Opinion
CIVIL ACTION NO. 07-10352-DPW.
July 28, 2008
MEMORANDUM AND ORDER
Plaintiff Vijay Shah brings this civil rights action against two Secret Service agents and two Boston Police Officers stemming from an investigatory stop that law enforcement officers made of him the day before the 2004 Democratic National Convention ("DNC") formally opened. During the course of the stop, Shah was forcibly removed from a protest march, handcuffed, and ultimately transported to a Boston police station. Shah asserts that the government officials violated several of his constitutional rights during the stop. His primary argument is that he was subjected to an illegal de facto arrest that was contrary to the Fourth Amendment. All of the defendants moved to dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(6). Additionally, the Secret Service defendants and Shah submitted cross motions for summary judgment pursuant to Fed.R.Civ.P. 56. Critical to analysis of the motions is the doctrine of qualified immunity for law enforcement officers. I indicated to the parties my preliminary views regarding disposition of the motions at the motion hearing in this matter. This Memorandum and Order explains more fully my determination with respect to those motions. In essence, after consideration of the motions, I have pruned Shah's claims to permit only Fourth Amendment claims to proceed and only against the Secret Service defendants.
Shortly before the motion hearing, Shah filed a motion for leave to file a Third Amended Complaint. The basis for Shah's request was that he recently had been provided a memorandum entitled, "Detention of Vijay Shah on July 25, 2004," authored by Secret Service Special Agent Mark Youngblood. Youngblood's memorandum provides additional details relating to the stop and detention of Shah that are material to the claims. Specifically, the memorandum indicates the decision to stop Shah was made by Assistant Special Agent in Charge Lisa Stokes and Special Agent Pat Fitch. The Third Amended Complaint sought to add Stokes and Fitch as defendants. I allowed the Motion for Leave to amend the complaint and it is now the operative pleading in this case. Since this Third Amended Complaint does not make any material changes to the contentions placed at issue by the motions previously filed before me by the then existing parties, I have treated the motions to dismiss and motions for summary judgment as effectively directed at the Third Amended Complaint.
I. FRAMEWORK FOR REVIEW
A. Rule 12(b)(6)
Under Fed.R.Civ.P. 12(b)(6), a motion to dismiss for failure to state a claim is evaluated by "taking as true the well-pleaded facts contained in the complaint and drawing all reasonable inferences therefrom in the plaintiff's favor." Phoung Luc v. Wyndham Mgmt. Corp., 496 F.3d 85, 88 (1st Cir. 2007) (quoting Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir. 2002)). This means that "to survive a motion to dismiss, a complaint must allege `a plausible entitlement to relief.'" Rodríguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1967 (2007)). Pleadings that show a merely "speculative" or "conceivable" entitlement to relief are not sufficient to defeat a motion to dismiss. Bell Atl. Corp. v. Twombly, 127 S. Ct. at 1965, 1974.
When determining whether the plaintiff has alleged a plausible entitlement to relief, "bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like need not be credited." Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). Rather, the plaintiff must plead "factual averments . . . with respect to each material element of the underlying legal theory." Fleming v. Lind-Waldock Co., 922 F.2d 20, 24 (1st Cir. 1990). A plaintiff is not required to plead every relevant fact, but must plead sufficient facts so that the inferences to be drawn are reasonable and not speculative. Bell Atl. Corp. v. Twombly, 127 S. Ct. at 1965; See also Marrero-Gutierrez v. Molina, 491 F.3d 1, 9-10 (1st Cir. 2007). B. Rule 56(c)
A court should grant summary judgment when it concludes based on the "pleadings, depositions, answers to interrogatories, . . . admissions on file, . . . [and] affidavits" that "no genuine issue as to any material fact" exists. Fed.R.Civ.P. 56(c). "[S]ummary judgment's role is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992).
When determining whether summary judgment is appropriate, courts are required "to view the facts and draw reasonable inferences `in the light most favorable to the party opposing'" the summary judgment motion. Scott v. Harris, ___ U.S. ___, 127 S. Ct. 1769, 1774 (2007) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). However, "[c]onclusory allegations, improbable inferences, and unsupported speculation, are insufficient to establish a genuine dispute of fact." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (internal quotations omitted).
C. Qualified Immunity
Informed by Supreme Court precedent, the First Circuit has crafted a three-part test for determining whether a federal or state agent is entitled to qualified immunity. A court is to consider "(i) whether the plaintiff's allegations, if true, establish a constitutional violation; (ii) whether the constitutional right at issue was clearly established at the time of the putative violation; and (iii) whether a reasonable officer, situated similarly to the defendant, would have understood the challenged act or omission to contravene the discerned constitutional right." Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004). Each of these inquiries is properly considered separately. Id.
The determination whether a government agent has qualified immunity is sometimes said to be a question of law. Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 34 (1st Cir. 2002); Cox v. Hainey, 391 F.3d 25, 29 (1st Cir. 2004). The first two prongs clearly involve questions of law. "The third prong is also a question of law, but factual questions, to the extent they are antecedent to this determination, must be determined by a jury." Rodríguez-Marín v. Rivera-González, 438 F.3d 72, 83 (1st Cir. 2006).
II. MOTIONS TO DISMISS
A. Statement Of Facts
In evaluating a motion to dismiss, the allegations of the complaint are taken as true and all reasonable inferences are made in Shah's favor.
1. The Parties
Plaintiff, Vijay Shah, is a United States citizen who lives in Cambridge, Massachusetts. John Doe I, Special Agent J.W. Holloway, and Special Agent Darin Czellecz were employees or agents of the the Department of Homeland Security of the United States Secret Service ("Secret Service") at the time of the relevant events. John Doe III, Officer Timothy Horan, and Officer Martin Smiddy were employees of the Boston Police Department at the time of the relevant events.
2. The Background
The following allegations are drawn from the complaint. The DNC was scheduled to be held at the FleetCenter in Boston, Massachusetts during the last week of July 2004. The Department of Homeland Security declared the DNC a National Special Security Event and formed a Joint Task Force to coordinate security at the convention. The Secret Service led the task force and worked with local law enforcement in organizing security measures. The Joint Task Force divided the area around the FleetCenter into two zones: a "hard security zone" and a "soft security zone." The Secret Service oversaw the hard zone within and immediately adjacent to the Fleet Center; only persons with convention credentials were permitted to enter that area. Once inside the hard zone, credentialed personnel were subject to searches. The City of Boston oversaw the soft zone which spanned an area within the Bulfinch Triangle south of the FleetCenter. The Boston Police Department was not permitted to conduct random security checks inside the soft zone.
More detailed background concerning security arrangements for the 2004 DNC may be found in Coal. to Protest Democratic Nat'l Convention v. City of Boston, 327 F. Supp. 2d 61 (D. Mass.), aff'd sub nom. Bl(a)ck Tea Soc'y v. City of Boston, 378 F.3d 8 (1st Cir. 2004).
3. The Protest March And The Stop And Transport Of Shah
On July 25, 2004, the day before the DNC began, protesters gathered on the Boston Common for a march. Approximately 3,000 protesters took part. Mr. Shah joined the march near Boston Common on the afternoon of July 25. John Doe I approached Shah and asked him to step out of the march and speak to him. Shah declined and continued to march. At some later point, Special Agent J.W. Holloway and John Doe III grabbed Shah, handcuffed him, forced him down an alley and took him to City Hall Plaza. Shah was not accused of any wrongdoing, but Holloway demanded that Shah divulge certain personal information.
John Pavlos, an attorney involved with the organization of the march, observed what had transpired and offered to act as Shah's lawyer. Shah immediately accepted Pavlos' offer. Holloway told Pavlos that the Secret Service had reasonable suspicion to detain Shah because authorities had seen him observing various sites near the FleetCenter. Pavlos negotiated an agreement with the Secret Service: if Shah agreed to submit a photograph to the Secret Service, he would be released. Shah consented to a photograph but after the Secret Service took his picture they refused to release him. Instead, Shah was put into a Boston Police car and taken to the District A-1 Boston Police station by Special Agent Darin Czellecz and Boston Police Officer Timothy Horan. Shah was kept in handcuffs during the transportation. Shah requested that Pavlos accompany him but the law enforcement personnel ignored this request.
At the police station, Czellecz, Horan, and Boston Police Officer Martin Smiddy, a liaison from the Boston Police Department to the Secret Service, interrogated Shah. Shah remained handcuffed throughout the interrogation. Czellecz never asked Shah to explain his pre-march behavior, which the Secret Service claimed was the basis for Shah's detention. Czellecz told Shah that the detention was justified by his behavior and the Convention's designation as a National Special Security Event. Following the interrogation, Shah was released. He was never charged with a crime.
B. Discussion
Each of the defendants moves to dismiss the claims against them pursuant to Fed.R.Civ.P. 12(b)(6).
1. Horan's Motion To Dismiss
Horan moves to dismiss Shah's 1983 claims to the extent they are based on alleged violations of his First, Fourth, and Fourteenth Amendment rights because Horan contends that he could not reasonably have known that his actions violated Shah's rights. The Complaint states that Horan arrived at the City Hall Plaza after Shah had been stopped, handcuffed, and moved to City Hall Plaza. Shah alleges that Horan forced Shah into a car and then transported him to a Police Station and questioned him.
In his Second Amended Complaint, Shah alleged claims based on violations of his Sixth Amendment rights. Before the dispositive motion hearing, Shah withdrew his Sixth Amendment claims. To the degree there was any residual suggestion of a Sixth Amendment claim in the Third Amended Complaint, Shah's counsel expressly disclaimed it during argument of the dispositive motions. This concession was well founded. As the Supreme Court reaffirmed less than two weeks after the motion hearing in this matter:
[A] criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary proceedings that trigger attachment of the Sixth Amendment right to counsel.Rothgery v. Gillespie County, ___ U.S. ___, 128 S. Ct. 2578, 2592 (2008). No initial appearance before a judicial officer is alleged in this case.
Horan contends that the complaint does not overcome his entitlement to qualified immunity because Shah has failed to allege properly the third prong of the qualified immunity test. For purposes of his motion, Horan does not dispute that Shah has adequately alleged that Shah's clearly established constitutional rights were violated. Horan's sole contention for this motion is that an objectively reasonable police officer in his position would not have known that transporting Shah violated his constitutional rights. A more detailed analysis of the legal basis for Shah's claims is set forth in § III.B., infra. For purposes of this section, I will sketch the allegations which might show liability for the Boston Police Officers without the narrative of the legal analysis found in § III.B.
I conclude that these claims should be dismissed on the basis of qualified immunity. The complaint alleges that Shah "was forced into a Boston Police Car and taken to the District A-1 Boston Police station by Special Agent Darin Czellecz and Officer Timothy Horan." From this allegation, a reasonable inference cannot be made that Horan knew that Shah had been stopped only on the basis of reasonable suspicion and that Horan still made the decision to transport him to the police station. Nor, given the absence of any allegation that Horan knew the basis for detaining Shah or that he actively took part in the decision-making that resulted in taking Shah to the police station, could a reasonable officer in his position be found to have known that transporting and questioning Shah under such circumstances violated his constitutional rights. From all that appears, Horan functioned solely as a transportation officer who had no reason to know — or even question whether — the basis for Shah's transportation to the police station was constitutionally inadequate. Therefore, I will allow Horan's motion to dismiss. 2. Smiddy's Motion To Dismiss
Because I dismiss the complaint as to Horan, I do not formally reach the summary judgment motion filed by Shah. I note, however, that nothing in the factual development disclosed in the summary judgment motion submissions gives me pause about dismissing the case as to Horan.
Smiddy deploys the same arguments as Horan and claims that dismissal is appropriate based on qualified immunity. Just as Horan did, Smiddy contends that Shah failed properly to allege that a reasonable officer in Smiddy's position would have understood that transporting Shah to the police station violated his constitutional rights.
I conclude that the claims against Smiddy should also be dismissed because Shah fails to plead any facts that connect Smiddy to alleged the violations of Shah's constitutional rights. The only factual allegation in the complaint relating to Smiddy states that "[a]t the police station, Special Agent Czellecz, Officer Horan, and Officer Martin Smiddy, a liason from the Boston Police Department to the Secret Service, interrogated Mr. Shah in a windowless room." Smiddy's entire alleged involvement occurred after Shah was stopped, handcuffed, and transported to the police station. A reasonable officer in Smiddy's position as alleged would not have understood the described conduct violated Shah's constitutional rights or be in a position to question the grounds for Shah's detention. Therefore, there is no basis in the complaint to show Shah could overcome Smiddy's claim of qualified immunity. The claims against Smiddy will be dismissed. 3. The Motions To Dismiss Of The Secret Service Agents
Again, because I dismiss the complaint as to Smiddy, I do not formally reach the summary judgment motion filed by Shah. I note, however, that nothing in the factual development disclosed in the summary judgment motion submissions gives me pause about dismissing the case as to Smiddy.
a. The § 1983 Claims
Holloway and Czellecz ("the Secret Service Agents") contend that Shah's Section 1983 claims against them should be dismissed because they are federal, not state, actors. "Section 1983 applies to persons acting `under color of state law' and not to persons acting pursuant to federal law." Chatman v. Hernandez, 805 F.2d 453, 455 (1st Cir. 1986) (per curiam). Consequently, "a Section 1983 claim ordinarily will not lie against a federal actor." McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir. 2006). The adverb "ordinarily" in Chatman suggests that in extraordinary situations, however, a section 1983 claim may be brought against federal employees. For example, the District Court in McCloskey observed that "one may bring a Section 1983 action against federal employees who conspire or act in concert with state officials to deprive a person of his civil rights under color of state law." McCloskey v. Mueller, 385 F. Supp. 2d 74, 86-87 (D. Mass. 2005), aff'd, 446 F.3d 262 (1st Cir. 2006).
Shah's complaint contains the allegation that the Agents "acted together under color of state law with [the Boston Police]." It is apparent that city and federal authorities were acting in concert with respect to law enforcement initiatives at the DNC. Given the need for further discovery to identify whether facts or circumstances justify treating this case as out of the "ordinary" sufficiently to support a claim pursuant to § 1983 against federal agents, I decline to dismiss the § 1983 claim against the Agents.
b. The Bivens Claims
Although § 1983 does not "ordinarily" provide a cause of action against federal officers, the Supreme Court has fashioned a cause of action for claims of federal constitutional violations by federal agents in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396-97 (1971); see also Redondo-Borges v. U.S. Dep't of HUD, 421 F.3d 1, 6 (1st Cir. 2005); Limone v. Condon, 372 F.3d at 43.
(i) First Amendment Claim
Shah's complaint states that the "removal of Vijay Shah from the protest march served no legitimate purpose and could only be designed suppress his political expression." The complaint does not provide any plausible allegations to support this conclusory assertion. For example, Shah pleads that he took part in a protest with "approximately 3,000 other protesters." However, Shah does not allege that any significant number of the protesters were stopped because of their speech or political expression. In fact, Shah does not allege that any other protester was detained or questioned by law enforcement. Thus, a reasonable inference cannot be drawn from these facts that Shah was seized on the basis of his speech.
Moreover, other sections of the complaint demonstrate that Shah contends he was not stopped because of his political expression. According to Shah's pleading, "Holloway alleged that the Secret Service had reasonable suspicion to detain Mr. Shah because authorities had seen Mr. Shah observing various sites near the FleetCenter." Similarly, Shah claims that "Czellecz told [him] that his detention was justified by his behavior and the Convention's designation as a National Special Security Event." The only pleadings that might be read to suggest the purported reason that Holloway and Czellecz gave for stopping Shah was not the true reason they stopped him is that "Czellecz never asked Mr. Shah to explain his pre-march behavior" when he was questioned at the police station. While this pleading might suggest that Shah's pre-march behavior was not the impetus, in whole or in part, for the stop, it does not plausibly show that Shah's speech and/or expressive actions were what motivated the stop.
The complaint is devoid of averments that would allow a reasonable inference to be drawn that Shah's speech was what led the Secret Service to stop him. Shah's pleadings are insufficient in this regard and I will dismiss the Bivens claim to the extent that it is based on an alleged First Amendment violation. Similarly, I will also dismiss the 1983 claim to the extent it is premised on a First Amendment violation.
(ii) Fourth Amendment Claim
The Secret Service Agents purport to argue that Shah did not state a Bivens claim based on a violation of his Fourth Amendment rights. However, the thrust of their argument is that the Agent's decision to stop Shah and bring him to the police station was reasonable on the basis of facts that are not in the complaint. The Agents confuse the issues. In a motion to dismiss the proper inquiry is whether the facts alleged by the plaintiff, if true, would form the basis for legal relief. Consequently, any facts not in the pleadings are not relevant in analyzing a motion to dismiss pursuant to Rule 12(b)(6).
As I will explain more fully in my discussion regarding the summary judgment motions, I am satisfied that Fourth Amendment claims sufficient to overcome qualified immunity have been presented. According to Shah's pleadings, John Doe I, Holloway, and John Doe III stopped him, handcuffed him, and transported him to the police station without reasonable suspicion. The allegations, without consideration of whether the facts support the claim, indicate Holloway acted in violation of Shah's Fourth Amendment rights. The complaint also alleges that Czellecz forced Shah into a car to take him to a Boston Police station. From this allegation, it can be reasonably inferred that Czellecz violated Shah's Fourth Amendment rights by making the decision to transport him to the police station without probable cause. Therefore, I will deny the Agents' motion to dismiss as to the Fourth Amendment claim.
(iii) Fifth Amendment Claim
The Complaint alleges "Shah was singled out and detained because of his ethnic identity." In this connection, the complaint alleges that the Secret Service agents "seized Mr. Shah and subjected him to a de facto arrest without reasonable suspicion or probable cause." The complaint is devoid of any other particularized allegations to support this conclusory accusation. The complaint falls short of adequately asserting a claim of discrimination on the basis of ethnicity or national origin, a claim which might be cognizable not only under § 1983 but also as an equal protection violation by Federal officers under the Fifth Amendment. Kandamar v. Gonzalez, 464 F.3d 65, 72 (1st Cir. 2006) ("The Due Process Clause of the Fifth Amendment contains an equal protection safeguard.") (citing Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954)). Shah has not sufficiently stated claims based on violations of his Fifth Amendment rights. Therefore, I will dismiss this claim as well.
(iv) Sixth Amendment
Because Shah has expressly withdrawn claims premised on Sixth Amendment violations, see Note 3 supra, I find none presented.
III. MOTIONS FOR SUMMARY JUDGMENT
Shah and the Agents also move for summary judgment. For Shah's motion for summary judgment, the facts must be viewed in the light most favorable to the defendants and all reasonable inferences are drawn in their favor. By contrast, when analyzing the defendants' motions the facts and corresponding inferences are viewed in the light most favorable to Shah. I will note disputed issues of fact in the following narrative.
A. Statement Of Facts
When Shah arrived at the Park Station T-stop at the northern end of the Boston Common, he was wearing long pants, a t-shirt, and sandals and had a full beard. He was also carrying a backpack, which contained cookies, a notebook, and his student identification. In his pocket he had a wallet that contained his driver's license. Shah did not have any electronic device with him. After exiting the T-stop Shah walked towards the FleetCenter in an attempt to find the march.
Shah stopped at a checkpoint leading into the hard zone on Valenti Way. Holloway first saw Shah at that checkpoint. Holloway took notice of Shah because he was wearing a t-shirt and sandals, did not have DNC credentials, and was standing in a large crowd of people who were dressed in more formal attire and had credentials. Holloway also observed that Shah visually inspected the credentials of several people as they went past him and that he looked around generally.
Holloway claims that Shah was looking around over his shoulder nervously. Shah does not dispute that he observed his surroundings but does dispute that he looked over his shoulder in a nervous manner.
Shah proceeded to leave the checkpoint area and eventually began to cross the Charlestown Bridge. He stopped on the bridge and looked back at the FleetCenter and downtown Boston. Holloway claims to have seen Shah observe the Marriott Residence Inn, a hotel where hundreds of Secret Service agents were staying during the DNC. Shah then reversed direction and began walking back toward downtown Boston.
The parties dispute whether Shah stopped at the Causeway Street checkpoint. In any event, Shah did stop at the Valenti Way checkpoint again and observed it for almost ten minutes. At that checkpoint he studied the DNC credentials of people entering and observed the gate entry points. After observing the Valenti Way checkpoint, Shah continued toward the Boston Common.
Shah claims he did not stop there. Holloway asserts that Shah did stop at that checkpoint and observed it again for approximately five minutes.
The parties dispute Shah's subsequent actions. According to the defendants, after Shah left the checkpoint he wandered through several downtown streets, often reversing his direction. Shah claims he did not reverse his direction while walking through the streets. Shah walked at a fast pace which caused Holloway to lose sight of him on more than one occasion.
Shah eventually found the protest march that was already underway. Shah joined the protest and marched with the protesters. Because of the large number of protesters, it became difficult for Holloway to observe Shah. Holloway requested assistance from two Boston Police Officers. The Boston Police officers approached Shah on two separate occasions. First, a plain clothes police officer asked Shah to step out of the march to speak to him. Shah declined. Later, a uniformed Boston Police Officer asked Shah and others what they were protesting. Shah responded to this question and continued marching.
Ultimately, Holloway approached Shah and grabbed him. Holloway then forcibly removed Shah from the protest and handcuffed him in an alley. The parties dispute whether Shah attempted to flee. Holloway moved Shah to the edge of City Hall Plaza. Holloway asked that Shah provide his name and date of birth. Shah refused to do so. Holloway stated that he had reasonable suspicion to detain Shah because he had seen Shah observing checkpoints near the FleetCenter. Shah told Holloway that he had just been looking around. Holloway did not conduct a pat frisk of Shah or of his backpack.
The parties dispute whether Holloway identified himself to Shah before stopping him and whether he informed Shah that he was being detained under an investigative detention.
Holloway's statements regarding Shah's purported flight are not entirely consistent. In his October 19, 2007 declaration, Holloway stated that he handcuffed Shah "after he attempted to leave." This "leav[ing]," however, appears to be in reference to Shah's refusal to cooperate and his continuing to take part in the march. Holloway asserted that he handcuffed Shah "because of his observations, including that he had a backpack" and Holloway's "concern for public safety." By contrast, a memorandum that Holloway prepared on the day of the stop states that Shah "attempted to flee at which time I secured him in handcuffs." For his part, Shah claims he never attempted to flee.
At City Hall Plaza Holloway turned Shah over to Czellecz. Czellecz arrived at the scene after Shah had initially been stopped. At that point, a small group, which Czellecz characterizes as a "crowd," formed around Shah and the law enforcement officers. The "crowd" urged law enforcement to let Shah go, but a video recording of the encounter suggests the "crowd" did not present a safety threat to the law enforcement agents. Because Shah did not provide his name to law enforcement, a decision was made that he needed to be fingerprinted to determine his identity.
Prior to the stop, Czellecz and Smiddy were operating as a team providing security to the Convention and had been in regular contact with Holloway and other Secret Service personnel. During the relevant time period, Czellecz received information that other members of the Secret Service were following an individual in the area of Causeway Street and North Washington Street.
A decision was also made to take Shah to a police station. It is not clear who made the decision to take Shah to the police station. Holloway and Smiddy both deny taking part in the decision. Smiddy also claims that the decision to transport Shah was made by the Secret Service, although he does not identify the specific Secret Service agent or agents responsible for making the decision. This statement is supported by the video recording of the event submitted with Shah's summary judgment motion. In the video, what appear to be two Secret Service agents are talking to one another. One of the Secret Service agents was on the phone. The agent on the phone explained to Pavlos that "our legal says we need to identify this guy." He also said that the situation was "above [him] right now." The recording does not indicate the identity of the agents or the person the agents was speaking to on the phone.
The parties at the motion hearing suggested that the identities of certain persons portrayed in the video might be agreed upon and included as subtitles. I leave this prospect to further discovery and pre-trial preparation. I note, however, that the existence of supervening decision making and direction from supervisors may provide a defense for Holloway and Czellecz.
Horan came to the City Hall Plaza after receiving a radio broadcast requesting that a marked car report to City Hall Plaza for a transport. After arriving at the scene, Horan spoke with Boston Police Sergeant Detective Linskey who instructed him to transport Shah to the police station. Horan proceeded to escort Shah into the car and drove him to the police station along with Czellecz.
At the police station, Czellecz, Horan, and Smiddy interrogated Shah in a windowless room. The defendants removed Shah's backpack. Shah requested the handcuffs be removed but the government agents declined to do so. Czellecz demanded that Shah provide his name and date of birth. Shah did so. Czellecz continued to question Shah and asked him questions about what he had been doing in Oregon, the state where he attended college ten years earlier. Czellecz also asked Shah to explain why he had an Ohio driver's license. Czellecz never told Shah that he intended to fingerprint him. At one point, Horan told Shah that if he did not cooperate he would have to see a judge and the judge would not be available until the next day. Shah was never asked to explain his pre-march behavior. When the questioning ended, Czellecz told Shah that his detention had been justified by his behavior and the Convention's designation as a National Special Security Event.
Shah also claims that Czellecz, Horan, and Smiddy made him empty his pockets. It is unclear how this is possible considering that Shah's hands were in handcuffs behind his back.
Eventually, Shah was released after law enforcement conducted name checks. Shah was never charged with a crime.
B. Discussion 1. The Cross-Motions For Summary Judgment By The Secret Service Agents And Shah
The Secret Service Agents, Holloway and Czellecz, argue that summary judgment should be granted in their favor with respect to the alleged Fourth Amendment violation. Shah contests their motion and submits his own cross-motion for summary judgment on his Fourth Amendment claims as to them. I analyze the motions of both parties concurrently, crediting the relevant facts and drawing the permissible inferences based on the applicable motion.
a. Qualified Immunity Analysis
As previously discussed, qualified immunity analysis, which is at the heart of the case, comprises three distinct inquiries: 1) whether Shah has established a violation of his Fourth Amendment rights; 2) whether Shah's constitutional right was clearly established at the time of the alleged violation; and 3) whether a reasonable officer would have understood that the challenged conduct violated an established right. Asociación de Periodistas de Puerto Rico v. Mueller, 529 F.3d 52, 57 (1st Cir. 2008). I will discuss each of the prongs of qualified immunity separately.
(i) The First Prong
The first prong of the qualified immunity analysis focuses on whether the plaintiff's constitutional rights were in fact violated. Buchanan v. Maine, 469 F.3d 158, 168 (1st Cir. 2006). Shah alleges his Fourth Amendment rights were violated in three ways: a) by the initial stop; b) by the handcuffing; and c) by the transport from City Hall to a Boston Police station for questioning.
(A) Stopping Shah
A "stop", or seizure, occurs for Fourth Amendment purposes when an "officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). In order for an investigatory stop to be constitutionally permissible an officer must have a reasonable suspicion that "criminal activity may be afoot." Id. at 30. That is, an officer must have a "particularized and objective basis for suspecting the person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18 (1981).
Shah claims that his Fourth Amendment rights were violated because Holloway lacked reasonable suspicion to stop him. Viewing the evidence in the light most favorable to the defendants, I find a reasonable fact finder could conclude Holloway did have reasonable suspicion. According to Holloway's report and affidavit, Shah's behavior in examining credentials at checkpoint, walking part way across the Charlestown bridge and then reversing direction, and then walking at a fast pace while repeatedly changing directions taken together could form the basis for an investigatory stop. I conclude Shah does not prevail as a factual matter on the first prong for this alleged violation at the summary judgment stage.
By contrast, the Agents posit as a matter of law that they did have reasonable suspicion. Looking at the evidence in the light most favorable to Shah, I find a reasonable fact finder could also conclude Holloway did not have reasonable suspicion to stop Shah. According to Shah's affidavit, he, along with other people, stopped at a checkpoint and observed people pass through. He claims that other people there were also casually dressed and asserts he did not look over his shoulder nervously. Shah agrees that he walked part-way across the Charlestown Bridge before returning to downtown Boston. However, after returning to downtown Boston Shah claims he did not reverse direction at all. On the basis of Shah's account, there is a genuine issue of fact regarding whether Holloway had reasonable suspicion to stop Shah. Thus, the defendant's motion for summary judgment will also be denied with respect to this alleged violation.
(B) Handcuffing Shah
Shah's next argument is that Holloway's use of handcuffs in conjunction with an investigatory stop violated his Fourth Amendment rights. A Terry stop is not necessarily transformed into an arrest by the deployment of handcuffs. United States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir. 1998) ("[T]he use of handcuffs in the course of an investigatory stop does not automatically convert the encounter into a de facto arrest."); see also Flowers v. Fiore, 359 F.3d 24, 30 (1st Cir. 2004). However, while the use of handcuffs may sometimes be allowed in an investigatory stop, such a measure is not always appropriate. United States v. Acosta-Colon, 157 F.3d at 18. Thus,
when the government seeks to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, it must be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm.Id. at 18-19 (emphasis in original).
It bears emphasizing that when determining if an investigatory stop has transformed into a de facto arrest a court must consider the totality of the factors. See Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir. 2004). Thus, I consider both the fact that Shah was handcuffed and the fact that Shah was transported to the police station in assessing whether Shah was subjected to a de facto arrest. I am breaking down the analysis into discrete parts only for the purpose of better identifying any basis for potential liability.
In Acosta-Colon, the First Circuit did not list specific facts or circumstances that would support the use of handcuffs. The Court did, however, cite, a number of cases where the use of handcuffs had been held within the scope of an investigatory stop. Id. at 19. Some of these cited cases identified specific factors that indicated when the use of handcuffs would be appropriate in a Terry stop. In Washington v. Lambert, 98 F.3d 1181, 1189 (9th Cir. 1996), the Ninth Circuit spelled out a number of factors including whether "the suspect is uncooperative or takes action at the scene that raises a reasonable possibility of danger or flight." In United States v. Glenna, 878 F.2d 967, 972-73 (7th Cir. 1989), the Seventh Circuit held that the use of handcuffs was justified because law enforcement had specific information that led it to conclude that the stopped individual was armed and dangerous. Id. at 973. And in United States v. McQuagge, 787 F. Supp. 637, 646 (E.D. Tex. 1991), the use of handcuffs, as well as other coercive measures, "might [have been] justified as part of a Terry stop, if there had been reason to believe that the defendants were dangerous and the government demonstrated that the means employed were reasonably necessary to protect the safety of the police officers or the public."
Other First Circuit decisions have addressed the issue of whether handcuffing an individual during a Terry stop is permissible. In Flowers v. Fiore, the First Circuit explained that when "police officers have information that a suspect is currently armed and that a crime involving violence may soon occur, they are justified in using restraints such as handcuffs without causing an investigatory stop to cross over into an arrest." 359 F.3d at 30. In United States v. Fornia-Castillo, 408 F.3d 52, 64 (1st Cir. 2005), the First Circuit affirmed a district court's ruling that a police officer's use of handcuffs did not transform an investigatory stop into a de facto arrest. The First Circuit agreed that the use of handcuffs was appropriate there because the stop took place at the side of a busy public street and the officer who handcuffed the stopped individual was the only officer on the scene at the time of the stop. Id. at 65. Additionally, the handcuffs were removed when other law enforcement officials arrived and remained in place for no more than ten or fifteen minutes. Id.
A recent District Court decision from within the First Circuit provides further context for evaluating the use of handcuffs in connection with an investigatory stop. United States v. Sandoval-Espana, 459 F. Supp. 2d 121 (D.R.I. 2006), held the use of handcuffs did not transform an investigatory stop to a de facto arrest. Id. at 134. There, law enforcement stopped two individuals suspected of drug trafficking at 1:45 AM near a high drug trafficking area. Id. The agents were in plain clothes, driving an unmarked car, and were the only agents at the scene. Id. The stop lasted between twelve and fifteen minutes and the defendants were never placed in a police car. Id.
In this case, the Agents argue that the use of handcuffs was justified because 1) Shah initially refused to step out of the march; 2) Shah refused to give his name to Holloway; and 3) the whole area was under a high security alert. I find none of these purported reasons legally sufficient to justify handcuffing Shah. Holloway did not have specific information that Shah presented a specific security threat when he was ultimately stopped by Holloway. Even assuming that law enforcement personnel had reasonable suspicion to stop Shah, his Fourth Amendment rights would likely have been violated by the use of handcuffs if only these factors were at issue.
Nevertheless, I conclude that summary judgement is not appropriate because a genuine issue of material fact exists regarding an additional factor: whether Shah attempted to flee. The Agents claim that Shah attempted to flee after Holloway initially stopped him. By contrast, Shah claims that he never tried to run away at any point. This factual dispute is material to determining whether Shah's constitutional rights were violated. If Shah did attempt to flee then handcuffing Shah may not have violated his Fourth Amendment rights because the Agents would have had a reasonable belief that the use of handcuffs was necessary to carry out the Terry stop. By contrast, if Shah did not attempt to run away or otherwise leave then the use of handcuffs would likely not be justified. This question of fact cannot be resolved properly at the summary judgment stage.
(C) Transporting Shah
An investigatory stop has certain defined limits. One of the restrictions is that the police may not move a suspect from the place of the stop to a police station on the basis of reasonable suspicion without the stopped person's consent. In a firm line of cases, the Supreme Court has made clear that transfer of a stopped person from the scene of the stop to a police station requires probable cause. Dunaway v. New York, 442 U.S. 200, 213 (1979); Hayes v. Florida, 470 U.S. 811, 815-16 (1985); Kaupp v. Texas, 538 U.S. 626, 630 (2003) (per curiam). The Supreme Court articulated its reasoning mostly clearly on this issue in Hayes:
There is no doubt that at some point in the investigative process, police procedures can qualitatively and quantitatively be so intrusive with respect to a suspect's freedom of movement and privacy interest as to trigger the full protection of the Fourth and Fourteenth Amendments. And our view continues to be that the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes. We adhere to the view that such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule arrests may constitutionally be made only on probable cause.Hayes v. Florida, 470 U.S. at 815-16 (emphasis added, internal citations removed). Lower courts have followed the Supreme Court's guidance on this issue. United States v. Martinez, 808 F.2d 1050, 1055 (5th Cir. 1987) ("The removal of the suspect from the scene of the stop to police headquarters usually marks the point at which an investigative stop becomes a de facto arrest.").
Of course, if the stopped person consents to go to the police station then there is no Fourth Amendment violation. United States v. Kimball, 25 F.3d 1, 7-8 (1st Cir. 1994).
A different and distinguishable line of cases stands for the proposition that government agents may move a suspect from a public place to a private area — other than a traditional police station — under police control. In the plurality opinion in Florida v. Royer, 460 U.S. 491 (1983), the Supreme Court recognized the potential need of police to move a person during an investigatory stop: "there are undoubtedly reasons of safety and security that would justify moving a suspect from one location to another during an investigatory detention, such as from an airport concourse to a more private area." Id. at 504-5. Relying on this language, the First Circuit has left open the possibility that transporting an individual during an investigatory stop at an airport may be appropriate. United States v. Acosta-Colon, 157 F.3d at 16-17. However, the Secret Service Agents have not identified and I have not found any cases where a court has concluded that transporting a stopped individual to a regular police station is permissible on the basis of an investigatory stop without probable cause.
Because Shah was transported from the protest — a place he was legally entitled to be — and law enforcement lacked probable cause to arrest him, his Fourth Amendment rights were violated when he was transported to the police station. Thus, Shah has overcome the first prong of the qualified immunity analysis for a Fourth Amendment transport.
(ii) The Second Prong
The second prong focuses "on whether [an] officer had fair notice that [his] conduct was unlawful." Brosseau v. Haugen, 543 U.S. 194, 198 (2004). This prong turns on the "`objective legal reasonableness' of the action, assessed in light of the legal rules that were `clearly established' at the time the action was taken." Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). That is, "the announcement of the rule establishing the right must have been unambiguous and widespread, such that the unlawfulness of the particular conduct will be apparent ex ante to reasonable public officials." Brady v. Dill, 187 F.3d 104, 106 (1st Cir. 1999). One method to determine whether a right was clearly establish "is to ask whether existing case law gave the defendants fair warning that their conduct violated the plaintiff's constitutional rights." Suboh v. Dist. Attorney's Office of Suffolk, 298 F.3d 81, 93 (1st Cir. 2002). In this case, the relevant inquiry is whether Shah's Fourth Amendment rights were clearly established at the time of the alleged infringement.
(A) Stopping Shah
I find that Shah's right not to be subject to an investigatory stop without law enforcement having reasonable suspicion was well established when the investigatory stop took place. As previously discussed, it has been well established law since Terry that police officers must have reasonable suspicion in order to make an investigatory stop. The question whether there was reasonable suspicion, however, remains disputed.
(B) Handcuffing Shah
I also conclude that law enforcement handcuffing of a stopped individual during an investigatory stop in the absence of a specific fact or circumstance that would lead a government official to believe that the restraints were necessary to carry out the stop was well-established. The First Circuit clearly articulated this standard in Acosta-Colon and it has remained the law in this circuit ever since. The question of flight, however, remains a factual question.
(C) Transporting Shah
I conclude that Shah's right not to be transported to a police station on the basis of reasonable suspicion was clearly established. Dunaway, Hayes, and Kaupp all forcefully teach that transporting an individual to a police station for a Terry stop without probable cause violates the individual's Fourth Amendment rights. At the time of the relevant actions, the case law was clearly established in this regard.
(iii) The Third Prong
This prong assesses whether a reasonable law enforcement agent would have understood that the alleged conduct violated Shah's Fourth Amendment rights. This inquiry "channels the analysis from abstract principles to the specific facts of a given case." Cox v. Hainey, 391 F.3d at 31. "[E]ven where a plaintiff has shown . . . that a government official may have deprived him of a clearly established constitutional right, qualified immunity remains available to defendants who demonstrate that they acted objectively reasonably in applying clearly established law to the specific facts they faced." Burke v. Town of Walpole, 405 F.3d 66, 86 (1st Cir. 2005). If a law enforcement officer's decision is "arguable or subject to legitimate question, qualified immunity will attach." Cox v. Hainey, 391 F.3d at 31.
The doctrine of qualified immunity is designed to insulate government officials from civil liability in certain situations where their conduct violated a plaintiff's constitutional rights. The doctrine acknowledges that government officials acting under pressure and changing circumstances cannot be expected to engage in the same careful, detailed, and deliberative legal analysis of constitutional rights that a judge can from the quiet of chambers. Consequently, the qualified immunity "doctrine eschews a line that separates the constitutional from the unconstitutional and instead draws a line that separates unconstitutional but objectively reasonable acts from obviously unconstitutional acts." Cox v. Hainey, 391 F.3d at 31. In this way, the qualified immunity doctrine provides government officials a margin of error for their actions.
(A B) Stopping And Handcuffing Shah
The alleged constitutional violations stemming from the initial stop and subsequent handcuffing of Shah relate only to Holloway. According to the complaint and statements of fact of both parties, Holloway was the law enforcement official responsible for initially stopping Shah and handcuffing him. Thus, the relevant issue in relation to these two alleged violations is whether a reasonable law enforcement agent would have understood that these alleged acts violated Shah's constitutional rights. Because of the factual disputes at issue in this case, it is not clear whether Holloway's act of stopping Shah and then handcuffing him were in fact Fourth Amendment violations. Thus, an analysis of this prong cannot be undertaken properly until the relevant underlying facts are resolved.
(C) Transporting Shah
The thrust of the Secret Service Agents' argument as to transport seems to be that a reasonable government official would not have understood that transporting Shah to the police station violated his Fourth Amendment rights because of the unusual circumstances surrounding the stop. The Agents observe that the DNC was a National Special Security Event, there had been terrorists attacks prior to the event, and that extensive security measures had been implemented to ensure safety at the convention. They appear to contend that in light of the generalized security concerns related to the convention, a reasonable government official would not have understood that transporting Shah to the police station violated his constitutional rights.
I find the Agents' argument in this regard unpersuasive. The various defendants acknowledge that they did not have probable cause and did not believe they had probable cause as to Shah. Instead the Agents claim that transporting Shah was justified on the basis of reasonable suspicion. An objectively reasonable government agent would not have reached this conclusion. As previously discussed, the law is clear that during a Terry stop government officials may not transport a stopped person to a police station without the person's consent. Thus, an objectively reasonable police officer who had reasonable suspicion to stop an individual would not have concluded he could transport that individual to a police station without violating that person's Fourth Amendment rights.
I also find the Agents' argument that their actions were not objectively unreasonable because of their interest in maintaining security at the DNC unconvincing. The Agents argue at length about terrorists attacks that occurred in the years leading up to the DNC as well as the specific security concerns associated with a national political event. Undoubtedly, the Agents were concerned with ensuring the safety of the DNC and Boston generally when they stopped Shah. However, their apprehensions about maintaining order are the same general concerns that guide police officers in their daily duties. Indeed, the duty to protect society from criminal threats is the driving purpose of law enforcement across the country. Thus, the Agents' safety concerns regarding the DNC would not have led an objectively reasonable government agent to conclude transporting Shah to the police station did not violate his Fourth Amendment rights.
This is not the end of inquiry, however. The evidence does not indicate who made the decision to transport Shah to the police station. Holloway claims not to have been involved with Shah after he was transported to the City Hall plaza. This claim may or may not be supported by the video recording. While Czellecz was involved in transporting Shah from City Hall plaza to the police station, it is not clear that he was involved in the the decision to move Shah. Also, there is ambiguity surrounding whether Czellecz had been informed that Shah was stopped on the basis of reasonable suspicion. More importantly, discovery provided after the dispositive motions were filed (which provides the basis for the Third Amended Complaint) raises the question whether the Secret Service Agents were acting under the direction of supervisors. It is well established that in situations where an "authorizing officer has made a factual mistake but the mistake is not apparent [to a subordinate or fellow officer]," the assisting officer is entitled to immunity. Liu v. Phillips, 234 F.3d 55, 57 (1st Cir. 2000) (citing United States v. Hensley, 469 U.S. 221, 232-33 (1985)). Similarly, when a subordinate officer relies on a superior officer's mistake of law that is unknown to the subordinate officer, qualified immunity is also appropriate. Id. at 57-58. The logic that informs these rules is simple: "a police force could not function without reasonable reliance on the statements and efforts of others." Id. at 57.
As previously discussed, at least two Secret Service agents were present at the City Hall Plaza. However, from the video recording it is not possible, at this time, for a disinterested fact finder to identify these men.
Smiddy testified that he and Czellecz had been in regular contact with Secret Service personnel before Shah's detention. By contrast, Czellecz and Holloway state they do not recall having any conversations prior to Shah's detention. The nature and substance of any such conversations remains unclear at that stage.
In light of these undeveloped issues, at least two factual questions need to be resolved. First, did Czellecz know that Shah had been stopped on the basis only of reasonable suspicion? And, second, did Czellecz and/or Holloway make or participate in the decision to transport Shah to the police station? These factual issues must be resolved before any qualified immunity analysis can be completed.
IV. DISCOVERY
As is apparent from the foregoing discussion, developing discovery has refined and extended this case and is likely to continue to do so. It appears, for example, that critical decision making regarding the manner and location of Shah's detention was made by Secret Service personnel superior in the command structure to Agents Holloway and Czellecz. Given the fluidity of crucial discovery, and the essential coincidence of qualified immunity analysis with the underlying merits issues, I am disinclined to undertake any further dispositive motion practice until completion of all discovery and any attendant further amendments to the pleadings. In order to establish a reliable schedule to bring evidentiary development and the joinder of parties and issues to conclusion, I solicited from the parties a joint scheduling proposal which I have today adopted.V. CONCLUSION
For the foregoing reasons, I have:ALLOWED Horan's Motion to Dismiss (#40);
ALLOWED Smiddy's Motion to Dismiss (#43);
ALLOWED The Motion to Dismiss or alternatively for Summary Judgment of Czellecz and Holloway (#47) except as to Fourth Amendment claims under § 1983 and Bivens; and
DENIED Shah's Cross Motion for Partial Summary Judgment (#52).