Allegedly Calling Ex “Fat Fuck Iranian” Stemmed from “Desire to Be Left Alone,” not “Anti-Iranian Sentiment”

From the First Circuit’s decision Tuesday in Radfar v. Covino, written by Judge Seth Aframe, joined by Judges Kermit Lipez and Jeffrey Howard:

We present [the] facts in the light most favorable to Radfar…. In June 2015, Radfar, a George Mason University (“GMU”) police officer, met Covino, a sergeant with the Revere Police Department, at a police event in Virginia. At that time, Covino and Radfar began a romantic relationship. After Covino returned to Massachusetts, he stayed in contact with Radfar.

Radfar visited Covino in the Boston area in August 2015, but during the visit, Covino said that he wanted to end the relationship. The two reconciled, and Radfar visited again two months later. Covino again told Radfar that he wanted to discontinue the relationship. Nevertheless, their communications continued. Radfar testified that in one phone call, Covino called her a “fat fuck Iranian” and stated that he hoped she would be “shot in [her] face with [her] service weapon.”

In July 2016, Radfar returned by car to the Boston area. On that trip, she went uninvited to the Revere Police Department, Covino’s place of employment, although he was not there at the time.

In January 2017, Radfar called Covino hundreds of times from over one hundred different phone numbers and sent him pictures of her that had been spliced with pictures of him. During that month, Covino called the GMU Public Safety Office and spoke to Lieutenant David Ganley. Covino informed Ganley about Radfar’s conduct and said that he wanted a “clean break” from her. Ganley told Covino that Radfar’s behavior was consistent with her past relationships. Covino stated that his “only concern [in contacting GMU] was having [Radfar] stay away from [him].”

Lieutenant Ganley reported Covino’s phone call to interim GMU Police Chief Carl Rowan, Jr. Rowan, in turn, requested a meeting with the Virginia State Police (“VSP”) to ask for an investigation into Radfar’s actions. Rowan later testified that Covino had not sought a criminal investigation of Radfar.

On January 25, 2017, Lieutenant Ganley emailed Covino with an update, in which he wrote: “My Chief wanted me to ask if you would be willing to file a police report with your local department? I know that’s a big ask[,] but he wants to have something to back up our investigation.” Shortly thereafter, VSP Special Agent William Kinnard called Covino to advise that he was investigating Radfar and requested “any and all records, documents, messages or transmissions” between Covino and Radfar. Covino provided a flash drive containing the requested information.

On January 29, 2017, Covino fulfilled Lieutenant Ganley’s request for a police report by authoring an internal “To File” Revere police “Incident Report” that described his relationship with Radfar. Covino did not provide the report to any Massachusetts law enforcement agencies. The report listed Covino as the “Reporting Officer,” “Approving Officer,” and “Victim,” and named Radfar as the “Suspect” for an offense of criminal harassment.

On January 31, 2017, following a hearing, Covino obtained an ex parte abuse-prevention order against Radfar in Lynn District Court. In his supporting affidavit, Covino declared that Radfar had “repeatedly attempted to contact [him] by any means necessary, [including] telephone, text, written letters, social media, driving from [Virginia] to [Massachusetts] and showing up in [his] neighborhood or at [his] place of work.” He also wrote that “Radfar has use[d] threats to force [him] into sexual relations with her on multiple occasions, being successful on one attempt while in Boston.” Covino concluded his affidavit by stating that Radfar had become “increasingly threatening and unstable as of the last week,” and he was in “absolute fear” of her.

Covino appeared at the ex parte hearing in plain clothes and while off-duty. He referenced Radfar’s appearance at his police station, stated that they had met at a police event, and told the judge that “[w]e miss you over in Chelsea.” When asked why he was seeking a restraining order, Covino said that Radfar had threatened him, appeared in his neighborhood, and possessed a firearm. He also noted that Lieutenant Ganley and Agent Kinnard “advocated for a restraining order.”

The same day that Covino obtained the abuse-prevention order, GMU police officers and Loudoun County Sheriff’s deputies served the order on Radfar, seized her firearms, placed her on leave from her job, and notified her of the ongoing investigation. On February 15, 2017, both Covino and Radfar attended a hearing in Lynn District Court, during which Covino did not contest the dismissal of the restraining order. In an affidavit, Covino affirmed that he “agreed to vacate the [order] so that the [Radfar’s] employment was not negatively impacted by her inability to possess a firearm.” …

Radfar sued, claiming, among other things, that Covino violated the Equal Protection Clause, by discriminating against her based on national origin; no, said the court:

Radfar posits that Covino acted under color of law by (1) obtaining the abuse-prevention order in Lynn District Court and (2) using his police position to write the police report and gather and send information to law enforcement in Virginia.

We agree with the district court that only Covino’s writing of the police report and associated conduct could possibly meet the color-of-law requirement. The inquiry “turns on the nature and circumstances of the officer’s conduct and the relationship of that conduct to the performance of his official duties.” A critical aspect of the inquiry is whether the officer “purposes to act in an official capacity or to exercise official responsibilities pursuant to state law.” Private conduct outside the line of duty, unadorned by the trappings of authority, is not conduct that occurs under color of state law.

In seeking the abuse-prevention order, Covino’s affidavit made no reference to his employment as a police officer. And, during the hearing, Covino appeared while off duty and out of uniform to discuss a personal relationship gone awry. That Covino made a few comments such that the judge likely knew he worked as a police officer is not enough to meet the color-of-law requirement where Covino was appearing to obtain relief in a purely private matter.

Whether Covino acted under color of law by authoring the police report about Radfar’s behavior presents a closer question. “Merely complaining to the police does not convert a private party into a state actor.” But Covino did more than that. He listed himself as the reporting and approving officer on the report and used police facilities and personnel to store and transfer evidence. Covino could only assume these roles “because [he was] enabled by [his] status as [a] police officer[ ].”

Assuming Covino acted under color of law in these respects, Radfar still failed to establish a triable issue on whether this conduct violated her right to equal protection. As the basis for her equal protection theory, Radfar contends that Covino filed the police report and sent evidence to Virginia authorities because of her Iranian heritage. In support of the claim, Radfar states that Covino once denigrated her national origin in a phone call.

To sustain an equal protection claim, a plaintiff must “show that the relevant policymakers and actors were motivated, at least in part, by a discriminatory purpose.” A discriminatory purpose “implies that the decisionmaker … selected … a course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

Covino’s alleged statement disparaging Radfar’s national origin is an insufficient basis for finding that his conduct in drafting the police report was motivated by anti-Iranian animus. His remarks to her were made in the context of a “rancorous breakup,” during which Radfar’s own harassing behavior was self-admittedly “flawed.” Also, there is no dispute that Covino called Radfar’s employer after her aggressive conduct toward him in January 2017, which included hundreds of phone call from numerous numbers, and that Covino authored the police report and arranged to send the information at the request of GMU and VSP authorities. We therefore agree with the district court that the record does not give rise to a reasonable inference that anti-Iranian sentiment, rather than a desire to be left alone, motivated Covino.

In these circumstances, a single stray remark about Radfar’s national origin does not permit the conclusion that that Covino’s later conduct was impermissibly driven by national-origin animus. That is especially so where, as here, Radfar has provided no information about the timing or context of Covino’s remark and has not tethered the statement about her national origin to Covino’s creation of the incident report.

Kenneth H. Anderson (Anderson, Goldman, Tobin, Pasciucco, L.L.P.) represents Covino, and Daniel E. Doherty represents the City of Revere and city officials.