USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1949
ABIODUN ABRAHAM and HENRY AJAO,

Plaintiffs, Appellees,
v.

JOSEPH NAGLE,
Defendant, Appellant.

____________________
No. 96-2008

ABIODUN ABRAHAM and HENRY AJAO,

Plaintiffs, Appellants,

v.
JOSEPH NAGLE, ET AL.,

Defendants, Appellees.
__________

PERRY ROY, ET AL.,

Defendants, Appellees.

____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy J. Gertner, U.S. District Judge]
___________________

____________________
Before

Torruella, Chief Judge,

___________
Boudin and Lynch, Circuit Judges.
______________

____________________

Susan
M. Weise,
_________________
Department, with whom

Chief

of

Litigation,

City

Merita A. Hopkins, Corporation

_________________

of

Boston

Counsel, was

brief for defendants.

George C. Deptula,
__________________

with whom

George C. Deptula, P.C.

_________________________

was

consolidated brief for plaintiffs.

____________________

June 9, 1997
____________________

BOUDIN, Circuit Judge.

______________

Abiodun Abraham

and Henry Ajao

sued several police officers and the City of Boston for false

arrest

and for

other

district judge directed

false

arrest claim

alleged wrongs.

a verdict

against

the

During trial,

in favor of

defendant

Ajao on

officer

the

his

Joseph

Nagle; the jury found in favor of the defendants on all other

claims.

Before us are cross-appeals by the plaintiffs and by

Nagle.

Our main concern is

with the directed verdict and,

that

purpose alone, we set

forth the evidence

most

favorable

Fashion House, Inc. v.

_____________________

Corp., 892
_____

to Nagle.

F.2d 1076, 1088

(1st Cir. 1989).

for

in the light

K mart
______

On August 18,

1990, at about 11 p.m., the plaintiffs, both black immigrants

from

Nigeria, arrived with three white women at the Venus de

Milo

nightclub in Boston.

minutes,

the group

After waiting in line for several

reached the

club entrance.

The three

women were admitted, but the plaintiffs were not.

The

bouncer told

club because he

Ajao were "a

was wearing

enter the

because Abraham

The plaintiffs

and

said that

jeans were being admitted

and that the

reason for excluding them was their race.

When Abraham

continued

Boston

he could not

jeans and

little intoxicated."

other people wearing

real

Abraham that

to

police

protest, a

officer

club

who

employee

was

establishment down the block.

-2-2-

"on

summoned Nagle,

detail"

at

another

Nagle talked with the

telling them

that they

told

him

that the club was

should leave;

of

the

to protest loudly,

chest.

Nagle

he says

alleged

discussion, Abraham became

the

plaintiffs for 15 to

not going to

that the

then

admit them and

plaintiffs never

discrimination.

During

increasingly agitated,

and at one point

20 minutes,

continued

hit or pushed Nagle

arrested Abraham

for

the

in

assault and

battery on a police officer.

Nagle

sought

struggled free.

by

officer

to

Nagle

Thomas

handcuff

Abraham

but

radioed for help and was

Boyle.

Together,

the

latter

soon joined

Nagle

and

Boyle

handcuffed Abraham and tried to bring him to Boyle's cruiser,

which was

double-parked in the street.

going limp.

Abraham resisted by

As Nagle and Boyle sought to move Abraham to the

car, Ajao circled the officers and yelled, "why are you doing

this to my

friend," "this isn't

South Africa, you're

white

racist cops."

According to

Boyle, Ajao was "trying to prevent us from

getting to the police car."

"had to actually push [Ajao]

wrestled with Abraham.

At one point Boyle

said that he

out of my way" as the

Several

officers

times the officers told Ajao

to "get

away."

Eventually,

officers pushed Abraham

then

with Ajao

into the

prevented the door from

still present,

back seat of

closing by kicking

the car;

the

he

at it, but

-3-3-

the officers forced it closed.

By this time a crowd of 20 or

so had gathered to watch.

In the meantime,

cruiser, Ajao circled

quarter of the

from

car.

as Abraham continued to

it and

yell from the

came up behind

the left

rear

Ajao was told: "Police, leave, get away

the cruiser"; Nagle later testified

that he had feared

that Ajao might try to open the car door and release Abraham.

Ajao

failed to move.

Nagle then

arrested Ajao, who in turn

struggled with Nagle, Boyle and a third officer, once kicking

Nagle in the mid-section, before being restrained.

In due course,

Abraham and Ajao were both

charged with

assault and battery and disorderly

conduct.

ch. 265,

They were tried

13D; id. ch. 272,

___

53.

court in November 1990 and acquitted.

Mass. Gen. Laws

in state

In February 1993, they

in turn brought suit

police officers,

and the city, charging

false arrest under

various other

in state court against Nagle

42 U.S.C.

wrongs.1

1983

and other

the defendants with

and state law and

with

The defendants removed the action to

federal court and, following

discovery, trial began in March

1995.

After all of the evidence

granted

Ajao's motion

was taken, the district court

for a directed

verdict in

his favor

____________________

1The other claims, some

or

during

trial,

charged

of which were dropped

the

defendants

prior to

with

false

imprisonment, racial discrimination, violation of free speech

rights, assault and battery, and use of excessive force.

-4-4-

against Nagle, see Fed. R. Civ. P. 50(a); in

___

the trial

judge declared

that Nagle was

an oral ruling,

liable under

both

federal and state law for falsely arresting Ajao in violation

of

the

court's

that

latter's First

and

primary rationale,

Fourth Amendment

as we

(in the district judge's view)

read the

rights.

The

transcript, was

Ajao's conduct prior to

his arrest did not "rise to the level of disorderly conduct .

. . ."

The balance of the case was submitted to the jury.

By responses to special interrogatories, the

Ajao's

damages at

false

$8,500 to

arrest," but made

free

speech rights.

On

vindicate his

no separate award

all of

jury fixed

"rights against

for violation of

the plaintiffs'

remaining

claims, the jury found against the plaintiffs and in favor of

the defendants.

Thereafter,

attorney's fees

of $24,858.50.

directed verdict

against him.

urging

that

they

On

to

an

Nagle now appeals

The plaintiffs

are entitled

unsuccessful claims,

attorney's fees.

the district court awarded Ajao

to

new

injunction,

from the

also appeal,

trial on

and

to

their

increased

We begin with Nagle's appeal.

review of a

directed verdict, we

take the evidence

most

favorably to the losing party and ask de novo whether a

_______

reasonable jury

victor.

Smith v.
_____

Cir. 1996).

question

had inevitably

is

to

decide in

F.W. Morse & Co., 76 F.3d

_________________

favor of

the

413, 425 (1st

Here, putting aside some loose ends, the central

whether Nagle

at the

-5-5-

time

of the

arrest had

probable cause to believe that Ajao had committed the offense

of disorderly conduct.

arrest

claim under

Dore, 103
____

If so, this largely defeats the false

both federal

and state

F.3d 1040, 1044 (1st Cir.

law.

Logue v.
_____

1997); see Commonwealth

___ ____________

v. Grise, 496 N.E.2d 162, 163 (Mass. 1986).

_____

Of

course, it

would

Nagle,

on his own version

charge

Ajao with assault

kicked him.

to

the

would

easier to

of events, had

conclude that

probable cause to

and battery: Nagle

said that Ajao

But the kick occurred after Ajao's arrest; prior

_____

arrest, the

conduct.

be much

We

arise

only

reserve for

if the

pertinent

another

original

charge was

day various

arrest

disorderly

issues that

were unjustified

but

resistance

to

it

provided

grounds

for

valid

charge.

Compare Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d

_______ ______
_____________________

Cir.

1995), with United States v. Dawdy, 46 F.3d 1427, 1430____ _____________

_____

31 (8th Cir.), cert. denied, 116 S. Ct. 195 (1995).

____________

In defining disorderly conduct, Mass. Gen. Laws ch. 272,

53 provides

for the punishment,

disorderly

persons."

rejected

challenge

unconstitutionally

the

Model

Alegata v.
_______

In 1967,

this

of

"idle and

Judicial Court

provision

interpreting it

definition

Commonwealth, 231
____________

That definition states:

the Supreme

that

vague by

Penal Code's

inter alia, of
__________

was

to incorporate

disorderly conduct.

N.E.2d 201, 211

(Mass. 1967).

A person

is guilty of disorderly

conduct if, with

purpose to cause public inconvenience, annoyance or

-6-6-

alarm, or recklessly
(a)

engages in

violent

or

creating a risk thereof,

fighting

tumultuous

or

threatening,

behavior;

or

(b)

he:

or

in

makes

unreasonable noise or offensively coarse utterance,

gesture or
to any
or

display, or addresses

person present, or (c)

abusive language

creates a hazardous

physically offensive condition by any act which

serves no legitimate purpose of the actor.

Id.
___

(quoting ALI,

Model Penal Code

_________________

250.2

(Proposed Official

Draft 1962)).

Several years

down

subsection

overbroad.

(Mass. 1975).

ruled

that

(b)

later, the

Supreme

of this

definition

Commonwealth
____________

And

the

v.

A Juvenile,
__________

Judicial Court

as unconstitutionally

334

N.E.2d 617,

to avoid First Amendment concerns,

remaining

subsections

struck

(a)

and

622

the court

(c)

must

be

construed to cover only conduct, not activities which involve the

"lawful exercise of a

First Amendment right."

Id. at 628;
___

see
___

also Commonwealth v. LePore, 666 N.E.2d 152, 155 (Mass. App. Ct.)
____ ____________
______

("To be disorderly within

must disturb

the sense of the statute,

through acts other

than speech

. . .

the conduct

."), review
______

denied, 668 N.E.2d 356 (Mass. 1996).

______

Nagle

testified

(c), not subsection (a),

that he

arrested Ajao

under subsection

and we doubt that Ajao's

conduct prior
_____

to his arrest would support a charge under subsection (a).

Thus,

the question for us is whether a reasonable jury could have found

that Nagle had probable

cause to believe that Ajao

had violated

subsection (c) by "creat[ing] a hazardous . . . condition by

act

which serves no legitimate purpose of

-7-7-

the actor."

any

We think

that a reasonable

jury, if

it accepted the

defense version

of

events, could have so found.

An arrest

serious

business.

blocked by a

Yet, assuming

defendant--here, Abraham--is a

Even without a

police cruiser,

violence and of

repeated

of a struggling

there is a

injury both to

the truth

requests to get

gathering crowd

out of

potential for

the suspect

of the defense

and traffic

and to the

serious

police.

evidence, Ajao--despite

the way--circled

the officers

while shouting, at least once got directly in their way, and then

refused to move away from the cruiser.

Such

behavior can fairly be taken to fall directly within

the literal language of subsection (c): creating "a hazardous . .

condition" by acts "which serve[] no legitimate purpose of the

actor."

Indeed,

a number

of Massachusetts

cases have

disorderly conduct arrests where a refusal to obey

created

a safety threat.

360, 363 (Mass. App.

1995); Commonwealth
____________

police orders

See Commonwealth v. Mulero, 650 N.E.2d

___ ____________
______

Ct.), review denied, 652 N.E.2d

_____________

v. Bosk, 556
____

Ct. 1990); Commonwealth v.

____________

upheld

145 (Mass.

N.E.2d 1055, 1058

(Mass. App.

Carson, 411 N.E.2d 1337,

______

1338 (Mass.

App. Ct. 1980).

Literal

language is

not

the full

story.

The

state's

highest court has glossed

activities

are

Amendment right."

themselves

the statute not to apply

the

"lawful

exercise

A Juvenile, 334 N.E.2d at 628.

__________

wherever the

of

First

And Ajao had a

free-speech right to protest the arrest of his companion, even if

-8-8-

this distressed

or annoyed the

police.

But by

the same token,

"the

mere fact that the conduct of the defendant was accompanied

by speech

does not preclude

conduct law.

We

a conviction" under

Carson, 411 N.E.2d at 1337.

______

have

very

little

speech

policemen

struggling to arrest and

109

from

not protected.

his

difficulty

protected

is

the disorderly

physical

separating

interference

with

for far less

disruptive conduct, observing that "Colten's conduct in

First Amendment.

two

v. Kentucky, 407 U.S. 104,

________

upheld a conviction

to move on after being directed to

Ajao's

detain a third person, which

Indeed, in Colten
______

(1972), the Supreme Court

in

refusing

do so" was not protect by the

See also City of Houston v. Hill, 482 U.S. 451,

________ _______________
____

463 n.11 (1987).

In

some

cases,

peaceful

demonstration

and

protected

expression

may appear

Commonwealth
____________

where

peaceful

merge.

v. Feigenbaum,
__________

the state court

did not

to

extend to

political

Possibly,

536 N.E.2d

held that the

the blocking

rally

But Ajao's

disrupting a

police attempt

325, 328

of traffic in

(Mass. 1989),

to arrest a

the course

defendant's

alleged conduct in

of a

purpose was

the present

case--

struggling companion--

seems to us both more dangerous and less legitimate.

-9-9-

explain

disorderly conduct statute

because the

legitimate.

this may

Further, even

if Feigenbaum
__________

reading,2 making a good

up to

a jury

protected

arrest.

were given its

most extreme

purpose a complete defense, it

to determine

whether Ajao

was acting

would be

to express

speech or whether he also sought to interfere with the

The latter aim could not be a legitimate purpose on any

view of the matter.

Yet a jury could infer, assuming it accepted

the

defense version of events, that Ajao was trying to frustrate

the arrest by getting

in the way or distracting the officers and

not simply trying to convey his objections.

In

this case, the jury

the police

benign

version of the

account

contradictions

of

events.

their

conduct

and

after observing Nagle, the

the plaintiffs on

the witness

We simply disagree

have to accept

The plaintiffs gave

there

in the defendants' own testimony.

jury's province,

believed.

certainly did not

were

thought that

her province, this

was a

See Smith, 76 F.3d at 425.3

___ _____

some

But it was the

other officers, and

stand to decide

whom the

jurors

with the trial judge's conclusion

that she was free to make that credibility determination.

district judge

a more

the credibility issues

mistaken view of

If the

fell within

the governing

rule.

____________________

2At
suggest

least two

state

that an extreme

court decisions
reading is

after Feigenbaum
__________

unwarranted and

that a

defendant can be liable for disorderly conduct even where his

main objective is to

protest police decisions.

See
___

Mulero,
______

650 N.E.2d at 363; Bosk, 556 N.E.2d at 1058.

____

3Nagle

points to

discussing jury

the

trial judge's

instructions) that "I am

comment (made

in

basing my findings

with respect to Mr. Ajao on my evaluations of the credibility

-10-10-

Three loose ends remain.

One is the possibility

arrest based on

probable cause

might still be

police

acted

for

officer

protected speech.

simply

There is

the

some law on

that an

unlawful if

purpose

of

the

punishing

this subject,

compare
_______

Whren v. United States, 116 S. Ct. 1769, 1774 (1996), with Sloman
_____
_____________
____ ______

v. Tadlock, 21
_______

F.3d 1462, 1469 (9th Cir. 1994),

pursue the issue here.

Plaintiffs have not pointed to any direct

evidence that Nagle acted

speech, and

certainly

but we need not

out of an improper motive

nothing would

to suppress

remotely justify

deciding

that issue against him by a directed verdict.

The second is

the possibility, on remand, of

a qualified

immunity

defense for

district

court, has

where a police

call on a

Nagle.

This

defense,

been successfully

invoked in

officer made a reasonable,

close legal issue.

preserved in

E.g., Joyce
____ _____

this circuit

if arguably mistaken,

v. Town of Tewksbury,
_________________

112 F.3d 19 (1st Cir. 1997); Veilleux v. Perschau, 101

________
________

(1st Cir. 1996).

city

the

F.3d 1, 3

We have ignored the issue here only because the

has chosen, for reasons not explained, to fight this appeal

on the merits.

Third, for the sake of completeness, we note that in 1995-

-well after

the incident

separate "resisting arrest"

in this case--Massachusetts

enacted a

statute that also covers

situations

in which the person charged prevented or attempted to prevent the

____________________

of the witnesses as well as my evaluations of the sufficiency

of the evidence . . . ."

-11-11-

arrest of another.

Mass. Gen. Laws ch. 268,

32B.

We need not

consider whether Ajao could have been charged under this statute,

which is narrower in focus but

more severe in penalties than the

disorderly conduct statute applied here.

There is no

indication

that the adoption

alter

of the new statute

the availability of the

severe remedy for addressing

was meant to

eliminate or

disorderly conduct law

as a less

disorderly interference with police

activity.

Turning now to the plaintiffs' appeal, we begin with their

claim that the district

on

their other

court erred in denying them

claims which

were rejected

arguments are largely conventional ones

the evidence,

the propriety

by the

a new trial

jury.

The

turning on the weight of

of closing arguments,

and possible

confusion on the part of the jury evidenced by an inquiry made by

the jury during its deliberations.

The

denial of a new trial motion

is reviewed for abuse of

discretion.

under Fed R. Civ. P. 59

Bogosian v.
________

Mercedes-Benz
_____________

of
__

North America, Inc.,

____________________

Without describing

104 F.3d

472,

482 (1st

the plaintiffs' arguments in

Cir.

1997).

detail, we find

no abuse here in rejecting each of the new-trial grounds thus far

mentioned.

pool

may

have

potentially more

excluded

serious claim is

minorities, but

the

that the

jury

plaintiffs

have

pointed to nothing in the record to support the charge or to show

that it was even raised in the trial court.

-12-12-

The plaintiffs also object to the district court's failure

to grant injunctive relief.

The relief sought was to prevent the

Boston police from continuing to

training

bulletin

definition

of

subsection

(b) has

Court.

that

use, at least without revision,

sets

disorderly conduct

been

forth

the

but

fails

struck down

by

Model

Penal

Code

to indicate

that

the Supreme

Judicial

The city, which has not responded on this point, would be

well advised to clarify the manual on its own.

But the plaintiffs were

in

not charged under subsection (b);

fact, Nagle testified that he had been taught that subsection

(b) had been held invalid.

faced

any

real threat

Nor did the plaintiffs show that they

of future

injury,

enforce subsection (b) against them

Angeles v. Lyons,
_______
_____

exercising its

e.g., by
____

in the future.

461 U.S. 95, 102 (1983).

equitable authority

threats to

City of Los
____________

The district court,

to grant or

deny injunctive

relief, certainly did not have to grant any here.

To conclude, we vacate the

______

false arrest

claim and the

judgment against Nagle on

now-mooted award of

the

attorney's fees

against him and otherwise affirm the judgment entered on the jury
______

verdicts in favor of the

defendants.

The false arrest claim

remanded for further proceedings consistent with this opinion.

________

It is so ordered.
_________________

is

-13-13-