Lopera v. Town of Coventry ( 2011 )

United States Court of Appeals
For the First Circuit
No. 09-2386
JUAN LOPERA, ET AL.,
Plaintiffs, Appellants,
v.
TOWN OF COVENTRY, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon William E. Smith, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Thompson, Circuit Judges.
Stephen M. Robinson, with whom Vicki J. Bejma and Robinson &
Calpham were on brief, for appellants.
Thomas R. Bender, and Hanson Curran LLP, were on brief for
Rhode Island Affiliate, American Civil Liberties Union, amicus
curiae.
Marc DeSisto for appellees.
April 1, 2011
LYNCH, Chief Judge. Former members of the Central Falls
High School boys soccer team appeal from an entry of summary
judgment for the Town of Coventry, Rhode Island, and Coventry
police officers in this civil rights case. This dispute arises out
of a police search of team members that followed a heated soccer
match between Central Falls High School and Coventry High School in
Coventry in 2006. Police searched all individual Central Falls
team members for items purportedly missing from the Coventry locker
room in the presence of an abusive crowd of Coventry students and
adults. Though the Central Falls coach told the police he
consented to the search of his players, both he and the players
assert that he was coerced into doing so by the police.
Lead plaintiff Juan Lopera and other former members of
the Central Falls team brought suit for damages and injunctive
relief in April 2008, alleging violations of their constitutional
rights under the Fourth and Fourteenth Amendments, as well as
violations of Rhode Island state law. The defendant police
officers asserted a defense of qualified immunity. The district
court held that the players failed to raise a genuine issue of
material fact as to whether (1) the police officers were not
entitled to qualified immunity with respect to their claims under
the Fourth Amendment and state privacy law, or (2) the police had
engaged in racial discrimination in violation of the Equal
Protection Clause or Rhode Island statutes prohibiting racial
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profiling and intimidation. Lopera v. Town of Coventry, 652 F.
Supp. 2d 203, 213-17 (D.R.I. 2009). We affirm.
I.
We review the facts in the light most favorable to Lopera
and the other plaintiffs, the parties opposing summary judgment.
On September 28, 2006, the Central Falls High School soccer team
traveled to Coventry for a match against Coventry High School.
Before the game, four or five Central Falls players used the
restrooms in the Coventry locker room. They were not alone. A
security guard accompanied the boys into the locker room. The
locker room is usually open and unlocked and could be easily
accessed, including by unauthorized persons.
The locker room is apparently used by all Coventry teams
and recently had been used by Coventry's football team. After the
soccer match, a group of approximately twenty football players1
confronted the Central Falls coach, Robert Marchand, as he walked
behind his players toward the team bus. In profane terms, the
Coventry students accused the Central Falls players of stealing
iPods and cell phones from the Coventry locker room.
The Central Falls players allege that they encountered
hostile racism during their match with the Coventry soccer team and
during the remainder of their time in Coventry. Central Falls is
a racially diverse community, and the Central Falls team consisted
1
This crowd apparently did not include any soccer players.
-3-
entirely of Spanish-speaking Hispanic players, save for one
Portuguese player. Coventry, by contrast, is predominantly non-
Hispanic and white, and its high school reflected this. The
Central Falls players allege that Coventry players uttered racial
epithets during the game, calling them "spics" and demanding that
they speak English. They allege that Coventry students and adults
made similar remarks during the series of events that followed the
game.
After the Coventry football players confronted Coach
Marchand with the purported thefts, he told them that he would
handle the situation. The football players followed him toward the
Central Falls bus. Before the group reached the bus, Coach
Marchand told the players to wait. Coach Marchand then boarded the
bus, where his team was waiting. Coach Marchand informed the
players of the accusations and told them that he knew they had not
taken the items. Nonetheless, he and an assistant coach searched
the players' bags. If an iPod or cell phone was found, Coach
Marchand asked for proof that it belonged to the player. The
search lasted approximately twenty to twenty-five minutes. Coach
Marchand testified that when it was completed, he was "completely
satisfied" that his players did not possess the items.
After he completed the search, Coach Marchand left the
bus to speak with the Coventry Athletic Director, who was waiting
outside. By this time, Coach Marchand testified, a crowd of fifty
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or sixty Coventry students and adults had gathered around the bus.
According to Coach Marchand, members of the crowd yelled that they
knew his players had the items. He testified that students and
adults in the crowd stated that the players were "from the ghetto,"
knew how to "hide things" and "lie good," and could not be trusted.
The players recounted similar accusations and vitriol, including
racial slurs like "spic." At one point, a member of the crowd
apparently tried to board the bus to conduct his own search. Coach
Marchand testified that members of the crowd demanded a search of
his own bags. He also testified that members of the crowd stated
that they would not let the Central Falls players leave until the
items had been found.
Coach Marchand told the Coventry Athletic Director that
he had checked "everything" on the bus, and that his players did
not have the purportedly missing items. Coach Marchand also told
the Athletic Director that he was welcome to do his own search,
which the Athletic Director declined as unnecessary. Coach
Marchand testified that as he and the Athletic Director puzzled
over how to "satisfy all [the] constituencies here," he began to
worry that violence might ensue.
At this point, three or four Coventry police cruisers
arrived on the scene with their lights and sirens activated. The
police had received calls reporting a supposed ongoing physical
altercation. The officers boxed in the Central Falls bus with
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their cruisers so that it could not move. According to the
players, by this time the crowd had also formed a semi-circle
around the bus, blocking its path out of the parking lot.
Once it became clear that no physical altercation was
taking place, the police discussed the situation with Coach
Marchand and the Coventry Athletic Director. Coach Marchand
explained to the officers that the Coventry students had alleged
thefts and that his players "were prime suspects." He told the
officers that he had searched each student's bags on the bus and
did not find the purportedly missing items. Coach Marchand
expressed fear of the crowd, asking the police, "what am I going to
do, what are they going to do to us[?]" After a pause, Coach
Marchand testified, the police responded by asking him if they
could search the players. Coach Marchand verbally agreed.
Coach Marchand did not testify that the officers said or
did anything coercive. Coach Marchand testified that the officers
acted courteously and told unruly members of the crowd to be quiet.
According to Coach Marchand, the police "decided their best thing
was to [do the] search themselves to appease the masses" who were
"crying for our heads." In his testimony, he described his consent
as the way to "take the high road, take the safe road," even though
he knew his players did not have the items. We must take this
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testimony as true on this motion for summary judgment.2 The police
testified that the crowd was angry and unruly, consistent with the
players' testimony. They also testified that they did not hear any
racial epithets from members of the crowd, which is not the
plaintiffs' testimony.
After agreeing to the search, Coach Marchand returned to
the bus and told his players that the crowd would not let them go
until the police searched them. The police then told the players
to get off the bus with all of their belongings and line up with
their bags between their legs. The players complied, lining up
with their backs against the bus. An officer then told the players
that if any of them had the missing items, they would be arrested
if they did not immediately step forward. When none of the players
stepped forward, the officers began a search. Coach Marchand
testified that the officers placed each player's bag on the hood of
a cruiser and looked through it. A few players testified that some
players were also subjected to pat down searches. During the
search, the crowd was about six to ten feet away from the players.
The search lasted for about 45 minutes to an hour. The
police officers testified that they did not obtain descriptions of
the type of iPods or cell phones alleged to be missing, other than
2
One officer testified that Coach Marchand suggested the
search and that they conducted the search because it would
"expedite the process and eliminate them all as suspects." These
are disputed facts and for these purposes we do not accept them.
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that one phone may have been a "flip phone." When the police
located an iPod or a cell phone on a player, they required that the
player prove that the item belonged to him. In some cases, the
players identified items stored on the devices and allowed the
officers to search the devices. In other cases, the officers
displayed the devices to members of the crowd and asked if they
were the missing devices. During the course of the search, members
of the crowd alleged that additional items were missing, like books
and money.
The players testified that the crowd continued to harass
them during the search. One player testified that, during the
search, members of the crowd called the players "spics." Another
testified that members of the crowd stated that the Central Falls
team should not be in Coventry or playing Coventry High School
given the race of its players. Members of the crowd photographed
the Central Falls students during the search with their cell phone
cameras. Marchand testified that although the officers reprimanded
unruly members of the crowd during the search, they did not take
adequate actions to disperse the crowd or move it away from the
bus.
There was testimony that during the search, one Coventry
officer told one of the players that he thought the search was
"stupid" because the coach had already searched the players and
because a security guard had accompanied the players in the locker
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room. Another officer, hearing the comment, laughed. The police
required all the players to wait outside the bus until every player
had been searched. The search did not produce any of the missing
items. After it was completed, the police escorted the bus out of
town in their cruisers.
Lopera and other members of the Central Falls team filed
suit in April 2008 against the Town of Coventry and several
individual Coventry police officers under 42 U.S.C. § 1983 (§ 1983)
and Rhode Island state law. Under § 1983, the players alleged
deprivations of their Fourth Amendment right to be free from
unreasonable searches and seizures, as well as their Fourteenth
Amendment rights to due process of law and equal protection of the
law.3 Under Rhode Island state law, the players alleged violation
of statutes that forbid invasion of privacy, racial profiling, and
ethnic intimidation. R.I. Gen. Laws § 9-1-28.1; id. § 31-21.2; id.
§ 9-1-35.
The district court granted summary judgment for the
defendants on all counts. First, it held that the officers were
entitled to qualified immunity with respect to the Fourth Amendment
and state privacy claims because (1) it was not unreasonable for
the officers to believe that Coach Marchand had power to consent to
the search, and (2) coercion did not vitiate Coach Marchand's
3
The players have conceded that their Due Process claim
was not intended to allege a violation of their substantive due
process rights and thus overlaps with their Fourth Amendment claim.
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consent. Second, it held that the players did not introduce
sufficient evidence to support a finding that the police engaged in
racial discrimination in violation of the Equal Protection Clause
or Rhode Island's statutes prohibiting racial profiling and ethnic
intimidation. The district court also held on independent grounds
that the players had not introduced material facts to support their
claims of supervisory and municipal liability.
II.
On appeal, the players make two arguments. First, they
argue that the officers were not entitled to qualified immunity for
the claims under the Fourth Amendment and state privacy law because
(1) a reasonable officer would have believed that Coach Marchand
did not have authority to consent for his players, and (2) a
reasonable officer would have believed that Coach Marchand's
consent was coerced. Second, they argue that they set forth
material facts to support the reasonable inference that the actions
of the officers were impermissibly motivated by race in violation
of the Equal Protection Clause and Rhode Island state law. The
players do not challenge the district court's rulings on municipal
and supervisory liability.
In their answer to the players' complaint, the defendant
officers asserted qualified immunity against all claims. In
asserting this defense before the district court and before this
court, the officers focused their argument on whether it was
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clearly established that Coach Marchand could consent on behalf of
his students in loco parentis. The district court analyzed this
question in a qualified immunity framework, but it appeared to
address the players' remaining claims outside of that framework.
Given that the officers have raised a qualified immunity defense to
all of the players' claims, we address each of the players' claims
in the qualified immunity framework.
This court reviews grants of summary judgment de novo.
Saccucci Auto Group, Inc. v. Am. Honda Motor Co., 617 F.3d 14, 20
(1st Cir. 2010). We must make all reasonable inferences in favor
of the non-moving party and may reverse only if "the evidence on
record 'is sufficiently open-ended to permit a rational factfinder
to resolve the issue in favor of either side.'" Maymi v. Puerto
Rico Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008) (quoting Nat'l
Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.
1995)). This standard of review applies to grants of summary
judgment on grounds of qualified immunity. See Kelley v. LaForce,
288 F.3d 1, 4 (1st Cir. 2002). When a defendant moves for summary
judgment on the basis of qualified immunity, the plaintiff bears
the burden of showing infringement of a federal right. Quintero de
Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st Cir. 1992).
A. The Doctrine of Qualified Immunity
Qualified immunity "protects government officials 'from
liability for civil damages insofar as their conduct does not
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violate clearly established statutory or constitutional rights of
which a reasonable person would have known.'" Pearson v. Callahan,
129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). This circuit follows a two-step analysis under
Pearson in discerning whether defendants are entitled to qualified
immunity. We ask "(1) whether the facts alleged or shown by the
plaintiff make out a violation of a constitutional right; and (2)
if so, whether the right was 'clearly established' at the time of
the defendant's alleged violation." Maldonado v. Fontanes, 568
F.3d 263, 269 (1st Cir. 2009).
The Supreme Court has held that it is not mandatory for
courts to follow this two-step test sequentially. Pearson, 129 S.
Ct. at 818-21; see also Maldonado, 568 F.3d at 269-270. A finding
that a right was not clearly established at the time of the alleged
violation is sufficient to warrant a finding of qualified immunity.
See Pearson, 129 S. Ct. at 822. In some cases "discussion of the
first prong of the qualified immunity analysis will result 'in a
substantial expenditure of scarce judicial resources on difficult
questions that have no effect on the outcome of the case.'"
Maldonado, 568 F.3d at 270 (quoting Pearson, 129 S. Ct. at 818).
In this case, these considerations counsel that we
consider the second prong of the analysis and go no further. That
prong, we have held, has two aspects: that both (1) the legal
contours of the right in question and (2) the particular factual
-12-
violation in question would have been clear to a reasonable
official. Id. at 269. Together, these two factors ask whether a
reasonable officer, similarly situated, would have believed that
his conduct did not violate the Constitution. Harlow, 457 U.S. at
818-19; Philip v. Cronin, 537 F.3d 26, 34 (1st Cir. 2008).
The qualified immunity defense "is designed to protect
'all but the plainly incompetent or those who knowingly violate the
law.'" Morse v. Frederick, 551 U.S. 393, 429 (2007) (quoting
Malley v. Briggs, 475 U.S. 335, 341 (1986)). A finding of
qualified immunity is warranted if "a reasonable officer could have
believed his conduct was lawful." Olmeda v. Ortíz-Quiñonez, 434
F.3d 62, 65 (1st Cir. 2006). Such a finding is not warranted if
"no reasonable officer could believe" that his conduct was lawful.
Groh v. Ramirez, 540 U.S. 551, 564 (2004). Put another way,
immunity will issue when "officers of reasonable competence could
disagree" on the lawfulness of an action, but it will not issue if
"it is obvious that no reasonably competent officer would have
concluded" that the action was lawful. Malley, 475 U.S. at 342.
This is an objective test; it does not look to the
defendants' subjective beliefs concerning the unlawfulness of their
conduct. Philip, 537 F.3d at 34. A "determination of objective
reasonableness," however, "'will often require examination of the
information possessed' by the defendant officials." Kelley, 288
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F.3d at 7 (quoting Anderson v. Creighton, 483 U.S. 635, 641
(1987)).
This objective test does not establish that "an official
action is protected by qualified immunity unless the very action in
question has previously been held unlawful." Anderson, 483 U.S. at
640. The Supreme Court has made clear that "officials can still be
on notice that their conduct violates established law even in novel
factual circumstances." Hope v. Pelzer, 536 U.S. 730, 741 (2002)
(citing United States v. Lanier, 520 U.S. 259 (1997)).
Nonetheless, unlawfulness must be apparent in light of pre-existing
law at the time of the alleged violation. Anderson, 483 U.S. at
640. The content of clearly settled law and the belief of a
reasonable officer under the circumstances are questions
appropriately addressed by courts before trial, where possible.
See Hunter v. Bryant, 502 U.S. 224, 227-28 (1991); Cox v. Hainey,
391 F.3d 25, 29 (1st Cir. 2004).
We divide our discussion in this case between the
players' claims under the Fourth Amendment and state privacy law
and their claims under the Equal Protection Clause and state laws
forbidding racial profiling and ethnic harassment.
B. Fourth Amendment and State Privacy Claims
In their claims under the Fourth Amendment and the state
privacy statute, the players give two grounds to defeat qualified
immunity. First, they argue that all officers of reasonable
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competence would have believed that Coach Marchand did not have
authority to consent on behalf of the players. Second, they argue
that all officers of reasonable competence would have believed that
coercion vitiated Coach Marchand's purported consent to the search
in this case.
The district court focused primarily on the players'
first argument. It held that the players failed to introduce a
material fact showing it was clearly established that Coach
Marchand could not consent on their behalf under the circumstances.
Lopera 652 F. Supp. 2d at 213-16. In so finding, the district
court relied on the apparent uncertainty of prevailing Supreme
Court doctrine governing in loco parentis searches in schools. Id.
As to the players' second argument, the district court held that
Coach Marchand's consent was voluntary because he "understood the
situation," id. at 216, and gave consent "after careful and
deliberate thought," id. at 217. The district court did not
address whether this would have been clear to the officers under
the circumstances, nor whether it was clearly established that
coercion vitiates consent.
1. Coach Marchand's Authority to Consent
We may quickly dispose of the players' first argument,
which does not require analysis of the intricacies of the in loco
parentis doctrine. Under the facts alleged by the players, a
reasonable officer could have concluded that Coach Marchand had
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authority to consent to a search of his students. The search did
not take place at Central Falls High School, but rather on a trip
away from school over which Coach Marchand was undisputedly in
charge. When the officers arrived, Coach Marchand told them that
he had already conducted his own search of his students. To arrive
at the conclusion that Coach Marchand could not consent, an officer
would have had to question Coach Marchand's authority to perform
the first search and, by extension, Coach Marchand's authority to
consent to a second search by the police.
We cannot say that no officer of reasonable competence
could have reached the conclusion that Coach Marchand had authority
to consent. As the players argue, the Supreme Court has recognized
limits on the in loco parentis authority of school officials. New
Jersey v. T.L.O., 469 U.S. 325, 336-37 (1985). To defeat a finding
of qualified immunity, however, the players must identify authority
sufficiently particularized that the unlawfulness of an act would
have been apparent to all officers of reasonable competence.
Wilson v. Layne, 526 U.S. 603, 615 (1999). Subsequent decisions
make clear that T.L.O. has not eliminated a school official's in
loco parentis power to consent on behalf of his students. See
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654-56 (1995). The
players do not identify a sufficiently particularized decision of
this court or the Supreme Court that places Coach Marchand's
consent clearly beyond his authority under the facts they allege.
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2. The Validity of Coach Marchand's Consent
The players' second argument concerning the validity of
Marchand's consent requires more discussion. There is no dispute
that all officers of reasonable competence would have known that
coercion vitiates consent to a search under the Fourth Amendment.
See United States v. Vanvliet, 542 F.3d 259, 264 (1st Cir. 2008).
Under the Fourth Amendment, consent may "not be coerced, by
explicit or implicit means, by implied threat or covert force."
Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973). As to the
other considerations relevant to the validity of Coach Marchand's
consent, we reiterate that we may only deny qualified immunity if
"it is obvious that no reasonably competent officer would have
concluded" that the action was lawful. Malley, 475 U.S. at 342.
If "officers of reasonable competence could disagree" on the
lawfulness of an action, we must grant qualified immunity. Id.
We first dispose of a legal question about the scope of
the facts to be considered. The officers argue that the law under
Schneckloth was not clearly established; they contend that it was
the crowd, not the officers, who created any coercive atmosphere
and that the coercion must "emanat[e] from the police officers
themselves rather than any subjective or outside influence."
Citing the Supreme Court's decision in Colorado v. Connelly, 479
U.S. 157 (1986), the officers argue that the examination of
coercion must focus solely on the acts of the officials requesting
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to perform the search. We reject this argument for two different
reasons, but nonetheless find for other reasons that defendants are
entitled to qualified immunity.
First, Connelly is not clearly established law limiting
Schneckloth. Second, taking the facts in the light most favorable
to the plaintiffs, the crowd was not the only source of potential
coercion. It is clearly established law under Schneckloth that in
considering the validity of consent, all the surrounding
circumstances must be considered. Schneckloth, 412 U.S. at 227;
Vanvliet, 542 F.3d at 264. Neither the Supreme Court nor this
court has extended the rule in Connelly, a decision under the Due
Process Clause of the Fourteenth Amendment, to Fourth Amendment
consent cases.
In Connelly, the defendant claimed that because he heard
a "voice of God" telling him to confess, his confession in police
custody was coerced and thus invalid. Connelly, 479 U.S. at 170-
171. The Supreme Court held a defendant's mental condition "by
itself and apart from its relation to official coercion" cannot
"dispose of the inquiry into constitutional 'voluntariness'" under
the Fourteenth Amendment's Due Process Clause. Id. at 164. It
concluded that "coercive police activity is a necessary predicate
to the finding that a confession is not 'voluntary'" within the
meaning of that clause. Id. at 167. The Court did not address
Fourth Amendment searches.
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We are unaware of any published circuit court decision
that applies this standard for voluntariness of a confession to
questions of consent under the Fourth Amendment. But see United
States v. Quezada, No. 91-5004, 1991 WL 191402 (4th Cir. Oct. 24,
1991) (applying Connelly to a Fourth Amendment search in an
unpublished decision). At least two circuits have expressly
declined to do so. United States v. Montgomery, 621 F.3d 568, 571-
72 (6th Cir. 2010); Tukes v. Dugger, 911 F.2d 508, 516 & n.13 (11th
Cir. 1990). This circuit has continued to apply the requirements
in Schneckloth for consent to a Fourth Amendment search. See
Vanvliet, 542 F.3d at 264. Moreover, we are unaware of any lower
court decision in this circuit that extends Connelly to Fourth
Amendment searches. See Pearson, 129 S. Ct. at 823.
Having rejected the defendants' efforts to narrow the
focus of inquiry, we turn to the articulation of the clearly
established law. In Schneckloth, the Supreme Court held that
coercion must be discerned by examining "all the surrounding
circumstances," including "subtly coercive police questions" and
"the possibly vulnerable subjective state of the person who
consents." Schneckloth, 412 U.S. at 229. In Ohio v. Robinette,
519 U.S. 33 (1996), the Court repeated that "[t]he Fourth Amendment
test for a valid consent to search is that the consent be
voluntary, and '[v]oluntariness is a question of fact to be
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determined from all the circumstances.'" Id. at 40 (alteration in
original) (quoting Schneckloth, 412 U.S. at 248-49).
We have held that voluntariness of consent depends on
considerations including, but not limited to, "(i) the consenter's
age, education, past experiences, and intelligence; (ii) whether
law enforcement officials advised the consenter of his
constitutional right to refuse consent; (iii) the length and
conditions of the consenter's detention and/or questioning; and
(iv) law enforcement officials' use of any inherently coercive
tactics." Vanvliet, 542 F.3d at 264 n.2 (citing Schneckloth, 412
U.S. at 226).
A consent is coerced when an individual's "will ha[s]
been overborne and his capacity for self-determination critically
impaired" such that he does not face an "essentially free and
unconstrained choice." United States v. Watson, 423 U.S. 411, 424
(1976) (quoting Schneckloth, 412 U.S. at 225) (internal quotation
marks omitted). It is seldom the case that "a single coercive
element will, standing alone, be enough to invalidate a consent."
W. LaFave, Search and Seizure § 8.2(b), at 62 (4th ed. 2004). An
officer's failure to inform an individual of her right to refuse
consent to a search does not necessarily render her consent to such
a search coerced. See Robinette, 519 U.S. at 39-40. Nor is a
consent to a search given in police custody necessarily coerced.
Watson, 423 U.S. at 424.
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Two Supreme Court cases are particularly instructive
here, but are not cited to us by either side. The first is United
States v. Drayton, 536 U.S. 194 (2002). In Drayton, the Supreme
Court held that among the relevant factors for assessing coercion
is whether the officer requesting the search "indicated a command
to consent to the search." Id. at 206. The defendant's consent,
the Court held, was not a product of coercion because the officer
had provided him with "no indication that he was required to
consent to the search." Id. The officers had asked whether the
defendant objected to the search, "thus indicating to a reasonable
person that he or she was free to refuse." Id. The Court noted
that there had been "no application of force, no intimidating
movement, no overwhelming show of force, no brandishing of weapons,
no blocking of exits, no threat, no command, not even an
authoritative tone of voice."4 Id. at 204.
The second is Florida v. Bostick, 501 U.S. 429 (1991).
In Bostick, the Court addressed whether an officer's request to
search a passenger's bags on a commercial bus constituted an
unlawful seizure under the Fourth Amendment. Id. at 431. Although
4
Although this language derives from Drayton's analysis of
whether a seizure had occurred in that case, the Court noted that
"[i]n circumstances such as these, where the question of
voluntariness pervades both the search and seizure inquiries, the
respective analyses turn on very similar facts." United States v.
Drayton, 536 U.S. 194, 206 (2002). The Court's analysis of whether
the defendant's consent was coerced invoked the factual discussion
in its analysis of whether the defendant had been seized. Id.
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on its face Bostick is about whether the defendant was seized, it
is relevant. The Supreme Court's assessment of whether the police
in Bostick seized the defendant turned on whether they had coerced
him to consent to a search. Id. at 435-38. It held that the
appropriate inquiry was whether, under the circumstances, "a
reasonable person would feel free to decline the officers' requests
or otherwise terminate the encounter." Id. at 436. The Court held
that "[w]here the encounter takes place is one factor, but it is
not the only one." Id.
Against this articulation of the clearly established law,
we now turn to the facts of this case, taking all reasonable
inferences in favor of the players. The defendants have largely
accepted the plaintiffs' version of the facts for purposes of this
summary judgment motion, but say that they would present their
different version of the facts at trial.
The players point to three factual circumstances in
arguing that no reasonably competent officer would have concluded
that Coach Marchand's consent was valid. First, they note that
Coach Marchand explicitly invoked his fear of the crowd, asking the
officers, "what are they going to do to us[?]" shortly before the
officers requested that Coach Marchand consent to a search of the
players. Second, the players note that the officers did not
actively seek to disperse the crowd, but only told the crowd to
quiet down. Third, they note that the officers boxed in the
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Central Falls bus, which effectively ensured that it could not
leave until the police decided it could leave.
Although Coach Marchand may have subjectively felt
coerced by the police and/or the crowd to give his consent, that is
not the focus of the qualified immunity inquiry. Rather, the focus
is on the viewpoint of an objectively reasonable officer. We
cannot say that no reasonably competent officer would have
concluded that Coach Marchand's consent was valid under clearly
established Supreme Court case law. The players do not even allege
that the officers commanded Coach Marchand to consent to a search,
and the facts do not suggest that they did. Nor do the players
allege that the officers threatened force or acted in an
intimidating manner during their exchange with Coach Marchand and
the Coventry Athletic Director. Indeed, Coach Marchand testified
that the officers requested the search politely and acted
courteously and professionally throughout their exchanges with him.
The players do not even allege that the officers spoke to Coach
Marchand with "an authoritative tone of voice" when they requested
to do a search. See Drayton, 536 U.S. at 204.
Rather, the players' evidence depicts a difficult
situation in which Coach Marchand faced a genuine choice between
imperfect solutions. He could either consent to the search or
require the police to pursue other legal paths if they wished to
conduct one. As Coach Marchand said, it was his decision and he
-23-
decided "to take the high road, to take the safe road." Coach
Marchand may have felt that the best way for him to get his players
home safely and promptly was to submit to a search. He knew of the
hostile crowd and was convinced that the players did not possess
any of the purportedly missing items. By the time the police
arrived, the Central Falls bus was already late going home, and
Coach Marchand could have reasonably believed that school
administrators and the players' parents were or would soon become
worried about their whereabouts.
These circumstances do not establish that all reasonably
competent officers would have concluded that Coach Marchand's will
had been overborne or that his capacity for self-determination was
critically impaired. See Watson, 423 U.S. at 424. Indeed, Coach
Marchand testified that he "debated" telling the officers to get a
search warrant, but rejected that option. Instead, he concluded
that his role as coach was to ensure first and foremost that the
players got home safely. A choice between undesirable options does
not itself mean the choice was coerced and the consent given was
involuntary. Like the officers in Drayton, the officers posed
their search request as a question and did not make any showing
that it could not be refused. We cannot say that a reasonably
competent officer could only have concluded that Coach Marchand had
no option but to consent due to coercion.
-24-
The factual details the players emphasize, addressed
within the totality of the circumstances, do not demand a contrary
conclusion. Coach Marchand's question, "what are they going to do
to us[?]," would have alerted reasonable officers of his concerns
about the situation. It may also be that reasonable officers would
have recognized that the perceived threat from the crowd influenced
Coach Marchand's decision. This does not mean, however, that all
officers of reasonable competence would have concluded that Coach
Marchand's will had been overborne. As Coach Marchand testified,
he considered refusing the search and telling the officers to get
a warrant.
As to the officers' efforts to subdue the crowd, by the
time the officers spoke with Coach Marchand, they had restrained
the crowd, told crowd members to cut it out, and established a
buffer between the crowd and the bus. It may be that the officers
would have done better to disperse the crowd altogether. This does
not mean, however, that the officers are not entitled to immunity.
The officers could have reasonably thought that they made clear
that they would prevent the crowd from harming the players as of
the time they asked Coach Marchand to consent to the search.
As to the police cruisers, the officers parked in a way
that boxed in the bus before they became aware of the specific
situation unfolding around it. The record is silent on whether
alternatives were available. More importantly, the officers did
-25-
not convey to Coach Marchand that they would not move their
cruisers until he agreed to a search. Nor were they asked to move
the cruisers.
It is true that in a case concerning an involuntary
seizure of a person, the Supreme Court used language that the
police offered the person "no choice." Kaupp v. Texas, 538 U.S.
626, 631 (2003). But the circumstances there were a far cry from
the choice Coach Marchand faced. In Kaupp an adolescent was
rousted out of bed in the middle of the night wearing nothing but
underwear, placed in handcuffs, and taken to a crime scene on his
way to be interviewed at law enforcement headquarters. His
statement of "Okay" in response to "we need to go and talk" was
clearly not consent. See id. at 631-32. Nothing of that sort
happened here, nor would a reasonable officer have thought it did.
On the plaintiffs' version of the facts, we cannot say
that all officers of reasonable competence would have concluded
that Coach Marchand's consent to the search was invalid. It is not
enough that Coach Marchand described his consent to the search as
coerced; coercion has a specific legal meaning. Even if Coach
Marchand felt his consent was coerced within that specific legal
meaning, this would not be sufficient to overcome the officers'
assertion of qualified immunity. While a jury might find that
Coach Marchand subjectively believed his consent was coerced, that
is not the issue here; we must look to the view of the reasonable
-26-
officer. See Barton v. Clancy, 632 F.3d 9, 30 (1st Cir. 2011).
Like Coach Marchand, the police officers faced a tough decision in
a difficult situation. Whether the officers made the correct
decision is not the point.
C. Equal Protection and State Racial Discrimination Claims
The players argue that they have raised material facts
showing that the officers' actions were impermissibly motivated by
race in violation of the Equal Protection Clause and Rhode Island
state laws. There are disputes over whether the legal contours of
the rights in question would have been clear to a reasonable
officer and over whether a reasonable officer would have perceived
a violation of recognized rights under the factual circumstances
present in this case. We begin with the rights in question and
then assess the factual circumstances.
Our analysis under the Equal Protection Clause looks to
"(1) whether the appellant was treated differently than others
similarly situated, and (2) whether such difference was based on an
impermissible consideration, such as race." Macone v. Town of
Wakefield, 277 F.3d 1, 10 (1st Cir. 2002). A plaintiff must show
that the defendant "selected or reaffirmed a particular course of
action at least in part because of, not merely in spite of, its
adverse effects" upon a protected group. In re Subpoena to Witzel,
531 F.3d 113, 119 (1st Cir. 2008) (quoting Wayte v. United States,
470 U.S. 598, 610 (1985)) (internal quotation marks omitted). Such
-27-
intent may be "inferred from the totality of the relevant facts."
Donahue v. City of Boston, 371 F.3d 7, 14 (1st Cir. 2004) (quoting
Washington v. Davis, 426 U.S. 229, 242 (1976)).
The players assert that this analysis forbids official
actions that "effectuate the known discriminatory intention of
others." Citing United States v. Yonkers Bd. of Educ., 837 F.2d
1181 (2d Cir. 1987), they argue that a police search that works to
effectuate such discriminatory intentions voiced by a crowd
violates the Equal Protection Clause. See id. at 1226. We read
that decision more narrowly; in any event, it is insufficient to
make plaintiffs' proposition into clearly established law. The
players do not cite any cases from this court or the Supreme Court
finding a violation of the Equal Protection Clause in the absence
of purposeful discrimination on the part of the relevant officials.
Accordingly, we hold that the players have not shown that it is
clearly established that acts that effectuate the known
discriminatory intent of others, without more, violate the Equal
Protection Clause. See Davis, 426 U.S. at 241-42; McGuire v.
Reilly, 386 F.3d 45, 63 (1st Cir. 2004).
Under our clearly established equal protection analysis,
the players have failed to demonstrate that all officers of
reasonable competence would have believed that the request for a
search of the players produced differential treatment. Given that
the public had access to the unlocked Coventry locker room, the
-28-
players argue that the officers had no more reason to search them
than they had to search the crowd. Indeed, they argue that the
officers had even less reason to search the players because the
officers knew Coach Marchand had already searched them and a
security guard had accompanied them into the locker room. These
claims belie the undisputed fact that Coach Marchand identified the
players as the "prime suspects" in his discussion with the police.
Even if Coach Marchand merely intended to convey the crowd's
opinion, members of the crowd had not been accused of theft.
Even if we assume that the officers had no more reason to
search the players than the crowd, the players fail to produce
sufficient evidence of discriminatory intent to defeat qualified
immunity. This court has noted that discriminatory animus seldom
"wears its garb openly" and more often comes "masked" in "subtle
forms." Soto v. Flores, 103 F.3d 1056, 1067 n.12 (quoting Aman v.
Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir. 1996)).
Nonetheless, to survive summary judgment, the non-moving party must
make more than "conclusory allegations, improbable inferences, or
unsupported speculation." Pineda v. Toomey, 533 F.3d 50, 53 (1st
Cir. 2008). A non-moving party must "set forth specific facts
showing that there is a genuine issue for trial." Id. at 53-54
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)).
-29-
The players do not present such specific facts on the
issue of racial animus in this case. They point to the alleged
racial slurs made by the crowd and claim that the officers should
have ordered the crowd to disperse or move farther away from the
bus. They also claim that the officers sought to incite the crowd
by displaying some of the players' iPods and cell phones. But
testimony from both Coach Marchand and the players contradicts the
inference that racial animus motivated the officers. No officer
uttered a racial slur. It is uncontested that the officers acted
courteously and told members of the crowd to stop jeering at the
players. There is no evidence that all officers of reasonable
competence would have believed the search was undertaken because of
the national origin or race of the players.
Given this conclusion, the players also cannot defeat the
officers' qualified immunity defenses against their claims under
Rhode Island's Racial Profiling Prevention Act and Ethnic
Intimidation Statute. The Racial Profiling Prevention Act covers
"disparate treatment of an individual on the basis, in whole or in
part, of the racial or ethnic status of such individual," with an
exception not relevant here. R.I. Gen. Laws § 31-21.2-3. The
Ethnic Intimidation Statute covers behavior "which would reasonably
be construed as intended to harass or intimidate [a] person because
of his or her race." R.I. Gen. Laws § 9-1-35(a). For the reasons
-30-
stated above, the players have not raised a genuine issue of
material fact that satisfies either of these standards.
III.
The record does demonstrate, regrettably, that the
players were subject to ethnic animosity from Coventry inhabitants.
Although the plaintiffs do not raise sufficiently material facts to
survive summary judgment, the Town and its voters may wish to take
steps to prevent recurrences of such behavior.
The judgment of the district court is affirmed.
-Opinion Dissenting in Part Follows-
-31-
THOMPSON, Circuit Judge, (Dissenting in part). I agree
with my colleagues that a reasonable officer could have believed
that Coach Marchand had in loco parentis authority to consent to
the search of the players and that their equal protection claims
must fail. My colleagues and I part company, however, on the issue
of qualified immunity. Because I cannot subscribe to the
majority’s determination that the officers were entitled to
qualified immunity because they could reasonably have believed that
Coach Marchand voluntarily consented to the search of his students,
I respectfully dissent.
I.
The appellants, a team of young Hispanic soccer players
from Central Falls, Rhode Island were subjected to shockingly
disgraceful and humiliating conduct by the police and their fellow
citizens alike while visiting another high school in Coventry,
Rhode Island.5 After playing a tense game against Coventry’s team,
the Central Falls players were surrounded by a mob seething with
racial animosity and casting false accusations of theft. When the
police arrived and observed the crowd's obstruction of the bus,
they parked their cruisers in front of and behind the Central Falls
team’s bus, trapping them with their antagonists. Then, rather
than take any action to meaningfully investigate any accusations or
5
The record reflects that the Central Falls players were
bi-lingual.
-32-
pacify the crowd, which continued to simmer menacingly, the
officers questioned the Central Falls team and sought its coach’s
permission to search their belongings.
My colleagues think that a reasonable officer would be
unaware of the duress this state of affairs would inspire in the
team’s coach. In my view, however, the officers’ request of Coach
Marchand while he was surrounded by an angry mob and unable to
depart with his players left little room for choice. He was
subjected to coercion which, though subtler than a peremptory
command and more courteous than the irate mob, could hardly be
plainer. This coercion vitiated any consent he could give,
rendering the subsequent search unlawful.
The basic factual scenario is not largely disputed by the
parties and my colleagues and I recognize that all reasonable
inferences drawn from the facts are to be construed in the
plaintiffs' favor.6 Maj. Op. at 3. The officers invoked qualified
immunity as a defense to their actions. My colleagues set out the
relevant law, see Maj. Op. at 11-14, which I accept and reprise
briefly.
6
In their brief, the defendant officers note that if the
case were to go to trial they would dispute both the number of
spectators alleged to be watching the exchange as well as the
plaintiffs' reference to the spectators as a "mob."
-33-
II.
“Qualified immunity balances two important interests -
the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their
duties reasonably.” Pearson v. Callahan, 129 S. Ct. 808, 815
(2009).
To defeat the immunity, the players must show that (1)
the officers “violated [their] constitutionally protected right”
and (2) “the particular right . . . was clearly established at the
time of the violation.” Raiche v. Pietroski, 623 F.3d 30, 35 (1st
Cir. 2010). Further, “in applying the second prong, we must
consider two subsidiary issues: (a) the clarity of the law in
general at the time of the alleged violation; and (b) the clarity
of the law as applied to the case” - simply put, we ask “whether a
reasonable [officer] in the defendant’s shoes ‘would have
understood that his conduct violated the [players’] constitutional
rights.’” Id. at 35-36 (quoting Maldonado v. Fontanes, 568 F.3d
263, 269 (1st Cir. 2009)). In undertaking this inquiry, we do not
consider the defendants' subjective beliefs concerning the
unlawfulness of their conduct. See Philip v. Cronin, 537 F.3d 26,
34 (1st Cir. 2008). Instead, this inquiry is based on an objective
test - what a reasonable officer would have known. Id.
Nonetheless, “[a] determination of objective reasonableness ‘will
-34-
often require examination of the information possessed’ by the
defendant officials." Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir.
2002) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)).
In granting qualified immunity to the officers, my
colleagues analyzed only the second prong of the test, as permitted
by Pearson. Maj. Op. at 12. Because I would deny qualified
immunity, however, I must address both aspects of the analysis.
A.
The first prong of the qualified immunity test asks
whether a violation of constitutional rights actually occurred.
Raiche, 623 F.3d at 35. It has long been recognized that the
Fourth Amendment bars all warrantless searches “subject only to a
few specifically established . . . exceptions” such as the presence
of probable cause, exigent circumstances, or valid consent. See
Katz v. United States, 389 U.S. 347, 357, 357 n.19, 358 n.22
(1967). Accordingly, absent such an exception to the warrant
requirement the officers' search of the Central Falls players was
improper and a clear violation of the players' constitutional right
to be free from warrantless searches.
The officers rely only upon Coach Marchand’s consent to
validate their search. Of course, the consent must have been
voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548
(1968). That is, it must not have been the product of “duress or
coercion,” Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973), or
-35-
intimidation, Moran v. Burbine, 475 U.S. 412, 421 (1986), either
express or implied. See United States v. Vanvliet, 542 F.3d 259,
264-65 (1st Cir. 2008). Because, as discussed below, I believe
that a reasonable officer would have known that Coach Marchand's
consent to the search of his players was coerced, the first prong
of the qualified immunity test is easily satisfied: there was an
actual violation in the form of an unconstitutional search.
B.
The second prong of the qualified immunity inquiry asks
whether it was clear, both legally and factually, that the
officers’ search was non-consensual. Raiche, 623 F.3d at 35. My
colleagues and I agree that it is clearly established under the
Fourth Amendment that voluntary consent is required to validate a
suspicionless, warrantless search and that "all officers of
reasonable competence would have known that coercion vitiates
consent to a search under the Fourth Amendment." Maj. Op. at 17.
We also agree that the presence of coercion is determined by an
open-ended test that considers “‘all the surrounding
circumstances,’ including ‘subtly coercive police questions’ and
‘the possibly vulnerable subjective state of the person who
consents.’” Maj. Op. at 19 (quoting Schneckloth, 412 U.S. at 229).
Where we disagree is whether the facts of this particular case,
applied to that law, clearly make out a violation of the players’
Fourth Amendment rights. Ultimately, my colleagues "cannot say
-36-
that all officers of reasonable competence," confronted with the
facts of this case, "would have concluded that Coach Marchand's
consent to the search was invalid." Maj. Op. at 26. On the
contrary, I believe that the players’ rights were violated, and
that a reasonable officer would have concluded that the search was
unconstitutional.
1.
In analyzing the second prong of the qualified immunity
test we must ask whether a reasonable officer in the defendants’
position would have known that Coach Marchand felt coerced into
consenting to the search. The central question, then, is how the
reasonable officer would have assessed the voluntariness of
Marchand’s consent.
As we have explained, “[v]oluntariness is a question of
fact that turns on [a] comprehensive assessment of the totality of
the circumstances attending the interaction between [the
individual] and the searching officers.” Vanvliet, 542 F.3d at
264. Threats, intimidation, and coercion are all factors to
consider in analyzing the totality of the circumstances, but they
are not the only ones. See, e.g., United States v. Pérez-Montañez,
202 F.3d 434, 438 (1st Cir. 2000). Indeed, in considering the
totality of the circumstances, no single coercive element will
usually suffice to end the analysis. See Maj. Op. at 20 (citing W.
LaFave, Search and Seizure § 8.2(b), at 62 (4th ed. 2004)).
-37-
Instead, we must look to the circumstances surrounding Marchand's
consent and determine whether they establish that a reasonable
officer could have concluded that he gave it voluntarily. See
United States v. Twomey, 884 F.2d 46, 51 (1st Cir. 1989)
(explaining that we must look to "all the circumstances surrounding
the securing of the consent" when determining the voluntariness
thereof).
Moreover, the determination of an individual’s
voluntariness in consenting to a search is a subjective, fact-
intensive endeavor that “turns not on whether a ‘reasonable’ person
in the [individual’s] position would have felt compelled to consent
to a police officer’s request to search, but, rather, on whether
the [individual] [him]self actually felt compelled to consent.”
United States v. Hall, 969 F.2d 1102, 1106 (D.C. Cir. 1992); accord
Schneckloth, 412 U.S. at 226; Twomey, 884 F.2d at 51. Consent is
coerced when an individual's "will ha[s] been overborne and his
capacity for self-determination critically impaired" to the point
that he does not face an "essentially free and unconstrained
choice." United States v. Watson, 423 U.S. 411, 424
(1976)(internal quotation marks omitted).
Throughout this inquiry, we must recall that on summary
judgment, when assessing the factual circumstances in which an
individual consented to a search and the possible assumptions a
reasonable officer might have made about the corresponding
-38-
voluntariness, “we are required to draw every reasonable inference
in favor of the nonmoving party” – here the Central Falls players.
Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 858 (1st Cir. 2008);
see also Vera v. McHugh, 622 F.3d 17, 27 n. 11 (1st Cir. 2010)
(recalling "our duty to take the facts in the light most favorable
to the nonmoving party on summary judgment"). This is a tough
case, but in my view the balance tips against qualified immunity.
2.
Having set out the relevant law, I turn now to the
factual analysis.
The majority justifies its determination that Marchand’s
consent was valid in large part based on United States v. Drayton,
536 U.S. 194 (2002). In Drayton, three police officers boarded a
bus as part of a routine drug and weapons interdiction. One
officer was at the front of the bus, facing the rear, and another
officer was at the rear of the bus, facing forward. The third
officer walked down the bus aisle from the back to the front,
stopping to speak with passengers along the way. Neither the aisle
nor the front exit was ever blocked. Passengers who declined to
speak with the officer or who chose to exit the bus were allowed to
do so. As the officer approached Drayton's seat, he showed his
badge and stated that his purpose on the bus was to look for drugs
and guns. The officer asked if Drayton and his companion, Brown,
had any bags. They answered affirmatively, so the officer asked
-39-
for permission to search the bags. Brown agreed and no contraband
was found. The officer then asked if he could conduct a patdown of
Brown. He agreed and was arrested after the patdown revealed
contraband. The same is true of Drayton. A further search
revealed that both individuals had cocaine taped between their
shorts. Drayton and Brown were charged with federal drug crimes
and moved to suppress the cocaine on the ground that their consent
to the patdown search was invalid. The Supreme Court held that the
defendants’ consent was not a product of coercion because, among
other reasons, there had been "no threat, no command, [and] not
even an authoritative tone of voice." Id. at 204.
Relying on Drayton, my colleagues place great stock in
the politeness with which the officers interacted with Coach
Marchand and the students.7 Without a doubt, had the officers
commanded Marchand to submit, or acted in a threatening,
domineering, boorish, or otherwise inappropriate way, this case
would be easier. But the fact that the officers were polite,
particularly given all else that was occurring at the highly
charged scene, does not establish that Marchand was not coerced.
The Supreme Court has explained that subtle and polite coercion is
7
Though I would hardly describe the decision to conduct an
invasive search of the players in front of a hostile, jeering,
photo-taking crowd as “polite,” the players do not appear to
challenge this characterization.
-40-
just as objectionable as more obvious browbeating. Schneckloth,
412 U.S. at 228.
Furthermore, we have admonished courts to “go beyond
appearances and inquire whether the consent was a voluntary,
intentional and understood waiver of a known right, or, on the
contrary, was the product of deceit, duress and coercion, actual or
implicit." United States v. Berkowitz, 429 F.2d 921, 925 (1st Cir.
1970)(internal quotation marks omitted). The "beyond appearances"
inquiry is particularly important here: though the police may have
been polite and refrained from issuing commands in an authoritative
tone of voice, they nonetheless blocked the bus in, leaving the
players no way out, essentially "appeas[ing] the masses" who were
"crying for [the players'] heads.” Maj. Op. at 6 (internal
quotation marks omitted); see also infra at 12-15. Ultimately, the
officers’ demeanor can be but one factor in our analysis, and
certainly “not the only one.” Florida v. Bostick, 501 U.S. 429,
437 (1991).
Similarly, although the majority is correct that the
officers’ failure to notify Marchand that he could refuse to
consent is not dispositive, Maj. Op. at 20, it is yet one more
factor of the many in this narrative that, taken together, militate
against qualified immunity in this case. See Schneckloth, 412 U.S.
at 227 (“[T]he failure of the police to advise the accused of his
rights [is] certainly [a] factor[] to be evaluated in assessing the
-41-
‘voluntariness’ of [his] [consent] . . . .”); see also Drayton, 536
U.S. at 202 (quoting Bostick, 501 U.S. at 432)(explaining that one
factor "particularly worth noting" when considering whether consent
to search was coerced was that the officer had advised the
passenger of his right to refuse to consent).
Like the issue of politeness and failure to warn an
individual of his right to refuse consent, police custody is yet
another factor worthy of consideration. Watson, 423 U.S. at 424.
True, "custody alone has never been enough in itself to demonstrate
. . . coerced . . . consent to search," 423 U.S. at 424, but we
have previously observed that "sensitivity to the heightened
possibility of coercion is appropriate when a[n] [individual's]
consent is obtained during custody," United States v. Barnett, 989
F.2d 546, 555 (1st Cir. 1993).
There is no question that Marchand was in police custody
at the time he consented to the search.8 The officers parked their
cruisers in front of and behind the players’ bus, preventing them
from leaving. This alone distinguishes our case from Drayton,
which involved “no blocking of exits.” 536 U.S. at 204. In
Drayton, even though there was an officer at the front of the bus,
"he said nothing to suggest that people could not exit and . . .
8
There is no need to determine whether Marchand was in
legal custody. By "custody" I refer only to the factual scenario
by which the bus was blocked in by police cruisers, effectively
blocking any means of exit for the plaintiffs.
-42-
left the aisle clear." Id. at 205. This is significantly
different from the facts of the present case where the players' bus
was completely boxed in by patrol cars. Surely, no reasonable
officer could have believed that the plaintiffs felt free to leave.
Of course, it may be true that the officers trapped the
players with the crowd before they were aware of the nature of the
controversy and of the danger, fear, and concomitant coercion they
would cause by doing so. See Maj. Op. at 25. But this is beside
the point: at the time the officers sought Marchand's permission to
search the players a reasonable officer would certainly have been
aware, at that crucial moment, that the positioning of their
cruisers left the players with no way out. Cf. Terry v. Ohio, 392
U.S. 1, 21-22 (1968) (explaining in analogous context that in
evaluating the reasonableness of a search or seizure, courts look
to the state of the facts "at the moment of the seizure or the
search"). Regardless, Marchand’s fearful inquiry of the officers
in response to their request for consent (“[w]hat [is the crowd]
going to do to us?”) should have made apparent the fear elicited in
him by being blocked in with the crowd.
The majority states that "[t]he officers could have
reasonably thought that they made clear [to Coach Marchand] that
they would prevent the crowd from harming [his] players . . . ."
Maj. Op. at 25. This conclusion is incredible - particularly in
light of the fact that the officers never responded to Marchand's
-43-
initial inquiry regarding the crowd's behavior. In addition, there
were only four officers on the scene, yet they were responsible for
controlling an angry, boisterous, irrational crowd of approximately
fifty to sixty people. With a mere six to ten feet buffer between
the hostile crowd and the players, I cannot fathom how any
reasonable officer would think that the defendants made clear to
Coach Marchand that he and his players would go unharmed. The
majority points out that "the officers did not convey to Coach
Marchand that they would not move their cruisers until he agreed to
a search" and that the officers “were [not] . . . asked to move the
cruisers." Maj. Op. at 26. That may very well be the case, but
so too is the converse - the officers never offered nor took any
action to move their cruisers on their own before soliciting Coach
Marchand's permission.
Nevertheless, Marchand's fearful inquiry shows that he
felt threatened and intimidated by the crowd. That Marchand did
not translate his fear and intimidation of the crowd into a
particularized request - for example, by asking the officers to
move their cruisers or asking if there were any other options other
than consenting to a search of his players - does not eliminate
this factor from consideration. As the Supreme Court has
explained, “the crucial test is whether, taking into account all of
the circumstances surrounding the encounter, the police conduct
would have communicated to a reasonable person that he was not at
-44-
liberty to ignore the police presence and go about his business.”
Bostick, 501 U.S. at 437 (emphasis added)(internal quotation marks
omitted). Any officer should have recognized that Coach Marchand
did not feel at liberty to leave.
The majority acknowledges that "the players' evidence
depicts a difficult situation in which Coach Marchand faced a
genuine choice between imperfect solutions," Maj. Op. at 23, but
nonetheless decides that "these circumstances do not establish . .
. that Coach Marchand's will had been overborne or that his
capacity for self-determination was critically impaired." Id. at
24. To support this conclusion the majority notes that Coach
Marchand testified at his deposition that he "'debated' telling the
officers to get a search warrant, but rejected that option," after
weighing his alternatives, Maj. Op. at 24, and ultimately
“concluded that his role as coach was to ensure first and foremost
that [his] players got home safely” Id. But Coach Marchand’s
thought process, and the actions he “debated” taking, are
completely irrelevant. Marchand's testimony was given after the
fact and was not communicated to any officer at the scene of the
incident. The hypothetical reasonable officer cannot read minds;
therefore, in analyzing whether such an officer would have known
that Coach Marchand's consent was coerced, it is simply common
sense that only facts actually communicated to or observed by the
officer are relevant.
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My colleagues are apparently of two minds on this issue:
though they initially rely on Marchand’s uncorroborated description
of his internal thought process in an effort to negate the coercion
he suffered, they later recognize that his subjective, unexpressed
thoughts and feelings are irrelevant when dismissing Marchand’s
testimony that he felt coerced into consenting. see Maj. Op. at 26
("It is not enough that Coach Marchand described his consent to the
search as coerced; . . . [w]hile a jury might find that Coach
Marchand subjectively believed his consent was coerced that is not
the issue here; we must look to the view of the reasonable
officer."). As I have previously discussed, Marchand's objective
manifestations of coercion were amply supported by evidence
available to the officers. In analyzing the coercive atmosphere
under which Marchand gave his consent, I would consider only those
facts available to a reasonable officer at the time of the search.
If more were needed, and I doubt that there is, the
officers exacerbated the situation by “ma[king] little to no effort
to quell or disperse the crowd, even as [it] verbally assailed the
players[,] shouting racist epithets and accusations of theft.”
Lopera v. Town of Coventry, 652 F. Supp. 2d 203, 210 (D.R.I. 2009).
With the possibly violent assembly looming, the officers questioned
Marchand. Taking the crowd’s word over Marchand’s, they elected to
pursue a search of the Central Falls students before adequately
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calming the mob or even ascertaining what, if anything, had
actually been stolen.
My colleagues, in further reliance on Drayton, note that
there was no testimony that the request to search was made in “an
authoritative tone of voice.” Maj. Op. at 23 (internal quotation
marks omitted). But tone of voice cannot be dispositive of the
coercion inquiry. Al Capone said you can get more with a kind word
and a gun than with just a kind word; a mob can be just as
“convincing” as a gun.
The officers knew that Marchand felt threatened by the
crowd. They knew he had already capitulated to the intense
coercion and intimidation exerted by the mob, delaying his team’s
departure for about a half-hour to engage in a search that he knew
beforehand would be futile in order to satisfy the crowd’s demands.
Still, the officers did practically nothing to assuage that fear or
mitigate the coercion, and indeed kept the players’ bus trapped
with the crowd for more than ten minutes before capitalizing on
Marchand’s weakened state to elicit consent for a duplicative
search. Without a doubt, such behavior is contrary to the general
recognition that police officers have a duty to protect the public
and public safety. See, e.g., Bordanaro v. McLeod, 871 F.2d 1151,
1164 (1st Cir. 1989)(referencing district court's assertion in
excessive force case that "the primary duty of the police
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departments and policemen is to protect and preserve life and
property and the public peace")(emphasis added).
It is inappropriate to create an artificial dichotomy
between the coercion applied by the officers and that applied by
the crowd they failed to adequately control, and then to omit the
latter from consideration. To do so subverts the totality-of-the-
circumstances analysis that is required of us. Even the majority
recognizes this. In rejecting the officers' argument that
coercion, in the context of Fourth Amendment analysis, must
“‘emanat[e] from the police officers themselves rather than any
subjective or outside influence,’" the majority noted that clearly
established law requires consideration of "all the surrounding
circumstances." Maj. Op. at 17-18 (citing Schneckloth, 412 U.S. at
227, and concluding that Colorado v. Connelly 479 U.S. 157 (1986),
which held that "coercive police activity is a necessary predicate
to the finding that a confession is not 'voluntary' within the
meaning of the Due Process Clause,” id. at 167, does not extend to
Fourth Amendment consent cases).
A reasonable officer in the defendants’ position would
have known that Marchand, who expressed fear of the crowd, was
under a significant amount of duress. This duress was caused both
by the raucous mob hurling menacing accusations, threats, and
racial epithets and the officers themselves, who blocked Marchand’s
team in with the crowd, failed to take adequate measures to calm or
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disperse it, and immediately took its side against Marchand upon
arriving, despite lacking any reasoned basis for doing so. Given
the officers’ exchange with Marchand, they knew or at least should
have objectively known, that he felt constrained by their failure
to disperse the crowd or allow the bus to leave and that he feared
the racial animus in the crowd aimed at his players. On these
facts, a reasonable officer would have known that Marchand believed
he had no option for getting his students home safely but to
consent to their demand for a search. Moreover, a reasonable
officer would conclude that Marchand’s responsibility for the
safety of his charges and his increasing tardiness in getting them
home would make him particularly vulnerable to this type of
coercion.
III.
I am gravely concerned that our case law is treading
terribly close to creating "an impenetrable defense for government
officals" and a "significant risk that qualified immunity will
always attach.” Savard v. Rhode Island, 338 F.3d 23, 41 (1st Cir.
2003)(equally divided en banc court)(opinion of Bownes, J.). The
Fourth Amendment is one of our most precious constitutional rights.
We should not so comfortably defer to the judgment of government
officials at the cost of eviscerating such a fundamental right of
our citizens - a right this nation has declared deserves the
highest protection. Indeed, our task in undertaking a qualified
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immunity inquiry requires the contrary. It is after all "an
attempt to balance competing values: not only the importance of a
damages remedy to protect the rights of citizens, but also ‘the
need to protect officials who are required to exercise their
discretion and the related public interest in encouraging the
vigorous exercise of official authority.’" Harlow v. Fitzgerald,
457 U.S. 800, 807 (1982)(quoting Butz v. Economou, 438 U.S. 478,
504-06 (1978))(citation omitted).
With these concerns in mind and taking, as I must, every
inference available in the record in favor of the plaintiffs, I
cannot say that a reasonable officer in the defendants’ position
could have concluded that Marchand voluntarily consented to the
search. The Central Falls team’s rights were violated; the
violation was clear; and a reasonable officer should have
recognized it. I would vacate the district court's entry of
summary judgment and remand for resolution of the factual disputes
upon which the officers’ claim of qualified immunity turns.
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