Norman R. Harrington v. R. Christopher Almy, Etc.

filing limitation thirty-day for basis long after occurred petition a review Application 101(a)(43). of § enactment this case limitation thirty-day prospective. fully

therefore Petitioner, aggravat- sum, because 101(a)(43), meaning of § within felon

ed 241(a)(4)(B) 1101(a)(43)and § 8 U.S.C. § 1251(a)(4)(B) Act, [recodified 8 U.S.C. § ], failed 1251(a)(2)(A)(iii) U.S.C. as 8 § thirty within review petition file his 1105a(a)(l), by 8 U.S.C. required § days peti- review jurisdiction there is Pimental-Romero, tion. See is dismissed. review petition HARRINGTON, R.

Norman Plaintiff, Appellant, ALMY, etc., et Christopher

R. Defendants, Appellees. al.,

No. 91-1409. Appeals, States Court

United

First Circuit. 8, 1991.

Heard Oct. 16, 1992.

Decided Oct. on Denial and Order

Memorandum 21, 1993 Jan. Rehearing Nevertheless, Manager City the demands intrusive highly take a the officer physical test of sexual arousal as a condi- tion of reinstatement. The officer refuses. ultimately

The officer is reinstated without taking Attorney the test but the District prosecute any declines to makes. As a arrest the officer consequence the officer will assigned only desk duties be with no pay customary less desirable of prospect the and overtime work police for officers. brought rights The officer this civil ac- against Attorney District and his tion deputy the against City Manager and the and granted City. the mary judgment. The district court sum- part, finding affirm in We policies of absolute insulate the the claims the officer raises. And we reverse in defendants from part, finding that the claims City Manager City conditioning and the for reemployment physi- on submission to the cal test of sexual arousal cannot be dis- posed summary judgment of on and must evaluated at trial. I May, 1985, acting reports of ne- abuse, glect and Department Maine (“DHS”) Human Services removed four sib- lings (the children”) “Lawrence pa- custody placed rental and them in a foster Warren M. Silver with whom Warren M. later, home. Several months in the fall of Silver, P.A., Me., Bangor, brief, was on for 1985, the children during disclosed been counsel- plaintiff, appellant. ing they had sexually by abused Timothy C. Woodcockwith whom Weath- parents, relatives, their other people and erbee, Woodcock, Woodcock, Burlock & who had lived in frequented or their moth- Me., Bangor, brief, defendants, was on er’s home in Bangor. persons Nine identi- appellees Christopher Almy R. and Michael fied, including parents, the children’s were Roberts. indicted ultimately convicted of sex investigated crimes Police District cases Waterville, Bangor Arey, Me., Vernon I. for de- Department fendants, prosecuted by appellees David 0. Cole and The Attorney County. Penobscot Old Town. The Lawrence alleg- children continued BREYER, Before Judge, Chief ing many people more were involved in TORRUELLA, Judge, Circuit abusing them and other early children. In WOODLOCK,* Judge. District May, plaintiff, City of Old Town Police Officer Norman R. Harrington, be- WOODLOCK, Judge. District persons came one of those accused police A officer suspect allegation is drawn as a children. The was made into widening gyre during testimony a child sex in mid-May abuse of one of neighboring scandal in a municipality. the children The at the trial of one of origi- Attorney County persons District for the nal begins an nine indicted. In May late investigation. police The City officer is sus- children’s foster mother told Police that the Bangor pended by Manager pending children also claimed that a investigation. investigation Senator, results in United States compa- while charges against ny criminal Harrington, the officer. abused them. * Massachusetts, sitting by desig- Of the District of nation. allegations regarding were had December, the children By refusal of the District frustrated individuals, in of 170 in excess

identified Attorney Gener- Attorney’s Office and the nine, persons original addition Harring- provide access to the al’s Office December On them. had abused who 22, investigatory September file. On ton of perpetrators as 1987, child named one attorney 1988, City’s the labor Cole and who Police detectives Bangor two abuse had been having Almy. Almy again met with defendant Apparently working on the case. his to release the investi- reiterated refusal credibility to the as doubts serious that, should Har- gation file and declared against those allegations children’s of the work, refuse to rington return he to would accused, persons of expanding list the on any person of arrested prosecute by the statement cases and the District Attor- Bangor Police Almy Harrington. put asked to Cole criminal sought further ney’s Office writing; Almy provided indicted. was never Harrington charges. by letter dated such a statement October to However, consequences the collateral 19, 1988. allegations children’s from the Harrington investigation by the An were considerable. 4, 1988, Cole ordered Har- On November prompted Services Department of Human psycho- rington to submit to O’Donohue’s Harrington’s allegations resulted in by the As Cole logical or be fired. examination his own custody of loss temporary of in- knew, O’Donohue’s examination then police his suspended he was son,1 and penile plethys- of a administration cluded 20, 1987. May on pay, duties, with albeit Harring- whereby procedure mograph, a Toym’s City Man- 1988, 8, Old On March be assessed profile would ton’s sexual Cole, met with 0. David ager, defendant penis his gauge on while of a placement the he viewed Coun- for Penobscot Attorney the District explicit sexually slides various Almy, to Christopher dis- R. ty, defendant children. Har- and involving both adults Almy investigation. of status cuss the stated test and was take to rington refused investigation Harrington that pretermin- pay. After without suspended although it formally active still was Harrington informed hearing, Cole ation he Almy said anywhere.” going “wasn’t terminated employment would that his by Harrington and about concerns had still 14, if did not 1989 he submit February undergo an ex- Harrington that suggested examination. sexual the officer’s to assess amination profile. persons of a list gave Cole Almy un- to the decision appealed Harrington examination. such an conduct to qualified On March to consider ordered the arbitrator and ion arbitration Harrington 14, 1988, asked Cole re- Harrington be 15, that July on stored ing refused Harrington resigning. pend- status suspended-with-pay to reinstatement. requested and After investigation. completion of in- Cole than O’Do- April other psychologist consulting letter dated By City intended had Harrington that Harrington formed with whom nohue Harrington to he Harrington asked that him but to reinstate notified treating, Cole examination 1989. psychological August “a undergo on reinstated The exami- police officer.” suitability as a he would Harrington to wrote Cole by William conducted to be normal was to being nation assigned you “anticipate affiliated O’Donohue, psychologist a Ph.D. ex- restriction no work with duties patrol had been Maine, who University all apply with restrictions cept those per- of the task one for the suggested City of Old Town.” police officers of Harrington original list. Almy’s sons on for the exami- first arrest office his made Harrington O’Donohue’s went to nation When par- reinstatement, but refused the District May following it. the evaluation prosecute he after learned refused ticipate Attorney’s office testing chief psychological police Harrington the routine result, and was not As a officers. police perform customarily administered not Harrington could agreed thus patrolman a duties all the Town Old City of the The efforts duties. assigned desk Harrington was investigation into its own internal conduct employees. Conse- those claims summary judgment granted District Department of Human Services’ quently, em- Services' Department of Human Harrington complaint Harrington’s before aspect of defendants ployees named as judg- appeal Harrington’s this action. review. us for part a settlement was dismissed Maine, Cir.1990); Campbell v. State (1st II Cir.1986); (1st Siano Jus 787 F.2d appeal in this Presented for consideration Massachusetts, 698 F.2d tices rights are certain civil denied, Cir.), cert. brought against the torney Almy groups two of defendants: interest But the 78 L.Ed.2d defendants, prosecutorial District At- designed to immunity is that protect Deputy Attorney District charging deci in the independence Roberts, defen- — Michael dants, Old Town the decision implicated whether sion—is Manager City of Cole and the so. decline to do prosecution or initiate a Following discovery, these de- Old Town. Grubbs, 1532- Meade v. See summary judgment. fendants moved for Cir.1988) (absolute immunity for (10th memorandum, comprehensive Magis- In a complaint civil or criminal to initiate failure Judge grant trate Cohen recommended the rights viola for civil officials against state pertinent of the defendants’ motions. As tions); Mayor City Council Doe v. here, Magistrate Judge pros- found the the 1137, 1140-41 F.Supp. City, 745 Pocomoke ecutorial defendants were entitled to abso- prose (absolute immunity for (D.Md.1990) immunity pros- lute for their decision not to assault prosecute to sexual cutor's refusal Harrington’s ecute cases and further that cases). any injunctive relief would “antithetical purposes immunity to the With such serves.” recent discus and a more Imbler defendants, respect to the Town Old immunity in Burns v. prosecutorial sion Magistrate Judge City Manager found — -, -, Reed, U.S. qualified immunity entitled to from Cole 1941-42, the Su- the avail- 114 L.Ed.2d 547 Harrington’s actions of has made clear that preme Court provide liability could a Cole basis for a immunity turns on ability of absolute part of the Old Town. Chief ac- analysis prosecutorial of the functional Judge Carter concurred the recom- decision consideration. The tivity under grants mended decision and affirmed the charge is at the core whether or not to summary judgment. functions the courts have prosecutorial the sought guessing insulate from second to III prosecutor “A is through litigation. civil agree We the claims Har judgment duty to exercise his best bound rington press against continues to District bring and deciding which suits to both in in Attorney Almy and Deputy District Attor conducting public in court. The them ney Roberts, prosecutor principally re prosecutor’s office would suf- trust of the fer if he were constrained sponsible for conducting prosecutions of making every allegations, Lawrence children’s are un consequences in terms of decision able to overcome the immunity absolute liability in a suit for dam- potential his own ages.” prosecutor afforded a of judicial review Imbler, 424 96 S.Ct. prosecutorial prosecutor decisions. A is (emphasis supplied). at 992 entitled to absolute for conduct proper role sensitive to the Those most associated with prosecu the initiation of a long recognized that prosecutor have tion. 431, Pachtman, Imbler prosecu- discretionary decision a the crucial 984, 996, 47 L.Ed.2d 128 judicial system is whether tor makes (1976). The conduct of the District Attor described charge. to As Justice Jackson ney’s complained Office of here—“District speech States At- the issue in a to United Attorney Almy’s refusal prosecute to cases Attorney General: torneys when he was brought by Officer Harrington”2 —is difficulties of the greatest of the squarely One scope within the of that immunity. cases, sure, pick he must position To is that this action—or accurately more investi- prosecutor can even refusal to cate for a cutors. an action because act—is not the customary predi in which he receives rights gate all the cases civil claim prose every prosecutor What Ordinarily complainant complaints ... in such person required to do is to select and to select practically is a who claims to have improperly charged by prosecution prosecutor. a the cases those in which See, e.g., most Celia v. the offense is the O’Malley, 918 F.2d Harrington’s actions, appeal statement of any issues on including confront other advice to Attorney only District Cole, defendant address- City Manager undertaken the District prosecute es "the brought by refusal to cases Attorney regarding Harrington. Harrington.” Officer Accordingly, we do not of crimi- glare public “the citizen a pose greatest harm the public flagrant, insure only would accusation” nal decision most certain. proof the by consider- charge is made Prosecutor,” 24 Jackson, Federal “The “sense appropriate irrelevant ations of (1940). The Soc’y 18 J.Am. Judicature im- The absolute responsibility.” charging generally process selection pre- prevent designed munity doctrine credibili- issues of witness on delicate turns a result. cisely such noted ty. “[t]he The Imbler applica Harrington attempts avoid cases fre- in criminal veracity of witnesses immunity by of absolute tion after before and subject doubt quently apart from his seeking injunctive relief ham- prosecutors If were they testify ... injunctive But relief damage claims. as to the exercising judgment pered in their prosecuto- do violence setting would about concern use of such witnesses directly than independence even more rial triers of liability, the resulting personal damage a action. prospect of would denied cases often be fact in criminal to the the Moreover, not relief familiar it is 426, evidence.” relevant system, In the federal federal courts. at 993. judicial proscribes powers separation Imbler, a discredited where The facts of commence prosecutor direction action, rights spawned civil prosecution generally, prosecution. See particular in of the decision question terms frame the (5th Cox, F.2d 167 342 v. States United availability of But, given the charge. to 935, denied, Cir.) (en banc), 381 cert. it be- charge, to immunity for the decision (1965). 1767, Even 14 L.Ed.2d 700 symmetri- that S.Ct. important 85 even more comes cal not to context, where the for the decision available the administrative protection in asymmetrical subject The availabil- to charge. judicial review presumption of prosecutions un- only for ity of exception, Pre very narrow Citizens foregone should for 402, but not those dertaken Volpe, 401 U.S. Park v. serve Overton prosecutor induces a factor which not to choose tions tion does abe 820-21, 136 814, 28 L.Ed.2d 410, 91 S.Ct. prosecu- prosecu- questionable to initiate only upon (1971) may be overcome and upon witnesses relying evidence,” Abbott convincing “clear and in order to credible not believe 136, Gardner, 387 U.S. Laboratories declining prosecute. liability for avoid 1507, 18 L.Ed.2d 140-41, 87 S.Ct. only exacer- could Any symmetry of lack to undertake (1967), decision not 681 by unfound- “concern harassment bate found unre- has been actions enforcement of a deflection litigation ed prosecutor’s duties, would cause Administrative the federal under viewable public energies from his 470 Chaney, Heckler v. Act. Procedure would possibility he 714 L.Ed.2d 84 105 exercising of instead shade his decisions judgment independence required of implicated here Principles federalism public trust.” Id. fed reluctance the traditional reinforce guess prosecutorial second courts to eral Supreme has identified The We proceedings. not to initiate decisions language. eloquent public in trust that the devel in other contexts noted have citizen private life Between abstention,” a feder “Younger opment of accusa- glare of criminal public and the designed to restrict feder court doctrine al state prosecutor. That tion stands judi state ongoing supervision court al employ the full power has the official of the federal “arises out proceedings, cial scrutinizing in machinery of the state with a to interfere state’s hesitance courts’ if a defen- Even any given individual. its own to enforce law faith efforts good im- acquitted, ultimately forced dant is Shop v. Ad Duty Free own courts.” its investigation and ad- in criminal mersion Terrenos, De wrenching disruption of ministracion a judication is Cir.1989). hesitance is That reason, must 1182 appropriate For this we everyday life. in this equitable consideration who those wield have assurance prosecutorial confront a solely by their guided We do power will be case. charging decision turns responsibility. sense which policy distinctions, a example, suspect class et ex rel. Young States Vuitton v. United prosecute not to prosecutor’s determination S.A., 481 U.S. L.Ed.2d fils police officers. brought by black cases (1987). Exposing a the over implicate policy a Such exer- damage actions for prosecutor to civil which led riding concerns constitutional to ex- judgment whether cising independent L.Ed.2d provides enactment of Maine highly 1983 and would no a doubt § specific mechanism require prosecu- to evaluate a permits balancing competing different tor’s work. Rather, judicial Maine policies. pro- here we face an individu- ceeding to be commenced a District judgment alized regarding whether Attorney, upon complaint by Attorney presence particular of a policeman as inves- General, to determine whether the District tigating officer or otherwise as a witness Attorney “performing the duties of of- compromise would burden or tion’s prosecu- fice faithfully efficiently” and to re- judgment cases.3 The may be move him if he is not. Me.Rev.Stat.Ann. wrongheaded, make free from prosecutor’s but it is the 30-A, (West 1991). tit. clearly It is damage injunc- actions or § power matter within the of the Justices of oversight tive the federal court. Supreme Maine’s Judicial Court com- recognize We that our caselaw has re- plaint by Attorney General to deter- judi- ferred to “the checks inherent cial mine whether the decision of the defen- process, including judicial supervision prosecute dants not to Harrington’s cases and the adversarial nature of trial [which] performance amounts to a ful to the office. courts less than faith- prosecutorial reduce the likelihood of abuse Any authority the federal mitigat[e] any damages ... [and] may have exercise an unfamiliar might result.” O’Malley, Celia v. power supervise prose- decisions not to fully pres- at 1020. Those checks are not ent here because tempered cute must by equitable re- very nature the its recognition straint in of these state court charge decision not to involved means that the sion will not be when powers supervision. deci- put in the framework brief, we conclude that the absolute testing judicial supervision adversarial at trial or on immunity prosecutors enjoy from civil ac- appeal. availability arising tions charging out of their decisions trial, safeguards arise from how- any damages bars ton Harring- for the claims ever, necessary preconditions are not to presents Moreover, to us. respect for prosecutorial immunity. Indeed, such safe- guards were not principles prosecutorial the indepen- of mentioned the even when dence support which such immunity, cou- Supreme explained Imbler “that pled sensitivity separation with to pow- of immunity prosecutors liability the of from ers concerns and the reluctance of federal in suits under 1983 does not the leave § courts to interfere pro- with state criminal public powerless to deter misconduct or to cess, against any counsel injunctive relief punish that which occurs.” 424 at in these Accordingly, circumstances. we 428-29, 96 at 994. Rather in S.Ct. Imbler affirm grant the district court’s of sum- the prosecution Court referred to criminal mary judgment prosecutorial to the defen- professional discipline or of the miscreant Almy dants and Roberts. prosecutor readily as the safe- available guards against constitutional abuse. Id. at 429, 96 S.Ct. at 994. Those are checks IV Moreover, available here as well. unlike judicial system pow- appeal the federal where the On Harrington has narrowed the er of the term are prosecutor’s courts to control a pressing he is against City Manager limited, strictly Morrison v. Cole and the of Old Town to ques- the cf Olson, 654, 2597, 487 U.S. 108 S.Ct. 101 tions whether the “mandate Harring- that Harrington distinguish determining prosecutions attempts typical which will best 3. to the of case, prosecutor may in which an accused sues a Whatever be the serve the interest. matter, improper charging single in a from the prosecutor's immunity a when limitations on case, prosecutor instant in which the refuses to investiga acting in his role "as administrator or pursue involving police all matters a officer officer,” Pachtman, tive Imbler v. investigated sexually abusive conduct. Ac- (1976) n. S.Ct. at & n. 33 430-31 & 96 996 cording plaintiff, latter decision is to the the - Reed, (reserving question); on Burns v. cf. beyond and thus the "administrative” nature -,-, prosecutorial immunity. reject of We this reach (1991) (declining 114 L.Ed.2d to extend ab 547 typical rhetorical distinction. In both the case immunity prosecutorial to function of solute us, prosecutor's and the one now before the giving police), to those limitations are advice directly pros- the initiation decision relates to of inapplicable where the defen here precise decision-making ecutions—the zone of activity complained is at the heart of dant’s of Supreme placed the Court has at the center of for the State." what it means to "advocate cases, pros- the doctrine. In both the Imbler, n. S.Ct. at n. 424 U.S. 431 & 96 996 fulfilling ecutor is his role as the officer in the judicial process charged responsibility with the

43 has fitness psychological employee’s was the plethysmograph” penile undergo a ton Smith, 842 Daury v. question. privacy put Harrington’s been of “a violation either exami Cir.1988)(psychiatric (1st Harrington’s 14 of F.2d nation); Lyons violation “a or interest” 7, 10 Sullivan, F.2d 602 v. threshold The process.” due substantive question examination), de cert. could fact Cir.) (psychiatric finder (1st a is whether 159, 62 protected constitutionally 100 nied, 444 U.S. a that conclude man- alle the serious (1979). Given unexecuted the L.Ed.2d violated was right inap arising penile out to a submit of misconduct gations date find right activity, we can if such a only It is sexual propriate privacy plethysmograph. to the the evaluate decision we right violated implicated has ultimate Cole, whether the information (i) to development as require questions: the de apparently is clearly established plethysmograph right was City, uncovering (ii) goal violation; provide. signed to time whether Harring pursuant regarding was violation information personal defen municipal admin- one profile not practice or sexual policy ton’s some pursuing barred were dants istration. context. plethys- note we outset theAt administered actually never was mograph Process Due B. Substantive relevant perhaps While Harrington. however, obtaining damages, goal of question In contrast on sexual Harrington’s not administered regarding was test information fact us. im here before chosen question means specific material profile, not Town were of constitutional City of Old branch separate plicate Cole employment process. Harrington’s due of substantive condition those rights: free rights. pro due his constitutional substantive characterized a waiver We have (1st 556, 568 a state Snow, on what limits “imposing] regardless cess Blackburn pro not condition may procedural (“Government of what Cir.1985). may do Warish, ... benefit Pittsley v. gratuitous provided.” even tection access constitutional aof sacrifice (1st Cir.), denied, upon right”); 927 F.2d U.S. cert. - Ochs, F.2d Har- 226, 116 L.Ed.2d v. Thus, putting -, Hall also Cir.1987). see pro due a substantive support (1991). To employ- ei establish Harrington must claim, between the choice rington to cess suf plethysmograph were actions free of being defendant’s ther conscience,” quot a constitu- id. establish “shock the sufficient be ficient ing would 165, to submit 342 U.S. one requiring California, if v. violation Rochin tional to a (1952), 183 209, involve L.Ed. 205, itself 96 plethysmograph 172, S.Ct. 72 liberty we Accordingly, identified of an violation. “a violation or were constitutional turn due requiring by protected question whether interest property or sub- is Harrington to here interest That such Id. employee clause.” public process right vio- a constitutional Amendment considered Fourth may be mit the familiar sei or searches unwarranted from lation. free ac state protected zures which Rights Privacy A. clause process through the due tion in the developed fully Colora Although not v. Amendment. Fourteenth do, Wolf pri 1359, the distinctive 1360- appears briefing, it S.Ct. 25, 69 338 is the Harrington by (1949). asserted vacy claim 1782 61, L.Ed. 93 gathering from free right ap alternative these Both regarding information personal highly analy process due substantive proaches context In the fitness. psychological undertak action on state focussed sis have recognized we have jobs, sensitive of an individu manipulations ing unwanted such to condition right government’s pro- a due found Rochin body.4 While al’s if evaluation psychological on employment appeal and styled his Cir.1983), 4, has 8 Taylor, v. Clark 4. due by which substantive precise tests the "alternative required to locate were not we Warish, examined,” Pittsley 927 "right v. not to process is plaintiffs constitutional aof source things done to dangerous have unwanted (1st Cir.), denied, U.S.-, 6 cert. - jury acceptable find- we believe body" and treated his ings L.Ed.2d liability for create could clarity such action achieved here is best analytical that framing pri- rights of “denying plaintiffs constitutional has there issue as whether from unreason- vacy, process and freedom due rights. process due of substantive denial the manner Given able searches." cess violation when was procedure evidence extracted would not be considered offen- from the body aof criminal defendant sive even the most delicate and is rou- against his tine, will by means of a stomach it will be likely less to involve a consti- pump, the courts have not established a tutional By contrast, violation. nonroutine per se bar to unwanted manipulative intrusions or on bodily intrusions integrity manipulations of a body by citizen’s agents be subject will heightened scrutiny to Thus, state. the Supreme determine, Court alia, has inter whether there are upheld against a process due substantive less intrusive alternatives available. challenge hypodermic the use aof needle to A reasonable finder of fact con- could extract blood an unconscious accident clude requiring the plethysmograph victim order to test for alcohol. Brei involves a substantive process due viola- thaupt Abram, 352 U.S. 77 S.Ct. procedure, tion. The from all that appears, 408, 1 (1957). L.Ed.2d 448 holding This hardly routine. One does have was reaffirmed in Schmerber v. Califor cultivate particularly delicate sensibilities nia, 1826, 1830, to believe degrading process of having L.Ed.2d Critical to the Brei- a strain gauge strapped to an individual’s thaupt court’s determination was the un genitals sexually explicit while pictures are derstanding that “the test as administered displayed in an effort determine his sex- here would not be considered offensive patterns. ual arousal procedure in- even the most delicate” and pro involved a bodily volves manipulation of the most inti- cedure which “has become routine in our mate sort. There has been no showing everyday life.” 352 U.S. at 77 S.Ct. at regarding procedure’s and, reliability light of other psychological evaluative tools recently available,

More revisited the lim there has been no demonstration itations on state intrusions into an other individu less intrusive means of obtaining body al’s of a context Fourth Amend relevant information are not sufficient. challenge surgical procedure to a un It is at point that it impor- becomes general der a designed anesthetic to re tant to emphasize we review this case after move a bullet lodged in the chest grant of summary judgment. The rec- v, robbery armed Lee, suspect. Winston ord parties limited. The have not intro- 753, 105 84 L.Ed.2d 662 duced evidence fully detailing the nature (1985). Acknowledging that “Schmerber the plethysmograph procedure, accep- its recognized society’s judgment that blood tance in the psychological community and tests do not an unduly constitute extensive precise impacts upon those who must imposition on an personal individual’s priva submit to it. Whether or not the Magis- cy bodily integrity,” id. 105 trate Judge substantially understated mat- S.Ct. at the Court nevertheless found ters when he merely found that in- Cole’s surgical procedure at issue Winston sistence on the plethysmograph evaluation imposition too intrusive an on the suspect’s “may have questionable,” it is clear privacy interests in the absence of a com questions that such as arise its use pelling for particular need method of must be by answered a finder of fact be- gathering 766, 105 evidence. Id. S.Ct. at fore a definitive determination can be made 1619-20. under process substantive due analysis evolving case governing law Harrington’s whether unwant- rights constitutional bodily ed or manipulations intrusions by has were violated being put to the choice of weighed several relevant considerations. submitting a plethysmograph or losing that, Once it is job. established here, as

state is entitled to the information the bodi- ly designed obtain, intrusion V means used will be by measured its reason- light ableness in of the need to obtain the The summary judgment granted in favor evidence way. in this degree To the may of Cole not be merely reversed on our

45 plethysmograph, acceptability among its genuine issues there are determination mental professionals health and the propriety regarding fact of material procedures—the and alternative evaluative in this context. So plethysmograph principle that summary judgment remains “does not violate conduct long Cole’s appropriate not the vehicle for their reso- statutory or constitu clearly established Consequently, summary lution. person judg- rights a reasonable of which tional granted must known,” Fitzgerald, Cole be reversed. Harlow v. have 2727, 2738, 800, 818, 73 102 S.Ct. (1982), quali he is entitled L.Ed.2d 396 VI to be considered immunity. In order fied by we have determined that un- Because established,” of the “clearly the “contours seeking successfully Harrington to have a clear that rea sufficiently right must be testing, plethysmograph to a Cole submit would understand sonable official can be found have violated the substan- right.” doing he is violates what process rights tive due 635, 640, 483 Creighton, v. U.S. Anderson must appeal, asserts on we confront 3034, 3039, 97 L.Ed.2d 523 question whether there is a to find basis recently noted fact that As we have “[t]he City Magistrate of Old Town liable. The pierce enough a violation occurred is not Judge City found the not because liable qualified immunity the shield of 'unless it “Harrington does adduce sufficient evi- is further demonstrated that defen [the pursuant dence that Cole acted to official conduct was unreasonable under dants’] , policy disagree. or custom.” We Here applicable v. standard.’ Davis Sherer deposition “my Cole testified in that it was 3012, 3017, U.S. 190 S.Ct. 82 468 [104 understanding I authority had the (1984); L.Ed.2d accord Amsden v. 139] my position issue this order ... [b]ased Moran, (1st Cir.1990) 751 City Manager City as the for the of Old U.S.-], 111 cert. denied S.Ct. 713 [— Harrington’s employ- Town” to condition (1991).” Quintero L.Ed.2d de [112 702] submitting ment on plethysmograph. Quintero Aponte-Roque, v. 974 (1st Cir.1992). municipality responsi While a ' only represent This is the unusual case in which the its policy ble acts which ' question right custom, Department whether a constitutional has or Monell Social ¡ question Services, been violated and whether right clearly 2037-38, single was established are es- 56 L.Ed.2d 611 a j sentially clearly It policy pur coincident. was estab- decision can be a for Monell . Cincinnati, in- poses, lished of 1989 that an unreasonable Pembaur v. bodily integri- 469, 481, 1292, 1299, trusion the state ty (1986) (majority), of an individual would be a if it violation L.Ed.2d 452 is made process, rights. charged due substantive Whether the official with the final re was a sponsibility making intrusion here unreasonable is it under local law. Pembaur, matter for finder fact trial. This 106 S.Ct. at U.S. at summary judg- (1986) on the (plurality). cannot decided 1299-01 Cole could be only ment record before us. found to be the decision- finder fact “[W]hen authority of re possessing fact finder’s determination the conflict- maker final with ing underlying spect employment evidence as to the historical determinations such permit immunity testing type psychological facts will resolution of the of neces summary judgment sary reappointment po ... to permit issue ceases to be of those allega appropriate Prokey subject vehicle.” lice to sexual abuse Wat- officers (1st Cir.1991). Thus, kins, liability may While tions. attach to underlying genuinely “by City antecedent facts of virtue of unconstitu Old Town city dispute regarding availability part in here on the of the tional action taken not, strictly speaking, manager, are if he indeed had the final authori histori- go Harrington’s reemploy- ty cal—but rather the nature to” condition upon submitting plethysmo- process due judicial law a matter of graph. 544, City Belfast, Small v. 796 F.2d caprice. The of the faculties Due Pro- (1st Cir.1986). also See Cordero cess may Clause vague, indefinite and Mendez, v. DeJesus 7-8 but the mode of their ascertainment Cir.1989). There genuine the least a not cess of In pro- self-willed. each case “due issue of regarding material fact Cole’s au- requires law” an evaluation based thority in regard this and consequently the on a disinterested inquiry pursued in the summary judgment granted City science, Old spirit of on a balanced order of Town must be reversed. exactly stated, facts and fairly on the detached claims, conflicting consideration of judgment on a not ad hoc and VII episodic duly but reconciling mindful of For the the needs fully continuity set forth more both of reasons and of above, change in against progressive we find society. the claims the de- Almy fendants by prin- Roberts barred Id. at 72 S.Ct. at 209. ciples of immunity activi- Supreme The rely Court has continued to ty; privacy and we find the and substan- upon in this development area full record process tive due the defen- predicate judgment. as a approach That City dants Cole and the of Old Town must was illustrated in the analy- fact-intensive be determined at Accordingly, trial. provided by sis court its most recent judgment The of the district court is treatment of legal inqui- the “multifaceted ry that the court must undertake” ad- as to Almy defendants Affirmed dressing problem nonconsensual ma- Roberts, and; nipulations of an body. individual’s Win- Reversed as to defendants Cole City Lee, ston v. 764 n. of Old Town. n. 84 L.Ed.2d 662 On Rehearing For Petition The task of the fact finder as to liability upon this case will remand be two fold. MEMORANDUM AND ORDER First, it must be determined whether the

January use of a plethysmograph in this setting would have been a constitutionally imper- PER CURIAM. missible intrusion plaintiff’s bodi- ly integrity. Second, if the answer to the petition rehearing, their defen- question first “Yes,” the fact finder dant Cole and defendant of Old must also question answer the whether a Town assert that “this Court finessed the public official in defendant position Cole’s issue whether or not a ‘clearly there was could reasonably have believed when right established’ he constitutional made submission to the plethysmograph might have been violated ...” Petition at condition of reemployment that hand, this sleight 10. Rather than such impermissible be an contend, intrusion the defendants “this Court should Har- rington’s bodily integrity. only It is itself have determined as a matter of if law both questions are answered affirmatively whether or not the actions of Defendant that' defendant Cole can Cole, case, be held on the facts of this liable. objec- were Those answers the fact finder tively thereby entitling will ultimately, reasonable Cole to course, subject judicial summary judgment supervision (emphasis ...” Id. on matters of law. original) problem argu However, with defendants’ the record assembled on the summary judgment ment is that the motion motion for summary judgment was insuffi- permit record in this case did not cient provide unusual an adequate basis for an- swering the District Court or this Court to make questions these point “as a such a determination as a matter of law. matter of law.” The jurisprudence of non- pro The fountainhead of substantive due consensual bodily manipulations has devel- oped jurisprudence applied cess to unwanted cautiously and only after full under- manipulations body, standing individual’s Ro of the underlying facts and rele- California, 342 vant chin v. 205, context. In the absence of such devel- opment 96 L.Ed. 183 cautioned here judgment on the underlying questions making premature. rehearing petition Accordingly, hereby defendants/appellees

Denied. RIORDAN; Fox, Jane

John W.

Plaintiffs-Appellees, FIRE

NATIONWIDE MUTUAL COMPANY,

INSURANCE

Defendant-Appellant. 92-7160.

No. Docket Appeals, Court of

United States Circuit.

Second Aug.

Argued 2, 1992.

Decided Oct.

Case Details

Case Name: Norman R. Harrington v. R. Christopher Almy, Etc.

Court Name: Court of Appeals for the First Circuit

Date Published: Jan 21, 1993

Citation: 977 F.2d 37

Docket Number: 91-1409

Court Abbreviation: 1st Cir.