Zenon v. Guzman , 924 F.3d 611 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1119
ABINEL ZENON,
Plaintiff, Appellant,
v.
ASSOCIATE JUSTICE MARGARET GUZMAN,
in her official capacity,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Thompson, and Barron,
Circuit Judges.
Dana Goldblatt, with whom Law Office of Dana Goldblatt was on
brief, for appellant.
Kerry D. Strayer, Assistant Attorney General, with whom Maura
Healey, Attorney General was on brief, for appellee.
May 15, 2019
THOMPSON, Circuit Judge. This federal case is brought
by an aggrieved litigant who asks us to step in and change the way
some things turned out for him in state court in Massachusetts.
Specifically, appellant Abinel Zenon sought a declaratory judgment
labelling as unconstitutional a protective order that remains in
effect in his now-closed state criminal case. This request was
denied by the federal district court on appellee's motion to
dismiss. Because we hold that the state court judge's actions are
shielded from this attack by the doctrine of judicial immunity, we
affirm.
BACKGROUND1
In 2013, Zenon was at the Springfield District Court for
the Commonwealth of Massachusetts ("Springfield court"), attending
to some driving charges unrelated to this case.2 While there, he
wound up getting into an altercation with two court security
officers who, according to Zenon, attacked him without
provocation, all the while "making inappropriate comments to him
regarding his ethnicity." As Zenon tells it, one of the officers,
Alexander Sierra, a former member of the Springfield Police
1 As is required in reviewing a ruling on a Rule 12(b)(6)
motion to dismiss, we rely on the factual account set forth in
Zenon's amended complaint, unless otherwise noted. Schatz v.
Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012)
(instructing us to "take the complaint's well-pled (i.e., non-
conclusory, non-speculative) facts as true . . . .").
2 We note the exact date of the incident is not in the record.
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Department, already had a reputation around the courthouse for
violence. When the scuffle ended, Zenon found himself charged and
arraigned on two counts of assault and battery on the officers.
Based on Zenon's attorney's investigation of the
incident, Zenon filed a notice of intent to assert the affirmative
defense of self-defense. To get more information with which to
bolster his case, Zenon subpoenaed administrative records from the
Springfield court, seeking all written incident reports authored
by Officer Sierra. In response to the subpoena, the records were
filed with the court and delivered in due course to appellee
Associate Justice Margaret Guzman ("Judge Guzman"), the judge
overseeing Zenon's criminal case.
Protective order
On July 29, 2015, Judge Guzman, following a chambers
conference, turned over Officer Sierra's trial incident reports
for the preceding two years, and ordered the Commonwealth to
produce Springfield Police Department reports involving Officer
Sierra for the same two-year period.3 But she released the records
to defense counsel with restrictions, making the documents subject
to a part written/part oral protective order. The written ruling
was encapsulated in a pre-printed order entitled "PROTECTIVE ORDER
3 The records indicated that Officer Sierra reported using
force against twenty-three individuals, and that an additional
person had filed a complaint of excessive force against him with
the police department.
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FOR DEFENSE COUNSEL."4 The written order, amongst other things,
permitted defense counsel to review the "presumptively privileged"
records for purposes of preparing for trial, but prohibited her,
without prior court approval, from disclosing any of the
information to anyone, including Zenon or her investigator (but
not including colleagues). It also forbade her from contacting
any of the individuals named in the reports without court
permission. From the bench, Judge Guzman likewise allowed the
Commonwealth access to the records with similar restrictions.
As Zenon's criminal case proceeded, his counsel began to
feel hampered by the prohibitions imposed by the court and
repeatedly petitioned to have them lifted. Prior to receiving the
records, defense counsel, on her own, had investigated other
alleged episodes involving Officer Sierra and had identified and
contacted several participants and witnesses to discuss their own
experiences with him. Also, rumors abounded about other Officer
Sierra dust-ups but the protective order thwarted counsel's
efforts to dig deeper. By September 2015, though, she had partial
4
The authorized form for the protective order may be found
just after the Reporter's Notes that follow the text of Rule 17 in
Massachusetts' volume of court rules. The form includes spaces
for the docket number, the defendant's name, the judge and defense
counsel's signatures, the date, and the defense counsel's address
and bar number. All other provisions, including the specific
restrictions, are part of the pre-printed form.
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success in convincing Judge Guzman to vacate the protective order
as to at least two incidents,5 but that was it.
On September 23, 2015, Zenon filed a petition for
extraordinary relief with the Supreme Judicial Court of
Massachusetts (the "SJC") to stay his criminal trial and vacate
the protective order. This petition was denied without a hearing
by a single justice, and Zenon pressed an appeal to the full court.
A few days later, on October 5, 2015, Zenon entered a plea on the
assault and battery charges: Zenon was not required to stipulate
to the conduct alleged, and the charges were continued without a
5As described in Zenon's amended complaint, in one incident
a pregnant African-American teenager was crying in the hallway
outside the courtroom where her boyfriend was being detained.
After she failed to compose herself on instructions from Officer
Sierra, he threw her face down on the floor and placed his knee on
her back, then pulled her upright and pushed her against the wall.
He proceeded to hit her repeatedly in the face. Several hours
later, the young woman miscarried her baby. She was later charged
with assault and battery on Officer Sierra. This episode was
confirmed by several bystanders, including an attorney.
The second incident also involved an African-American woman
who had appeared before a judge on a child support matter. The
judge instructed her to file some paperwork with the clerks'
office; however, at the clerks' office she was told to return to
the courtroom to get her file. She was intercepted at the
courtroom door by a court security officer and told that she was
trespassing. Officer Sierra followed her back to the clerks'
office where she was explaining the situation to the clerk.
Officer Sierra grabbed her, threw her to the ground, and handcuffed
her. She too was charged with assault and battery on Officer
Sierra.
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finding of guilt. But by its terms, the protective order remained
in effect.6
Following the disposition of Zenon's criminal case,
other individuals who had been charged with assault and battery
under similar circumstances, as well as attorneys involved in other
courthouse incidents, contacted Zenon's attorney seeking
information about Officer Sierra. Although Zenon had authorized
his attorney to provide these people with relevant information, he
and his attorney had been prevented by the protective order from
sharing any information about Officer Sierra.
On February 4, 2016, a full panel of the SJC denied
Zenon's request to further consider his petition to vacate the
protective order. Zenon v. Commonwealth, 44 N.E.3d 858, 859 (Mass.
2016). Summarizing the prior proceedings, the court wrote:
"[Zenon] sought certain third-party records in support of his claim
that the alleged victim was in fact the first aggressor." Id. at
859 (citing Commonwealth v. Adjutant, 824 N.E.2d 1 (Mass. 2005)).
The court continued: "The judge issued the protective order
concerning these records, apparently following the Dwyer
6 Paragraph Six of the protective order reads in part:
"Notwithstanding the entry of any order terminating the case, this
Protective Order shall remain in effect unless terminated by entry
of a Court order."
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protocol." Id. (citing Commonwealth v. Dwyer, 859 N.E.2d 400,
414-19 (2006)).7
In explicating its decision, the SJC focused on the
procedure available to Zenon when he initially filed his motion
(that is, while the criminal charges were still pending). The
court concluded that it did not need to exercise its "extraordinary
power of general superintendence under c. 211, §3" to intervene in
the workings of the Springfield court because Zenon had "an
adequate alternative remedy" in the normal trial and appellate
court processes. Id. at 859-60 (citations and internal quotation
marks omitted).
Had Zenon been tried and convicted of any offense, he
could have challenged the protective order on direct
appeal. . . . If Zenon believes that the records have
any continuing significance now that the charges have
been resolved, he could move in the District Court for
termination or modification of the protective order and,
if such a motion is denied, appeal in the ordinary course
from that ruling.
Id. at 859.
Federal litigation
Opting not to follow any of the SJC's suggested pathways,
Zenon filed a complaint in federal court on July 14, 2016, seeking
a declaratory judgment that the protective order violates his First
Amendment rights, pursuant to 42 U.S.C. § 1983, and naming as
defendants Judge Guzman and the District Court Division of the
7 We'll talk about the Dwyer protocol, announced by the SJC
in 2006, in our analysis section.
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Massachusetts Trial Court.8 Judge Guzman responded with a Rule 12
motion to dismiss, making three principal arguments: that she was
protected from suit by sovereign immunity, pursuant to the Eleventh
Amendment; that the federal court was barred from hearing the suit
based on the doctrines of Younger and Rooker-Feldman abstention;
and that the complaint was barred by collateral estoppel. Zenon
then amended his complaint, dropping the Commonwealth Trial Court
as a defendant. In due course a magistrate judge analyzed the
amended complaint and Judge Guzman's motion, and recommended that
Judge Guzman's motion be denied. Thereafter, in a written
objection to the report and recommendation, Judge Guzman took the
opportunity to add a new argument to her motion: judicial immunity.
In the end, after citing the confusion caused by Zenon's amendment
to his complaint mid-motion practice, as well as "considerations
of comity," the district judge permitted Judge Guzman's lately-
added argument, and ruled that it carried the day, declining to
adopt the report and recommendation and dismissing Zenon's claims.9
8 And we are mindful that § 1983 does not mandate exhaustion
of state court remedies. See, e.g., Steffel v. Thompson, 415 U.S.
452, 472–73 (1974) ("When federal claims are premised on [§ 1983]
-- as they are here -- we have not required exhaustion of state
judicial or administrative remedies, recognizing the paramount
role Congress has assigned to the federal courts to protect
constitutional rights.").
9 The court also concluded that both the Younger and Rooker-
Feldman abstention doctrines, though an imperfect fit, posed a bar
to relief, holding that they "cast a shadow over Plaintiff's case."
Although Zenon challenges this finding on appeal, because we rest
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ANALYSIS
Zenon's appeal (as now distilled) brings the matter to
our door for an examination of whether Judge Guzman is protected
from this lawsuit by judicial immunity. First, some parameters
for our review.
With respect to a motion to dismiss, we take as true the
allegations of the complaint, as well as any inferences we can
draw from it in the plaintiff's favor. Fed. R. Civ. P. 12(b)(6).
To assess the adequacy of the complaint, our circuit has instructed
that the review should be handled like this: first, "isolate and
ignore statements in the complaint that simply offer legal labels
and conclusions or merely rehash cause-of-action elements[,]" then
"take the complaint's well-pled (i.e., non-conclusory, non-
speculative) facts as true, drawing all reasonable inferences in
the pleader's favor, and see if they plausibly narrate a claim for
relief." Schatz v. Republican State Leadership Comm., 669 F.3d
50, 55 (1st Cir. 2012) (citing Ocasio–Hernández v. Fortuño–Burset,
640 F.3d 1, 12 (1st Cir. 2011)) (discussing, among other cases,
Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007)). "Plausible, of course, means
something more than merely possible, and gauging a pleaded
situation's plausibility is a 'context-specific' job that compels
our ruling on the doctrine of judicial immunity, we leave
abstention on the bookshelf for now.
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us 'to draw on' our 'judicial experience and common sense.'"
Schatz, 669 F.3d at 55 (quoting Iqbal, 556 U.S. at 679).
When analyzing a defense of judicial immunity, our
review is much the same. "Affirmative defenses . . . may be raised
in a motion to dismiss . . ., provided that the facts establishing
the defense [are] clear 'on the face of the plaintiff's
pleadings.'" Santana-Castro v. Toledo-Davila, 579 F.3d 109, 113-
14 (1st Cir. 2009) (quoting Trans–Spec Truck Serv., Inc. v.
Caterpillar, Inc., 524 F.3d 315, 320 (1st Cir. 2008)) (alterations
in original). And we are mindful that we may consider "not only
the complaint but also matters fairly incorporated within it and
matters susceptible to judicial notice" without converting the
motion to dismiss into a motion for summary judgment. In re
Colonial Mortg. Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003).
Ultimately, when the facts establishing the defense appear within
the four corners of the complaint, and upon review there is "no
doubt" that the plaintiff's claim is barred by the raised defense,
dismissal is appropriate. Blackstone Realty LLC v. F.D.I.C., 244
F.3d 193, 197 (1st Cir. 2001) (quotation marks omitted).
In undertaking this process, we have considered hearing
transcripts from the Springfield court, attached as exhibits to
the amended complaint. Schatz, 669 F.3d at 55-56 (noting that the
court may consider, on a motion to dismiss, documents attached to
or incorporated into the complaint).
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Now, with the rules of play in place, we proceed to
consider de novo whether, based on the facts pled, judicial
immunity bars Zenon's claims. When all is said and done, we
determine that Judge Guzman is entitled to immunity, as we explain.
A primer on judicial immunity
The time-honored doctrine of judicial immunity was set
forth long ago by the Supreme Court in Bradley v. Fisher, wherein
the Court observed, complete with requisite references to England
and the king, that judicial immunity "obtains in all countries
where there is any wellordered system of jurisprudence." 80 U.S.
(13 Wall.) 335, 347 (1871). Permitting judges to be questioned on
their rulings, the Court said, would lead to "continual
calumniations" and nothing short of the "subversion of all
justice." Id. at 348 (internal quotation marks and citation
omitted). The breadth of the protection is fulsome, shielding
judges even when their actions are malicious, corrupt, mistaken,
or taken in bad faith; its purpose not to buffer bad judges but
"for the benefit of the public, whose interest it is that the
judges should be at liberty to exercise their functions with
independence and without fear of consequences." Pierson v. Ray,
386 U.S. 547, 554 (1967) (internal quotation marks and citation
omitted). Therefore, it is an axiom of black letter law that when
a judge carries out traditional adjudicatory functions, he or she
has absolute immunity for those actions. Goldstein v. Galvin, 719
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F.3d 16, 25 (1st Cir. 2013). And, the Supreme Court has recognized
that judicial immunity applies in the context of suits -- like
Zenon's -- that are brought under § 1983. Pierson, 386 U.S. at
554-55.
To determine if a judge is entitled to the full
protection of the doctrine's deflector shield,10 the Supreme Court
has assessed whether the judge's act was one normally performed by
a judge, and whether the parties were dealing with the judge in
his or her judicial capacity. Stump v. Sparkman, 435 U.S. 349,
362 (1978). Judicial immunity is appropriate unless a judge is
carrying out an activity that is not adjudicatory. Forrester v.
White, 484 U.S. 219, 227-28 (1988) ("Administrative decisions,
even though they may be essential to the very functioning of the
courts, have not similarly been regarded as judicial acts."). The
Forrester Court observed that "it was the nature of the function
performed, not the identity of the actor who performed it, that
informed our immunity analysis." Id. at 229.
The Supreme Court elaborated further in Mireles v. Waco,
explaining that immunity is overcome only in cases where a judge
is carrying out a nonjudicial action, or in instances where a judge
takes an action, though seemingly "judicial in nature," that is
10 And it's important to note: absolute judicial immunity
means not just immunity from damages, but immunity from suit
altogether. Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
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"in the complete absence of all jurisdiction." 502 U.S. 9, 11-12
(1991) (per curiam) (citing Forrester, 484 U.S. at 227-29; Stump,
435 U.S. at 356-60; Bradley, 80 U.S. (13 Wall.) at 347).11
"Accordingly," the Mireles Court instructed, "as the language in
Stump indicates, the relevant inquiry is the 'nature' and
'function' of the act, not the act itself." 502 U.S. at 13 (quoting
Stump, 435 U.S. at 362).
In accordance with this analytic tradition, we look
closely at Judge Guzman's actions -- "the function performed" --
in issuing and maintaining the protective order. In Zenon's eyes,
she was -- plain and simple -- a gatekeeping administrator for the
court's personnel records. But as Judge Guzman sees things, she
was performing (in the words of the district court) "the bread-
and-butter adjudicatory function of a judicial officer" --
refereeing a discovery dispute.
The battle of the procedural rules
The parties each attempt to justify their position by
drawing our attention to the state procedural rules they relied on
11
In such circumstances, a state actor who happens to be a
judge and who violates the Constitution while acting as an
administrator might properly be subjected to suit under 42 U.S.C.
§ 1983. In re Justices of Supreme Court, 695 F.2d 17, 21 (1st
Cir. 1982). But as then circuit-judge Stephen Breyer explained,
"§ 1983 does not provide relief against judges acting purely in
their adjudicative capacity, any more than, say, a typical state's
libel law imposes liability on a postal carrier or telephone
company for simply conveying a libelous message." Id. at 22.
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in connection with the contested state court rulings. Zenon, in
his amended complaint, asserts that he made a request for
administrative court records pursuant to Rule 2(2) of the Uniform
Rules on Subpoenas to Court Officials, which, according to Zenon,
governs public access to these records. Mass. Trial Court Rule
IX(2)(2). This rule provides that an "official keeper of the
records of the Trial Court shall provide an attested copy of court
records or administrative records to a party who requests . . .
such records . . . ." Mass. Trial Court Rule IX(2)(2). As he
tells us, he sought internal records from the Trial Court's
Executive Office; records generated pursuant to the administrative
functioning of the court and completely unconnected to any criminal
or civil proceeding before the court. Continuing on, he says that
the production of this material could not properly be viewed as a
discovery motion because the state's criminal procedural rule,
Rule 14, only applies to material in "the possession, custody or
control of the prosecutor, or persons under the prosecutor's
direction and control . . . ." Mass. R. Crim. P. 14(a)(1)(A).
And clearly, Zenon argues, the Massachusetts trial court records
are not subject to the prosecutor's direction or control. Again,
to put it simply, Zenon urges that in considering his request for
court documents, Judge Guzman necessarily and exclusively had to
have been exercising administrative authority over administrative
records.
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In response to Zenon's document request, Judge Guzman
issued a pre-printed stock order which cites to Rule 17(a)(2) of
the Massachusetts Rules of Criminal Procedure. This rule
authorizes the clerk to issue a summons to a person "to produce
the books, papers, documents, or other objects designated therein
. . . within a reasonable time prior to the trial or prior to the
time when they are to be offered in evidence . . . ." Mass. R.
Crim. P. 17(a)(2). But notwithstanding the rule number referenced
in the order, Judge Guzman explains in her brief that, contrary to
Zenon's assertions, her protective order is best characterized as
a garden-variety discovery order, issued in accordance with Rule
14, which governs pretrial discovery and procedures, including
protective orders. Mass. R. Crim. P. 14(a)(6).
Ultimately, we conclude that whatever rule got
referenced is not, at least in this instance, determinative of the
question we must answer here: what is the essential character of
Judge Guzman's actions in issuing the protective order?12
Remember, as the Supreme Court instructed in Stump and Mireles,
12
While the records themselves may be administrative, it is
the judge's action of overseeing their production with which we
are concerned. Mass. Trial Court Rule IX is described as a
discovery rule by the Massachusetts Practice Series. 49 Mass.
Prac., Discovery § 1:31. In this case, we refrain from opining as
to whether requests to the trial court made pursuant to the Uniform
Rules on Subpoenas to Court Officials may always be considered
judicial in character, or may sometimes be classified as
administrative.
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"the relevant inquiry is the 'nature' and 'function' of the act .
. . . In other words, we look to the particular act's relation to
a general function normally performed by a judge . . . ." Mireles,
502 U.S. at 13 (quoting Stump, 435 U.S. at 362). Accordingly, we
turn our attention to the record to better gauge Judge Guzman's
actions.
Zenon v. Guzman
We begin by taking judicial notice of the SJC's
February 4, 2016 order resulting from Zenon's interlocutory appeal
which we find relevant to our inquiry. Zenon, 44 N.E.3d 858. As
stated earlier, the SJC mentioned two cases of import to our
consideration: one, Adjutant established the standard to be
followed by a trial judge in determining what evidence of a
victim's prior aggressive behavior can be admitted at trial to
bolster a defendant's claim of self-defense. 824 N.E.2d at 10-
11. The other, Dwyer, refined the state's protocols for granting
defendants pre-trial access to statutorily privileged third-party
records of witnesses in criminal proceedings. 859 N.E.2d at 414.
Pursuant to the protocol, "presumptively privileged records" are
to be held by the court under seal, and reviewed only by defense
counsel after counsel has entered into " a stringent protective
order" containing "nondisclosure provisions." Id. at 418-19.
Therefore, in explaining its decision to deny Zenon appellate
relief, the SJC made clear that it understood Zenon's record
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subpoena as a request for an Adjutant hearing. Equally as pellucid
is the SJC's understanding of Judge Guzman's in limine hearing as
a procedure in implementation of the Dwyer protocols. In
Massachusetts, both of these matters are routine pretrial
adjudicatory proceedings and generally subject to direct appellate
review. See Commonwealth v. Chambers, 989 N.E.2d 483, 493-94
(Mass. 2013) (ordering a new trial after trial court excluded
evidence of victim's prior act of violence); Rodriguez v.
Commonwealth, 871 N.E.2d 486, 487 (Mass. 2007) (noting that post-
conviction relief is available for defendant who was unable to
obtain third party documents at trial).
How the SJC treats such hearings is, for us, strong
evidence of the nature and function of Judge Guzman's actions.
See Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir. 1994) (noting
that the "Supreme Judicial Court, not this court, is the
authoritative interpreter of state statutes").13
Transcripts
Further evidence of how best to characterize Judge
Guzman's actions lies in the transcripts from the proceedings
13
Relatedly, in considering whether a judge's contested
action "is a function normally performed by a judge," the Stump
Court made an examination of "the expectations of the parties,
i.e., whether they dealt with the judge in his judicial capacity."
435 U.S. 362. The way that the SJC understands the procedural
rules governing the parties dispute surely bears on the
"expectations of the parties" for purposes of determining the
nature and function of Judge Guzman's actions here.
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below.14 In her interactions with the parties, she specifically
talks about Adjutant, repeatedly expressing her concern about the
relevance and ultimate admissibility of the evidence that may be
unearthed through defense counsel's inquiries into the Officer-
Sierra incidents.
For instance, on July 29, 2015, Judge Guzman begins
the on-the-record hearing by describing the session as a
memorialization of "my first conference with both counsel," about
issues discussed in chambers. She continues:
[T]he first thing I did was review the
documents that were brought in by -- after the
defendant's request for unredacted and full
copies of the record potentially related to
the Adjutant issues that were filed. . . . I
reviewed those records and without my making
a determination of whether or not there is any
admissibility in what their use may be for
I've determined that a copy of all the
unredacted records will be provided to both
counsel and both counsel will endorse a
protective order. . . . [I]t was indicated to
defense that she may review all of these
records and at any time wishes -- if wishing
to discuss this matter with an investigator or
pursue inquiry through any of the information
contained in the records that she will notify
the Court through the clerk ex parte with a
motion for good cause to either inform[] both
parties of the contained information or to act
on that information.
Tr., July 29, 2015.
14
And to refresh the reader's recollection, the transcripts
were attached to Zenon's amended complaint.
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On September 14, 2015, Judge Guzman tells counsel that
she wants to hear oral argument that morning concerning: "The
question about the Adjutant material, not just the access issue
but whether or not we are going to -- whether or not the request
is to use any information, call any witnesses . . . ." Tr., Sept.
14, 2015. When both attorneys indicate that they are not prepared
to go forward, Judge Guzman and defense counsel engage in a
colloquy about whether there will be a "pre voir dire argument on
that issue." Id. Judge Guzman goes on to express her concern
about the admissibility of the evidence that defense counsel is
trying to gather: "So there is [] really a very narrow area of
admissibility that we are focused on, and the first is whether or
not there is a valid defense claim that's been raised, and second,
whether there is a question as to who is the first aggressor."
Id.
Additionally, Judge Guzman addresses her obligation to
balance the privacy rights of those members of the community who
may be identified in the Officer-Sierra incident reports with
Zenon's rights to prepare his defense to criminal charges. These
concerns, she noted, encompassed Officer Sierra's interests in
maintaining the confidentiality of his personnel and medical
records. Tr., Aug. 26, 2015. Unmistakably then, Dwyer, though
not expressly mentioned, animated Judge Guzman's thinking, and the
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stock protective order she issued reflects Dwyer's instructive
directives.15
We believe the issues addressed by Judge Guzman go to
the heart of a judge's role in regulating discovery and ruling on
the admissibility of evidence in a criminal trial. See Fed. R.
15
For example, on August 26, 2015, the parties convened, and
Judge Guzman explained her work in the preceding weeks:
There is very little case law in the area we are in,
which is a public display of official capacity action
and request to use records which are there is no grounds
to believe that there is an official determination of
first aggressor behavior by Officer Sierra. I have no
information that anyone has []ever made a formal
complaint against Officer Sierra alleging first
aggressor behavior that would qualify the Adjutant.
Tr., Aug. 26, 2015. During the same hearing, Judge Guzman cautions
Zenon's attorney about talking to other people, in connection with
Officer-Sierra incidents, because those other people might be
represented by counsel.
Later Judge Guzman addresses the protective order
directly, allowing the order to be loosened to permit defense
counsel to contact two people who had expressly waived
confidentiality. Here she expresses broader concerns:
Once the persons who are involved in the incidents make
a determination that they don't wish to have the
protection of the Court, the court is going to allow the
motion to expand. In fact, the protective order will
not be involved in those incidents. . . . The protective
order remains as to the other incidents that -- where is
no determination that the persons who are involved have
agreed to waive any confidentiality of any protection of
the courts. . . . And that is the fourth motion to
modify the protective order, and I think that covers all
the issues in that.
Id.
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Crim. P. 12 and 16(d)(1); Mass. R. Crim. P. 17(a)(2); Nystedt v.
Nigro, 700 F.3d 25, 30-31 (1st Cir. 2012); United States v. Cianci,
378 F.3d 71, 100-01 (1st Cir. 2004); Dwyer, 859 N.E.2d at 418;
Adjutant, 824 N.E.2d at 12 (noting that trial judges are afforded
great discretion "in weighing the probative value of evidence
against any prejudicial effect it might have on a jury"). Although
we have been supplied with over a hundred pages of transcripts, we
need dig no further to conclude that Judge Guzman's concerns, and
resulting rulings, were inarguably judicial in both their "nature"
and their "function."16 Mireles, 502 U.S. at 13 (quoting Stump,
435 U.S. at 362).
CONCLUSION
For the reasons stated, we affirm the district court's
decision. Each party to bear its own costs.
16Indeed, as we've already pointed out, in considering whether
a judge's contested action "is a function normally performed by a
judge," the Supreme Court in Stump looked at "the expectations of
the parties, i.e., whether they dealt with the judge in his
judicial capacity." 435 U.S. 362. As we see it, the parties'
expectations here, which Stump makes relevant, are evident.
Zenon's attorney requested the records to aid in preparing Zenon's
self-defense claim in the pending criminal case. The records were
released, subject to a protective order, which was announced during
the course of an adversarial hearing in the courtroom. Subsequent
hearings were held, during which counsel argued that the scope of
the protective order should be limited -- discussions in which the
judge and counsel focused on the potential admissibility of
evidence, pursuant to Massachusetts law. These circumstances
demonstrate that counsel was dealing with the judge in her "bread-
and-butter" judicial capacity.
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