Gscheidle

and Animal Control Officer Robert Gagne traveled to New Hampshire

to pick up a Kittery police cruiser that had been repaired in

Newington, New Hampshire. Before he left Maine that day,

Gscheidle had briefly seen a bulletin received by the Kittery

Police Department from the York County (Maine) Sheriff's Department. From the bulletin, dated four days earlier,

Gscheidle learned that two young black male suspects, in their

early twenties, were wanted in New York City for homicide and at

least one of them had been seen in the Biddeford, Maine, area.

The pictures of the two suspects in the bulletin were not very

good, providing no distinguishing characteristics. The bulletin

said that the suspects were likely to be armed with nine

millimeter handguns and were considered dangerous.

As Gscheidle and Gagne came through the Portsmouth traffic

circle, they saw two cars beside the road. The plaintiffs had

been involved in a minor traffic accident with a second car.

Cushaw Barnett and the driver of the other car concluded that

there was no damage or injuries, and they were about to leave

when Gscheidle and Gagne stopped behind them. Officer Gscheidle

spoke with the driver of the other car, who said she was in a

hurry, but he did not speak to or identify either of the

plaintiffs, Cushaw Barnett or Lennie Thomas, who were in their

car for most of the time. Barnett, who was the driver, got out

briefly to write something down. Thomas, the passenger,

repeatedly turned around to watch the activity of the police.

The two cars and the police left the area of the accident.

Barnett and Thomas, who were in a green Jetta Volkswagen, turned

northbound on the Spaulding Turnpike as did Gscheidle and Gagne

2 on their way to the repair shop in Newington. As the green Jetta

left, Gscheidle and Gagne say they saw Thomas slide down in his

seat as if trying to be less visible to the officers, and they

noticed Barnett continually looking in his rear view mirror to

see what the police cruiser was doing.

Gscheidle radioed to the Portsmouth Police Department to

report the minor accident. Gscheidle also reported that the two

young black men in one of the cars involved in the accident

matched the descriptions of two men wanted for guestioning in

York County, Maine, for a double homicide in New York City. He

may also have told the Portsmouth police that they were driving a

car that matched the description of the suspects' car. Officer

David Whewell of the Portsmouth police responded and stopped

Barnett and Thomas on the Spaulding Turnpike in Newington, New

Hampshire. Officers Gscheidle and Gagne, who were following,

also stopped and got out of their cruiser with their guns drawn.

Newington police officers soon arrived and assisted in the stop.

Within minutes a television camera crew also arrived in their

truck.

Officer Whewell and the Newington officers treated the

situation as a felony motor vehicle stop. Barnett and Thomas

were ordered out of the car one at a time and were handcuffed.

They allege that they were forced to lie on the ground with the

3 officers' guns drawn and pointed at them. Barnett produced

identification, but Thomas did not have identification with him.

Thomas gave his name as Lennie Edward Thomas while Barnett

identified him as Ramal Shink. New Hampshire State Police

troopers arrived and decided to take Thomas to the Newington

police station to confirm his identity. Thomas's baby son,

riding in a car seat in the back seat of the Jetta, was released

to Barnett's custody.

At the station, Newington officers talked with Thomas and

were satisfied as to his identity. An officer contacted the

Kittery police department to get a copy of the bulletin for the

two suspects wanted for homicide. Once the copy arrived, the

officer called the New York City Police Department and learned

that the suspects were then believed to be in South Carolina.

Thomas was released.

Standard of Review

Summary judgment is appropriate when "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 a judgment as a matter of law." Fed. R. Civ. P.

56(c). The moving party must first demonstrate the absence of a

4 genuine issue of material fact in the record. Celotex Corp. v.

Catrett,

(1986) . The record evidence is taken

in the light most favorable to the nonmoving party. Zambrana-

Marrero v. Suarez-Cruz, No. 98-1601,

(1st Cir.

April 21, 1999). All reasonable inferences and credibility

issues are resolved in favor of the nonmoving party. Barreto-

Rivera v. Medina-Varqas,

(1st Cir. 1999).

"An issue is only 'genuine' if there is sufficient evidence

to permit a reasonable jury to resolve the point in the nonmoving

party's favor, while a fact is only 'material' if it has the

potential to affect the outcome of the suit under the applicable

law." Bourque v. F.D.I.C.,

(1st Cir. 1994)

(guotations omitted). Summary judgment will not be granted as

long as a reasonable jury could return a verdict in favor of the

nonmoving party. Anderson v. Liberty Lobby, Inc.,

(1986) ) .

Discussion

The plaintiffs bring federal claims under

for violation of their Fourth Amendment and Fourteenth Amendment

rights, under sections 1981 and 1983 for race discrimination, and

under section 1983 for a conspiracy to violate their civil

5 rights.1 In addition, the plaintiffs cite provisions of the New

Hampshire Constitution in support of their federal claims. They

allege municipal and supervisory liability. The plaintiffs also

allege state law claims for invasion of privacy, assault and

battery, and negligence. The defendants move for summary

judgment arguing that the plaintiffs have not stated due process

claims under the Fourteenth Amendment, that section 1981 provides

no separate cause of action in a case brought pursuant to

, that they are entitled to gualified immunity,

and that the plaintiffs' state law claims fail on the same

grounds as the federal claims or for lack of jurisdiction once

summary judgment is granted on the federal claims.

A. Due Process Claims

As the defendants contend, claims that a plaintiff was

stopped or arrested without probable cause or that excessive

force was used in a stop or an arrest are specifically addressed

by the Fourth Amendment and are not subject to a substantive due

process analysis under the Fourteenth Amendment. See Albright v.

Oliver,

, 288 n.2 (1994); Graham v. Connor,

1Although the complaint also cites

, the court understands the reference to § 1982 to be an error as neither party has mentioned that section, and § 1982 does not seem to apply to the facts alleged in this case.

6

(1989). Only abusive and arbitrary

governmental actions that are not specifically governed by a

particular constitutional right may be actionable as a violation

of substantive due process. See County of Sacramento v. Lewis,

(1998).

In this case, the plaintiffs allege due process claims "for

unlawful search, unreasonable force, unlawful arrest or other

seizure," which they also allege as violations of the Fourth

Amendment. See Plaintiffs' Memorandum at 6. Since those claims

are specifically addressed by the Fourth Amendment, a substantive

due process analysis does not apply. The plaintiffs have not

identified any other claims or conduct by the defendants that

would be governed by a substantive due process analysis rather

than the Fourth Amendment. C f . Lewis, 118 S. C t . at 1715-16

(police pursuit before seizure not covered by Fourth Amendment

and therefore analyzed under substantive due process). The

defendants are entitled to summary judgment with respect to

plaintiffs' claims based on alleged violations of substantive due

process in counts one, three, and four.

B. Discrimination Claims

In count two, the plaintiffs allege racial discrimination

and bring claims under

and § 1983. The

7 defendants contend that the claims under section 1981 must be

dismissed based on the holding in Jett v. Dallas Independent Sch.

Dist.,

(1989), that section 1983 "provides the

exclusive federal damages remedy for the violation of the rights

guaranteed by § 1981 when the claim is pressed against a state

actor." The defendants, however, did not address the effect of

the 1991 amendment of section 1981, which added subsection (c),

on the exclusive remedy holding in Jett. See, e.g.. Federation

of African American Contractors v. Oakland,

, 1206-08

(9th Cir. 1996); Meachum v. Temple Univ., No. 97-1629,

(E.D.Pa. March 25, 1999); Webster v. Fulton

Countv, No. 96CV2399TWT,

(N.D.Ga. Feb. 12,

1999); Tabor v. Chicago,

(N.D. 111.

1998). The plaintiffs rely on Alexis v. McDonald's Restaurant,

(1st Cir. 1995), which held that a section

1981(a) cause of action could be brought against a police

officer, without reference to either Jett or the 1991 amendments.

Since the defendants have not demonstrated, on the record

presented here, that they are entitled to judgment as a matter of

law on the issue of a separate cause of action under section

1981, the motion is denied as to that claim. C. Qualified Immunity

"Under the doctrine of qualified immunity, public officials

'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.'" El Dia, Inc. v. Rossello,

(1st Cir.

1999) (quoting Harlow v. Fitzgerald,

, 343 (1986)).

Qualified immunity is determined based on the right defined at an

appropriate level of generality in the context of the totality of

the circumstances. Camilo-Robles v. Zapata, No. 98-1590,

(1st Cir. Apr. 20, 1999) . The qualified immunity

inquiry is objective, based on the actions of a reasonable

person, so that "[e]vidence concerning the defendant's subjective

intent is simply irrelevant to that defense." Crawford-El v.

Britton, 118 S. C t . 1584, 1592 (1998). Once a defendant has

properly raised qualified immunity as an affirmative defense, the

plaintiff bears the burden of rebutting the defense. See

at

at 1591-92; Pierce v. Smith,

(5th Cir.

1997); Quintero de Quintero v. Aponte-Rogue,

(1st Cir. 1992) ("When a defendant moves for summary judgment on

the basis of qualified immunity, it is the plaintiff's burden to

demonstrate the infringement of a federally assured right.").

The first step in the qualified immunity analysis is to determine whether the plaintiff has alleged the deprivation of a

constitutional right at all. Sacramento v. Lewis, 118 S. C t .

1708, 1714 n.5 (1998). The plaintiffs allege that they were

stopped without probable cause or reasonable suspicion, because

they are African American males, and that they were subjected to

an excessive use of force in the course of the stop in violation

of the Fourth Amendment.

Probable cause to arrest "exists when the facts and

circumstances within the police officers' knowledge and of which

they had reasonably trustworthy information were sufficient to

warrant a prudent person in believing that the defendant had

committed or was committing an offense." Rivera v. Murphy, 97

(1st Cir. 1992) (guotations omitted). Probable

cause for an investigative stop reguires that "a police officer

have 'specific and articulable facts which, taken together with

rational inferences from those facts,' could create a reasonable

suspicion sufficient to justify a brief detention of an

individual."

(guoting Terry v. Ohio,

(1968) ) .

The bulletin that Gscheidle saw described two African

American men in their twenties and provided indistinct

photographs of the men. No other distinguishing information was

provided. The bulletin was four days old on March 25 when

10 Gscheidle saw it.

Gscheidle saw the plaintiffs at the site of the accident and

noted that Barnett, the driver, had exchanged information with

the other driver, and got out of his car again while the officers

were present to write something down. Gscheidle and Gagne saw

Thomas, the passenger, looking at the cruiser to see what was

going on. Neither Gscheidle nor Gagne guestioned the plaintiffs

at the scene of the accident or made any effort to identify them.

Both the cars and the cruiser left at about the same time.

Only after the cruiser was following the plaintiffs did the

officers notice that Thomas was slipping down in his seat, which

they now describe as suspicious behavior because he appeared to

be trying to make it look like there was only one person in the

car. That is an improbable inference given the fact that the

officers saw Thomas in the car at the scene of the accident where

he apparently made no effort to hide. The officers also found it

suspicious that Barnett repeatedly looked in the mirror at the

cruiser following him. However, this is not an unusual response

for a driver who is being followed by a cruiser. Therefore, the

only remaining basis for the officers' conclusion that the

plaintiffs were the suspects described in the bulletin was their

race, gender, and that there were two of them. That information

alone, under the circumstances, was insufficient to support

11 either probable cause or a reasonable suspicion to stop them.

See, e.g.. United States v. Kithcart,

(3d Cir.

1998); Washington v. Lambert,

(9th Cir.

1996); Whitfield v. Board of County Comm'rs,

,

344 (D. Colo. 1993) .

On the present record, Gscheidle and Gagne did not have

probable cause to believe that the plaintiffs were the homicide

suspects. To the extent they participated in the stop and used

force in the stop, they acted without probable cause in violation

of the plaintiffs' Fourth Amendment rights.2 A free citizen's

Fourth Amendment right not to be stopped or arrested without

probable cause and not to be subjected to unreasonable force in

the course of a stop or arrest was clearly established in 1997

when these events occurred. See, e.g., Graham,

;

Vargas-Badillo v. Diaz-Torres,

(1st Cir. 1997);

Rivera, 979 F.2d at 264. Gscheidle's conduct in this case is

readily distinguishable from cases where the police have probable

cause to arrest, but mistakenly arrest the wrong person. See,

e.g.. Hill v. California,

(1971); Dean v.

2The parties have not distinguished actions of Gagne from Gscheidle during the events in guestion. From the record presented, it seems that Gagne had no independent knowledge of the bulletin or the descriptions of the suspects and instead relied on Gscheidle's reports and conclusions. However, since gualified immunity is not argued as to Gagne's role individually, the court will not, sua sponte, separate the two defendants.

12 Worcester,

(1st Cir. 1991). In the absence of

probable cause or reasonable suspicion that the plaintiffs were

the homicide suspects, then to the extent Gscheidle and Gagne

used force in the process of the stop, it was unreasonable. See

Graham,

.

The defendants argue that because they did not personally

effect the stop, the plaintiffs cannot show that they violated

the Fourth Amendment. Based on the record presented, it seems

that Officer Whewell of the Portsmouth police, rather than

Officers Gscheidle and Gagne, stopped the plaintiffs.3 The

plaintiffs do not contest Officer Whewell's grounds to stop them.

Whewell's stop, however, was initiated by and based on

Gscheidle's report that the plaintiffs matched the descriptions

of two suspects wanted for a double homicide in New York.

Gscheidle's report to the Portsmouth police, as transcribed in

Whewell's report, that the plaintiffs matched the description of

the suspects and that their car "sort of fit the description" in

the bulletin seems to have been misleading or false, since

Gscheidle had insufficient information to draw that conclusion.

3The plaintiffs argue that Gscheidle and Gagne participated in the stop. The facts in the record presented show that they provided backup support to Whewell after he stopped the plaintiffs' car.

13 In addition, in making the report, he intended the information to

be used by the Portsmouth police to stop or arrest the

plaintiffs .

In a qualified immunity analysis, the right affected must be

considered at an appropriate level of generality because "the

focus must be upon the particular conduct engaged in by (or

attributed to) the defendants; immunity is forfeited only if a

reasonable official would clearly understand that conduct to be a

violation of the Constitution." Rivera-Ramos v. Roman,

(1st Cir. 1998). Here, the parties have not

sufficiently addressed the defendants' particular conduct in the

context of the alleged violations of the plaintiffs' Fourth

Amendment rights. C f ., e.g., Devose v. Addison,

(8th Cir. 1999); Aponte Matos v. Toldeo Davila,

(1st Cir. 1998); Phelan v. Thompson,

(D.N.H. 1994). For that reason, both factual and legal issues

remain that cannot be resolved on the present record.

D. Municipal and Supervisory Liability

_____ Count three in each complaint is titled "Municipal

Liability/Respondeat Superior." Both allege that the town was

"grossly negligent or deliberately indifferent in the training or

instruction of police officers," and are brought under 42

. Count four in each complaint is titled

"Supervisory Liability." The supervisory liability claims allege

that the town and Chief Strong "failed, neglected or refused" to

manage and supervise the defendant officers with respect to

probable cause to arrest and search, use of force, race

discrimination, and the constitutional rights of citizens, and

"tolerated or acguiesced in the misuse of police powers" with

"reckless disregard" or "deliberate indifference" to the

plaintiffs' constitutional rights. The supervisory liability

claims are also brought pursuant to section 1983.

The town and Chief Strong assert that respondeat superior is

not a viable basis for a section 1983 claim and contend that the

plaintiffs have no evidence to prove their municipal and

supervisory liability claims under the appropriate standards.

The plaintiffs acknowledge that respondeat superior is not

actionable under section 1983, but explain that the respondeat

superior theory was intended to apply only to their state law

claims.

1. Municipal liability.

To establish municipal liability under section 1983, a

plaintiff must "identify a municipal 'policy' or 'custom' that

caused the plaintiff's injury." Board of County Comm'rs. of

15 Bryan County v. Brown,

(1997). A municipal

policy may be established by the municipality's "duly constituted

legislative body" or by the decisions of a policymaker. Silva v.

Worden,

(1st Cir. 1997) . A custom or practice

must have been "so well-settled and widespread that the

policymaking officials of the municipality can be said to have

either actual or constructive knowledge of it yet did nothing to

end the practice." Bordanaro v. McLeod,

(1st

Cir. 1989). The causation element reguires that the policy or

custom be the moving force behind the constitutional injury so

that the municipality caused the injury by its deliberate

conduct. Swain v. Spinney,

(1st Cir. 1997).

Deliberate indifference is the "standard of culpability

sufficient to identify a dereliction as reflective of municipal

policy." Sacramento, 118 S. C t . at 1717 n.10.

In this case, the custom or policy at issue is the town's

alleged failure to adeguately train its police officers to

recognize suspects identified in police bulletins and to make

stops based on probable cause.4 The plaintiffs have not shown

that the town had a policy not to train with respect to police

4Although the plaintiffs may have alleged a broader policy, they address only a lack of training in opposition to summary judgment.

16 bulletins and identifying suspects. The only evidence of a

custom or practice pertaining to training is evidence from

Gscheidle's deposition of his lack of training with respect to

using bulletins and identifying suspects in the context of race.

His experience alone does not demonstrate that the town had a

custom or practice not to train police in using bulletins and

identifying suspects.

In addition, the plaintiffs have not established that the

town's alleged policy or custom not to train its police officers

was the result of a conscious choice among training alternatives

that shows a deliberate indifference to the rights of those who

would be affected. See Canton v. Harris,

(1989). There is also no reference to the record to support the

plaintiffs' statement that as a result of a lack of training,

"all blacks looked alike, or were potential criminals" to

Gscheidle or any of the town's police. See Plaintiffs'

Memorandum at 22. The record does not show that the town was

aware of or should have been aware of problems caused by a lack

of training in using bulletins and identifying suspects. The

plaintiffs, therefore, have not shown a factual dispute as to the

existence of a town policy or custom that caused their injury due

to the town's deliberate indifference to their constitutional

rights.

17 2. Supervisory liability.

The plaintiffs do not specifically address supervisory

liability, instead asserting that the defendants failed to

distinguish municipal from supervisory liability, and for that

reason, the defendants are not entitled to summary judgment as to

their claim of supervisory liability. Since the defendants

raised supervisory liability at pages 22 through 24 of their

memorandum, the plaintiffs appear to be mistaken.

Supervisors, such as Chief Strong, may be liable for the

constitutional violations caused by police officers under their

supervision if the supervisor was either the "primary actor

involved in, or a prime mover behind, the underlying violation."

Camilo-Robles v. Zapata, No. 98-1590,

(1st

Cir. Apr. 20, 1999). Supervisory liability is based upon the

supervisor's own actions or omissions including the foreseeable

conseguences of subordinates' misconduct if the supervisor

"'would have known of it but for his deliberate indifference or

willful blindness, and if he had the power and authority to

alleviate it.'" Barreto-Rivera,

(guoting

Maldonado-Denis v. Castillo-Rodriquez,

(1st Cir.

1994)). A plaintiff must show an affirmative link, such as a

policy or prior notice of violative conduct, between the

supervisor's action or omission and the constitutional

18 deprivation alleged. Id.; see also Camilo-Robles v. Hovos,

, 7 (1st Cir. 1998).

Although the plaintiffs say that "Chief Strong's policy and

training was to allow their officers unfettered discretion in

determining reasonable suspicion, or at least to make an

investigatory stop based on scant information," the plaintiffs'

references to the record do not support the statement. In

addition, Gscheidle's description of his police training provided

in his affidavit demonstrates that he was trained in criminal

investigation, investigatory stops and arrests, the legal bases

for arrest, and the use of force. The plaintiffs also make an

unsubstantiated statement suggesting racial bias in police

activity. Since the plaintiffs' allegation is not supported in

the record, it will not be considered.

As the plaintiffs provide no factual support to show that

Chief Strong or the town played any role in the events that led

to their stop, they have not shown a trialworthy issue with

respect to a theory of supervisory liability. Chief Strong and

the town are entitled to summary judgment as to the plaintiffs'

section 1983 claims.

19 E. State Law Claims

The plaintiffs bring state law claims alleging invasion of

privacy, assault and battery, and negligence based on standards

established by RSA § 594:2 and 4. The defendants address only

the negligence claim on the merits, contending that the New

Hampshire statutes were inapplicable to the defendants who are

Maine police officers. The defendants also state generally that

the state law claims should be dismissed for lack of jurisdiction

following summary judgment on the civil rights claims. Since

some of the civil rights claims survive summary judgment,

supplemental jurisdiction exists as to the state law claims.

With respect to the negligence claims under RSA § 594:2 and

4, the plaintiffs argue that the mutual aid agreement, attached

to Chief Strong's affidavit, between Portsmouth and Kittery makes

the New Hampshire statutes applicable to the Maine police

officers when they operate in New Hampshire. Resolving

inferences in the plaintiffs' favor, the existence of the

agreement and Chief Strong's reliance on the agreement for the

officers' authority in New Hampshire raise unresolved issues

about the application of the statutes in this case. Therefore,

the effect of the mutual aid agreement in the circumstances of

this case cannot be determined based on the record presented for

summary judgment. The plaintiffs also argue that their claim is

20 based on negligence theories other than the statutory standard.

The defendants have failed to demonstrate that they are

entitled to summary judgment on the plaintiffs' state law claims.

Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment (document no. 11) is granted in part and denied

in part. Summary judgment is granted in the defendants' favor as

to counts three and four, and is granted as to their claims based

on substantive due process in count one. The motion is otherwise

denied.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

May 2 6, 1999

cc: Brian T. Stern, Esguire Peter A. Meyer, Esguire Edward R. Benjamin Jr., Esguire

21