Lead Opinion
Plаintiff-appellant Bernard Flowers appeals from the district court’s grant of summary judgment in favor of defendant-appellees Darren Fiore, Michael Garafola, Lawrence Silvestri, and the Town of Westerly, Rhode Island (“Town”). Flowers’ suit asserted violations of his constitutional rights under the Fourth and Fourteenth Amendments as well as pendent state law claims arising out of his stop and detention by members of the Westerly Police Department.
I. BACKGROUND
We draw the following recitation of facts from the summary judgment record, which includes Flowers’ complaint, affidavits submitted by the defendant police officers, logs of radio transmissions and telephone calls related to the incident, and a complaint submitted by Flowers to the ACLU. We note where facts are in dispute.
On September 24, 2001, at approximately 11:55 a.m., the Westerly Police received a telephone call from Nunzio Gaccione, a Westerly resident. Gaccione “guess[ed] there was a little fight there with Butch Corbin and a couple other people” and that he “just got word that Corbin is sending two colored people over here to start some trouble.” The dispatcher then radioed for Officer Fiore to respond to the complaint at Gaccione’s residence on Ashaway Road. Fiore arrived at the residence within four to five minutes and met with Gaccione. Gaccione related that he received a сall from Maurice O’Rourke, who stated that another individual, Michael Corbin, was sending two African-American men to Gaccione’s home with a gun. Gaccione said that he believed this was because his grandson, Jason Bolduc, “works with a guy that Corbin knows and they had some type of falling out.” Fiore claims to be familiar with Corbin and Bolduc, as both in the past have been involved in several disturbances and possible drug activity.
Gaccione then told Fiore that he had seen two African-American men in a small gray or black vehicle drive by his home about five minutes prior to Fiore’s arrival. Gaccione believed that these men may have been the ones to whom O’Rourke referred.
At 12:12 p.m., Fiore detailed Gaсcione’s complaint, including the description of the suspects, into his log. Fiore alerted on his radio that police should be looking for a small gray or black vehicle with two black men, possibly armed. He further stated that he was “not too sure what it is” and that “they made threats over here at the Gaccione complex.”
Next, Fiore took a post at the intersection of Route 3 and Danielle Drive, which is about half a mile east of the Gaccione residence along Route 3. He chose this particular location upon a belief that the suspect vehicle would return to the Gac-cione residence after having passed by the Gaccione residencе the first time. Some twenty to thirty minutes later, Fiore noticed a small gray car moving through the intersection of Route 3 and Danielle Drive. Fiore thought that about twenty minutes had elapsed since he took his position on Route 3. He conceded, however, that the time interval may have been as long as thirty minutes, as radio logs indicated. He “caught a side view of [the occupant of the car] and saw that it was a black male.” Prior to observing this particular vehicle, Fiore did not notice any other cars with African-American male occupants drive by his post.
Fiore decided to follow this vehicle because “it fit the description of the Gaccione
After following the vehicle approximately one mile, Fiore activated his lights and signaled for Flowers to pull over. Both eventually stopped on High Street, approximately half a mile west of the Gaccione residence along Route 3. Fiore assumed that dispatch would send backup “because of the situation,” and accordingly pulled Flowers over to a location near where he “knew backup was coming from a car stop.” He instructed Flowers over the loudspeaker to remain in the vehicle. Next, two backup officers, Lawrence Sil-vestri and Michael Garafola, arrived in separate police cruisers. Garafola left his vehicle with a shotgun ready in hand. Fiore, again using the loudspeаker, directed Flowers to extend his arms out the window and then open the car door and exit the vehicle. Flowers complied. Fiore then directed Flowers to turn around with his hands in the air and walk backwards towards the officers. From the time they arrived and exited their vehicles, each officer had his weapon drawn.
Flowers contends that when he reached the officers, his “hands were forced behind [him], handcuffs were placed [on him] and [he] was dropped to [his knees].” Fiore claims that the officers directed Flowers to kneel on the road beside his car and lace his fingers behind his head, and that then Flowers was handcuffed, frisked, and placed in the back of Fiore’s cruiser. All three officers also claim that they followed standard procedure for a high-risk (or felony) stop and that it was necessary to do so because they felt that there was a danger to their safety.
While Flowers was in the back of the police cruiser, the backup officers searched
Fiore contends that he explained the situation to Flowers, at which time Flowers became very angry and accused him of racial profiling. Flowers then asked Fiore to use his phone so he could call his wife (who was working nearby and awaiting his arrival). Fiore responded that he did not have a phone. He suggested that Flowers use the phone at the gym across the street and then ordered Flowers to move his car. Flowers then went back to his car and drove to the local hospital, where his wife worked.
By this time, both backup officers had driven away. Fiore proceeded to make “a couple passes by the Gaccione residence” until the end of his shift. Thereafter, he did not re-take a post to look for a suspect vehicle “because of the time that had gone by” and his belief that “the immediate threat had pretty much diminished.”
Pursuant to 42 U.S.C. § 1983, Flowers brought this action against Officers Fiore, Silvestri, and Garafola, and the Town of Westerly, claiming (1) that the police officers detained him because of his race, in violation of the Equal Protection Clause of the Fourteenth Amendment, U.S. Const, amend. XIV, § 1; and (2) that the officers detained him without probable cause and used excessive force, and that the Town failed to properly train and supervise the officers, in violation of his right against unreasonable government search and seizure under the Fourth and Fourteenth Amendments of the federal Constitution. Flowers also asserted state law claims for assault and battery, false imprisonment, and intentional infliction of emotional distress, as well as for violations of his rights under Article 1, sections 2 and 6 of the Rhode Island Constitution. After the close of discovery, defendants moved for summary judgment, arguing that there were no constitutional violations, and that they were shielded from liability by the doctrine of qualified immunity. Upon determining that no constitutional rights had been violated, the court did not reach the issue of qualified immunity and granted summary judgment in favor of the defendants.
II. DISCUSSION
We review a grant of summary judgment de novo. Singh v. Blue Cross/Blue Shield of Mass., Inc.,
A. The Stop and Detention
For purposes of determining whether the stop and detention were constitutionally permissible, we must first decide whether the officers’ actions amounted to an investigatory stop or was so intrusive as to constitute a de facto arrest. The detention of a person whose automobile has been stopped is a “seizure” within the Fourth Amendment’s prohibition against “unreasonable searches and seizures.” Whren v. United States,
The Supreme Court has stated that “the exception for limited intrusions that may be justified by special law enforcement interests is not confined to the momentary, on-the-street detention accompanied by a frisk for weapons involved in Terry and Adams [v. Williams,
While Terry stops generally are fairly unintrusive, we have repeatedly stressed that officers may take necessary steps to protect themselves if the circumstances reasonably warrant such measures. See United States v. Lee,
As for the officers’ use of handcuffs during the stop, we in the past have required the government to point to “some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purposes of the stop without exposing law enforcement officers, the public, or thе suspect himself to an undue risk of harm.” Acosta-Colon,
The reasonable use of backup officers is also within the bounds of a Terry stop. “[Mjere numbers do not automatically convert a lawful Terry stop into something more forbidding.” Zapata, 18 F.3d at 976. We have previously refused to hold that an investigative stop turned into a de facto arrest where five law enforcement officers were present at the scene of the stop. United States v. Trueber,
As for the duration of the stop, we must examine whether the police “diligently pursued a means of investigation that was likely to confirm or dispel their suspi
Admittedly, this case comes close to the line between a Terry stop and a greater intrusion that must be justified by probable cause. However, in addition to our own precedent pointing toward the former, the Sixth Circuit found that an investigatory Terr'y stop did not escalate into a de facto arrest based on facts almost identical to those at hand. In Houston v. Does,
It is also noteworthy that the officers never relocated Flowers to a station house or detention area. Nor did they read Flowers Miranda rights. In Acostar-Co-lon, we held that the detention of a suspect crossed over to a de facto arrest largely due to the fact that customs officers relocated the suspect from the place of the original stop — an airport gate — to an official interrogation room some distance from the gate. See
The various incidents of the stop and detention- — -some arrest-like- — ultimately add up to a situation where the officers responded in an urgent and reasonable fashion to a report of an armed threat that was substantially confirmed by Gaccione’s firsthand observation. We stress again that we do not rely on any single factor as legally disрositive, but assess the cumulative impact of the various elements of the stop. We look at the total factual context
Accordingly, to determine whether the officers’ initial stop of Flowers was constitutional, we assess whether the officers had a “reasonable and articulable suspicion” of past or present criminal activity. McCarthy,
The district court held that there was no constitutional violation based on four key factual observations: (1) Gaccione reported receiving a threat that two black men with guns were coming to his home “to cause trouble”; (2) Gaccione reported that two black men in a gray or black car had driven by Gaecione’s home slowly; (3) “a few minutes later,” Fiore observed Flowers, a black man, “driving toward Gaccione’s home” in a small gray car; and (4) Flowers’ car bore license plates not issued to his vehiсle.
First, Flowers contends that “there was [njever any serious concern that a crime had been or was about to be committed.” He argues that Fiore acted unreasonably on Gaccione’s “sketchy” complaint that itself was attributed to a man named O’Rourke whom Fiore had never heard of or met. Because Fiore never corroborated the threat with O’Rourke himself, Flowers argues, Fiore had no way to determine or even make a guess as to the credibility of the threats. Flowers fails, however, to address Gaccione’s report that since receiving the tip he had seen a gray or black car occupied by two black men pass by his home about five minutes before Fiore’s arrival. Gaccione’s firsthand observation of the vehicle and its occupants, uncontro-verted by Flowers, lent greater credibility to the reported threat.
Flowers also challenges the district court’s version of when and how Fiore discovered a discrepancy between the license plate on Flowers’ car and the vehi
Third, Flowers disputes the district court’s statement that Fiore observed Flowers drive past “at approximately 12:30 p.m.”
Finally, Flowers claims that the district court erred on the issues of the route of Flowers’ vehicle and the location of the stop. He contends that if Fiore positioned himself near the Gaccione residence and then followed Flowers for approximately one mile before stopping him, Fiore either (1) stopped Flowers as he was driving away from Gaccione’s residence, or (2) was positioned more than a mile from the residence when he first noticed Flowers’ car. In his affidavit, Fiore stated that he posted himself at the intersection of Route 3 and Danielle Drive, which is about half a mile east of the Gaccione residence along Route 3. From that intersection, one mile westward along Route 3 would put both Fiore and Flowers well pаst the Gaccione residence. Indeed, Route 3’s intersection with Danielle Drive is approximately one mile east of its intersection with High Street, the site of the stop. The Gaccione home on Ashaway Road is halfway between the two intersections.
The district court noted that Fiore observed Flowers “driving toward Gaccione’s home.”
Despite these apparent errors by the district court and construing the facts in a light most favorable to Flowers, we hold that Fiore’s conduct met the double approach adopted in Terry.
Though Flowers ultimately passed the Gaccione residence along Route 3, Fiore acted reasonably in continuing to follow him and stopping him shortly thereafter,
As for Silvestri and Garafola, they were reasonable in suspecting that Flowers was one of the armed men in Gacсione’s complaint after hearing the alert broadcast by Fiore and his call for backup. Flowers makes no attempt to challenge the two backup officers’ conduct during the stop and detention.
In sum, we stress that the government purpose served by the detention in the case is substantial. The nature of the potential criminal conduct, a daylight armed assault involving physical threats, was serious. The stop took place shortly after reports of the threat. Pursuant to Fiore’s observation and alert, the officers acted swiftly to dispel any suspicion that they may have had with regard to Flowers. In such cases of quick decisionmak-ing by law enforcement in potentially dangerous situations, we “should not indulge in unrealistic second-guessing.” Sharpe,
As for Flowers’ excessive force claim, we similarly conclude that the officers used reasonable measures to restrain Flowers. See Graham v. Connor,
Again, this is a close case. However, against the proper standard and accounting for the district court’s errors and elisions, we in the end conclude that the officers possessed sufficient and reasonable suspicion to stop Flowers and acted reasonably in dispelling that suspicion throughout the course of the detention.
B. Qualified Immunity
Upon finding that there was no constitutional violation, we do not address the issue of qualified immunity. See Saucier v. Katz,
C. Equal Protection
Flowers did not raise his equal protection claim in his memorandum in opposition to summary judgment, nor did he argue it in his brief here on appeal. Regardless, his claim fails on the merits. Selective enforcement of motor vehicle laws on the basis of race is a violation of the Equal Protection Clause of the Fourteenth Amendment. See Chavez v. Ill.
D. Municipal Liability
As the district court stated, “any liability that the Town may have under § 1983 is derivative” from the unconstitutional actions of the defendant police officers.
E. State Law Claims
We affirm the district court’s without prejudice dismissal of Flowers’ state claims. See United Mine Workers of Am. v. Gibbs,
The district court’s grant of summary judgment in favor of defendants is affirmed. No costs are awarded.
Concurrence follows.
Notes
. The district court recounted that “Fiore followed [Flowers'] vehicle and used his on-board computer to perform a registration check” and that "[t]he information received by Fiore was that the license plate on Flowers’ vehicle had been issued to a vehicle different from the one that Flowers was driving.” Flowers v. Fiore,
. In his January 17, 2002 affidavit, Officer Fiore described a high risk motor vehicle stop as "a motor vehicle stop when there is a possibility of danger to the officer stopping the vehicle.” In his March 12, 2002 affidavit, Officer Silvestri stated that upon his arrival at the scene, the officers decided to employ felony car stop tactics. He defined “felon}' car stop” to be the following: "Weapons drawn, have him walk to us, secure him, and then clear the car.” Both affidavits are in the record on summary judgment.
. In an exercise of its discretion not to retain supplemental jurisdiction over remaining pendent state law claims, the district court declined to address the summary judgment motion with respect to Flowers' state law claims and dismissed them without prejudice. See 28 U.S.C. § 1367(c). See also United Mine Workers of Am. v. Gibbs,
Concurrence Opinion
concurring in the judgment.
Perhaps under the existing case law, Flowers’ detention can be classified as a Terry stop rather than an arrest, even though it involved handcuffs and more than a brief encounter and must have been a scary experience, unmitigated even by an apology. United States v. Acosta-Colon,
The original tip was not completely anonymous (and this avoids the special problem рosed in Florida v. J.L.,
Even if the original tip and drive-by justified suspicion, the question remains whether they justified suspicion of Flowers. The informant claimed to have sighted two black men in a black or gray car. Gray cars are not uncommon; and the one stopped contained one black man — of middle age — rathеr than the two predicted, both of whom would likely have been younger if the story were true and they were the culprits. Also the car was stopped 20 to 30 minutes after the one allegedly driven by the house, further reducing the like
In addition, as the panel opinion shows, there is no clear indication that the plaintiff was driving to the informant’s house at the time he was stopped. Seemingly the better inference from the facts recounted is that the plaintiff had driven past the turn-off, and inferences at this stage must be drawn in the plaintiffs favor, Zambrana-Marrero v. Suarez-Cruz,
The Terry stop eases are generally helpful to the police, stressing the ability of an experienced officer to draw inferences and to base reasonable suspicion on an assemblage of small points. See Ornelas v. United States,
In this instance, the link between the tip (itself somewhat dubious) and the plaintiff seems to me too thin to support a reasonable suspicion of this plaintiff. There were discrepancies as to timing, the number of рersons expected, and (inferentially) age; and there was little basis for supposing that the plaintiffs car, traveling on an open highway, was headed to the informant’s house. Nor is there anything here to suggest that a black man driving a gray car on an open highway is a remarkably rare event. The stop may be close to a line that is difficult to draw, but in my view it falls on the wrong side.
There remains no basis for personal liability on the part of the officer under section 1983 (nor, absent a policy or practice, is there municipal liability). City of Canton v. Harris,