748 F.

2d 715

James R. BRIGGS and Louisa Briggs, Plaintiffs, Appellants,

v.
Edward MALLEY, et al., Defendants, Appellees.
No. 84-1449.

United States Court of Appeals,

First Circuit.
Argued Sept. 13, 1984.
Decided Nov. 19, 1984.

John S. Foley, Providence, R.I., with whom Decof & Grimm, Providence,
R.I., was on brief for plaintiffs, appellants.
Faith A. LaSalle, Sp. Asst. Atty. Gen., Providence, R.I., with whom
Dennis J. Roberts, II, Atty. Gen., Providence, R.I., was on brief for
defendants, appellees.
Before BOWNES, Circuit Judge, ALDRICH and SKELTON,* Senior
Circuit Judges.
BOWNES, Circuit Judge.

Plaintiffs James and Louisa Briggs were arrested in March of 1981 under an
arrest warrant which was obviously lacking in probable cause. The issue before
us is whether the police officer who submitted the inadequate affidavit upon
which the arrest warrant was based can be held liable for negligence under 42
U.S.C. Sec. 1983 for damages resulting from the arrest. The district court
directed a verdict for the officer, holding that the issuance of the arrest warrant
by a judge insulated the officer from liability.

The arrest of Mr. and Mrs. Briggs was triggered by the interception of a
telephone call on a court-authorized wiretap in connection with a narcotics
investigation of one Paul Driscoll, who was a friend of the Briggs' daughter,
Jamie. The police officer on duty noted the substance of this call on a call log.
The call log stated that the caller identified himself as "Dr. Shogun" and that
there was a general conversation about a party the preceding night. The call log

indicated that "caller says I can't believe I was token [sic] in front of Jimmy
Briggs--caller states he passed it to Louisa--caller and Paul talk about another
party going down tonight--Paul says Nancy was sitting in his lap rolling her
thing ...." The investigation was being directed by defendant Edward Malley,
who at that time held the rank of corporal with the Rhode Island State Police
and was assigned to narcotics duty in the detective division. Malley was not
present when the call from "Dr. Shogun" was intercepted, but discussed the
drug terminology with his partner, Detective Youngsma. They determined that
the call was incriminating because "token" is drug parlance for smoking
marijuana and "rolling her thing" means rolling a marijuana cigarette. After the
wiretap was shut down, Malley prepared affidavits for the issuance of arrest
warrants for twenty-two people based upon the information obtained from the
tap on Driscoll's phone.
3

Based solely on the conversation related above, Malley prepared an affidavit

and arrest warrant form and a district court felony complaint form for both
James and Louisa Briggs. The crime charged in the felony complaint was
conspiracy to possess marijuana, a misdemeanor.1 After preparing the affidavit,
arrest warrant and complaint forms, Malley then appeared before a judge of the
Rhode Island District Court, who issued arrest warrants for James and Louisa
Briggs as well as twenty other individuals. Plaintiffs were arrested about
twenty-three days later in the early hours of the morning. They were taken to
the state police barracks and later that day to court for arraignment. The fact of
their arrest was published in the local and statewide newspapers. The charges
against plaintiffs were subsequently dropped because the grand jury to which
the charges were presented returned no true bill.

Plaintiffs commenced an action under 42 U.S.C. Sec. 1983 against both

Corporal Malley and the State of Rhode Island alleging fourth and fourteenth
amendment violations and additionally filed state law claims of malicious
prosecution, defamation and false imprisonment against the same defendants.
The case was tried before a jury in February of 1984 and, at the close of
plaintiff's evidence, both defendants moved for a directed verdict. The trial
judge delivered an opinion from the bench in late February granting the motion
as to both defendants. Plaintiffs filed a motion for a new trial, bringing to the
trial judge's attention this court's February 6, 1984 decision in B.C.R. Transport
Co., Inc. v. Fontaine, 727 F.2d 7 (1st Cir.1984). The district court, in a second
opinion, denied plaintiff's motion for a new trial. Plaintiffs have appealed from
the judgment in favor of Malley, but not the judgment in favor of Rhode Island.

In its initial opinion directing a verdict for Corporal Malley, the district court
relied upon two lines of precedent. Under the First Circuit cases of Madison v.

Manter, 441 F.2d 537 (1st Cir.1971), and Stadium Films, Inc. v. Baillargeon,
542 F.2d 577 (1st Cir.1976), the district court found police officers to be
immune from liability for negligently seeking warrants without probable cause.
In both these cases, we had applied the state law of privilege or immunity
which required malice before a police officer could be held liable for improper
prosecution. Madison, 441 F.2d at 538; Stadium Films, 542 F.2d at 578.
Acknowledging, however, that this approach may have been undercut by recent
developments in good faith immunity set out in Harlow v. Fitzgerald, 457 U.S.
800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the district court turned to Fifth
Circuit precedent because it provided a more solid basis for the same result. In
Rodriquez v. Ritchey, 556 F.2d 1185 (5th Cir.1977), cert. denied, 434 U.S.
1047, 98 S.Ct. 894, 54 L.Ed.2d 799 (1978), and Smith v. Gonzales, 670 F.2d
522 (5th Cir.1982), cert. denied, 459 U.S. 1005, 103 S.Ct. 361, 74 L.Ed.2d 397
(1982), the Fifth Circuit held that when "the facts supporting an arrest are put
before an intermediary, such as a Magistrate or Grand Jury, the intermediary's
decision to issue a warrant or return an indictment, breaks the causal chain and
insulates the initiating party." Smith, 670 F.2d at 526. Thus, regardless of any
developments in immunity law allowing negligent conduct to ground Sec. 1983
liability, the district court found that the approval of the arrest warrant by the
judge removed any causal connection between the acts of the police officer and
the damage suffered by the plaintiffs due to their improper arrest.
6

In its second opinion, reconsidering its decision in light of B.R.C. Transport

Co., Inc. v. Fontaine, 727 F.2d 7, the district court indicated that it did not find
B.R.C. to be a decisive break with past First Circuit precedent. In B.R.C.
Transport Co., Inc. v. Fontaine, we upheld a jury verdict awarding damages
against a police officer for a search and seizure which violated the fourth
amendment. We held that where a police officer obtained a search and arrest
warrant based upon information furnished by a complainant-victim, the
presence of probable cause was still an issue for the trier of fact, as was the
issue of the officer's reasonableness under the Harlow immunity standard. In a
footnote, we rejected the officer's argument that the magistrate's approval of the
warrant prevented a jury from reaching behind this approval and determining
probable cause: "[T]his judicial imprimatur is [not] an impregnable shield
against any attack on the sufficiency of the underlying affidavit." 727 F.2d at
10 n. 1. We then went on to apply the Harlow immunity test to determine
whether the officer's conduct in swearing out the affidavit had been objectively
reasonable. Implicit in our use of this test was the determination that just as a
judicial imprimatur does not serve as an impregnable shield against determining
the sufficiency of the underlying affidavit, it would also not serve to shield a
police officer from liability due to the improper submission of an insufficient
affidavit.

The district court pointed out that B.R.C. failed to address the possibility that
judicial approval of the warrant immunized the police officer who obtained the
warrant without probable cause, neither recognizing the existence of contrary
First Circuit precedent or substantially responding to it. In addition, the court
found that the new standard of good faith immunity set out in Harlow v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), did not
undercut the holdings of Madison v. Manter, 441 F.2d 537 (1st Cir.1971), and
Stadium Films, Inc. v. Baillargeon, 542 F.2d 577 (1st Cir.1976), because the
immunity provided by these cases rested upon public policy considerations not
addressed by the Harlow decision. The district court also went on to hold that it
found the "chain of causation" approach of the Fifth Circuit persuasive even if
the immunity approach failed.

Although we agree with the district court that the analysis provided by B.R.C.
Transport was inadequate to support the break with our prior precedent which it
in fact makes, we find that the case nonetheless applied the correct legal
principle. We now provide the analysis of our prior precedent necessary to
support our holding that the issuance of a warrant by a judicial officer does not
provide "an impregnable shield" against liability under Sec. 1983 for negligent
conduct.

We begin by considering our own precedent in light of recent developments in

the defense of "good faith" immunity for police officers. In Madison v. Manter,
441 F.2d 537 (1st Cir.1971), this court held that negligent procurement of a
search warrant would not support liability under Sec. 1983. We relied upon
Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), the then
controlling case on good faith immunity for police officers under Sec. 1983,
which held that the common law defenses to false arrest were available to
police officers in Sec. 1983 actions. Madison involved the procurement of a
search warrant by local Massachusetts police officers upon the observation of
an ordinary smoker's pipe on the floor of a car. The warrant was later found to
be without probable cause. Under Massachusetts law, the officers could not be
found liable for improper prosecution without a showing of malice. The court
found that this immunity from negligence was supported by important policy
considerations:

10police officer has a much larger public to protect than the individual who, in good
A
faith, he suspects of a crime. He, too, may be discouraged from seeking warrants if
the cost is a suit for negligence. The individual who is the object of a warrant has a
more singleminded protector--the official whose duty it is to screen the application
before issuing the warrant.

11

Madison, 441 F.2d at 539. Stadium Films, Inc. v. Baillargeon, 542 F.2d 577
(1st Cir.1976), for the most part relied upon the reasoning of Madison. The
court found that even if local Rhode Island police officers "should have known"
that the warrants they sought were constitutionally infirm, Rhode Island
common law immunized them from liability for such negligence, and under
Pierson this immunity would extend to Sec. 1983 actions as well.

12

We first note that, since Pierson, the Supreme Court has moved away from a
reliance upon state law and toward a federal standard of immunity under Sec.
1983. E.g., Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1000, 43
L.Ed.2d 214 (1975); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
2738, 73 L.Ed.2d 396 (1982). Under the Harlow test, the presence of subjective
good faith or the absence of malice is irrelevant to the determination of
immunity. The conduct of state and government officials is to be measured by
an "objective reasonableness" standard; conduct which violates "clearly
established statutory or constitutional rights of which a reasonable person
would have known" will support Sec. 1983 liability. Harlow, 457 U.S. at 818,
102 S.Ct. at 2738. While the Court has not expressly applied this standard to the
Sec. 1983 liability of police officers, its adoption of the Harlow standard to
determine the good faith of police officers for supression purposes in United
States v. Leon, --- U.S. ----, ---- & n. 23, 104 S.Ct. 3405, 3421 & n. 23, 82
L.Ed.2d 677 (1984), suggests that it is also applicable to police officers for Sec.
1983 purposes.2 This objective reasonableness standard replaces the subjective
bad faith/malice standards of immunity previously incorporated into Sec. 1983
from state tort law under Pierson.

13

Under the new Harlow standard, official conduct which negligently leads to the
violation of constitutional rights is sufficient to overcome any qualified
immunity that official may have. The objective reasonableness standard should
be understood to prohibit conduct which is "constitutionally negligent." This
reading of Harlow is supported by the Supreme Court's holding in Parratt v.
Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), that negligent
deprivations of constitutional rights are actionable under Sec. 1983. Id. at 534,
101 S.Ct. at 1912. 3

14

As the district court recognized, the negligence standard set forth by Harlow
precludes the reliance on state tort law defenses found in Madison and Stadium
Films. The district court, however, found that the concept of official immunity
rests upon two independent foundations. Immunity serves, in part, to delimit the
degree of culpability required before the "shield of immunity" will be lifted
from a public official. This the district court described as the "good faith"

aspect of immunity. Immunity also rests upon considerations of public policy:

in this kind of case, the potential 'chill' upon law enforcement activities which
the possibility of personal liability might create. While Harlow did address the
issue of culpability by eliminating the subjective, "bad faith" prong of the
immunity analysis, the district court found that it had not addressed the policy
concerns implicated in such immunity. Therefore, since the rejection of
negligence as a basis for police officer liability in both Madison and Stadium
Films also rested upon these policy considerations, the district court considered
them to still be valid precedent.
15

While we disagree with the district court's view that the Harlow standard fails
to address policy considerations, we do recognize that this standard was
initially developed for application to high executive officials, not police
officers. Clearly, there are different public interests at stake where the arena is
crime and public safety and the issue is police officer liability for seeking
search or arrest warrants. While we conclude that these interests do not
necessitate a higher degree of immunity for police officers, we do find it
appropriate to address the district court's reasoning in some detail.

16

We begin with the contention that subjecting police officers to the possibility of
personal liability for seeking search or arrest warrants without probable cause
will chill them in the performance of their duties. Certainly if the standard of
negligence were such that any time a subsequent determination of no probable
cause was made a police officer would be considered "constitutionally
negligent," then a valid claim of 'chill' could be made. This, however, is not
what we understand the standard to be. It is to be noted first that police officers
are routinely called upon to make a judgment of whether there is or is not
probable cause. Consequently, it is a standard whose basic contours a police
officer can reasonably be expected to know. We recognize, however, that police
officers cannot be held to the standards of lawyers or judges. It cannot be
considered negligence, therefore, for a police officer to seek an arrest or search
warrant in a merely questionable situation. In such a case, the determination by
the magistrate that a warrant should issue will insulate the officer from a
negligence claim. There is a clear difference, however, between a situation in
which there might be probable cause and a situation in which there is no
probable cause. Under this standard of negligence, we find an emphasis upon
the chilling effects of such liability on zealous crime fighting to be
inappropriate. This argument overlooks the fact that under our system of
government the police have a duty to fight crime without violating
constitutional rights. This is difficult at times, but it is what the constitution
requires. If we cannot demand of our police officers that they recognize when
they do not have the authority to make a search or effect an arrest, then we have

given up the very idea of a rule of law. The exercise of police power within the
law is the very foundation of the social contract.4 We should expect police
officers to have a basic understanding of the limits of their power and we must
hold them liable when, negligently or intentionally, they overstep these bounds.
17

A second argument is made in Madison that where a warrant is sought, it is not

the police officer who has the burden of protecting fourth amendment rights,
but rather the independent magistrate since, unlike the police officer, the
magistrate has no conflict in interest between a duty to fight crime and a duty to
preserve constitutional rights. The danger in making the magistrate the sole
protector of the fourth amendment, however, is twofold. It encourages sloppy
police work and it enlarges the margin of error leading to unconstitutional
invasions of our persons and homes. Unfortunately, not all magistrates subject
the affidavit to the scrutiny required by the fourth amendment. The instant case
is a perfect example of this. Moreover, the aura of urgency that often surrounds
the warrant application process sometimes leads a magistrate to overlook the
obvious. At times, the seriousness of the crime being investigated distorts the
focus of the magistrate from the facts recited in the warrant application. Under
such circumstances, the magistrate is a conduit, not an insulator. The exercise
of reasonable judgment by police officers can prevent such errors from
occurring without unduly interfering with their crime fighting duties.

18

We also find that there are significant policy arguments in favor of allowing
such liability. The spectre of personal liability may well serve as a deterrent
both for individual police officers and their governing units. In addition, we
find the remedial purposes of Sec. 1983 well served by the inclusion of
negligently caused errors. The fact that such constitutional errors will, for the
most part, be rectified somewhere along the line does not in itself provide a
remedy for the damage which the error may cause, rather it merely prevents the
error from becoming even more serious. The fact that the grand jury failed to
return an indictment of the Briggs does not undo the arrest nor repair the
damaged psyches and reputations of these plaintiffs. The absolute judicial
immunity of the magistrate precludes suit against him or her. Were we to
permit the interposition of the magistrate between the police officer and the
warrant to immunize the negligence of the police officer, such plaintiffs would
be remediless.

19

We find our reasoning here supported by a parallel fourth amendment analysis

of the Supreme Court in United States v. Leon, --- U.S. ----, 104 S.Ct. 3405, in
which the Court adopted the Harlow reasonableness standard to determine
when police conduct required suppression of evidence. The Court indicated that
where a warrant is obtained upon the basis of an affidavit which the obtaining

officer had no reasonable ground to believe alleged probable cause, the

resulting search will not be cured by either the magistrate's approval or the
ignorance of the executing officers and the evidence will be suppressed. Leon, -- U.S. at ---- - ---- & n. 23-24, 104 S.Ct. at 3421-23 & n. 23-24. The Court's
adoption of the Harlow standard for suppression appears to mean that "in all
cases in which its 'good faith' exception to the exclusionary rule would operate,
there will also be immunity from civil damages." Id. 104 S.Ct. at 3456 n. 35
(Stevens, J., dissenting). Thus, since suppression will be appropriate where the
obtaining officer should have known there was no probable cause, liability of
the obtaining officer will also be appropriate.
20

We believe the foregoing disposes of the Fifth Circuit's "chain of causation"

approach as well. Rodriquez v. Ritchey, 556 F.2d 1185, 1193 (5th Cir.1977),
cert. denied, 434 U.S. 1047, 98 S.Ct. 894, 54 L.Ed.2d 799 (1978); Smith v.
Gonzales, 670 F.2d 522, 526 (5th Cir.) cert. denied, 459 U.S. 1005, 103 S.Ct.
361, 74 L.Ed.2d 397 (1982). Despite the fact that this approach is couched in
terms of a principle of causality, we find that at bottom it rests upon the same
concerns with culpability and immunity already discussed above. The "chain of
causation" theory does not withstand scrutiny. If we use the tort concept of "but
for" cause to determine when a causal connection is present, it seems clear that
"but for" the police officer's submission of the warrant to the magistrate, the
warrant would not issue and the search or arrest would not occur. It is the
decision of the police officer to bring the matter to the magistrate that is the
active cause of the search or arrest. Where that decision is the result of
negligence, i.e., failure to exercise a modicum of judgment about the presence
of probable cause, that negligence is the cause of the improper search or arrest.

21

We conclude, therefore, that our previous cases, Madison v. Manter, 441 F.2d
537 (1st Cir.1971), and Stadium Films, Inc. v. Baillargeon, 542 F.2d 577 (1st
Cir.1976), are no longer controlling. We now rule that judicial approval of a
warrant cannot serve as an absolute bar to the Sec. 1983 liability of the officer
who obtained the warrant. We emphasize, however, that liability does not
attach simply because there is a later determination of no probable cause.
Applying the standard of official immunity enunciated in Harlow, we hold that
only where an officer is "constitutionally negligent," that is, where the officer
should have known that the facts recited in the affidavit did not constitute
probable cause, will liability attach. Where the sufficiency of the facts fall into
the grey area appropriate for judicial determination, submission of the affidavit
to a magistrate will insulate the officer from liability. We find, therefore, that
the district court improperly directed a verdict for Corporal Malley.

22

Reversed and remanded for a new trial.

23

ALDRICH, Senior Circuit Judge (concurring).

24

I do not share the court's view that United States v. Leon, --- U.S. ----, 104 S.Ct.
3405, 82 L.Ed.2d 677 (1984), merely assists us, rather than disposes of the
present question out of hand. Leon, in effect, based the exclusionary rule upon a
principle of penalizing the officer for his "official misconduct" (cf. "bad faith,"
Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
By this is meant an affidavit "so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable." Brown v. Illinois,
422 U.S. 590, at 610-611, 95 S.Ct. 2254, at 2265, 45 L.Ed.2d 416 (1975)
(Powell, Jr., concurring in part) quoted in Leon, --- U.S. at ----, 104 S.Ct. at
3423. The Court held that such conduct is not cured by the magistrate's
acceptance of the affidavit,* even as against a defendant guilty of unlawful
possession. I see no room for argument that the magistrate's action should
relieve the officer who cannot be said to have acted in objective good faith visa-vis an innocent arrestee. Footnote 35 of Justice Stevens' dissent in Leon
indicating equivalency, quoted in the court's opinion herein, evoked no
response from his brethren, and I can read it only as a noting of inevitable
consequences, not as a disputation.

25

So far as "chill" is concerned, it is already clear that an officer's unreasonable

conclusion of probable cause can lead to personal liability. Cf. Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971). While the reasons for, and loss of, qualified privilege with respect
to professional conduct by the high executive officials in Harlow v. Fitzgerald,
ante, and the lowly police officers in Leon are not "perfectly analogous," Leon,
n. 22, I can have no doubt but that the Court would apply the same general
principles of liability and immunity. Hobson v. Wilson, 737 F.2d 1, 25
(D.C.Cir.1984). The magistrate's acting upon the affidavit might be admissible
as expert evidence of its reasonableness, cf. Leon, n. 23 (last sentence), but it
cannot remove impropriety.

Of the Federal Circuit, sitting by designation

At the trial below, Malley said that this was a mistake and that the charge was
actually conspiracy to possess marijuana with intent to deliver, which is a
felony, because "[i]n a wiretap all charges are conspiracy."

This reading is supported by Justice Stevens' dissent: "As the majority

recognizes, United States v. Leon, ante, [104 S.Ct.] at 3421-3422 and n. 23, in
all cases in which its "good faith" exception to the exclusionary rule would

operate, there will also be immunity from civil damages." United States v.
Leon, --- U.S. ----, ---- n. 35, 104 S.Ct. 3405, 3456 n. 35, 82 L.Ed.2d 677 (1984)
(Stevens, J., dissenting)
3

While the holding in Parratt is not stated as a holding on the contours of official
immunity under Sec. 1983, it cannot be understood to be anything else. The
lack of causality which had proven fatal to other attempts to bring negligence
under Sec. 1983, see Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d
561 (1976), was not an issue because the Court simply assumed the requisite
causal connection was present. This left only the issue of culpability, which is
one facet of the immunity doctrine

[M]ankind will be in a far worse condition than in the state of Nature if they
shall have armed one or a few men with the joint power of a multitude, to force
them to obey at pleasure the exorbitant and unlimited decrees of their sudden
thoughts, or unrestrained, and till that moment, unknown wills, without having
any measures set down which may guide and justify their actions
John Locke, Two Treatises of Government 187 (Dutton, Everyman's Library:
New York).

"[O]ur good faith inquiry is confined to the objectively ascertainable question

whether a reasonably well-trained officer would have known that the search
was illegal despite the magistrate's authorization." Leon, n. 23. (Emphasis
suppl.)