Henshaw v. Doherty

881 A.2d 909

Stanley HENSHAW III v. Brendan P. DOHERTY et al.

No. 2003-526-Appeal.

Supreme Court of Rhode Island.

September 2, 2005.

Joseph P. Casale, Esq., Providence, for Plaintiff.

Michael P. Jolin, Esq., for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

ROBINSON, Justice.

The plaintiff, Stanley Henshaw III, appeals from the Superior Court's grant of summary judgment in favor of the defendants — viz., the State of Rhode Island and also Brendan P. Doherty, Michelle Haggerty, John M. Lacross, Steven G. O'Donnell, John P. Blessing, and Joseph S. Delprete, all members of the Rhode Island State Police. For the reasons set forth below, we affirm the judgment of the Superior Court.

Facts and Travel

The instant case stems from the arrest on April 5, 1993, of plaintiff by the Rhode Island State Police on a charge of simple assault. The arrest was made pursuant to a warrant.

In the month preceding his arrest, Henshaw had been the subject of an undercover investigation by the state police. The investigation had been commenced because of allegations that Henshaw was operating an escort service which purportedly provided sex-for-hire services and not mere escort services.

As part of its investigation, the state police selected Trooper Michelle Haggerty to serve as an undercover investigator. She was to work in coordination with Detective Corporal Lacross, Detective Corporal Doherty, and Detectives O'Donnell, Blessing, and Delprete — all members of the State Police Intelligence Unit.

Using an alias and acting in an undercover capacity, Trooper Haggerty spoke with Henshaw several times on the phone, presenting herself as a college student interested in employment with Henshaw's purported escort service agency. These telephone conversations were recorded by the state police. Then, on March 31, 1993, Trooper Haggerty met with Henshaw at the Holiday Inn in Providence.

During the meeting, she wore an electronic surveillance device that allowed Detective Corporal Doherty and Detective Corporal Lacross to monitor what was being said. During the meeting at the Holiday Inn, Henshaw did not discuss the escort service, but he arranged for Trooper Haggerty to telephone him later in the evening. When Trooper Haggerty telephoned Henshaw, he asked her to come to his apartment. Trooper Haggerty went to the apartment to meet with Henshaw again. During this second meeting, she again wore an electronic surveillance device, and Detective Corporal Doherty and Detective Corporal Lacross monitored her conversation with Henshaw in his apartment.

The surveillance device recorded the conversation between Trooper Haggerty and Henshaw, of which the following is a portion:

"Haggerty: How do you want me to prove it to you that I'm not law enforcement officer? Now what are your intentions? Now you need to explain to me what it is exactly. . . .

"Henshaw: Well, I. . . . .prove to me that you're not law enforcement person.

"Haggerty: How do you want me to prove it?

"Henshaw: Come over here.

"Haggerty: Come on up closer to you?

"Henshaw: Just. . . . .okay. . . . .prove that you're not . . .

"Haggerty: No, I don't want you to touch me! I mean . . . can, can we talk a little bit more about this job or what, what, what do you expect. . . .

"Henshaw: . . . . . I want you to prove to me, that you're not a law enforcement person. That's why I said, just that you're not a law enforcement person. . . . I'm not gonna do anything else, just. . . .

"Haggerty: Okay. . . .

"Henshaw: . . . . .I'm not gonna take. . . . do you mind if I just do this? I'm not going to hurt you.

"Haggerty: Okay.

"Henshaw: Just. . . .

"Haggerty: Well. . . .

"Henshaw: [unintelligible.]

"Haggerty: No, no, no. . . . . whenever you want me to unbutton my . . . . you need to tell me. Now my friend told me that I was. . . ."

Upon hearing how the conversation was progressing, Detective Corporal Doherty and Detective Corporal Lacross rang Henshaw's doorbell; and, when the door was opened, they escorted Trooper Haggerty from the premises. Detective Corporal Doherty then prepared an affidavit, which he used to support an application to the District Court for a warrant for Henshaw's arrest.¹ (A portion of the affidavit is quoted verbatim in part "II" of this opinion.)

Henshaw was eventually acquitted of the criminal charge of simple assault after a bench trial that was conducted in the District Court on May 10, 1993. Then, on April 2, 1996, almost three years after his acquittal, Henshaw commenced a civil action against defendants for false arrest, malicious prosecution, and negligent supervision.²

On February 6, 2003, defendants filed a motion for summary judgment contending (1) that an action under 42 U.S.C. § 1983 would not lie against these defendants as a matter of law, (2) that the existence of probable cause defeats plaintiff's claims of false arrest and malicious prosecution, and (3) that the public duty doctrine provides the state with absolute immunity from the negligent supervision claim. The plaintiff objected, alleging that the affidavit that served as the basis for the issuance of the warrant for plaintiff's arrest misled the judge because it was materially defective. (According to plaintiff, the affidavit did not accurately represent his dialogue with Trooper Haggerty in the apartment and did not contain certain allegedly pertinent facts that would cast doubt on the existence of sufficient probable cause.)

The defendants' motion for summary judgment was heard and granted by the Superior Court on September 9, 2003. In granting the motion, the motion justice determined that, as a matter of law, there was probable cause to arrest Henshaw, and he ruled that that determination required the dismissal of plaintiff's state and federal allegations of false arrest and malicious prosecution.³ The motion justice further held that Henshaw's negligent supervision claim failed as a matter of law under the public duty doctrine. Judgment in favor of all defendants was entered on September 16, 2003, and plaintiff timely appealed.

On appeal, Henshaw continues to press his claim that Trooper Haggerty consented to a touching by plaintiff and that that alleged fact was omitted from Detective Corporal Doherty's affidavit. He further argues that the motion justice incorrectly found that the omission of the word "okay" from the affidavit was the sole basis for plaintiff's assertion that no probable cause existed to support the issuance of the arrest warrant. In support of this contention, he refers to several other alleged omissions from the affidavit that he contends would suggest among other things that Trooper Haggerty's statements and actions "enticed plaintiff into criminal activity." He further argues that there is no evidence to support the statement by Detective Corporal Doherty in his affidavit that "[Henshaw] grabbed [Trooper Haggerty's] blouse and attempted to pull open the top section, pulling the top button apart." He alleges that Detective Corporal Doherty attempted to "spice up" the affidavit in order to facilitate a finding of probable cause by the judge.

Standard of Review

The party opposing a motion for summary judgment has the burden of establishing the existence of a disputed material fact. Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.1996) ("[A] party who opposes a motion for summary judgment carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions."); see also Duffy v. Dwyer, 847 A.2d 266, 269 (R.I.2004); Taylor v. Mass. Flora Realty, Inc., 840 A.2d 1126, 1129 (R.I.2004); United Lending Corp. v. City of Providence, 827 A.2d 626, 631 (R.I.2003).

We review the grant of summary judgment de novo. Duffy, 847 A.2d at 268. And in doing so, we apply the same standards as did the motion justice. Tavares v. Barbour, 790 A.2d 1110, 1112 (R.I.2002); E.W. Audet & Sons, Inc. v. Fireman's Fund Insurance Co., 635 A.2d 1181, 1185 (R.I.1994).

Analysis

The counts contained in plaintiff's complaint are as follows: false arrest in violation of 42 U.S.C. § 1983 (count 1); malicious prosecution in violation of the Fourteenth Amendment to the United States Constitution (count 2); false arrest in violation of state tort law (count 3); malicious prosecution in violation of state tort law (count 4); and negligent supervision of its employees on the part of the State of Rhode Island (count 5).

After setting forth a preliminary observation, we shall treat the two malicious prosecution counts in a consolidated matter, and we shall deal likewise with the two false arrest counts. We shall then address the negligent supervision count.

I Preliminary Observation

The fact that the state police opted to proceed by seeking an arrest warrant rather than by simply making an immediate arrest on the scene is not at all insignificant as we consider the facts of this case in the light of the controlling principles of law. Just as is the case with respect to searches conducted pursuant to a warrant, it is our view that, in close cases concerning the validity of an arrest, the benefit of the doubt should go to the authorities who have obtained a warrant from a neutral judicial officer before making the arrest. See United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (citing with approval the principle that "in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall"); see also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ("The Fourth Amendment demonstrates a `strong preference for searches conducted pursuant to a warrant,' * * * and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a...