298 F.Supp.2d 192 (2004) | Cited 0 times | D. Massachusetts | January 7, 2004



There is a derisive ditty going around the courthouse as this opinionis being written. Set to the music of "Happy Together" by The Turtles, inrelevant part it goes: Imagine me as God. I do. I think about it day and night. It feels so right To be a federal district judge and know that I'm Appointed forever. I was anointed by the President, And revelation told him I was heaven-sent. And Congress in their wisdom granted their consent. Appointed forever.

I'm a federal judge And I'm smarter than you For all my life. I can do whatever I want to do For all my life.Page 2

* * * *

Even at the very worst, If you take me up to get reversed, You'll have to get the circuit court to hear you first, And that takes forever.Bar & Grill Singers, Appointed Forever, on Licensed To Grill (1997),lyrics available at 16(last visited January 6, 2003).1

The reality is more prosaic, yet far more enduring.

[L]awyers who become judges . . . seek to operate as if bound by rules not because they will be punished if they do not but because they believe it is the right thing for a judge to do. They begin to think about cases not from their intuition about the just outcome but from the dictates of authoritative sources of law. The question that judges ask is . . . "What is the law, and what does it mean for this case?" Those may be difficult questions in themselves, but they significantly narrow the ambit of admissible considerations. . . . [T]he orientation of judges to applying law does not do away with the problems inherent in that task. The process of interpreting legal authority and of applying it to new cases often requires highly contextual judgments respecting the nature of the principles embodied in governing law and the circumstances relevant to the application of a given principle. Legislators and constitution framers cannot foresee all relevant circumstances, nor can they specify with clarity all applications of the principles they adopt; they cannot, in other words, always fashion meaningful rules that fully give effect to the law framers' general design. Indeed, it would be wasteful to try.Ronald A. Cass, The Rule of Law in America 69, 72-73 (2001) (criticizingthe notion, advanced by legal scholars like DuncanPage 3Kennedy, that the question judges typically ask when confronted with acase for decision is: "How do I describe the law to make it fit mypreference respecting the outcome of this case?").

Of which genre is this case? Here, despite case-specific guidance fromthe court of appeals, I botched the instructions to the jury. Neitherside objected and, as it turns out, the error made no difference to thejury whatsoever. I know this latter fact, however, from sources I amduty-bound not to consider. What to do?


Following an adverse verdict on their civil rights claim, theplaintiff's — Mouna Kandy Suboh ("Suboh") suing individually, asadministratrix of the estate of Ishag Suboh, and as next friend of herminor daughter Sofia Kandy ("Sofia") — have moved for judgment asmatter of law, or alternatively, for a new trial on grounds that theverdict was against the weight of the evidence and that the juryinstructions were erroneous. The Court held a hearing on the plaintiff's'motion on April 8, 2003. At that hearing, the Court denied theplaintiff's' motion for judgment as matter of law, but took underadvisement the issue of error in the jury instructions. 4/8/03 Tr. at 2,11. More specifically, the Court acknowledged that the jury instructionswere indeed erroneous, but noted — with the acknowledgment of theplaintiff's' counsel — that no timely objection was made toPage 4those instructions. See id. at 2-3, 6. Thus, the question is now whetherthe error in the jury instructions rises to the level of plain errorwarranting a new trial. Id. at 3, 11. The Court further ruled that if itdid conclude that a new trial was warranted, qualified immunity would notprotect the defendant, Carl Borgioli ("Borgioli"). Id. at 10-11.

Upon reflection, the Court has concluded that there was plain error inthe jury instructions, and that a new trial is therefore warranted. Thefollowing discussion serves (1) to identify the nature of the error andto explain why, in this Court's view, it qualifies as plain error; and(2) to discuss the framework within which the new trial will beconducted, with particular reference to the Court's ruling that Borgioliis not entitled to qualified immunity.


A. Error in the Jury Instructions

1. Identification of the Error

In assessing the error in the Court's instructions to the jury, it ishelpful to begin with a brief review of the nature of Suboh's complaintand of the applicable law. The factual background of this case isdiscussed in great detail in Suboh v. District Attorney's Office of theSuffolk District, 298 F.3d 81 (1st Cir. 2002). As the First Circuitexplained in that opinion, Suboh's complaint most directly implicates theprocedural duePage 5process rights accorded to parents under the Due Process Clause of theFourteenth Amendment. Suboh, 298 F.3d at 91. Reduced to its essence,Suboh's claim is that Officer Borgioli of the Revere Police Departmentviolated her procedural due process rights when he separated her from herbiological daughter, Sofia, and placed Sofia in the custody of Suboh'sparents, Mustapha and Rahima Kandy ("the Kandys"), without ensuring thatSuboh would receive a pre-separation or post-separation hearing, despiteSuboh's statements to him that she was Sofia's biological mother andwanted custody. See id. at 87-88, 91. As the Suboh court put it, "[w]hatis at issue here is the right of a parent to procedural due processprotections before a governmental official resolves the disputed issue ofcustody of a child, when there are known competing claims to custody."Id. at 91.

The case law sets out the process that is due when a parent is beingdeprived of custody of her child: a pre-removal hearing, or, in emergencycircumstances, a post-removal hearing instead. As the Suboh courtstated:

Due process protects a parent's rights even when a state temporarily removes a child before obtaining a court order, as the state may place a child in temporary custody only when it has evidence giving rise to a suspicion that the child has been abused or is in imminent danger. Moreover, due process requires that some sort of process be provided promptly after an emergency removal. [I]n those extraordinary situations where deprivation of a protected interest is permitted without prior process, the constitutional requirements of notice and an opportunity to be heard are not eliminated, but merely postponed.Page 6

Suboh, 298 F.3d at 92 (alteration in original) (quoting Weller v. Dept.of Social Servs., 901 F.2d 387, 393 (4th Cir. 1990) (quoting Hooks v.Hooks, 771 F.2d 935, 942 (6th Cir. 1985) (quoting Duchesne v. Sugarman,566 F.2d 817, 825 (2d Cir. 1977)))) (internal quotation marks omitted).

Moreover, in cases where such an emergency removal occurs, courts haveheld that the burden is on the government to initiate a post-deprivationhearing to provide the parent with the process that is due, and to takethe necessary steps to ensure that such a hearing will be available. SeeWeller, 901 F.2d at 395-96 ("The burden of initiating judicial reviewmust be shouldered by the government. . . . Proof that defendantsdeprived [the plaintiff] of the custody of [his son] without a hearing— either prior to the transfer of custody or promptly after anemergency transfer of custody — would show a due processviolation, for which appropriate relief may be granted."); Hooks, 771F.2d at 942 (6th Cir. 1982) ("Here the children were turned over to [thedefendant father] by the Tennessee defendants allegedly with theknowledge that they would immediately be taken to Texas and thus out ofthe jurisdiction of Tennessee, effectively eliminating the opportunityfor [the plaintiff mother] to receive a post-deprivation hearing. TheTennessee defendants do not contend that they made any effort to requestor direct [the defendant father] to remain in Tennessee until aPage 7hearing could be held.") (emphasis added); Duchesne, 566 F.2d at 828 ("Inthis situation, the state cannot constitutionally `sit back and wait' forthe parent to institute judicial proceedings. It cannot . . .[adopt] foritself an attitude of `if you don't like it, sue.'" (alteration inoriginal) (internal citations and quotation marks omitted)).

In other words, the Fourteenth Amendment's Due Process Clause providesa blanket protection against the loss of parental custody without somesort of a hearing. If a parent receives no review whatsoever, herprocedural due process rights have, by definition, been violated. Thus,the inquiry is different from that implicated by substantive due processcases involving, say, excessive force, where if the force is deemed tohave been reasonable, no violation of the Fourth Amendment (asincorporated against the States through the Due Process Clause of theFourteenth Amendment) has occurred. The Fourth Amendment does not protectagainst the use of any force; it protects only against the use ofexcessive force. See, e.g., Gaudreault v. Municipality of Salem,923 F.2d 203, 205 (1st Cir. 1990). By contrast, the procedural aspect ofthe Due Process Clause has been interpreted to provide a blanketprotection against the loss of parental custody without some sort of ahearing. The question is thus not whether government can take aparticular action at all, but rather whether it can do so withoutproviding a hearingPage 8to an individual who might suffer a deprivation of liberty or property asa result.

At trial, the evidence was undisputed that (1) Suboh is Sofia'sbiological mother; (2) Suboh told Borgioli that she was Sofia'sbiological mother; (3) Suboh told Borgioli that she wanted custody ofSofia; (4) Borgioli decided to place Sofia in the custody of the Kandys;and (5) Borgioli did not make provisions for Suboh to have apre-separation or post-separation hearing (and none ever occurred). See2/26/03 Tr. at 20 (Borgioli's testimony that Suboh told him that she wasSofia's biological mother); 2/26/03 Tr. at 53 (Borgioli's testimony thatSuboh told him that she was trying to regain custody of Sofia); 2/25/03Tr. at 4-5 (Borgioli's testimony that he decided to release Sofia to theKandys without referring the matter to a judge or contacting theMassachusetts Department of Social Services); 2/26/03 Tr. at 53 and2/25/03 Tr. at 11 (Borgioli's testimony that he did not instruct or askthe Kandys to remain in the country, but merely communicated to them thatthey would have to return to the country to appear in court). Given thoseestablished facts, Suboh's procedural due process rights2 were,Page 9

[EDITORS NOTE: THIS PAGE IS BLANK.]Page 10by definition, violated.3 In the Court's instructions to thejury, however, the Court told the jury that, on the issue of whetherBorgioli violated Suboh's due process rights, the question was: "Would areasonable officer have concluded on the facts before him that the Kandyshad undisputed custody of SofiaPage 11despite Mrs. Suboh's claims and that no process of any sort was duebefore Sofia could be released to the Kandys?" 3/04/03 Tr. at 17. TheCourt explicitly charged the jury that Suboh bore the burden of proof asto this question, telling them that "[o]n each of the things that I'mgoing to tell you has to be proved, it's Mrs. Suboh that has to provethem." Id. at 11.

This charge, the Court now recognizes, was erroneous. Suboh did notbear the burden of showing that Borgioli's behavior toward her was notreasonable. That simply was not an element of her case. Reasonablenesswould only be relevant if the question were whether it was appropriate toprovide merely a post-deprivation hearing as opposed to a pre-deprivationhearing. When, as here, the claim is that a parent's procedural dueprocess rights were violated because she received no hearing whatsoever inregard to the loss of custody of her child, a showing of "lack ofreasonableness" is not required or even implicated.

That being said, "reasonableness" was not entirely out of the equationin this case. It still had a role — by means of qualified immunity— in determining whether Mouna could recover from Borgioli for hisviolation of her procedural due process rights. This, however, was aquestion for the Court — not the jury.Page 12

Pursuant to Harlow v. Fitzgerald, 457 U.S. 800 (1982), governmentofficials "are generally shielded from civil damages liability under theprinciple of qualified immunity so long as their actions do not violateclearly established statutory or constitutional rights of which areasonable person would have known." Kelley v. LaForce, 288 F.3d 1, 6(1st Cir. 2002) (quoting Harlow, 457 U.S. at 818) (internal quotationmarks omitted). Qualified immunity is an affirmative defense upon whichthe defendant bears the burden of proof, see, e.g., DiMarco-Zappa v.Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001) (citing Harlow, 457 U.S. at815, 818), and is a question of law for the Court, see, e.g., Suboh, 298F.3d at 90.

At the summary judgment stage, this Court ruled — and the FirstCircuit affirmed — that Borgioli was not entitled to summaryjudgment on qualified immunity grounds. Suboh, 298 F.3d at 96-97.Qualified immunity did not, however, completely fall out of the case oncethe First Circuit affirmed that it was not warranted on summaryjudgment. On the contrary, to the extent that there were still facts indispute that were arguably determinative as to whether a reasonableofficer would have believed (erroneously), like Borgioli, that no processof any sort was due to Suboh, Borgioli still had the affirmative defenseof qualified immunity available to him. See id. at 90.Page 13

Rather than putting the question of reasonableness directly to thejury, however, this Court instead should have asked the jury to resolveany remaining relevant factual disputes bearing on reasonableness, andthen ruled on the ultimate question of qualified immunity itself. See,e.g., Singh v. Blue Cross/Blue Shield of Massachusetts, 308 F.3d 25, 35n. 9 (1st Cir. 2002) ("Several courts have indicated that if factualdisputes underlie a qualified immunity determination, a judge may issue`special interrogatories to the jury as to the disputes of fact.' Thoughwe have not explicitly adopted this approach,. . . we have expressedapproval of it." (internal citations and quotation marks omitted));Kelley, 288 F.3d at 7 ("Although [w]e recognize that the immunityquestion should be resolved, where possible, in advance of trial,pre-trial resolution sometimes will be impossible because of a dispute asto material facts. In such a case, the factual issues must be decided bythe trier of fact, thereby precluding summary judgment. Only after thefacts have been settled can the court determine whether the actions wereobjectively reasonable so as to fall under the qualified immunityumbrella." (alteration in original) (footnote and citations omitted)(quoting Swain v. Spinney, 117 F.3d 1, 9-10 (1st Cir. 1997)) (internalquotation marks omitted)); St. Hilaire v. City of Laconia, 71 F.3d 20, 24n. 1 (1st Cir. 1995) ("The ultimate question of whether a reasonablepolice officer, on the basis ofPage 14information known to him, could have believed his actions were in accordwith constitutional rights is a question of law, subject to resolution bythe judge not the jury. But if there is a factual dispute, that factualdispute must be resolved by a fact finder." (quoting Prokey v. Watkins,942 F.2d 67, 82 (1st Cir. 1991)) (internal quotation marks omitted)).

As such, this Court's charge to the jury — essentially importinga reasonableness test into Suboh's burden of showing that her proceduraldue process rights were violated — was erroneous in two respects.The issue of reasonableness was relevant only to the question ofqualified immunity, a question of law for the Court (not the jury) onwhich Borgioli (not Suboh) bore the burden of proof.4

2. Was this plain error?

Suboh concedes that she failed to object to the charge, after it wasgiven, in regard to the above-described two related errors.5 Giventhe lack of a timely objection, this Court canPage 15only grant a new trial on account of the erroneous jury instructions ifthose instructions constituted plain error. See Wilson v. Mar. OverseasCorp., 150 F.3d 1, 6 (1st Cir. 1998) ("Thus, [s]ilence after instructions. . . typically constitutes a waiver of any objections. It must beemphasized that [i]t is an ironclad rule in this circuit that failure torenew objections after the charge constitutes waiver of any claim oferror. . . . The failure to preserve objections does not entirelypreclude our review. In such cases, however, we review only for plainerror." (alterations in original) (quoting Putnam Res. v. Pateman,958 F.2d 448, 456 (1st Cir. 1992), and United States v. Richardson,14 F.3d 666, 670-71 (1st Cir. 1994)) (citations and internal quotationmarks omitted)).

The requirements for plain error are that there be error, that it beplain or obvious, that it affected substantial rights (that is, that itaffected the outcome of the district court proceedings), and that theerror threaten a "miscarriage of justice" or something akin to it. See,e.g., Chestnut v. City of Lowell, 305 F.3d 18, 20 (1st Cir. 2002);Wilson, 150 F.3d at 6-7; cf. United States v. Olano, 507 U.S. 725, 732(1993) (describing this as the test for plain error under Federal Rule ofCriminal Procedure 52(b)). The First Circuit has stated that thisstandard should be applied particularly rigorously in the context offailures to object to jury instructions, given the statementPage 16in the Federal Rules of Civil Procedure that "[n]o party may assignas error the giving or the failure to give an instruction unless thatparty objects thereto before the jury retires to consider its verdict,stating distinctly the matter objected to and the grounds of theobjection." Fed.R.Civ.P. 51. As the First Circuit has put it, "Theplain error standard, high in any event, is near its zenith in theRule 51 milieu." Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1stCir. 1991) (citations omitted). Moreover, the First Circuit has statedthat "in this circuit, it is rare indeed for a panel to find plain errorin a civil case." Chestnut, 305 F.3d at 20.

Suboh has suggested that although the First Circuit's standard ofreview in such an instance would certainly be governed by plain error,this Court — as a district court — has greater discretion togrant a new trial. Pls.' Mem. at 19 [Docket No. 178]. There is one casethat somewhat supports this position by implication. See Chakrabarti v.Cohen, 31 F.3d 1, 5 (1st Cir. 1994) ("The [district] judge thought thatfairness required a fresh start on damages, and he noted that neitherside had properly advised him on the no-punitive damages rule. A newtrial on damages was arguably the right course and was certainly not anabuse of the trial court's broad discretion to order new trials."). Thevast bulk of the case law, however, suggests that the same rigorous plainerror standard applies to district courtsPage 17reviewing their own charges. See, e.g., Steinhilber v. McCarthy,26 F. Supp.2d 265, 278 (D. Mass. 1998) (Bowler. M.J.) (stating that theplain error standard applies in cases involving erroneous instructions towhich a party moving for a new trial did not properly object); see also,e.g., ID Sec. Sys. Canada, Inc. v. Checkpoint Svs., Inc.,249 F. Supp.2d 622, 669 (E.D. Pa. 2003) (stating that "a district courtalso must utilize plain error review when deciding whether to grant areversal or new trial based on objections untimely raised); Busch v.County of Volusia, 189 F.R.D. 687, 696 (M.D. Fla. 1999) (applying plainerror standard); DeWitt v. New York State Hous. Finance Agency, 1999 WL672560, at *1 (S.D.N.Y. 1999) (same).

Chakrabarti implies nothing to the contrary. First, the districtjudge's decision to award a new trial in that case was consistent withapplication of the plain error rule, and the appeals court can beunderstood as quickly determining that the district court had correctlyapplied that rule. In Chakrabarti, a jury had awarded the plaintiff $1 innominal damages and $30,000 in punitive damages on an interference withbusiness relations claim. 31 F.3d at 3. The plaintiff had providedevidence that the defendants had caused him emotional distress, and hesought relief both under an intentional infliction of emotional distressclaim and as "tack-on" damages in his interference with businessrelations claim. Id. The districtPage 18judge ordered a retrial because, although neither of the parties hadraised the issue at trial, Massachusetts law did not permit punitivedamages for such claims. Id.6 The judge chose this course, ratherthan entering judgment for $1 and striking the punitive damages award,because he felt there was a substantial risk that the jury had creditedthe emotional distress evidence, but due to the judge's misinstructionthe jury had simply provided relief for that distress in the form ofpunitive damages. Id. at 5. Under the plain error standard, it canreasonably be said that an error regarding availability of punitivedamages is "plain or obvious," and that such an error could well haveaffected the outcome to an extent that threatens a "miscarriage ofjustice."

Second, the fact that a district court can be affirmed for awarding anew trial in circumstances where the appeals court would not have done so(or vice versa) does not mean that the two courts are applying differentlegal standards. The appeals court reviews a district court's award of anew trial under an abuse of discretion standard. See, e.g., Chakrabarti,31 F.3d at 5. The district court exercises its discretion to award a newtrial by applying the plain error standard to its own decisions duringthe original trial, and the appeals court must then determine whetherPage 19the district court's application of that same plain error standard wasreasonable. As a practical matter, a district judge may thus be able to"get away with" applying the correct standard in a manner somewhat moreor less strict than what a majority of appeals court judges would do,were they sitting as district court judges or confronting at theappellate level a newly-raised argument that might justify awarding a newtrial. It is an interesting philosophical, political, empirical, andpsychological question whether this phenomenon in reality results fromdistrict judges covertly applying a "different" legal standard, from theinevitable inability of language to convey a legal standard (or anythingelse) with pinpoint accuracy, or from the tendency of any two individualjudges to interpret one set of facts differently (due to differences inexperience, disposition, etc.). It suffices to say, however, that as apractical matter this question also infects appellate review of otherexercises of district court discretion, as well as review of districtcourt factfinding, and that American jurisprudence can and doesdifferentiate between the question whether the legal standard applied wasthe correct one and the question whether an admittedly correct legalstandard was applied in a reasonable manner. See, e.g., Williams v.Taylor, 529 U.S. 362, 405-08 (O'Connor, J., opinion of the Court)(discussing this distinction in the context of interpreting and applyingAntiterrorism andPage 20Effective Death Penalty Act provisions governing relief from statecourt criminal convictions).

Allied Chemical Corp. v. Daflon. Inc., 449 U.S. 33, 36 (1980), whichSuboh cites, is similarly consistent with the understanding that districtcourts must apply the plain error standard, to the extent it is even onpoint. Suboh correctly quotes Allied Chemical Corp. as saying that "[t]heauthority to grant a trial, moreover, is confided almost entirely to theexercise of discretion on the part of the district court." Pls.' Mem. at19 (quoting 449 U.S. at 36). The next sentence in the case providesimportant context, however: "Where a matter is committed to discretion,it cannot be said that a litigant's right to a particular result is clearand indisputable." Allied Chemical, 449 U.S. at 36 (citation and internalquotation marks omitted). The Supreme Court's point is not that districtcourts can be more liberal in awarding new trials than appellate courts,but rather that the discretionary nature of decisions regarding award ofa new trial is one of several considerations that makes reversal of suchdecisions via a writ of mandamus especially inappropriate. See id. TheSupreme Court's recognition that district courts have discretion, andthat discretionary judgments are reviewed for abuse of discretion, saysnothing about what legal standard governs the exercise of thatdiscretion, orPage 21whether district courts and appellate courts should apply differentlegal standards.

Thus, applying the plain error standard, this Court must considerwhether the two errors in the jury charge rise to the level of plainerror. The Court concludes that its error in delegating the question ofqualified immunity to the jury does not constitute plain error warrantinga new trial. Although this was certainly error, Suboh's rights were notsubstantially affected in that this was an error that was arguablyneutral in terms of prejudice as between her and Borgioli. The Court'serror in imposing upon Suboh the burden of showing Borgioli'sunreasonableness, however, is far more grave. As explained above, theundisputed facts in this case made clear that Suboh's procedural dueprocess rights were, by definition, violated, but the Court instructed thejury that it could only so find if it also concluded that Borgioli'sbehavior had not been reasonable. Thus instructed, the jury subsequentlyreturned a verdict in Borgioli's favor. Had this Court not committed thaterror, the only question put to the jury would have regarded the scope ofdamages, if any, that Borgioli's violation can be considered to haveproximately caused. The Court thus concludes that Suboh was prejudiced bythe erroneous imposition of this burden upon her.

The Court must therefore consider whether this error meets the finalprong of the plain error standard: miscarriage ofPage 22justice. The First Circuit has provided guidance as to the factors toconsider in assessing whether there is a miscarriage of justice: namely,"whether the failure to raise the claim below deprived the reviewingcourt of helpful factfinding; whether the issue is one of constitutionalmagnitude; whether the omitted argument is highly persuasive; whether theopponent would suffer any special prejudice; whether the omission wasinadvertent or deliberate; and, perhaps most importantly, whether theissue is of great importance to the public." Play Time, Inc. v. LDDSMetromedia Communications, Inc., 123 F.3d 23, 30 n. 8 (1st Cir. 1997)(citing Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627-28 (1stCir. 1995), which set forth and described these factors).

The error here satisfies a number of these criteria. It is clear thatSuboh's failure to raise this argument was inadvertent and notstrategic; the Court can discern no strategic benefit stemming fromSuboh's lack of opposition to the imposition of an additional burden uponher. Additionally, there is no special prejudice to Borgioli here,because the omitted argument "is law-based, not fact-based." NationalAss'n of Social Workers, 69 F.3d at 628. Further, there is no question asto the correctness and persuasiveness of Suboh's argument; Suboh wasforced to bear a burden that was not appropriately hers, as discussedabove.Page 23

Most importantly, the right at issue here is not only a constitutionalright; it is in fact one of the most venerable constitutional rights, asthe First Circuit stated in Suboh itself. See Suboh, 298 F.3d at 91("Putting aside notions of generalized `familial integrity,' there are,more pertinently, much more narrow interests that are at stake here. Tobegin, `the interest of parents in the care, custody, and control oftheir children is among the most venerable of the liberty interestsembedded in the Constitution.'" (internal citations omitted)).

Admittedly, the relevant First Circuit cases defining the"constitutional magnitude" factor involve instances where the claim thatthe party failed to raise at trial was in fact the source of theconstitutional issue, whereas the argument that Suboh failed to raise isnot itself constitutional in nature, but rather tends to make it morelikely that she can successfully assert an entitlement to exercise avenerable constitutional right. See National Ass'n of Social Workers, 69F.3d at 628; United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir.1990). This is a distinction without a difference, however. Whether aprisoner is saying that his conviction (and thus imprisonment) is unlawfulbased on a constitutional argument not raised at a trial, see LaGuardia, 902 F.2d at 1013, or a mother is arguing what Suboh argueshere, the question is whether, had the districtPage 24court apprehended the law correctly, the person would be entitledto exercise some aspect of the liberty that the Constitution guaranteesto us all. Such an understanding gives greater independent meaning tothis factor, as limiting this factor to constitutional arguments wouldoften make it superfluous in light of the "public interest" inquiry.

Additionally, as Suboh has pointed out, there are criminal cases aswell as even some civil cases (albeit not from the First Circuit) inwhich an erroneous jury instruction as to the burden of proof was foundto constitute plain error. See, e.g., United States v. Colon-Pagan,1 F.3d 80, 81 (1st Cir. 1993) (Breyer, C.J.) (holding that a districtjudge's erroneous jury instruction in regard to the definition of proofbeyond a reasonable doubt constituted plain error warranting a newtrial); United States v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir.2001) (noting that "plain error is theoretically possible with respect toan omitted jury instruction. If, say, a trial court fails to instruct acriminal jury on a basic point like the government's burden of proof orthe presumption of the defendant's innocence, the lack of acontemporaneous objection would not foreclose searching appellatereview."); Melton v. City of Oklahoma City, 928 F.2d 920, 927 (10th Cir.1991) ("[T]he plaintiff was permitted to recover a substantial verdictwithout carrying the entire burden of proof placed upon him. We believethe instruction createdPage 25plain error. . . . "); Batka v. Liberty Mut. Fire Ins. Co., 704 F.2d 684,689-90 (3d Cir. 1983) (holding that the trial court's erroneousinstruction that a preponderance of the evidence standard was applicablein a particular civil case was "fundamental and highly prejudicial," andrequired a new trial); Ostroy v. Metro. Life Ins. Co., 379 F.2d 829, 838& n. 10 (3d Cir. 1967) (similar); but see Pulliam v. TallapoosaCounty Jail, 185 F.3d 1182, 1188 (11th Cir. 1999) ("In this case, thefailure to give an instruction on Defendant's burden of proof does notconstitute plain error. Plaintiff has failed to convince us that, given acompletely accurate instruction on the burden of proof in mixed-motivesissues, a substantial likelihood exists that the jury would have foundfor Plaintiff and determined that Plaintiff — in the absence ofretaliation — would not have been fired." (footnote omitted)).

There is an additional wrinkle. Like many judges, my practice since mydays on the Massachusetts Superior Court has been to go back to the juryroom after the verdict has been delivered personally to thank the jurorsfor their service. I did so in this case.

The jurors, I saw, had carefully taped to the wall large panels ofblank paper (routinely provided) and marked each one progressively withthe essential factual issues in this case. The final two panels wereentitled "Proximate cause" andPage 26"Damages" in that order. Under the title "Proximate cause" was written"NO." There was no writing on the "Damages" panel. In light of thedefendant's verdict, I am convinced that the jury, properly charged onthe concept of proximate cause, did manifest justice after a detailed andably tried case. But wait. None of the data recited in this paragraph iscompetent evidence to impugn a jury verdict. Fed.R.Evid. 606(b).

Here, of course, the data serve to uphold the verdict. Nevertheless, asthe history of this evidentiary rule emphasizes that such data are simplyincompetent regardless of their truth, I conclude I cannot consider themat all.

Disregarding the observations made in the jury room post-trial, and forall of the compelling legal reasons — most importantly, the greatsignificance of the constitutional right at issue here — the Courtconcludes that this, like Chestnut, is the "rare civil case where themiscarriage of justice requirement is met," Chestnut, 305 F.3d at 20, anda new trial is warranted.

B. Framework of the New Trial

Having concluded that a new trial is warranted in this case on thegrounds that the jury instructions were plainly erroneous, the Court mustnow address the framework of that new trial. As noted above, at thehearing on the instant motion, the Court ruled that if a new trial wereordered, Borgioli would not bePage 27entitled to qualified immunity. 4/8/03 Tr. at 11-12. The Court nowaddresses the basis of that ruling.

In its opinion on this case, the First Circuit ruled that it wasclearly established as of 1998 that "a state official could noteffectively resolve a disputed custody issue between a parent and anotherwithout following any due process procedures at all," Suboh, 298 F.3d at94-95. It then indicated that the relevant question, in determiningwhether Borgioli was entitled to qualified immunity, was whether "areasonable officer could have concluded on the facts before him that theKandys had undisputed custody of the child, despite Suboh's claims, andso no process of any sort was due before the child could be released tothe Kandys." Id. at 96.

By framing the issue in such a way, the First Circuit necessarilyreduced the scope of facts determinative to the qualified immunityanalysis. Were there, for example, a genuine dispute as to whether Subohtold Borgioli that she was Sofia's biological mother or that she wantedcustody of her daughter, the jury would indeed be needed to resolve thesecrucial questions. To the extent that the determinative facts wereunclear or disputed prior to the trial, however, that dispute wasresolved by Borgioli's own trial testimony. As noted above, on the standBorgioli testified that Suboh told him that she was Sofia's biologicalmother, that she had not signed any papers givingPage 28custody of Sofia to her parents, and that she wanted to regain custody ofher daughter. Regardless of the apparent credibility or lack thereof ofSuboh's statements,7 the Court fails to see how any reasonableofficer could not have, at a minimum, concluded that there were indeedcompeting claims to Sofia's custody such that he simply could not decidethe dispute himself. Borgioli argues that "there was certainly a hotlycontested factual dispute as to what [he] knew at various points in hisinvestigation," Def.'s Opp'n at 11 [Docket No. 179], but it is undisputedthat the crucial piece of information — that Suboh was claiming tobe Sofia's biological mother and was asserting a right to custody of herdaughter — was known to Borgioli when he decided to place Sofia inthe custody of the Kandys.

Accordingly, at this point, there are simply no remaining factualdisputes that a jury needs to resolve for the Court to be able to rule onqualified immunity, given Borgioli's own testimony. In such acircumstance, it is appropriate for the Court to rule on qualifiedimmunity straightaway, see Ringuette v. City of Fall River, 146 F.3d 1, 6(1st Cir. 1998) (describing as "eminently sensible" a district court'sdecision to dismiss onPage 29qualified immunity grounds, even though it resolved a relevant factualdispute in the process), and that is what the Court has done here.

Given the Court's determinations that (1) the undisputed facts of thiscase establish that Suboh's procedural due process rights were violatedby her failure to receive any hearing attendant to the loss of custody ofher daughter; and (2) the undisputed facts demonstrate that Borgioli isnot entitled to qualified immunity, the scope of the new trial isnecessarily limited. All that remains for the new trial is the importantquestion of what — if any — damages were proximately causedby Borgioli's violation of Suboh's procedural due process rights.


I deeply regret that my own error has so compounded the expense anddelay visited on the litigants in this action. Nevertheless, we liveunder "the rule of law, and the just application of the law to the factsof the case lies at the very heart and core of our civilization."8Accordingly, for the reasons set forth above, the Plaintiff's Motion fora New Trial [Docket No. 178] is GRANTED. The Court further rules thatSubohPage 30has established that her procedural due process rights were violated byBorgioli, and that Borgioli is not entitled to qualified immunity. A newtrial will therefore be held on the issue of the amount of damages, ifany, that were proximately caused by Borgioli's violation of Suboh'sprocedural due process rights.


1. A nationally syndicated columnist claims that Judge Edward Pradosang this song to a sitting jury. David S. Broder, Unlike Estrada,Prado Gets an Easy Nod, Boston Globe, Apr. 16, 2003, at A19.

2. Borgioli has argued, with reference to Michael H. v. Gerald D.,491 U.S. 110 (1989), that Suboh did not have any procedural due processrights to custody of Sofia because she did not have a protected libertyinterest in the custody of her daughter, given that "[n]o evidence waspresented that the relationship between Mouna Suboh and her daughter Sofiawas more than mere biology and infrequent or de minimis contact (with allof that contact coming within a context of a purported siblingrelationship)." Def.'s Opp'n at 6 n. 2 [Docket No. 179]. It is truethat, if Suboh did not have a fundamental liberty interest in the careand custody of Sofia, she could not invoke procedural due process toprotect that interest. Borgioli's interpretation of Michael H. to meanthat Suboh did not have a protected liberty interest, however, isunsupportable. The First Circuit Court of Appeals apparently agrees. TheSuboh court said: "We think it plain that Suboh alleges a violation of aconstitutional right," a statement that is incompatible with Borgioli'sanalysis. Suboh, 298 F.3d at 93. Rather than rest on the authority of theFirst Circuit's statement, however, the Court will explain why it iscorrect. In Michael H., a plurality of the Supreme Court held that when a childis conceived through an adulterous relationship, the biological fatherdoes not have a procedural due process right to a hearing in which he canestablish his paternity, because the Due Process Clause did not give hima liberty interest in maintaining a parental relationship with hischild. (Justice Stevens's concurrence, which provided the necessary fifthvote, left open the possibility that, as the dissenters maintained, thefather had a liberty interest grounded in substantive due process, butJustice Stevens determined that the State's statutory scheme compliedwith procedural due process. Id. at 133 (Stevens, J., concurring in thejudgment).) The Court explained that for the biological father toprevail, he would need to establish that our society "has traditionallyaccorded such a father parental rights, or at least has not traditionallydenied them. . . . What counts is whether the States in fact awardsubstantive parental rights to the natural father of a child conceivedwithin, and born into, an extant marital union that wishes to embrace thechild. We are not aware of a single case, old or new, that has done so."Id. at 126-27. The Court further explained that the biological father'sputative constitutional right to establish paternity of his daughter waslimited "by the circumstance that the mother is, at the time of thechild's conception and birth, married to, and cohabitating with, anotherman, both of whom wish to raise the child as the offspring of theirunion." Id. at 129. It should be noted that Justice O'Connor, joined byJustice Kennedy, refused to join footnote 6 of Justice Scalia's opinionfor the Court, which laid out "a mode of historical analysis to be usedwhen identifying liberty interests protected by the Due Process Clause. . . that may be somewhat inconsistent with our past decisions in thisarea." Id. 132 (O'Connor, J., concurring in part). Even if this Court assumes that the Michael H. plurality's substantivedue process reasoning constitutes binding precedent, it is clear that thesituation presented in this case is distinguishable from that presentedin Michael H. First, Michael H. was about the rights of the biologicalfather vis-a-vis the biological mother, whereas this case presents adispute between a biological parent and non-parents. Second, thehistorical analysis endorsed in Michael H. also favors Suboh. Althoughthere may not be cases granting paternity to a biological father in theface of the opposition of the biological mother and her husband, thereare certainly cases granting parental rights or custody to a biologicalparent in the face of the opposition of adoptive parents, even where theadoptive parents have not kidnapped the child. See, e.g., Mayberry v.Flowers, 65 S.W.3d 418, 419 (Ark. 2002); In re A.J.F., 764 So.2d 47, 55,62 (La. 2000); Matter of Adoption of Baby Boy, 667 N.Y.S.2d 635, 640-41(1997). Here, the Kandys not only allegedly kidnapped Sofia, but it isundisputed that they never legally adopted her, thus making Suboh's caseeven stronger. Accordingly, the Court rejects Borgioli's argument thatMichael H. must be interpreted so broadly as to mean that Suboh did nothave a protectable interest in the custody of her daughter.

3. Borgioli has argued that Suboh, in order to make out a proceduraldue process claim, also had to show "that Borgioli's conduct wasintentional or reckless and `shocked the conscience' of the jury." Def.'sOpp'n at 7; see Rochin v. California, 342 U.S. 165, 172 (1952)(Frankfurter, J.) (origin of the "shocks the conscience" formulation insubstantive due process cases). Such a requirement, however, applies onlyto one category of substantive due process claims, see, e.g., Pittsleyv. Warish, 927 F.2d 3, 6 (1st Cir. 1991), and is inapplicable toprocedural due process claims. See, e.g., Lamoureux v. Haight,648 F. Supp. 1169, 1176 n. 1 (D. Mass. 1986) (Wolf, J.) ("If a proceduraldue process claim were proven, it would be unnecessary to considerwhether the procedural due process violation was so egregious as to`shock the conscience.'").

4. For a further discussion of Borgioli's qualified immunity,see infra pp. 26-29.

5. Suboh's counsel did object to the Court's answer to one of thejury's questions, but this objection was not relevant to the two relatederrors discussed above. Specifically, Suboh's counsel stated that "Myobjection for the record would be to the instruction in response to thequestion was it legal for Borgioli to give Sofia to the Kandys and Iwould have requested, I believe the proper instruction would have beenno, it was not legal for Borgioli to give Sofia to the Kandys withoutaffording a judicial hearing." 3/5/03 Tr. at 12.

6. The second jury awarded $75,000 in damages. Chakrabarti, 31 F.3d at5.

7. For his part, Borgioli has testified that he was "fairly reasonablysure" that Suboh was indeed Sofia's mother, 2/26 Tr. at 49. He furthertestified that he "didn't disbelieve" Suboh's claim that she wantedcustody of her daughter, but that he believed that "if the parents paidthe money for the daughter, the daughter would have been returned to theKandys." Id. at 23.

8. Adapted from the charge to the jury of Chief Justice Walter H.McLaughlin in Commonwealth v. Barber, (The case was affirmed, 362 Mass. 672(1972), reversed and remanded by the United States Supreme Court in lightof new case law, 411 U.S. 945 (1973), and affirmed once again, 365 Mass. 66(1974).) I incorporate this language into the beginning of the jurycharge in every criminal case.

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