USCA1 Opinion

June 16, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 92-2468
LEE J. TOPP,
Plaintiff, Appellee,
v.
THOMAS J. WOLKOWSKI
and THOMAS J. LOMBARDI,
Defendants, Appellants.
__________
ERRATA SHEET

Please make the following corrections in the opinion in the above

case released on June 3, 1993:
Page 4, line 2:
Page 5, line 17:
"conduct".

delete all extra spaces.

insert the

word "charge"

following the word

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-2468
LEE J. TOPP,
Plaintiff, Appellee,
v.
THOMAS J. WOLKOWSKI
and THOMAS J. LOMBARDI,
Defendants, Appellants.
____________________
APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Dickran M. Tevrizian,* U.S. District Judge]
___________________

____________________
Before
Boudin, Circuit Judge,
_____________
Coffin and Oakes,** Senior Circuit Judges.
_____________________
____________________

Claire L. Gregory, Assistant Attorney General, with whom Jeff

_________________
____
R. Howard, Attorney General, and Robert E. Dunn, Jr., Assist
__________
_____________________
Commissioner, New Hampshire Department of Safety, were on brief
appellants.
Lynn D. Morse for appellee.
_____________
____________________
June 3, 1993
____________________
_____________________
* Of the District of Central California, sitting by designation.
**Of the Second Circuit, sitting by designation.

OAKES,
Troopers Thomas
from

Senior Circuit Judge.

____________________

New Hampshire State

J. Lombardi and Thomas

J. Wolkowski appeal

a judgment of the

District Court for

the District of

New

Hampshire, Dickran

motion

Tevrizian,

Judge1,
_____

denying

for summary judgment in this 42 U.S.C.

action brought

by Lee J.

Topp.

their

1983 (1988)

Topp's complaint

alleged

that Lombardi and Wolkowski violated Topp's civil rights and

committed
they

a variety of

common law

arrested him for making

interstate highway.
saw Topp

torts against

an illegal lane

him when

change on an

Neither Lombardi nor Wolkowski actually

make the lane change.

over Topp's car by another

They were

radioed to pull

state trooper, David Benoit, who

did see the lane change.

The district

court

concluded that

Lombardi

Wolkowski did not have qualified immunity to make

on

the

basis

of

determination, since

another

a New Hampshire statute

from making arrests for

their
(1986).

"presence."
We

officer's

an arrest

probable

cause

bars troopers

traffic violations not committed in

N.H. Rev.

Stat.

Ann.

conclude that the officers violated

established federal

and

or state standards

594:10

I(a)

no clearly

in arresting

Topp,

____________________
1Judge Tevrizian, a District Judge of the Central District
of California, was designated to sit in the District of New
Hampshire.
-22

particularly

in light

of state

case law

interpreting the

"presence" requirement as permitting any member of a team of

officers
member

to make an arrest
of the team.

for an offense

seen by another

Consequently, we reverse the denial of

summary judgment.

BACKGROUND
__________
Topp
Lombardi and
lane change
The

filed this

42

Wolkowski arrested
on Interstate

officers

U.S.C.

were

part

1983 action

him for making

near Portsmouth.

of

Officer

detail;

spotted traffic violators and

other officers which cars

the

New

Hampshire

an illegal

95, southbound

stationed one-quarter mile north of Lombardi,

two others,

after

to pull over.

Assistant

Wolkowski and

signalled to the
At

Attorney

Benoit,

oral argument,

General

candidly

the state troopers, Benoit

saw Topp

described this setup as a "speed trap."

According to
make

sudden lane

change into

the

fastest of

the four

lanes, forcing another car in the fourth lane into the highspeed

breakdown lane.

Topp

agrees that he

made a sudden,

unsignalled lane

change, but says that he did so only as an

emergency measure

to avoid

hitting a

car that

had braked

-33

suddenly
radioed
and

in front

of him.

Topp

to Lombardi to stop

Topp's car.

Benoit, who had watched

Lombardi's

position,

also agrees

Lombardi did so,

Topp's car as

signalled

that Benoit

it travelled to

to Lombardi

that

he

had

stopped the right car.

Topp, however, refused to take the
talking

to

the officer

Lombardi radioed
him that

"nearly
conveyed

Benoit for

Topp had made

forcing another

who

had

a sudden, unsignalled

car into the high-speed

version of

contends that this

his

more details, and

caus[ing] an accident."
this

seen

ticket without

events

was not what

Topp
to

lane

change.

Benoit told
lane change,

breakdown lane and

agrees that Benoit
Lombardi, though

happened, and that

he

Benoit

therefore

could not

Lombardi told

have seen

Topp that he

it happen.

could challenge

In

any event,

the ticket

in

court, not on the highway, and that Officer Benoit would not
come to speak with him directly.
In the
to take the

face of Topp's alleged

ticket or

to leave the

continuing refusal

scene,2 Lombardi

told

____________________
2The actions of both Topp and the officers after Topp's
initial refusal to take the ticket are the subject of a
factual dispute. We need not -- and, indeed, may not -resolve this dispute.
The significant fact for this
interlocutory appeal is that Topp made, and was seen making,
a sudden, unsignalled lane change. There is no dispute on
this point.
-44

Topp

that if

he

arrested, and then

did

not take

that he

the

was under arrest.

commotion, Lombardi's superior officer,

came up to the car.
take the

ticket.

Lombardi

ticket,

he would

be

Seeing

the

Sergeant Wolkowski,

explained that Topp would not

After further arguments,

Wolkowski also

told Topp that

he was

under arrest.

started his car and moved

Topp then

half a car length down the

Wolkowski leaned in to the open convertible,

off,

opened the

allegedly

door, and,

pulled Topp from his car.

when Topp

road.

turned the car

would not

get out,

Wolkowski allegedly directed Topp

to the

rear of his car,

behind

his back, and then pushed Topp's head onto the trunk

of the car twice.

holding one of

Topp's wrists high

Lombardi then handcuffed Topp.

Topp was

charged not only with the illegal lane change, but also with
disorderly conduct and resisting arrest.
The charges

were later dismissed:

conduct on the theory that

found

unconstitutional

the underlying statute had

in

against the Seabrook Nuclear

because

the

Portsmouth

the disorderly

case

involving

been

protestors

Power Plant; the other charges

District

Court

found

that

the

complaints had not been properly sworn.

Lombardi

Topp

then

filed

and

Wolkowski

this
as
-55

action,

defendants

naming
in

both

officers
their

individual

and official capacities and charging due process

and unspecified
also

raised

arrest,

equal protection violations.

state

false

common

imprisonment,

Topp, who was

and

represented by

and punitive damages of

resultant

law claims

business

moved

malicious

false

prosecution.3
compensatory

$800,000 for psychological harm and

losses.

they had not

and because the

assault,

counsel, sought

Topp

Lombardi and Wolkowski had had

him, because

of

The complaint

alleged

no probable cause to

seen the lane

lane change

that officers
arrest

change themselves

was justified.

The

officers

for summary judgment on all claims except the assault

conduct.

The district

the officers in

court dismissed the

their official capacity,

claims against

as barred by

the

Eleventh Amendment; dismissed the equal protection claim for

failure to

state

claim;

malicious prosecution on
immunity.

The court

and dismissed

the

grounds of absolute

denied summary judgment

claims on the theory that there

claims

of

prosecutorial
on the other

was a dispute of fact as to

whether the officers had probable cause

to arrest, and that

the officers did not have qualified immunity.

____________________
3The complaint did not, however, raise a claim of invasion
of privacy from the officer's reaching into Topp's vehicle,
nor could it.
Harbulak v. County of Suffolk, 654 F.2d 194
_____________________________
(2d Cir. 1981).

-66

The

officers then filed this interlocutory appeal

of the ruling on qualified immunity.

DISCUSSION
__________
As
interlocutory,
interlocutory
judgment

a preliminary matter,

we note

the appeal is proper.

appeals

on grounds

of

that, although

This court will hear

of denials

of

motions for

absolute

or

qualified

summary
immunity.

Floyd v. Farrell, 765 F.2d 1, 2-3 (1st Cir. 1985).

________________
The only question before

us is whether the motion

for summary judgment on grounds of qualified immunity should

have been granted.
immunity

provides

In general,
that

discretionary functions

the doctrine of

"government
. .

officials

. are shielded

qualified
performing

from liability

for civil damages

insofar as their conduct does not violate

clearly

established statutory

which a

reasonable person

Fitzgerald,
__________
Creighton,
_________

483 U.S. 635,

understand

right.");

would have

457 U.S. 800, 818 (1982).

that

rights of

known."

Harlow v.
__________

See also Anderson v.

________ ___________

640 (1987) ("The

right must be sufficiently

would

or constitutional

contours of the

clear that a reasonable official

what

Malley v. Briggs,
__________________

he

is

475

doing
U.S.

violates

335,

341

that
(1986)

-77

(qualified

immunity

incompetent

or those who

cases

applying

an arrest

cause is

deemed

"all

but

the

knowingly violate the

this standard

circuit,

clearly was no

protects

to

challenged as

police

law").

arrests in

unsupported by

"'objectively reasonable'"
probable cause

plainly

at the time

unless

In
this

probable
"there

the arrest

was

_______
made."

Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985).

________________
The undisputed facts demonstrate that Lombardi and

Wolkowski could easily have

believed that they had probable

cause

committed a

to believe

Topp agrees that

of Officer

Topp had

the arresting officers acted on

Benoit's statement

force another car

that he

off the road

the basis
seen Topp

of making

Topp concedes that he made

lane change without signalling.

described Topp's

had just

in the course

sudden, unsignalled lane change.

the

traffic violation.

All agree that Benoit

white Chrysler convertible to Lombardi and

confirmed that Lombardi had stopped the right car.

The

crux of

Topp's case

is his

contention that

Officers Lombardi

and Wolkowski had no

authority to arrest

him because

did

see

they

not

themselves

allegedly illegal lane change.

Hampshire law,
improper

make

the

Topp claims that, under New

probable cause

lane change is not

him

to

believe he

enough.
-88

In

had made

an

New Hampshire, he

says,

an

officer cannot

violation,

such

as an

make a

warrantless arrest

improper

lane

change, unless

for a
the

officer "has probable cause to believe that the person to be

arrested has committed a
N.H. Rev. Stat.
troopers

Ann.

violated

and that this

. . . violation in
594:10.

Thus,

New Hampshire's

his presence."

Topp claims that the

"presence" requirement,

violation raises a federal civil rights claim

as well.
However, New Hampshire

case law interpreting this

provision quite strongly suggests that where one member of a

law enforcement team
the team can
483,

363

has seen the violation, any

make the arrest.

A.2d 404

vehicle was

(1976)

officer

State v. Standish, 116 N.H.

__________________

(driving

inoperable by time

citing State v. Cook, 399

______ ______________

under the

influence;

arresting officer arrived),

P.2d 835 (Kan.

1965) (arresting

received information from airplane tracking highway

speeds).

Topp attempts to distinguish

arresting

officer in

probable

member of

cause to

that

believe

case

Standish, since the

________

arguably had

that the

independent

offense had

occurred

(Standish was drunk, in his car, and crashed against a tree,

enough

to suggest

to

the arresting

driven the car into the tree).

case

is

more

sweeping

officer

that he

had

However, the language of the

than that.

The

Standish

court

________
-99

justified
officer

its

result not

had independent

by

arguing

probable cause

relying on the

concept of team arrests

other

including

states,

interpret

similar

requirements for
to

that the

the

Cook
____

statutes

to arrest,

but by

and on case

law in

case.

setting

arresting

These

forth

cases

"presence"

misdemeanor arrests as

permitting arrests

member of a team of

officers so long as

be made by any

one of the officers was "present."

Furthermore, the
routine procedures.

It

officers in this case were using

cannot have been clear to

light of

established practice and the

that the

procedure of using

and others

that the correct vehicle

supportive case law,

one officer to

to effect the actual

them, in

spot violators

arrests, with confirmation

was stopped, was inconsistent with

the

statute.

Thus,

even assuming

that

1983

requires

officers to comply

with the requirements of a state statute

defining

cause

probable

Constitution

requires,

more narrowly
the

standard is

officers were not clearly wrong in

acting properly.

In light

of

than
met

the

federal

because

the

believing that they were

case law

and

established

practice, their interpretation of the "presence" requirement

of

the

New

Hampshire

misdemeanor

arrest

statute

was

reasonable.
-1010

CONCLUSION
__________
Accordingly,
district court,

we

insofar as

reverse

the

it denied the

judgment

of

the

officers' motion

for summary judgment on grounds of qualified immunity.

-1111