Lopera v. Town of Coventry

tion, federal, 579 n. if vary from one situation to 865 F.2d at and when and case, In In we think the present another. context of federal arises. order Doe; contempt power, against federal interest will valid and enforceable considerable; always state is not a to the case if the party almost be whether and at for any practical implications there is threat to state inter- state balk should sentence, that apparent, Jury is less In re Grand Doe’s state will be a matter ests see 582-83, time, Investigation, 865 F.2d at that can be that since addressed assum- ing anyone has a that in so. presumably comparable doing the state is interested interest in not its own having sentence Liberatore, a by As for later decision by making in force it concurrent diluted Dien, Circuit, Second 598 F.2d at awith sentence for different misconduct pattern allowing general followed the occurring later. suspension pre-existing of a federal sen- situations,

Conceivably, in rare the state tence. did not While Dien overrule Liber- atore, might greater example, aspects interest be it did undercut of the rea- —for might law the state from in soning supposed state hold- Liberatore: rule forbid ing the longer federal contemnor than his are not interruptible sentences and original date, a release claim made the lack specific stress laid on of a Liberatore, apparently accepted grant see 574 in authority section 1826. See Dien, comparable F.2d 89-90. If that or some 598 F.2d at 744-45. Whether existed, up consideration it would be holding to the Liberatore would still be followed point today contemnor to it out to the district is uncertain.

judge, who could consider what to make of Affirmed. it. But here no such concrete conflict was or, identified Doe in the district court matter,

for in this court.

On the contrary, government has

pointed to v. Megna, Commonwealth Superior which Bristol Court had no LOPERA, al., Plaintiffs, Juan et ordering hesitation its civil con- Appellants, tempt interrupt incarceration a pending being Massachusetts sentence then served COVENTRY, al., TOWN OF et the contemnor. Memorandum of Deci- Defendants, Appellees. sion on Civil Contempt, No. BRCR2002- (Mass.Dist.Ct. 2004). Oct. That No. 09-2386. (see court cited some the federal cases United Court of Appeals, States 1, above), note as as a local well case from Circuit. First jurisdiction, explain another the necessi- Heard Oct. 2010. for ty step such a in order to make the civil sanction effective. April 2011. Decided Rehearing Order Denying Rehearing enough

There will be time to con May 20, En merits, Banc sider such a real on conflict standing contemnor’s to raise the objection, Jury see re Investiga- Grand upon “dramatically L.Ed.2d 576 intrude[ ] traditional state (2001); impinge Bass, on "a decision of the most jurisdiction,” criminal 404 U.S. at sovereign fundamental entity,” sort 92 S.Ct. 515. 2395; Gregory, 501 U.S. at Robinson, whom M. Vicki

Stephen Calpham & were Bejma and Robinson J. brief, appellants. for on Bender, Hanson Curran Thomas R. LLP, Affil- on for Rhode Island brief Union, iate, ami- American Civil Liberties cus curiae. appellees.

Marc DeSisto LYNCH, Judge, SELYA Before Chief THOMPSON, Judges. Circuit LYNCH, tiffs, Judge. parties opposing summary Chief judg- September ment. On the Central Former members the Central Falls High Falls School soccer team traveled to High boys appeal School soccer team from Coventry for a match against Coventry summary entry judgment for the High game, School. Before the four or Island, Coventry, Rhode Town and Cov- five Central Falls used the rest- entry police rights officers in this civil Coventry rooms in the They locker room. dispute case. This arises out of a security were not alone. A guard search of team members that accom- followed a panied boys heated match soccer between Central Falls into the locker room. The Coventry High High School and School in usually locker room is open and unlocked Coventry 2006. Police searched all indi- easily accessed, and could be including by vidual Falls team Central members for persons. unauthorized purportedly missing items from the Coven- apparently locker room is used try presence locker room in the of an Coventry all recently teams and had been Coventry abusive crowd of students and used Coventry’s football team. After Though adults. the Central Falls coach match, the soccer a group approximate- of police told the he consented to the search ly twenty players1 football confronted the players, of his both he players and the coach, Marchand, Central Falls Robert as assert that he doing was coerced into so he players walked behind his toward the police. the terms, In profane team bus. Coventry the plaintiff Lead Lopera Juan and other students accused the Central players Falls former members of the Central team Falls stealing phones iPods and cell from the brought damages injunctive suit for Coventry locker room. April relief in alleging violations of rights their constitutional under the The Central players allege Falls Amendments, Fourth and Fourteenth as they encountered hostile racism during well as violations of Rhode Island state their match with Coventry the soccer team police law. The defendant officers assert- and during the remainder of their time in ed a qualified immunity. defense of The Coventry. racially Central Falls is a di- players district court held that the failed to community, verse and the Central Falls raise a genuine issue of material fact as to entirely team consisted Spanish-speak- (1) police whether officers were not ing Hispanic players, save for one Portu- qualified immunity entitled to respect guese player. contrast, Coventry, by to their claims under the Fourth Amend- predominantly non-Hispanic white, (2) law, privacy ment and state high and its school reflected this. The in engaged had racial discrimination players allege Central Falls that Coventry Equal violation of the Protection Clause players uttered racial epithets during the or Rhode Island prohibiting statutes racial game, calling them “spies” and demanding profiling and intimidation. Lopera v. they speak English. They allege that Coventry, Town 652 F.Supp.2d 213- Coventry students and adults made similar (D.R.I.2009). We affirm. during remarks series events that followed game.

I. We review the light Coventry facts After the players most football con- favorable to Lopera and the other plain- fronted purport- Coach Marchand with the apparently any 1. This crowd players. did not include soccer to do his own rector that he was welcome thefts, them that he would he told ed search, the Athletic Director de- which players The football situation. handle the unnecessary. clined as Coach Marchand Falls bus. him toward Central followed and the Di- bus, testified that as he Athletic Coach group reached Before “satisfy over how to all puzzled [the] rector to wait. Coach told the Marchand here,” worry began he constituencies bus, where his then boarded the Marchand might that violence ensue. in- Marchand waiting. Coach team was of the accusations formed the Coventry or four point, At this three not taken he knew had told them that on the scene with police cruisers arrived Nonetheless, he and an assis- items. po- and sirens activated. The lights their If players’ bags. coach searched tant sup- reporting had received calls lice found, Coach phone iPod or cell posed ongoing physical altercation. belonged that it proof asked for Marchand Falls bus officers boxed the Central approxi- The search lasted player. to the so that it could not with their cruisers minutes. twenty twenty-five mately According players, by move. it was testified that when Marchand Coach time the had also formed semi- crowd “completely satisfied” completed, he was bus, blocking path circle around the its out the items. possess did not that his parking lot. search, completed

After he physical it became clear that no Once speak with the Marchand left the bus taking place, altercation was dis- Director, wait- who was Coventry Athletic cussed the situation with Coach Marchand time, Mar- By this Coach ing Coventry outside. and the Athletic Director. testified, fifty sixty a crowd of or explained chand Marchand to the officers Coach gath- and adults had Coventry Coventry alleged students that the students had According to Coach players prime ered around the bus. and that his “were thefts Marchand, yelled of the crowd suspects.” members He told the officers that he the items. they players bags knew his had on the that had searched each student’s adults in the He testified that students and the miss- purportedly bus and did not find “from players that the ing expressed crowd stated items. Coach Marchand things” crowd, to “hide and ghetto,” asking police, knew how “what fear of the do, trusted. The good,” they “lie and could not be to going going am I what are and players recounted similar accusations Mar- pause, do to After a Coach us[?]” vitriol, “spic.” testified, including racial slurs like police responded chand ap- of the crowd point, they play- At one a member him if asking could search parently verbally agreed. tried to board the bus to conduct ers. Marchand Coach Marchand testified his own search. Coach testify that the Marchand did not Coach the crowd demanded a that members of anything said or did coercive. officers testified bags. of his own He also search testified that the officers Coach Marchand that that members of the crowd stated courteously unruly told mem- acted and play- they would not let the Central Falls quiet. According to be bers of the crowd found. ers leave until the items had been Marchand, police “decided to Coach Coventry thing [do the] told the Ath- their best Coach Marchand masses” who “every- appease themselves to letic Director that he had checked bus, In his testi- players “crying that did were for our heads.” thing” on the his way consent as the missing mony, items. he described his purportedly not have the road, road,” the safe high Di- to “take the take Marchand also told the Athletic Coach knew if though players they missing even he did not crowd and asked were the search, the items. must take this testi- During have We devices. the course of the mony summary as true on this motion for alleged members of the crowd that addi- judgment.2 police The testified missing, tional items were like books and angry unruly, crowd was consistent money. players’ testimony. They

with the also players The testified that the crowd con- they any racial testified that did hear during tinued to harass them the search. crowd, from members of the epithets that, player during One testified testimony. plaintiffs’ which not the search, members of the crowd called the search, agreeing After Coach players “spies.” Another testified that Marchand returned to the bus and told his members of the crowd stated that the Cen- players that the crowd would not let them tral in Coventry Falls team should not be go until searched them. The playing Coventry High given School players get then told the off the players. race of its Members of the crowd belongings bus with all of their up line photographed the Central Falls students bags legs. with their between their during the search phone with their cell players complied, lining up with their cameras. Marchand testified that al- against backs the bus. An officer then though the officers reprimanded unruly players any told the that if of them had the search, during members of the crowd items, missing they if would be arrested they did not take adequate actions to dis- immediately step did not forward. perse away the crowd or move from the forward, players stepped When none of the bus. began the officers a search. Mar- testimony There was that during the placed chand testified the officers search, Coventry one officer told one of player’s bag each on the hood of a cruiser thought he the search was through and looked it. A few tes- “stupid” because the coach had already subject- tified that some were also players searched the and because a securi- ed pat During down searches. the ty guard had accompanied players the in search, the crowd was about six to ten feet officer, the locker room. hearing Another away players. from the comment, laughed. police re- The search lasted for about 45 minutes quired all players to wait outside the police hour. The officers testified every bus until player had been searched. they that descriptions did not obtain of the The search did produce any not of the type phones of iPods or cell alleged to be missing items. completed, After was missing, than phone may other that one police escorted the bus out of town their “flip phone.” have been a When the cruisers. phone located an iPod or a cell player, on a they required player that the prove Lopera that and other members of the Cen- cases, the item belonged to him. In some tral Falls team in April filed suit players identified items stored on the against Coventry the Town of and several devices and allowed the officers to Coventry individual police officers under (§ cases, 1983) In § devices. other the officers U.S.C. and Rhode Is- displayed the devices to members of § land state law. Under process One officer suspects.” testified that Coach Marchand and eliminate them all as suggested they disputed the search and that pur- conducted These are and facts for these “expedite the search because it poses accept we do not them. Second, they argue that set forth their Fourth deprivations alleged the reasonable support unrea- material facts to to be free from right Amendment seizures, officers as well as that the actions of the and inference searches sonable rights to due motivated race impermissibly Amendment their Fourteenth protection Equal Protection Clause equal of law and violation of process law, the Island state law. The Rhode and Rhode Island state law.3 Under rulings violation of statutes court’s players alleged challenge the district do profiling, racial privacy, liability. invasion of municipal supervisory forbid and on R.I. Gen. Laws ethnic intimidation. and com- players’ In their answer to the 31-21.2; § 9-1-28.1; § id. 9-1-35. § id. officers asserted plaint, the defendant summary granted court The district immunity all claims. qualified against on all counts. for the defendants judgment asserting this defense before the district First, were entitled it held that the officers court, court and before this the officers to the immunity respect qualified argument their on whether it was focused privacy state Amendment and Fourth clearly that Coach Marchand established (1) it not unreasonable claims because could consent on behalf of his students Mar- to believe that Coach for the officers analyzed parentis. The district court loco search, power to consent chand had immunity qualified in a question (2) Mar- not vitiate Coach coercion did framework, appeared but it to address the Second, it that the held ehand’s consent. remaining claims outside of players’ evi- not introduce sufficient players did that the officers have framework. Given that the finding support dence to all qualified immunity defense to raised in viola- in racial discrimination engaged claims, we address each players’ Protection Clause Equal tion of the immuni- qualified claims in the players’ racial prohibiting Island’s statutes Rhode ty framework. The dis- ethnic intimidation. profiling and grants of independent held on This court reviews court also trict intro- summary judgment had not de novo. Saccucci grounds support their Honda Motor Group, facts to Inc. v. Am. duced material Auto Cir.2010). Co., liabili- municipal We supervisory claims of inferences in make all reasonable ty- must may non-moving party favor of the II. only if “the evidence on record ‘is reverse permit a rational sufficiently open-ended to argu- make two appeal, On of to resolve the issue favor First, the officers factfinder they argue that ments. ” Maymi v. Puerto Rico side.’ qualified immunity for either not entitled to (1st Cir.2008) Auth., 20, 515 F.3d 25 Ports the Fourth Amendment the claims under Amusements, (1) Inc. v. Town Nat’l (quoting a reason- law because privacy and state (1st Dedham, 731, 735 Cir. 43 F.3d would have believed able officer of 1995)). to applies of review This standard authority not have to Marchand did Coach (2) summary judgment grounds on grants of and a reason- players, for his consent immunity. Kelley See v. La- qualified would have believed able officer Cir.2002). (1st Force, 1, 4 When 288 F.3d coerced. Marehand’s consent was overlaps with their Fourth rights and thus Due conceded that their 3. The have allege a to claim was not intended Amendment claim. Process process due of their substantive violation 396 summary judgment analysis go of the no further. That

a moves for defendant immunity, held, qualified aspects: on the has two prong, basis we have (1) in- showing bears the burden of plaintiff legal right both contours of the Quintero fringement right. of a federal de (2) question particular factual vio- 226, Quintero Aponte-Roque, v. 974 F.2d in question lation would have been clear to (1st Cir.1992). 228 Togeth- a official. at 269. reasonable Id. er, ask whether a reason- these two factors Qualified Immunity A. The Doctrine of situated, officer, similarly able would have Qualified immunity “protects believed that his conduct did not violate liability ‘from for civil government officials Harlow, the Constitution. 457 U.S. at their conduct does not damages insofar as 2727; Cronin, 818-19, Philip 102 S.Ct. v. statutory or clearly violate established con (1st Cir.2008). 537 F.3d 34 rights stitutional of which a reasonable ” person would have known.’ Pearson v. qualified immunity The defense Callahan, 555 U.S. designed protect plainly “is ‘all but the (2009) (quoting Harlow v. incompetent knowingly those who vio ” 800, 818, Fitzgerald, 457 U.S. Frederick, late the law.’ Morse v. 551 (1982)). 2727, 73 L.Ed.2d 396 This circuit 393, 429, 127 U.S. S.Ct. 168 L.Ed.2d two-step analysis follows under Pearson (2007) (quoting Briggs, Malley v. 475 discerning whether defendants are enti 335, 341, S.Ct. 89 L.Ed.2d “(1) qualified immunity. tled to askWe (1986)). A finding qualified immuni alleged whether the facts or shown ty is warranted if “a officer reasonable plaintiff out a make violation of a constitu could have believed his conduct was law (2) so, right; tional if whether the Ortiz-Quiñonez, ful.” v. Olmeda 434 F.3d right ‘clearly established’ the time (1st Cir.2006). finding Such of the alleged defendant’s violation.” Mal if warranted “no reasonable officer could Fontanes, donado v. believe” that his conduct was lawful. Groh Cir.2009). Ramirez, S.Ct. Supreme Court has held that it (2004). 1284, 157 L.Ed.2d 1068 Put anoth mandatory is not for courts to follow this way, immunity er will issue when “officers Pearson, two-step sequentially. test competence disagree” of reasonable could 818-21; Maldonado, see also action, on the lawfulness of an but it will A finding right F.3d at 269-270. that a not issue if “it is obvious that no reason clearly was not established at the time of ably competent officer would have conclud alleged violation is sufficient war Malley, ed” that the action was lawful. rant a finding qualified immunity. See 342, 106 475 U.S. at S.Ct. 1092. Pearson, 129 S.Ct. at 822. In some cases prong quali “discussion of the first test; objective This is an it does immunity analysis fied will result ‘in a subjective not look the defendants’ be expenditure judicial substantial of scarce concerning liefs unlawfulness their questions resources on difficult that have Philip, conduct. 537 at A F.3d “de ” no effect on the outcome of the case.’ reasonableness,” objective termination of Maldonado, (quoting 568 F.3d at 270 “ however, require ‘will often examination Pearson, 818). at possessed’ by of the information the defen case, Kelley, these considerations officials.” 288 F.3d at 7 dant prong (quoting Creighton, counsel that we consider the second Anderson v. 483 U.S.

397 635, 641, 97 L.Ed.2d purported S.Ct. 523 Marchand’s consent (1987)). search in this case. The district court primarily focused on objective

This test does not estab players’ argument. first It held that protected by lish that “an official action is failed to introduce a material qualified immunity very unless the action showing fact clearly was established that previously in has been un question held Coach Marchand could not consent Anderson, on lawful.” at 483 U.S. their behalf under the circumstances. Supreme S.Ct. 3034. The Court has made Lopera, 652 at F.Supp.2d 213-16. In so clear that “officials can still be on notice finding, the district court relied on the that their conduct violates established law apparent uncertainty prevailing even in novel factual Su- circumstances.” Pelzer, preme Court doctrine Hope governing v. in loco S.Ct. (2002) parentis searches in 153 L.Ed.2d 666 schools. Id. (citing Unit As to Lanier, players’ argument, ed States v. second U.S. district (1997)). court held that 137 L.Ed.2d 432 Coach Nonethe Marchand’s consent less, apparent voluntary unlawfulness must be in because he “understood the situation,” light pre-existing law at the time of at id. and gave consent Anderson, alleged violation. “after U.S. at careful and deliberate thought,” id. 640, 107 S.Ct. 3034. The content of at 217. clearly The district court did not address settled law and the belief of a reasonable whether this would have been clear to the officer under the ques circumstances are officers under circumstances, nor appropriately tions addressed courts whether it was clearly established that trial, possible. before where See Hunter coercion vitiates consent. 224, 227-28, Bryant, (1991); Cox v. Hai 1. Coach Marchand’s Authority Cir.2004).

ney, 391 F.3d Consent We divide our discussion this case may quickly dispose We players’ between the claims under players’ argument, first which does not Fourth Amendment state privacy law require analysis of the intricacies of and their Equal claims under the Protec- parentis loco doctrine. Under the facts tion Clause and state laws forbidding ra- alleged by players, a reasonable officer cial profiling and ethnic harassment. could have concluded that Coach Mar authority chand had to consent to a search B. Fourth Amendment and State Priva- of his students. The search did take cy Claims place School, High Central Falls but In their claims under the Fourth rather trip away on a from school over statute, privacy Amendment and the state which Coach undisputedly Marchand was players give two grounds charge. to defeat arrived, When the officers First, qualified immunity. they argue that Coach Marchand told them that he had all officers of competence already reasonable conducted his own search of his have believed that Coach Marchand did students. To arrive the conclusion that not have authority consent, to consent on behalf of Coach Marchand could not an of Second, players. they argue that all ficer would question have had to competence officers reasonable authority perform would Marchand’s the first and, extension, have believed that coercion vitiated Coach search Coach Mar- 398

¿hand’s only deny quali- may that we reiterate a we consent to second authority to that no immunity if “it is obvious fied police. the have officer would reasonably competent of reason say that no officer cannot We action was lawful. the concluded” the reached could have competence able 342, If 106 S.Ct. 1092. Malley, 475 U.S. had au Marchand conclusion that Coach competence could of reasonable “officers argue, As the thority to consent. action, the lawfulness of disagree” on recognized limits has Supreme Court immunity. Id. qualified grant must we authority of school parentis the in loco on T.L.O., legal ques a dispose first of 469 U.S. We Jersey New v. officials. the facts to be 733, scope of 336-37, L.Ed.2d 720 tion about 325, S.Ct. argue that The officers (1985). qualified considered. finding a To defeat clearly not es was however, law under Schneckloth must iden immunity, tablished; they contend that authority sufficiently particularized tify officers, any crowd, who created not the have of an act would that the unlawfulness and that the coercion atmosphere coercive all officers of reasonable apparent to been officers from “emanat[e] must Layne, 526 U.S. v. competence. Wilson subjective or any than themselves rather 615, 1692, L.Ed.2d 603, 119 S.Ct. Citing Supreme influence.” outside (1999). make clear Subsequent decisions Connelly, v. decision Colorado Court’s a school has not eliminated that T.L.O. 479 U.S. S.Ct. parentis power to consent official’s loco (1986), that the examina argue the officers Vernonia of his students. See on behalf solely on the tion of coercion must focus Acton, v. 515 U.S. 654- Sch. Dist. 47J requesting perform the officials to acts of (1995). 2386, 132 L.Ed.2d 564 reject argument the search. We identify sufficiently a players do not The reasons, find but nonetheless two different of this court or the particularized decision are reasons that defendants enti for other Mar places Coach Supreme Court qualified immunity. tled authori clearly beyond his chand’s consent they allege. ty the facts under First, Connelly clearly is not established Second, taking limiting Schneckloth.

law Marchand’s Validity 2. The light the facts in the most favorable Consent only plaintiffs, the crowd was clearly It coercion. potential source of argument second players’ established law under Schneckloth validity of Marchand’s con concerning consent, all the validity considering discussion. There is requires sent more must be consid- surrounding circumstances that all of reasonable dispute no officers Schneckloth, ered. that coer competence would have known Vanvliet, 2041; 542 F.3d at 264. under the cion vitiates consent to search court Supreme Court nor this Neither v. Fourth Amendment. See United States Connelly, the rule in deci- has extended (1st Cir.2008). Vanvliet, 259, 264 Process Clause of the sion under the Due Amendment, the Fourth consent Under Amendment, Fourth Fourteenth coerced, by explicit implicit may “not be consent cases. Amendment means, by implied threat or covert force.” Bustamante, claimed that Connelly, the defendant Schneckloth (1973). telling he heard a “voice God” L.Ed.2d 854 because confess, confession in him to considerations relevant As to the other consent, coerced and thus invalid. custody was validity of Coach Marchand’s

399 170-171, Connelly, repeated 479 U.S. at 107 S.Ct. the Court Fourth “[t]he Supreme 515. The Court held defen- Amendment test for a valid consent to “by apart mental condition itself and search is the consent voluntary, dant’s be ‘[vjoluntariness question official coercion” is a of fact from its relation to can- be determined from all the circum- “dispose inquiry not into constitu- ” ” (altera- 40, stances.’ Id. at 117 S.Ct. 417 tional ‘voluntariness’ under the Four- Schneckloth, in original) (quoting tion 412 teenth Amendment’s Due Process Clause. 2041). 248-49, at U.S. 93 S.Ct. 164, Id. at 107 S.Ct. 515. It concluded police activity necessary that “coercive is a We have held that voluntariness of con- that a predicate finding confession is depends sent on considerations including, ” ‘voluntary’ meaning within the of that “(i) to, but not limited age, consenter’s 167, at clause. Id. S.Ct. 515. The education, past experiences, and intelli- Court did not address Fourth Amendment (ii) gence; whether law enforcement offi- searches. cials advised the consenter of his constitu- (iii) consent; tional right to refuse any published are unaware of circuit

We length and conditions of the consenter’s applies court decision that this standard (iv) detention questioning; and law and/or ques- for voluntariness of a confession to enforcement any officials’use of inherently tions of consent under the Fourth Amend- Vanvliet, coercive tactics.” 542 F.3d at Quezada, ment. But see United States v. Schneckloth, 264 n. 2 (citing 412 U.S. at (4th 91-5004, No. 1991 WL 191402 Cir. 2041). 226, 93 S.Ct. 1991) 24, (applying Connelly Oct. to a Fourth Amendment in an unpub- search A consent is coerced when an decision). At lished least two circuits have individual’s “will been ha[s] overborne and expressly declined to do so. United States capacity for self-determination critical (6th Montgomery, 621 F.3d 571-72 ly impaired” such that he does not face an Cir.2010); Dugger, Tukes v. “essentially free unconstrained (11th Cir.1990). n. 516 & 13 This circuit Watson, choice.” United States v. apply requirements has continued to U.S. 46 L.Ed.2d 598 Schneckloth consent to a Fourth (1976) Schneckloth, (quoting 412 U.S. at Vanvliet, search. Amendment See (internal 2041) quotation Moreover, F.3d at 264. we are unaware of omitted). marks It is seldom the case that any lower court decision in this circuit that single will, “a coercive element standing Connelly extends to Fourth Amendment alone, enough be to invalidate a consent.” Pearson, searches. See S.Ct. 823. LaFave, 8.2(b), W. § Search and Seizure (4th ed.2004). at 62 An officer’s failure to Having rejected the defendants’ efforts inform an right individual of her to refuse to narrow the of inquiry, focus we turn to consent to a search necessarily does not clearly the articulation of the established render her consent to such a search Schneckloth, law. the Supreme Court Robinette, 39-40, coerced. See 519 U.S. at held that coercion must be discerned 417. S.Ct. Nor is a consent to a examining surrounding “all the circum- given in police custody necessarily stances,” including “subtly coercive Watson, coerced. 423 U.S. at 96 S.Ct. questions” possibly and “the vulnerable subjective person state of the who con- Schneckloth, sents.” Supreme Two particu- Court cases are Robinette, here, 2041. In larly S.Ct. Ohio v. instructive but are not cited to (1996), us either side. The first is United 400 at 111 S.Ct. nate the encounter.” Id. Drayton, U.S.

States v. 536 “[wjhere (2002). Drayton, 2105, 153 In that the L.Ed.2d 242 2382. The Court held factor, the among place that it Supreme Court held takes is one but the encounter assessing coercion is only factors for relevant the one.” Id. is not requesting the officer the whether the Against this articulation of to consent to the a command “indicated law, the clearly we now turn to established The at 2105. Id. S.Ct. search.” case, reasonable taking facts of this all held, consent, was the Court defendant’s players. in favor of the The inferences offi- of because the product not a coercion have the largely accepted defendants provided him with “no indication cer had purposes version of plaintiffs’ the facts the required to consent to that he was motion, say summary judgment but of this had asked Id. officers search.” The present their different that objected to the the whether defendant of the facts trial. version search, indicating “thus to a reasonable point factual cir- The to three that he or was free to refuse.” person she reasonably in arguing cumstances that no that there had been Id. Court noted competent officer would have concluded force, intimidating application “no of no that consent was valid. Coach Marchand’s movement, force, of overwhelming no show First, they note that ex- Coach Marchand of brandishing blocking no of no weapons, crowd, invoked his fear of the ask- plicitly exits, threat, command, no not even an no officers, they going “what are to do ing tone Id. at authoritative of voice.”4 shortly re- before the officers us[?]” 2105. S.Ct. a quested that Coach Marchand consent to Bostick, The second is Florida v. Second, players. search of the actively note that the officers did not seek (1991). Bostick, addressed Court crowd, only told the disperse but request an to search whether officer’s Third, they note quiet crowd to down. passenger’s bags on a commercial bus con- that the officers in the Central Falls boxed stituted an unlawful seizure under bus, effectively which that it could ensured 431, 111 Fourth Amendment. Id. at S.Ct. police leave until the decided it could is Although 2382. on its face Bostick leave. seized, about whether was defendant Although may Coach Marchand have relevant. The assess- Supreme Court’s subjectively felt coerced ment of whether Bostick consent, the crowd to give his seized the defendant turned on whether and/or immunity qualified is not the focus they had coerced him to consent Rather, the 435-38, inquiry. focus is on the view- It search. Id. S.Ct. 2382. point objectively reasonable officer. appropriate inquiry held that whether, circumstances, say that reasonably compe- under the “a rea- cannot no We person free to decline tent officer would concluded that sonable would feel have requests the officers’ or otherwise termi- Marchand’s consent was valid under Dray- Although language Drayton, derives from analysis (2002). tons of whether a seizure had oc- analysis 153 L.Ed.2d The Court's case, "[i]n curred in that noted that the Court whether consent was defendant’s these, ques- such where the circumstances as invoked the in its coerced factual discussion pervades tion of both the search voluntariness analysis whether had been the defendant analyses inquiries, respective and seizure Id. seized. very United States v. turn on similar facts.” Indeed, clearly Supreme established Court case S.Ct. 820. Coach Marchand allege law. The do not even testified he “debated” telling the offi- warrant, the officers commanded Coach Marchand aget cers to search rejected but search, Instead, to consent to a and the facts do not that option. he concluded that his suggest they players that did. Nor do the role as coach was to ensure first and fore- allege that the officers threatened players force or most that the got safely. home A intimidating acted in an manner during choice options between undesirable does exchange their with Coach Marchand and not itself mean the choice was coerced and Indeed, Coventry the Athletic Director. given the consent involuntary. Like Coach Marchand testified that the officers the officers in Drayton, the posed officers requested politely the search and acted their request question as a and did courteously professionally throughout any showing not make that it could not be exchanges their with him. players The do say refused. We cannot that a reasonably allege not even that the spoke officers competent officer only could have conclud- “an Coach Marchand with authoritative ed that Coach Marchand had no option but they requested tone of voice” when to do a to consent due to coercion. Drayton,

search. See 536 U.S. at The factual players details the empha- S.Ct. 2105. size, addressed within the totality of the Rather, players’ circumstances, the evidence depicts a do not contrary demand a difficult situation in which Coach Mar- conclusion. Coach question, Marchand’s genuine chand faced a choice they us[?],” between im- going “what are to do to would perfect solutions. He could either consent have alerted reasonable officers of his con- require police to the search or the to pur- cerns about may the situation. It also be legal paths sue other if they wished to that reasonable officers recog- would have said, conduct one. As Coach Marchand perceived nized that the threat from the was his decision and he decided “to take crowd influenced Coach Marchand’s deci- road, high mean, to take the safe however, road.” sion. This does not that may Coach Marchand have felt that the all officers of reasonable competence would way best him get his home have concluded that Coach Marchand’s will safely promptly was to submit to a had been overborne. As Coach Marchand search. He knew of the testified, hostile crowd and he refusing considered the search was convinced that did telling not get officers to a warrant. possess any of the purportedly missing As to the officers’ efforts to subdue the By arrived, police items. the time the crowd, by the time the spoke officers Central already Falls bus was late going Marchand, they Coach had restrained the home, and Coach Marchand could have crowd, out, told crowd members to cut it reasonably believed that school adminis- and established a buffer between the trators and players’ parents were or crowd and the may bus. It be that the would soon become worried about their officers would have done better to disperse whereabouts. altogether. mean, crowd This does not however,

These do circumstances not establish that the officers are not entitled that all reasonably competent officers immunity. The officers could have rea- would have concluded that sonably Coach Mar- thought they made clear that chand’s had will been overborne or that they prevent the crowd from harm- capacity for self-determination was critical- ing as of they the time asked Watson, ly impaired. See 423 U.S. at Coach Marchand to consent to the search. 2011). Marchand, cruisers, Like Coach the officers As to tough in a difficult officers faced decision way bus in a that boxed parked officers made situation. Whether the specific they became aware of before point. correct decision not the The record unfolding it. around situation alternatives on whether is silent Racial Equal Protection and State C. the officers importantly, available. More Discrimination Claims convey to Marchand did have players argue until he move cruisers they would not their showing facts that the offi raised material asked agreed to a search. Nor motivated impermissibly cers’ actions were the cruisers. to move in Protection Equal race violation of the concerning in true that a case It is Rhode laws. There Clause and Island state the Su- involuntary person, seizure aof legal over con disputes are whether that the language Court used preme in have rights question tours of the would v. person Kaupp “no choice.” offered a and over been clear to reasonable officer Texas, 626, 631, 123 S.Ct. 538 U.S. have a reasonable whether officer (2003). the circum- L.Ed.2d 814 But 155 recognized rights a violation perceived of cry there were a far from stances in present the factual under circumstances Kaupp faced. In choice Coach Marchand in begin rights case. We in was out of bed an adolescent rousted then factual cir question and assess nothing night wearing middle of the cumstances. underwear, handcuffs, placed in but way a crime to be taken to scene on his Equal Our analysis under headquar- “(1) at law interviewed enforcement whether the Protection Clause looks to “Okay” response in ters. His statement of differently than oth appellant was treated go clearly (2) not situated, to “we need to and talk” was similarly whether ers 631-32, See id. 123 S.Ct. 1843. consent. impermis such difference was based on an here, Nothing happened consideration, of that sort nor as race.” Ma- sible such thought would a reasonable officer have 10 Wakefield, cone v. Town 277 F.3d of (1st Cir.2002). did. plaintiff A that must show a the defendant “selected or reaffirmed facts, plaintiffs’ we On version particular part course of action at least in say that all of reasonable cannot officers of, of, merely in its ad spite because competence would have concluded upon a protected group. verse effects” Marchand’s consent to the search Witzel, Subpoena to re 531 F.3d It enough invalid. is not that Coach (1st Cir.2008) v. (quoting Wayte United Marchand described consent his States, 598, 610, coerced; specific search as has a coercion (1985)) (internal quotation 84 L.Ed.2d legal meaning. Even if Coach Marchand omitted). “in may marks be Such intent felt his consent was coerced within from the the relevant totality ferred specific legal meaning, this would not be Boston, v. City facts.” Donahue asser- sufficient to overcome the officers’ (1st Cir.2004) 7, 14 (quoting F.3d Wash jury qualified immunity. tion While Davis, ington subjec- might find that Coach Marchand (1976)). 2040, 48 L.Ed.2d 597 coerced, tively believed consent was here; analysis look to assert for- that is not the issue we must that this actions the view of the officer. See official that “effectuate reasonable bids (1st discriminatory Clancy, Cir. intention of others.” Barton v. 632 F.3d known crowd, Citing United States v. Yonkers Bd. fail to produce suffi- (2d Educ., Cir.1987), they 837 F.2d 1181 cient evidence of discriminatory intent to argue search that works to defeat qualified immunity. This court has discriminatory effectuate such intentions discriminatory noted that animus seldom Equal voiced a crowd violates the Pro- garb openly” “wears its and more often tection at 1226. Clause. See id. We read comes “masked” “subtle forms.” Soto v. event, Flores, narrowly; any that decision more 103 F.3d 1067 n. 12 Cir.1997) it is insufficient to plaintiffs’ proposi- make (quoting Aman v. Cort Furni- clearly into (3d tion established law. The ture Corp., Rental Cir.1996)). any Nonetheless, do not cite cases from this to survive sum- Supreme court or finding mary Court a vio- judgment, the non-moving party Equal lation of the Protection Clause must make more than “conclusory allega- purposeful tions, the absence of improbable inferences, discrimination or unsupport- part on the of the relevant officials. Ac- ed speculation.” Toomey, Pineda v. (1st cordingly, players Cir.2008). we hold that the have F.3d A non-moving clearly not shown that it is party established that specific must “set forth facts show- acts that effectuate the known ing discrimina- genuine there is a issue for trial.” others, more, tory intent of without violate (quoting Id. 53-54 Anderson v. Liberty Davis, Equal Inc., the Protection Clause. See Lobby, 241-42, 2040; 2505, (1986)). 426 U.S. at Reilly, McGuire v. players The present do not specific such Cir.2004). facts on the issue of racial animus in this clearly Under our equal pro- established case. They point to the alleged racial analysis, tection the players have failed to slurs made the crowd and claim that demonstrate that all officers of reasonable the officers should have ordered the crowd competence would have believed that disperse the away move farther from the request for a search of players pro- the They bus. also claim that the officers duced differential treatment. Given that sought to incite the crowd displaying public had access to the unlocked Cov- some of the players’ iPods phones. and cell room, entry locker players argue testimony But from both Coach Marchand the officers had no more reason to search players and the contradicts the inference them than had to search the crowd. that racial animus motivated the officers. Indeed, they argue that the officers had No officer uttered a racial slur. It even less reason to search the players uncontested that the officers acted courte- because the officers knew Coach ously Marchand and told members of the crowd to already had searched them security stop and a jeering players. at the There is no guard accompanied had them into the lock- evidence that all officers of reasonable er room. These claims belie the undisput- competence would have believed the ed fact that Coach Marchand identified the search was undertaken because of the na- players as the “prime suspects” in origin his dis- tional or race of players. police. cussion with the Even if Coach conclusion, Given this players also merely Marchand convey intended to qualified cannot defeat the officers’ immu- opinion, crowd’s members of the crowd nity against defenses their claims under had not been of theft. accused Rhode Island’s Racial Profiling Prevention Even if we assume that the officers had Act and Ethnic Intimidation Statute. The no more reason players to search the than Racial Profiling Prevention Act covers I. an individual on treatment “disparate the racial basis, part, or in in whole young Hispan- a team appellants, The individual,” with of such status or ethnic Falls, from Central ic soccer R.I. Gen. here. exception not relevant subjected shockingly Rhode Island were Intimi- Ethnic § The 31-21.2-3. Laws by the humiliating conduct disgraceful and “which behavior covers dation Statute alike while their fellow citizens police and intended construed as reasonably be Coventry, high another school visiting because person intimidate [a] to harass or playing After tense Rhode Island.5 § R.I. Laws 9-1- race.” Gen. of his or her team, Coventry’s the Central against game above, 35(a). stated For the reasons by a mob players were surrounded Falls issue of genuine raised a have not animosity casting racial seething of these that satisfies either material fact po- of theft. accusations When false standards. ob- and observed crowd’s lice arrived bus, their they parked struction III. behind the Central in front of and cruisers demonstrate, regretta- record does bus, them with their trapping Falls team’s subject to ethnic bly, that Then, any rather than take antagonists. Coventry Al- inhabitants. animosity from investigate any ac- meaningfully action to not raise suffi- plaintiffs do though crowd, con- which pacify cusations or summary to ciently material facts survive the officers menacingly, simmer tinued to may voters the Town and its judgment, Falls team and the Central questioned recurrences steps prevent to take wish to search sought permission its coach’s of such behavior. belongings. their the district court is judgment that a reasonable My colleagues think affirmed. unaware of the duress officer would be in the team’s inspire would state of affairs THOMPSON, (Dissenting Judge, Circuit however, view, the officers’ my coach. in part). he was Marchand while request of Coach a rea- my colleagues with that agree I angry mob and unable surrounded believed that officer could have sonable little room left depart au- parentis had in loco Coach Marchand subjected He was coercion for choice. to the search of the thority to consent which, though peremptory subtler than equal protection and that their courteous than the command and more My colleagues part and I claims must fail. mob, This hardly plainer. could be irate however, quali- on the issue of company, any give, he could vitiated consent coercion immunity. I cannot sub- fied Because unlawful. rendering subsequent majority’s determination scribe to largely is not The basic factual scenario im- qualified were entitled to the officers my colleagues and disputed by parties they reasonably could munity because all reasonable infer- recognize I and Marchand volun- have believed facts are to be con- ences drawn from the of his stu- tarily consented to the search Maj. atOp. favor.6 dents, plaintiffs’ in the respectfully I dissent. strued brief, note the defendant officers Central Falls 6. In their 5. The record reflects that the go they would were to to trial that if the case bi-lingual. players were alleged spectators dispute both the number of

405 immu- qualified Kelley The officers the defendant officials.” La- invoked v. (1st Cir.2002) Force, 1, My 7 (quoting as a defense to their actions. nity law, 641, Creighton, see colleagues set out the relevant Anderson v. U.S. 396-98, (1987)). accept Maj. Op. which I S.Ct. 97 L.Ed.2d 523 briefly. reprise qualified In granting immunity to the officers, colleagues my analyzed only the II. test, prong permitted by second as “Qualified immunity impor- two balances Maj. Op. Pearson. at 396-97. I Because public offi- tant interests —the need to hold however, deny qualified immunity, I pow- cials accountable when exercise aspects must both analysis. address to shield irresponsibly er and the need harassment, distraction, from officials A. liability they perform when duties their prong qualified The first immuni- Callahan, reasonably.” Pearson v. ty test asks whether a violation of constitu- 223, 129 S.Ct. Raiche, rights actually tional occurred. (2009). 623 F.3d at 35. It has long recog- been immunity, defeat To nized that the Fourth all Amendment bars (1) show that “violated must the officers “subject warrantless searches only to a constitutionally protected right” [their] specifically few ... exceptions” established (2) particular “the was clear- right ... presence cause, such probable as the ly established the time of the violation.” circumstances, exigent or valid consent. Raiche F.3d Pietroski States, See Katz v. United Cir.2010). Further, “in the sec- applying 358 n. n. prong, we ond must consider two subsid- (1967). Accordingly, L.Ed.2d 576 absent (a) issues: iary clarity of law exception such an to the warrant require- violation; general alleged at the time of the ment the officers’ search of the Central (b) clarity applied of the law as improper Falls was a clear simply put, we ask “whether a case”— players’ violation of the right constitutional reasonable defendant’s [officer] to be free from warrantless searches. ‘would have his con- shoes understood that [players’] violated the rely only upon duct constitutional The officers Coach Mar- ” rights.’ Id. at (quoting 35-36 Maldona- chand’s to validate consent their search. Fontanes, (1st course, 269 do v. 568 F.3d Of the consent must have been Cir.2009)). In inquiry, undertaking voluntarily given. Bumper this v. North Car- olina, not subjec- we do consider the defendants’ 391 U.S. 20 (1968). concerning is, tive beliefs the unlawfulness of L.Ed.2d 797 That it must Cronin, Philip product their conduct. See 537 have been the of “duress or coer- (1st Cir.2008). Instead, cion,” Bustamonte, F.3d Schneckloth v. 218, 248, is inquiry objective based on an test —what (1973), intimidation, Burbine,

a reasonable officer would have known. or Moran v. Nonetheless, Id. determination ob- 475 “[a] (1986),

jective require reasonableness ‘will express often L.Ed.2d 410 either im- possessed’ Vanvliet, examination of the plied. information See States v. United watching exchange be well as the as "mob.” plaintiffs' spectators reference a to the as Cir.2008). Because, (1st 259, 264-65 F.3d below, that a reason- I believe

as discussed prong of the analyzing the second ask immunity have known Coach test we must qualified would able officer in the defen- a reasonable officer whether the search of consent to Marchand’s known that would have position dants’ coerced, of the prong the first players was felt coerced into consent- Marchand easily satisfied: immunity test is qualified question, The central ing to search. in the form of actual violation was an there then, would how the reasonable officer is search. an unconstitutional of Mar- the voluntariness have assessed consent. chand’s B. “[vjoluntariness is explained, As we have compre- that turns on question [a] a of fact immu qualified of the prong The second totality of the assessment of the hensive clear, whether nity inquiry asks interaction attending the circumstances factually, that the officers’ legally and both searching and the individual] between [the Raiche, 623 non-consensual. search was Vanvliet, at 264. 542 F.3d officers.” I My colleagues agree at 35. F.3d Threats, intimidation, all and coercion are clearly established under it is totality analyzing factors to consider voluntary consent Amendment that Fourth circumstances, but are not of the suspicionless, war required to validate See, v. Pér e.g., ones. United States only and that “all officers rantless search ez-Montañez, Cir. have known competence 2000). Indeed, considering totality reasonable circumstances, single no coercive vitiates consent to that coercion usually suffice to end the element will Maj. Op. Amendment.” under the Fourth Maj. Op. (citing at 400 W. analysis. See agree presence that the at 398. alsoWe 8.2(b), LaFave, § and Seizure Search open-ended is determined coercion “ (4th ed.2004)). Instead, we must look surrounding considers ‘all the test surrounding circumstances Mar- circumstances,’ including ‘subtly coercive consent and determine whether chand’s possibly and ‘the vulnera police questions’ officer they establish that a reasonable con subjective person state of the who ble it volun- gave have concluded that he could ” Maj. Op. (quoting at 399 sents.’ tarily. Twomey, States v. See United Schneckloth, 229, 93 S.Ct. U.S. Cir.1989) (1st 46, (explaining F.2d 2041). disagree we is whether Where look to “all the circumstances we must case, applied to that particular facts of this securing of the consent” surrounding the law, clearly make out a violation determining the voluntariness there- when rights. Ulti Fourth Amendment players’ of). say that all mately, my colleagues “cannot Moreover, of an indi- the determination con competence,” of reasonable officers consenting in to a vidual’s voluntariness case, this “would fronted with the facts of subjective, fact-intensive en- search is that Coach Marchand’s have concluded a ‘rea- that “turns not on whether deavor Maj. invalid.” consent to the search was posi- in the person [individual’s] sonable’ contrary, I believe that Op. at 402. On the compelled to consent tion would have felt violated, and that players’ rights search, but, request to to a officer’s rather, officer would have concluded [him- a reasonable the [individual] on whether actually compelled felt to consent.” search was unconstitutional. that the ]self Hall, United States v. 969 F.2d 1106 walked down the bus aisle from the back (D.C.Cir.1992); Schneckloth, front, accord 412 to the stopping speak pas- with 2041; sengers along way. Twomey, U.S. Neither the aisle nor the front F.2d at 51. exit was ever Consent is coerced when blocked. Pas- sengers who speak individual's “will declined to been overborne and with the ha[s] officer or who chose to capacity his exit the self-determination critical- bus were allowed to do so. As ly impaired” point ap- the officer he does not proached Drayton’s seat, he “essentially face an showed his free and unconstrained badge and stated that Watson, purpose his on the choice.” United States v. bus was to drugs look for guns. The Drayton officer asked if (1976)(internal omitted). compan- quotation marks ion, Brown, any bags. They had answered Throughout inquiry, we must recall affirmatively, so the officer asked for per- summary that on judgment, when assess- mission to search bags. agreed Brown ing the factual circumstances in which an and no contraband was found. The officer individual consented to a search and the then asked if he could conduct patdown possible assumptions a reasonable officer agreed Brown. He and was arrested might have made the corresponding about patdown after revealed contraband. voluntariness, are required “we to draw The same is true of Drayton. A further every reasonable inference favor of the search revealed that both individuals had nonmoving party” the Central Falls —here taped cocaine between their Dray- shorts. Inc., players. Sylvania, Dennis v. Osram ton and charged Brown were with federal (1st Cir.2008); 549 F.3d see also drug crimes and moved to suppress the McHugh, Vera v. 27 n. 11 ground cocaine on the that their consent to Cir.2010) (recalling duty “our to take the patdown search was invalid. The Su- light facts in the most favorable to the preme Court held that the defendants’ con- nonmoving party summary judgment”). on product sent was not a because, of coercion case, This is a tough my but view the reasons, among other there had been “no tips against qualified immunity. balance threat, command, no [and] even an authoritative tone of voice.” Id. at 122 S.Ct. 2105. law, Having set out the relevant I turn Relying Drayton, on my colleagues analysis. now to the factual place great politeness stock majority justifies its determination which the officers interacted with Coach that Marchand’s consent in large was valid Marchand and the students.7 Without a part doubt, based on Drayton, United States v. had the officers commanded Mar- submit, 153 L.Ed.2d chand to or acted in a threatening, (2002). In Drayton, boorish, three offi- domineering, inap- otherwise part cers boarded a bus as of a propriate way, routine this case would be easier. drug and weapons interdiction. One offi- But the fact that the officers were polite, bus, cer atwas the front of the facing particularly given the all else that was occur- rear, and another officer was at of ring highly scene, the rear at the charged does not bus, facing the forward. The third officer establish that Marchand was not coerced. Though hardly 7. I taking "polite,” describe the deci- players crowd as the do not sion to conduct an invasive search of the appear challenge to this characterization. hostile, jeering, photo- in front of a 408 considering tieularly noting” worth when explained Supreme Court has objec- consent to was coerced just coercion is as whether polite and

subtle browbeating. pas- more the officer had advised the as obvious was that tionable 228, consent). Schneckloth, 412 at 93 S.Ct. right U.S. of his refuse to senger to Furthermore, admonished we have of and failure politeness Like the issue in- beyond and “go appearances to courts to refuse right warn an individual of his to the was a volun- whether consent quire consent, fac- police custody yet is another of waiver tary, intentional understood Watson, 423 worthy tor of consideration. or, contrary, the right, a known on 424, True, “custody at 96 U.S. S.Ct. 820. coercion, deceit, duress product the in to enough has never itself alone been Ber- v. implicit.” actual or United States ... ... consent demonstrate coerced Cir.l970)(in- (1st kowitz, 921, 925 820, search,” at but 423 U.S. omitted). The quotation marks ternal previously have that “sensi- we observed particu- is “beyond appearances” inquiry heightened of coer- tivity possibility though police larly important here: appropriate cion is when a[n] [individual’s] from polite and refrained may have been during custody,” is obtained Unit- consent tone issuing commands in an authoritative Barnett, F.2d 555 ed States 989 voice, they the bus nonetheless blocked Cir.1993). out, in, leaving way no essen- question no There is that Marchand was tially “appeas[ing] masses” who were custody at in the time he consented Maj. players’] heads.” “crying [the their parked to the search.8 The officers (internal marks omit- Op. quotation at 393 players’ in front of cruisers and behind ted); also at 396-98. Ultimate- see infra bus, leaving. preventing them from This can be but one ly, the officers’ demeanor distinguishes Drayton, alone from our case analysis, certainly “not factor our “no 536 blocking which involved of exits.” Bostick, only 501 one.” Florida v. 204, 122 Drayton, at 2105. In U.S. S.Ct. 111 L.Ed.2d S.Ct. 115 U.S. there at though even was an officer (1991). bus, sug- nothing front of the “he said cor- Similarly, although majority ... gest people could not exit and left notify officers’ Mar- rect that the failure to Id. the aisle clear.” at S.Ct. 2105. he to consent is chand that could refuse significantly This is different from the Maj. yet it is dispositive, Op. at present play- facts of the where the case narra- many one more factor completely patrol bus was boxed in ers’ that, militate together, against tive taken Surely, no cars. reasonable officer could immunity in this case. See qualified felt free to plaintiffs have believed Schneckloth, U.S. at leave. (“[T]he to advise the failure course, may rights certainly fac- true that the offi- [a] accused of his Of be [is] assessing trapped the ‘vol- cers with the crowd be evaluated tor[ ] [consent]....”); they see the nature of untariness’ of before aware of [his] controversy fear, Drayton, danger, S.Ct. and of the also Bostick, and concomitant coercion would cause (quoting “par- by doing Maj. Op. factor so. See at 402. But 2382)(explaining that one cruisers, by police Mar- effec- is no need to whether bus was blocked 8. There determine "custody” blocking any plain- legal custody. By tively I exit for the chand was in means of by only to the which the tiffs. refer factual scenario Nevertheless, point: this is beside the the time the Marchand’s fearful inqui- sought permission Marchand’s to ry officers that shows he felt threatened and intim- players search the reasonable officer idated the crowd. That Marchand did aware, certainly would have been that not translate his fear and intimidation of moment, positioning crucial that the crowd into a particularized request— way left the no their cruisers example, by for asking the officers to move Ohio, 1, 21-22, Terry out. their asking cruisers or if any Cf. there were (ex- (1968) options other other than consenting to a plaining analogous context that in evalu- search of his not eliminate —does ating the reasonableness of a search or this factor from consideration. As the Su- seizure, courts look to the state of the facts preme explained, Court has “the crucial “at the moment of the seizure or the whether, test is taking into account all search”). Regardless, Marchand’s fearful the circumstances surrounding the en- inquiry response of the officers in to their counter, conduct would have (“[w]hat request for consent [is crowd] communicated to a person reasonable that us?”) going to do to should have made he liberty was not at to ignore apparent the fear elicited in him being presence go about his business.” Bos- blocked with the crowd. tick, (em- 501 U.S. at 111 S.Ct. 2382 majority that states “[t]he officers added)(internal phasis quotation marks reasonably thought they could have omitted). Any officer should have recog- they made clear [to Marchand] nized that Coach Marchand did not feel at prevent would harming the crowd from liberty to leave. players....” Maj. Op. [his] at 401. This The majority acknowledges that “the incredible-particularly conclusion is in light players’ evidence depicts a difficult situa- of the fact that the officers never respond- tion in which Coach Marchand faced a ed to Marchand’s initial inquiry regarding genuine choice imperfect between solu- addition, the crowd’s behavior. there tions,” Maj. Op. at but nonetheless scene, only

were four officers on the yet decides that “these circumstances do not they responsible controlling for establish ... that Coach Marchand’s will boisterous, angry, irrational crowd of ap- had been capacity overborne or that his proximately fifty sixty people. With a self-determination critically impaired.” was mere six to ten feet buffer between the Id. at 401. support To this conclusion the hostile players, crowd and the I cannot majority therefore, My in further reliance on minds; analyzing colleagues, cannot read no Drayton, testimony that there was note would have known such an officer whether request the was made “an that to search Marchand’s consent was that Coach Maj. Op. voice.” at authoritative tone of coerced, common sense that simply it is omitted). (internal marks quotation to or ob- actually communicated only facts dispositive But tone of cannot be of voice are relevant. by the officer served Capone you A1 said inquiry. the coercion apparently are of two colleagues My and a get gun can more with a kind word though they initially on this issue: minds word; just a mob can than with a kind be de- Marchand’s uncorroborated rely on gun. a just “convincing” as as thought process internal scription of his that Marchand felt officers knew the negate an to coercion he suf- effort They crowd. knew he by threatened the subjec- fered, recognize that his they later the already had to intense capitulated thoughts feelings tive, unexpressed and intimidation coercion exerted the and dismissing when Marchand’s are irrelevant mob, departure his team’s delaying felt that he coerced into con- testimony in a engage about a half-hour to (“It Maj. Op. is not senting. See that he would be futile in knew beforehand that Coach Marchand described enough to crowd’s satisfy order the demands. coerced; ... to the search as his consent Still, practically nothing the officers did to [wjhile jury might find that Mar- a coercion, assuage mitigate or the that fear subjectively believed chand his consent players’ trapped and indeed the bus kept here; that is not the issue we was coerced more than ten crowd for minutes to the view of reasonable must look capitalizing before on Marchand’s weak- officer.”). discussed, previously As I have duplica- ened state consent for a to elicit objective of Marchand’s manifestations doubt, a such tive search. behav- Without amply supported by evi- coercion were recognition contrary general ior is to the analyz- In dence available officers. duty a that officers have protect atmosphere ing the coercive under which See, safety. public public e.g., and consent, gave Marchand I con- McLeod, Bordanaro v. only facts sider those available to reason- (1st Cir.l989)(referencing district court’s the time of able officer the search. case that assertion in excessive force “the primary duty police departments needed, and I If more were doubt preserve policemen protect is to and is, there the officers exacerbated the situa- public property life little to no by “ma[king] quell tion effort to added). peace ”)(emphasis crowd, verbally disperse even as [it] epi- players[,] shouting assailed the racist It is to create artificial inappropriate Lopera thets and accusations theft.” v. dichotomy applied by the coercion between Coventry, F.Supp.2d Town applied the officers and that crowd (D.R.I.2009). control, possibly With the violent as- they adequately failed and then sembly looming, questioned the officers to omit latter from consideration. To Taking totality-of-the-circum- over Marchand. crowd’s word do so subverts the Marchand’s, required elected pursue analysis stances us. this. majority recognizes search of the Central Falls students before Even re- jecting argument mob coer- adequately calming the or even ascer- officers’ cion, what, anything, if had in the of Fourth Amendment taining actually been context “ analysis, from ‘emanat[e] stolen. must any subjec officers themselves rather than impenetrable “an government defense for ” influence,’ majority tive or outside “significant officials” and a that quali risk clearly requires noted established law immunity always fied will attach.” Savard of “all surrounding consideration cir Island, 23, v. Rhode Maj. atOp. (citing cumstances.” 398-99 Cir.2003)(equally divided en banc Schneckloth, 227, 2041, at 93 S.Ct. J.). Bownes, court)(opinion of The Fourth concluding Connelly Colorado v. Amendment precious one of our most 157, 107 479 U.S. 93 L.Ed.2d 473 rights. constitutional We should not so (1986), which held that “coercive comfortably defer to the judgment gov activity necessary predicate is a ernment officials the cost of eviscerating that a finding ‘voluntary’ confession is not right such fundamental of our citizens—a meaning within the of the Due Process right this nation has declared deserves Clause,” id. 107 S.Ct. does Indeed, highest protection. our task in extend to Fourth Amendment consent undertaking qualified immunity inquiry cases). requires contrary. It is after all “an A in reasonable officer the defendants’ attempt to competing balance values: not Marchand, position would have known that only importance damages of a remedy crowd, expressed who fear of the un- protect rights citizens, but also der a significant amount of duress. This ‘the need to protect officials who are re duress was caused both the raucous quired to exercise their discretion and the accusations, threats, hurling menacing mob public related interest in encouraging the epithets and racial and the officers them- vigorous exercise of official authority.’” selves, who blocked Marchand’s team in Fitzgerald, Harlow v. 457 U.S. crowd, with the adequate failed take 73 L.Ed.2d 396 (1982)(quot it, calm disperse measures to and imme- Economou, ing Butz v. 504- diately took its against side Marchand (1978)) upon arriving, despite lacking any rea- (citation omitted). doing soned basis for so. Given the offi- Marchand, exchange cers’ knew With these in taking, concerns mind and known, or at least should objectively have must, every as I inference available that he felt constrained their failure to record in favor of I plaintiffs, cannot disperse the crowd or allow the bus to say that a reasonable officer the defen- leave and that he feared the racial animus dants’ position could have concluded that in the crowd aimed at his players. On Marchand voluntarily consented to the facts, these a reasonable officer would search. The rights Central Falls team’s have known Marchand believed he violated; clear; the violation was had option getting no his students a reasonable officer recog- should have safely home but to consent to their de- nized it. I would vacate the district Moreover, mand for a search. a reason- court’s entry summary judgment and able officer would conclude that Mar- remand for resolution of the factual dis- responsibility safety chand’s for the of his putes upon which the officers’ claim of charges increasing and his tardiness qualified immunity turns. getting them home partic- would make him ularly type vulnerable to this of coercion. ORDER OF COURT May

III. gravely I am Oper- concerned that Pursuant to First Circuit Internal our case treading terribly X(C), law is close creating ating petition Procedure for re- as a treated en banc has also been hearing original rehearing

petition for before having rehearing

panel. petition for panel judges who of

been denied case, for re- petition and the

decided submitted

hearing having en banc been major- judges active this court that the having voted

ity judges banc, it ordered that heard en

case be petition for petition rehearing

rehearing en banc be denied.

TORRUELLA, Judge, Circuit

dissenting without comment.

THOMPSON, dissenting. Judge, Circuit expressed my the reasons dissent

For opinion, I from the panel

from the dissent rehearing Lopera en v.

denial of banc. See Coventry, 640 F.3d 388

Town of J., dissenting in

Cir.2011)(Thompson,

part). America,

UNITED STATES

Appellee,

v. ALVERIO-MELÉNDEZ,

Alexis

Defendant, Appellant. America, Appellee,

United States Gómez-Ortiz, Defendant,

Armando

Appellant. 09-2269,

Nos. 09-2277. Appeals, States Court of

United

First Circuit.

Heard Nov. 2010. April

Decided notes Coach Marchand testi- any fathom how reasonable officer would “ fied at deposition his that he ‘debated’ think that the defendants made clear to telling get warrant, the officers to a search Coach Marchand that he and his rejected but that option,” after go weighing majority unharmed. The points alternatives, Maj. Op. at out that and ulti- convey “the officers did not mately “concluded that his role Coach Marchand that as coach would not move was to their ensure first and agreed cruisers until he to a foremost that [his] search” players got safely” and that home the officers “were ... Id. But Coach [not] asked Maj. thought process, move the cruisers.” Marchand’s Op. at 402. and the ac- case, may very That tions he taking, well be the but so too “debated” are completely is the converse—the officers never irrelevant. Marchand’s testimony giv- offered any nor took action to move their en after the fact and cruisers was not communicat- on their own before soliciting any Coach Mar- ed to officer at the scene of the inci- permission. chand’s hypothetical dent. The reasonable officer

Case Details

Case Name: Lopera v. Town of Coventry

Court Name: Court of Appeals for the First Circuit

Date Published: May 20, 2011

Citation: 640 F.3d 388

Docket Number: 09-2386

Court Abbreviation: 1st Cir.