United States Court of Appeals

For the First Circuit

No. 05-2375

BARRY HIGGINS,

Plaintiff, Appellant,

v.

PENOBSCOT COUNTY SHERIFF'S DEPARTMENT; GLENN ROSS,

SHERIFF, PENOBSCOT COUNTY; JOSHUA TIBBETTS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Margaret Kravchuk, U.S. Magistrate Judge]

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

 Torruella, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Julie D. Farr, with whom Charles E. Gilbert, III and Gilbert

& Greif, P.A. were on brief, for appellant.

Cassandra S. Shaffer, with whom Peter T. Marchesi and

Wheeler & Arey, P.A. were on brief, for appellees.

April 14, 2006
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Per Curiam. This case arises from an incident in which

defendant Joshua Tibbetts, a deputy sheriff with the Penobscot

County Sheriff's Department, issued plaintiff Barry Higgins a notrespass warning and ordered him to leave the T & N Trailer Park in

Carmel, Maine. The district court granted the defendants

(Tibbetts, Tibbetts' supervisor Sheriff Glenn Ross, and the

Department itself) summary judgment on Higgins' claims that

defendants deprived him of his Fourth and Fourteenth Amendment

rights and certain other rights secured him under Maine common law.

The court also granted defendants judgment on the pleadings on

Higgins' claim under Maine's unlawful eviction statute, 14 M.R.S.A.

§ 6014. Higgins brings this appeal to challenge these rulings.

The incident giving rise to this case occurred on May 16,

2002. The undisputed facts and the disputed facts taken in a light

favorable to Higgins, see, e.g., APG, Inc. v. MCI

Telecommunications Corp., 436 F.3d 294, 297 (1st Cir. 2006), are

that Higgins awoke that morning in an apartment over a garage built

on a lot within the trailer park. While he was drinking coffee in

his robe, Higgins heard someone closing a door below, in the

garage. Higgins opened the door to the apartment and saw his

sister Irene standing outside near the base of a ladder that he had

used to access the apartment. (Apparently, there previously was a

deck with steps leading up to the apartment, but the deck and steps

had been removed). Higgins asked Irene what she was doing in his
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garage. Irene retorted that Higgins had no right to be there and

that she was going to call the sheriff. But before she could do

so, Higgins called the sheriff's department and asked for

assistance.

There had been a long-running dispute between Higgins and

his family over Higgins' rights vis-à-vis the building and certain

of its contents. Those members of Higgins' family who have

submitted evidence in this case deny that Higgins had any right to

be in the building on the day of the incident. Higgins responds

that, at the very least, he had a tenancy interest in the building.

He alleges that he and his father, Leo, formed a partnership and

purchased the trailer park in 1972, agreeing at the time that all

members of the Higgins family would have a lifetime right to reside

there. Higgins says that he paid for and built the apartment and

garage, completing construction in 1981, and that he "resided" in

the building from 1981 to the day of the incident. Higgins admits

to having spent significant periods of time out of state beginning

in the late 1990s, and to having signed his partnership interest

over to his father during his divorce proceedings in 1989, with the

as-yet unrealized expectation that his father would deed the

interest back to him after the proceedings concluded. But he

maintains that his "long-term possession and occupancy of the

building, at a minimum, give rise to a tenancy interest, even in

the absence of agreement with his father as to its terms."
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Deputy Tibbetts was dispatched to the trailer park in

response to Higgins' call. Upon arriving, Tibbetts encountered

what Higgins described in his deposition as a "screaming contest"

involving, at the very least, himself and his sisters Irene and

Cynthia, as well as Cynthia's husband David Prescott. Higgins

informed Tibbetts that he and his father were engaged in an ongoing

disagreement over ownership of the property and his right to reside

there. Leo showed up a short time later with a copy of the deed,

which he showed to Tibbetts, telling him that he previously had

notified Higgins to stay off the property. Leo asked Tibbetts to

bar Higgins from the property. Higgins informed Tibbetts that the

police had more than once been summoned to mediate the issue but

always had declined to involve themselves, telling Higgins and Leo

that it was a "civil dispute and that [they] would not get

involved." 

In due course, Tibbetts issued Higgins the no-trespass

order that is the subject of this lawsuit and gave him several

minutes to collect some personal belongings from the apartment.

Several facts, in addition to Leo’s apparent ownership of the

building, led Tibbetts to believe that Higgins was a trespasser and

was not lawfully entitled to occupy the apartment: the truck

Higgins had parked outside the building had Connecticut license

plates; there were no stairs, only a ladder, to access the

building’s apartment; and Tibbetts had driven past the building on
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“many, many” prior occasions and it always had appeared vacant -–

i.e., there never were any lights on, there never were any vehicles

parked outside, and there was “lots of junk in the dooryard that

was always in the same place.” (The word "dooryard," as used

colloquially in northern New England and eastern Canada, typically

refers to the area outside the most commonly used entrance to a

residence, and often includes the driveway. See Walt Whitman, When

Lilacs Last in the Dooryard Bloom'd (1865-66)). Tibbetts told

Higgins that he would be arrested if he did not leave or if he

returned to the property. Higgins says that he asked Tibbetts to

look in the apartment and to take note of the personal property

that he would be leaving behind, but Tibbetts refused. Higgins

says that, after he complied with Tibbetts' order and departed, a

great deal of his personal property disappeared from the building.

Eventually, Higgins filed this action. He asserted three

federal civil rights claims: that his "eviction" constituted (1)

a "meaningful interference with . . . [his] possessory interests"

in his residence, and thus an unlawful seizure in violation of the

Fourth Amendment, see Soldal v. Cook County, 506 U.S. 56, 61 (1992)

(citation and internal quotation marks omitted); (2) an abridgment

of his right to procedural due process protections before the

seizure, see Fuentes v. Shevin, 407 U.S. 67, 87 (1972); and (3) a

violation of his right to have had Tibbetts properly trained and

supervised by the other defendants, see, e.g., City of Oklahoma
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City v. Tuttle, 471 U.S. 808, 813-24 (1985). He also asserted

state law claims for conversion of his personal property and the

infliction of emotional distress. Finally, as noted at the outset,

Higgins pressed a claim under Maine’s unlawful eviction statute, 14

M.R.S.A. § 6014.

Following discovery, the defendants moved for summary

judgment on all claims except the claim for wrongful eviction, on

which they moved for judgment on the pleadings. The matter was

referred to a magistrate judge, who issued a thorough and carefully

reasoned report recommending that the defendants’ motions be

granted. The magistrate judge expressed considerable doubt that a

viable constitutional claim was stated under either the Fourth or

Fourteenth Amendments, but concluded that, in any event, the

defendants should be entitled to qualified immunity from the claims

because they had not violated Higgins’ “clearly established”

rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);

Anderson v. Creighton, 483 U.S. 635, 640 (1987). The magistrate

judge further concluded that the defendants should be statutorily

immune from liability on Higgins’ conversion and infliction of

emotional distress claims, Tibbetts because he was exercising a

discretionary function when he issued the no-trespass order and did

not act in bad faith, see 14 M.R.S.A. § 8111(1)(c) & (E), and the

remaining defendants because of absolute governmental-entity

immunity, see 14 M.R.S.A. § 8103(1). Finally, the magistrate judge
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rejected Higgins’ claim for unlawful eviction because, inter alia,

the statute only authorizes a cause of action against a “landlord,”

and not against his agent. The district court accepted the

magistrate judge’s recommended rulings insofar as they were

premised on the reasoning just summarized, and Higgins brought this

appeal to challenge these rulings.

The lower court opinions more than adequately explain why

the defendants are entitled to summary judgment in this case, so we

are content to affirm largely on the basis of those opinions. See,

e.g., Vargas-Ruiz v. Golden Arch Devel. Corp., 368 F.3d 1, 2 (1st

Cir. 2004). We add only a few remarks about Higgins'

constitutional claims against Tibbetts. Higgins premises these

claims on the threshold assertion that the untrained Tibbetts

subjected him to an unlawful eviction. We do not doubt that, in

certain circumstances, a police officer’s participation in an

unlawful eviction can implicate a tenant’s Fourth and Fourteenth

Amendment rights and give rise to liability under 42 U.S.C. § 1983.

Cf. Soldal, 506 U.S. at 61; Fuentes, 407 U.S. at 87. At least

arguably, then, Higgins has adduced enough evidence to meet the

first two parts of this circuit's tripartite qualified-immunity

inquiry. See, e.g., Wilson v. City of Boston, 421 F.3d 45, 52 (1st

Cir. 2005) (summarizing the first two questions the court should

ask as: "(1) whether the claimant has alleged the deprivation of

an actual constitutional right; [and] (2) whether the right was
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clearly established at the time of the alleged action or inaction

. . ."); Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 60-61 (1st

Cir. 2004) (similar).

In our view, the viability of Higgins' constitutional

claims against Tibbetts depends on whether, to the extent that what

happened properly can be found to have been an “eviction” at all,

Tibbetts could be found to have known that it was an unlawful

eviction. Such a finding is necessary if Higgins is to clear the

final hurdle presented by the qualified-immunity defense Higgins

has interposed. See Wilson, 421 F.3d at 52 (observing that, at the

third prong of this circuit's qualified-immunity inquiry, the

plaintiff must establish that “an objectively reasonable official

would have believed that the action taken violated [the previously

identified] clearly established right”); see also Riverdale Mills,

392 F.3d at 61 (“It is not always evident at the time an official

takes an action that a clearly established right is involved. For

example, the factual situation might be ambiguous or the

application of the legal standard to the precise facts at issue

might be difficult; in either case the officer’s action may be

objectively reasonable and she may be entitled to qualified

immunity.”).

One could not reasonably find in Higgins’ favor on this

issue. As set forth above, Tibbetts encountered a volatile and

potentially dangerous situation -- described by Higgins himself as
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a “screaming contest” -- when he arrived at the trailer park. The

subject of the dispute was a man who, so far as Tibbetts could

tell, was driving a truck with out-of-state license plates, and who

claimed a right to occupy a building with which Tibbetts was

familiar and which Tibbetts reasonably thought, based on his prior

knowledge of the building and the circumstantial evidence at the

scene, to have been long unoccupied. The man provided no written

lease or other documentation to support his claimed occupancy

right, but only made a conclusory verbal claim of entitlement.

Opposing this man were several members of his own family, all of

whom disputed his claimed entitlement and informed Tibbetts that he

previously had been told to stay away, and one of whom -- the man's

father -- produced a deed which substantiated the father's claim of

ownership of the property.

"Qualified immunity protects 'all but the plainly

incompetent or those who knowingly violate the law.'" Wilson, 421

F.3d at 58 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

In these circumstances, Tibbetts' decision to disbelieve Higgins

and to defuse the situation by asking him to leave under threat of

citation for trespass was neither plainly incompetent nor involved

a deliberate violation of the law. Given the paucity of evidence

that Higgins was entitled to occupy the property and the abundance

of evidence pointing the other way, Higgins' argument essentially

invites us to hold, as a matter of constitutional law, that a
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police officer, summoned to mediate a volatile dispute involving an

alleged trespasser, is obliged to leave the situation unresolved

simply because the trespasser represents himself to be entitled to

be there. To state the proposition is to expose its foolishness.

Affirmed.

Concurring opinion follows. 
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HOWARD, Circuit Judge, concurring in the judgment. The

opinion of the court applies the three-part qualified immunity

analysis called for in our recent cases and concludes that Tibbetts

is entitled to qualified immunity at prong three. See, e.g.,

Wilson v. City of Boston, 421 F.3d 45, 52-59 (1st Cir. 2005);

Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 60-66 (1st Cir.

2004); Suboh v. District Atty's Office, 298 F.3d 81, 90-96 (1st

Cir. 2002); Abreu-Guzman v. Ford, 241 F.3d 69, 73-74 (1st Cir.

2001). I write separately because I believe that Tibbetts should

have prevailed on the initial inquiry -- whether he violated

Higgins' constitutional rights -- and more generally to urge

consideration of a return to the "two-step process," Brosseau v.

Haugen, 543 U.S. 194, 195 (2004), traditionally employed in

qualified immunity cases. I do so because our three-step process

invites erroneous holdings and, possibly, erroneous outcomes,

especially in Fourth Amendment cases.

For most of the last decade, this court has usually asked

three questions when evaluating whether a government actor is

entitled to qualified immunity: (1) Does the official conduct in

question, as alleged, constitute the violation of an actual federal

right? (2) If so, was the right so clearly established at the time

of the alleged violation that a reasonable official would have been

on notice that the conduct was unconstitutional? (3) If so, would

a reasonable official have understood that the conduct violated the
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clearly established right at issue? E.g., Wilson, 421 F.3d at 52;

but see Riverdale Mills, 393 F.3d at 61 n.5 (acknowledging that we

sometimes still follow a two-step process). A negative answer to

question one means that there has been no violation of a federal

right; a negative answer to question two or three gives rise to

qualified immunity insofar as plaintiff is seeking money damages

from the defendant.

The second and third questions we ask derive from an

elaboration of the two-step process described in the Supreme

Court's qualified-immunity cases. The two-step test directs courts

evaluating assertions of qualified immunity to ask: (1) Do the

specific case facts alleged describe a violation of a federal

right? (2) If so, should the defendant, who is charged with

knowledge of clearly established law, have known that the conduct

in question violated that right? See Saucier v. Katz, 533 U.S.

194, 201-02 (2001); see also Riverdale Mills, 392 F.3d at 60-61

(observing that the second and third questions this circuit usually

asks involve an expansion of the inquiry prescribed by the Supreme

Court).

Our elaboration seems to have been prompted, at least in

part, by a desire to emphasize that official defendants should not

be held liable in situations where they have made reasonable

mistakes about the facts of the situation they confront, as well as

reasonable mistakes as to whether, in light of clearly established
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law, their conduct infringed a federal right. See, e.g., Wilson,

421 F.3d at 57-58; Riverdale Mills, 392 F.3d at 61; Suboh, 298 F.3d

at 96. The issue of mistaken factual (as opposed to legal)

judgments frequently arises in civil rights actions alleging Fourth

Amendment violations, where the constitutionality of an official's

conduct turns not on post hoc judgments about whether the search or

seizure was justified or properly calibrated, but on whether it was

reasonable under the tense, uncertain, and rapidly evolving

circumstances that the official confronted. See Saucier, 533 U.S.

at 204-05 (discussing Graham v. Connor, 490 U.S. 386 (1989)). But

this is not exclusively a Fourth Amendment problem; the issue of

mistaken factual judgments arises in other constitutional settings

as well. See, e.g., Dirrane v. Brookline Police Dept., 315 F.3d

65, 69-70 (1st Cir. 2002) (applying a fact-based balancing test to

determine the viability of claimed First Amendment violation in the

case of a government whistleblower disciplined for "disruptive

speech"); Suboh, 298 F.3d at 90-92 (applying a fact-based balancing

test to determine the viability of alleged infringements of the

right to "familial integrity," protected by the Fourteenth

Amendment's Due Process Clause, in a child-custody dispute).

Of course, officials should not be made to pay damages

for reasonable but mistaken factual judgments made in circumstances

such as these. But the reason they should not be held liable is

that an official who acts reasonably vis-à-vis the plaintiff has
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not violated the plaintiff's constitutional rights -- even if the

invasion in question proves unwarranted with the benefit of 20/20

hindsight. See Illinois v. Rodriguez, 497 U.S. 177, 183-89 (1990)

(emphasizing that the Fourth Amendment does not protect against

searches and seizures that prove to have been unwarranted, but only

against searches and seizures that were unreasonable). In such a

situation, the qualified-immunity defense should not even be

addressed because its necessary antecedent -- the presence of a

viable claim for the invasion of a federal right -- is lacking.

Our recent qualified-immunity cases obscure this point by

suggesting that reasonable factual errors, like reasonable legal

errors, are grist for the qualified-immunity mill, and are not to

be analyzed as part of the threshold federal-right issue.

Our recent opinion in Wilson is instructive, consistent

as it is with our other recent precedent. In that case, a woman

who was mistakenly arrested pursuant to a sting operation designed

to capture a large number of persons with outstanding arrest

warrants sued the arresting officer for money damages, claiming

that he violated her Fourth Amendment rights. See 421 F.3d at 47.

In conducting our three-part qualified immunity analysis, we

determined that, under the facts alleged, the arresting officers

indeed had violated the plaintiff's right to be free from an

erroneous arrest, and that it should have been clear to the

arresting officer, under prevailing clearly established law, that
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his conduct was unlawful. See id. at 54-57. In other words, we

answered our first two qualified-immunity questions in the

affirmative. See id. Nonetheless, we concluded that the officer

was entitled to qualified immunity. See id. at 57-59. We reasoned

that the officer reasonably, although mistakenly, believed that

there was an outstanding warrant for the plaintiff's arrest, and

that he acted reasonably in promptly ordering the plaintiff's

release upon learning of the error. See id.

The defendant in Wilson was not simply entitled to avoid

damages liability because of the qualified-immunity doctrine; he

was entitled to a merits dismissal of the plaintiff's Fourth

Amendment claim because his conduct was reasonable under the

circumstances. See Rodriguez, 497 U.S. at 183-89. In other words,

he did not violate the plaintiff's Fourth Amendment rights.

See id. The factual analysis performed at step three should have

been performed at step one, and should have yielded the conclusion

that there was no constitutional violation. Regrettable as

incidents of mistaken arrest such as this may be, American citizens

simply do not have a free-standing Fourth Amendment right not to be

arrested erroneously. Cf. id. at 184 ("If a magistrate, based upon

seemingly reliable but factually inaccurate information, issues a

warrant for the search of a house in which the sought-after felon

is not present, has never been present, and was never likely to

have been present, the owner of that house suffers one of the
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inconveniences we all expose ourselves to as the cost of living in

a safe society; he does not suffer a violation of the Fourth

Amendment."). The right protects only against unreasonable arrests

-- i.e., unreasonable mistakes about the perceived facts giving

rise to the arrest.

I would not write separately if my concern were merely

theoretical. Although the results in Wilson and this case remain

the same whether we hold that there has been no invasion of a right

or that there has been a reasonable mistake of fact made in

connection with the invasion of the right, that is so only because

the plaintiff in each case sought only monetary damages, and not

declaratory or injunctive relief (against which the qualifiedimmunity doctrine is not a shield, see Torres Rivera v. Calderon

Serra, 412 F.3d 205, 212 (1st Cir. 2005)). We should not hold or

imply, as we are invited to do in our tripartite elaboration of the

qualified-immunity analysis, that a government official violates

the Constitution when she makes a reasonable but mistaken factual

judgment that a particular situation calls for a forceful

intervention by her office. The traditional two-step qualified

immunity analysis, still employed by the Supreme Court, does not

permit this error, for it channels consideration of issues of

reasonable mistakes of fact into the initial inquiry: whether

there has been an invasion of a federal right. See Brosseau, 543

U.S. at 195.
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We should return to the two-step inquiry employed by the

Supreme Court.