Robert Depoutot v. John Raffaelly

United States Court of Appeals
For the First Circuit
No. 05-1529
ROBERT DEPOUTOT,
Plaintiff, Appellant,
v.
JOHN RAFFAELLY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.
Michael J. Sheehan for appellant.
Charles P. Bauer, with whom John T. Alexander and Ransmeier &
Spellman, PC were on brief, for appellee.
October 4, 2005
__________
*Of the Northern District of California, sitting by designation.

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SELYA, Circuit Judge. This case involves a meandering
motorist who claims that the arresting officer violated his
constitutional right to substantive due process at the touch of a
button (wrongfully terminating a breath alcohol test administered
after the plaintiff's arrest for drunken driving). The district
court determined that the facts, even when viewed in the light most
hospitable to the plaintiff's theory of the case, did not state a
substantive due process claim and that, in all events, the officer
was entitled to qualified immunity. After careful consideration,
we affirm the district court's order.
I. BACKGROUND
As the district court resolved this case at the summary
judgment stage, we rehearse the facts in the light most agreeable
to the nonmovant (here, the plaintiff), consistent with record
support. Brady v. Dill, 187 F.3d 104, 106 n.1 (1st Cir. 1999).
Because the constitutionality of the arresting officer's decision
to terminate the plaintiff's breath test lies at the core of this
controversy, we focus on the facts available to the officer at the
time of the test.
During the early morning hours of November 18, 2001,
defendant-appellee John Raffaelly, a member of the Northfield, New
Hampshire police department, arrested plaintiff-appellant Robert
DePoutot on suspicion of driving while intoxicated. Raffaelly
transported the plaintiff to a police station in nearby Laconia for

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the purpose of administering a breath alcohol test. The plaintiff
concedes that probable cause existed for the arrest and eschews any
challenge to the officer's decision to conduct a further
investigation.
The Laconia police department relies upon an "Intoxilyzer
5000" machine to measure blood alcohol content (BAC). The
Intoxilyzer computes a subject's BAC on the basis of two breath
samples. To generate a valid sample, the subject must exhale
continuously into a tube connected to the Intoxilyzer for four
seconds and provide the machine with approximately one liter of
air. Each breath sample must be given within a separate two-and-
one-half minute window; if the subject fails to provide a testable
sample within either the first or second window, the machine
automatically cancels the test.
Under New Hampshire law, the refusal of a person
suspected of drunken driving to submit to a breath test results in
an automatic license suspension, regardless of whether the person
is ultimately convicted of violating any of the state's rules of
the road. See N.H. Rev. Stat. Ann. § 265:92(I) (2004). Although
the statute supplies no special definition of the term "refusal,"
the New Hampshire Supreme Court has explained that "[a] driver's
entire conduct, not merely words expressing consent or refusal,"
informs the determination. Jordan v. State, 561 A.2d 1078, 1080
(N.H. 1989). Because a driver "must comply with all the procedures

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necessary to produce accurate measurements of breath-alcohol
levels," one who "expresses consent while intentionally preventing
accurate testing" may be deemed to have refused to submit to the
test within the meaning of the statute. Id.
The plaintiff had a prior conviction for driving while
intoxicated and, accordingly, did not come to the breath test as a
stranger. After re-familiarizing the plaintiff with the
Intoxilyzer, Raffaelly informed him of his right, under state law,
to obtain additional testing at his own expense. See N.H. Rev.
Stat. Ann. § 265:87. Once Raffaelly had secured the necessary
consent, see id. § 265:92, the breath test commenced.
During the first two-and-one-half minute window, the
plaintiff experienced two false starts, exhaling a small amount of
air into the tube but ultimately failing to generate a full sample.
After the second failed attempt, Raffaelly re-instructed the
plaintiff about the Intoxilyzer's proper operation and warned him
that any subsequent failure to provide the required sample would be
deemed a refusal to submit to the test. On his third try, the
plaintiff provided a satisfactory sample and the Intoxilyzer rated
his BAC at 0.04 percent. That was well below the level that, under
New Hampshire law, comprised prima facie evidence of inebriation.
See id. § 265:89 (specifying 0.08 percent as the threshold level).
Consistent with his general practice, Raffaelly did not immediately
disclose the results of this initial analysis to the plaintiff.

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The parties disagree as to the precise number of failed 1
attempts that transpired before Raffaelly terminated the test.
Raffaelly sets the number at four and the plaintiff's versions are
inconsistent (in both his complaint and his objection to the motion
for summary judgment, the plaintiff states that Raffaelly permitted
him a total of four attempts to generate the second sample, but on
appeal he contends that Raffaelly allowed him only two such
attempts). As nothing turns on the point, we leave this
discrepancy unresolved.
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After processing this first sample, the Intoxilyzer
automatically recalibrated and opened the second two-and-one-half
minute window. Once again, the plaintiff failed to provide a
testable sample on at least two attempts. Raffaelly repeated both 1
his procedural instructions and his warning that a subsequent
failure to generate a suitable sample would be construed as a
refusal to submit to the test. When the plaintiff's further
efforts proved unsuccessful, Raffaelly pressed the machine's "R"
button — an action that served to record the plaintiff's refusal
and terminated the test. At that point, the two-and-one-half
minute window for receiving the second breath sample had not yet
closed.
The plaintiff asserts that while striving to provide the
required breath samples, he "cough[ed]," "gagg[ed]," and repeatedly
complained to Raffaelly that he was having trouble breathing. He
also complained that Raffaelly's conduct was "scaring" him. And,
finally, he says that he requested that a blood test rather than a

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Although we take these facts as true for purposes of summary 2
judgment, see Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.
1990), we note that most of them are disputed.
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breath test be administered. He acknowledges, however, that he 2
never informed Raffaelly of any medical condition that might be
interfering with his ability properly to perform the breath test.
Raffaelly denies that there were any objective
indications that the plaintiff was physically unable to complete
the test. From his coign of vantage, the plaintiff appeared to be
obstructing the test either by holding his breath or by placing his
tongue over the opening in the tube.
After the machine had registered the refusal, Raffaelly
released the plaintiff from custody. The plaintiff repaired to a
local hospital and obtained a blood test. A retrograde analysis of
that sample, which was extracted more than two hours after the
aborted breath test, suggested that the plaintiff's BAC was
approximately 0.03 percent at the time of the breath test.
Raffaelly went ahead with the driving while intoxicated
charge. Even though that charge eventually was dropped, New
Hampshire state authorities administratively suspended the
plaintiff's license for two years for refusing to submit to a
breath test. The length of the suspension was based, in part, on
the plaintiff's prior conviction for driving while intoxicated.
See id. § 265:92(I)(b)(1).

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The plaintiff's complaint also contained pendent state law 3
claims. These claims are outside the purview of this appeal.
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The plaintiff availed himself of the state's
administrative appeal procedure. See id. § 265:91-d. At a hearing
held on January 4, 2002, he presented medical testimony that he
suffered from occupationally induced asthma and that, although this
condition may not have manifested itself in external signs, it
likely prevented him from producing the required breath samples.
Despite this evidence, the hearing officer found that the plaintiff
had willfully refused the breath test and upheld the license
suspension.
The plaintiff sought judicial review of the hearing
officer's decision in state superior court. In July of 2002, that
court, leaning heavily on the medical testimony and the allocation
of the burden of proof, found the evidence insufficient to uphold
the finding that the plaintiff had willfully refused to submit to
a breath test. Hence, the court reversed the hearing officer's
decision and restored the plaintiff's driving privileges.
The plaintiff then filed suit against Raffaelly in the
federal district court. Pertinently, he invoked 42 U.S.C. § 1983
and asserted a substantive due process claim. The allegedly 3
offending conduct was Raffaelly's premature termination of the
breath test.

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Following discovery, the district court granted
Raffaelly's motion for summary judgment. The court held, first,
that Raffaelly's conduct was not sufficiently conscience-shocking
to constitute a violation of the substantive component of the
Fourteenth Amendment's Due Process Clause. As a fallback, the
court concluded that, in all events, Raffaelly would be entitled to
the protection of qualified immunity. This timely appeal ensued.
II. ANALYSIS
Our analysis proceeds in two stages. First, we set out
the summary judgment standard. Then, after mapping the landscape
of substantive due process, we turn to the merits of the
plaintiff's claim.
A. The Rule 56(c) Standard.
In adjudicating a motion for summary judgment, a district
court construes the facts "in the light most amiable to the
nonmovant[] and indulge[s] all reasonable inferences favorable to
[him]." Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.
1990). The Civil Rules empower the court to render summary
judgment only when this portrait of the case depicts "no genuine
issue as to any material fact" and establishes "that the moving
party is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c). A factual issue is "genuine" if "it may reasonably be
resolved in favor of either party" and, therefore, requires the
finder of fact to make "a choice between the parties' differing

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versions of the truth at trial." Garside, 895 F.2d at 48
(citations and internal quotation marks omitted). Material facts
are those that "possess the capacity to sway the outcome of the
litigation under the applicable law." Cadle Co. v. Hayes, 116 F.3d
957, 960 (1st Cir. 1997) (citation and internal quotation marks
omitted).
A party seeking to establish a genuine issue of material
fact must offer more than "effusive rhetoric and optimistic
surmise." Id. Rather, the party must demonstrate, through
submissions of evidentiary quality, that a trialworthy issue
persists. Id. Factual specificity is required; a conglomeration
of "conclusory allegations, improbable inferences, and unsupported
speculation" is insufficient to discharge the nonmovant's burden.
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.
1990).
We review the district court's entry of summary judgment
de novo. Garside, 895 F.2d at 48. In conducting that tamisage, we
employ the same criteria that guide a trial court's first-instance
adjudication of a motion for summary judgment. See Cox v. Hainey,
391 F.3d 25, 29 (1st Cir. 2004).
B. Substantive Due Process.
The Fourteenth Amendment prohibits a state from depriving
any person of "life, liberty, or property, without due process of
law." U.S. Const. amend. XIV, § 1. That proscription applies

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fully to a state's political subdivisions, including municipalities
and municipal agencies. Home Tel. & Tel. Co. v. City of Los
Angeles, 227 U.S. 278, 286-87 (1913). The touchstone of this due
process guarantee is the "protection of the individual against
arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539,
558 (1974).
The Due Process Clause has both procedural and
substantive components. In its procedural aspect, due process
ensures that government, when dealing with private persons, will
use fair procedures. See, e.g., Fuentes v. Shevin, 407 U.S. 67,
80-82 (1972). In its substantive aspect, due process safeguards
individuals against certain offensive government actions,
notwithstanding that facially fair procedures are used to implement
them. Daniels v. Williams, 474 U.S. 327, 331 (1986). This case
involves only the latter branch of the Due Process Clause.
As the Supreme Court recently has explained, the criteria
used for identifying government action proscribed by the
constitutional guarantee of substantive due process vary depending
on whether the challenged action is legislative or executive in
nature. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).
In the realm of executive action, the Due Process Clause "does not
entail a body of constitutional law imposing liability whenever
someone cloaked with state authority causes harm," nor does it
"guarantee due care" by government officials. Id. at 848-49. This

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The parties correctly note that our pre-Lewis jurisprudence 4
paved two avenues that a plaintiff might travel in pursuing a
substantive due process claim. See, e.g., Brown v. Hot, Sexy &
Safer Prods., Inc., 68 F.3d 525, 531 (1st Cir. 1995) (indicating
that a plaintiff may establish a violation of substantive due
process by showing either the deprivation of a fundamental right or
conduct that shocks the conscience). Lewis, however, clarified the
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is as it should be; were the law otherwise, the Constitution would
be downgraded to a "font of tort law." Id. at 848 (quoting Paul v.
Davis, 424 U.S. 693, 701 (1976)).
Consequently, an abuse of power practiced by the
executive branch of state government sinks to a level cognizable
under the Due Process Clause only when it is so extreme and
egregious as to shock the contemporary conscience. Id. at 846.
Moreover, because "executive action challenges raise a particular
need to preserve the constitutional proportions of constitutional
claims," the question of whether the challenged conduct shocks the
contemporary conscience is a threshold matter that must be resolved
before a constitutional right to be free from such conduct can be
recognized. Id. at 847 n.8.
This case involves executive branch action. Thus, we
must proceed incrementally. First, we must determine whether the
official's conduct shocks the conscience. See id. Only if we
answer that question affirmatively can we examine what, if any,
constitutional right may have been violated by the conscience-
shocking conduct and identify the level of protection afforded to
that right by the Due Process Clause. See id. 4

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law of substantive due process and made pellucid that conscience-
shocking conduct is an indispensable element of a substantive due
process challenge to executive action. See Lewis, 523 U.S. at 846-
47; see also Hawkins v. Freeman, 195 F.3d 732, 738-39 (4th Cir.
1999) (en banc) (underscoring the "shock the conscience"
prerequisite in executive action cases).
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While the "shock the conscience" standard is imprecise,
it is a helpful guide. See id. at 847; Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973) (Friendly, J.). Conceptually, it does
not replicate, or even draw upon, negligence law. Rather, this
metric "points clearly away from liability, or clearly toward it,
only at the ends of the tort law's spectrum of culpability."
Lewis, 523 U.S. at 848. It is, therefore, readily apparent that
negligent conduct, simpliciter, is categorically insufficient to
shock the conscience. Id. at 849. Executive branch action that
sinks to the depths of shocking the contemporary conscience is much
more likely to find its roots in "conduct intended to injure in
some way unjustifiable by any government interest." Id.
Consistent with these principles, we have stated that
"the requisite arbitrariness and caprice" for a conscience-shocking
executive action "must be stunning, evidencing more than humdrum
legal error." Amsden v. Moran, 904 F.2d 748, 754 n.5 (1st Cir.
1990). Mere violations of state law, even violations resulting
from bad faith, do not necessarily amount to unconstitutional
deprivations of substantive due process. Id. at 757. Courts
regularly have required something more egregious and more extreme.

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Our precedents with respect to substantive due process
claims generally and with respect to claims against law enforcement
officers particularly are difficult to summarize because, by their
nature, such decisions are almost always highly dependent on
context and detail. Examples of past violations include the
intentional framing of innocent citizens for serious crimes they
did not commit, see Limone v. Condon, 372 F.3d 39, 44-45 (1st Cir.
2004), and cases involving "extreme or intrusive physical contact,"
Souza v. Pina, 53 F.3d 423, 427 (1st Cir. 1995). By way of
contrast, we have found no substantive due process liability in
situations in which law enforcement officers committed
reprehensible but less egregious acts, such as deliberately shoving
a pedestrian, see Cummings v. McIntire, 271 F.3d 341, 345 (1st Cir.
2001), or participating in reckless high-speed car chases resulting
in fatalities, see Boveri v. Town of Saugus, 113 F.3d 4, 7 (1st
Cir. 1997); Evans v. Avery, 100 F.3d 1033, 1038 (1st Cir. 1996).
Against this backdrop, we turn to the case at hand. The
"shock the conscience" inquiry requires a comprehensive analysis of
the attendant circumstances before any abuse of official power is
condemned as conscience-shocking. Lewis, 523 U.S. at 850. Viewing
the totality of the circumstances here, we conclude, as did the
district court, that Raffaelly's conduct, whether or not letter
perfect, was reasonable under the circumstances and proportionate
to the governmental interest at stake. Even under the plaintiff's

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version of events, the officer committed no act so extreme,
egregious, or outrageously offensive as to shock the contemporary
conscience. It follows inexorably that his conduct did not sink to
the level of a substantive due process violation.
This entire episode commenced with an arrest, backed by
probable cause woven out of the plaintiff's erratic driving, the
odor of alcohol wafting from his car, his admission that he had
been imbibing, and his inability to pass two out of four roadside
sobriety tests. It is beyond hope of contradiction that police
officers charged with administering sobriety tests must remain on
the lookout for creative evasions designed to cloak refusal in the
raiment of compliance. See, e.g., Jordan, 561 A.2d at 1079
(describing a suspected drunk driver who, after apparently
consenting to a breath test, intentionally belched in an attempt to
disrupt the reading). Especially given the inauspicious beginnings
of his encounter with the plaintiff, it was reasonable for
Raffaelly to be suspicious when the plaintiff subsequently
displayed a serial inability to perform a simple breath test. This
is all the more so since, by the plaintiff's own admission, he did
not inform Raffaelly of any medical condition that might have
disabled him from performing the breath test.
In short, Raffaelly's on-the-spot conclusion that the
plaintiff was obstructing the test, whether or not correct, was not
unreasonable under the circumstances. Indeed, that conclusion

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finds support from an unexpected source: the plaintiff's medical
expert. The doctor testified at the administrative hearing that
someone with the plaintiff's condition might appear "fine" to an
uninformed observer and might exhibit no outward signs of the
illness. He also testified that the plaintiff's breathing problem
would have created an effect similar to that caused when a test
subject blocks the Intoxilyzer tube with his tongue.
The chronology of events further supports the objective
reasonableness of Raffaelly's actions. Despite the fact that he
suspected the plaintiff of hindering the breath test, he instructed
the plaintiff on the proper performance of the test at least three
times and afforded him a minimum of five attempts to provide two
testable samples. Moreover, he twice forewarned the plaintiff that
a failure to produce the required sample would be deemed a refusal.
Whether or not, with the benefit of hindsight, Raffaelly's
conclusion that the plaintiff had sabotaged the test looks like a
mistaken judgment, it was not so wanton and unfounded an act as to
shock the conscience.
In an effort to blunt the force of this reasoning, the
plaintiff insists that he repeatedly implored Raffaelly to
substitute a blood test for the breath test. Assuming, for
argument's sake, that the plaintiff made these requests during the
administration of the breath test — Raffaelly insists that the
plaintiff did not voice his preference for a blood test until after

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The parties agree that Raffaelly complied with this 5
obligation on the date of the stop.
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the breath test had been terminated — that fact does not alter the
decisional calculus. New Hampshire law requires an officer
requesting a breath test to advise the subject of his right to
obtain additional blood testing at his own expense. See N.H. Rev. 5
Stat. Ann. § 265:86. This paradigm does not afford the motorist a
choice between different forms of testing. The initial election
between available methods of measuring a suspect's BAC is committed
to the arresting officer's discretion. See id. § 265:92(I); cf.
State v. Winslow, 666 A.2d 946, 948 (N.H. 1995) (rejecting a due
process challenge by a suspect requesting an additional blood test
where the arresting officer refused to provide him with
transportation to the testing site). Certainly, then, Raffaelly's
legally authorized decision to utilize the standard breath test
procedure over the plaintiff's generalized objection to that form
of testing, undertaken without any knowledge of the plaintiff's
idiosyncratic asthma condition, is not the kind of conscience-
shocking act on which a substantive due process claim can be
premised.
The plaintiff's attempt to cast his claim in the image of
Limone is disingenuous. Limone, which arose on an interlocutory
appeal from the denial of a motion to dismiss, involved two law
enforcement officers who allegedly suborned perjured testimony in

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order to frame innocent men for murder. Limone, 372 F.3d at 43.
In rejecting the officers' claim that this conduct was protected by
qualified immunity, we wrote:
This is easy pickings. Although
constitutional interpretation occasionally can
prove recondite, some truths are self-evident.
This is one such: if any concept is
fundamental to our American system of justice,
it is that those charged with upholding the
law are prohibited from deliberately
fabricating evidence and framing individuals
for crimes they did not commit. Actions taken
in contravention of this prohibition
necessarily violate due process (indeed, we
are unsure what due process entails if not
protection against deliberate framing under
color of official sanction).
Id. at 44-45 (citation omitted).
The plaintiff hypothesizes that Raffaelly intended,
through the premature termination of the breath test, to
"manipulate the evidence" against him. That sort of conduct, he
says, is indistinguishable from the unconstitutional actions of the
Limone defendants. On this view of the case, Raffaelly "knew" that
he could no longer obtain a conviction against the plaintiff for
driving while intoxicated (after all, the one reading that he had
obtained showed a 0.04 percent BAC), so he decided to fabricate a
refusal to submit and pressed the "R" button to effectuate that
end.
This is pie in the sky. Although we must take the facts
in the light most favorable to the nonmovant (here, the plaintiff)
and draw inferences accordingly, Garside, 895 F.2d at 48, those

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inferences must be reasonable. Here, there is nothing, apart from
the plaintiff's unsubstantiated speculation, to indicate that
Raffaelly intended to falsify evidence of a refusal to submit to a
breath test.
Contrary to the plaintiff's importunings, the BAC of 0.04
percent recorded on the completed breath sample is not proof of
that point. Raffaelly testified to his belief that, regardless of
the aborted breath test, the plaintiff still could be convicted of
driving while intoxicated based on his (Raffaelly's) observations
during the traffic stop. Consistent with that belief, Raffaelly,
after terminating the breath test, signed a formal complaint
charging the plaintiff with driving while intoxicated. Raffaelly's
unrefuted testimony regarding his lack of familiarity with the
prosecutorial decisionmaking process similarly suggests that he had
no basis for "knowing" that, once the first breath sample was
recorded, the plaintiff could no longer be convicted of driving
while intoxicated.
Moreover, Raffaelly's avowed belief that the plaintiff
could be convicted for driving while intoxicated even after the
analysis of the first breath sample comports with New Hampshire's
statutory scheme. Under that regime, a BAC reading below 0.08
percent does not automatically exonerate a motorist. Rather,
evidence that a suspected drunk driver had a BAC between 0.03 and
0.08 percent is "relevant" evidence and "may be considered with

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We add that even if the record supported an inference that 6
Raffaelly had intentionally fabricated a nonexistent refusal —
which it does not — a showing of malicious intent would not
necessarily suffice, in the circumstances of this case, to shock
the contemporary conscience. Cf., e.g., Cruz-Erazo v. Rivera-
Montañez, 212 F.3d 617, 624 (1st Cir. 2000); Pittsley v. Warish,
927 F.2d 3, 7 (1st Cir. 1991).
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other competent evidence in determining the guilt or innocence" of
a person charged with driving while intoxicated. N.H. Rev. Stat.
Ann. § 265:89. Thus, the BAC reading on the plaintiff's first
breath sample did not conclusively prove his innocence.
To cinch matters, the uncontradicted evidence shows that
Raffaelly administered the test according to established procedure
and made a discretionary determination that the plaintiff was
refusing to submit to the test — a determination entrusted to him
by New Hampshire law. See N.H. Rev. Stat. 265:92(I); see also
Jordan, 561 A.2d at 1080. That determination, though quite
possibly incorrect, had a reasonable basis in the facts known to
Raffaelly at the time. The bottom line is that the record evidence
and the reasonable inferences extractable therefrom will not
support a finding that Raffaelly touched the "R" button with the
malicious intention of fabricating a nonexistent refusal.
Consequently, there was no substantive due process violation.6
III. CONCLUSION
We need go no further. Because the plaintiff's evidence,
even when viewed in the light most flattering to him, fails to
sustain a finding that Raffaelly committed a conscience-shocking

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As we have decided this appeal under the "shock the 7
conscience" prong of the substantive due process standard
applicable to executive action cases, we need not address the
district court's alternative holding that Raffaelly was, at the
very least, entitled to qualified immunity.
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act, the district court correctly granted summary judgment in
Raffaelly's favor on the substantive due process claim. That 7
being so, the district court's follow-on decision to dismiss the
plaintiff's state law claims without prejudice was well within the
realm of its discretion. See 28 U.S.C. § 1367(c)(3); see also
Martinez v. Colon, 54 F.3d 980, 990 (1st Cir. 1995).
Affirmed.

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