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Kauch v. City of Cranston, 02-2329 (2003)

Court: Court of Appeals for the First Circuit Number: 02-2329 Visitors: 2
Filed: Mar. 25, 2003
Latest Update: Feb. 21, 2020
Summary: , Marc DeSisto, with whom DeSisto Law was on brief for appellees, Town of Glocester, David Piccirillo, and Joseph Mattera.police officers.Berrigan, while preserving his extant child-visitation rights.evening, he was arrested for violating the no-contact order.that Kauch had contacted her at home.
         Not for Publication in West's Federal Reporter
       Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                      For the First Circuit

No. 02-2329
                         BRIAN S. KAUCH,

                      Plaintiff, Appellant,

                                v.

                    CITY OF CRANSTON, ET AL.,

                      Defendants, Appellees.




          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

          [Hon. Ronald R. Lagueux, U.S. District Judge]



                              Before

                      Lynch, Circuit Judge,

              Cyr and Stahl, Senior Circuit Judges.



     Joseph R. Palumbo, Jr., on brief for appellant.
     William T. Murphy, with whom William T. Murphy Law Offices,
Inc. was on brief for appellees City of Cranston, Cranston Finance
Director, and Officer Matthew Kite.
     Marc DeSisto, with whom DeSisto Law was on brief for appellees
Town of Glocester, David Piccirillo, and Joseph Mattera.



                          March 24, 2003
              Per Curiam.     Brian S. Kauch challenges a district court

judgment which dismissed his false-arrest claims against three

police officers.       See 42 U.S.C. § 1983.       We affirm.

              Pursuant to an extant restraining order entered by the

Family Court, Kauch was entitled to visit with his children each

Wednesday from 4:00 to 8:00 p.m., every other weekend, and on

additional occasions mutually agreeable to Kauch and his ex-wife,

Joan Berrigan.      On June 14, 2000 — a Wednesday — the Family Court

entered an order restraining Kauch from further contact with

Berrigan, while preserving his extant child-visitation rights.

Shortly after Kauch telephoned Berrigan at her residence that same

evening, he was arrested for violating the no-contact order.

              On appeal, Kauch contests the qualified-immunity defenses

asserted by the three arresting officers pursuant to section 1983.

First,   he    maintains    that   the    defendant   officers   unreasonably

understood that any contact he had with Berrigan, no matter how

innocuous, would violate the restraining order.                  See State v.

Conti,   
672 A.2d 885
,   886-87      (R.I.   1996)   (noting    that   mere

coincidental contacts are not violative of no-contact order).

Thus, in effect Kauch would have police officers determine the

nuances of criminal complaints prior to making an arrest.

              On the contrary, the “[p]olice are afforded immunity

[from § 1983 actions for damages] ‘so long as the presence of

probable cause [to arrest] is at least arguable.’”                  Fletcher v.


                                         -2-
Town of Clinton, 
196 F.3d 41
, 53 (1st Cir. 1999) (emphasis added;

citation omitted).           The   defendants     were    aware    both    that   the

restraining    order   explicitly      prohibited        Kauch    from    contacting

Berrigan at home, and that Berrigan had filed a complaint asserting

that Kauch had contacted her at home.             Further, even assuming that

the defendant policemen had been aware of it, the Conti case is at

least arguably distinguishable, in that it involved chance public

encounters, rather than a targeted telephone communication to the

private residence of the protected party.

          Second, Kauch contends that had the restraining order

been reviewed with care by the defendants beforehand, they would

have discovered that it excepted contacts necessary to arrange for

the authorized child visitations.            Be that as it may, once the

police possess an evidentiary foundation sufficient to establish

probable cause to arrest, they are not required to investigate

further   in   order    to     rule   out    all    conceivable          alternative

explanations. See United States v. Bonilla Romero, 
836 F.2d 39
, 46

(1st Cir. 1987); see also Kelley v. Myler, 
149 F.3d 641
, 646-47

(7th Cir. 1998).

          Finally, the instant restraining order arguably contains

no such exception, in that it simply permitted “visitation as

[previously] ordered.”         Thus, it would be entirely reasonable to

infer that Kauch was still entitled to the regularly-scheduled

visitations    with    his    children   —   on    Wednesdays      and     alternate



                                       -3-
weekends — which visitations would not require contact between him

and Berrigan, and that he simply was no longer entitled to contact

Berrigan to arrange for any visitations other than the regularly-

scheduled ones.

            Accordingly,   the   district   court   judgment   must   be

affirmed.    See 1st Cir. Loc. R. 27(c).




                                  -4-

Source:  CourtListener

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