# U nit edStates C ou rt o f App eal s For t h e Firs t C ircu it

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, 2006-2- Per Curiam. This case arises from an incident in which defendant Joshua Tibb e t t s, a deputy sheriff with the PenobscotCounty 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 (Tibb e t ts, Tibbetts' supervisor Sheriff Glenn Ross, and the Department itself) summary judgment on Hig g i ns' claims that def e n d ants 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., 4 3 6 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
gar a g e . H i g g i n s o p e n e d t h e d o o r t o t h e a p a r t m e n t a n dsaw 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-3-

garage. Irene retorted that Higgins had no right to be there and that she was going to c a l l t h e 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 t h e i n c i dent. Higgins responds that, at the very least, he had a tenancy interest in the building. He alleges that he and his fa t h e r , 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 u n r ealized 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 t e nancy interest, even in the absence of agreement with his father as to its terms."-4- 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 t h e issue but always had declined to involve themselves, telling Higgins and Leo tha t it was a "civil dispute and that [they] would not get involved."

In due co u r s e, Tibbetts issued Higgins the no-trespass order that is the subject of this lawsuit and gave him s e v eral minutes to collect some personal belongings from the apartment. Several f a c t s , 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-5-

“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 i n t h e dooryard that was always in the same place.” ( T h e w o r d "dooryard," as used colloquially in northern New England and eastern Canada, typically refers to the area o u t s i d e t h e 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 w o u l d b e a r rested if he did not leave or if he returned to the property. Higgins says that he asked Tibbetts to look in the apartme n t a n d t o 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 rig h t t o 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 defen d a nts, see, e.g., City of Oklahoma-6-

City v. Tuttle, 471 U.S. 808, 813-24 (198 5 )
. 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 t h e y m o v e dfor judgment on the pleadings. The matter was referred to a magistrate judge, who issued a thorough and carefully reasoned report recommendin g t h a t the defendants’ motions be granted. The magistrate judge expressed considerable doubt that a viable constitutional claim was stated under either the Fourth or
Fourteent h Amendments, but concluded that, in any event, the defendants should be entitled to qualified immunity from the claims because they had n o t v iolated 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 i n f liction 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-7-

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 ruli n g s 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. Hig gins 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 ev i c t ion 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. a t 6 1 ; F u e ntes, 407 U.S. at 87. At least arguably, then, Higgins has ad d u ced 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) (summ a r i z ing the first two questions the court should ask as: "(1) whether the claimant has alleged the deprivation of an actual constitutional righ t ; [and] (2) whether the right was-8-

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, th e 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, Tib b e t t s c o uld 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 d e f ense 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

e x a mple, 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-9-

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 circumstantia l e v i dence 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. Opposin g t h is 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. Bri g g s , 475 U.S. 335, 341 (1986)).
In these circumstances, Tibbetts' decision to disbeliev e H iggins 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 constit u t i o n a l law, that a-10-

police officer, summoned to mediate a volatile dispute involving an alleged trespasser, is o b l iged 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.-11- HOWARD, Circuit Judge, concurring in the judgment. The opinion of the court a p p lies 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 o f B o s t o n , 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 -- w h ether he violated Higgins' consti t u t ional rights -- and more generally to urge

c o n s i d eration 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-12-

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
que s t i o n one means that there has been no violation of a federal right; a n e g a t i v e a n s w e r t o q u e s t i o n t w o o r t h r e e g i v e s r ise to qualified immunity insofar as plaintiff is seek i n g money damages from the defendant.

The second and third questions we ask derive from an elaboration of the two-step process described in the S u p reme Court's qualified-immunity cases. The two-step test directs courts evaluating assertions of qual i f i e d immunity to ask: (1) Do the specific case facts alleged describe a v i olation 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 q u e s t i o n v i o l a t e d t h a t r i g h t ? S e e S a u c i e r v . K a t z , 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 i n 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-13-

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. T h e i s s u e o f m i s t a k e n f a c t u a l ( a s o p p o s e dt o l e g al) 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

reason a b le 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. S e e , 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 whistl e b l o wer disciplined for "disruptive speech"); Suboh, 298 F.3d at 90-92 (applying a fact-based balancing
test t o 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 cou r s e , o f f i c i a l s s h o u l dn o t b e m a d e t o p a yd a m a g es for reasonable but mistaken factual judgments made in circumstances such as these. But the reason they s h o u l d n ot be held liable is th a t a n o f f i c i a l w h o a c t s r e a s o n a b l y v i s - à

- v i s t h e p l a i n t i ff has-14-

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 sho u l d n ot even be address e dbecause its necessary antecedent -- the presence of a viable claim for the invasion of a f e d e r a l right -- is lacking. Our recent qual i f i ed-immunity cases obscure this point by suggesting that reasonable fa c t u al 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 ca s e , a w oman who was mistakenly arrested pursuant to a sting operation designed to capture a large number o f 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 cond u c t i n g our three-part qualified immunity analysis, we determined that, under the facts alleged, the arresting o f f i cers 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-15-

h i s c o n d uct 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, believedthat there was an outstanding warrant for the plaint i f f ' 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 l i ability because of the qualified-immunity doctrine; he

w a s entitled to a merits dismissal of the plaintiff's Fourth Amendment claim because his conduct w a s 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 n o t p r e s e n t, has never been present, and was never likely to have been present, the owner of that house s u f f e r s one of the-16-

inconveniences we all expose ourselves to as the cost of living in a safe society; he does not suffer a violation of the F o u rth 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 i f m yconcern 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 o f f a c t 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 (again s t w hich 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 b y t h e Supreme Court, does not permit thi s e r r or, 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.-17- We should return to the two-step inquiry employed by the Supreme Court.