Johnson et al. v. Collins et al.

Johnson et a l . v . Collins et a l . CV-02-531-B 01/23/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Johnson, et. a l .

v. Civil No. 02-531-B Opinion No. 2004 DNH 024 Rodney C . Collins, et. a l .

MEMORANDUM AND ORDER

Richard and Maria Johnson and their son, Andrew, have sued

Newmarket Police Chief Rodney C . Collins and the Town of

Newmarket under 42 U.S.C. § 1983 and various state laws. The

Johnsons claim that Collins improperly obtained and executed a

warrant to seize Andrew Johnson’s computers, arrested Johnson

without probable cause for allegedly making a bomb threat and

defamed him and his parents by conducting a “public campaign” of

false accusations that led to Johnson’s expulsion from school.

The defendants seek summary judgment.

I. BACKGROUND A. The Search

On September 2 4 , 2001, Collins received a tip from Fremont

Police Chief, Neal Janvrin, that Johnson and another student, Dan

Gray, had bragged about using Johnson’s computer to “hack” into

classified files maintained by the Federal Bureau of

Investigation (“FBI”). Collins used Janvrin’s information to

obtain a warrant to seize Johnson’s computer.

The affidavit that Collins submitted with his warrant

application states that Janvrin obtained his information from an

unnamed informant. The informant told Janvrin that Johnson had

bragged about viewing confidential “FBI profiles” and that he and

a friend, Dan Gray, had gained access to the profiles by using

Johnson’s computer to “hack” into FBI files. The informant

claimed that Johnson had used a MacIntosh computer and had

drilled a hole in the floor of his bedroom so that he could gain

access to a telephone line. The informant also gave street

addresses for Johnson and Gray and claimed that Johnson’s father

was a member of the Newmarket School Board. Janvrin told Collins

-2- that the informant was “a very ‘reliable and credible person’ who

he is personally familiar with.” (Defs.’ Mem. Supp. Summ. J. Ex.

D). He also claimed that the informant had “no ax to grind.”

(Id.)

Collins determined that the informant had provided correct

street addresses for Johnson and Gray and had correctly claimed

that Johnson’s father was a member of the Newmarket school board.

Collins also verified through a Newmarket school official that

Johnson was “extremely intelligent and computer literate.” (Id.)

Collins executed the search warrant on September 2 5 , 2001.

Three computers and several computer-related items were seized.

The seized items were examined by the FBI but no charges were

brought against Johnson for hacking into FBI files.

B. The Bomb Threat

On February 7 , 2002, a bomb threat was found by a teacher at

the Newmarket Junior-Senior High School where Andrew was then a

student. Although the police received an anonymous letter

suggesting that Johnson was somehow involved, he was not

interviewed by the police.

-3- School officials discovered a second bomb threat on the

morning of March 8 , 2003. The threat, written on a science room

chalkboard, read, “This one’s for real. There is a bomb that

will explode between 9:00 a.m. and 1:00 p.m. Have a nice life.”

(Defs.’ Mem. Supp. Summ. J. Ex. K ) . The room where the threat

was found had been vandalized. Several computer and television

wires had been cut, the fire alarm had been destroyed, and the

teacher call-box had been pulled off the wall.

Joe Flaherty, a teacher, told a Newmarket police officer

that he had seen Johnson wandering the hallways twice in the late

afternoon of March 7 , 2002. The school principal, Deborah

Brooks, also stated that she had seen Johnson leave the school

that day around 4:30 p.m. Sean Alperin, a student, stated that

he had observed Johnson and Gray near the science room after

school on March 7 , 2002. Alperin told police that when he asked

them what they were doing, Gray stated, “we did something pretty

funny but we won’t say because we could get into trouble.” (Id.)

Gray told police that Johnson had gone into the science room

around 3:15 p.m. and told him to make sure no one came i n . Gray

stated that he had observed Johnson cut some computer wires with

-4- scissors and then write something on the chalkboard. Gray

further stated that he could not see what Johnson had written but

he did observe Johnson walk away from the chalkboard wiping chalk

dust off his hands. During a subsequent interview, Gray added

that Johnson had admitted writing the threat.

On March 1 4 , 2002, the Newmarket police received an

anonymous tip that Johnson was involved in the March 7th bomb

threat. That same day Collins obtained Johnson’s fingerprints by

warrant. Five of six latent fingerprints taken from the

chalkboard failed to match Johnson’s prints; the sixth impression

was inconclusive. Collins did not seek fingerprint impressions

from anyone else.

On April 2 8 , 2002, Collins submitted a sworn affidavit

seeking an arrest warrant for Johnson. The affidavit summarized

the facts surrounding both bomb threats and the police interviews

of Johnson, Gray, and Alperin, but did not include the results of

the fingerprint analysis. The judge issued the warrant and

Johnson was arrested at school on April 2 9 , 2002, for criminal

mischief and for falsely reporting a bomb threat. Johnson was

later convicted of vandalizing school equipment. The court

-5- dismissed the charge involving the bomb threat.

C. The Expulsion

Johnson was suspended for 20 days following his arrest and

on June 4 , 2002, the Newmarket School Board voted to expel

Johnson for the balance of the school year for “gross

misconduct.” (Pls.’ Compl. ¶ 9 0 ) . After the charge involving

the bomb threat was dismissed, Superintendent Denis Joy allowed

Johnson to conditionally return to school on August 2 8 , 2002.

One condition was that Johnson would be expelled if he committed

any offense calling for suspension from school. On October 4 ,

2002, Johnson violated a computer-use policy which called for a

one-day suspension, and Joy summarily expelled Johnson from

school.

On August 1 7 , 2002, Johnson’s parents asked the school board

to reverse the June 4 , 2002 expulsion order. Collins sent a

rebuttal letter to Joy, in which he referred to Johnson as “a

safety threat”, “their lying son, Andrew” and “a calculating

liar.” (Defs.’ Mem. Supp. Summ. J. Ex. F ) . In August and

September 2002, Collins also gave interviews and wrote guest

columns for local news publications. In these publications,

-6- Collins referred to Johnson (although not by name) as a safety

threat to the school, and publicly advocated against Johnson’s

reinstatement. The Johnsons allege that Joy expelled Johnson

based on a public campaign by Collins to defame them and to keep

Johnson out of Newmarket Junior-Senior High School.

I I . STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). A trial is only necessary if there is a genuine factual

issue “that properly can be resolved only by a finder of fact

because [it] may reasonably be resolved in favor of either

party.” Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 , 250

(1986). A material fact is one that affects the outcome of the

suit. See id. at 248.

In ruling on a motion for summary judgment, I must construe

the evidence in the light most favorable to the non-movant. See

-7- Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001). The

party moving for summary judgment, however, “bears the initial

responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323

(1986). Once the moving party has properly supported its motion,

the burden shifts to the non-moving party to “produce evidence on

which a reasonable finder of fact, under the appropriate proof

burden, could base a verdict for i t ; if that party cannot produce

such evidence, the motion must be granted.” Ayala-Gerena v .

Bristol Myers-Squibb Co., 95 F.3d 8 6 , 94 (1st Cir. 1996)

(citation omitted). Neither conclusory allegations, improbable

inferences, or unsupported speculation are sufficient to defeat

summary judgment. See Carroll v . Xerox Corp., 294 F.3d 2 3 1 , 236-

37 (1st Cir. 2002).

III. DISCUSSION

A. Federal Claims - Collins

1. The qualified immunity standard

Collins claims that he is entitled to qualified immunity

-8- with respect to plaintiffs’ federal claims.

“The doctrine of qualified immunity protects ‘government

officials performing discretionary functions . .. . from liability

for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Mutter v . Town of Salem,

945 F. Supp. 4 0 2 , 405 (D.N.H. 1996) (quoting Harlow v .

Fitzgerald, 457 U.S. 8 0 0 , 818 (1982)). A two-part inquiry is

used to determine whether an officer is entitled to qualified

immunity. First, I consider whether the facts alleged, taken in

the light most favorable to the party asserting the injury,

demonstrate that the officer’s conduct violated a constitutional

right. Santana v . Calderon, 342 F.3d 1 8 , 23 (1st Cir. 2003)

(quoting Saucier v . Katz, 533 U.S. 1 9 4 , 201 (2001)). If a

constitutional violation is established, I then determine whether

“the contours of this right are ‘clearly established’ under then-

existing law so that a reasonable officer would have known that

his conduct was unlawful.” Id. (quoting Dwan v . City of Boston,

329 F.3d 275, 279 (1st Cir. 2003). If the law would not have put

a reasonable officer on notice that his or her conduct was

-9- unlawful, summary judgment based upon qualified immunity is

appropriate. See Kelley v . Laforce, 288 F.3d 1, 6 (1st Cir.

2002); See also Malley v . Briggs, 475 U.S. 335, 341 (1986)

(qualified immunity protects “all but the plainly incompetent or

those who knowingly violate the law”).

2. Search Warrant Claim

The Johnsons contend that the warrant Collins obtained to

seize Johnson’s computer was not supported by probable cause.

They further argue that Collins is not entitled to qualified

immunity with respect to this claim because a reasonable police

officer in Collins’s position would have understood that the

warrant had been improperly issued.

When ruling on the sufficiency of a search warrant

application, the court must consider the “totality of the

circumstances” described in the supporting affidavit. United

States v . Beckett, 321 F.3d 2 6 , 31 (1st Cir. 2003). Deference

should be given to reasonable inferences that the issuing judge

could have drawn from the affidavit. See id. Among the factors

that a reviewing court will consider in determining whether

information supplied by an unnamed informant is sufficient to

-10- support a probable cause determination are:

[w]hether an affidavit supports the probable veracity or basis of knowledge of persons supplying hearsay information; whether informant statements are self- authenticating; whether some or all of the informant’s factual statements were corroborated wherever reasonable and practicable . .. . ; and whether a law enforcement affiant included a professional assessment of the probable significance of the facts related by the informant based on experience or expertise.

United States v . Barnard, 299 F.3d 9 0 , 93 (1st Cir. 2002)

(quoting United States v . Khounsavanh, 113 F.3d 279, 284 (1st

Cir. 1997)).

Collins relied primarily on information supplied by

Janvrin’s informant to support the issuance of the warrant. This

reliance was misplaced, however, because the judge who issued the

warrant could not determine from the application whether the

informant’s information was based on first-hand knowledge or mere

rumor. This deficiency is fundamental and cannot be overcome by

the other information on which Collins relied.

Although Collins cited Janvrin’s opinion that the informant

was highly reliable, his affidavit fails to identify any evidence

of past reliability against which the opinion could be tested.

As the First Circuit recently remarked in this regard, “[a] mere

-11- assertion of reliability without any information regarding the

basis for the officer’s belief, such as past tips leading to

arrests, is entitled to only ‘slight weight.’” Barnard, 299 F.3d at 93 (citing to Khounsavanh, 113 F.3d at 2 8 6 ) . Such

unsubstantiated assertions of reliability are even less useful in

a case like this where the application does not explain how the

informant acquired her information.

Collins’s attempt to corroborate the informant’s claims also

fails to bolster the informant’s reliability because he was only

able to corroborate innocent details. See Khounsavanh, 113 F.3d at 284 (corroboration of innocent details “do not demonstrate

that the informant has a legitimate basis for knowing about the

defendant’s allegedly criminal activity”). Since the application

fails to point to any other evidence to support Collins’s claim

that Johnson’s computers contained evidence of illegal activity,

it failed to establish probable cause to justify the issuance of

the warrant.

The Johnsons cannot prevail, however, merely by establishing

that the warrant was not supported by probable cause. Under

well-established precedent, Collins will be entitled to immunity

-12- unless “the warrant application is so lacking in indicia of

probable cause as to render official belief in its existence

unreasonable.” Rodrigues v . Furtado, 950 F.2d 805, 812 (1st Cir.

1991) (citing Malley v . Briggs, 475 U.S. 335, 341 (1986)).

The Johnsons cannot meet this difficult standard because the

affidavit contains enough incriminating information to permit a

reasonable police officer to mistakenly conclude that the issuing

judge acted properly in issuing the warrant. While I have

determined that Janvrin’s opinions concerning the informant’s

reliability and Collins’s successful corroboration of several of

the informant’s assertions were not sufficient to establish the

informant’s reliability, I cannot say that a reasonable officer

necessarily would have identified these deficiencies. When an

impartial judge decides that a warrant application is supported

by probable cause, and the affidavit submitted with the

application alleges facts that provide a plausible basis for the

issuance of the warrant, an officer who mistakenly relies on the

issuing judge’s probable cause determination cannot be held

personally liable for executing a defective warrant. This is the

case here.

-13- 3. Unlawful Arrest Claim

The Johnsons argue that Collins is liable for Johnson’s

illegal arrest on the bomb threat charge because he failed to

inform the judge who issued the arrest warrant that fingerprint

impressions taken from the chalkboard on which the bomb threat

had been written did not match Johnson’s fingerprints. When a

police officer leaves relevant material out of an affidavit in

support of an arrest warrant, the court must determine whether

there remains “‘sufficient content in the warrant affidavit to

support a finding of probable cause.’” Mutter v . Town of Salem,

945 F. Supp. 4 0 2 , 407 (D.N.H. 1996) (quoting Franks v . Delaware,

438 U.S. 1 5 4 , 171-72 (1978)).

Although Collins should have referenced the fingerprint

report in his application for the arrest warrant, his omission

does not undermine the other evidence contained in the affidavit

which was more than sufficient to support a finding of probable

cause. See Mutter, 945 F. Supp. at 407. In seeking an arrest

warrant, Collins relied on (1) the anonymous letter indicating

that Johnson had been involved in the February 7th bomb threat;

(2) statements of a teacher, the principal, and two students that

-14- Johnson had been near the room where the March 7th threat was

found; (3) an anonymous tip indicating that Johnson had been

involved in the second bomb threat; and (4) Gray’s statements

that he had observed Johnson in the science room on March 7 , 2002

cutting several computer and televison wires with scissors, that

he had observed Johnson pick up a piece of chalk and write

something on the board and then walk away from the board, wiping

chalk dust off his hands, and that Johnson had admitted writing

the bomb threat.

Even if Collins had provided the results of the fingerprint

analysis to the issuing judge, the facts stated above would have

created sufficient probable cause to support the arrest warrant.

Because the arrest warrant was supported by probable cause,

Collins did not violate Johnson’s constitutional rights by

arresting him on the bomb threat charge. Collins is therefore

entitled to qualified immunity on the unlawful arrest claim. See

Santana v . Calderon, 342 F.3d 1 8 , 23 (1st Cir. 2003).

4. Constitutional Defamation Claim

The Johnsons claim that Collins violated their rights under

the Fifth and Fourteenth Amendments by embarking on a public

-15- campaign to malign the Johnson family and prevent Johnson from

attending school. I understand them to be asserting a

constitutional claim for defamation.

The United States Supreme Court has held that a government

official’s defamatory statements are not sufficient, standing

alone, to support a constitutional claim. See Paul v . Davis, 424 U.S. 693, 701-02 (1976). In response, the lower federal courts

have developed a “stigma plus” test to evaluate such claims.

See, e.g., Hawkins v . R.I. Lottery Comm’n, 238 F.3d 1 1 2 , 115 (1st

Cir. 2001). Under this test, the defamation must be coupled with

the loss of an important benefit such as government employment.

See id. Moreover, to be liable on a stigma plus claim, the

defendant must be responsible for both the defamation and loss of

the government benefit. See id. at 116 (rejecting claim against

governor because he did not participate in employment termination

decision). Johnson cannot satisfy this requirement because

Collins did not participate in the school board’s decision to

expel Johnson. Accordingly, Collins is entitled to qualified

immunity with respect to the constitutional defamation claim.

-16- B. Federal Claims - Newmarket

The Johnsons seek to hold Newmarket liable for Johnson’s

allegedly unconstitutional conduct.

In order to state a § 1983 claim against a municipality or a

municipal subdivision, a plaintiff must allege that: (1) a

municipal policymaker intentionally adopted a policy, implemented

a training protocol, or allowed a custom to develop; (2) the

challenged policy, training protocol or custom caused a violation

of the plaintiff’s constitutional rights; and (3) the policymaker

acted either with deliberate indifference or willful blindness to

the strong likelihood that unconstitutional conduct will result

from the implementation of the policy, training protocol or

custom. City of Canton v . Harris, 489 U.S. 3 7 8 , 385 (1989);

Maldonado-Denis v . Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir.

1994); Manarite v . Springfield, 957 F.2d 953, 958 (1st Cir.

1992).

I have determined that Collins did not violate Johnson’s

constitutional rights when he arrested him on the bomb threat

charge and when he allegedly defamed him. Accordingly,

plaintiffs’ attempts to hold Newmarket liable for the same

-17- alleged misconduct necessarily fail. See Evans v . Avery, 100 F.3d 1033, 1040 (1st Cir. 1996). This leaves only plaintiffs’

claim that Newmarket is liable for Collins’ illegal seizure of

Johnson’s computers.

In certain circumstances, a municipality may be subject to

liability for a single unconstitutional act by a municipal

policymaker. See Kelley, 288 F.3d at 9. The municipality will

be liable, however, only when the “decisionmaker possesses final

authority to establish municipal policy with respect to the

action . .. . .” Id. (quoting Pembaur v . City of Cincinnati, 475 U.S. 469, 481 (1986) (plurality opinion). Collins has admitted

that he is a municipal policymaker with respect to all law

enforcement issues, including decisions to apply for and execute

search warrants, and it does not appear that Newmarket can

credibly dispute this point. Thus, it is not entitled to summary

judgment with respect to plaintiffs’ claim challenging the

seizure of Johnson’s computers because I have determined that the

seizure was unlawful.

C. State Law Claims

The Johnsons assert a variety of state law claims that are

-18- unrelated to the only federal claim that remains viable. Because

the parties are not diverse, I have jurisdiction over the state

law claims only to the extent that they are supplemental to the

remaining federal claim. See 28 U.S.C. § 1367. Because it

appears that the state law claims “substantially predominate[]

over the claim or claims over which the district court has

original jurisdiction,” 28 U.S.C. § 1367 (c)(2), I propose to

sever the state law claims and dismiss them without prejudice so

that the Johnsons can litigate them in state court.

IV. CONCLUSION

I grant defendants’ motion for summary judgment with respect

t o : (1) plaintiffs’ federal claims against Collins in his

individual capacity; and (2) plaintiffs’ federal claims against

Newmarket for Johnson’s arrest and Collins’s alleged campaign of

defamation. I deny the motion with respect to plaintiffs’ claim

against Newmarket based on the illegal seizure of Johnson’s

computers. I propose to deny defendants’ motion for summary

judgment with respect to plaintiffs’ state law claims and dismiss

those claims without prejudice to both plaintiffs’ right to

-19- litigate them and defendants’ right to challenge them in state

court. Any party objecting to the proposed disposition of

plaintiffs’ state law claims shall file an objection and a

supporting memorandum on or before February 6, 2004.

SO ORDERED.

Paul Barbadoro Chief Judge

January 2 3 , 2004

cc: Paul McEachern, Esq. William G. Scott, Esq.

-20-