USCA1 Opinion
October 31, 1995 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1554
YVONNE A. ALEXIS, ET AL.,
Plaintiffs, Appellants,
v.
McDONALD'S RESTAURANTS OF MASSACHUSETTS, INC.,
MICHAEL LEPORATI and DONNA DOMINA,
Defendants, Appellees.
____________________
ERRATA SHEET
The Opinion of the Court issued on October 10, 1995, is amended
as follows:
On cover sheet under list of counsel "Gilbert, Kurent & Kiernan"
_______
should read "Gilberg, Kurent, & Kiernan."
_______
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1554
YVONNE A. ALEXIS, ET AL.,
Plaintiffs, Appellants,
v.
McDONALD'S RESTAURANTS OF MASSACHUSETTS, INC.,
MICHAEL LEPORATI and DONNA DOMINA,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Terance P. Perry, with whom Brendan J. Perry and Christopher M.
________________ ________________ ______________
Perry were on brief for appellants.
_____
Philip B. Benjamin, with whom Aaron K. Bikofsky was on brief for
___________________ _________________
appellee Michael Leporati.
John P. Noyes, with whom John A. Kiernan and Gilberg, Kurent &
______________ ________________ __________________
Kiernan were on brief for appellees.
_______
____________________
October 10, 1995
____________________
CYR, Circuit Judge. Plaintiffs Yvonne Alexis ("Alex-
CYR, Circuit Judge.
______________
is"), and family members, challenge a summary judgment order
rejecting various federal civil rights claims and related state-
law claims stemming from the treatment accorded Alexis at a
restaurant owned and operated by defendant-appellee McDonald's
Restaurants of Massachusetts, Inc. We affirm, in part, and
remand other claims for further proceedings.
I
I
BACKGROUND1
BACKGROUND
__________
At approximately 10:00 p.m. on July 20, 1990, in
Framingham, Massachusetts, Alexis and her family, who are African
Americans, entered a McDonald's restaurant, proceeded to the
service counter, placed their order, and paid in advance. When
the food was placed before them at the service counter, it became
apparent that Alfredo Pascacio, whose native tongue is Spanish,
had mistaken their order. During the ensuing exchange between
Alexis and Pascacio, defendant-appellee Donna Domina, the "swing
manager," intervened in behalf of Pascacio, which prompted Alexis
to say: "[Y]ou take care of the people in front of you. He's
taking care of me, and we're sorting this out." Domina nonethe-
less persisted for several more minutes.
Ultimately, Domina said to Alexis, "I don't have to
listen to you." Alexis replied, "[Y]ou're damn right you don't
____________________
1The material facts in genuine dispute are related in the
light most favorable to plaintiffs-appellants, against whom
summary judgment was entered. See Velez-Gomez v. SMA Life Assur.
___ ___________ _______________
Co., 8 F.3d 873, 874 (1st Cir. 1993).
___
4
have to listen to me. I was not speaking to you. I was speaking
to him." Domina then instructed Pascacio: "Just put their stuff
in a bag and get them out of here." Turning to Alexis, Domina
retorted: "You're not eating here. If you [do] we're going to
call the cops." Alexis responded: "Well you do what you have to
do because we plan to eat here." Notwithstanding Domina's
instructions, Pascacio placed the food order on a service tray,
without bagging it. The entire incident at the service counter
had lasted approximately ten minutes.
After the Alexis family went into the dining area,
Sherry Topham, a managerial employee, summoned defendant Michael
Leporati into the restaurant. Leporati, a uniformed off-duty
police sergeant, had been patrolling on foot outside the restau-
rant by prearrangement with the Town of Framingham, but had
witnessed no part of the earlier exchange among Alexis, Pascacio
and Domina.
Upon entering the restaurant, Leporati was informed by
Domina that Alexis had been yelling, creating a "scene" and an
"unwarranted disturbance" over a mistaken food order, and direct-
ing abusive remarks at Pascacio.2 Domina informed Leporati that
Alexis had argued loudly with her and another employee; that she
"just wasn't stopping"; and that Alexis was still in the dining
area though Domina had "asked her to leave." Finally, Domina
____________________
2At summary judgment, we must credit Alexis's statement that
she did not yell or cause a "disturbance." See supra note 1.
___ _____
But since it is uncontradicted, we must also assume that Domina
informed Leporati that Alexis had caused a disturbance. Id.
________ ___
5
told Leporati, "I would like her to leave."
___
Without further inquiry into the "disturbance" alleged-
ly caused by Alexis, Leporati proceeded to the dining area where
Alexis and her family were seated, and informed the entire Alexis
family that the manager wanted them to leave and that they would
have to go. Alexis immediately asked why, denied causing any
disturbance, and claimed a right to finish eating in the restau-
rant. When she urged Leporati to ask other restaurant customers
whether there had been any disturbance, Leporati simply reiterat-
ed that the family would have to leave, then returned to the
service counter.3
At the service counter, Leporati relayed his conversa-
tion with Alexis and informed Domina that the Alexis family had
refused to leave. In Leporati's presence, Domina discussed the
matter with Sherry Topham, who recalled having had a "problem"
with Alexis on a prior occasion.4 At that point, Domina stated,
"Well, if that's the case, then maybe we should have her leave."
With that, Sergeant Leporati returned to the Alexis family and
advised Alexis that she would be arrested unless she left before
______ ___
his backup arrived. Cf. supra note 3. Alexis reiterated that
__ _____
she believed she had the right to finish eating. Leporati left
____________________
3The record is silent as to why all Alexis family members
were ordered to leave, though only Alexis had been involved in
the exchange at the service counter.
4The record reflects no other information concerning the
timing or nature of any such "problem." As Alexis attests that
there had been no prior incident, we are required to assume as
much.
6
the dining area to call for backup.
Approximately ten minutes later, Officer William Fuer
arrived and Alexis was told by Leporati that she was being placed
under arrest. Then, without asking or directing Alexis to get up
from the table, Leporati suddenly and violently grabbed and
pulled her bodily from the booth and across the table, handcuffed
her hands tightly behind her back, and, with the help of Officer
Fuer, dragged her from the booth, bruising her legs in the
process. Insisting that she was "not resisting arrest," Alexis
asked the officers to allow her to walk out. Instead, they
hoisted her by her elbows and carried her from the restaurant to
the police car, where Leporati pushed her into the car with the
instruction, "Get your ass in there."
As she was being removed from the restaurant, Alexis
and her husband repeatedly asked the officers why she was being
treated in this manner. When Mr. Alexis said, "We have rights,"
Leporati responded, "You people have no rights. You better shut
up your [expletive] mouth before I arrest you too."
Alexis eventually was charged with criminal trespass, a
misdemeanor under Mass. Gen. Laws Ann. ch. 266, 120 (West
1994). Following her acquittal by a jury, Alexis and her family
filed the present action in the United States District Court for
the District of Massachusetts, asserting civil rights claims
under 42 U.S.C. 1981, 1983, & 1985(3), as well as state law
claims for use of excessive force, intentional infliction of
emotional distress, assault, battery, false imprisonment, mali-
7
cious prosecution, and abuse of process. The district court
granted summary judgment for the defendants on all federal claims
and on the excessive force claim against Leporati under Mass.
Gen. Laws Ann. ch. 12, 11I. Finally, the court granted summary
judgment for all defendants on the remaining state law claims,
without stating its grounds. Plaintiffs appealed.
II
II
DISCUSSION
DISCUSSION
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A grant of summary judgment is reviewed de novo under
__ ____
the same criteria incumbent upon the district court; it cannot
stand on appeal unless the record discloses no trialworthy issue
of material fact and the moving party is entitled to judgment as
a matter of law. Guzman-Rivera v. Rivera-Cruz, 29 F.3d 3, 4 (1st
_____________ ___________
Cir. 1994). A. Section 1981
A. Section 1981
____________
Section 1981 proscribes intentional discrimination
based on race. General Bldg. Contractors Ass'n v. Pennsylvania,
_______________________________ ____________
458 U.S. 375, 391 (1982); Dartmouth Review v. Dartmouth College,
________________ _________________
889 F.2d 13, 17 (1st Cir. 1989). The district court found no
competent evidence of intentional race-based discrimination.
Alexis presses her section 1981 claims against Domina and McDon-
ald's on the theory that her race-based exclusion from the dining
area violated her right to make and enforce contracts. See 42
___
U.S.C. 1981(a).5 As to defendant Leporati, she alleges that
____________________
5Section 1981(a) provides in its entirety:
All persons within the jurisdiction of the United
States shall have the same right in every State and
8
her race-based arrest deprived her of the right to "full and
equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens," id.
___
1981(a), and to "like punishment, pains, penalties . . . of every
kind, and to no other." Id. (emphasis added).
__ __ _____ ___
1. Domina and McDonald's
1. Domina and McDonald's
_____________________
The district court initially excluded, as incompetent,
see Fed. R. Civ. P. 56(e) (affidavits may be considered at
___
summary judgment only if facts attested to are based on admissi-
ble evidence); Fed. R. Evid. 701, portions of the deposition
testimony of six witnesses the five Alexis family members and
Karen Stauffer, an eyewitness to the events each of whom
opined, in effect, that had Alexis been "a rich white woman," she
would not have been treated in the same manner. The court found
that the proffered testimony was "not supported by sufficient
factual undergirding" to permit a reasonable inference that
either Domina or McDonald's discriminated against Alexis on the
basis of her race. The court nonetheless allowed Alexis further
time to submit supplemental affidavits setting forth more partic-
ular grounds for the conclusory deposition testimony relating to
racial animus. Alexis failed to do so.
Opinion testimony from lay witnesses is admissible only
____________________
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains, penal-
ties, taxes, licenses, and exactions of every kind, and
to no other.
9
if it is "rationally based on the perception of the witness and .
. . helpful to a clear understanding of the witness' testimony or
the determination of the fact in issue." Fed. R. Evid. 701; see
___
Swajian v. General Motors Corp., 916 F.2d 31, 36 (1st Cir. 1990).
_______ ____________________
Rulings on the admissibility of lay opinion testimony are re-
viewed only for "manifest abuse of discretion." United States v.
_____________
Jackman, 48 F.3d 1, 4 (1st Cir. 1995) (citing Keller v. United
_______ ______ ______
States, 38 F.3d 16, 31 (1st Cir. 1994)). The exclusionary ruling
______
was well within the district court's broad discretion.
The six deponents based their inferences of racial
animus on their personal observations that Domina reacted "angri-
ly" toward Alexis and with "a negative tone in her voice," was
"unfriendly," "uncooperative," "high strung," "impolite," "impa-
tient," and had "no reason" to eject Alexis. Although these
observations may be entirely compatible with a race-based animus,
there simply is no foundation for an inference that Domina
harbored a racial animus toward Alexis or anyone else, absent
some probative evidence that Domina's petulance stemmed from
something other than a race-neutral reaction to the stressful
encounter plainly evidenced in the summary judgment record,
including Alexis's persistence (however justified). As the
depositions disclosed no evidentiary foundation for an inference
of racial animus, the conclusory lay opinions were properly
______
excluded. See Fed. R. Evid. 701(a); Fed. R. Civ. P. 56(a);
___
Willco Kuwait (Trading) S.A.K. v. deSavary, 843 F.2d 618, 624
_______________________________ ________
(1st Cir. 1988) (lay opinion testimony, which does little more
10
than tell the jury what result to reach, should not be admitted);
see also Connell v. Bank of Boston, 924 F.2d 1169, 1177-78 (1st
___ ____ _______ ______________
Cir.) (lay opinion that employer was "`determined to eliminate
. . . senior employees'" pointed to no specific facts suffi-
cient to buttress such a "broad assertion") (ADEA claim), cert.
_____
denied, 501 U.S. 1218 (1991); cf. Gross v. Burggraf Constr. Co.,
______ __ _____ ____________________
53 F.3d 1531, 1544 (10th Cir. 1995) (determining inadmissible the
lay opinion of co-worker that sexual harassment defendant had "`a
problem with women who were not between the ages of 19 and 25 and
who weighed more than 115 pounds'"); Coca-Cola Co. v. Overland,
______________ _________
Inc., 692 F.2d 1250, 1254-55 (9th Cir. 1982) (upholding exclusion
____
of lay opinion testimony by bar and restaurant employees that
customers used term "Coke" in generic sense).
As Alexis points to no competent evidence that Domina
and McDonald's intentionally discriminated against her on account
of her race, the district court correctly ruled that this section
1981 claim was not trialworthy. See Dartmouth Review, 889 F.2d
___ ________________
at 18 ("`Disputes generally arise out of mutual misunderstanding,
misinterpretation and overreaction, and without more, such
disputes do not give rise to an inference of discrimination.'")
(quoting Johnson v. Legal Servs. of Ark., Inc., 813 F.2d 893, 896
_______ __________________________
(8th Cir. 1987)). Accordingly, the summary judgment entered in
favor of Domina and McDonald's must be affirmed.
2. Leporati
2. Leporati
________
All courts of appeals which have considered the ques-
tion have held that a misuse of governmental power motivated by
11
racial animus comes squarely within the "equal benefit" and "like
punishment" clauses of section 1981(a). See Mahone v. Waddle,
___ ______ ______
564 F.2d 1018, 1027-30 (3d Cir. 1977) (false arrest), cert.
_____
denied, 438 U.S. 904 (1978); see also Evans v. McKay, 869 F.2d
______ ___ ____ _____ _____
1341, 1344-45 (9th Cir. 1989) (reversing dismissal of section
1981 claim alleging that police officers and others instigated
"racially-motivated arrest-boycott conspiracy"); Coleman v.
_______
Franklin Parish Sch. Bd., 702 F.2d 74, 76-77 (5th Cir. 1983)
__________________________
(remanding for factfinding on section 1981 claim that school
officials denied black pupil equal benefit of laws and proceed-
ings relating to corporal punishment). We have been presented
with no basis in law or reason for departing from this solid line
of authority.
During the arrest, Sergeant Leporati stated to Mr.
Alexis: "You people have no rights. You better shut up your . .
. mouth before I arrest you too." Alexis insists that this
statement betrayed a racial animus. Leporati responds that the
statement "You people have no rights" is too general to
support the section 1981(a) claim. Given its context, we cannot
agree.
A rational factfinder who credited this statement, as
we must at summary judgment, see supra note 1, reasonably could
___ _____
infer that Leporati harbored a racial animus adequate to support
a section 1981 claim, especially since the record reflects that
the only relevant behavior or physical characteristic both
____
apparent to Leporati and shared by the Alexis family was their
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12
black skin. Indeed, a rational factfinder would be hard-pressed
to glean a more plausible inference, particularly since Leporati
has tendered no alternative interpretation supported by the
present record.6 Viewed in context, therefore, the Leporati
statement, tarring the entire family with the same brush
absent a scintilla of evidence that any member, with the possible
exception of Alexis, had said or done anything remotely wrong or
disorderly cannot reasonably be presumed so innocent as to
________ __ ________ __ __
preclude a discriminatory animus.
________
Accordingly, we hold that the evidence adduced at
summary judgment, viewed in context, was sufficient to support a
reasonable inference that Leporati not only gratuitously employed
excessive force in arresting Alexis but that his actions were
motivated by a racial animus violative of the "equal benefit" and
"like punishment" clauses of section 1981(a). Thus, Alexis
raised a trialworthy issue under section 1981 as to whether
Leporati deprived her of "the full and equal benefit" of the law
accorded white persons and the right to "like punishment . . .
____________________
6The only alternative interpretation advanced by Leporati is
that "there are objective undisputed facts which are contrary to
plaintiffs' premise (i.e. that four black people were not ordered
to leave and were not arrested)." The undisputed facts flatly
contradict a material portion of Leporati's parenthetical asser-
tion, however. When Leporati first confronted them in the dining
area, he ordered the entire Alexis family to leave. See supra p.
______ ___ _____
4. After returning to the service counter to inform Domina of
their refusal to leave, and upon learning that Topham recalled a
"problem" with Alexis in the past, Leporati returned to the table
and announced his intention to arrest only Alexis. Given his
decision to arrest only Alexis, Leporati's retort, "You people
have no rights," accompanied by the subsequent threat to arrest
Mr. Alexis, remains unexplained by any argumentation presented on
appeal.
13
[and] no other." 42 U.S.C. 1981(a).7
B. Section 1985(3)
B. Section 1985(3)
_______________
Alexis alleged that Leporati and Domina "directly and
explicitly conspired to deprive [her] of the equal protection,
equal privileges and equal rights guaranteed to her under the
Constitution and the laws of the United States" in violation of
42 U.S.C. 1985(3). A trialworthy section 1985(3) conspiracy
claim requires competent evidence that "`some racial, or perhaps
otherwise class-based, invidiously discriminatory animus'"
motivated the alleged conspirators. Bray v. Alexandria Women's
____ __________________
Health Clinic, 113 S. Ct. 753, 758 (1993) (quoting Griffin v.
_____________ _______
Breckenridge, 403 U.S. 88, 102 (1971)). Alexis predicated her
____________
____________________
7Of course, qualified immunity may be available to a police
defendant in a 1981 action. See Ricci v. Key Bancshares of
___ _____ _________________
Me., Inc., 768 F.2d 456, 467 (1st Cir. 1985) (FBI agents entitled
_________
to qualified immunity in 1981(a) action); see also Wicks v.
___ ____ _____
Mississippi St. Employment Servs., 41 F.3d 991, 996 n.21 (5th
__________________________________
Cir.), cert. denied, 115 S. Ct. 2555 (1995); Gallegos v. Denver,
_____ ______ ________ ______
984 F.2d 358, 364 (10th Cir.), cert. denied, 113 S. Ct. 2962
_____ ______
(1993); Johnson v. Estate of Laccheo, 935 F.2d 109, 112 (6th Cir.
_______ _________________
1991); cf. Yerardi's Moody St. Restaurant & Lounge, Inc. v. Board
__ _____________________________________________ _____
of Selectmen, 878 F.2d 16, 19-21 (1st Cir. 1989) (recognizing
____________
qualified immunity defense to 1983 equal protection claim
analogous to "equal benefit" claim in instant case). Neverthe-
less, qualified immunity does "not bar inquiry into a defendant's
state of mind when the applicable law makes the defendant's state
of mind (as distinct from defendant's knowledge of the law) an
_________
essential element of plaintiff's constitutional claim." Felic-
______
iano-Angulo v. Rivera-Cruz, 858 F.2d 40, 46 (1st Cir. 1988); see
___________ ___________ ___
also Tompkins v. Vickers, 26 F.3d 603, 607 (5th Cir. 1994)
____ ________ _______
(noting that every circuit to consider the question has concluded
that "a public official's motive or intent must be considered in
the qualified immunity analysis where unlawful motivation or
intent is a critical element of the alleged constitutional viola-
tion") (collecting cases). Thus, whether Leporati violated
Alexis's civil rights under 1981(a) turns on a material issue
of fact in genuine dispute, which precluded summary judgment.
See Feliciano-Angulo, 858 F.2d at 47; see also Johnson v. Jones,
___ ________________ ___ ____ _______ _____
115 S. Ct. 2151, 2158 (1995).
14
section 1985(3) conspiracy claim on Sergeant Leporati's state-
ment: "You people have no rights." Although this evidence,
viewed in context, is sufficient to enable a reasonable inference
that Leporati harbored the requisite racial animus, see supra
___ _____
Section II.A.2, there is no evidence which would support such an
inference as to Domina.
C. Section 1983
C. Section 1983
____________
The gravamen of these federal claims is that Sergeant
Leporati, acting under color of Massachusetts law, deprived
Alexis of her Fourth Amendment right to be free from unreasonable
seizure of her person in effecting her misdemeanor arrest with
excessive force, without a warrant and without probable cause.
She also claims that Domina deprived her of procedural due
process by summoning Leporati into the restaurant and directing
her removal under color of state law. Finally, she alleges that
Leporati determined to arrest her, and effected her arrest, in a
discriminatory manner, based on her race and in violation of the
Equal Protection Clause of the Fourteenth Amendment.
1. Arrest Without Probable Cause
Arrest Without Probable Cause
_____________________________
a. Leporati
a. Leporati
________
The Fourth Amendment guaranty against unreasonable
seizures of the person requires that arrests be based on probable
cause. Beck v. Ohio, 379 U.S. 89, 91 (1964); Santiago v. Fenton,
____ ____ ________ ______
891 F.2d 373, 383 (1st Cir. 1989). The "probable cause" analysis
entails "`an objective assessment of the officer's actions in
light of the facts and circumstances confronting him at the time'
15
and not [an assessment of] the officer's state of mind at the
time the challenged action was taken." Maryland v. Macon, 472
________ _____
U.S. 463, 470-71 (1985) (quoting Scott v. United States, 436 U.S.
_____ _____________
128, 136 (1978)). Probable cause will be found if "the facts and
circumstances within [the officer's] knowledge and of which [he]
had reasonably trustworthy information were sufficient to warrant
a prudent [person] in believing that the [defendant] had commit-
ted or was committing an offense." Rivera v. Murphy, 979 F.2d
______ ______
259, 263 (1st Cir. 1992).
i. Revocation of Invitation
i. Revocation of Invitation
________________________
Although appellants argue that the district court erred
in finding probable cause for Alexis's arrest, we perceive no
error. As previously noted, Alexis was arrested for criminal
trespass, a misdemeanor under the applicable Massachusetts
statute: Whoever, without right
_______ _____
enters or remains in or
______ __ _______
upon the . . . buildings
. . . of another, after
having been forbidden so
to do by the person who
has lawful control of
said premises . . . shall
be punished by a fine of
not more than one hundred
dollars or by imprison-
ment for not more than
thirty days or both such
fine and imprisonment. .
. . A person who is
found committing such
trespass may be arrested
___ __ ________
by a . . . police officer
and kept in custody in a
convenient place, not
more than twenty-four
hours, Sunday excepted,
until a complaint can be
made against him for the
16
offence, and he be taken
upon a warrant issued
upon such complaint.
Mass. Gen. Laws Ann. ch. 266, 120 (emphasis added). Thus,
under chapter 266, section 120, a person who remains, without
_______
right, on the property of another commits a continuing misdemean-
or for which she may be subjected to a warrantless arrest by a
police officer provided there is probable cause. Id.
___
The undisputed facts demonstrate that Domina expressly
directed Alexis to leave the restaurant, but that Alexis never-
theless refused to leave until she and her family had finished
eating. Appellants cite no authority for their implicit sugges-
tion that Massachusetts recognizes an exception to the seemingly
absolute right of a private business owner to withdraw, without
cause, its implied license to enter a business establishment.
Cf. State v. Tauvar, 461 A.2d 1065, 1067 (Me. 1983) (Maine
__ _____ ______
trespass statute permits revocation of implied invitation only
____
where business owner "has some justification for requesting
removal"); Model Penal Code 221.2(3)(b) (affirmative defense to
criminal trespass requires evidence that "premises . . . open to
members of the public and [defendant] complied with all lawful
conditions imposed on access to or remaining in the premises").
Moreover, we have combed Massachusetts law for such an exception,
to no avail.
It has been held, of course, and we do not question,
that a Massachusetts business property owner may not violate the
constitutional or statutory rights of its business licensees
17
under the shield of the Massachusetts trespass statute. See
___
Hurley v. Hinckley, 304 F. Supp. 704, 710 (D. Mass. 1969) ("The
______ ________
words `without right' in the context of the historical concept of
trespass can only mean: [`]without any legal right; without any
right, permission or license recognized by law as permitting an
entry into the area described in the statute.['] . . . The
concept [of] legal right in the context of today's constitutional
developments includes any right of the plaintiffs, individually
or collectively, found in the Constitution of the United States .
. . ."), aff'd mem., 396 U.S. 277 (1970); Smith v. Suburban
_____ ____ __________________
Restaurants, Inc., 373 N.E.2d 215, 218 (Mass. 1978) (noting in
_________________
libel case that "[a] place of public accommodation, as members of
the community might know, has an obligation to treat each member
of the public equally, except for good cause") (dicta) (citations
omitted); Commonwealth v. Lapon, 554 N.E.2d 1225, 1227 (Mass.
____________ _____
App. Ct. 1990) (the term "without right" encompasses constitu-
tional rights).
Nevertheless, the Massachusetts trespass statute does
not limit the power of a Massachusetts business owner summarily
_________
to revoke a business licensee's right to enter or remain upon
business premises held open to the general public. See Stager v.
___ ______
G.E. Lothrop Theatres Co., 197 N.E. 86, 87 (Mass. 1935) (finding
__________________________
that, "[g]enerally speaking," a theater owner has an absolute
right to revoke theater-goer's license to enter or remain on the
premises); cf. Baseball Publishing Co. v. Bruton, 18 N.E.2d 362,
___ _______________________ ______
363 (Mass. 1938) ("[I]t is of the essence of a license [to enter
18
private property] that it is revocable at the will of the pos-
sessor of the land. . . . The revocation of a license may
constitute a breach of contract, and give rise to an action for
damages. But it is none the less effective to deprive the
licensee of all justification for entering or remaining upon the
land."); Commonwealth v. Hood, 452 N.E.2d 188, 194 (Mass. 1983)
____________ ____
(stating that Massachusetts trespass statute "`protect[s] the
rights of those in lawful control of property to forbid entrance
by those whom they are unwilling to receive, and to exclude them
if, having entered, those in control see fit to command them to
leave'") (quoting Commonwealth v. Richardson, 48 N.E.2d 678, 682
____________ __________
(Mass. 1943)); see also State v. Bowman, 866 P.2d 193, 202 (Idaho
___ ____ _____ ______
Ct. App. 1993) (in case involving business invitees who purchased
movie theater tickets, holding that Idaho trespass statute "does
not require that the owner[s] of private property have any reason
for asking trespassers to get off their land"); Impastato v.
_________
Hellman Enters., Inc., 537 N.Y.S.2d 659, 661 (N.Y. App. Div.
______________________
1989) (same). Absent some invidious ulterior purpose, therefore,
once proper notice has been given by the owner, and the business
licensee nonetheless remains on the property, the Massachusetts
trespass statute permits arrest of the uncooperative trespasser.
See Hood, 452 N.E.2d at 194.
___ ____
Although the Massachusetts trespass statute does not
___
enable business owners to exclude business licensees on discrimi-
natory grounds, Hurley, 304 F. Supp. at 710, Alexis proffered no
______
competent evidence that Domina or McDonald's, as distinguished
19
from Leporati, sought to exclude her on the basis of her race.
See supra Section II.A.1. Thus, on the record evidence, Domina
___ _____
acted within her lawful authority as "the person [having]
lawful control of said premises," Mass. Gen. Laws Ann. ch. 266,
120 in revoking Alexis's implied license to utilize McDonald's
dining facilities.
ii. Probable Cause
ii. Probable Cause
______________
Probable cause exists if "the facts and circumstances
within [a police officer's] knowledge and of which [the officer]
had reasonably trustworthy information [are] sufficient in
themselves to warrant a [person] of reasonable caution" to
believe that a crime has been committed or is being committed.
Carroll v. United States, 267 U.S. 132, 162 (1925); United States
_______ _____________ _____________
v. Drake, 673 F.2d 15, 17 (1st Cir. 1982). Leporati effected
_____
this arrest based on the eyewitness report from Domina that
Alexis had created an "unwarranted disturbance" and refused to
leave the premises, and on the representation by Sherry Topham
that there had been an unspecified "problem" with Alexis in the
past. An objectively reasonable police officer so informed by
the person in charge of the business premises, see supra note 2,
___ _____
fairly could conclude that the implied license extended to Alexis
had been revoked and that there was probable cause to believe
that her continued presence constituted a criminal trespass. See
___
Mass. Gen. Laws Ann. ch. 266, 120 ("A person . . . found
committing such trespass may be arrested by a . . . police
officer . . . ."); see also United States v. Figueroa, 818 F.2d
___ ____ _____________ ________
20
1020, 1023 (1st Cir. 1987) ("The constitutionality of a warrant-
less arrest `depends . . . upon whether, at the moment the arrest
was made, the officers had probable cause to make it -- whether
at that moment the facts and circumstances within their knowledge
and of which they had reasonably trustworthy information were
sufficient to warrant a prudent [person] in believing that the
[defendant] had committed or was committing an offense.'")
(quoting Beck, 379 U.S. at 91). Accordingly, we discern no error
____
in the district court ruling that appellants failed to establish
a trialworthy dispute on the issue of probable cause to arrest.
b. Domina
b. Domina
______
A section 1983 claim does not lie absent state action.
Casa Marie, Inc. v. Superior Court of P.R., 988 F.2d 252, 258
________________ _______________________
(1st Cir. 1993); 42 U.S.C. 1983 (providing remedy for depriva-
tions "under color of any statute, ordinance, regulation, custom,
or usage" of any state or territory). There are two components
to the "state action" requirement. First, the deprivation must
be shown to have been caused by the exercise of some right or
privilege created by the state, or by a rule of conduct imposed
by the state, or by a person for whom the state is responsible.
Casa Marie, 988 F.2d at 258. Second, the party charged with the
__________
deprivation must be a person who may fairly be said to be a state
actor. Id. Where a private individual is a defendant in a
___
section 1983 action, there must be a showing that the private
party and the state actor jointly deprived plaintiff of her civil
rights. Wagenmann v. Adams, 829 F.2d 196, 209 (1st Cir. 1987);
_________ _____
21
Casa Marie, 988 F.2d at 258-59; see also Dennis v. Sparks, 449
__________ ___ ____ ______ ______
U.S. 24, 27-28 (1980) ("Private persons, jointly engaged with
state officials in the challenged action, are acting `under
color' of law for purposes of 1983 actions.").
There was no evidence of joint discriminatory action
between Leporati and Domina whether by plan, prearrangement,
conspiracy, custom, or policy which would enable a rational
factfinder to conclude that Alexis's arrest resulted from con-
certed action tantamount to substituting the judgment of a
private party for that of the police or allowing the private
party to exercise state power. Compare Wagenmann, 829 F.2d at
_______ _________
209-11 (close relationship between private citizen and deputy
police chief, together with evidence that private actor and
police collectively determined to arrest plaintiff, raised
inference that private actor was more than "mere complainant" and
that a "meeting of the minds" occurred between police and private
defendant sufficient to warrant finding that defendant was state
actor) with Carey v. Continental Airlines, Inc., 823 F.2d 1402,
____ _____ __________________________
1404 (10th Cir. 1987) (airline employee, who complained of
striking airline pilot's presence in airport terminal and refusal
to leave, found not to be state actor where police officer
summoned to airport terminal asked pilot to leave and, upon
pilot's refusal, called for three additional officers who escort-
ed pilot to airport security station where he was arrested); see
___
also Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970)
____ _______ ___________________
(holding that white schoolteacher, in company of six black youths
22
denied service at lunch counter, would be entitled to relief
under section 1983 upon proof that lunch counter employee and
____ _____ ____ _____ _______ ________ ___
policeman had reached an understanding to deny service to teacher
_________ ___ _______ __ _____________
because she was a white person in company of blacks). As there
is no evidence in the summary judgment record from which it could
fairly be inferred that Domina and Leporati had any understand-
ing, tacit or explicit, to deprive Alexis of any right secured by
the Constitution or laws of the United States, we conclude that
the district court correctly granted summary judgment for Domina
on this section 1983 claim.8
2. Excessive Force
2. Excessive Force
_______________
Alexis asserts an "excessive force" claim under the
Fourth Amendment, which guarantees citizens the right "to be
secure in their persons . . . against unreasonable . . . sei-
zures." See Graham v. Connor, 490 U.S. 386, 394 (1989) ("Where
___ ______ ______
[an] excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly charac-
terized as one invoking the protections of the Fourth Amendment .
. . ."). In the Fourth Amendment setting, a viable excessive
force claim must demonstrate that the police defendant's actions
were not objectively reasonable, viewed in light of the facts and
circumstances confronting him and without regard to his underly-
ing intent or motivation. Id. at 397 ("An officer's evil inten-
___
tions will not make a Fourth Amendment violation out of an
objectively reasonable use of force; nor will an officer's good
____________________
8Alexis asserts no section 1983 claim against McDonald's.
23
intentions make an objectively unreasonable use of force consti-
tutional.") (citations omitted).9
As the Supreme Court has counseled, our inquiry must be
undertaken from the perspective of "a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight." Id. at
___
396 (citations omitted). Though the reasonableness test under
the Fourth Amendment "`is not capable of precise definition or
mechanical application,'" id. (quoting Bell v. Wolfish, 441 U.S.
___ ____ _______
520, 559 (1979)), "`[n]ot every push or shove'" will reach the
level required for an actionable "excessive force" claim. Id.
___
(citation omitted); Gaudreault v. Salem, 923 F.2d 203, 205 (1st
__________ _____
Cir. 1990) ("[P]olice officers making arrests are often forced to
make split-second decisions about the amount of force needed to
effect an arrest while operating under tense, dangerous and
rapidly-changing circumstances."), cert. denied, 500 U.S. 956
_____ ______
(1991). Accordingly, Graham prescribes three criteria for
______
evaluating the objective reasonableness of the force used: (1)
"the severity of the crime at issue;" (2) "whether the suspect
poses an immediate threat to the safety of the officers or
others;" and (3) "whether [the suspect] is actively resisting
arrest or attempting to evade arrest by flight." Graham, 490
______
U.S. at 396; see also Gaudreault, 923 F.2d at 205.
___ ____ __________
All three Graham factors, viewed in the context of "the
______
____________________
9Of course, if evidence of racial discrimination were
presented at trial, it would be for the factfinder in assess-
ing the officer's credibility to determine whether the officer
harbored ill will toward the plaintiff. Graham, 490 U.S. at 399
______
n.12.
24
totality of the circumstances," Graham, 490 U.S. at 396; see also
______ ___ ____
supra p. 5, weigh heavily in favor of Alexis. First, the crime
_____
for which she was arrested criminal trespass is a misde-
meanor. See Mass. Gen. Laws Ann. ch. 266, 120 (maximum term 30
___
days). Second, there is no suggestion that Alexis posed a threat
to the peace or safety of anyone, including Sergeant Leporati and
Officer Fuer. Third, taking her evidence at face value, Alexis
neither threatened nor attempted to evade or resist arrest. Nor
did any Alexis family member pose a threat to the officers or
anyone else. Yet, without even having been requested or directed
to get up from the table and though all the surrounding
circumstances, individually and in combination, plainly counseled
minimal force in effecting any arrest Alexis was abruptly
pulled from the booth, and across the table, with sufficient
force to bruise her legs, then handcuffed with her hands behind
her back and dragged and carried to a police cruiser and pushed
inside.
Viewed in context and accepted as true, we are not
persuaded that the record evidence compelled the conclusion that
the force with which Leporati effected the sudden, unannounced,
violent seizure and removal of Alexis's person was objectively
reasonable, especially since there is no evidence or suggestion
that she posed a risk of flight, attempted to resist or evade
arrest, or threatened the peace, property or safety of any-
25
one.10 See Palmer v. Sanderson, 9 F.3d 1433, 1436 (9th Cir.
___ ______ _________
1993) (finding trialworthy "excessive force" claim where deputy
sheriff arrested, tightly handcuffed, and bruised sixty-seven-
year-old man with impaired mobility who attempted to return to
his car to sit down while answering officer's questions); see
___
also Rowland v. Perry, 41 F.3d 167, 171-74 (4th Cir. 1994)
____ _______ _____
(finding trialworthy "excessive force" claim where police officer
injured arrestee's leg ("wrenching the knee until it cracked")
after arrestee picked up five dollar bill dropped by its owner);
cf. Lester v. Chicago, 830 F.2d 706, 714 (7th Cir. 1987) (pre-
___ ______ _______
Graham case) (holding that plaintiff stated trialworthy Fourth
______
Amendment "excessive force" claim when, during course of arrest
for disturbing peace, plaintiff was kneed in the back, threatened
with being struck, dragged down a hallway, and handcuffed tight-
ly, causing bruises on her wrists); Patzner v. Burkett, 779 F.2d
_______ _______
1363, 1371 (8th Cir. 1985) (pre-Graham case) (finding trialworthy
______
"excessive force" claim where uncooperative double amputee
arrested at home after allegedly driving under the influence
was pulled from wheelchair to floor, then dragged through home
after promising to cooperate).11 Accordingly, the "excessive
____________________
10The district court did not discuss qualified immunity in
relation to the "excessive force" claim. Nor do we, as any such
defense is for the district court in the first instance.
11Contrary to Leporati's suggestion, a trialworthy "exces-
sive force" claim is not precluded merely because only minor
injuries were inflicted by the seizure. See Lester, 830 F.2d at
___ ______
714 (finding reversible error in district court "excessive force"
instruction which required jury to find "severe injury," thus may
have led jury to find for defendant where plaintiff's physical
injuries consisted only of bruises); see also Harper v. Harris
___ ____ ______ ______
26
force" claim must be remanded for further proceedings.12
3. Equal Protection
3. Equal Protection
________________
Alexis claims that Leporati discriminated against her
on the basis of her race, both in deciding to enforce the crimi-
nal trespass statute by effecting her immediate arrest, and by
_________ ______
employing unreasonable force. Even assuming probable cause to
arrest, she argues that Leporati would not have effected an
immediate seizure of her person for so minor an infraction, nor
used such excessive force, were it not for the color of her skin.
In order to avoid summary judgment on her Equal Protec-
tion Clause claim, Alexis had to tender competent evidence that a
state actor intentionally discriminated against her because she
belonged to a protected class. Johnson v. Morel, 876 F.2d 477,
_______ _____
479 (5th Cir. 1989) (citing Washington v. Davis, 426 U.S. 229,
__________ _____
247-48 (1976)), overruled on other grounds, Harper v. Harris
_________ __ _____ _______ ______ ______
County, 21 F.3d 597, 600 (5th Cir. 1994). This she did. See
______ ___
supra Section II.A.2. A rational factfinder, who credited
_____
Alexis's evidence of racial animus and excessive force, could
conclude that Leporati resolved, on the basis of her race, to
enforce the criminal trespass statute by effecting an immediate
____________________
County, 21 F.3d 597, 600 (5th Cir. 1994) (holding that plaintiff
______
need not prove "significant injury" to assert Fourth Amendment
"excessive force" claim).
12We likewise remand for further proceedings the "excessive
force" claim under Mass. Gen. Laws Ann. ch. 12, 11I, upon which
the district court granted summary judgment on the identical
grounds relied on for the section 1983 "excessive force" claim.
27
seizure of her person. See Yick Wo v. Hopkins, 118 U.S. 356,
___ _______ _______
373-74 (1886) ("[I]f [the law] is applied and administered by
public authority with an evil eye and an unequal hand, so as
practically to make unjust and illegal discriminations between
persons in similar circumstances, material to their rights, the
denial of equal justice is still within the prohibition of the
constitution."); Johnson, 876 F.2d at 479 (plaintiff stated
_______
viable Equal Protection Clause claim, where officer humiliated
and harassed plaintiff prior to and during lawful arrest on basis
______
of plaintiff's race); United States v. Scopo, 19 F.3d 777, 786
_____________ _____
(2d Cir.) ("Though the Fourth Amendment permits a pretext arrest,
if otherwise supported by probable cause, the Equal Protection
Clause still imposes restraint on impermissibly class-based
discriminations.") (Newman, C.J., concurring), cert. denied, 115
_____ ______
S. Ct. 207 (1994); Inada v. Sullivan, 523 F.2d 485, 489 (7th Cir.
_____ ________
1975) (finding right of action under Equal Protection Clause
where police officer, motivated by animus toward plaintiff's
ancestry, threatened him with deportation); Tanner v. Heise, 879
______ _____
F.2d 572, 580 n.5 (9th Cir. 1989) (where plaintiff alleged "equal
protection" violation, police officers' "mere compliance" with
state law would not shield them from liability under 1983,
provided plaintiff could prove that officers' motivation for
arrest was to harass plaintiff because of his religious beliefs).
Furthermore, a rational factfinder could conclude that, in
electing to use excessive force to effect the violent seizure of
Alexis's person and her forcible removal from the restaurant,
28
Leporati was motivated by a discriminatory animus. See Smith v.
___ _____
Fontana, 818 F.2d 1411, 1420 (9th Cir.) (finding actionable claim
_______
where it was alleged that decedent had been subdued through use
of excessive force because he was black), cert. denied, 484 U.S.
_____ ______
935 (1987). We therefore hold, based on the present record, that
the Equal Protection Clause claims under section 1983 are trial-
worthy.13
D. State Law Claims
D. State Law Claims
________________
Since only one state law claim was addressed on the
merits below, see supra note 12, and federal claims remain
___ _____
pending, the state law claims against Leporati must be remanded
as well. See 28 U.S.C. 1367(c)(3) (district court may decline
___
to exercise supplemental jurisdiction where all claims over which
court has original jurisdiction have been dismissed). The
dismissal of the state-law claims against the remaining defen-
dants is affirmed.
III
III
CONCLUSION
CONCLUSION
__________
The district court judgment dismissing the section 1983
claim against Leporati for arresting Alexis without probable
cause in violation of the Fourth Amendment is affirmed. The
judgments entered in favor of Domina and McDonald's on the
____________________
13Of course, Alexis's equal protection claim requires a
showing that Leporati treated her differently than he would have
treated a white person. We leave open the question of what, if
any, additional evidence might be required at trial to satisfy
__ _____
this element. See Johnson, 876 F.2d at 483-84 (concurring
___ _______
opinion).
29
section 1981 claim; Domina and Leporati on the section 1985(3)
claim; and Domina on the section 1983 procedural due process
claim are affirmed. The district court judgment entered in favor
of Leporati on the section 1981, excessive force, and Equal
Protection Clause claims is vacated, and these claims are remand-
ed for further proceedings consistent with this opinion, along
with all pendent state law claims against Leporati, see 28 U.S.C.
___
1367(c)(3). The parties shall bear their own costs on appeal.
SO ORDERED.
SO ORDERED.
__ _______
- Separate Opinion Follows -
30
BOWNES, Senior Circuit Judge, concurring, in part, and
BOWNES, Senior Circuit Judge,
____________________
dissenting, in part. I concur in all of the court's holdings
except the one dismissing the section 1983 claim against Domina.
The evidence taken in the light most favorable to the plaintiffs
is sufficient, I believe, for a reasonable factfinder to conclude
that there was a conspiracy between Domina and Leporati to
discriminate against the plaintiff, Yvonne Alexis, because of the
color of her skin.
I.
I.
The facts from which such a conspiracy could rationally
be inferred are as follows. A dispute over an incorrect food
order occurred at the McDonald's service counter between plain-
tiff Yvonne Alexis, an African American woman, Donna Domina, the
"swing manager," and the counterperson, Alfredo Pascacio. After
the dispute was over, Shirley Topham, a McDonald's managerial
employee, went outside the restaurant for police assistance. She
returned with Officer Leporati, a uniformed off-duty police
officer assigned to McDonald's pursuant to an agreement between
McDonald's and the Town of Framingham. Leporati conferred with
both Topham and Domina, who identified Yvonne Alexis as "that
black woman." Domina told Leporati that she wanted Alexis out of
the restaurant. Domina made this request even though she was
aware Yvonne Alexis and her family had already taken seats
preparatory to eating the food they had purchased.
Officer Leporati neither asked Topham and Domina why he
should make Alexis leave the restaurant nor made inquiries of
28
anybody else as to the behavior of the Alexis family. Based
solely on his initial discussion with Domina and Topham, Leporati
proceeded to the dining room table where the Alexis family sat
quietly eating their food. He told Yvonne Alexis that she and
her entire family had to leave the premises. Yvonne Alexis
stated that they would not leave until they finished eating.
Upon hearing this, Officer Leporati left the dining area and
conferred again with Topham and Domina. He told them that Alexis
refused to leave. During this second discussion, Topham
said she had a problem with this woman on a prior occasion.
Domina then said, "Well, if that's the case, then maybe we should
have her leave." Neither Domina nor Officer Leporati requested
information about the alleged prior problem with Alexis. Signif-
icantly, Officer Leporati again failed to inquire as to why he
was being told to remove Alexis from the restaurant. Instead, he
said that "it wouldn't be pretty" but he would make Yvonne Alexis
leave if Domina wanted him to. Domina then told him that she
wanted Yvonne Alexis out of the restaurant.
Officer Leporati returned to the Alexis table and
notified Yvonne Alexis that she would be arrested unless she left
within the ten minutes it would take his backup cruiser to
arrive. Neither Yvonne nor any member of her family left. When
the cruiser arrived, Officer Leporati physically pulled Yvonne
Alexis out of her seat and over the table at which she and her
family had been eating, bruising her in the process. Yvonne
Alexis was then handcuffed, pushed into the cruiser, and taken to
29
jail.
Both Yvonne Alexis and her husband protested the
violent treatment she received from Officer Leporati during her
removal from the restaurant. At one juncture, Mr. Alexis ex-
claimed, "We have rights," to which Officer Leporati retort-
ed,"You people have no rights. You better shut up your [exple-
tive] mouth before I arrest you too." Officer Leporati made
these comments while still inside the restaurant.
II.
II.
The majority opinion's cursory treatment of Alexis'
section 1983 claims overlooks several factual bases for finding
that there was a conspiracy within section 1983's "under color of
law" requirement between Domina and Leporati. See Lugar v.
___ ________
Edmonson Oil Co., 457 U.S. 922, 928 (1982)("'under color of law'
_________________
has consistently been treated as the same thing as the 'state
action' required under the Fourteenth Amendment"). Evidence
submitted at trial, when viewed in the "light most favorable to
the nonmoving party" and with "all reasonable inferences in that
party's favor," Colonial Courts Apartment Co. v. Proc. Assocs.,
_______________________________________________
57 F.3d 119, 122 (1st Cir. 1995), supports the view that Alexis'
arrest resulted from concerted action between Domina and Lep-
orati.
Section 1983 conspiracies are "commonly defined as 'a
combination of two or more persons acting in concert to commit an
unlawful act, or to commit a lawful act by unlawful means, the
principal element of which is an agreement between the parties
30
'to inflict a wrong against or injury upon another' . .. ."
Earle v. Benoit, 850 F.2d 836, 844 (1st Cir. 1988)(quoting
_________________
Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979), rev'd
____________________ _____
in part on other grounds, 446 U.S. 754 (1980)). Under this
__ ____ __ _____ _______
definition, section 1983 liability attaches to private actors
deemed "willful participant[s] in [a] joint action with a State
or its agents." Lugar, 457 U.S. at 941; Dennis v. Sparks, 449
_____ _________________
U.S. 24, 27 (1980); Casa Marie, Inc. v. Superior Court of Puerto
_____________________________________________
Rico, 988 F.2d 252, 259 (1st Cir. 1993). And joint action may be
____
proved by circumstantial evidence of a prearranged conspiracy.
See Wagenmann v. Adams, 829 F.2d 196, 211 (1st Cir. 1987); see
___ ___________________ ___
also Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1352
____ _____________________________________
(7th Cir. 1985).
I do not contend that joint action existed in this case
because Leporati worked the McDonald's detail or that Domina's
supervisor, Shirley Topham, requested his assistance. This court
has clearly stated that "merely initiating a good faith request
for police protection would not attach liability for the subse-
quent unconstitutional conduct of arresting officers." Wagen-
______
mann, 829 F.2d at 210; see also Lusby v. T.G. & Y. Stores, Inc.,
____ ___ ____ ________________________________
749 F.2d 1423, 1433 (10th Cir. 1984), vacated on other grounds
_______ __ _____ _______
sub nom. City of Lawton v. Lusby, 474 U.S. 805 (1985), aff'd by
___ ____ _______________________ _____ __
796 F.2d 1307 (10th Cir. 1986)(a store that employs an off-duty
police officer is not vicariously liable under section 1983 for
such officer's deprivation of customer's civil rights). But, I
am persuaded by the fact that Domina and Leporati conferred on
31
two separate occasions before Alexis' brutal arrest. The record
establishes that Domina, not Leporati, made the decision to expel
Alexis from McDonald's premises, and that she made that decision
with the knowledge that some harm could befall Alexis (Alexis'
removal "would not be pretty"). And it is clear that Domina knew
that Leporati would do as she requested.
Viewed in context, the events precipitating Yvonne
Alexis' claims against Domina cast a long shadow of doubt on the
majority's conclusion that there was "no evidence" to suggest
Alexis' claims against Domina should have survived summary
judgment. The facts -- that Leporati consulted with Domina on
two occasions; that Leporati based his decision to arrest Alexis
on Domina's order; and that it could be found that both Leporati
and Domina took Yvonne Alexis' race into account -- certainly
suggest something more than independent, race neutral, police
action. A factfinder could reasonably infer that Domina and
Leporati were acting in concert with one another according to an
informal plan whereby Leporati would eject anyone from the
restaurant identified by Domina as a problem without independent-
ly investigating the situation.
Evidence of such substituted judgment arrangements
provides a basis for extending section 1983 liability to private
actors. See Cruz v. Donnelly, 727 F.2d 79, 81 (3d Cir. 1984)
___ _________________
(holding evidence of a pre-arranged plan to arrest suspected
shoplifters without independently investigating the presence of
probable cause was needed to confer section 1983 liability);
32
Lusby, 749 F.2d at 1432-33. While it generally does not suffice
_____
to show that a police officer fulfilled a private actor's request
to arrest someone, courts will impose liability where it is
evident the police officer would not have acted without the
private actor's order. Cruz, 727 F.2d at 81. A failure to
____
investigate, though not dispositive, has been deemed sufficiently
demonstrative of conspiratorial conduct. See Lusby, 749 F.2d at
___ _____
1432.
Despite the majority's attempts to do so, this case
cannot be squared with the holding in Carey v. Continental
______________________
Airlines, Inc., 823 F.2d 1402 (10th Cir. 1987). In that case the
______________
Tenth Circuit found that there was no substituted judgment where
a police officer was called into an airport to arrest a striking
airline pilot. The police officer in Carey, however, was more of
_____
an independent actor than the facts show Officer Leporati was in
this case. That officer actually conducted a separate inquiry
into the facts before arresting the pilot. 823 F.2d at 1403.
Officer Leporati failed to investigate at all, choosing to act
solely at Domina's behest. Additionally, it is worth noting that
the use of excessive force and obvious racial overtones that
marked Officer Leporati's actions in this case were not present
in Carey.
_____
The current case more closely patterns Wagenmann v.
_____________
Adams, 829 F.2d 196 (1st Cir. 1987), a case the majority attempts
_____
to distinguish. In that case the private actor enjoyed a close
relationship with local police officers and enlisted them in
33
carrying out a plan to eject a potential agitator from his son's
wedding ceremony. We held that a section 1983 conspiracy exist-
ed, concluding that the defendant in that case was essentially
using the law enforcement officials involved to achieve his own,
unconstitutional ends. 829 F.2d at 211.
A sound evidentiary basis exists for concluding Domina
and Leporati adhered to a substituted judgment policy not unlike
the one deemed constitutionally violative in Wagenmann. First,
_________
the record reveals Domina, not Leporati, as the impetus for the
decision to eject Yvonne Alexis. Second, Domina and Leporati,
as individuals who worked at McDonald's, could be found to have
had a shared understanding to deprive Yvonne Alexis of her
rights. See Adickes v. Kress, 398 U.S. 144, 152 (1970). Lep-
___ _______ _____
orati worked the McDonald's detail on numerous occasions and must
have had a working knowledge of company policy and decision
making procedures for removals. Finally, the conversations
Domina and Leporati held regarding Alexis were sufficient in
duration and number to cement a conspiracy. These factors
convince me that the independent police actions which persuaded
the Tenth Circuit that no private liability existed in Carey are
_____
not present in this case.
I am not dissuaded by the absence of conclusive evi-
dence that an express plan to discriminate existed between Domina
and Leporati. The Supreme Court has found a section 1983 viola-
tion where there was no formal plan to discriminate. In Adickes
_______
v. Kress & Co., 398 U.S. 144 (1970), the Court held that a
________________
34
policeman's presence in a segregated lunch counter might be
enough to infer a conspiracy between the police officer and the
establishment, where the plaintiff had both been refused service
and arrested. In a notable decision the Seventh Circuit found a
conspiracy where the state agents with whom the private actor
conspired were not actively involved in the deprivation of
rights. See Soldal v. County of Cook, 942 F.2d 1073 (7th Cir.
___ _________________________
1991), rev'd on other grounds by 113 S. Ct. 538 (1992)(finding
_____ __ _____ _______ __
that private owner and deputy sheriffs conspired to "get rid of a
pesky tenant" when sheriffs passively watched an unlawful evic-
tion). It was not necessary that there be evidence of an express
plan between Domina and Leporati to implicate section 1983.
There was sufficient evidence from which a factfinder
could conclude that Domina and Officer Leporati conspired togeth-
er to deprive Yvonne Alexis of her due process right not to be
arrested without probable cause and that such deprivation was
based on the color of Alexis' skin.
For the reasons discussed above, I would reverse the
judgment of the district court on the section 1983 claims brought
against Donna Domina.
35
