2004 | Cited 0 times | D. New Hampshire | January 23, 2004


Richard and Maria Johnson and their son, Andrew, have sued NewmarketPolice Chief Rodney C. Collins and the Town of Newmarket under42 U.S.C. § 1983 and various state laws. The Johnsons claim thatCollins improperly obtained and executed a warrant to seize AndrewJohnson's computers, arrested Johnson without probable cause forallegedly making a bomb threat and defamed him and his parents byconducting a "public campaign" of false accusations that led to Johnson'sexpulsion from school. The defendants seek summary judgment.


A. The Search

On September 24, 2001, Collins received a tip from Fremont PoliceChief, Neal Janvrin, that Johnson and another student, Dan Gray, hadbragged about using Johnson's computer to "hack" into classified filesmaintained by the Federal Bureau of Investigation ("FBI"). Collins usedJanvrin's information to obtain a warrant to seize Johnson's computer.

The affidavit that Collins submitted with his warrant applicationstates that Janvrin obtained his information from an unnamed informant.The informant told Janvrin that Johnson had bragged about viewingconfidential "FBI profiles" and that he and a friend, Dan Gray, hadgained access to the profiles by using Johnson's computer to "hack" intoFBI files. The informant claimed that Johnson had used a Macintoshcomputer and had drilled a hole in the floor of his bedroom so that hecould gain access to a telephone line. The informant also gave streetaddresses for Johnson and Gray and claimed that Johnson's father was amember of the Newmarket School Board. Janvrin told CollinsPage 3that the informant was "a very `reliable and credible person' whohe is personally familiar with." (Defs.' Mem. Supp. Summ. J. Ex. D). Healso claimed that the informant had "no ax to grind." (Id.)

Collins determined that the informant had provided correct streetaddresses for Johnson and Gray and had correctly claimed that Johnson'sfather was a member of the Newmarket school board. Collins also verifiedthrough a Newmarket school official that Johnson was "extremelyintelligent and computer literate." (Id.)

Collins executed the search warrant on September 25, 2001. Threecomputers and several computer-related items were seized. The seizeditems were examined by the FBI but no charges were brought againstJohnson for hacking into FBI files.

B. The Bomb Threat

On February 7, 2002, a bomb threat was found by a teacher at theNewmarket Junior-Senior High School where Andrew was then a student.Although the police received an anonymous letter suggesting that Johnsonwas somehow involved, he was not interviewed by the police.Page 4

School officials discovered a second bomb threat on the morning ofMarch 8, 2003. The threat, written on a science room chalkboard, read,"This one's for real. There is a bomb that will explode between 9:00 a.m.and 1:00 p.m. Have a nice life." (Defs.' Mem. Supp. Summ. J. Ex. K). Theroom where the threat was found had been vandalized. Several computer andtelevision wires had been cut, the fire alarm had been destroyed, and theteacher call-box had been pulled off the wall.

Joe Flaherty, a teacher, told a Newmarket police officer that he hadseen Johnson wandering the hallways twice in the late afternoon of March7, 2002. The school principal, Deborah Brooks, also stated that she hadseen Johnson leave the school that day around 4:30 p.m. Sean Alperin, astudent, stated that he had observed Johnson and Gray near the scienceroom after school on March 7, 2002. Alperin told police that when heasked them what they were doing, Gray stated, "we did something prettyfunny but we won't say because we could get into trouble." (Id.) Graytold police that Johnson had gone into the science room around 3:15 p.m.and told him to make sure no one came in. Gray stated that he hadobserved Johnson cut some computer wires withPage 5scissors and then write something on the chalkboard. Gray furtherstated that he could not see what Johnson had written but he did observeJohnson walk away from the chalkboard wiping chalk dust off his hands.During a subsequent interview, Gray added that Johnson had admittedwriting the threat.

On March 14, 2002, the Newmarket police received an anonymous tip thatJohnson was involved in the March 7th bomb threat. That same day Collinsobtained Johnson's fingerprints by warrant. Five of six latentfingerprints taken from the chalkboard failed to match Johnson's prints;the sixth impression was inconclusive. Collins did not seek fingerprintimpressions from anyone else.

On April 28, 2002, Collins submitted a sworn affidavit seeking anarrest warrant for Johnson. The affidavit summarized the factssurrounding both bomb threats and the police interviews of Johnson,Gray, and Alperin, but did not include the results of the fingerprintanalysis. The judge issued the warrant and Johnson was arrested at schoolon April 29, 2002, for criminal mischief and for falsely reporting a bombthreat. Johnson was later convicted of vandalizing school equipment. ThecourtPage 6dismissed the charge involving the bomb threat.

C. The Expulsion

Johnson was suspended for 20 days following his arrest and on June 4,2002, the Newmarket School Board voted to expel Johnson for the balanceof the school year for "gross misconduct." (Pls.' Compl. ¶ 90). Afterthe charge involving the bomb threat was dismissed, Superintendent DenisJoy allowed Johnson to conditionally return to school on August 28, 2002.One condition was that Johnson would be expelled if he committed anyoffense calling for suspension from school. On October 4, 2002, Johnsonviolated a computer-use policy which called for a one-day suspension, andJoy summarily expelled Johnson from school.

On August 17, 2002, Johnson's parents asked the school board to reversethe June 4, 2002 expulsion order. Collins sent a rebuttal letter to Joy,in which he referred to Johnson as "a safety threat", "their lying son,Andrew" and "a calculating liar." (Defs.' Mem. Supp. Summ. J. Ex. F). InAugust and September 2002, Collins also gave interviews and wrote guestcolumns for local news publications. In these publications,Page 7Collins referred to Johnson (although not by name) as a safety threat tothe school, and publicly advocated against Johnson's reinstatement. TheJohnsons allege that Joy expelled Johnson based on a public campaign byCollins to defame them and to keep Johnson out of Newmarket Junior-SeniorHigh School.


Summary judgment is appropriate only "if the pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to judgment as amatter of law." Fed.R.Civ.P. 56(c). A trial is only necessary if there isa genuine factual issue "that properly can be resolved only by a finderof fact because [it] may reasonably be resolved in favor of eitherparty." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Amaterial fact is one that affects the outcome of the suit. See id. at248.

In ruling on a motion for summary judgment, I must construe theevidence in the light most favorable to the non-movant. SeePage 8Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001). The partymoving for summary judgment, however, "bears the initial responsibilityof informing the district court of the basis for its motion, andidentifying those portions of [the record] which it believes demonstratethe absence of a genuine issue of material fact." Celotex Corp. v.Catrett, 477 U.S. 317, 323 (1986). Once the moving party has properlysupported its motion, the burden shifts to the non-moving party to"produce evidence on which a reasonable finder of fact, under theappropriate proof burden, could base a verdict for it; if that partycannot produce such evidence, the motion must be granted." Ayala-Gerenav. Bristol Myers-Squibb Co., 95 F.3d 86, 94 (1st Cir. 1996) (citationomitted). Neither conclusory allegations, improbable inferences, orunsupported speculation are sufficient to defeat summary judgment. SeeCarroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir. 2002).


A. Federal Claims — Collins

1. The qualified immunity standard

Collins claims that he is entitled to qualified immunityPage 9with respect to plaintiffs' federal claims.

"The doctrine of qualified immunity protects `government officialsperforming discretionary functions . . . from liability for civil damagesinsofar as their conduct does not violate clearly established statutoryor constitutional rights of which a reasonable person would have known.'"Mutter v. Town of Salem, 945 F. Supp. 402, 405 (D.N.H. 1996) (quotingHarlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A two-part inquiry isused to determine whether an officer is entitled to qualified immunity.First, I consider whether the facts alleged, taken in the light mostfavorable to the party asserting the injury, demonstrate that theofficer's conduct violated a constitutional right. Santana v. Calderon,342 F.3d 18, 23 (1st Cir. 2003) (quoting Saucier v. Katz, 533 U.S. 194,201 (2001)). If a constitutional violation is established, I thendetermine whether "the contours of this right are `clearly established'under then-existing law so that a reasonable officer would have knownthat his conduct was unlawful." Id. (quoting Dwan v. City of Boston,329 F.3d 275, 279 (1st Cir. 2003). If the law would not have put areasonable officer on notice that his or her conduct wasPage 10unlawful, summary judgment based upon qualified immunity is appropriate.See Kelley v. Laforce, 288 F.3d 1, 6 (1st Cir. 2002); See also Malley v.Briggs, 475 U.S. 335, 341 (1986) (qualified immunity protects "all butthe plainly incompetent or those who knowingly violate the law").

2. Search Warrant Claim

The Johnsons contend that the warrant Collins obtained to seizeJohnson's computer was not supported by probable cause. They furtherarque that Collins is not entitled to qualified immunity with respect tothis claim because a reasonable police officer in Collins's positionwould have understood that the warrant had been improperly issued.

When rulinq on the sufficiency of a search warrant application, thecourt must consider the "totality of the circumstances" described in thesupporting affidavit. United States v. Beckett, 321 F.3d 26, 31 (1stCir. 2003). Deference should be given to reasonable inferences that theissuing judge could have drawn from the affidavit. See id. Among thefactors that a reviewing court will consider in determining whetherinformation supplied by an unnamed informant is sufficient toPage 11support a probable cause determination are: [w]hether an affidavit supports the probable veracity or basis of knowledge of persons supplying hearsay information; whether informant statements are self-authenticating; whether some or all of the informant's factual statements were corroborated wherever reasonable and practicable . . .; and whether a law enforcement affiant included a professional assessment of the probable significance of the facts related by the informant based on experience or expertise.United States v. Barnard, 299 F.3d 90, 93 (1st Cir. 2002) (quoting UnitedStates v. Khounsavanh, 113 F.3d 279, 284 (1st Cir. 1997)).

Collins relied primarily on information supplied by Janvrin's informantto support the issuance of the warrant. This reliance was misplaced,however, because the judge who issued the warrant could not determinefrom the application whether the informant's information was based onfirst-hand knowledge or mere rumor. This deficiency is fundamental andcannot be overcome by the other information on which Collins relied.

Although Collins cited Janvrin's opinion that the informant was highlyreliable, his affidavit fails to identify any evidence of pastreliability against which the opinion could be tested. As the FirstCircuit recently remarked in this regard, "[a] merePage 12assertion of reliability without any information regarding the basis forthe officer's belief, such as past tips leading to arrests, is entitledto only `slight weight.'" Barnard, 299 F.3d at 93 (citing toKhounsavanh, 113 F.3d at 286). Such unsubstantiated assertions ofreliability are even less useful in a case like this where theapplication does not explain how the informant acquired her information.

Collins's attempt to corroborate the informant's claims also fails tobolster the informant's reliability because he was only able tocorroborate innocent details. See Khounsavanh, 113 F.3d at 284(corroboration of innocent details "do not demonstrate that the informanthas a legitimate basis for knowing about the defendant's allegedlycriminal activity"). Since the application fails to point to any otherevidence to support Collins's claim that Johnson's computers containedevidence of illegal activity, it failed to establish probable cause tojustify the issuance of the warrant.

The Johnsons cannot prevail, however, merely by establishing that thewarrant was not supported by probable cause. Under well-establishedprecedent, Collins will be entitled to immunityPage 13unless "the warrant application is so lacking in indicia of probablecause as to render official belief in its existence unreasonable."Rodrigues v. Furtado, 950 F.2d 805, 812 (1st Cir. 1991) (citing Malleyv. Briggs, 475 U.S. 335, 341 (1986)).

The Johnsons cannot meet this difficult standard because the affidavitcontains enough incriminating information to permit a reasonable policeofficer to mistakenly conclude that the issuing judge acted properly inissuing the warrant. While I have determined that Janvrin's opinionsconcerning the informant's reliability and Collins's successfulcorroboration of several of the informant's assertions were notsufficient to establish the informant's reliability, I cannot say that areasonable officer necessarily would have identified these deficiencies.When an impartial judge decides that a warrant application is supportedby probable cause, and the affidavit submitted with the applicationalleges facts that provide a plausible basis for the issuance of thewarrant, an officer who mistakenly relies on the issuing judge's probablecause determination cannot be held personally liable for executing adefective warrant. This is the case here.Page 14

3. Unlawful Arrest Claim

The Johnsons argue that Collins is liable for Johnson's illegal arreston the bomb threat charge because he failed to inform the judge whoissued the arrest warrant that fingerprint impressions taken from thechalkboard on which the bomb threat had been written did not matchJohnson's fingerprints. When a police officer leaves relevant materialout of an affidavit in support of an arrest warrant, the court mustdetermine whether there remains "`sufficient content in the warrantaffidavit to support a finding of probable cause.'" Mutter v. Town ofSalem, 945 F. Supp. 402, 407 (D.N.H. 1996) (quoting Franks v. Delaware,438 U.S. 154, 171-72 (1978)).

Although Collins should have referenced the fingerprint report in hisapplication for the arrest warrant, his omission does not undermine theother evidence contained in the affidavit which was more than sufficientto support a finding of probable cause. See Mutter, 945 F. Supp. at 407.In seeking an arrest warrant, Collins relied on (1) the anonymous letterindicating that Johnson had been involved in the February 7th bombthreat; (2) statements of a teacher, the principal, and two studentsthatPage 15Johnson had been near the room where the March 7th threat was found; (3)an anonymous tip indicating that Johnson had been involved in the secondbomb threat; and (4) Gray's statements that he had observed Johnson inthe science room on March 7, 2002 cutting several computer and televisonwires with scissors, that he had observed Johnson pick up a piece ofchalk and write something on the board and then walk away from theboard, wiping chalk dust off his hands, and that Johnson had admittedwriting the bomb threat.

Even if Collins had provided the results of the fingerprint analysis tothe issuing judge, the facts stated above would have created sufficientprobable cause to support the arrest warrant. Because the arrest warrantwas supported by probable cause, Collins did not violate Johnson'sconstitutional rights by arresting him on the bomb threat charge. Collinsis therefore entitled to qualified immunity on the unlawful arrest claim.See Santana v. Calderon, 342 F.3d 18, 23 (1st Cir. 2003).

4. Constitutional Defamation Claim

The Johnsons claim that Collins violated their rights under the Fifthand Fourteenth Amendments by embarking on a publicPage 16campaign to malign the Johnson family and prevent Johnson from attendingschool. I understand them to be asserting a constitutional claim fordefamation.

The United States Supreme Court has held that a government official'sdefamatory statements are not sufficient, standing alone, to support aconstitutional claim. See Paul v. Davis, 424 U.S. 693, 701-02 (1976). Inresponse, the lower federal courts have developed a "stigma plus" test toevaluate such claims. See, e.g., Hawkins v. R.I. Lottery Comm'n,238 F.3d 112, 115 (1st Cir. 2001). Under this test, the defamation mustbe coupled with the loss of an important benefit such as governmentemployment. See id. Moreover, to be liable on a stigma plus claim, thedefendant must be responsible for both the defamation and loss of thegovernment benefit. See id. at 116 (rejecting claim against governorbecause he did not participate in employment termination decision).Johnson cannot satisfy this requirement because Collins did notparticipate in the school board's decision to expel Johnson. Accordingly,Collins is entitled to qualified immunity with respect to theconstitutional defamation claim.Page 17

B. Federal Claims — Newmarket

The Johnsons seek to hold Newmarket liable for Johnson's allegedlyunconstitutional conduct.

In order to state a § 1983 claim against a municipality or amunicipal subdivision, a plaintiff must allege that: (1) a municipalpolicymaker intentionally adopted a policy, implemented a trainingprotocol, or allowed a custom to develop; (2) the challenged policy,training protocol or custom caused a violation of the plaintiff'sconstitutional rights; and (3) the policymaker acted either withdeliberate indifference or willful blindness to the strong likelihoodthat unconstitutional conduct will result from the implementation of thepolicy, training protocol or custom. City of Canton v. Harris, 489 U.S. 378,385 (1989); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1stCir. 1994); Manarite v. Springfield, 957 F.2d 953, 958 (1st Cir. 1992).

I have determined that Collins did not violate Johnson's constitutionalrights when he arrested him on the bomb threat charge and when heallegedly defamed him. Accordingly, plaintiffs' attempts to holdNewmarket liable for the samePage 18alleged misconduct necessarily fail. See Evans v. Avery, 100 F.3d 1033,1040 (1st Cir. 1996). This leaves only plaintiffs' claim that Newmarketis liable for Collins' illegal seizure of Johnson's computers.

In certain circumstances, a municipality may be subject to liabilityfor a single unconstitutional act by a municipal policymaker. SeeKelley, 288 F.3d at 9. The municipality will be liable, however, onlywhen the "decisionmaker possesses final authority to establish municipalpolicy with respect to the action. . . ." Id. (quoting Pembaur v. City ofCincinnati, 475 U.S. 469, 481 (1986) (plurality opinion). Collins hasadmitted that he is a municipal policymaker with respect to all lawenforcement issues, including decisions to apply for and execute searchwarrants, and it does not appear that Newmarket can credibly dispute thispoint. Thus, it is not entitled to summary judgment with respect toplaintiffs' claim challenging the seizure of Johnson's computers because Ihave determined that the seizure was unlawful.

C. State Law Claims

The Johnsons assert a variety of state law claims that arePage 19unrelated to the only federal claim that remains viable. Because theparties are not diverse, I have jurisdiction over the state law claimsonly to the extent that they are supplemental to the remaining federalclaim. See 28 U.S.C. § 1367. Because it appears that the state lawclaims "substantially predominate[] over the claim or claims over whichthe district court has original jurisdiction," 28 U.S.C. § 1367(c)(2), I propose to sever the state law claims and dismiss them withoutprejudice so that the Johnsons can litigate them in state court.


I grant defendants' motion for summary judgment with respect to: (1)plaintiffs' federal claims against Collins in his individual capacity;and (2) plaintiffs' federal claims against Newmarket for Johnson's arrestand Collins's alleged campaign of defamation. I deny the motion withrespect to plaintiffs' claim against Newmarket based on the illegalseizure of Johnson's computers. I propose to deny defendants' motion forsummary judgment with respect to plaintiffs' state law claims and dismissthose claims without prejudice to both plaintiffs' right toPage 20litigate them and defendants' right to challenge them in state court. Anyparty objecting to the proposed disposition of plaintiffs' state lawclaims shall file an objection and a supporting memorandum on or beforeFebruary 6, 2004.


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