USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1226

RORY C. HOLLAND,

Plaintiff, Appellant,

v.

CITY OF PORTLAND, SULLIVAN RIZZO and BRUCE COFFIN,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Boudin, Circuit Judge,

_____________

and Lisi,* District Judge.

______________

____________________

Stuart W. Tisdale for appellant.

_________________
John E. Sedgewick with whom
__________________

Berman & Simmons, P.A.

______________________

for appellees.

____________________

was on br

December 6, 1996
____________________

____________________

*Of the District of Rhode Island, sitting by designation.

BOUDIN, Circuit Judge.

_____________

Rory Holland

sued the City

of

Portland,

Maine, and two

Rizzo

and Bruce

under

42

Coffin, for

U.S.C.

allegedly

Portland police officers, Sullivan

1983

wrongful false

and

appeals

judgment on

from

the

Maine tort

arrest and

discovery, the district court

for summary

damages and

injunctive relief

law

for Holland's

detention.

Following

granted the defendants' motion

all of

court's

Holland's claims.

judgment

Holland

dismissing

his

section 1983, but not his state law, claim.

The

follows.

police

facts,

taken most

At about 1:20

favorably

p.m. on October

radio traffic reported a

Canal Plaza.

to

Holland, are

18, 1994, Portland

robbery at the

Key Bank in

The police dispatcher described the suspect

a black male, about 6'2"

as

as

tall, 185 pounds, unshaven, wearing

a brown jacket, possibly suede, and a black hat, and carrying

a black leather

suspect

had fled

briefcase.

on

The dispatcher reported that the

foot and

did

not indicate

that

any

day, Holland

was

vehicle had been involved.

Shortly after 2:00

driving

Portland.

and

Subaru to

p.m. on

the

He drove past

turned the

corner.

report about the robbery.

that

the same

Cumberland

County Courthouse

in

a bicycle patrolman, Daniel Knight,

Knight

had heard

the dispatcher's

When he saw the Subaru, he noticed

the driver, Holland, was a tall, thin black man wearing

a brown

or black jacket and

a hat who appeared

-2-2-

to meet the

description

of the suspect, and he also noticed that the car

had no back window.

Knight reported to the police dispatcher, "Ten-twenty on

Rory Holland, he's in the area."

Holland, he

Although Knight had not met

thought that the Subaru

of Holland that

dispatcher asked

reported suspect.

Knight had

driver fit descriptions

seen in police

if Holland's

bulletins.

clothing matched that

The

of the

Knight did not respond, but the dispatcher

immediately sent

backup police units and

indicated that the

suspect was a "possible match."

After

turning the

corner

Holland parked

his car

started walking across the street towards the courthouse.

wore a

brown tweed jacket and

a brown leather

carrying a black nylon briefcase

Knight

Holland

stopped

by

name, said

committed and

asked about

Holland

asked

in

He

hat, and was

and a white canvas bookbag.

the crosswalk

that a

and

bank

where Holland

and,

addressing

robbery had

had been.

the contents of Holland's bag.

just been

Knight

also

Holland remained

silent.

Coffin, Rizzo,

scene, and

and another officer soon

the officers then

walked up to

arrived at the

Holland, backing

him up to

history

his car.

from

department and

Rizzo had

Coffin was familiar

information

thought that

also heard

circulated

with Holland's past

within

the Subaru driver

about Holland in

the

police

was Holland.

department briefings

-3-3-

and

previously had seen a photograph of Holland.

Coffin and

Rizzo then began to ask Holland questions concerning the bank

robbery.

Although

arrest,

had

told

Holland

and that the police

bank robbery,

rear

Rizzo

that he

just wanted to

Holland remained silent.

window in Holland's car,

been driving.

not

under

learn about the

Noticing the missing

Rizzo asked Knight if Holland

When Knight

allegedly said, "well, then we

was

said

that he

had,

Rizzo

can get him for not having

license

or something or other."

Rizzo then said, "Rory, you

know, I

can arrest you if you don't show me a valid driver's

license and tell me where you live . . . ."

Holland continued to remain silent.

several more times to

Rizzo asked Holland

produce his license and to

tell Rizzo

where he lived, saying that otherwise Rizzo would

"for failure to

identify yourself to me."

told Holland that he was under arrest.

arrest him

Eventually, Rizzo

At that point, Rizzo

and Coffin patted down Holland, removed his wallet, and found

a driver's license in

as Rory Holland.

the wallet that identified

Rizzo then allegedly said,

the driver

"I guess we got

a license in here, I guess we can't get you for that."

Coffin and

Jail.

Rizzo took Holland to

According to Holland, some officers referred to him as

bank robbery suspect.

booking

the Cumberland County

Holland refused to

officer or others at the jail.

-4-4-

speak with the

Holland was released

on

bail after

suspect.

the police

Ultimately, no

apprehended another

charges of any

bank robbery

kind were

pressed

against Holland.

Thereafter,

Rizzo, Coffin

Holland

and the

brought the

city.

As

present

the basis for

1983 claim, Holland alleged that his arrest had

Fourth Amendment's protection

and

seizures

made

applicable

suit against

his section

violated the

against unreasonable

to the

states

searches

through

the

Fourteenth

Amendment.

Specifically, the

that the police lacked

reason,

complaint alleged

probable cause to arrest him

that the actual charge

for questioning about

was a pretext

the bank robbery, and

for any

to detain him

that the arrest

was retaliation for his refusal to speak.

In the

course of discovery Holland--who

been in disputes with

weeks

before

information

Knitting

had previously

the Portland police--learned that some

the

arrest,

about him

in

the bulletins

police

so-called crime

together with the

suggested that his arrest

harassment directed against

not amend his complaint.

the

had

circulated

alert bulletins.

disputes, Holland

was part of a general

campaign of

him by the police.

Holland did

On

January 25,

1996,

the district

defendants' motion for summary

ruled that

the police had

for failing to identify

judgment.

court granted

the

The district court

probable cause to

arrest Holland

himself or provide his license.

It

-5-5-

called

the charge of harassment "hollow."

And it ruled that

the city was not liable because, quite apart from the lack of

a municipal custom or policy, this arrest had been justified.

Holland now appeals.

1.

On review of a grant of summary judgment, this court

considers the matter de novo, taking the facts most favorably

_______

to the non-moving party.

F.3d 20, 24 (1st

(1996).

We

Cir. 1995), cert. denied,

____________

begin

by considering

probable cause to arrest

known

to the police

criminal offense.

with

violating

St. Hilaire v. City of Laconia,

___________
_______________

whether

116 S. Ct.

71

2548

the police

had

Holland--that is, whether the facts

indicated that Holland

had committed a

The parties agree that Holland was charged

29

Me.

renumbered) which said:

Rev.

Stat.

Ann.

2501

(later

Whoever, while operating

a vehicle in violation

of this [motor vehicle regulations] Title, fails or

refuses, when requested by an officer authorized to
make arrests, to give
address

the operator's correct name,

and date of birth

is guilty of

a Class E

crime.

At first

make the

was

blush, the literal language

officers' authority depend upon

actually operating in violation

might appear to

whether the driver

of state law.

But the

Maine Supreme Judicial Court

has interpreted section 2501 to

permit an

driver and ask his

basis of an

officer to stop a

articulable suspicion that

something wrong.

(Me. 1996).

the driver has

State v. Littlefield, 677 A.2d

_____
___________

Indeed, even

name on the

1055, 1057

if it then becomes clear that

-6-6-

done

the

suspected violation

insist

on

seeing

had not occurred, the

the

driver's

officer may still

license and

registration.

State v. Hill, 606 A.2d 793, 794-95 (Me. 1992).

_____
____

Holland may

driving with a

window,

or

any

not have violated any motor

missing rear

window.

other similar

But

vehicle law by

the missing

non-cosmetic

damage,

rear

could

reasonably

Me.

create a suspicion of

Rev.

Stat.

Ann.

such a violation.

2503(1)(D)

(requiring

vehicle equipment "[n]ot pose a hazard . . . .").

the officers asked Holland

required

(authorizing

arrest

his name, address,

See 17-A Me. Rev. Stat.

___

for

that

motor

Thus, when

to identify himself, section 2501

Holland to provide

birth--or face arrest.

See 29
___

Class

E crimes

and date of

Ann.

committed

15(B)

in

an

officer's presence).

Holland does

not challenge the initial

stop, see Terry

___ _____

v. Ohio, 392 U.S. 1 (1968), nor argue that the statute itself
____

is unconstitutional.

(1971).

He

Cf. California
___ __________

v. Byers, 402 U.S.

_____

instead argues that the police

424

had no reason to

request his name since they already knew it, citing Rodriguez

_________

v. Comas,
_____

requires

888 F.2d 899 (1st

the motorist

reasonably

insist

also sought

required

Cir. 1989).

to supply

his name,

upon confirmation.

Holland's

But

present address,

where the law

the police

Further,

which

can

the police

the

statute

him to provide, and there is no indication that the

police had this information.

-7-7-

Holland's reliance on

Rodriguez

misplaced.

There,

was arrested on a charge of obstruction of justice

because he declined

officer.

Rodriquez is
_________

to provide

his name and

address to

an

Rodriquez was well known to the officer, and there

was no separate statute--such

requiring that he provide

as Maine's motor vehicle law--

his name and address.

This court

held only that the refusal could not even arguably constitute

"obstruction of

justice" where

the refusal to

provide this

already-known information neither could nor did

obstruct the

officer's investigation.

Quoting language from

888 F.2d at 902.

other cases, Holland

also claims

that police officers

obtain the

information that

investigation.

Cir.

But

may not

See Sevigny
___ _______

1988); BeVier v. Hucal,

______
_____

these

demand

cases impose

that officers

no

arrest a suspect

they seek through

v. Dicksey,
_______

806 F.2d 123

such

Sevigny, 846 F.2d at

_______

Holland

committed

a reasonable

846 F.2d

953 (4th

(7th Cir. 1986).

offense

they

investigation to

exists to arrest a suspect.

957-58; BeVier, 806 F.2d at 127.

______

the

can

limitation; rather,

undertake reasonable

determine whether probable cause

_______

if they

in

the

presence

Here,

of

the

brief

to

officers.

2.

disputing

Although

Holland

devotes

much

of his

the police claim of probable cause, he has a fall-

back contention less easily

resolved.

Fairly construing his

arguments,

we

take him

to

challenge the

validity

of his

-8-8-

arrest

strongly

even

assuming

but we

that the police

probable

find to be

cause

(which

established).

nominally arrested him for

In

he

disputes

sum, he says

refusing to give

his

name and address but

that this was

a "pretext" because

the arrest was motivated by other, more sinister objectives.

On Holland's

at

this stage,

version of events, which

see St. Hilaire,

___ ____________

reason for thinking that

the

71 F.3d

at 24,

the police did not care

there is

much about

missing car window or Holland's failure to give his name

or address.

find

must be credited

that

violation

Indeed,

the

police

in order

bank robbery,

a jury, after a full

arrested

to pursue

Holland

trial, might well

for

technical

their investigation

suspecting Holland

of complicity

into the

but perhaps

lacking enough evidence to arrest him on this charge.

The term "pretext" is sometimes used, as Holland uses it

here,

with the

assertion that

the police

arrest otherwise based on probable cause when

may not

make an

their true aim

is

to forward

dicta, it is

some

hard to

proposition; one

States v.
______

Our

own

other investigation.

find recent holdings

exception is the Eleventh

Valdez, 931 F.2d

______

circuit,

like

But aside

from

to support

this

Circuit.

1448, 1450-51 (11th

several others,

-9-9-

has

United
______

Cir. 1991).

rejected

the

inquiry into motive.

United States
_____________

v. McCambridge, 551 F.2d

___________

865, 869-70 (1st Cir. 1977).1

In all

events, the

matter in Whren
_____

holding

that

Supreme Court recently

v. United States, 116 S.

______________

"[s]ubjective

intentions

ordinary, probable-cause Fourth Amendment

1774.

There, the

Court explicitly

settled the

Ct. 1769

play

no

(1996),

role

analysis."

rejected the very

in

Id. at
___

test

used by the Eleventh Circuit in Valdez which asks whether the

______

officer

"would" have

"other" motive.

v. Robinson,
________

See
___

414 U.S.

made

the stop

or

arrest absent

id. at 1774-75; see also

___
________

218, 221 n.1

the

United States
_____________

(1973) (lawful

traffic

violation arrest was not unconstitutional, despite claim that

it was "a mere pretext for a narcotics search").

The conflicting policy concerns are obvious.

hand,

motor vehicle

minor

violations, making it easy

excuse; on

bright

the

operation

other hand,

line standard

often gives

the

while an

arrests, where

probable cause

rise to

fairly

for the police

to find an

violation does

provide

inquiry into

directly or indirectly, invites all kinds

Whren, 116 S. Ct. at 1774-75.

_____

On the one

actual motive,

of diversion.

See
___

Further, "pretextual" stops or

exists and

the motive

is to

____________________

1To the annoyance of

the

circuits

whether

has favored

commentators, the dominant view in

a strictly

objective test

probable cause justifies a search or an arrest.

1 LaFave, Search and Seizure

___________________

1.4(e), at 120-21

ed. 1996).

-10-10-

as to
See
___

& n.61 (3d

investigate another crime, may not seem

all that sinister to

the Justices, who were unanimous in Whren.

_____

How

far

Whren would
_____

extend

motives or other constitutional

question,

version

hold

and one

not entirely

in

of

dubious

concerns is a more difficult

avoidable here.

Holland's

of events suggests that the police aimed not only to

him for further investigation

itself was

retaliation for

about the robbery.

but also that the arrest

____

his refusal to

answer questions

According to Holland, after he refused to

answer any questions about the bank

because

the face

robbery, Rizzo said that

Holland had been driving, "well, then we can get him

for not having

further asserted

a license

or something or

that Rizzo

other."

was "obviously upset

Holland

and angry

with me

that I would

not speak

with him at

all about

the

robbery."

Holland's

and the

and

the

law on

brief barely refers

to the

the relationship between

privilege

embarrassing tangle.

against

Fifth Amendment;

police questioning

self-incrimination

is

Historically, the privilege and police

questioning were unconnected, see 8 Wigmore, Evidence

___
________

at 328-29

(McNaughton rev.

ed. 1961);

and the

2252,

more modern

blurring of lines has left unclear whether the privilege

ever be

an

violated by such questioning

statement is thereafter used

can

where no incriminating

in a proceeding.

See
___

Wiley v.
_____

-11-11-

Mayor and City Council of Baltimore, 48 F.3d 773, 777-78 (4th

___________________________________

Cir.) (Powell, J.) cert. denied, 116 S. Ct. 89 (1995).2

____________

Even

defendants

if the

do

obligation to

not

Fifth Amendment

suggest

answer questions

that

is put

Holland

to one

had

about the robbery.

side, the

any

legal

Compare
_______

Brown v. Texas, 443 U.S. 47, 52-53

_____
_____

did not purport

question

While the police

to arrest Holland for refusing to cooperate,

the facts might permit

underlying

(1979).

a jury to think

motivation.

remains

Yet

whether

otherwise justified

such

assuming

that this was

this

motive

by probable cause alters

their

premise,

for

an

the

arrest

the message of

Whren.
_____

In

our view, it does not.

The police, prosecutors, and

courts constantly make judgments--including decisions

not to

prosecute or to permit or impose a reduced sentence--based on

an assessment

to arrest,

one informed

of an individual's cooperation.

where probable

by many

cause exists, is

considerations.

And

The decision

a discretionary

any attempt

to

untangle

the

ascribed motive

prompting an

arrest justified

from

a skein

by objective

of

others, in

probable cause,

____________________

2Of course,

Holland never

asserted the

privilege when

questioned, as

is customarily required.

The Supreme Court

has

this

apply in

said that

station

questioning

Murphy, 465
______

requirement may
or

like

interrogation,

U.S. 420, 429-30 (1984),

it ruled that one held briefly

custody" for purposes

not

police-

Minnesota
_________

v.

but shortly thereafter

in a traffic stop was not "in

of Miranda.
_______

U.S. 420, 440 (1984).

-12-12-

Berkemer v.
________

McCarty, 468
_______

would

invite

exactly

the

inquiry into

police

motivation

condemned by Whren.
_____

Actual motive sometimes does play a role in section 1983

actions.

(discharge

rights).

given

E.g., Waters
____ ______

in retaliation

invoked.

Churchill, 511
_________

for exercise

But in evaluating

primacy

standards,

v.

even

to

the

Amendment's

(1994)

First Amendment

arrests, the Supreme

Fourth

where other

of

U.S. 661

own

constitutional bases

Court has

objective

might be

Thus, the Court recently rejected an attempt to use

substantive

due process

as a

more favorable

assessing a claim, at least insofar

unlawful detention.

framework for

as it was deemed one for

Albright v. Oliver, 510 U.S. 266, 274-75

________
______

(1994).

This does not mean

possible

implies

challenge

that an

despite probable

that probable cause forecloses every

to an

equal

arrest.

Whren itself
_____

protection challenge

cause existing, might

to an

yet be

strongly

arrest,

entertained,

although the court does not say what facts would be needed to

support such a challenge.

showing

116 S. Ct. at 1774.

that (for example)

arrested for a specific,

a different

only blacks or

An objective

Asians were ever

widely committed offense would pose

case than Whren.

_____

See
___

Yick Wo v.
_______

Hopkins, 118
_______

U.S. 356 (1886).

This brings us to Holland's final claim of

illicit

motive for the arrest.

ascribing an

It is evident from Holland's

-13-13-

deposition that he himself

thinks (based on prior incidents)

that he was a target of general police harassment, resting in

part

on the

fact he

unsubstantiated

not

is black.

But

the racial
______

charge is

by anything we can find in the record and is

directly urged in Holland's appellate brief.

We note it

only to stress that our decision does not reach the difficult

issues

that might

be raised

racial discrimination.

by a

substantiated

Compare United States v.

_______ _____________

charge of

Armstrong,
_________

116 S. Ct. 1480, 1486-88 (1996).

Putting aside racial motives,

court deemed

the entire

harassment

declined to discuss it at length.

accepts

we note that the district

charge unsupported

and

On the other hand, if one

Holland's deposition testimony, there were obviously

prior incidents and some

the police.

ongoing tension between Holland and

In addition, Holland's name had

been circulated

within

would

the police department,

not

be wrongful.

See
___

although that

Paul v.
____

standing alone

Davis, 424
_____

U.S. 693

(1976); United States v. Egemonye, 62 F.3d 425, 428 (1st Cir.

_____________
________

1995).

But

even

Holland had

if assuming

been harassed in the

reasonable jury could decide

arrest

in this instance.

Holland's

arrest.

that

jury

might think

past, we do not

see how a

that this was the cause

Such a charge

that

of his

is contradicted by

own precise version of what the police said at the

That

version indicates

-14-14-

that the

police officers'

immediate reasons for

that

Holland was

aggravated

by

the arrest

a suspect

his

refusal

were, at

in

the bank

to cooperate

worst, a

belief

robbery, possibly

or

disclose

his

whereabouts at the time.

We

road

to climb

general

Whren,

must say in candor that Holland would have an uphill

police

even if

he had

animosity lay

any plaintiff is

plausibly claimed

behind

going to

this

that some

arrest.

have difficulty

Given

in using

_____

subjective

motive to

attack

an arrest

objectively justified by probable

in

cause.

which is

otherwise

But the variations

facts, and certain extreme possibilities, caution against

deciding too much in the abstract.

3.

depended

The

on

claim

of

Holland's

municipal

claim

that

liability in

the

this

officers

case

violated

Holland's constitutional rights by arresting him as a part of

their campaign

the

of harassment.

Holland sought

to implicate

city, under Monell v. New York City Department of Social

______
__________________________________

Services, 436
________

harassment grew

U.S. 658,

694 (1978),

out of an officially

by

charging that

the

established program of

targeting suspects, including the circulation

of information

about them.

Whatever

maintained

"custom

toward

suspicious, Holland

or

policy"

individuals

that

cannot show that

and moving force behind," his arrest

-15-15-

the

the

city

may

police

have

deemed

it was "the

cause of,

in this case.

Foley v.
_____

City of Lowell, 948 F.2d 10, 14 (1st Cir. 1991).

______________

have

concluded that

probable cause

the

existed and Holland has

basis for overcoming Whren.

_____

was properly dismissed.

Affirmed.
________

arrest was

Further, we

itself lawful

because

offered no supported

Thus, the claim against the city

-16-16-