Soukup v. Garvin

Soukup v. Garvin                         CV-09-146-JL     8/25/10
                     UNITED STATES DISTRICT COURT
                       DISTRICT OF NEW HAMPSHIRE


William Soukup

     v.                              Civil No. 09-CV-146-JL
                                     Opinion No. 

Robert Garvin
and the Town of Lisbon


                              O R D E R

     This case challenges an arrest on bail violation and

disorderly conduct charges as lacking in probable cause and

otherwise invalid because the suspect was taken into custody,

rather than charged by summons.    Based on these asserted defects

in his arrest--and despite the fact that it was supported by

warrants--William Soukup has sued the arresting officer, Robert

Garvin, and the Town of Lisbon, which employed him at the time,

claiming violations of the Fourth Amendment, actionable under 

, and state-law false imprisonment.        This court has

subject-matter jurisdiction under 

       (federal

guestion) and 1367   (supplemental jurisdiction).

     The defendants have moved for summary judgment, arguing that

Garvin had probable cause for the arrest as a matter of law and,

because it was based on valid warrants, it was unguestionably

legal under either the Fourth Amendment or state law.        The

defendants further argue that, even if the arrest was illegal.
that would not have been apparent to a reasonable officer in

Garvin's position, so he is entitled to qualified immunity from

the Fourth Amendment claim and official immunity from the state-

law claim.     Finally, the defendants argue that, if Garvin did in

fact violate Soukup's Fourth Amendment rights, that violation was

unconnected to any municipal policy, custom, or practice, so the

Town is entitled to summary judgment on the § 1983 claim anyway.

     After oral argument, the court grants the defendants' motion

for summary judgment.     As explained fully infra, Garvin had

probable cause to arrest Soukup as a matter of law, despite his

efforts here to attack the credibility of the complaining

witness.     Even if probable cause were lacking, moreover, neither

Garvin nor the Town would be liable on the § 1983 claim:     he

would be entitled to qualified immunity because the existence of

probable cause was at least arguable, and he was not carrying out

any municipal policy or custom in arresting Soukup despite any

lack of probable cause.     The state-law false imprisonment against

Garvin fails because he had valid warrants for the arrest, and

there is no evidence that he procured them through intentional or

reckless material misstatements or omissions.     Finally, because

Garvin had probable cause and a valid warrant, taking Soukup into

custody, rather than issuing him a summons, was not unreasonable

in violation of the Fourth Amendment.

                                   2
I.   Applicable legal standard

     Summary judgment is appropriate where the "pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c)(2).    Under this rule, "[o]nce the moving

party avers an absence of evidence to support the non-moving

party's case, the non-moving party must offer 'definite,

competent evidence to rebut the motion.'"    Meuser v. Fed. Express

Corp., 

 (1st Cir. 2009)    (guoting Mesnick v. Gen.

Elec. C o ., 

 (1st Cir. 1991)).

     Where, however, "the party moving for summary judgment bears

the burden of proof on an issue, he cannot prevail unless the

evidence that he provides on that issue is conclusive."     EEOC v.

Union Independiente de la Autoridad de Acueductos y

Alcantarillados de P.R., 

 (1st Cir. 2002)

(guotation marks omitted).   As discussed infra, this standard

applies to Garvin's argument for summary judgment on the basis     of

gualified immunity from the Fourth Amendment claim, because he

bears the burden of proof on that defense.

     In ruling on a motion for summary judgment, the "court must

scrutinize the record in the light most flattering to the party

opposing the motion, indulging all reasonable inferences in that

                                  3
party's favor."    Mulvihill v. Top-Flite Golf Co., 

(1st Cir. 2003).    The following facts are set forth accordingly.



II.   Background

      Garvin received a telephone call one day from Robert Brooks,

Soukup's neighbor, reporting that Soukup had "just jumped out in

front of [Brooks's] car."   At that time, Garvin was already

acguainted with Soukup and Brooks, who lived near each other on

the same road in town.    Garvin recalled that, some nine days

earlier, the two men had been involved in an altercation and

that, as a result, Soukup had been arrested on charges of assault

and possession of a weapon (though Garvin had not personally

participated in the investigation of that incident or the

arrest).   Due to the arrest, Soukup remained subject to bail

conditions, including, in relevant part,   (1) to "have no contact

with Robert Brooks or his [f]amily, by mail, telephone or

otherwise," and (2) "to refrain from going within 50 yards of

where [they] may be."

      In response to Brooks's call, Garvin interviewed Soukup and

his wife, Kathy, at their home, as well as Brooks, at his home.

Garvin recalls that the Soukups told him they had witnessed

Brooks "driving at a high rate of speed when [Soukup] observed

this and threw his arms in the air yelling to Brooks to slow

                                  4
down."   According to Garvin's police report, Soukup's wife said

that her husband was "in the road waving his arms" when Brooks

drove past, and Soukup said that he was on "the side of the road

with his dogs when he observed Brooks traveling" so he "waived

[sic] his arms in the air to slow down Brooks," and that "when

Brooks drove by,   [Soukup] was right near [Brooks's] car."   The

Soukups now state in affidavits, however, that they did not tell

Garvin that Soukup was "in the road" or "waving his arms."1

Instead, Soukup says, he reported that he "was at the edge of the

road, on his lawn."   In his interview. Brooks said that he was

driving down his road when he saw Soukup "walking toward

[Brooks's] vehicle" with his "arms above his head waiving [sic]

them and swearing at Brooks."   Brooks also said that Soukup "was

so close to the vehicle his arms were near [the] windshield."

     Both of the Soukups and Brooks later provided Garvin with

written statements.   The Soukups' statements repeated that Soukup

had yelled at Brooks to slow down as he was driving past their

house "at a high rate of speed," but did not say anything about

where Soukup had been standing at the time.   Brooks's statement




     1The Soukups also state in their affidavits that Soukup
could not have been waving his arms because "he had one hand
holding [his] dog by the collar to keep it from darting out into
the road." But the Soukups do not say whether they told this to
Garvin at the time.

                                 5
related that, as he drove near Soukup's house, Soukup was "on his

front lawn in the distance playing with his dogs" but then began

"walking toward" Brooks's vehicle with a hand in the air "as if

he wanted to talk."   Brooks stated that, while he attempted to

avoid eye contact as he drove past, Soukup "continued to walk

right into the road and was hollering and swearing and pointing,"

ultimately coming within "inches" of Brooks's vehicle.

     Based on the information just surveyed, Garvin concluded

that Soukup had engaged in criminal contempt by breaching his

bail conditions, in violation of 

-a,

II, and disorderly conduct, in violation of 

.   Though, as already mentioned, Garvin knew of the

"history of conflict" between Soukup and Brooks, Garvin believed

Brooks's account of the incident.    Garvin based that conclusion

on Brooks's "general demeanor, and the fact that he had initially

called the police to report the incident," as well as that he had

"always been truthful" in "prior dealings" with Garvin.

     Garvin applied for two warrants to arrest Soukup, one on the

criminal contempt charge and the other on the disorderly conduct

charge, swearing out a separate affidavit for each one.    The

affidavit in support of the criminal contempt charge related

Garvin's version of what the Soukups and Brooks said in their

interviews.   While Garvin recalls that he swore out a "similar"

                                 6
affidavit in support of the disorderly conduct charge, he has not

been able to locate that affidavit and says that he is therefore

"not 100% certain that it exists."     In any event, a justice of

the peace issued both warrants.

     Garvin then called Soukup to tell him about the warrants

"and asked him to come down to the police station at a convenient

time to process the arrest."     Soukup did so.   He was held at the

station for several hours while his wife tried to raise money for

bail and, when she could not do so within that time, transferred

to the Grafton County jail.     After a few hours there, he posted

bail and was released.   The charges were eventually dismissed.

     Soukup then brought this action, alleging that Garvin had

subjected him to an unreasonable seizure in violation of the

Fourth Amendment, actionable under 

, and false

imprisonment under state law.     Soukup further alleged that the

Town was liable on the § 1983 claim because it failed "to

exercise reasonable care in supervising and training its police

officers."   The Town subseguently moved for judgment on the

pleadings on Soukup's § 1983 claim against it, arguing it failed

to state a claim for relief, while Garvin moved for summary

judgment on the claims against him based on gualified immunity.

     In a written order, the court granted the motion for

judgment on the pleadings, ruling that the complaint "contain[ed]

                                   7
not a single assertion of fact" to support the § 1983 claim

against the Town.    

.   But the court denied

Garvin's motion for summary judgment, ruling that, while it

"assert[ed] a colorable, and arguably meritorious gualified

immunity defense," Soukup had "establishe[d] genuine issues of

material fact."2    Id. at 8-9.   The court also observed, however,

that " [d]iscovery may eliminate these disputes, allowing for

summary judgment later in the litigation."     Id. at 9.

     Soukup later moved to amend his complaint to reinstate the

§ 1983 claim against the Town, pleading a number of particular

deficiencies in its policies or customs that he says were causes

of the alleged Fourth Amendment violation by Garvin.       The

amendment was allowed without objection.     The defendants then

filed another motion for summary judgment.



Ill. Analysis

A.   The alleged Fourth Amendment violations

     1.   Lack of probable cause

     The Fourth Amendment provides, in relevant part, that "[t]he

right of the people to be secure in their persons, houses.



     2In particular, Soukup argued that Garvin's affidavit in
support of one of the arrest warrants "contained several false
statements."
papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause."    U.S. Const, amend. IV.   Probable cause exists

"when, at the time of the arrest, the 'facts and circumstances

within the officer's knowledge . . . are sufficient to warrant a

prudent person, or one of reasonable caution, in believing, in

the circumstances shown, that the suspect has committed, is

committing, or is about to commit an offense.'"     Holder v. Town

of Sandown, 

 (1st Cir. 2009)    (guoting Michigan

v. DeFillippo, 

 (1979)    (ellipse by the court)).

     When "the material facts--what the police knew at the moment

of the arrest, the source of their knowledge, and the leads they

pursued or eschewed--are not in dispute . . . , the existence vel

non of probable cause ordinarily is amenable to summary

judgment."    Acosta v. Ames Dep't Stores, Inc., 

 (1st

Cir. 2004).    That is the case here.   There is no genuine dispute

as to what Brooks told Garvin about Soukup's behavior, and those

statements alone created probable cause to arrest him, both for

criminal contempt and disorderly conduct.

     Before explaining further, the court pauses to resolve two

initial matters.    First, Soukup suggests in a footnote to his

brief that the disorderly conduct charge should be ignored in

assessing the legality of his arrest due to the defendants'
inability to produce the affidavit submitted in support of the

warrant for that offense.     But, to buttress that notion, Soukup

does not provide any authority, or even any developed argument,

and the controlling authority is to the contrary.

        In Burke v. Town of Walpole, 

 (1st Cir. 2005),

the court of appeals rejected the plaintiff's argument that his

arrest was invalid because, during the litigation of his § 1983

claim, the only supporting warrant produced by the defendants was

"unsigned and unaccompanied by an affidavit or statement of facts

in support of probable cause."      Id. at 77.   Thus, the plaintiff

argued, "a reasonable jury could infer that no valid warrant

existed."     Id.   The court of appeals disagreed, ruling that the

defendants had "produced substantial, though imperfect, evidence

that a valid arrest warrant issued upon a neutral magistrate's

review of facts allegedly establishing probable cause," e.g.,

testimony by an officer who said he had prepared the application

and notes that he identified as versions of it.       Id. at 78-79.

        Likewise, Garvin has attested to drafting an affidavit in

support of a warrant for the disorderly conduct charge and, while

he has not produced any drafts, he has said that its substance

was "similar" to that of the affidavit supporting the warrant for

the criminal contempt charge, which has been produced in this

case.     Furthermore, the evidence here that the affidavit

                                   10
supporting the disorderly conduct warrant existed is even

stronger than the evidence in Burke in one critical respect:     the

defendants have produced a signed version of the warrant itself.

That strongly indicates that a supporting affidavit existed, both

circumstantially--because New Hampshire law, unlike the

Massachusetts law at issue in Burke, forbids the issuance of

warrants without such an oath or affirmation, N.H. Const. Pt. I,

Art. 19--and directly--because the justice of the peace recites

in the warrant that Garvin had "exhibited . . . his complaint

upon oath" against Soukup for disorderly conduct.

     Beyond a strained characterization of Garvin's testimony in

this case,3 Soukup has provided no contrary evidence.   So here,

as in Burke, the physical absence of a supporting affidavit from

the record does not prevent the court from relying on the

resulting warrant in gauging the legality of the arrest   (though,

as discussed infra, Garvin had probable cause to arrest Soukup

for criminal contempt anyway, so his claim would fail even if the

court ignored the disorderly conduct charge as he suggests).




     3Contrary to what Soukup argues, Garvin does not state that
he believed the affidavit supporting the disorderly conduct
warrant "existed, but cannot be sure" (emphasis added). He
states a belief that he drafted the affidavit, but that because
"a search of the files has not been able to locate that
document,. . . I am not 100% certain that it exists" (emphasis
added), i.e., at the present time.

                                11
     Second, Soukup also claims that Garvin's application for the

criminal contempt warrant contained reckless material

misstatements or omissions.4 While the court rejects that

assertion, see Part III.B, infra, it is irrelevant to Soukup's

Fourth Amendment claim anyway.   No Fourth Amendment violation

occurs, even in the case of a warrant procured by material

misstatements or omissions, where probable cause supports the

arrest, making it "independently valid without the need for a

warrant."   United States v. Laurent, 

 (1st Cir.

2010).   There, as here, "the arrest warrant was unnecessary [so]

invalidating it would not change the outcome; the arrest was

amply supported by probable cause."   

     Under New Hampshire law, a person is guilty of disorderly

conduct if, in relevant part, he "knowingly or purposely creates

a condition which is hazardous to himself or another in a public

place by any action which serves no legitimate purpose," 

, I, "directs at another person in a

public place obscene, derisive, or offensive words which are

likely to provoke a violent reaction on the part of an ordinary

person," 

 § 644:2, 11(b), or "[o]bstructs vehicular or




     4Soukup conceded at oral argument that he had no evidence or
reason to believe that any alleged misstatements or omissions in
the warrant application were intentional.

                                 12
pedestrian traffic on any public street," id. § 644:2, 11(c).

Garvin had probable cause to believe that Soukup had done all of

those prohibited acts, based on Brooks's statements that Soukup

"continued to walk right into the road and was hollering and

swearing and pointing" at Brooks as he drove by, coming "so close

to the vehicle his arms were near [the] windshield."

     These statements also furnished probable cause to arrest

Soukup for criminal contempt under § 597:7-a, II, which provides

that a person released on bail "who has violated a condition of

release is subject to . . .   a prosecution for contempt of court."

The conditions of Soukup's bail, again, reguired him to "have no

contact with" Brooks and "to refrain from going within 50 yards

of where [he] may be."   Soukup did both, according to Brooks, by

swearing at him and coming close enough to his vehicle to touch

it as he drove past.5




     5Soukup argues that it "should have been obvious to any
reasonable officer" that he "was unable to keep the 50-yard
distance between himself and Brooks." That is only true,
however, if a reasonable officer would have to credit Soukup's
version of events that he was "at the edge of the road, on [his]
lawn" as Brooks approached.   Brooks stated that Soukup was "on
his front lawn in the distance" when he began walking toward
Brooks as he drove past, ultimately getting "within inches" of
the vehicle. As discussed in detail infra, a reasonable officer
was entitled to believe Brooks rather than Soukup, and to
conclude that Soukup had gone within 50 yards of Brooks as
prohibited by the bail order.

                                 13
     Soukup concedes that "police officers can justifiably rely

upon the credible complaint by a victim to support a finding of

probable cause."   Forest v. Pawtucket Police Dep't, 

 (1st Cir. 2004) .   He nevertheless maintains that, here, a

reasonable officer would have found Brooks's complaint to lack

credibility.   His arguments on that score are unconvincing.

     Soukup asserts that a reasonable officer would have doubted

Brooks's story because "[r]ational men do not jump out in front

of speeding cars . . . for any reason but to get themselves

killed."   But, while Brooks said in his initial phone call to

Garvin that Soukup "jumped out in front of [his] car," it is

clear from his later statements that he meant that figuratively,

i.e., Soukup went very near Brooks's car as he drove past.       In

any event, it suffices to say that, as a matter of common

experience, people do not always behave as "rational men" and

even sometimes even do things that endanger their own welfare, so

a report of a suspect acting that way would hardly seem

incredible to a reasonable officer.    Probable cause, after all,

is a "commonsense, nontechnical conception[] that deal[s] with

the factual and practical considerations of everyday life on

which reasonable and prudent men, not legal technicians, act."

Ornelas v. United States, 

 (1996)   (guotation

marks omitted).    Indeed, if police could credit reports of only

                                 14
"rational" behavior by suspects in assessing probable cause,

arrests for many types of crimes would become nearly impossible.

     Soukup further argues that a reasonable officer would have

disbelieved Brooks based on the "history of conflict" between him

and Soukup.   But the court of appeals has sguarely rejected the

idea that "when an officer has knowledge of a 'bad relationship'

between the person under suspicion and a witness to the alleged

crime, that witness's credibility must be considered guestionable

and, conseguently, the officer has a duty to investigate further

before making an arrest."    Holder, 

.    And Garvin

did investigate further:    he personally interviewed and received

written statements from both Soukup and his wife.       They had the

same motive to lie about the incident as Soukup attributes to

Brooks, yet Soukup offers no colorable explanation as to why a

reasonable officer would have believed them instead of Brooks.6

As this court has observed, "[i]t would be nearly impossible for

the police to carry out an arrest if the suspect's mere denials



     6Garvin, in contrast, explains that he found Brooks reliable
based on "the fact that he had initially called the police to
report the incident," as well as that he had "always been
truthful" in their prior dealings.   These factors tend to support
the credibility of a witness in establishing probable cause, as
the court of appeals has recognized.   See, e.g.. United States v.
Croto, 

 (1st Cir.) (witnesses "willingly provided
the information" to police), cert, denied, 130 S. C t . 518 (2009);
United States v. Jordan, 

 (1st Cir. 1999) (witness
had provided "reliable information" in the past).

                                 15
were enough to extinguish probable cause."        Holder v. Town of

Newton, 

, 12 (citing, inter alia, Cox v. Hainey, 

, 32 n.2   (1st Cir. 2004)   ("A reasonable police officer is

not reguired to credit a suspect's story.")), appeal docketed.

No. 10-1227   (1st Cir. Mar. 2, 2010) .

     In any event, the Soukups did not deny all culpable aspects

of Brooks's account--even according to what they now say they

told Garvin, which the court accepts as true in ruling on the

defendants' motion for summary judgment.        Though Soukup and his

wife deny reporting that he was in the road or waved his arms,

they do not deny reporting that he yelled at Brooks.        And Soukup

does not dispute that doing so amounted to "contact" with Brooks

as prohibited by the bail order.7        So, even if a reasonable

officer should have disregarded Brooks's account in favor of

Soukup's, Soukup's account alone furnished probable cause.




     7As a result, the court need not--and does not--decide that
guestion.   Soukup, after all, bears the burden of proving he was
arrested without probable cause.   See Tatro v. Kervin, 

 (1st Cir. 1994).   Soukup does state in a footnote that "[o]ne
may argue that" his yelling at Brooks was not "contact," but his
sole support for that observation is a statement from his own
deposition that "[i]n my mind, for me to have contact with him,
he would have to hear me and understand me." Even if this musing
carried any weight as to the meaning of the bail order, the
record establishes that Brooks did hear and understand Soukup,
because Brooks reported that he had heard Soukup swearing at him.
Furthermore, at oral argument, Soukup conceded that yelling at
Brooks "could be construed" as contact.

                                    16
     Soukup objects to that conclusion as well, arguing that his

admitted conduct was not criminal by virtue of 

, New Hampshire's statutory codification of the

"competing harms" defense, and that "no police officer could

reasonably have concluded otherwise--or at least, a jury is

entitled to so find."   That is wrong for at least three reasons.

     First, "the Supreme Court has flatly rejected the idea that

the police have a standing obligation to investigate potential

defenses before finding probable cause."8 Acosta, 

(citing Baker v. McCollan, 

 (1979)).     Second,

the competing harms defense applies only to "[c]onduct which the

actor believes to be necessary to avoid harm to himself or

others," 

, I, and is not available

when "lawful alternatives exist which will cause less, if any,

harm than the otherwise illegal conduct," New Hampshire v.

L'Heureux, 

 (2004).   So, if Brooks's speeding

did indeed put Soukup in fear for his "life and limb," then he




     8At oral argument, Soukup maintained that this rule did not
apply where, as here, the police do investigate a potential
affirmative defense by interviewing the suspect. But, just as a
reasonable officer normally has no duty to investigate defenses,
he also has no duty to resolve disputes over their application in
the suspect's favor.   See Holder, 

. This rule has
particular force where, as here, the suspect does not invoke the
defense or even provide any factual basis for it during the
investigation.

                                17
could have protected those interests, and stayed within his bail

conditions, by simply backing himself away from the side of the

road as he saw Brooks approaching.

     Third, if it was in fact "necessary" for Soukup to yell at

Brooks, there is nothing in Soukup's affidavit to suggest that he

told Garvin that during the investigation.   To the contrary,

Soukup now says he reported being "at the edge of the road, on

[his] lawn," when Brooks passed, which calls into serious

guestion Soukup's claimed need to yell at Brooks "to avoid harm

to himself or others" from the speeding vehicle.9

     Although Soukup's arguments presume otherwise, "'probable

cause' is just that--probable--and does not reguire proof beyond

a reasonable doubt," United States v. Morales-Aldahondo, 

 (1st Cir. 2008), let alone the wholesale rejection of a

witness's story simply because he had past conflicts with the

suspect, or the anticipation of a farfetched affirmative defense.

In light of these principles, set forth in the controlling

caselaw cited above, any rational factfinder would have to



     9At oral argument, Soukup maintained that yelling was
necessary to protect his dog from Brooks's speeding car.   It is
unclear, though, whether protecting an animal--as opposed to a
person--from harm would trigger the competing harms defense.
Regardless, Soukup now says that he was holding his dog by the
collar to prevent it from bolting into the road as Brooks passed,
so yelling at Brooks in violation of the bail order was not
"necessary" to protect the dog from harm either.

                                18
conclude that the facts known to Garvin at the time of the arrest

established probable cause for at least one of the offenses, if

not both.    See Holder, 

-506; Acosta, 

-

12; Forest, 

.



     2.     Qualified immunity

     Garvin argues that, even if the arrest lacked probable

cause, he cannot be held personally liable for it under § 1983 by

virtue of qualified immunity.10    The Supreme Court has held that

an officer "will not be immune if, on an objective basis, it is

obvious that no reasonably competent officer would have concluded

that a warrant should issue; but if officers of reasonable

competence could disagree on this issue, immunity should be

recognized."    Malley v. Briggs, 

 (1986).   In

other words, qualified immunity protects an officer's decision to

obtain an arrest warrant "'so long as the presence of probable

cause is at least arguable.'"     Abreu-Guzman v. Ford, 

,



     10While Soukup also brings this claim against the Town of
Lisbon, which cannot invoke qualified immunity, see Owen v. City
of Independence, 

 (1980), he does not explain the
causal nexus between his alleged arrest without probable cause
and any of the assertedly deficient municipal policies or customs
set forth in his amended complaint.   There is none, as the
defendants point out.   So any claim seeking to impose liability
against the Town for Garvin's allegedly arresting Soukup without
probable cause cannot succeed.   See Monell v. Dep't of Soc.
Servs., 

 (1978).

                                  19
73 (1st Cir. 2001)   (quoting Prokey v. Watkins, 

(1st Cir. 1991)).

     That was manifestly the case here.    Again, even aside from

Brooks's account, which a reasonable officer was entitled to

credit, Soukup concedes that the bail order "could be construed"

to prohibit his admitted yelling at Brooks, and it was hardly

unreasonable for Garvin to fail to anticipate a competing harms

defense which is thin at best and was not even invoked by Soukup

himself during the investigation.     Even if probable cause for the

arrest was lacking, Garvin is entitled to summary judgment on the

Fourth Amendment claim.11



     3.   The custodial nature of the arrest

     Soukup also argues that, even if there were probable cause

for his arrest, it still violated the Fourth Amendment because he

was taken into custody on the charges, rather than ordered to

appear by way of a summons.   This is so, he maintains, because

"[t]here simply was no good reason to subject [him] to an arrest"

for his alleged misdemeanors that occurred outside of the




     “ Soukup concedes that Garvin is entitled to qualified
immunity from the claim that he violated the Fourth Amendment by
arresting him rather than issuing him a summons, given the lack
of "clear precedent"--or, more accurately, any precedent--to
support that theory.   See Part III.A.3, infra.

                                 20
arresting officer's presence--despite the fact that the arrests

were supported by valid warrants.     This argument betrays a grave

misunderstanding of the Fourth Amendment.

     Soukup provides no authority whatsoever for the radical

proposition that an arrest can violate the Fourth Amendment even

though it is supported by a valid warrant, and this court is not

aware of any, from any court, anywhere    (aside from cases where

excessive force was used to carry out the arrest, see Graham v.

Connor, 

   (1989), but there is no allegation

to that effect here).   That is hardly surprising, because "[t]he

bulwark of Fourth Amendment protection, of course, is the Warrant

Clause, reguiring that . . . police obtain a warrant from a

neutral and disinterested magistrate."     Franks v. Delaware, 

 (1978).   When that happens, and the police proceed

to execute the warrant, that is the Fourth Amendment in action.

It is not a Fourth Amendment violation.     See United States v.

Ventresca, 

 (1965)    (ruling that arresting

officers "did what the Constitution reguires.     They obtained a

warrant from a judicial officer 'upon probable cause, supported

by Oath or affirmation.'"   (guoting U.S. Const, amend. IV)).

     Garvin's proposed rule--that the Fourth Amendment prohibits

the use of warrants to arrest a suspected misdemeanant whose

alleged crimes did not occur in the presence of an officer, at

                                 21
least without some "good reason" for taking the suspect into

custody--would essentially turn this regime upside down.      It

would render magistrates powerless to command valid arrests in

certain cases, even if probable cause were indisputable, while

authorizing officers to make warrantless arrests based on their

own probable cause assessments so long as the supporting events

unfolded before their eyes.    And Soukup is seriously mistaken

that the Supreme Court supplied the "logic" for such an approach

in Atwater v. City of Lago Vista, 

 (2001) .

        There, the Court held that "[i]f an officer has probable

cause to believe that an individual has committed even a very

minor criminal offense in his presence, he may, without violating

the Fourth Amendment, arrest the offender."     

.   The

Court noted, however, both that there was no need there to

"speculate whether the Fourth Amendment entails an 'in the

presence' reguirement for purposes of misdemeanor arrests," 

at 341 n.ll, and that the plaintiff conceded the arrest would

have been constitutional if supported by a warrant, 

 at 346

n.15.     Soukup does not explain how these limitations on the

holding, i.e., the Fourth Amendment authorizes arrests for all

misdemeanors committed in the officer's presence, and without a

warrant, translate into a rule that the Fourth Amendment

prohibits arrests for some misdemeanors committed out of the

                                  22
officer's presence, but with a warrant.      The syllogism is simply

illogical.

       This is to say nothing of the fact that, as an example of a

"discretionary judgment" by police that provides "no basis for

legal action challenging" it, the Atwater Court specifically

mentioned "choosing between the discretionary leniency of a

summons in place of a clearly lawful arrest," i.e., one supported

by probable cause.    

.    The Court very likely would have

selected a different example of inactionable police conduct had

it meant to imply, as Soukup believes, that electing to proceed

by arrest rather than summons can subject police to liability.

Indeed, the very holding of Atwater is that it cannot, at least

where the misdemeanor occurs in the officer's presence.

       Furthermore, as Soukup himself emphasizes, Atwater observed

that "a responsible Fourth Amendment balance is not well served

by standards reguiring sensitive, case-by-case determinations of

government need, lest every discretionary judgment in the field

be converted into an occasion for constitutional review."      

.   But Soukup demands just that kind of sensitive, case-by-

case determination here.    His arrest was unreasonable, he

complains, because he "was not a flight risk" and his crime was

"not one of violence" nor did it create a "risk of renewed

violence between he and Brooks," as shown by the fact that the

                                    23
arrest was not carried out right away.     But those are more or

less the same facts the Atwater Court refused to use as an

occasion for limiting an officer's constitutional authority to

arrest for a misdemeanor committed in his presence.     

.

      Nevertheless, Soukup maintains, that rationale does not

apply in cases of arrest by warrant, which do not necessitate the

same judgments "on the spur (and in the heat of) the moment" as

warrantless arrests and therefore do not reguire "standards

sufficiently clear and simple to be applied with a fair prospect

of judicial second-guessing months and years after an arrest."

.   Both Soukup's premise and his conclusion are wrong.

     First, police are often called upon to decide whether to

seek an arrest warrant "on the spur (and in the heat of) the

moment"--hence their authority to do so by phone, fax, or

electronic transmission, see 

-a.

Second, as Atwater makes clear, the need for "easily

administrable rules" under the Fourth Amendment is not limited to

cases reguiring guick decisions by the police.     The Court

specifically noted, in fact, that "Fourth Amendment rules "'ought

to be expressed in terms that are readily applicable in the

context of the law enforcement activities in which they are

necessarily engaged.'"   

   (guoting New York v.

Belton, 

 (1981))    (further guotation marks and

                                24
footnote omitted).    "Law enforcement activities," of course,

include seeking arrest warrants as well as making warrantless

arrests, and the fact the former typically provides more

opportunity for reflection than the latter does not itself

justify imposing a set of "'ifs, ands, and huts' rules, generally

thought inappropriate in working out Fourth Amendment

protection."   

 (guoting Belton, 

).

     In disregard of this principle, Soukup proposes a rule that,

even if an officer has probable cause to believe a suspect has

committed an offense, he may not arrest pursuant to a warrant, if

the offense is a misdemeanor, and if the suspect poses no risk of

flight or violence.    It was the Atwater Court's concern for the

difficulties inherent in making those kinds of judgment calls

based solely on a pre-arrest investigation, though, that supplied

one of the main rationales for its holding.    Id. at 348-50.

     Moreover, police have enough to do in investigating and

analyzing whether there is probable cause without also having to

worry about whether they should proceed by warrant or summons

(and over personal § 1983 liability if they choose wrong).

Imposing that additional burden comes with very little

corresponding benefit, as the Atwater Court concluded in

rejecting a rule, similar to the one Soukup proposes here, that

would reguire the police to proceed by summons in particular

                                 25
circumstances.   Id. at 351-54.   After all, suspects taken into

custody ordinarily receive a bail hearing the next morning, at

the latest, see Holder, 

, at which factors

like risk of flight and dangerousness are considered by a

judicial officer, see 

, II-III.

Demanding that officers weigh those factors before even making

the arrest, then, offers little additional protection against

unjustified detentions--just as, the Atwater Court reasoned, it

offered little additional protection against arrests without

probable cause, since the Constitution already guarantees "anyone

arrested for a crime without formal process" to a probable cause

hearing before a magistrate within 48 hours.    

.

     The only justification Soukup offers for his proposed rule,

in fact, is to spare a suspect from the "gratuitous humiliation"

and "pointless indignity" of custodial arrest when charging him

by summons would have been egually effective in serving the law

enforcement interests at issue.    Even assuming that the second

part of that statement is correct, though (among other benefits,

an arrest followed by the imposition of bail conditions creates

an incentive for a defendant to appear at trial that a summons

does not), that was precisely the justification the Atwater Court

rejected in refusing to prohibit warrantless arrests for

misdemeanors committed in the officer's presence.    

.

                                  26
It borders on sophistry to argue that the same justification

supports a ban on misdemeanor arrests by warrant, simply because

the offenses occurred outside of the officer's presence.

     Indeed, while Atwater declined to decide whether the

"presence requirement" was constitutionally compelled, other

courts have not hesitated to hold that it is not.      In a decision

preceding Atwater, in fact, the court of appeals observed that

"neither the Supreme Court nor this circuit has ever held that

the Fourth Amendment prohibits warrantless arrests for

misdemeanors not committed in the presence of arresting

officers," and cited approvingly to "cases from sister circuits

addressing this very issue [that] have arrived at the opposite

conclusion."    Vargas-Badillo v. Diaz-Torres, 

 (1st

Cir. 1997)   (citing Pyles v. Raisor, 

 (6th Cir.

1995), Barry v. Fowler, 

 (9th Cir. 1990), and

Street v. Surdyka, 

     (4th Cir. 1974)).

      The fact that the Court has since declined to decide

whether the Fourth Amendment imposes a "presence" requirement for

misdemeanor arrests is no reason to believe it would answer that

question in the affirmative.      See United States v. McNeill, 

   (4th Cir. 2007)   ("Several other circuits have held

that the Fourth Amendment contains no 'in the presence'

requirement, and none have reversed their position in the wake of

                                   27
Atwater." (citing Woods v. City of Chi., 

(7th Cir. 2000), Pyles, 

, Fields v. City of S.

Houston, 

, 1189 (5th Cir. 1991), and Barry, 

)).   Under these cases, then, even if Garvin did not have

valid warrants for Soukup's arrest on the misdemeanor charges--

and the warrants were valid, see Part III.B, infra--the fact that

the alleged criminal conduct occurred outside Garvin's presence

would still not invalidate the arrest under the Fourth Amendment.

Soukup cites no authority to the contrary.

     Finally, it is also worth noting that Soukup was not

arrested for just any misdemeanor, but for criminal contempt for

violating the conditions of his bail.   New Hampshire law

specifically contemplates that a "court may issue a warrant for

the arrest of a person charged with violating a condition of

release," 

-a, III, and federal law

contains a nearly identical provision as part of the Bail Reform

Act, see 

(b).

     If Soukup is right that his arrest for violating his bail

order was nevertheless unreasonable under the Fourth Amendment,

that means these statutes   (and, one would expect, the similar

laws of a number of other states) are unconstitutional, at least

as applied to certain bail violation arrests, but that no court

has yet to so hold.   Atwater relied on the similar prevalence of

                                 28
laws authorizing warrantless arrests for misdemeanors committed

in the officer's presence, and the absence of decisions

invalidating them, in holding that they were not prohibited by

the Fourth Amendment.   

.   The same reasoning

applies here.   Soukup's custodial arrest on the criminal contempt

charge did not violate the Fourth Amendment.12



     B.   The state-law false imprisonment claim

     Soukup also claims that his arrest amounted to false

imprisonment at common law.13   To prevail on this claim, Soukup

must show, among other things, that he was confined by the

defendants "without legal authority."   MacKenzie v. Linehan, 158




     12The court has assumed for purposes of this discussion that
Garvin arrested Soukup in accordance with the alleged municipal
custom to carry out custodial arrests for all misdemeanors,
establishing the Town's liability for the claimed constitutional
violation.   See note 10, supra.

     13In most cases, the dismissal of all federal claims before
trial "will point toward declining to exercise [supplemental]
jurisdiction over the remaining state-law claims." Carnegie-Mellon Univ. v. Cohill, 

, 350 n.7 (1988). But there
is no "mandatory rule" reguiring dismissal; courts must "consider
and weigh in each case, and at every stage of the litigation, the
values of judicial economy, convenience, fairness, and comity in
order to decide whether to exercise jurisdiction." 

 In this
case, the close proximity to trial and the heavy overlap between
Soukup's federal and state-law claims both point in favor of
exercising jurisdiction.   See, e.g., Nowak v. Ironworkers Local 6
Pension Fund, 

 (2d Cir. 1996).   This court
therefore resolves Soukup's state-law claim as well.

                                 

, 482 (2009).   Garvin had legal authority to detain

Soukup in the form of valid warrants to arrest him.     He therefore

cannot maintain a false imprisonment claim.     See Welch v.

Bergeron, 

 (1975).

     Soukup argues that the warrants were defective because

Garvin's supporting affidavits suffered from materially false

statements included, and omissions excluded, "knowingly and

intentionally, or with reckless disregard for the truth."

Franks, 

.   Assuming, without deciding, that a

warrant procured through misstatements or omissions does not

confer the "legal authority" fatal to a false imprisonment claim

under New Hampshire law, but see Hickox v. J.B. Morin Agency,

Inc., 

 (1970)   (unless a complaint for an arrest

warrant "appear[s] on the face of it to be an absolute nullity,

it cannot be called in guestion collaterally" through a false

imprisonment claim)   (guotation marks, parentheses, and bracketing

omitted), there was no Franks violation here.     The alleged

misstatements and omissions, even if reckless    (again, Soukup

concedes that he has no basis to say they were intentional), were

not material to the showing of probable cause that supported the

warrant to arrest Soukup for violating his bail conditions.

     For a court "to determine materiality," it must "excise the

offending inaccuracies and insert the facts recklessly omitted,

                                 30
and then determine whether or not the corrected warrant

application would establish probable cause."     Burke, 

 (quotation marks and ellipse omitted).14    Here, Soukup argues

that the application inaccurately stated that he was waving his

arms and walking toward Brooks's vehicle, when in fact, as he now

alleges, he was simply standing at the edge of the road as Brooks

sped past.   Soukup further argues that the application recklessly

omitted the fact that Brooks had recently been arrested due to a

prior confrontation with Soukup.

     But the application did contain a statement from Soukup's

wife that he had yelled at Brooks, which, as discussed supra, was

itself enough to establish probable cause to arrest Soukup for

violating his bail conditions    (since he has more or less

acknowledged here that the yelling amounted to contact within the

meaning of the bail order) .    Soukup has never questioned the

accuracy of that statement.     Furthermore, since its source was

Soukup's wife, rather than Brooks, any omitted information

tending to impugn Brooks's credibility, i.e., his arrest due to a

prior altercation with Soukup, was immaterial to this aspect of

the probable cause analysis.     So, even when the complained-of



     14A s Burke makes clear, there is no merit to Soukup's
suggestion at oral argument that a court hearing a § 1983 claim
raising a Franks violation cannot assess the materiality of the
alleged omissions as a matter of law.

                                  31
inaccuracies and omissions in the warrant application are

corrected, it still demonstrates probable cause for Soukup's

arrest.    See, e.g.. United States v. Ranney, 

(1st Cir. 2002).      It follows that the warrant was valid and

therefore conveyed the necessary "legal authority" for Brooks to

arrest Soukup.      The defendants are entitled to summary judgment

on Soukup's state-law false imprisonment claim.15



Ill. Conclusion

      For the foregoing reasons, the defendants' motion for

summary judgment16 is GRANTED.     The clerk shall enter judgment

accordingly and close the case.



      SO ORDERED.




Dated:    August 25, 2010

cc:   Frank P. Spinella, Jr., Esq.
      Andrew B. Livernois, Esq.




     15The court therefore need not reach their official and
derivative immunity arguments.

      16Document no. 19.

                                   32