Horta v. Sullivan ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1962
DEBRA HORTA,
Plaintiff, Appellant,
v.
CHARLES B. SULLIVAN, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
Before
Torruella, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Sheila M. Tierney with whom Tierney Law Office was on brief for
appellant.
Linda M. Walsh with whom Kroll & Tract was on brief for appellees
Charles B. Sullivan, Paul G. Sadeck, Edward Mello and the Town of
Freetown.
James F. Gettens with whom Healy & Rocheleau, P.C. was on brief
for appellees Jeffrey Mennino, James K. Bowles, and the Town of
Lakeville.
August 31, 1993
CAMPBELL, Senior Circuit Judge. A passenger
injured after police officers had chased the motorcycle on
which she was riding sued the police officers, the towns, and
the town police chiefs in the district court under 42 U.S.C.
1983 and state law. The district court granted summary
judgment for all defendants on all counts. Appellant
appeals, but only as to the 1983 claims against the police
officers and the pendent Massachusetts Tort Claims Act claims
against the two towns. We affirm in part, vacate and remand
in part, and certify a question of law to the Massachusetts
Supreme Judicial Court.
I.
I.
The following facts are not in dispute. On Friday,
August 5, 1988, at approximately 9:18 p.m., appellee Jeffrey
Meninno, a Lakeville Police Officer, was traveling in his
police cruiser north on County Road in Lakeville,
Massachusetts, when he observed a motorcycle approaching him
in the southbound lane in excess of the posted speed limit.1
Officer Meninno activated the cruiser's blue lights as the
motorcycle approached. He then turned his cruiser around and
1. Officer Meninno stated that his radar gun, which he was
operating as he drove along County Road, measured the
motorcycle's speed as 59 miles per hour. The posted speed
limit on County Road was 40 miles per hour. A photograph of
the radar gun, showing a reading of 59 miles per hour, was
attached as an exhibit to Meninno's deposition.
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began to pursue the motorcycle. Instead of pulling over,
the motorcycle accelerated.
When appellant Debra Horta, riding on the back of
the motorcycle, realized that the police car was following
them, she told the motorcycle operator, James F.
Demoranville, to stop because "it isn't worth it."
Demoranville refused. "He just said to tuck my head in
between his shoulders and hang on." Appellant remembers
nothing about what occurred after that moment.
Officer Meninno accelerated to keep up and followed
the motorcycle along County Road from a distance of a few
hundred feet, backing off a number of times when it appeared
that the bike was wobbling and the riders might fall off.
The chase reached speeds of seventy-five to eighty miles per
hour, as Meninno watched the motorcycle drive erratically,
pass at least one car, and swerve into and drive in the
opposite lane. Meninno unsuccessfully attempted to record
the motorcycle's license plate number.
As the pursuit continued on County Road, Officer
Meninno radioed a report to the Lakeville police dispatcher,
telling her of the pursuit and asking her to notify the
police department in the neighboring town of Freetown that
the motorcycle was heading toward the Lakeville-Freetown
line. Appellee Charles B. Sullivan, a police officer in
Freetown, heard Meninno's transmission but did not yet
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contact Lakeville. At that time Sullivan and appellee Paul
G. Sadeck, another Freetown police officer, were parked in
separate cruisers on Route 18 in Freetown. Sullivan told
Sadeck about the chase and then drove south on Route 18
toward the intersection of Route 18 and Mason Road. Mason
Road runs between County Road and Route 18. Meninno
contacted the Lakeville dispatcher again, notifying her that
the motorcycle had left Lakeville and entered Freetown.
Sullivan then informed the Lakeville dispatcher and Meninno
that the Freetown police would assist. The motorcycle slowed
down to thirty miles per hour, with Meninno doing the same,
before turning left from County Road onto Mason Road and
accelerating again to over sixty miles per hour.2 Officer
Meninno kept up and told Sullivan by radio that he and the
motorcycle were now proceeding eastbound on Mason Road. He
also warned Sullivan that, "He's driving recklessly. Be
careful." Sullivan informed Meninno that he was now coming
in the other direction on Mason Road, getting closer to
Meninno and the speeding motorcycle.
2. Mason Road is a paved, two-lane road approximately 24
feet wide with a double solid yellow line separating the
lanes and a posted speed limit of 30 miles per hour. The
segments of County Road and Mason Road on which the pursuit
took place are sparsely populated residential and undeveloped
areas. That evening, Mason Road was dry and traffic was
light.
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As the motorcycle and Meninno continued east on
Mason Road, Officer Sullivan stopped his police cruiser in
the eastbound lane of the two-lane road, facing west. He
left the transmission in Drive and "stood on the brakes" to
keep the cruiser stationary. The westbound lane directly
next to Sullivan's cruiser was unobstructed.3 In front of
the cruiser, the road ran straight for approximately 480 feet
before it turned. Sullivan could not see around the bend to
the approaching motorcycle and police car, nor could the
latter yet see his car. Sullivan illuminated the cruiser's
blue lights, take-down lights,4 and headlights. No
streetlight illuminated the point at which the cruiser was
parked, but the road was lit at the bend and the take-down
lights illuminated part of the road in front of the cruiser.
Officer Meninno and the motorcycle were traveling
along Mason Road at sixty or sixty-five miles per hour when
Officer Sullivan advised Meninno by radio of his precise
3. Officer Sadeck, in another cruiser, was heading for Mason
Road at this time but did not arrive on the scene until after
the crash. While appellant alleged in her complaint that
Sadeck arrived prior to the crash and that his cruiser formed
part of a "staggered roadblock," there is no admissible
evidence in the record supporting this allegation. See infra
Part II.
4. Take-down lights are small white lights affixed to the
roof of the police cruiser and located in between two sets of
flashing blue lights. The take-down lights on Officer
Sullivan's cruiser were directed toward the front of the
cruiser and illuminated a portion of the area in front of the
car.
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location, warned him to "back off" and that he had the road
"blocked." Meninno says that he did slow down, but the
motorcycle continued on apace.
Fifteen to twenty seconds elapsed before Sullivan
saw the motorcycle, with Demoranville and appellant on it,
round the bend in Mason Road with Meninno's cruiser some
distance behind it.5 Demoranville, still driving in the
eastbound lane, appeared to slow the cycle down and steer
toward the roadside on his right. However, he apparently
lost control of the motorcycle, which fell on its side and
slid along the roadway until it collided with the front of
Officer Sullivan's stationary police cruiser. The cruiser
rose up in the air on impact, Demoranville became wedged
underneath the car, and appellant Horta fell backwards off
the motorcycle. Meninno eventually stopped without skidding
or taking evasive action. Demoranville died within the hour
and Horta sustained serious, permanent injuries, resulting in
a month-long coma and eventual amputation of her left leg.
Three to four minutes elapsed from the time Officer
Meninno began the pursuit to the time the motorcycle collided
with Sullivan's cruiser. The pursuit covered 3.2 miles. At
5. Meninno stated in his deposition that he was
approximately 250 feet behind the motorcycle when he rounded
the turn. Sullivan estimated only that the distance was "no
less than" 50 to 75 feet. The evidence is unclear as to how
fast the motorcycle was going when it rounded the last bend
on Mason Road.
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no time did Officer Meninno's police cruiser make physical
contact with the motorcycle or its passengers.6
Appellant Horta brought this civil action for money
damages on June 25, 1991, in the United States District Court
for the District of Massachusetts against seven defendants
Officers Meninno, Sullivan, and Sadeck; the Town of Lakeville
and the Town of Freetown; and Lakeville Police Chief James K.
Bowles and Freetown Police Chief Edward Mello. The complaint
contained six counts, alleging that Meninno, Sullivan, and
Sadeck were liable to Horta under 42 U.S.C. 1983 and 1985
for violation of her constitutional rights (Count I); under
Mass. Gen. L. ch. 12, 11H and I for violation of her civil
rights (Count II); and under the Massachusetts Tort Claims
Act, Mass. Gen. L. ch. 258, for negligence (Count III).
Horta also alleged that the towns of Lakeville and Freetown
were liable to her under the Massachusetts Tort Claims Act
for the negligent actions of Meninno, Sullivan, and Sadeck
(Count IV), and that Chief Bowles, Chief Mello, Lakeville and
Freetown were liable to her under 42 U.S.C. 1983, 1985 and
1988 (Count V) and under Mass. Gen. L. 11H and I (Count
VI).
6. It is undisputed that no non-police vehicles or
pedestrians were on Mason Road near the accident scene at the
time of the collision.
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The defendants moved for summary judgment, which
the district court granted on July 8, 1992.7 Horta now
appeals from the final judgment dismissing her complaint.
7. The district court separately granted Meninno's motion
for judgment on the pleadings as to Count III. Appellant
filed no opposition to the motion and does not appeal from
that portion of the district court's order.
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II.
II.
Horta challenges only the district court's granting
of summary judgment on Counts I and IV, hence waiving any
appeal concerning Counts II, III, V and VI. See Fed. R. App.
P. 28(a)(3), (5); Brown v. Trustees of Boston Univ., 891 F.2d
337, 352 (1st Cir. 1989), cert. denied, 496 U.S. 937 (1990).
We turn first to a disagreement over what materials
are properly in the summary judgment record. Appellees moved
in the district court to strike seven exhibits two
affidavits, three newspaper articles and other documents
that Horta submitted with her opposition to the motion for
summary judgment. Appellees argued, inter alia, that the
exhibits contained inadmissible hearsay, were not in proper
form, and were not properly sworn to or certified under Fed.
R. Civ. P. 56. The district court denied the motion to
strike without comment. Appellees now assert that we should
disregard the exhibits for purposes of deciding, in this
appeal, whether or not to uphold summary judgment. See Carey
v. Bahama Cruise Lines, 864 F.2d 201, 203 n.1 (1st Cir. 1988)
("An appellee need not cross-appeal 'to argue that there are
alternative grounds that support the judgment below.'"
(quoting Jasany v. United States Postal Serv., 755 F.2d 1244,
1248 n.1 (6th Cir. 1985))).
Summary judgment is to be decided on "the
pleadings, depositions, answers to interrogatories, and
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admissions on file, together with the affidavits, if any."
Fed. R. Civ. P. 56(c). In addition, a court may take into
account any material that would be admissible or usable at
trial. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure 2721, at 40 (2d ed.
1983). However, inadmissible evidence may not be considered.
Finn v. Consolidated Rail Corp., 782 F.2d 13, 16-17 (1st Cir.
1986). "Mere allegations, or conjecture unsupported in the
record, are insufficient to raise a genuine issue of material
fact." August v. Offices Unlimited, Inc., 981 F.2d 576, 580
(1st Cir. 1992).
We need consider only one of the challenged
exhibits as none of the others, even if admissible, would add
to or subtract from Horta's ability to raise a genuine issue
of material fact. The significant exhibit is a photocopy of
a newspaper article indicating that Officer Sadeck's cruiser
had arrived on the scene before the crash and was so
positioned with Officer Sullivan's cruiser as to form a
"staggered roadblock." This account is contrary to all the
other reports before the court. Sadeck stated in his own
affidavit that he was on Route 18, not on Mason Road (where
the crash occurred) when he saw smoke coming from the front
of Officer Sullivan's cruiser and heard Sullivan report the
collision to the Freetown dispatcher. Officer Sadeck says
that he immediately drove down Mason Road and parked his
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cruiser in the westbound lane approximately 150 feet behind
Officer Sullivan's cruiser, which was in the eastbound lane.
He exited his car, saw two injured persons on the ground and
ran back to his cruiser to summon an ambulance and obtain
first aid equipment. Officers Meninno and Sullivan
corroborate Sadeck's story, stating that they did not see
Officer Sadeck on the scene until after the collision.
Freetown Police Chief Mello's affidavit states that an
official investigation of the incident turned up no evidence
that Officer Sadeck was on Mason Road before the collision
occurred.
Appellant alleged in her complaint that Officer
Sadeck was on Mason Road before the collision, and had parked
his vehicle in the westbound lane, 150 feet behind Officer
Sullivan's cruiser in the eastbound lane, to establish with
Sullivan a staggered roadblock. The newspaper article
offered in support of this appeared two days after the
accident. It reports Freetown Police Chief Mello as stating
that two Freetown police vehicles were positioned on Mason
Road to create a staggered roadblock.8 No affidavits or
8. The unidentified reporter wrote, in part:
James F. Demoranville, 40, died of
multiple injuries at St. Luke's Hospital
in New Bedford at 10 p.m., about 45
minutes after he lost control of his
motorcycle and slid into one of 2 police
cruisers poised to slow him down. . . .
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depositions from the unidentified newspaper reporter or
reporters were submitted to the court.
This article should have been stricken on
appellees' motion and cannot be considered in deciding
whether Horta has raised a genuine issue of material fact.
See Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.
1990); Bolen v. Paragon Plastics, Inc., 754 F. Supp. 221,
224-25 (D. Mass. 1990). The account is hearsay, inadmissible
at trial to establish the truth of the reported facts. In
fact, the newspaper account is hearsay within hearsay. See
Fed. R. Evid. 805. Even were appellee Chief Mello the sole
source of the article's information, so that his statements
could be regarded as the nonhearsay admissions of a party
opponent, see Fed. R. Evid. 801(d)(2), the article itself
constitutes inadmissible out-of-court statements, by
unidentified persons, offered to prove the truth of the
[] Freetown police set up a partial
road block by staggering two cruisers
along the road, according to Police Chief
Edward Mello. The staggered road block
is designed to slow down speeding
vehicles, leaving an opening for the
vehicle to continue driving, he said.
Mr. DeMoranville did slow his
motorcycle but lost control of it as he
tried to avoid hitting a cruiser,
according to reports. The motorcycle and
its passengers then slid into the front
end of one of the cruisers.
Chase Ends in Death, New Bedford (Mass.) Sunday Standard-
Times, Aug. 7, 1988.
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matter asserted. See Fed. R. Evid. 801(c); New England Mut.
Life Ins. Co. v. Anderson, 888 F.2d 646, 650-51 (10th Cir.
1989). Such inadmissible material is not a proper part of
the record for summary judgment purposes. See, e.g.,
Garside, 895 F.2d at 50 (refusing to consider, on summary
judgment motion, an interrogatory answer describing the
anticipated testimony of an expert because it contained
inadmissible hearsay); FDIC v. Roldan Fonseca, 795 F.2d 1102,
1110 (1st Cir. 1986) (refusing to consider on summary
judgment photocopies of three money orders offered to show
amount paid on a note because they were inadmissible
hearsay). Accordingly, the newspaper article may not be
regarded in determining whether a genuine issue of material
fact exists.
III.
III.
Appellant alleged in Count I that Officers Sadeck,
Meninno, and Sullivan were liable to her under 42 U.S.C.
1983 because they deprived her of her constitutional right
under the Fourth Amendment to be free from unreasonable
seizures.9 In granting summary judgment for appellees, the
9. The Fourth Amendment to the United States Constitution
provides:
The right of the people to be secure
in their persons, houses, papers, and
effects, against unreasonable searches
and seizures, shall not be violated, and
no Warrants shall issue, but upon
probable cause, supported by Oath or
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district court ruled that all three were entitled to
qualified immunity. We affirm, although on different grounds
as to Sadeck and Meninno. See Aunyx Corp. v. Canon U.S.A.,
Inc., 978 F.2d 3, 6 (1st Cir. 1992) ("We are free, on appeal,
to affirm a judgment on any independently sufficient ground."
(citations omitted)), cert. denied, 113 S. Ct. 1416 (1993).
A. Officer Sadeck
A. Officer Sadeck
affirmation, and particularly describing
the place to be searched, and the person
or things to be seized.
42 U.S.C. 1983 provides in relevant part:
Every person who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State or Territory or
the District of Columbia, subjects, or
causes to be subjected, any citizen of
the United States or other person within
the jurisdiction thereof to the
deprivation of any rights, privileges, or
immunities secured by the Constitution
and laws, shall be liable to the party
injured in an action at law, suit in
equity, or other proper proceeding for
redress. . . .
Appellant also alleged in Count I that Sadeck,
Meninno, and Sullivan were liable under 42 U.S.C. 1985.
However, the 1985 claims were never discussed below, either
by the parties or the court, and the record does not support
a 1985 claim. See United Bhd. of Carpenters v. Scott, 463
U.S. 825, 834-37 (1983) (reaffirming that 1985 requires a
showing of some racial, or perhaps otherwise class-based,
animus behind the conspirators' actions); Griffin v.
Breckenridge, 403 U.S. 88, 102-03 (1971) (explaining elements
of a claim under 1985(3)). Hence, we consider Count I to
include claims only under 1983.
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Appellant's claim against Sadeck is based entirely
on the allegation that he parked his vehicle on Mason Road
before the collision, helping Officer Sullivan to create a
staggered roadblock which led to appellant's injuries. The
undisputed facts on the record show that Officer Sadeck did
not arrive on Mason Road until after the accident and,
therefore, was not causally connected to the injuries
sustained by appellant. Consequently, Sadeck was entitled to
judgment as a matter of law on the 1983 claim against him.
See Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983)
("[T]he principles of tort causation apply to constitutional
as to other tort suits.").
B. Officer Meninno
B. Officer Meninno
We do not reach qualified immunity, the ground upon
which the court below dismissed the 1983 claim against
Officer Meninno. Rather, we find that Meninno is entitled to
prevail as a matter of law because his conduct, construed in
the light most favorable to appellant, could not have
constituted a "seizure" of her person within the meaning of
the Fourth Amendment.
The Supreme Court, in Brower v. County of Inyo, 489
U.S. 593 (1989), clarified the scope of the Fourth Amendment
in the context of police pursuits and roadblocks.
Violation of the Fourth Amendment
requires an intentional acquisition of
physical control. A seizure occurs even
when an unintended person or thing is the
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object of the detention or taking, but
the detention or taking must be willful.
This is implicit in the word "seizure,"
which can hardly be applied to an
unknowing act. . . . In sum, the Fourth
Amendment addresses "misuse of power,"
not the accidental effects of otherwise
lawful government conduct.
Thus, if a parked and unoccupied
police car slips its brake and pins a
passerby against a wall, it is likely
that a tort has occurred, but not a
violation of the Fourth Amendment. And
the situation would not change if the
passerby happened, by lucky chance, to be
a serial murderer for whom there was an
outstanding arrest warrant even if, at
the time he was thus pinned, he was in
the process of running away from two
pursuing constables. It is clear, in
other words, that a Fourth Amendment
seizure does not occur whenever there is
a governmentally caused termination of an
individual's freedom of movement (the
innocent passerby), nor even whenever
there is a governmentally caused and
governmentally desired termination of an
individual's freedom of movement (the
fleeing felon), but only when there is a
governmental termination of freedom of
movement through means intentionally
applied. That is the reason there was no
seizure in the hypothetical situation
that concerned the Court of Appeals.
[I.e., a police chase in which the
suspect unexpectedly loses control of his
car and crashes.] The pursuing police
car sought to stop the suspect only by
the show of authority represented by
flashing lights and continuing pursuit;
and though he was in fact stopped, he was
stopped by a different means his loss
of control of his vehicle and the
subsequent crash. If, instead of that,
the police cruiser had pulled alongside
the fleeing car and sideswiped it,
producing the crash, then the termination
of the suspect's freedom of movement
would have been a seizure.
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Id. at 596-97 (citations omitted) (emphasis in original).
Applying the Court's reasoning in Brower to the
present facts, it is clear that Officer Meninno's pursuit of
the motorcycle on which Horta was riding, without more, was
not a Fourth Amendment seizure. "A Fourth Amendment seizure
does not occur when a police officer turns on his blue lights
and thereby signals the driver of a vehicle to pull over."
Willhauck v. Halpin, 953 F.2d 689, 716 (1st Cir. 1991). If
the driver speeds off, pursued by the officer, and a crash
ensues, this does not necessarily constitute a seizure,
either. Hence, if during the chase here Demoranville's
motorcycle had accidentally collided with a tree on Mason
Road there would plainly have been no seizure, as Meninno
would not have terminated Horta's "freedom of movement
through means intentionally applied," (i.e., Meninno did not
intentionally cause the motorcycle to strike the tree).
Brower, 489 U.S. at 597; see, e.g., Campbell v. White, 916
F.2d 421, 423 (7th Cir. 1990) (holding no seizure occurred
where police officer accidentally collided with motorcyclist
being pursued), cert. denied, 111 S. Ct. 1314 (1991); Apodaca
v. Rio Arriba County Sheriff's Dept., 905 F.2d 1445, 1447
(10th Cir. 1990) (holding no seizure occurred where police
officer responding to burglar alarm unintentionally collided
with bystander's vehicle); Roach v. City of Fredericktown,
882 F.2d 294, 296 (8th Cir. 1989) (holding no seizure
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occurred where police officer did not intend pursuit to end
by means of a collision with another vehicle).
By the same token, it is not sufficient that
Meninno pursued and the pursuit resulted in a collision with
another police vehicle. Even if Officer Sullivan's
independent conduct in blocking the lane were deemed to be a
Fourth Amendment seizure, see infra Part III.C., Officer
Meninno did not necessarily share responsibility. "The
Supreme Court in Brower carefully distinguished between
police action directed toward producing a particular result
in Fourth Amendment parlance, 'an intentional acquisition
of physical control' and police action that simply causes
a particular result. Unless the restraint of liberty at
issue resulted from an attempt to gain control of the
individual, the Court stated, there has been no Fourth
Amendment seizure." Landol-Rivera v. Cruz Cosme, 906 F.2d
791, 795 (1st Cir. 1990) (emphasis in original). To
establish that Meninno seized her, appellant must show that
the collision with Officer Sullivan's cruiser was the means
intended by Meninno to end the pursuit.
Reading the record in the light most favorable to
appellant, there is no basis for a jury to find that a
collision between the motorcycle and another police vehicle
was the means intended by Meninno to terminate the pursuit.
Meninno himself attempted to stop the motorcycle only by a
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show of authority, i.e., his flashing lights and siren. He
did not request the Lakeville police to establish a partial
roadblock, nor is there anything to show that he contemplated
forcing the fleeing motorcycle into a collision.
Appellant asserts that Meninno intentionally
brought about the collision by "herding" the motorcycle into
Sullivan's cruiser. But Meninno's cruiser did not touch the
motorcycle; he consistently matched his speed to that of the
motorcycle and maintained a distance of a few hundred feet
behind. Demoranville slowed down (to thirty miles per hour)
and sped up (to seventy-five miles per hour) a number of
times during the chase. Nothing prevented the motorcycle
operator from slowing down and stopping had he so desired.
It was Demoranville, not Meninno, who elected to head into
Freetown and to turn onto Mason Road.
Meninno, moreover, never proposed nor discussed
with anyone the idea of blocking the traffic lane. Officer
Sullivan volunteered his assistance, and Officer Meninno,
though in radio contact with Sullivan, had no authority over
him. Sullivan's decision to park his car in the oncoming
traffic lane of Mason Road was made independently and, until
just before the crash, without Meninno's knowledge. Meninno
was first informed, by radio, of the partial roadblock when
Officer Sullivan told him to "back off," approximately
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fifteen seconds before the collision. Meninno said that he
did slow down, although the motorcycle kept going.
We hold that appellant did not produce facts
creating a genuine issue as to whether the motorcycle-police
cruiser collision was the means intended by Officer Meninno
to terminate appellant's freedom of movement.10 Appellee
Meninno was entitled to summary judgment on Count I.
C. Officer Sullivan
C. Officer Sullivan
The district court found appellee Sullivan to be
protected by qualified immunity from appellant's 1983
claim.
Appellant challenges the finding of qualified
immunity, first arguing that Sullivan was not engaged in a
"discretionary function" when he participated in the pursuit
of appellant and Demoranville. His actions were not
discretionary, she argues, because the Town of Freetown had
in effect high speed guidelines which governed his conduct.
In its landmark case establishing qualified
immunity doctrine, the Supreme Court indeed stated that
"government officials performing discretionary functions,
generally are shielded from liability for civil damages
10. We do not consider to what extent, if any, appellant's
claim of a Fourth Amendment seizure is weakened by her status
as a mere passenger on the motorcycle, not the motorcycle
operator being pursued by the police for violation of traffic
laws. See Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795-96
(1st Cir. 1990).
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insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982) (emphasis supplied). But in spite of the
reference to discretionary functions, it has never since
been clear exactly what role, if any, this concept is
supposed to play in applying qualified immunity. Judge
Cummings, writing for the Seventh Circuit, warned that "it
would be unwise to engage in a case by case determination of
Section 1983 immunity based upon the ministerial versus
discretionary nature of the particular official act
challenged." Coleman v. Frantz, 754 F.2d 719, 727 (7th Cir.
1985). Judge Arnold, writing for the Eighth Circuit, said,
The distinction between ministerial and
discretionary duties of public officials
has a long history. However, the
plaintiffs have cited, and we can find,
no recent case other than that before us
in which a court has rejected qualified
immunity simply because the official in
question was performing a ministerial
duty.
McIntosh v. Weinberger, 810 F.2d 1411, 1432 (8th Cir. 1987)
(citations omitted), partially vacated and remanded on other
grounds sub nom. Turner v. McIntosh, 487 U.S. 1212 and cert.
denied, 487 U.S. 1217 (1988). See Gagne v. City of
Galveston, 805 F.2d 558, 559 (5th Cir. 1986) (holding that
officials do not lose qualified immunity merely because their
conduct violates some unambiguous statutory or administrative
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provision), cert. denied, 483 U.S. 1021 (1987); see also F.E.
Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314-15 (9th Cir.
1989); cf. Ricci v. Key Bancshares of Maine, Inc., 768 F.2d
456, 464 (1st Cir. 1985) ("[B]reaking down discretionary acts
. . . into discretionary and ministerial components would
seem to vitiate much of the protection of discretionary
action which absolute immunity was designed to provide.").
Since Harlow the Supreme Court has neither
repudiated nor much explained the role of discretionary
functions relative to qualified immunity. However, in Davis
v. Scherer, 468 U.S. 183 (1984), the Court rejected an
argument almost identical to the one put to us here.
Officials being sued for alleged constitutional violations
were accused of having ignored the commands of state
administrative regulations, and hence of violating a
ministerial rather than a discretionary duty. Id. at 193,
196 & n.14. Because of this, it was argued that they had
forfeited any claim to qualified immunity. In rejecting this
contention, the Court made two points: first, the officials
could lose their immunity only if the breach of the state
regulation rather than of a constitutional duty gave rise to
plaintiff's damages claim; and, second, the officials' duties
were not merely ministerial, as the officials retained a
considerable measure of personal discretion in applying the
administrative regulations. Id. at 196 & n.14.
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The same factors bar appellant's claim here. The
damages claim in Count I is based on a purported Fourth
Amendment violation, not upon the breach of the Freetown high
speed pursuit guidelines. And the pursuit guidelines
required Sullivan to exercise discretion in their
interpretation.11
Generally, police exercise "inescapably
discretionary functions replete with close judgment calls."
Gooden v. Howard County, 954 F.2d 960, 964 (4th Cir. 1992)
(en banc). The promulgation by a police department of
general guidelines and standard procedures does not transform
police officers' discretionary actions into ministerial ones.
"A law that fails to specify the precise action that the
official must take in each instance creates only
discretionary authority . . . ." Davis v. Scherer, 468 U.S.
at 197 n.14. The Freetown guidelines, an eight-page
collection of rules and suggestions labeled "High Speed
11. Confusingly, appellant also argues at some points in her
brief that Freetown did not have guidelines in place, citing
three documents from Freetown public records which suggest
that a new set of high speed pursuit guidelines were adopted
in late 1988, after the collision. These documents, however,
are not inconsistent with the uncontradicted statements by
appellees Sullivan and Mello that written guidelines were in
effect on August 5, 1988.
It would weaken and not help appellant's position
were it to be found that no guidelines existed governing
Sullivan's actions. With no rules or regulations to guide
his decision making, Sullivan's decision to aid in the
pursuit and block off the lane would necessarily have been
discretionary.
-23-
Pursuit General Considerations and Guidelines," left
Sullivan with a substantial amount of discretion as to when
and how to conduct and terminate high speed pursuits.
We conclude that insofar as the concept of
discretionary function is relevant at all in the immunity
sphere, Sullivan was engaged in a discretionary function.
The more serious question under Harlow is whether
Sullivan violated a clearly established statutory or
constitutional right of which a reasonable police officer
would have known. The theory of appellant's 1983 claim is
that Sullivan violated her rights under the Fourth Amendment
to be free from unreasonable seizures by placing his police
car in the traffic lane in which he knew appellant and
Demoranville were traveling at high speed. Appellant argues
that a reasonable police officer would have known that, under
clearly established law, this sort of a partial roadblock was
unlawful.
Appellant has the burden of demonstrating that the
law on this issue was clearly established on August 5, 1988.
Davis, 468 U.S. at 197. For a right to be clearly
established, "[t]he contours of the right must be
sufficiently clear that a reasonable official would
understand that what he is doing violates that right."
Anderson v. Creighton, 483 U.S. 635, 640 (1987). While
appellant need not show that "the very action in question has
-24-
previously been held unlawful," she must show that, in the
light of preexisting law, the unlawfulness of the action
would have been apparent to the reasonable police officer.
Id.The Supreme Court required "any assessment as to
whether police conduct amounts to a seizure implicating the
Fourth Amendment . . . [to] take into account '"all of the
circumstances surrounding the incident"' in each individual
case." Michigan v. Chesternut, 486 U.S. 567, 572 (1988)
(citations omitted). There must be a balancing of "the
nature and quality of the intrusion on the individual's
Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion."
Tennessee v. Garner, 471 U.S. 1, 8 (1985) (citations
omitted). "[W]henever a balancing of interests is required,
the facts of the existing caselaw must closely correspond to
the contested action before the defendant official is subject
to liability under Harlow." Benson v. Allphin, 786 F.2d 268,
276 (7th Cir.), cert. denied, 479 U.S. 848 (1986); see Medina
v. City of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992);
Frazier v. Bailey, 957 F.2d 920, 931 (1st Cir. 1992).
Consequently, appellant here must demonstrate that, by the
time in question, there were fairly analogous precedents
establishing that Sullivan's conduct violated a plaintiff's
Fourth Amendment right to be free from unreasonable seizures.
-25-
The hodgepodge of cases cited by appellant12 show
the opposite: it was not at all clear at the time that
Sullivan's actions violated a person's Fourth Amendment
rights. As discussed below, Brower v. County of Inyo, 489
U.S. 593 (1989), holding that a total roadblock (i.e.,
tractor trailer placed broadside across entire road) was a
seizure, was not decided until seven months after the present
events had occurred. The strongest case decided prior to
this incident in appellant's favor was Jamieson v. Shaw, 772
F.2d 1205 (5th Cir. 1985), in which the plaintiff was
seriously injured when the car in which she was a passenger
struck a "deadman's" roadblock placed across a highway by
defendant police officers. Id. at 1206. "The roadblock
consisted of an unlighted police car parked laterally in the
12. We have considered all of the cases cited by appellant
and discuss only the ones which best support her argument
that Sullivan violated clearly established Fourth Amendment
rights.
Appellant cites one decision from Texas which found the
use of an unlit, total roadblock to stop speeding motorcycles
to be an unconstitutional excessive use of force. See City
of Amarillo v. Langley, 651 S.W.2d 906, 913-14 (Tex. Ct. App.
7th Dist. 1983). The Langley court did not discuss the
Fourth Amendment. As far as we can tell, appellant has not
alleged that Sullivan violated her substantive due process
rights to be free from excessive force. Even if she had, the
Supreme Court made clear in Graham v. Connor, 490 U.S. 386(1989), that where "the excessive force claim arises in the
context of an arrest or investigatory stop of a free citizen,
it is most properly characterized as one invoking the
protections of the Fourth Amendment . . . ." Id. at 394; see
Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir.
1990).
-26-
middle of the highway just over the crest of a hill. Just as
[the pursued] car, still traveling at a high rate of speed,
reached the top of the hill, [a police officer] flashed a
bright spotlight in [the driver's] eyes, blinding him
momentarily and causing him to lose control of the car and
crash into the roadblock." Id. at 1207. The Jamieson court
held that plaintiff's complaint stated a claim cognizable
under the Fourth Amendment, but did not resolve whether,
under the circumstances, the police officers' actions
actually constituted an unreasonable seizure. Id. at 1211;
see also Stanulonis v. Marzec, 649 F. Supp. 1536, 1545 (D.
Conn. 1986) (holding that creating "an immediate risk of a
collision" by placing police car in path of speeding vehicle
could constitute use of excessive force).
In direct contrast to Jamieson, the Ninth Circuit
decided in 1987 that such a total roadblock was not a Fourth
Amendment violation. See Brower v. County of Inyo, 817 F.2d
540 (9th Cir. 1987), rev'd, 489 U.S. 593 (1989). After
pursuing a suspect at high speeds for twenty miles, the
defendant police officers decided to create a roadblock to
stop him. Id., 817 F.2d at 542. A tractor-trailer truck was
placed across the highway to block both lanes of the two-lane
highway. Id. Plaintiffs alleged that the police concealed
the roadblock by placing it behind a curve and leaving it
unilluminated. Brower, 489 U.S. at 594. The police then
-27-
positioned a police car in front of the tractor trailer with
its headlights purposely aimed to blind the suspect as he
approached the unlit roadblock. Id.The Ninth Circuit held that use of this roadblock
did not implicate the Fourth Amendment.
Although Brower was stopped in the
literal sense by his impact with the
roadblock, he was not 'seized' by the
police in the constitutional sense.
Prior to his failure to stop voluntarily,
his freedom of movement was never
arrested or restrained. He had a number
of opportunities to stop his automobile
prior to the impact.
An analogous situation arose in
Galas [v. McKee, 801 F.2d 200 (6th Cir.
1986)] where a police officer engaged in
a high-speed chase of a fleeing traffic
offender. The chase ended when the
fleeing driver lost control and crashed.
The question arose whether the crash was
a "seizure" under the fourth amendment.
The court concluded that there had been
no seizure by the police because the
officers had failed to impose restraint
on the individual's freedom to stop or
drive away. . . .
We agree with the Galas decision.
In this case, as the twenty-mile chase
makes plain, Brower consciously chose to
avoid official restraint. That decision,
an exercise of autonomy, cannot fairly be
viewed as a "seizure" by the police,
under the fourth amendment. Brower's
seizure, if any, was the result of his
own effort in avoiding numerous
opportunities to stop.
Brower, 817 F.2d at 546; see also Reed v. County of Allegan,
688 F. Supp. 1239, 1243 (W.D. Mich. 1988) (applying the Ninth
-28-
Circuit's Brower decision to hold that use of a roadblock did
not constitute a seizure).
The Supreme Court subsequently reversed the Ninth
Circuit's decision in Brower, holding that a "seizure" within
the meaning of the Fourth Amendment had occurred, and
remanded the case for a finding as to whether the seizure was
"unreasonable." Brower v. County of Inyo, 489 U.S. at 599-
600. However, as we have stated, the Supreme Court's
decision in Brower was issued in March of 1989, seven months
after the Mason Road incident.13
Where at the time of the present occurrence there
were conflicting circuit decisions as to whether or not even
the more deadly full roadblocks were unconstitutional,
Sullivan's parking of his illuminated cruiser in one lane of
a straightaway cannot be said to have violated clearly
established rights.
Appellant argues that it had been clearly
established in Tennessee v. Garner, 471 U.S. 1 (1985), that
the use of deadly force to seize an unarmed, nondangerous
suspect violates the Fourth Amendment, id. at 11. According
to appellant, a reasonable police officer would have
analogized the use of the present roadblock to the
13. Appellant suggests that a reasonable police officer
would have realized that the Ninth Circuit's decision in
Brower was incorrect because the Supreme Court had already
granted certiorari on August 5, 1988. Clairvoyance is not a
prerequisite for qualified immunity.
-29-
intentional shooting of a fleeing suspect. However,
Tennessee v. Garner applied only to "seizures" and it was not
yet clear that a stopping by a roadblock might, in
appropriate circumstances, be a seizure. Id. at 7; Brower,
817 F.2d at 546; Fernandez v. Leonard, 784 F.2d 1209, 1217
(1st Cir. 1986). Four years elapsed before the Supreme Court
held in Brower that a roadblock could be a "seizure." During
this period the Ninth Circuit rejected the argument that a
roadblock fell into the "seizure" category. See Brower, 817
F.2d at 546-47 (distinguishing Tennessee v. Garner on the
grounds that use of a roadblock is not a seizure). Nor was
it clear to all federal courts that a successful roadblock or
high speed pursuit ending in a crash constituted the "use of
deadly force." Compare Reed v. County of Allegan, 688 F.
Supp. at 1243 (holding that a roadblock does not constitute
use of deadly force) with Moyer v. Dunn County, 691 F. Supp.
164, 170-71 (W.D. Wis. 1988) (suggesting that high speed
pursuit of suspect resulting in collision with police car or
off-road crash could constitute use of deadly force).
As it stood at the time this tragic accident
occurred, the law was not so clear that a reasonable police
officer would know that establishing an illuminated, partial
roadblock at the end of a straightaway violated Fourth
Amendment rights. Because Sullivan did not violate a clearly
established right of appellant's, the district court
-30-
correctly found that he was entitled to qualified immunity
from a claim under 42 U.S.C. 1983.
In holding that Sullivan is entitled to qualified
immunity, we do not mean to imply that on the present
showing, there would otherwise necessarily be a triable issue
concerning whether or not this partial roadblock amounted to
a seizure under the Fourth Amendment. We need not reach that
question. It may be that the illuminated blocking of a
single lane at a point some distance from where the block
could be seen by the pursued vehicle would not amount to a
seizure. On the other hand, the converse can be argued. See
Brower, 489 U.S. at 598-99. We leave that issue for another
day. What is abundantly clear is that, on the law existing
at the time of the events in question, a reasonable police
officer would not have known that the partial block in
question violated the Fourth Amendment.
-31-
IV.
IV.
In Count IV, appellant alleged that the Town of
Lakeville and Town of Freetown are liable under the
Massachusetts Tort Claims Act, Mass. Gen. L. ch. 258, 1 et
seq., for the allegedly negligent actions of Officers Meninno
and Sullivan, respectively.14 A public employer's
liability for the negligence of its employees is created by
section 2 of Chapter 258, which provides in relevant part:
Public employers shall be liable for
injury or loss of property or personal
injury or death caused by the negligent
or wrongful act or omission of any public
employee while acting within the scope of
his office or employment, in the same
manner and to the same extent as a
private individual under like
circumstances, . . . .
Mass. Gen. L. ch. 258, 2. The liability of a public
employer under section 2 is subject to several exceptions,
including the "discretionary function" exception found in
Mass. Gen. L. ch. 258, 10(b):
The provisions of sections one to eight,
inclusive, shall not apply to:
(a) . . .
(b) any claim based upon the
exercise or performance or the failure to
exercise or perform a discretionary
14. Appellant also alleged that Freetown was liable for the
negligence of the third police officer, Sadeck. However, as
explained in Part III.A., there is nothing in the record to
support a finding that Sadeck was in any way involved in the
pursuit and collision which injured appellant. His actions
are not actionable under Mass. Gen. L. ch. 258, 2.
-32-
function or duty on the part of a public
employer or public employee, acting
within the scope of his office or
employment, whether or not the discretion
involved is abused;
. . . .
Mass. Gen. L. ch. 258, 10.
We agree with appellant that the district court
erred in reasoning that because the police officers' actions
were "discretionary" for the purposes of qualified immunity
under federal law, they were also performing "discretionary
functions" for the purposes of the 10(b) exception. As we
have already explained, supra, it would be the rare case
indeed where an officer is denied qualified immunity because
the officer is found to have engaged in "ministerial" rather
than "discretionary" conduct. The discretionary function
exception in both the Massachusetts and the Federal Torts
Claims acts is altogether different from whatever narrow
exception may still exist under immunity law for
nondiscretionary ("ministerial") conduct. "Because of the
limitation of the [ 10(b)] exemption to conduct that is
policymaking or planning, the words 'discretionary function'
are somewhat misleading as a name of the concept." Harry
Stoller & Co. v. City of Lowell, 412 Mass. 139, 587 N.E.2d
780, 783 (1992) (hereinafter Stoller). The proper approach
is to apply Massachusetts law on the discretionary function
exception to appellant's Massachusetts Tort Claims Act claims
against Lakeville and Freetown.
-33-
After extensive consideration of Massachusetts case
law on the discretionary function exception, we are unable to
determine whether the exception applies to the actions of
Officer Meninno. Because answering that question implicates
important policy questions under Massachusetts state law, we
certify the question to the Supreme Judicial Court of
Massachusetts. As for the liability of Freetown for the
actions of Officer Sullivan, we find in Section B infra that
the district court prematurely granted summary judgment for
Freetown because there is a genuine issue of material fact
regarding Sullivan's discretion to engage in the allegedly
tortious conduct.
A. Liability of Lakeville for Meninno's Conduct
A. Liability of Lakeville for Meninno's Conduct
1. Discretionary Function Exception Doctrine
1. Discretionary Function Exception Doctrine
Appellee Lakeville argues that it is immune from liability
under the Massachusetts Tort Claims Act because Meninno's
conduct falls within the discretionary function exception of
section 10(b), Mass. Gen. L. ch. 258, 10(b). The
discretionary function exception was first introduced in
Massachusetts in Whitney v. Worcester, 373 Mass. 208, 366
N.E.2d 1210 (1977), which preceded enactment of section
10(b). The Whitney court distinguished immune from nonimmune
conduct by drawing a dividing line "between those functions
which rest on the exercise of judgment and discretion and
represent planning and policymaking and those functions which
-34-
involve the implementation and execution of such governmental
policy or planning." Id., 366 N.E.2d at 1216. Massachusetts
courts still rely on the analysis in Whitney as containing
"guiding principles for determining the scope of the
discretionary function exception." Stoller, 587 N.E.2d at
783. Massachusetts courts also look for guidance to federal
court decisions interpreting the discretionary function
exception of the Federal Torts Claims Act ("FTCA"), 28 U.S.C.
2680(a). Id. After the Massachusetts legislature adopted
section 10(b), the test for whether particular conduct is
within the exception evolved over the years as the courts
confronted the application of the exception to various fact
scenarios. Like the federal discretionary function
exception, see id., the Massachusetts doctrine has not always
developed along a straight and clear line. Compare Cady v.
Plymouth-Carver Regional Sch. Dist., 17 Mass. App. Ct. 211,
457 N.E.2d 294 (1983) (holding that a function is
discretionary if there is no "fixed or readily ascertainable
standards to fall back upon") and Kelley v. Rossi, 395 Mass.
659, 481 N.E.2d 1340, 1344 n.6 (1985) (using the "fixed or
readily ascertainable standard" test of Cady) and A.L. v.
Commonwealth, 402 Mass. 234, 521 N.E.2d 1017, 1024 (1988)
(same) with Stoller, 587 N.E.2d at 784 n.2 (criticizing Cady
test and asserting that the S.J.C. had never adopted it).
-35-
For years, courts relied upon a distinction between
activities that occur at the "planning" and "operational"
levels of government to decide whether certain conduct is
immune from liability. See Patrazza v. Commonwealth, 398
Mass. 464, 497 N.E.2d 271, 274 (1986). The Supreme Court
questioned this distinction in United States v. S.A. Empresa
de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797(1984), and recently in United States v. Gaubert, 111 S. Ct.
1267 (1992), the Court expressly rejected the planning-
operational distinction.
A discretionary act is one that involves
choice or judgment; there is nothing in
that description that refers exclusively
to policymaking or planning functions.
Day-to-day management of banking affairs,
like the management of other businesses,
regularly require judgment as to which of
a range of permissible courses is the
wisest. Discretionary conduct is not
confined to the policy or planning level.
"[I]t is the nature of the conduct,
rather than the status of the actor, that
governs whether the discretionary
function exception applies in a given
case." Varig Airlines, [] at 813, 104 S.
Ct., at 2764.
Gaubert at 1267. Whether an official's duties primarily
involve operations and administration as opposed to planning
is irrelevant because "it is the nature of the conduct,
rather than the status of the actor, that governs whether the
discretionary function exception applies in a given case."
Varig Airlines, 467 U.S. at 813; see Attallah v. United
States, 955 F.2d 776, 783 (1st Cir. 1992). The Court instead
-36-
articulated a two-part test, developed in Varig Airlines and
Berkovitz v. United States, 486 U.S. 531 (1988). The FTCA
discretionary function exception applies if, (1) the act
involved an element of judgment or choice, and, (2) the
action or decision was based on considerations of public
policy. Gaubert at 1273-74.
The Massachusetts Supreme Judicial Court cited
Gaubert with approval in Stoller, its most recent decision
construing section 10(b), and apparently adopted much of its
reasoning. The S.J.C. rejected the planning-operational
distinction, writing that, "[e]ven decisions made at the
operational level, as opposed to those made at the policy or
planning level, would involve conduct immunized by the
discretionary function exception if the conduct were the
result of policy determinations." Stoller, 587 N.E.2d at 784
(citing Gaubert). Stoller held that the proper test is: (1)
whether the governmental actor had discretion as to what
course of conduct to follow, and (2) whether the
discretionary conduct involves policymaking or planning. Id.
at 782-83. If both elements are present, then the
discretionary function exception applies.
2. Application of Stoller Test to Meninno's Conduct
2. Application of Stoller Test to Meninno's Conduct
To apply the two-part test here, we first must define what
conduct or course of action taken by Officer Meninno
appellant claims was negligent. She does not allege that her
-37-
injury came about because Meninno operated his vehicle in a
negligent manner while pursuing the motorcycle. Compare
Gaubert, 111 S. Ct. at 1275 n.7 ("If one of the officials
involved in this [bank regulation] case drove an automobile
on a mission connected with his official duties and
negligently collided with another car, the exception would
not apply."). Instead, she apparently claims that Meninno's
decision to keep pursuing the motorcycle for 3.2 miles after
it failed to stop was negligent.15 She proposes to show at
trial that a reasonable police officer would not have
persisted in such a pursuit under the circumstances.
The first element of the discretionary function
test set out in Stoller is whether Meninno "had any
discretion at all as to what course of conduct to follow."
Stoller, 587 N.E.2d at 782. A governmental actor has no
discretion if "a course of action was prescribed by a
statute, regulation, or established agency practice." Id.Appellant concedes in her brief that, under the Lakeville
"High Speed Pursuit General Considerations and Guidelines,"
Meninno had discretion to make the final decision to pursue
at high speed, but argues that the guidelines completely
regulate the manner in which an officer conducts a pursuit,
15. As discussed in Part III.B. supra, appellant also
alleged that Meninno "herded" the motorcycle into Sullivan's
parked vehicle. Nothing in the record supports this
allegation.
-38-
leaving Meninno no discretion to make policy judgments and
mandating his every move.
We find this argument unpersuasive. Whether
Meninno properly weighed the guideline factors in deciding to
pursue is perhaps open to debate,16 but if as appellant
16. The first pages of the guidelines explain the general
policy of Lakeville regarding high speed pursuits:
As a general statement, high speed
pursuit is not recommended or favored.
This is because the potential danger to
the officer and the general public
outweighs the potential advantage of
apprehending a fleeing vehicle by such
means. Stated simply, pursuit is clearly
inappropriate when the pursuit itself
endangers life more than the escape of
the person pursued. Delay, while
distasteful, may be the wiser choice when
the person is known and he or she poses
no immediate threat to the community.
Under certain circumstances,
however, continuous high speed pursuit
may be authorized. When such pursuit is
undertaken, the purpose should be to
apprehend quickly and safely. . . .
When the pursuit would be
authorized, each officer must use his
discretion in determining whether or not
to commence a chase. Many factors should
have a bearing on his choice, but some of
the major ones may be listed:
1. road conditions;
2. traffic conditions;
3. time of day;
4. type of vehicle involved;
5. nature of the offense.
Once made, the decision to pursue is
not irrevocable, and it is the
intelligent officer who knows when to
-39-
has conceded the call was within his authority to make,
the existence of rules governing the manner of the chase did
not remove his discretion. These rules forbade certain
conduct, such as pursuing while nonpolice personnel are in
the police cruiser; and they mandate other conduct, like
wearing a seat belt. The crucial decisions, however
including whether and when to begin a pursuit, what speed to
maintain during it, how close to tail the pursued vehicle,
and how and when to terminate the pursuit are left to the
officer's discretion.17 For example, the only guideline
that speaks to the question of when to stop pursuing a
vehicle states: "[T]he officer in pursuit shall voluntarily
abandon pursuit when he determines that conditions of the
discontinue the chase. Briefly, and as a
general rule of thumb, it is often better
to abandon the pursuit where the risk of
danger to himself or to the public is
high or weather or road conditions are
poor. The experience and common sense of
each officer should also guide him in his
decision.
17. Horta also points to the following guideline provision:
"[A] continuing high speed pursuit . . . is authorized, but
only when the pursuing officer . . . has reasonable grounds
to arrest the person pursued for a serious felony . . . or
when the vehicle being pursued is being operated in such a
manner as to endanger the public."
Horta argues that there was no evidence of a prior
felony. However, Meninno was entitled to determine that the
motorcycle was endangering public safety. In his deposition,
Meninno testified that the motorcycle veered into the
oncoming lane at times and, at one point, drove close to a
group of pedestrians on the roadside, causing them to jump
back. In his opinion, the motorcycle driver was intoxicated.
-40-
road, weather, traffic or other factors necessitates [sic]
abandonment." This, like the other guidelines, is not a
strict rule prescribing certain conduct. Assuming Meninno
had discretion to determine whether or not to pursue, we can
find nothing in the regulations that removed that discretion
on the facts of this case. Accordingly, Meninno had the
requisite discretion prescribed in Stoller.
"The second and far more difficult step is to
determine whether the discretion that the actor had is the
kind of discretion for which section 10(b) provides immunity
from liability." Stoller, 587 N.E.2d at 782. The
discretionary function exception, under both the
Massachusetts Tort Claims Act and the Federal Tort Claims
Act, provides immunity only for discretionary "conduct that
involves policymaking or planning." Id. at 783. The
question is not whether the employee worked at a "planning"
or "operational" level, but whether the type of decision or
action at issue, by whatever level employee, is one based on
considerations of governmental policy. Id. at 784; see also
Gaubert, 111 S. Ct. at 1275-76; Varig Airlines, 467 U.S. at
813. Not only broad, abstract decisions of policy are
immune. Discretionary functions include specific, individual
applications of policy, "those [decisions] in which a
government official determines what action to take based on
an individual, case-by-case analysis and in which his
-41-
decision includes elements of judgment and discretion." Pina
v. Commonwealth, 400 Mass. 408, 510 N.E.2d 253, 257 (1987)
(quoting Bartel v. Federal Aviation Admin., 617 F. Supp. 190,
196 n.29 (D.D.C. 1985)); Patrazza, 497 N.E.2d at 274.
This is obviously not a bright-line rule, and a
court must assess cases on their facts, keeping in mind the
purposes of the discretionary function exception. Stoller,
587 N.E.2d at 783. Only discretionary acts and decisions
based on considerations of public policy are exempted because
"the purpose of the exception is to 'prevent judicial
"second-guessing" of legislative and administrative decisions
grounded in social, economic, and political policy through
the medium of an action in tort.'" Gaubert, 111 S. Ct. at
1273 (quoting Varig Airlines, 467 U.S. at 814). Thus, "[i]f
the injury-producing conduct was an integral part of
government policymaking or planning, if the imposition of
liability might jeopardize the quality of the governmental
process, or if the case could not be decided without usurping
the power and responsibility of either the legislative or
executive branch of government, governmental immunity would
probably attach." Stoller, 587 N.E.2d at 783 (citing
Whitney, 366 N.E.2d at 1217). If none of these factors are
present, the general rule is one of no governmental immunity.
Whitney, 366 N.E.2d at 1217.
-42-
Applying the above principles to the facts of this
case, without regard for the particular result of the Stoller
case, see infra, it can be forcefully contended that
Meninno's decisions were of the type based on policy
considerations. Clearly, the Commonwealth has a policy for
enforcement of the laws by constables and police officers.
The Lakeville police department and its officers are charged
by the Legislature with the duty to enforce the laws, see 41
M.G.L.A. 98, within the limits imposed by the federal and
state constitutions and the legislature. Police chiefs are
authorized to promulgate regulations for their officers in
furtherance of these duties. See 41 M.G.L.A. 97A.
Lakeville adopted guidelines that allow Lakeville police
officers to conduct and participate in high speed pursuits
when, in their judgment, the benefit of apprehension
outweighs the risk to public safety. See also 41 M.G.L.A.
98A (authorizing police to arrest suspects "on fresh and
continued pursuit" in other jurisdictions). Acting within
discretion conferred by the guidelines, Meninno decided that
the best way to fulfill his duty to enforce the law here was
to pursue a violator who had refused to obey his signal to
pull over. Surely, such a decision was based on policy
considerations. Compare Irwin v. Town of Ware, 392 Mass.
745, 467 N.E.2d 1292, 1299 (1984) (holding that police
officer was not performing discretionary function in
-43-
releasing known drunk driver because he acted contrary to
established policy); Gaubert, 111 S. Ct. at 1275 n.7 (in
hypothetical, negligent driving by bank regulator has no
connection to regulatory policy of banking agency).
Appellant clearly could not argue that the
Lakeville police department's adoption of the pursuit
guidelines was itself a negligent act for which it is liable.
See Patrazza, 497 N.E.2d at 274 & n.3. That legitimately
adopted policy required Meninno to exercise his own judgment,
under the particular circumstances of each incident, as to
how best to fulfill the policy's dual goals of apprehending
lawbreakers and protecting public safety. "When established
governmental policy, as expressed or implied by statute,
regulation, or agency guidelines, allows a Government agent
to exercise discretion, it must be presumed that the agent's
acts are grounded in policy when exercising that discretion."
Gaubert, 111 S. Ct. at 1274 (emphasis added). Thus, under
the Gaubert analysis, it would be presumed that Meninno's
actions were grounded in policy.
This presumption prevails unless the plaintiff
points to facts in the record "which would support a finding
that the challenged actions are not the kind of conduct that
can be said to be grounded in the policy of the regulatory
regime." Id. at 1275. Plaintiff has pointed to nothing that
would support a finding that the allegedly negligent
-44-
decisions of Meninno are not the kind of conduct that can be
said to be grounded in policy. For example, she does not
allege that Meninno accidentally lost control of his vehicle
and hit the motorcycle, or that he acted for some ulterior
purpose. Therefore, if the rules laid out in Gaubert apply
in Massachusetts, it would seem that Meninno's conduct was
within the section 10(b) exception.
3. Purposes of Discretionary Function Exception As
3. Purposes of Discretionary Function Exception
mentioned above, Massachusetts law also requires a court to
consider whether the purposes of the discretionary function
exception are fulfilled by including the alleged conduct
within the scope of the section 10(b) exception. Making that
judgment here is difficult.
In favor of Lakeville, one could argue that "the
imposition of liability might jeopardize the quality of the
governmental process." Stoller, 587 N.E.2d at 783. If
suspects and their accomplices can sue towns for the
strategic decisions of police officers during attempts to
apprehend them, then towns especially those with financial
difficulties already will have a strong incentive to avoid
pursuing suspected and known lawbreakers. If the otherwise
legitimate enforcement of laws is chilled by fear of
liability, all types of criminals, not only traffic
violators, would be able to more easily avoid apprehension
and prosecution. Police departments would be hampered in
-45-
their ability to control crime and fulfill their statutory
duty to enforce the laws of the Commonwealth.
In addition, one could argue, "the case could not
be decided without usurping the power and responsibility of
[] the . . . executive branch of government." By permitting
judges and juries to pass on the strategies used by the
police (assuming they do not violate constitutional norms),
the power of police departments to fulfill their statutory
duty to enforce the law could be usurped. The state
legislature could have, but did not, impose limits on the
police power to pursue suspects. See 41 M.G.L.A. 98A
(authorizing police to arrest suspects "on fresh and
continued pursuit" in other jurisdictions without restriction
on the means of pursuit); compare Irwin, 467 N.E.2d at 1299,
1302 (finding that legislature imposed duty on police to take
all suspected drunk drivers into custody).
"Other relevant considerations are the reasonable
expectations of the injured person with respect to his
relationship to the governmental entity in question, the
nature of the duty running from the government to the
governed in the particular case, and the nature of the
injury." Whitney, 366 N.E.2d at 1217. It would be difficult
for Horta to argue that she, as a passenger on a vehicle
attempting to evade police pursuit, reasonably expected the
-46-
police to avoid all potentially risky attempts to capture her
and her companion.
On the other hand, appellant could argue with some
persuasiveness that the injury-producing conduct was not "an
integral part of governmental policymaking or planning."
This consideration may refer to general, legislative-type
decisions as opposed to administrative or operational tasks.
See Dobos v. Driscoll, 404 Mass. 634, 537 N.E.2d 558, 568,
cert. denied, 493 U.S. 850 (1989); Pina, 510 N.E.2d at 256.
Moreover, appellant has no adequate alternative remedy for
her injuries, Whitney, 366 N.E.2d at 1217, except perhaps to
sue the estate of the motorcycle operator.
Hence, it is unclear whether the purposes of the
discretionary function exception are advanced by immunizing
Lakeville here. Nonetheless, not all the Whitney
considerations must point to immunity for the exception to
apply. See, e.g., Pina, 510 N.E.2d at 256.
4. Comparison of Analogous Massachusetts and
4. Comparison of Analogous Massachusetts and
Federal Cases There is no Massachusetts case precisely on
Federal Cases
point, and the few cases cited by appellant provide little
guidance. In Irwin v. Town of Ware, the court held that "the
decision of a police officer [not] to remove from the
roadways a driver who he knows or has reason to know is
intoxicated" is not a discretionary act within the meaning of
section 10(b). Id., 467 N.E.2d at 1298. Unlike here,
-47-
however, the court in Irwin expressly found that the police
officer, once he knew or had reason to know that the driver
he stopped was intoxicated, had no policy-based discretion to
permit the driver to go back on the road. Id. at 1299. The
Irwin court interpreted several state statutes as obligating
police officers to remove known intoxicated drivers from the
roads, determining that the officer's decision not to remove
a drunk driver could not have been based on policy
considerations because "the policy and planning decision to
remove such drivers has already been made by the
Legislature." Id. As discussed above, Meninno was not
obligated by statute or regulation to take or refrain from
taking the actions at issue. Instead, he was authorized by
written policies to use his own judgment as to how and when
to enforce the law by means of a high speed pursuit. In
Stuart v. Town of Brookline, 412 Mass. 251, 587 N.E.2d 1384(1992), the court upheld a finding of liability against a
town for injuries caused by the negligent operation of a
police cruiser, but section 10(b) immunity was not even an
issue in that case.
Appellant's citation of Kelley v. Rossi, is equally
unavailing. There the court wrote, in two sentences in a
footnote, that a doctor employed by a city hospital and
accused of medical malpractice is not engaged in a
discretionary function when treating a patient. Id., 481
-48-
N.E.2d at 1344 n.6. "The doctor was governed by the standard
of accepted medical practice, an ascertainable guide to
proper conduct." Id. (citing Cady v. Plymouth-Carver
Regional Sch. Dist.). There is no evidence in the record
that Meninno's actions were governed by such a fixed standard
for police conduct. Moreover, the Massachusetts Supreme
Judicial Court recently criticized the reasoning in the case
relied upon by the Kelley court:
In Cady v. Plymouth-Carver Regional
School Dist., 17 Mass. App. Ct. 211, 457
N.E.2d 294 (1983), the Appeals Court
announced a principle that it thought
distinguished between functions that are
discretionary and those that are not. If
the employee has no "fixed or readily
ascertainable standards to fall back
upon," the employee's conduct is
discretionary. Id. at 215, 457 N.E.2d
294. . . . The United States Supreme
Court has not adopted the rule. Nor have
we. The existence of fixed or readily
ascertainable standards could be relevant
in deciding whether a governmental actor
owed a duty to another that he
negligently failed to fulfill, but it
tells us nothing about whether particular
discretionary conduct has a policy or
planning foundation.
Stoller, 587 N.E.2d at 784 n.2. The many other decisions
applying section 10(b) depend heavily on the facts and
provide no general principles beyond those articulated in
Stoller. See Stoller, 587 N.E.2d at 784 (summarizing cases).
As instructed by Stoller, we also look for guidance
to federal court decisions. A finding of immunity in this
case would be consistent with many cases holding that
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decisions of law enforcement officers, although seemingly
"operational" and made in the heat of the moment, fall within
the FTCA discretionary function exception. Generally,
although law enforcement agents have a mandatory duty to
enforce the law, decisions as to how best to fulfill that
duty are protected by the discretionary function exception to
the FTCA. Abernathy v. United States, 773 F.2d 184, 188 (8th
Cir. 1985); Redmond v. United States, 518 F.2d 811, 816-17
(7th Cir. 1975); United States v. Faneca, 332 F.2d 872, 874-
75 (5th Cir. 1964), cert. denied, 380 U.S. 971 (1965). For
example, we held that a decision by United States Customs
agents not to stop and search a particular passenger falls
within the discretionary function exception of the FTCA
because the applicable statute and regulations authorize, but
do not obligate, the agents to search passengers. Attallah,
955 F.2d at 784. Like the situation here, "there is room for
choice on the part of the Customs agents when carrying out
their duties," and "[t]he decision an agent makes is of great
importance in fulfilling the mandate of the Customs Service
to protect the integrity of our national borders." Id.;
see also Prelvitz v. Milsop, 831 F.2d 806, 810 (8th Cir.
1987) (finding FTCA discretionary function exception
applicable to customs inspector's decisions to detain four
intoxicated men in an automobile at a border crossing and to
"appoint" a different driver). In Buchanan v. United States,
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915 F.2d 969 (5th Cir. 1990), the court held that a prison
warden's and staff members' "minute-to-minute decision making
in the chaotic circumstances of a riot" met the requirements
of the discretionary function exception. Id. at 972; see
also Faneca, 332 F.2d at 874-75 (holding that decisions and
tactics used by federal law enforcement officials in
enforcing desegregation orders and handling resulting riots
were within the FTCA discretionary function exception); Smith
v. United States, 330 F. Supp. 867, 868-70 (E.D. Mich. 1971)
(holding that FTCA discretionary function exception applied
to law enforcement officials' plans and decisions as to
handling of Detroit riots); Nichols v. United States, 236 F.
Supp. 260, 262-63 (N.D. Miss. 1964) (holding that FTCA
discretionary function exception applied to methods used by
federal law enforcement officials in enforcing desegregation
orders and quelling riots). FBI agents' decisions to arrest
bank robbers and to employ certain tactics to arrest them
were also found to be protected by the discretionary function
exception from a suit by one bank robber for injuries
sustained during the arrest. Amato v. United States, 549 F.
Supp. 863, 866-67 (D.N.J. 1982), aff'd, 729 F.2d 1445 (3d
Cir. 1984). But see Hetzel v. United States, No. 91-2986,
1993 U.S. Dist. LEXIS 7506, at *12-*13 (D.D.C. 1993) (finding
that government agents' high-speed pursuit on crowded city
streets of suspected drug trafficker, whose identity and
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address were known, violated approved procedures and so was
not within the FTCA discretionary function exception); Patel
v. United States, 806 F. Supp. 873, 878 (N.D.Cal. 1992)
(holding that decisions by DEA agents to investigate, obtain
search warrant and raid suspected drug hideout were
discretionary functions, but decision to destroy house and
kill occupants with firebombs was not made pursuant to DEA
policy and thus not immune).
5. Holding in Stoller So far, it would appear that
5. Holding in Stoller
the principles of the section 10(b) exception doctrine as
articulated in Stoller and, by analogy, Gaubert point
toward tort immunity under the discretionary function
exception. We have yet, however, to consider the actual
holding in Stoller. Doing so, we are unable to reconcile a
finding of immunity here with that holding.
In Stoller, the owner of buildings destroyed by
fire sought damages pursuant to the Massachusetts Tort Claims
Act from the city of Lowell, whose firefighters
unsuccessfully fought the blaze. He alleged negligence on
the firefighters' part in failing to use the sprinkler
systems in one of the buildings. The city conceded that it
had a duty to the building owner and that the firefighters
could have been found negligent in failing to follow the
standard firefighting technique of use of available sprinkler
systems. The city, nonetheless, argued that it was immune
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under section 10(b) because the firefighters' conduct
involved a discretionary function. Id., 587 N.E.2d at 782.
The trial judge agreed that the city was immune,
but the Supreme Judicial Court reversed. Applying the two-
part test discussed supra, the court found that, (1) the
firefighters had "discretion in the sense that no statute,
regulation, or established municipal practice required the
firefighters to use the sprinklers (or, for that matter, to
use hoses exclusively)," but that, (2) "whatever discretion
they had was not based on a policy or planning judgment."
Id. at 785.
There are aspects of firefighting
that can have an obvious planning or
policy basis. The number and location of
fire stations, the amount of equipment to
purchase, the size of the fire
department, the number and location of
hydrants, and the quantity of the water
supply involve policy considerations,
especially the allocation of financial
resources. In certain situations,
firefighting involves determinations of
what property to attempt to save because
the resources available to combat a
conflagration are or seem to be
insufficient to save all threatened
property. In such cases, policy
determinations might be involved, and
application of the discretionary function
exception would be required.
The case before us is different.
The negligent conduct that caused the
fire to engulf all the plaintiff's
buildings was not founded on planning or
policy considerations. The question
whether to put higher water pressure in
the sprinkler systems involved no policy
choice or planning decision. There was a
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dispute on the evidence whether it was
negligent to fail to fight the fire
through the buildings' sprinkler systems.
. . . The jury decided that, in
exercising their discretion not to use
the buildings' sprinkler systems, the
Lowell firefighters were negligent
because they failed to conform to
generally accepted firefighting
practices. When the firefighters
exercised that discretion, policy and
planning considerations were not
involved. Therefore, the discretionary
function exception does not shield the
city from liability.
Id.
It is hard to differentiate between the
firefighters' conduct in Stoller and the allegedly negligent
decision to pursue of Officer Meninno. The firefighters, in
execution of their duty to fight fires, deliberately chose at
the time what we assume they considered to be the appropriate
strategy for fighting the fire. While, in retrospect, their
judgment may have been flawed, no statute, regulation or
municipal policy required any different, and they were
authorized, indeed required, to make such a determination on
their own. An injured party alleged and eventually persuaded
a jury that their strategic choice, made pursuant to their
governmental duties and in conformance with applicable
policies, was negligent. Here, a police officer, in
execution of his duty to enforce the laws of the
Commonwealth, deliberately chose what he considered to be the
best strategy for apprehending a lawbreaker. No statute,
-54-
regulation or policy prohibited his actions. A town policy
expressly authorized and required him to exercise his own
judgment as to how to proceed. An injured party now alleges
and hopes to persuade a jury that his strategic decision was
negligent. Comparing the result in Stoller to this case, one
can argue that section 10(b) does not shelter Lakeville from
liability for Meninno's actions. Still, it may be that
Stoller turned on the firefighters' having violated standard
practices with no apparent policy justification, hence is not
to be read as more generally eliminating lower level
firefighting and police decisions from the section 10(b)
exception.
In attempting to understand the reasoning of the
Stoller court, we have reviewed similar cases from other
jurisdictions. A sizable number of them reach the opposite
result in analogous circumstances. See 57 Am. Jur.2d
Municipal, County, School and State Tort Liability 484, at
449 (summarizing cases from ten states). For example, in
City of Daytona Beach v. Palmer, 469 So.2d 121 (Fla. 1985),
the Florida Supreme Court explained:
The decisions of how to properly
fight a particular fire, how to rescue
victims in a fire, or what and how much
equipment to send to a fire, are
discretionary judgmental decisions which
are inherent in this public safety
function of fire protection. . . . To
hold a city liable for the negligent
decisions of its fire-fighters would
require a judge or jury to second guess
-55-
fire-fighters in making these decisions
and would place the judicial branch in a
supervisory role over basic executive
branch, public protection functions in
violation of the separation of powers
doctrine.
We distinguish these types of
discretionary fire-fighting decisions
from negligent conduct resulting in
personal injury while fire equipment is
being driven to the scene of a fire or
personal injury to a spectator from the
negligent handling of equipment at the
scene.
Id. at 123.
We feel unable to determine the precise aspect of
the circumstances in the firefighters' conduct in Stoller
that led the court to find their actions were not of the type
based on policy considerations. And we are disinclined to
introduce new doctrines or fine distinctions of our own into
Massachusetts law in order to differentiate the firefighters
from Meninno. Yet, neither can we ignore the principles,
rules and guidelines articulated by the Massachusetts court
in Stoller and in other cases, which apparently point in
another direction, so as seemingly to lead to the conclusion
that Lakeville is entitled to immunity for the strategic
decisions of its police officers made in furtherance of their
duties.
6. Certification Essentially, we are faced with
6. Certification
this dilemma: the Massachusetts discretionary function
doctrine as expounded in Stoller and Gaubert suggests a
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finding of immunity, while the result in Stoller seems to
mandate the opposite. Resolution of the issue in this case
requires reconciling Stoller with Gaubert and other federal
and state cases, a project properly left to the courts of the
Commonwealth because it may require the development of new
rules or distinctions. Moreover, whichever way we decided
the issue, our opinion would be seen in Massachusetts as
either barring or permitting many other actions against
public employers for decisions made by police officers and
other municipal servants. We also take notice of the current
debate in the Commonwealth on the closely related issue of
the public duty rule. See Jean W. v. Commonwealth, 414 Mass.
496, 610 N.E.2d 305 (Mass. 1993) (abolishing court-created
public duty rule prospectively after 1993 legislative
session); see also Cyran v. Town of Ware, 413 Mass. 452, 597
N.E.2d 1352 (1992) (holding, in 3-2 decision, that town
firefighters owed no special duty to homeowners whose house
was destroyed by fire). The difficult questions raised by
the various concurring opinions in Jean W., and the lack of a
majority opinion, cautions us about the complexity and social
importance of the municipal liability issue in Massachusetts.
For these reasons, the best course for a federal court, bound
to apply state law as it stands, is certification.
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On our own motion, we will certify in a separate
certification order the following question to the Supreme
Judicial Court of Massachusetts pursuant to S.J.C. Rule 1:03:
Do the discretionary decisions of a
police officer to begin and continue the
high-speed pursuit of a vehicle then
being operated in violation of law
involve policymaking or planning for
purposes of immunity under Massachusetts
General Law ch. 258, 10(b)?
If the question is answered in the affirmative, then the
discretionary function exception applies to Meninno's conduct
and the district court's grant of summary judgment for
Lakeville on this claim will be affirmed. If the question is
answered in the negative, then summary judgment was improper
and the claim will be remanded to the district court for
further proceedings. We would, of course, welcome any
guidance the S.J.C. may care to provide, beyond answering the
question, concerning the effect and proper application of
Massachusetts law in these circumstances. The clerk of this
court shall forward as an appendix the briefs and appendix
furnished to us by the parties.
B. Liability of Freetown for Sullivan's Conduct
B. Liability of Freetown for Sullivan's Conduct
Appellee Freetown argues that it is immune from
liability under the Massachusetts Tort Claims Act because
Sullivan's conduct falls within the discretionary function
exception of section 10(b). After reviewing the record in
the light most favorable to the appellant, we hold that the
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district court should not have granted summary judgment for
Freetown on this issue because there is a genuine issue of
material fact concerning the first element of the two-part
test for discretionary function immunity: whether Sullivan
had discretion to engage in the allegedly negligent conduct.
The Freetown pursuit guidelines in effect at the
time were identical to Lakeville's, and are silent as to most
of the decisions made by Sullivan. However, appellant
sensibly asks how Sullivan's decision to erect a partial
roadblock could be within his discretionary authority when
paragraph 12 of the Freetown guidelines expressly states,
"Intentional contact between a police vehicle and the vehicle
pursued, or use of a police vehicle as a roadblock, is
strictly forbidden." The language of this departmental rule
appears on its face to forbid the very actions taken by
Sullivan. But the record also contains testimony by Officer
Sullivan that he interpreted Paragraph 12 to mean merely that
police vehicles may not be used to block an entire roadway,
as when a cruiser is placed sideways so as to obstruct both
lanes of a two-lane road. According to Sullivan, the term
"roadblock" has not been interpreted by the Freetown police
to include a partial roadblock, such as the one established
-59-
by Sullivan when he parked his cruiser in the oncoming lane,
which leaves room for a vehicle to pass on one side.18
18. The affidavit of appellee Mello, the Freetown police
chief, indicates that an official investigation of Sullivan's
actions concluded that Officer Sullivan acted appropriately
in the circumstances. Chief Mello stated that Freetown had
pursuit guidelines in place, but he did not suggest that
Sullivan had violated any of these guidelines by using a
partial roadblock.
The following colloquy regarding paragraph 12 of the
Freetown guidelines appears in Officer Sullivan's deposition:
Q: [Mr. Gillis, plaintiff's attorney]: So, prior
to the collision that is the subject of this
lawsuit, you had in your possession a handbook
given to you by your commanding officer, is
that correct?
A: [Sullivan]: Yes, it is.
Q: Okay. That handbook contained a section on
the policies of the Freetown Police Department
concerning pursuing other motor vehicles, did
it not?
A: Yes, it did.
Q: Did it also have a section on the use or
nonuse of roadblocks; of blocking the road
during pursuits?
A: Mr. Gillis, could you define for me what you
think, what you would say was a "roadblock"
and what is "blocking the road"? I think in
my mind they're two different things.
Q: Why don't you tell me? What's "blocking the
road" mean to you, sir?
A: Blocking the roadway would be blocking the
total roadway so that nothing could pass your
point.
Q: Okay. And what is a "roadblock"?
A: A roadblock would be one and the same. The
roadblock would be blocking the whole roadway.
. . .
Q: Was there a section in this manual that you
were given before August 5, 1988, concerning
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On this record, there is an unresolved issue of
fact regarding Sullivan's discretion under pertinent
regulations to have created a partial roadblock, the
allegedly negligent conduct on his part. Sullivan's
testimony, and Chief Mello's affidavit, suggest the
possibility of a narrowed reading of the rule so as to allow
Sullivan to do what he did. See, e.g., Kelly v. United
States, 924 F.2d 355, 360-61 (1st Cir. 1991) (holding that,
the use of roadblocks or blocking the roadway?
Is there a policy for that in the Town of
Freetown?
A: Roadblocks as blocking the whole roadway?
Q: Yes.
A: Yes, there is.
Q: And what was that?
A: Roadblocks blocking the whole roadway are not
allowed under the policy.
. . .
Q: (Pause) Again, referring to that manual that
you mentioned before, that you were given
sometime in 1987, or at least prior to August
5, 1988, does the manual say anything specific
about blocking the roadway?
A: Okay. Again, when you say "blocking the
roadway," do you mean a roadblock
Q: I mean blocking the roadway in any manner.
A: Yes, it does.
Q: Blocking a travel lane, or blocking the other
lane, in any manner. What does it say about
blocking the road?
A: The manual advises that to block one lane-way
of a roadway, to block some portion of a
roadway is permissible. But you are not to
block the whole roadway.
-61-
to avoid summary judgment, plaintiff DEA agent was required
to rebut defendants' evidence that seemingly nondiscretionary
regulation was consistently interpreted by DEA officials to
permit use of discretion). But the language of the
regulation, read in the light most favorable to Horta, seems
rather directly to forbid such conduct. There is, therefore,
a factual issue over whether the regulation should be read to
withhold discretion here or whether the departmental
interpretation claimed by Sullivan actually existed and was
sufficiently consistent and longstanding so as to render his
conduct discretionary. Because of this factual issue over
whether the first element of the discretionary function
exception test was fulfilled, we do not reach whether
Sullivan's conduct was based on policy or planning
considerations. The latter is, in large measure, the same
question certified to the S.J.C. in the case of Meninno. The
S.J.C.'s resolution regarding Meninno may answer it. For the
moment, we hold simply that Freetown was not entitled to
summary judgment on the issue of section 10(b) immunity and
remand Horta's claim to the district court for further
proceedings.19
V.
V.
19. We do not consider to what extent resolution of this
issue is within the province of the district judge as opposed
to the jury. The district court, with the assistance of the
parties, should initially determine this.
-62-
In conclusion: we affirm the grant of summary
judgment for appellees Sadeck, Meninno, and Sullivan on Count
I, alleging liability under 42 U.S.C. 1983; we affirm the
grant of summary judgment for Freetown on Count IV under the
Massachusetts Tort Claims Act for the actions of Sadeck, and
vacate the grant of summary judgment for Freetown on Count IV
under the Massachusetts Tort Claims Act for the actions of
Sullivan and remand that claim for further proceedings; we
certify a question of law to the Supreme Judicial Court of
Massachusetts on the issue of Lakeville's liability on Count
IV under the Massachusetts Tort Claims Act and, pending that
court's determination, retain jurisdiction on that issue; and
we affirm dismissal of all the remaining claims because
appellant did not appeal their dismissal by the district
court.
Affirmed in part, vacated and remanded in part, and
a question certified to the Supreme Judicial Court of
Massachusetts, with jurisdiction retained pending that
determination. No costs.
-63-
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1962
DEBRA HORTA,
Plaintiff, Appellant,
v.
CHARLES B. SULLIVAN, ET AL.,
Defendants, Appellees.
CERTIFICATION
For the reasons discussed in our opinion in this
case, Horta v. Sullivan, No. 92-1962, (see especially Part
IV.A., at pp. 32-55), the resolution of an important issue
depends upon questions of Massachusetts law on which we are
unable to find clear, controlling precedent in the decisions
of the Supreme Judicial Court of Massachusetts. Accordingly,
we certify the following question to the Supreme Judicial
Court of Massachusetts pursuant to its Rule 1:03.
Do the discretionary decisions of a
police officer to begin and continue the
high- speed pursuit of a vehicle then
being operated in violation of law
involve policymaking or planning for
purposes of immunity under Massachusetts
General Law ch. 258, 10(b)?
The relevant facts are discussed in the separate opinion in
this case. In putting the above question, we wish to make
clear that we would, of course, welcome the advice of the
court on any other question of Massachusetts law it deems
material to this case on which it would wish to comment.
The Clerk of this court will transmit this question
and our separate opinion in this case, along with copies of
the briefs and appendix in this case to the Supreme Judicial
Court of Massachusetts.
United States Court of Appeals
for the First Circuit
By: Juan R. Torruella
Circuit Judge
Dated: August , 1993
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