United States Court of Appeals For the First Circuit

No. 09-2386

JUAN LOPERA, ET AL.,

Plaintiffs, Appellants,

v.

TOWN OF COVENTRY, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon William E. Smith, U.S. District Judge]

Before

Lynch, Chief Judge, Selya and Thompson, Circuit Judges.

Stephen M. Robinson, with whom Vicki J. Bejma and Robinson & Calpham were on brief, for appellants. Thomas R. Bender, and Hanson Curran LLP, were on brief for Rhode Island Affiliate, American Civil Liberties Union, amicus curiae. Marc DeSisto for appellees.

April 1, 2011 LYNCH, Chief Judge. Former members of the Central Falls

High School boys soccer team appeal from an entry of summary

judgment for the Town of Coventry, Rhode Island, and Coventry

police officers in this civil rights case. This dispute arises out

of a police search of team members that followed a heated soccer

match between Central Falls High School and Coventry High School in

Coventry in 2006. Police searched all individual Central Falls

team members for items purportedly missing from the Coventry locker

room in the presence of an abusive crowd of Coventry students and

adults. Though the Central Falls coach told the police he

consented to the search of his players, both he and the players

assert that he was coerced into doing so by the police.

Lead plaintiff Juan Lopera and other former members of

the Central Falls team brought suit for damages and injunctive

relief in April 2008, alleging violations of their constitutional

rights under the Fourth and Fourteenth Amendments, as well as

violations of Rhode Island state law. The defendant police

officers asserted a defense of qualified immunity. The district

court held that the players failed to raise a genuine issue of

material fact as to whether (1) the police officers were not

entitled to qualified immunity with respect to their claims under

the Fourth Amendment and state privacy law, or (2) the police had

engaged in racial discrimination in violation of the Equal

Protection Clause or Rhode Island statutes prohibiting racial

-2- profiling and intimidation. Lopera v. Town of Coventry,

(D.R.I. 2009). We affirm.

I.

We review the facts in the light most favorable to Lopera

and the other plaintiffs, the parties opposing summary judgment.

On September 28, 2006, the Central Falls High School soccer team

traveled to Coventry for a match against Coventry High School.

Before the game, four or five Central Falls players used the

restrooms in the Coventry locker room. They were not alone. A

security guard accompanied the boys into the locker room. The

locker room is usually open and unlocked and could be easily

accessed, including by unauthorized persons.

The locker room is apparently used by all Coventry teams

and recently had been used by Coventry's football team. After the

soccer match, a group of approximately twenty football players1

confronted the Central Falls coach, Robert Marchand, as he walked

behind his players toward the team bus. In profane terms, the

Coventry students accused the Central Falls players of stealing

iPods and cell phones from the Coventry locker room.

The Central Falls players allege that they encountered

hostile racism during their match with the Coventry soccer team and

during the remainder of their time in Coventry. Central Falls is

a racially diverse community, and the Central Falls team consisted

1 This crowd apparently did not include any soccer players.

-3- entirely of Spanish-speaking Hispanic players, save for one

Portuguese player. Coventry, by contrast, is predominantly non-

Hispanic and white, and its high school reflected this. The

Central Falls players allege that Coventry players uttered racial

epithets during the game, calling them "spics" and demanding that

they speak English. They allege that Coventry students and adults

made similar remarks during the series of events that followed the

game.

After the Coventry football players confronted Coach

Marchand with the purported thefts, he told them that he would

handle the situation. The football players followed him toward the

Central Falls bus. Before the group reached the bus, Coach

Marchand told the players to wait. Coach Marchand then boarded the

bus, where his team was waiting. Coach Marchand informed the

players of the accusations and told them that he knew they had not

taken the items. Nonetheless, he and an assistant coach searched

the players' bags. If an iPod or cell phone was found, Coach

Marchand asked for proof that it belonged to the player. The

search lasted approximately twenty to twenty-five minutes. Coach

Marchand testified that when it was completed, he was "completely

satisfied" that his players did not possess the items.

After he completed the search, Coach Marchand left the

bus to speak with the Coventry Athletic Director, who was waiting

outside. By this time, Coach Marchand testified, a crowd of fifty

-4- or sixty Coventry students and adults had gathered around the bus.

According to Coach Marchand, members of the crowd yelled that they

knew his players had the items. He testified that students and

adults in the crowd stated that the players were "from the ghetto,"

knew how to "hide things" and "lie good," and could not be trusted.

The players recounted similar accusations and vitriol, including

racial slurs like "spic." At one point, a member of the crowd

apparently tried to board the bus to conduct his own search. Coach

Marchand testified that members of the crowd demanded a search of

his own bags. He also testified that members of the crowd stated

that they would not let the Central Falls players leave until the

items had been found.

Coach Marchand told the Coventry Athletic Director that

he had checked "everything" on the bus, and that his players did

not have the purportedly missing items. Coach Marchand also told

the Athletic Director that he was welcome to do his own search,

which the Athletic Director declined as unnecessary. Coach

Marchand testified that as he and the Athletic Director puzzled

over how to "satisfy all [the] constituencies here," he began to

worry that violence might ensue.

At this point, three or four Coventry police cruisers

arrived on the scene with their lights and sirens activated. The

police had received calls reporting a supposed ongoing physical

altercation. The officers boxed in the Central Falls bus with

-5- their cruisers so that it could not move. According to the

players, by this time the crowd had also formed a semi-circle

around the bus, blocking its path out of the parking lot.

Once it became clear that no physical altercation was

taking place, the police discussed the situation with Coach

Marchand and the Coventry Athletic Director. Coach Marchand

explained to the officers that the Coventry students had alleged

thefts and that his players "were prime suspects." He told the

officers that he had searched each student's bags on the bus and

did not find the purportedly missing items. Coach Marchand

expressed fear of the crowd, asking the police, "what am I going to

do, what are they going to do to us[?]" After a pause, Coach

Marchand testified, the police responded by asking him if they

could search the players. Coach Marchand verbally agreed.

Coach Marchand did not testify that the officers said or

did anything coercive. Coach Marchand testified that the officers

acted courteously and told unruly members of the crowd to be quiet.

According to Coach Marchand, the police "decided their best thing

was to [do the] search themselves to appease the masses" who were

"crying for our heads." In his testimony, he described his consent

as the way to "take the high road, take the safe road," even though

he knew his players did not have the items. We must take this

-6- testimony as true on this motion for summary judgment.2 The police

testified that the crowd was angry and unruly, consistent with the

players' testimony. They also testified that they did not hear any

racial epithets from members of the crowd, which is not the

plaintiffs' testimony.

After agreeing to the search, Coach Marchand returned to

the bus and told his players that the crowd would not let them go

until the police searched them. The police then told the players

to get off the bus with all of their belongings and line up with

their bags between their legs. The players complied, lining up

with their backs against the bus. An officer then told the players

that if any of them had the missing items, they would be arrested

if they did not immediately step forward. When none of the players

stepped forward, the officers began a search. Coach Marchand

testified that the officers placed each player's bag on the hood of

a cruiser and looked through it. A few players testified that some

players were also subjected to pat down searches. During the

search, the crowd was about six to ten feet away from the players.

The search lasted for about 45 minutes to an hour. The

police officers testified that they did not obtain descriptions of

the type of iPods or cell phones alleged to be missing, other than

2 One officer testified that Coach Marchand suggested the search and that they conducted the search because it would "expedite the process and eliminate them all as suspects." These are disputed facts and for these purposes we do not accept them.

-7- that one phone may have been a "flip phone." When the police

located an iPod or a cell phone on a player, they required that the

player prove that the item belonged to him. In some cases, the

players identified items stored on the devices and allowed the

officers to search the devices. In other cases, the officers

displayed the devices to members of the crowd and asked if they

were the missing devices. During the course of the search, members

of the crowd alleged that additional items were missing, like books

and money.

The players testified that the crowd continued to harass

them during the search. One player testified that, during the

search, members of the crowd called the players "spics." Another

testified that members of the crowd stated that the Central Falls

team should not be in Coventry or playing Coventry High School

given the race of its players. Members of the crowd photographed

the Central Falls students during the search with their cell phone

cameras. Marchand testified that although the officers reprimanded

unruly members of the crowd during the search, they did not take

adequate actions to disperse the crowd or move it away from the

bus.

There was testimony that during the search, one Coventry

officer told one of the players that he thought the search was

"stupid" because the coach had already searched the players and

because a security guard had accompanied the players in the locker

-8- room. Another officer, hearing the comment, laughed. The police

required all the players to wait outside the bus until every player

had been searched. The search did not produce any of the missing

items. After it was completed, the police escorted the bus out of

town in their cruisers.

Lopera and other members of the Central Falls team filed

suit in April 2008 against the Town of Coventry and several

individual Coventry police officers under

(§ 1983)

and Rhode Island state law. Under § 1983, the players alleged

deprivations of their Fourth Amendment right to be free from

unreasonable searches and seizures, as well as their Fourteenth

Amendment rights to due process of law and equal protection of the

law.3 Under Rhode Island state law, the players alleged violation

of statutes that forbid invasion of privacy, racial profiling, and

ethnic intimidation. R.I. Gen. Laws § 9-1-28.1; id. § 31-21.2; id.

§ 9-1-35.

The district court granted summary judgment for the

defendants on all counts. First, it held that the officers were

entitled to qualified immunity with respect to the Fourth Amendment

and state privacy claims because (1) it was not unreasonable for

the officers to believe that Coach Marchand had power to consent to

the search, and (2) coercion did not vitiate Coach Marchand's

3 The players have conceded that their Due Process claim was not intended to allege a violation of their substantive due process rights and thus overlaps with their Fourth Amendment claim.

-9- consent. Second, it held that the players did not introduce

sufficient evidence to support a finding that the police engaged in

racial discrimination in violation of the Equal Protection Clause

or Rhode Island's statutes prohibiting racial profiling and ethnic

intimidation. The district court also held on independent grounds

that the players had not introduced material facts to support their

claims of supervisory and municipal liability.

II.

On appeal, the players make two arguments. First, they

argue that the officers were not entitled to qualified immunity for

the claims under the Fourth Amendment and state privacy law because

(1) a reasonable officer would have believed that Coach Marchand

did not have authority to consent for his players, and (2) a

reasonable officer would have believed that Coach Marchand's

consent was coerced. Second, they argue that they set forth

material facts to support the reasonable inference that the actions

of the officers were impermissibly motivated by race in violation

of the Equal Protection Clause and Rhode Island state law. The

players do not challenge the district court's rulings on municipal

and supervisory liability.

In their answer to the players' complaint, the defendant

officers asserted qualified immunity against all claims. In

asserting this defense before the district court and before this

court, the officers focused their argument on whether it was

-10- clearly established that Coach Marchand could consent on behalf of

his students in loco parentis. The district court analyzed this

question in a qualified immunity framework, but it appeared to

address the players' remaining claims outside of that framework.

Given that the officers have raised a qualified immunity defense to

all of the players' claims, we address each of the players' claims

in the qualified immunity framework.

This court reviews grants of summary judgment de novo.

Saccucci Auto Group, Inc. v. Am. Honda Motor Co.,

(1st Cir. 2010). We must make all reasonable inferences in favor

of the non-moving party and may reverse only if "the evidence on

record 'is sufficiently open-ended to permit a rational factfinder

to resolve the issue in favor of either side.'" Maymi v. Puerto

Rico Ports Auth.,

(1st Cir. 2008) (quoting Nat'l

Amusements, Inc. v. Town of Dedham,

(1st Cir.

1995)). This standard of review applies to grants of summary

judgment on grounds of qualified immunity. See Kelley v. LaForce,

(1st Cir. 2002). When a defendant moves for summary

judgment on the basis of qualified immunity, the plaintiff bears

the burden of showing infringement of a federal right. Quintero de

Quintero v. Aponte-Roque,

(1st Cir. 1992).

A. The Doctrine of Qualified Immunity

Qualified immunity "protects government officials 'from

liability for civil damages insofar as their conduct does not

-11- violate clearly established statutory or constitutional rights of

which a reasonable person would have known.'" Pearson v. Callahan,

(2009) (quoting Harlow v. Fitzgerald,

(1982)). This circuit follows a two-step analysis under

Pearson in discerning whether defendants are entitled to qualified

immunity. We ask "(1) whether the facts alleged or shown by the

plaintiff make out a violation of a constitutional right; and (2)

if so, whether the right was 'clearly established' at the time of

the defendant's alleged violation." Maldonado v. Fontanes,

(1st Cir. 2009).

The Supreme Court has held that it is not mandatory for

courts to follow this two-step test sequentially. Pearson,

; see also Maldonado,

. A finding

that a right was not clearly established at the time of the alleged

violation is sufficient to warrant a finding of qualified immunity.

See Pearson,

. In some cases "discussion of the

first prong of the qualified immunity analysis will result 'in a

substantial expenditure of scarce judicial resources on difficult

questions that have no effect on the outcome of the case.'"

Maldonado,

(quoting Pearson,

).

In this case, these considerations counsel that we

consider the second prong of the analysis and go no further. That

prong, we have held, has two aspects: that both (1) the legal

contours of the right in question and (2) the particular factual

-12- violation in question would have been clear to a reasonable

official. Id. at 269. Together, these two factors ask whether a

reasonable officer, similarly situated, would have believed that

his conduct did not violate the Constitution. Harlow,

; Philip v. Cronin,

(1st Cir. 2008).

The qualified immunity defense "is designed to protect

'all but the plainly incompetent or those who knowingly violate the

law.'" Morse v. Frederick,

(2007) (quoting

Malley v. Briggs,

(1986)). A finding of

qualified immunity is warranted if "a reasonable officer could have

believed his conduct was lawful." Olmeda v. Ortíz-Quiñonez,

(1st Cir. 2006). Such a finding is not warranted if

"no reasonable officer could believe" that his conduct was lawful.

Groh v. Ramirez,

(2004). Put another way,

immunity will issue when "officers of reasonable competence could

disagree" on the lawfulness of an action, but it will not issue if

"it is obvious that no reasonably competent officer would have

concluded" that the action was lawful. Malley,

.

This is an objective test; it does not look to the

defendants' subjective beliefs concerning the unlawfulness of their

conduct. Philip,

. A "determination of objective

reasonableness," however, "'will often require examination of the

information possessed' by the defendant officials." Kelley, 288

-13- F.3d at 7 (quoting Anderson v. Creighton,

(1987)).

This objective test does not establish that "an official

action is protected by qualified immunity unless the very action in

question has previously been held unlawful." Anderson,

. The Supreme Court has made clear that "officials can still be

on notice that their conduct violates established law even in novel

factual circumstances." Hope v. Pelzer,

(2002)

(citing United States v. Lanier,

(1997)).

Nonetheless, unlawfulness must be apparent in light of pre-existing

law at the time of the alleged violation. Anderson,

. The content of clearly settled law and the belief of a

reasonable officer under the circumstances are questions

appropriately addressed by courts before trial, where possible.

See Hunter v. Bryant,

(1991); Cox v. Hainey,

(1st Cir. 2004).

We divide our discussion in this case between the

players' claims under the Fourth Amendment and state privacy law

and their claims under the Equal Protection Clause and state laws

forbidding racial profiling and ethnic harassment.

B. Fourth Amendment and State Privacy Claims

In their claims under the Fourth Amendment and the state

privacy statute, the players give two grounds to defeat qualified

immunity. First, they argue that all officers of reasonable

-14- competence would have believed that Coach Marchand did not have

authority to consent on behalf of the players. Second, they argue

that all officers of reasonable competence would have believed that

coercion vitiated Coach Marchand's purported consent to the search

in this case.

The district court focused primarily on the players'

first argument. It held that the players failed to introduce a

material fact showing it was clearly established that Coach

Marchand could not consent on their behalf under the circumstances.

Lopera

. In so finding, the district

court relied on the apparent uncertainty of prevailing Supreme

Court doctrine governing in loco parentis searches in schools.

As to the players' second argument, the district court held that

Coach Marchand's consent was voluntary because he "understood the

situation,"

, and gave consent "after careful and

deliberate thought,"

. The district court did not

address whether this would have been clear to the officers under

the circumstances, nor whether it was clearly established that

coercion vitiates consent.

1. Coach Marchand's Authority to Consent

We may quickly dispose of the players' first argument,

which does not require analysis of the intricacies of the in loco

parentis doctrine. Under the facts alleged by the players, a

reasonable officer could have concluded that Coach Marchand had

-15- authority to consent to a search of his students. The search did

not take place at Central Falls High School, but rather on a trip

away from school over which Coach Marchand was undisputedly in

charge. When the officers arrived, Coach Marchand told them that

he had already conducted his own search of his students. To arrive

at the conclusion that Coach Marchand could not consent, an officer

would have had to question Coach Marchand's authority to perform

the first search and, by extension, Coach Marchand's authority to

consent to a second search by the police.

We cannot say that no officer of reasonable competence

could have reached the conclusion that Coach Marchand had authority

to consent. As the players argue, the Supreme Court has recognized

limits on the in loco parentis authority of school officials. New

Jersey v. T.L.O.,

(1985). To defeat a finding

of qualified immunity, however, the players must identify authority

sufficiently particularized that the unlawfulness of an act would

have been apparent to all officers of reasonable competence.

Wilson v. Layne,

(1999). Subsequent decisions

make clear that T.L.O. has not eliminated a school official's in

loco parentis power to consent on behalf of his students. See

Vernonia Sch. Dist. 47J v. Acton,

(1995). The

players do not identify a sufficiently particularized decision of

this court or the Supreme Court that places Coach Marchand's

consent clearly beyond his authority under the facts they allege.

-16- 2. The Validity of Coach Marchand's Consent

The players' second argument concerning the validity of

Marchand's consent requires more discussion. There is no dispute

that all officers of reasonable competence would have known that

coercion vitiates consent to a search under the Fourth Amendment.

See United States v. Vanvliet,

(1st Cir. 2008).

Under the Fourth Amendment, consent may "not be coerced, by

explicit or implicit means, by implied threat or covert force."

Schneckloth v. Bustamonte,

(1973). As to the

other considerations relevant to the validity of Coach Marchand's

consent, we reiterate that we may only deny qualified immunity if

"it is obvious that no reasonably competent officer would have

concluded" that the action was lawful. Malley,

.

If "officers of reasonable competence could disagree" on the

lawfulness of an action, we must grant qualified immunity.

We first dispose of a legal question about the scope of

the facts to be considered. The officers argue that the law under

Schneckloth was not clearly established; they contend that it was

the crowd, not the officers, who created any coercive atmosphere

and that the coercion must "emanat[e] from the police officers

themselves rather than any subjective or outside influence."

Citing the Supreme Court's decision in Colorado v. Connelly,

(1986), the officers argue that the examination of

coercion must focus solely on the acts of the officials requesting

-17- to perform the search. We reject this argument for two different

reasons, but nonetheless find for other reasons that defendants are

entitled to qualified immunity.

First, Connelly is not clearly established law limiting

Schneckloth. Second, taking the facts in the light most favorable

to the plaintiffs, the crowd was not the only source of potential

coercion. It is clearly established law under Schneckloth that in

considering the validity of consent, all the surrounding

circumstances must be considered. Schneckloth,

;

Vanvliet,

. Neither the Supreme Court nor this

court has extended the rule in Connelly, a decision under the Due

Process Clause of the Fourteenth Amendment, to Fourth Amendment

consent cases.

In Connelly, the defendant claimed that because he heard

a "voice of God" telling him to confess, his confession in police

custody was coerced and thus invalid. Connelly,

-

171. The Supreme Court held a defendant's mental condition "by

itself and apart from its relation to official coercion" cannot

"dispose of the inquiry into constitutional 'voluntariness'" under

the Fourteenth Amendment's Due Process Clause.

. It

concluded that "coercive police activity is a necessary predicate

to the finding that a confession is not 'voluntary'" within the

meaning of that clause.

. The Court did not address

Fourth Amendment searches.

-18- We are unaware of any published circuit court decision

that applies this standard for voluntariness of a confession to

questions of consent under the Fourth Amendment. But see United

States v. Quezada, No. 91-5004,

(4th Cir. Oct. 24,

1991) (applying Connelly to a Fourth Amendment search in an

unpublished decision). At least two circuits have expressly

declined to do so. United States v. Montgomery,

, 571-

72 (6th Cir. 2010); Tukes v. Dugger,

, 516 & n.13 (11th

Cir. 1990). This circuit has continued to apply the requirements

in Schneckloth for consent to a Fourth Amendment search. See

Vanvliet,

. Moreover, we are unaware of any lower

court decision in this circuit that extends Connelly to Fourth

Amendment searches. See Pearson,

.

Having rejected the defendants' efforts to narrow the

focus of inquiry, we turn to the articulation of the clearly

established law. In Schneckloth, the Supreme Court held that

coercion must be discerned by examining "all the surrounding

circumstances," including "subtly coercive police questions" and

"the possibly vulnerable subjective state of the person who

consents." Schneckloth,

. In Ohio v. Robinette,

(1996), the Court repeated that "[t]he Fourth Amendment

test for a valid consent to search is that the consent be

voluntary, and '[v]oluntariness is a question of fact to be

-19- determined from all the circumstances.'"

(alteration in

original) (quoting Schneckloth,

).

We have held that voluntariness of consent depends on

considerations including, but not limited to, "(i) the consenter's

age, education, past experiences, and intelligence; (ii) whether

law enforcement officials advised the consenter of his

constitutional right to refuse consent; (iii) the length and

conditions of the consenter's detention and/or questioning; and

(iv) law enforcement officials' use of any inherently coercive

tactics." Vanvliet,

n.2 (citing Schneckloth,

).

A consent is coerced when an individual's "will ha[s]

been overborne and his capacity for self-determination critically

impaired" such that he does not face an "essentially free and

unconstrained choice." United States v. Watson,

(1976) (quoting Schneckloth,

) (internal quotation

marks omitted). It is seldom the case that "a single coercive

element will, standing alone, be enough to invalidate a consent."

W. LaFave, Search and Seizure § 8.2(b), at 62 (4th ed. 2004). An

officer's failure to inform an individual of her right to refuse

consent to a search does not necessarily render her consent to such

a search coerced. See Robinette,

. Nor is a

consent to a search given in police custody necessarily coerced.

Watson,

.

-20- Two Supreme Court cases are particularly instructive

here, but are not cited to us by either side. The first is United

States v. Drayton,

(2002). In Drayton, the Supreme

Court held that among the relevant factors for assessing coercion

is whether the officer requesting the search "indicated a command

to consent to the search."

. The defendant's consent,

the Court held, was not a product of coercion because the officer

had provided him with "no indication that he was required to

consent to the search."

The officers had asked whether the

defendant objected to the search, "thus indicating to a reasonable

person that he or she was free to refuse."

The Court noted

that there had been "no application of force, no intimidating

movement, no overwhelming show of force, no brandishing of weapons,

no blocking of exits, no threat, no command, not even an

authoritative tone of voice."4

.

The second is Florida v. Bostick,

(1991).

In Bostick, the Court addressed whether an officer's request to

search a passenger's bags on a commercial bus constituted an

unlawful seizure under the Fourth Amendment.

. Although

4 Although this language derives from Drayton's analysis of whether a seizure had occurred in that case, the Court noted that "[i]n circumstances such as these, where the question of voluntariness pervades both the search and seizure inquiries, the respective analyses turn on very similar facts." United States v. Drayton,

(2002). The Court's analysis of whether the defendant's consent was coerced invoked the factual discussion in its analysis of whether the defendant had been seized.

-21- on its face Bostick is about whether the defendant was seized, it

is relevant. The Supreme Court's assessment of whether the police

in Bostick seized the defendant turned on whether they had coerced

him to consent to a search. Id. at 435-38. It held that the

appropriate inquiry was whether, under the circumstances, "a

reasonable person would feel free to decline the officers' requests

or otherwise terminate the encounter." Id. at 436. The Court held

that "[w]here the encounter takes place is one factor, but it is

not the only one." Id.

Against this articulation of the clearly established law,

we now turn to the facts of this case, taking all reasonable

inferences in favor of the players. The defendants have largely

accepted the plaintiffs' version of the facts for purposes of this

summary judgment motion, but say that they would present their

different version of the facts at trial.

The players point to three factual circumstances in

arguing that no reasonably competent officer would have concluded

that Coach Marchand's consent was valid. First, they note that

Coach Marchand explicitly invoked his fear of the crowd, asking the

officers, "what are they going to do to us[?]" shortly before the

officers requested that Coach Marchand consent to a search of the

players. Second, the players note that the officers did not

actively seek to disperse the crowd, but only told the crowd to

quiet down. Third, they note that the officers boxed in the

-22- Central Falls bus, which effectively ensured that it could not

leave until the police decided it could leave.

Although Coach Marchand may have subjectively felt

coerced by the police and/or the crowd to give his consent, that is

not the focus of the qualified immunity inquiry. Rather, the focus

is on the viewpoint of an objectively reasonable officer. We

cannot say that no reasonably competent officer would have

concluded that Coach Marchand's consent was valid under clearly

established Supreme Court case law. The players do not even allege

that the officers commanded Coach Marchand to consent to a search,

and the facts do not suggest that they did. Nor do the players

allege that the officers threatened force or acted in an

intimidating manner during their exchange with Coach Marchand and

the Coventry Athletic Director. Indeed, Coach Marchand testified

that the officers requested the search politely and acted

courteously and professionally throughout their exchanges with him.

The players do not even allege that the officers spoke to Coach

Marchand with "an authoritative tone of voice" when they requested

to do a search. See Drayton,

.

Rather, the players' evidence depicts a difficult

situation in which Coach Marchand faced a genuine choice between

imperfect solutions. He could either consent to the search or

require the police to pursue other legal paths if they wished to

conduct one. As Coach Marchand said, it was his decision and he

-23- decided "to take the high road, to take the safe road." Coach

Marchand may have felt that the best way for him to get his players

home safely and promptly was to submit to a search. He knew of the

hostile crowd and was convinced that the players did not possess

any of the purportedly missing items. By the time the police

arrived, the Central Falls bus was already late going home, and

Coach Marchand could have reasonably believed that school

administrators and the players' parents were or would soon become

worried about their whereabouts.

These circumstances do not establish that all reasonably

competent officers would have concluded that Coach Marchand's will

had been overborne or that his capacity for self-determination was

critically impaired. See Watson,

. Indeed, Coach

Marchand testified that he "debated" telling the officers to get a

search warrant, but rejected that option. Instead, he concluded

that his role as coach was to ensure first and foremost that the

players got home safely. A choice between undesirable options does

not itself mean the choice was coerced and the consent given was

involuntary. Like the officers in Drayton, the officers posed

their search request as a question and did not make any showing

that it could not be refused. We cannot say that a reasonably

competent officer could only have concluded that Coach Marchand had

no option but to consent due to coercion.

-24- The factual details the players emphasize, addressed

within the totality of the circumstances, do not demand a contrary

conclusion. Coach Marchand's question, "what are they going to do

to us[?]," would have alerted reasonable officers of his concerns

about the situation. It may also be that reasonable officers would

have recognized that the perceived threat from the crowd influenced

Coach Marchand's decision. This does not mean, however, that all

officers of reasonable competence would have concluded that Coach

Marchand's will had been overborne. As Coach Marchand testified,

he considered refusing the search and telling the officers to get

a warrant.

As to the officers' efforts to subdue the crowd, by the

time the officers spoke with Coach Marchand, they had restrained

the crowd, told crowd members to cut it out, and established a

buffer between the crowd and the bus. It may be that the officers

would have done better to disperse the crowd altogether. This does

not mean, however, that the officers are not entitled to immunity.

The officers could have reasonably thought that they made clear

that they would prevent the crowd from harming the players as of

the time they asked Coach Marchand to consent to the search.

As to the police cruisers, the officers parked in a way

that boxed in the bus before they became aware of the specific

situation unfolding around it. The record is silent on whether

alternatives were available. More importantly, the officers did

-25- not convey to Coach Marchand that they would not move their

cruisers until he agreed to a search. Nor were they asked to move

the cruisers.

It is true that in a case concerning an involuntary

seizure of a person, the Supreme Court used language that the

police offered the person "no choice." Kaupp v. Texas,

(2003). But the circumstances there were a far cry from

the choice Coach Marchand faced. In Kaupp an adolescent was

rousted out of bed in the middle of the night wearing nothing but

underwear, placed in handcuffs, and taken to a crime scene on his

way to be interviewed at law enforcement headquarters. His

statement of "Okay" in response to "we need to go and talk" was

clearly not consent. See

. Nothing of that sort

happened here, nor would a reasonable officer have thought it did.

On the plaintiffs' version of the facts, we cannot say

that all officers of reasonable competence would have concluded

that Coach Marchand's consent to the search was invalid. It is not

enough that Coach Marchand described his consent to the search as

coerced; coercion has a specific legal meaning. Even if Coach

Marchand felt his consent was coerced within that specific legal

meaning, this would not be sufficient to overcome the officers'

assertion of qualified immunity. While a jury might find that

Coach Marchand subjectively believed his consent was coerced, that

is not the issue here; we must look to the view of the reasonable

-26- officer. See Barton v. Clancy,

(1st Cir. 2011).

Like Coach Marchand, the police officers faced a tough decision in

a difficult situation. Whether the officers made the correct

decision is not the point.

C. Equal Protection and State Racial Discrimination Claims

The players argue that they have raised material facts

showing that the officers' actions were impermissibly motivated by

race in violation of the Equal Protection Clause and Rhode Island

state laws. There are disputes over whether the legal contours of

the rights in question would have been clear to a reasonable

officer and over whether a reasonable officer would have perceived

a violation of recognized rights under the factual circumstances

present in this case. We begin with the rights in question and

then assess the factual circumstances.

Our analysis under the Equal Protection Clause looks to

"(1) whether the appellant was treated differently than others

similarly situated, and (2) whether such difference was based on an

impermissible consideration, such as race." Macone v. Town of

Wakefield,

(1st Cir. 2002). A plaintiff must show

that the defendant "selected or reaffirmed a particular course of

action at least in part because of, not merely in spite of, its

adverse effects" upon a protected group. In re Subpoena to Witzel,

(1st Cir. 2008) (quoting Wayte v. United States,

(1985)) (internal quotation marks omitted). Such

-27- intent may be "inferred from the totality of the relevant facts."

Donahue v. City of Boston,

(1st Cir. 2004) (quoting

Washington v. Davis,

(1976)).

The players assert that this analysis forbids official

actions that "effectuate the known discriminatory intention of

others." Citing United States v. Yonkers Bd. of Educ.,

(2d Cir. 1987), they argue that a police search that works to

effectuate such discriminatory intentions voiced by a crowd

violates the Equal Protection Clause. See id. at 1226. We read

that decision more narrowly; in any event, it is insufficient to

make plaintiffs' proposition into clearly established law. The

players do not cite any cases from this court or the Supreme Court

finding a violation of the Equal Protection Clause in the absence

of purposeful discrimination on the part of the relevant officials.

Accordingly, we hold that the players have not shown that it is

clearly established that acts that effectuate the known

discriminatory intent of others, without more, violate the Equal

Protection Clause. See Davis,

; McGuire v.

Reilly,

(1st Cir. 2004).

Under our clearly established equal protection analysis,

the players have failed to demonstrate that all officers of

reasonable competence would have believed that the request for a

search of the players produced differential treatment. Given that

the public had access to the unlocked Coventry locker room, the

-28- players argue that the officers had no more reason to search them

than they had to search the crowd. Indeed, they argue that the

officers had even less reason to search the players because the

officers knew Coach Marchand had already searched them and a

security guard had accompanied them into the locker room. These

claims belie the undisputed fact that Coach Marchand identified the

players as the "prime suspects" in his discussion with the police.

Even if Coach Marchand merely intended to convey the crowd's

opinion, members of the crowd had not been accused of theft.

Even if we assume that the officers had no more reason to

search the players than the crowd, the players fail to produce

sufficient evidence of discriminatory intent to defeat qualified

immunity. This court has noted that discriminatory animus seldom

"wears its garb openly" and more often comes "masked" in "subtle

forms." Soto v. Flores,

, 1067 n.12 (quoting Aman v.

Cort Furniture Rental Corp.,

(3d Cir. 1996)).

Nonetheless, to survive summary judgment, the non-moving party must

make more than "conclusory allegations, improbable inferences, or

unsupported speculation." Pineda v. Toomey,

(1st

Cir. 2008). A non-moving party must "set forth specific facts

showing that there is a genuine issue for trial."

at 53-54

(quoting Anderson v. Liberty Lobby, Inc.,

(1986)).

-29- The players do not present such specific facts on the

issue of racial animus in this case. They point to the alleged

racial slurs made by the crowd and claim that the officers should

have ordered the crowd to disperse or move farther away from the

bus. They also claim that the officers sought to incite the crowd

by displaying some of the players' iPods and cell phones. But

testimony from both Coach Marchand and the players contradicts the

inference that racial animus motivated the officers. No officer

uttered a racial slur. It is uncontested that the officers acted

courteously and told members of the crowd to stop jeering at the

players. There is no evidence that all officers of reasonable

competence would have believed the search was undertaken because of

the national origin or race of the players.

Given this conclusion, the players also cannot defeat the

officers' qualified immunity defenses against their claims under

Rhode Island's Racial Profiling Prevention Act and Ethnic

Intimidation Statute. The Racial Profiling Prevention Act covers

"disparate treatment of an individual on the basis, in whole or in

part, of the racial or ethnic status of such individual," with an

exception not relevant here. R.I. Gen. Laws § 31-21.2-3. The

Ethnic Intimidation Statute covers behavior "which would reasonably

be construed as intended to harass or intimidate [a] person because

of his or her race." R.I. Gen. Laws § 9-1-35(a). For the reasons

-30- stated above, the players have not raised a genuine issue of

material fact that satisfies either of these standards.

III.

The record does demonstrate, regrettably, that the

players were subject to ethnic animosity from Coventry inhabitants.

Although the plaintiffs do not raise sufficiently material facts to

survive summary judgment, the Town and its voters may wish to take

steps to prevent recurrences of such behavior.

The judgment of the district court is affirmed.

-Opinion Dissenting in Part Follows-

-31- THOMPSON, Circuit Judge, (Dissenting in part). I agree

with my colleagues that a reasonable officer could have believed

that Coach Marchand had in loco parentis authority to consent to

the search of the players and that their equal protection claims

must fail. My colleagues and I part company, however, on the issue

of qualified immunity. Because I cannot subscribe to the

majority’s determination that the officers were entitled to

qualified immunity because they could reasonably have believed that

Coach Marchand voluntarily consented to the search of his students,

I respectfully dissent.

I.

The appellants, a team of young Hispanic soccer players

from Central Falls, Rhode Island were subjected to shockingly

disgraceful and humiliating conduct by the police and their fellow

citizens alike while visiting another high school in Coventry,

Rhode Island.5 After playing a tense game against Coventry’s team,

the Central Falls players were surrounded by a mob seething with

racial animosity and casting false accusations of theft. When the

police arrived and observed the crowd's obstruction of the bus,

they parked their cruisers in front of and behind the Central Falls

team’s bus, trapping them with their antagonists. Then, rather

than take any action to meaningfully investigate any accusations or

5 The record reflects that the Central Falls players were bi-lingual.

-32- pacify the crowd, which continued to simmer menacingly, the

officers questioned the Central Falls team and sought its coach’s

permission to search their belongings.

My colleagues think that a reasonable officer would be

unaware of the duress this state of affairs would inspire in the

team’s coach. In my view, however, the officers’ request of Coach

Marchand while he was surrounded by an angry mob and unable to

depart with his players left little room for choice. He was

subjected to coercion which, though subtler than a peremptory

command and more courteous than the irate mob, could hardly be

plainer. This coercion vitiated any consent he could give,

rendering the subsequent search unlawful.

The basic factual scenario is not largely disputed by the

parties and my colleagues and I recognize that all reasonable

inferences drawn from the facts are to be construed in the

plaintiffs' favor.6 Maj. Op. at 3. The officers invoked qualified

immunity as a defense to their actions. My colleagues set out the

relevant law, see Maj. Op. at 11-14, which I accept and reprise

briefly.

6 In their brief, the defendant officers note that if the case were to go to trial they would dispute both the number of spectators alleged to be watching the exchange as well as the plaintiffs' reference to the spectators as a "mob."

-33- II.

“Qualified immunity balances two important interests -

the need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan,

(2009).

To defeat the immunity, the players must show that (1)

the officers “violated [their] constitutionally protected right”

and (2) “the particular right . . . was clearly established at the

time of the violation.” Raiche v. Pietroski,

(1st

Cir. 2010). Further, “in applying the second prong, we must

consider two subsidiary issues: (a) the clarity of the law in

general at the time of the alleged violation; and (b) the clarity

of the law as applied to the case” - simply put, we ask “whether a

reasonable [officer] in the defendant’s shoes ‘would have

understood that his conduct violated the [players’] constitutional

rights.’”

at 35-36 (quoting Maldonado v. Fontanes,

(1st Cir. 2009)). In undertaking this inquiry, we do not

consider the defendants' subjective beliefs concerning the

unlawfulness of their conduct. See Philip v. Cronin,

(1st Cir. 2008). Instead, this inquiry is based on an objective

test - what a reasonable officer would have known.

Nonetheless, “[a] determination of objective reasonableness ‘will

-34- often require examination of the information possessed’ by the

defendant officials." Kelley v. LaForce,

(1st Cir.

2002) (quoting Anderson v. Creighton,

(1987)).

In granting qualified immunity to the officers, my

colleagues analyzed only the second prong of the test, as permitted

by Pearson. Maj. Op. at 12. Because I would deny qualified

immunity, however, I must address both aspects of the analysis.

A.

The first prong of the qualified immunity test asks

whether a violation of constitutional rights actually occurred.

Raiche,

. It has long been recognized that the

Fourth Amendment bars all warrantless searches “subject only to a

few specifically established . . . exceptions” such as the presence

of probable cause, exigent circumstances, or valid consent. See

Katz v. United States,

, 357 n.19, 358 n.22

(1967). Accordingly, absent such an exception to the warrant

requirement the officers' search of the Central Falls players was

improper and a clear violation of the players' constitutional right

to be free from warrantless searches.

The officers rely only upon Coach Marchand’s consent to

validate their search. Of course, the consent must have been

voluntarily given. Bumper v. North Carolina,

(1968). That is, it must not have been the product of “duress or

coercion,” Schneckloth v. Bustamonte,

(1973), or

-35- intimidation, Moran v. Burbine,

(1986), either

express or implied. See United States v. Vanvliet,

(1st Cir. 2008). Because, as discussed below, I believe

that a reasonable officer would have known that Coach Marchand's

consent to the search of his players was coerced, the first prong

of the qualified immunity test is easily satisfied: there was an

actual violation in the form of an unconstitutional search.

B.

The second prong of the qualified immunity inquiry asks

whether it was clear, both legally and factually, that the

officers’ search was non-consensual. Raiche,

. My

colleagues and I agree that it is clearly established under the

Fourth Amendment that voluntary consent is required to validate a

suspicionless, warrantless search and that "all officers of

reasonable competence would have known that coercion vitiates

consent to a search under the Fourth Amendment." Maj. Op. at 17.

We also agree that the presence of coercion is determined by an

open-ended test that considers “‘all the surrounding

circumstances,’ including ‘subtly coercive police questions’ and

‘the possibly vulnerable subjective state of the person who

consents.’” Maj. Op. at 19 (quoting Schneckloth,

).

Where we disagree is whether the facts of this particular case,

applied to that law, clearly make out a violation of the players’

Fourth Amendment rights. Ultimately, my colleagues "cannot say

-36- that all officers of reasonable competence," confronted with the

facts of this case, "would have concluded that Coach Marchand's

consent to the search was invalid." Maj. Op. at 26. On the

contrary, I believe that the players’ rights were violated, and

that a reasonable officer would have concluded that the search was

unconstitutional.

1.

In analyzing the second prong of the qualified immunity

test we must ask whether a reasonable officer in the defendants’

position would have known that Coach Marchand felt coerced into

consenting to the search. The central question, then, is how the

reasonable officer would have assessed the voluntariness of

Marchand’s consent.

As we have explained, “[v]oluntariness is a question of

fact that turns on [a] comprehensive assessment of the totality of

the circumstances attending the interaction between [the

individual] and the searching officers.” Vanvliet,

. Threats, intimidation, and coercion are all factors to

consider in analyzing the totality of the circumstances, but they

are not the only ones. See, e.g., United States v. Pérez-Montañez,

(1st Cir. 2000). Indeed, in considering the

totality of the circumstances, no single coercive element will

usually suffice to end the analysis. See Maj. Op. at 20 (citing W.

LaFave, Search and Seizure § 8.2(b), at 62 (4th ed. 2004)).

-37- Instead, we must look to the circumstances surrounding Marchand's

consent and determine whether they establish that a reasonable

officer could have concluded that he gave it voluntarily. See

United States v. Twomey,

(1st Cir. 1989)

(explaining that we must look to "all the circumstances surrounding

the securing of the consent" when determining the voluntariness

thereof).

Moreover, the determination of an individual’s

voluntariness in consenting to a search is a subjective, fact-

intensive endeavor that “turns not on whether a ‘reasonable’ person

in the [individual’s] position would have felt compelled to consent

to a police officer’s request to search, but, rather, on whether

the [individual] [him]self actually felt compelled to consent.”

United States v. Hall,

(D.C. Cir. 1992); accord

Schneckloth,

; Twomey,

. Consent is

coerced when an individual's "will ha[s] been overborne and his

capacity for self-determination critically impaired" to the point

that he does not face an "essentially free and unconstrained

choice." United States v. Watson,

(1976)(internal quotation marks omitted).

Throughout this inquiry, we must recall that on summary

judgment, when assessing the factual circumstances in which an

individual consented to a search and the possible assumptions a

reasonable officer might have made about the corresponding

-38- voluntariness, “we are required to draw every reasonable inference

in favor of the nonmoving party” – here the Central Falls players.

Dennis v. Osram Sylvania, Inc.,

(1st Cir. 2008);

see also Vera v. McHugh,

, 27 n. 11 (1st Cir. 2010)

(recalling "our duty to take the facts in the light most favorable

to the nonmoving party on summary judgment"). This is a tough

case, but in my view the balance tips against qualified immunity.

2.

Having set out the relevant law, I turn now to the

factual analysis.

The majority justifies its determination that Marchand’s

consent was valid in large part based on United States v. Drayton,

(2002). In Drayton, three police officers boarded a

bus as part of a routine drug and weapons interdiction. One

officer was at the front of the bus, facing the rear, and another

officer was at the rear of the bus, facing forward. The third

officer walked down the bus aisle from the back to the front,

stopping to speak with passengers along the way. Neither the aisle

nor the front exit was ever blocked. Passengers who declined to

speak with the officer or who chose to exit the bus were allowed to

do so. As the officer approached Drayton's seat, he showed his

badge and stated that his purpose on the bus was to look for drugs

and guns. The officer asked if Drayton and his companion, Brown,

had any bags. They answered affirmatively, so the officer asked

-39- for permission to search the bags. Brown agreed and no contraband

was found. The officer then asked if he could conduct a patdown of

Brown. He agreed and was arrested after the patdown revealed

contraband. The same is true of Drayton. A further search

revealed that both individuals had cocaine taped between their

shorts. Drayton and Brown were charged with federal drug crimes

and moved to suppress the cocaine on the ground that their consent

to the patdown search was invalid. The Supreme Court held that the

defendants’ consent was not a product of coercion because, among

other reasons, there had been "no threat, no command, [and] not

even an authoritative tone of voice."

.

Relying on Drayton, my colleagues place great stock in

the politeness with which the officers interacted with Coach

Marchand and the students.7 Without a doubt, had the officers

commanded Marchand to submit, or acted in a threatening,

domineering, boorish, or otherwise inappropriate way, this case

would be easier. But the fact that the officers were polite,

particularly given all else that was occurring at the highly

charged scene, does not establish that Marchand was not coerced.

The Supreme Court has explained that subtle and polite coercion is

7 Though I would hardly describe the decision to conduct an invasive search of the players in front of a hostile, jeering, photo-taking crowd as “polite,” the players do not appear to challenge this characterization.

-40- just as objectionable as more obvious browbeating. Schneckloth,

.

Furthermore, we have admonished courts to “go beyond

appearances and inquire whether the consent was a voluntary,

intentional and understood waiver of a known right, or, on the

contrary, was the product of deceit, duress and coercion, actual or

implicit." United States v. Berkowitz,

(1st Cir.

1970)(internal quotation marks omitted). The "beyond appearances"

inquiry is particularly important here: though the police may have

been polite and refrained from issuing commands in an authoritative

tone of voice, they nonetheless blocked the bus in, leaving the

players no way out, essentially "appeas[ing] the masses" who were

"crying for [the players'] heads.” Maj. Op. at 6 (internal

quotation marks omitted); see also infra at 12-15. Ultimately, the

officers’ demeanor can be but one factor in our analysis, and

certainly “not the only one.” Florida v. Bostick,

(1991).

Similarly, although the majority is correct that the

officers’ failure to notify Marchand that he could refuse to

consent is not dispositive, Maj. Op. at 20, it is yet one more

factor of the many in this narrative that, taken together, militate

against qualified immunity in this case. See Schneckloth,

(“[T]he failure of the police to advise the accused of his

rights [is] certainly [a] factor[] to be evaluated in assessing the

-41- ‘voluntariness’ of [his] [consent] . . . .”); see also Drayton,

(quoting Bostick,

)(explaining that one

factor "particularly worth noting" when considering whether consent

to search was coerced was that the officer had advised the

passenger of his right to refuse to consent).

Like the issue of politeness and failure to warn an

individual of his right to refuse consent, police custody is yet

another factor worthy of consideration. Watson,

.

True, "custody alone has never been enough in itself to demonstrate

. . . coerced . . . consent to search,"

, but we

have previously observed that "sensitivity to the heightened

possibility of coercion is appropriate when a[n] [individual's]

consent is obtained during custody," United States v. Barnett,

(1st Cir. 1993).

There is no question that Marchand was in police custody

at the time he consented to the search.8 The officers parked their

cruisers in front of and behind the players’ bus, preventing them

from leaving. This alone distinguishes our case from Drayton,

which involved “no blocking of exits.” 536 U.S. at 204. In

Drayton, even though there was an officer at the front of the bus,

"he said nothing to suggest that people could not exit and . . .

8 There is no need to determine whether Marchand was in legal custody. By "custody" I refer only to the factual scenario by which the bus was blocked in by police cruisers, effectively blocking any means of exit for the plaintiffs.

-42- left the aisle clear." Id. at 205. This is significantly

different from the facts of the present case where the players' bus

was completely boxed in by patrol cars. Surely, no reasonable

officer could have believed that the plaintiffs felt free to leave.

Of course, it may be true that the officers trapped the

players with the crowd before they were aware of the nature of the

controversy and of the danger, fear, and concomitant coercion they

would cause by doing so. See Maj. Op. at 25. But this is beside

the point: at the time the officers sought Marchand's permission to

search the players a reasonable officer would certainly have been

aware, at that crucial moment, that the positioning of their

cruisers left the players with no way out. Cf. Terry v. Ohio,

(1968) (explaining in analogous context that in

evaluating the reasonableness of a search or seizure, courts look

to the state of the facts "at the moment of the seizure or the

search"). Regardless, Marchand’s fearful inquiry of the officers

in response to their request for consent (“[w]hat [is the crowd]

going to do to us?”) should have made apparent the fear elicited in

him by being blocked in with the crowd.

The majority states that "[t]he officers could have

reasonably thought that they made clear [to Coach Marchand] that

they would prevent the crowd from harming [his] players . . . ."

Maj. Op. at 25. This conclusion is incredible - particularly in

light of the fact that the officers never responded to Marchand's

-43- initial inquiry regarding the crowd's behavior. In addition, there

were only four officers on the scene, yet they were responsible for

controlling an angry, boisterous, irrational crowd of approximately

fifty to sixty people. With a mere six to ten feet buffer between

the hostile crowd and the players, I cannot fathom how any

reasonable officer would think that the defendants made clear to

Coach Marchand that he and his players would go unharmed. The

majority points out that "the officers did not convey to Coach

Marchand that they would not move their cruisers until he agreed to

a search" and that the officers “were [not] . . . asked to move the

cruisers." Maj. Op. at 26. That may very well be the case, but

so too is the converse - the officers never offered nor took any

action to move their cruisers on their own before soliciting Coach

Marchand's permission.

Nevertheless, Marchand's fearful inquiry shows that he

felt threatened and intimidated by the crowd. That Marchand did

not translate his fear and intimidation of the crowd into a

particularized request - for example, by asking the officers to

move their cruisers or asking if there were any other options other

than consenting to a search of his players - does not eliminate

this factor from consideration. As the Supreme Court has

explained, “the crucial test is whether, taking into account all of

the circumstances surrounding the encounter, the police conduct

would have communicated to a reasonable person that he was not at

-44- liberty to ignore the police presence and go about his business.”

Bostick,

(emphasis added)(internal quotation marks

omitted). Any officer should have recognized that Coach Marchand

did not feel at liberty to leave.

The majority acknowledges that "the players' evidence

depicts a difficult situation in which Coach Marchand faced a

genuine choice between imperfect solutions," Maj. Op. at 23, but

nonetheless decides that "these circumstances do not establish . .

. that Coach Marchand's will had been overborne or that his

capacity for self-determination was critically impaired." Id. at

24. To support this conclusion the majority notes that Coach

Marchand testified at his deposition that he "'debated' telling the

officers to get a search warrant, but rejected that option," after

weighing his alternatives, Maj. Op. at 24, and ultimately

“concluded that his role as coach was to ensure first and foremost

that [his] players got home safely” Id. But Coach Marchand’s

thought process, and the actions he “debated” taking, are

completely irrelevant. Marchand's testimony was given after the

fact and was not communicated to any officer at the scene of the

incident. The hypothetical reasonable officer cannot read minds;

therefore, in analyzing whether such an officer would have known

that Coach Marchand's consent was coerced, it is simply common

sense that only facts actually communicated to or observed by the

officer are relevant.

-45- My colleagues are apparently of two minds on this issue:

though they initially rely on Marchand’s uncorroborated description

of his internal thought process in an effort to negate the coercion

he suffered, they later recognize that his subjective, unexpressed

thoughts and feelings are irrelevant when dismissing Marchand’s

testimony that he felt coerced into consenting. see Maj. Op. at 26

("It is not enough that Coach Marchand described his consent to the

search as coerced; . . . [w]hile a jury might find that Coach

Marchand subjectively believed his consent was coerced that is not

the issue here; we must look to the view of the reasonable

officer."). As I have previously discussed, Marchand's objective

manifestations of coercion were amply supported by evidence

available to the officers. In analyzing the coercive atmosphere

under which Marchand gave his consent, I would consider only those

facts available to a reasonable officer at the time of the search.

If more were needed, and I doubt that there is, the

officers exacerbated the situation by “ma[king] little to no effort

to quell or disperse the crowd, even as [it] verbally assailed the

players[,] shouting racist epithets and accusations of theft.”

Lopera v. Town of Coventry,

(D.R.I. 2009).

With the possibly violent assembly looming, the officers questioned

Marchand. Taking the crowd’s word over Marchand’s, they elected to

pursue a search of the Central Falls students before adequately

-46- calming the mob or even ascertaining what, if anything, had

actually been stolen.

My colleagues, in further reliance on Drayton, note that

there was no testimony that the request to search was made in “an

authoritative tone of voice.” Maj. Op. at 23 (internal quotation

marks omitted). But tone of voice cannot be dispositive of the

coercion inquiry. Al Capone said you can get more with a kind word

and a gun than with just a kind word; a mob can be just as

“convincing” as a gun.

The officers knew that Marchand felt threatened by the

crowd. They knew he had already capitulated to the intense

coercion and intimidation exerted by the mob, delaying his team’s

departure for about a half-hour to engage in a search that he knew

beforehand would be futile in order to satisfy the crowd’s demands.

Still, the officers did practically nothing to assuage that fear or

mitigate the coercion, and indeed kept the players’ bus trapped

with the crowd for more than ten minutes before capitalizing on

Marchand’s weakened state to elicit consent for a duplicative

search. Without a doubt, such behavior is contrary to the general

recognition that police officers have a duty to protect the public

and public safety. See, e.g., Bordanaro v. McLeod,

(1st Cir. 1989)(referencing district court's assertion in

excessive force case that "the primary duty of the police

-47- departments and policemen is to protect and preserve life and

property and the public peace")(emphasis added).

It is inappropriate to create an artificial dichotomy

between the coercion applied by the officers and that applied by

the crowd they failed to adequately control, and then to omit the

latter from consideration. To do so subverts the totality-of-the-

circumstances analysis that is required of us. Even the majority

recognizes this. In rejecting the officers' argument that

coercion, in the context of Fourth Amendment analysis, must

“‘emanat[e] from the police officers themselves rather than any

subjective or outside influence,’" the majority noted that clearly

established law requires consideration of "all the surrounding

circumstances." Maj. Op. at 17-18 (citing Schneckloth,

, and concluding that Colorado v. Connelly

(1986),

which held that "coercive police activity is a necessary predicate

to the finding that a confession is not 'voluntary' within the

meaning of the Due Process Clause,”

, does not extend to

Fourth Amendment consent cases).

A reasonable officer in the defendants’ position would

have known that Marchand, who expressed fear of the crowd, was

under a significant amount of duress. This duress was caused both

by the raucous mob hurling menacing accusations, threats, and

racial epithets and the officers themselves, who blocked Marchand’s

team in with the crowd, failed to take adequate measures to calm or

-48- disperse it, and immediately took its side against Marchand upon

arriving, despite lacking any reasoned basis for doing so. Given

the officers’ exchange with Marchand, they knew or at least should

have objectively known, that he felt constrained by their failure

to disperse the crowd or allow the bus to leave and that he feared

the racial animus in the crowd aimed at his players. On these

facts, a reasonable officer would have known that Marchand believed

he had no option for getting his students home safely but to

consent to their demand for a search. Moreover, a reasonable

officer would conclude that Marchand’s responsibility for the

safety of his charges and his increasing tardiness in getting them

home would make him particularly vulnerable to this type of

coercion.

III.

I am gravely concerned that our case law is treading

terribly close to creating "an impenetrable defense for government

officals" and a "significant risk that qualified immunity will

always attach.” Savard v. Rhode Island,

(1st Cir.

2003)(equally divided en banc court)(opinion of Bownes, J.). The

Fourth Amendment is one of our most precious constitutional rights.

We should not so comfortably defer to the judgment of government

officials at the cost of eviscerating such a fundamental right of

our citizens - a right this nation has declared deserves the

highest protection. Indeed, our task in undertaking a qualified

-49- immunity inquiry requires the contrary. It is after all "an

attempt to balance competing values: not only the importance of a

damages remedy to protect the rights of citizens, but also ‘the

need to protect officials who are required to exercise their

discretion and the related public interest in encouraging the

vigorous exercise of official authority.’" Harlow v. Fitzgerald,

(1982)(quoting Butz v. Economou,

(1978))(citation omitted).

With these concerns in mind and taking, as I must, every

inference available in the record in favor of the plaintiffs, I

cannot say that a reasonable officer in the defendants’ position

could have concluded that Marchand voluntarily consented to the

search. The Central Falls team’s rights were violated; the

violation was clear; and a reasonable officer should have

recognized it. I would vacate the district court's entry of

summary judgment and remand for resolution of the factual disputes

upon which the officers’ claim of qualified immunity turns.

-50-