Opinion
Civil Action No. 03-10461-DPW.
December 7, 2004
MEMORANDUM AND ORDER
Plaintiff George Stoddard brings this action against police officer Richard Somers and the Town of Rockland, Massachusetts under 42 U.S.C. §§ 1983 and 1988, as well as the Fourth and Fourteenth Amendments to the United States Constitution. In addition, Stoddard alleges that Somers committed the state law torts of intentional infliction of emotional distress, trespass, and assault and battery. The defendants have moved for summary judgment under Fed.R.Civ.P. 56.
The plaintiff asserts the claims in this fashion and the defendants respond in kind. Therefore, "this opinion adheres to the conventional and convenient (though technically imprecise practice) of referring to [the] underlying Bill of Rights provision (which of course impose[s] limitations only on the federal government) rather than solely to the Fourteenth Amendment (which applies to state actors and has been construed to embody such Bill of Rights guaranties)." McNamara v. Hess, 67 Fed. Appx. 139, 141 n. 1 (3d Cir. 2003).
I. BACKGROUND
Dating back to 1997 or 1998, Stoddard and his next-door neighbor, Louis Rubbo, have disputed the ownership of land between their homes where a driveway is located. The Rockland Police Department has been called to the homes on more than 30 occasions regarding this ongoing argument.
On April 21, 2002, the Rockland Police responded to a call from Rubbo. On the previous day, Stoddard's girlfriend, Deborah Kelly, parked her pickup truck adjacent to Rubbo's house in the driveway. Kelly parked the truck on that portion of the driveway because she claimed Rubbo's truck was parked on the side adjacent to Stoddard's house. On the morning of the 21st, a Sunday, Stoddard noticed that the tires on Kelly's truck were deflated and that the valve stems were bent and pulled out. He therefore went to the store to purchase new valve stems and, upon his return, began inflating the tires. While Stoddard was engaged in this task, Rubbo demanded that he move Kelly's truck. Stoddard did not and, instead, after inflating the tires, he went to a coffee shop.
Upon Stoddard's return, he noticed that once again the tires on Kelly's truck were flat. Consequently, a dispute between Stoddard and Rubbo broke out and Rubbo threatened to call a tow truck to move Kelly's truck. Sometime between 1:00 and 1:30 that afternoon, while Stoddard and Kelly were working in the yard of Stoddard's house, a tow truck arrived. Stoddard told the driver that he had no right to move Kelly's truck and the driver indicated that he would therefore leave. Stoddard then saw Rubbo talking on his cellular phone; fifteen to twenty minutes later two police cars arrived. As all this was happening, Somers — a police officer then off-duty — was working in his yard just down the street. His wife told him that police cars had arrived at Stoddard's house.
The defendants claim that both Stoddard and Rubbo "again exchanged angry words" at this point. The plaintiff, however, contends that only Rubbo used "angry" words.
Out in front of his home, Stoddard began to speak to the officers, one of whom noted that it appeared to him that the driveway, based on its location, was on Rubbo's property. Therefore, Stoddard went to the backyard to tell Kelly that her truck would be towed if she did not move it. Kelly returned to the front of the house, where another officer confirmed that her truck would be towed if she did not move it. Shortly thereafter, Rubbo moved his truck into the street and Kelly got into her truck and backed it onto the lawn in front of Stoddard's house. There exists a dispute, however, regarding what happened as Kelly moved her truck. The defendants claim that "Kelly recklessly struck [the officer] while backing her truck up," which Stoddard disputes. At this point, Somers's wife, who was outside their house, shouted to her husband that an officer had been hit by a pickup truck down the street and needed help.
Consequently, Somers ran to Stoddard's house, arriving at the scene as one of the officers told Kelly she was under arrest and ordered her to get out of her truck. Kelly did not immediately do so. Somers instructed the officer to break the driver-side window with his police baton to enable them to open the door. At this point, Stoddard went into his house, followed shortly thereafter by Kelly, who got out of her truck via the passenger-side door. Kelly closed — but did not lock — the front door to the house behind her. The officers on the scene, including Somers, followed her into the house.
It is undisputed that upon entering the house Somers struck Stoddard. The parties dispute, however, the nature and purpose of this contact. Stoddard contends that Somers — immediately upon entering the house — punched him on the chin, pushed him over a bookcase, and "'squished' him between [the] bookcase and himself." Somers denies punching Stoddard, insisting that he simply pushed Stoddard in an attempt to prevent him from interfering with the arrest of Kelly. According to Stoddard, his chin bled for approximately two hours after the incident with Somers.
While or immediately after striking Stoddard, Somers said — using an expletive-laden comment — that he was "sick of" the fact that the police had to come to Stoddard's house so often. Stoddard was on the ground after Somers struck him and stayed there until the officers left with Kelly. The parties dispute whether Stoddard was physically prevented from getting up by Somers.
Although it is disputed whether Somers physically prevented Stoddard from getting up, Somers admittedly ordered him to stay down while Kelly was being handcuffed and taken into custody.
In the end, Kelly was arrested and charged with assault and battery with a dangerous weapon, assault and battery on a police officer with a dangerous weapon, criminal trespass, and resisting arrest. She was convicted of criminal trespass and resisting arrest and acquitted of the remaining charges.
Stoddard filed a six-count complaint in this action on March 10, 2003. Two counts raised Fourth Amendment claims, one based on Somers's alleged use of excessive force and the other claiming officers illegally entered Stoddard's house. Three counts dealt with alleged assault and battery, trespass, and intentional infliction of emotional distress by Somers. The plaintiff also brought a claim against the Town of Rockland. In responding to the instant motion for summary judgment, the plaintiff has decided not to pursue his claim of intentional infliction of emotional distress against Somers or any of his claims against Rockland. Summary judgment will be granted on those claims without further discussion. The following discussion deals only with the remaining claims raised against Somers, whom I will refer to as the defendant.
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment must make a preliminary showing that no genuine issue of material fact exists. Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995), cert. denied, 515 U.S. 1103 (1995). Once the movant has made such a showing, the nonmovant must point to specific facts demonstrating that there is, indeed, a trialworthy issue. Id.
A fact is "material" if it has the "potential to affect the outcome of the suit under the applicable law," Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000), and a "genuine" issue is one supported by such evidence that "a 'reasonable jury, drawing favorable inferences,' could resolve it in favor of the nonmoving party." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting Smith v. F.W. Morse Co., 76 F.3d 413, 428 (1st Cir. 1996)). "[C]onclusory allegations, improbable inferences, and unsupported speculation," are insufficient to establish a genuine dispute of fact. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
B. Section 1983 Claims
Stoddard raises two § 1983 claims, one based on the alleged illegal entry into his home and the other based on the claimed excessive force used by the defendant. To establish a claim under § 1983, Stoddard must prove: "(i) that the conduct complained of has been committed under color of state law, and (ii) that the conduct worked a denial of rights secured by the Constitution or laws of the United States." Collins v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001). The parties have stipulated that the defendant was acting under color of state law. Therefore, I concern myself only with the second half of the § 1983 inquiry when taking up Stoddard's claims.
1. Qualified Immunity
The Fourth Amendment claims in this case must be analyzed in light of the qualified immunity enjoyed by police officers. Pursuant to the doctrine of qualified immunity, "the police in their arrest and detention functions are normally 'shielded from liability for civil damages' under federal law insofar as their conduct does not violate 'clearly established' rights of which 'a reasonable person would have known.'" Ringuette v. City of Fall River, 146 F.3d 1, 5 (1st Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The immunity extends "so broadly that 'all but the plainly incompetent or those who knowingly violate the law'" enjoy its protection. Hegarty v. Somerset County, 53 F.3d 1367, 1373 (1st Cir. 1995) (quotingHunter v. Bryant, 502 U.S. 224, 229 (1991)).
Courts are directed to take a two-step approach when assessing a claim of qualified immunity. First, they must be determined whether "the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201 (2001). Then, "if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id.
These steps should be resolved, whenever possible, before trial, see Roy v. City of Lewiston, 42 F.3d 691, 694 (1st Cir. 1994) (citing Hunter, 502 U.S. 224), because it is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). "The privilege is 'an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Saucier, 533 U.S. at 200-01 (quoting Mitchell, 472 U.S. at 526).
This broad protection from civil liability is a by-product of policy considerations regarding the judicial role in assessing police conduct. See Hegarty, 53 F.3d at 1372-73. As the Supreme Court has made clear,
[w]hen government officials abuse their offices, 'action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.' On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.Anderson v. Creighton, 483 U.S. 635, 638 (1987) (quotingHarlow, 457 U.S. at 814); see Hegarty, 53 F.3d at 1372-73.
I therefore turn to the claims in this case cognizant of the dangers posed both by judicial second-guessing of difficult police decisions and by preventing citizens from vindicating clearly established rights.
2. Illegal Entry
The plaintiff contends in his complaint that the defendant's entry into his home to assist in effectuating Kelly's arrest was a violation of his Fourth Amendment rights. The defendant has moved for summary judgment on this issue and the plaintiff has not — at least in any easily discernible manner — opposed the motion as to this issue. Nevertheless, I will address the issue and, for the reasons stated below, find the defendant is entitled to summary judgment on the illegal entry claim.
Stoddard has brought a trespassing claim as well. To establish a trespassing claim under Massachusetts law, the plaintiff "must prove two elements: (1) that the plaintiff had actual possession of the property and (2) that defendant['s] entry was intentional and illegal." Donovan v. Fafard Real Estate and Dev. Corp., 11 Mass. L. Rptr. 35, 2000 WL 16766, at *6 (Mass.Super. 1999) (citing New England Box Co. v. C R Constr. Co., 313 Mass. 696, 707 (1943)). If the defendant entered the house pursuant to the exigent circumstances exception to the warrant requirement in order to assist in the arrest of Kelly, it cannot be found that he entered the home illegally. Because I find that the defendant entered Stoddard's home legally, the defendant cannot be found liable for trespassing.
Stoddard enjoys the protection the Fourth Amendment provides against unreasonable searches and seizures of his home by the government. The government must be particularly careful in situations such as this, for in no place "is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home." Payton v. New York, 445 U.S. 573, 589 (1980); see Welsh v. Wisconsin, 466 U.S. 740, 748 (1984) ("It is axiomatic that the 'physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'") (quoting United States v. United States District Court, 407 U.S. 297, 313 (1972)). Therefore, it is not surprising that "[a] warrantless search involving an intrusion into someone's home is presumptively unreasonable. . . ." United States v. Beaudoin, 362 F.3d 60, 65 (1st Cir. 2004).
Nevertheless, the presumption can be overcome. One exception to the general warrant requirement is when the police are facing "exigent circumstances." See United States v. Soto-Beníquez, 356 F.3d 1, 36 (1st Cir. 2004); Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st Cir. 1999). "One consistently recognized example of exigent circumstances encompasses the 'hot pursuit' of a suspect the police reasonably believe to be a felon." Soto-Beníquez, 356 F.3d at 36 (citing Minnesota v. Olson, 495 U.S. 91, 100 (1990) and Hegarty, 53 F.3d at 1374); 2 John Wesley Hall, Search and Seizure § 22.27, at 35 (3d ed. 2000) ("Hot pursuit is the oldest recognized justification for a warrantless entry to search for and arrest a suspect."). It has been said that "[h]ot pursuit is really a melding of all the other recognized exigencies." 2 Hall, Search and Seizure § 22.27, at 35. Unfortunately, the component elements of the resultant exception are not crystalline.
In order to benefit from the "hot pursuit" exception, the defendant must have "reasonably believe[d] [Kelly] to be a felon." The defendant was under the not-unreasonable impression that Kelly struck a fellow officer with her car shortly before his arrival on the scene. The defendant himself observed Kelly resist arrest. Stoddard disputes that Kelly ever struck the officer with her truck, but does not directly raise this issue in his opposition. Therefore, even drawing inferences in the plaintiff's favor, there seems to be no real dispute that Somers had probable cause to believe that Kelly had struck a fellow officer with her truck and then resisted a valid arrest.
The Supreme Court established in United States v. Santana, 427 U.S. 38 (1976), and later refined in Welsh v. Wisconsin, 466 U.S. 740 (1984), the analysis to be undertaken in "hot pursuit" cases. In Santana, an undercover officer arrested a woman who had just sold him drugs. After doing so, he asked where the money that he had previously given her was and she responded that her mother had it back at her house. When officers returned to the home, they saw the suspect's mother standing in the doorway with a brown bag in her hand. As the officers approached the door, the woman retreated into the house and the officers followed. One of the questions taken up by the Santana court was "whether her act of retreating into her house could thwart an otherwise proper arrest." Santana, 427 U.S. at 42. The court "conclude[d] that a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under [United States v. Watson, 423 U.S. 411 (1976)], by the expedient of escaping to a private place." Id. at 43. The conclusion in Santana was informed, however, by the Court's concern "that any delay would result in destruction of evidence." Id. at 43.
The issue of warrantless searches for a suspect in a third-party's home has also been addressed by the Supreme Court.See Steagald v. United States, 451 U.S. 204 (1981). As the First Circuit has noted:
When the police enter the home of the person they wish to arrest, the arrest warrant suffices for entry if 'there is reason to believe the suspect is within.' But even when armed with an arrest warrant, police must generally have a search warrant to enter lawfully a third person's home. However, a third person's house may be lawfully entered without a search warrant if exigent circumstances exist, and exigent circumstances include 'hot pursuit.'Joyce v. Town of Tewksbury, 112 F.3d 19, 21-22 (1st Cir. 1997) (en banc) (internal citations omitted).
Whether Stoddard's home can properly be considered a "third person's home" with respect to Kelly is not entirely clear from the record evidence. The record indicates that Kelly lives at Stoddard's home, but the issue is not developed by the parties. In any event, the police are permitted to enter the house without a warrant in the face of exigent circumstances whether or not she is deemed to live there. Kelly's status in the home would only affect her standing to sue regarding the illegal entry by the police, and not the result of the analysis regarding exigent circumstances in this case brought by Stoddard.
In contrast, the Supreme Court found in Welsh that the police had not faced exigent circumstances allowing them to enter an apparently inebriated plaintiff's home without a warrant. The police there had reason to believe that Welsh — who had left his car in an open field after being witnessed by a layperson driving erratically — had been driving while intoxicated. The officers suspected that Welsh had decided to walk home and, therefore, made their way to and entered his house without a warrant. One of their arguments regarding exigent circumstances — in addition to arguing that evidence (i.e., the defendant's blood alcohol level) would be affected by delay and that public safety was at stake — was that they were in "hot pursuit." The Supreme Court rejected this argument "because there was no immediate or continuous pursuit of the petitioner from the scene of the crime." Welsh, 466 U.S. at 753.
These decisions do not provide a great deal of clarity when approaching "hot pursuit" cases, and so it has been left largely to lower courts to determine the concept's boundaries. See Joyce v. Town of Tewksbury, 112 F.3d 19, 22 (1st Cir. 1997) (en banc) ("The governing case law under the Fourth Amendment does not yield very many bright line rules."); see also Beaudoin, 362 F.3d at 70-71. While Santana can be read simply to declare that a suspect may not evade a public arrest by ducking indoors, it is not entirely clear whether that conclusion turned on a fact-specific concern regarding the destruction of evidence. "Hot pursuit" is arguably an exception with its own independent rationale, where all that is required is the "immediate and continuous pursuit" of a petitioner. See Birtz v. Town of Lincoln, No. 95-286, 1996 U.S. Dist. LEXIS 10873, at *21 (D. Me. July 29, 1996) (noting that the Supreme Court defines the exception "as 'some sort of chase' set in motion in a public place"). As observed above, however, the Court's conclusions arguably have been informed by arguments relating to the destruction of evidence and concern for public safety. For example, in Soto-Beníquez, the First Circuit concluded: "We have previously held in a remarkably similar situation that an officer who is looking for a fleeing suspect and has a reasoned basis to think that he has found the suspect is justified in pursuing the suspect into a house." 356 F.3d at 36. The situation described was one where the suspect was believed to be armed, thereby raising possible public safety concerns.
Arguably, then, "hot pursuit" comprises the other recognized exigencies. It has been applied, however, as if it has an independent foundation. For example, in St. Laurent v. Town of Sturbridge, No. 89-30005, 1990 WL 92470 (D. Mass. June 18, 1990), a police officer spotted a car driving erratically and attempted to pull the driver over. The driver did not stop and, instead, continued driving to and then entered his house.
Applying Welsh and Santana to the stage of the drama as plaintiff entered the house and [the officer] was left standing at the foot of the driveway, [the officer] was empowered immediately to pursue the plaintiff and enter his home, without a warrant, if necessary to effect his arrest. Plaintiff was not justified in fleeing to his house and literally hiding under the bedclothes in response to [the officer's] initiative.St. Laurent, 1990 WL 92470, at *8. The same reasoning applies here and, unlike in Santana, the suspect in this case, Kelly, was clearly outside the house at the time the police first attempted to arrest her, thereby making the initial encounter clearly public. In addition, as noted in Santana, the relative brevity and short distance of the pursuit does not automatically remove it from the exception. 427 U.S. at 42-43 (noting that "'hot pursuit' means some sort of a chase, but it need not be an extended hue and cry 'in and about [the] public streets'" and "[t]he fact that the pursuit here ended almost as soon as it began did not render it any the less a 'hot pursuit' sufficient to justify the warrantless entry into [his] house.").
Here, there is no indication either that Kelly was armed or that there was evidence that could be destroyed. Under these circumstances, finding for the defendant suggests that the officer's "hot pursuit" alone was sufficient — absent any other indication of exigency — for entry into the house without a warrant. While this construction may be accurate, the facts in this case do not require such a broad understanding of the exception. The officers were not simply pursuing Kelly for the sake of pursuit. The defendant believed that Kelly had assaulted a fellow officer moments earlier and personally observed her resist arrest. Both of these actions could reasonably lead him to believe — in the few moments he had to react — that Kelly might pose a continued danger to himself and his fellow officers. For example, Kelly could have been retreating to the house in order to arm herself. Even if such a possibility seems remote in retrospect, it would be inappropriate to second-guess an officer's objectively reasonable, spur-of-the-moment decision in such an instance.
Whether or not the "hot pursuit" exception applies, the defendant is entitled to the protection of qualified immunity at the very least. Given the less than clear state of the law on this issue and the facts in this case, the defendant cannot be expected to know where the exact boundaries of the exception lie. In the end, the standards set for the officer, as well as the court, in hot pursuit cases is quite fact-specific. The First Circuit in Joyce, for instance, determined that "there are arguments to be made on both sides" in a case where the suspect was confronted at the door to his house. 112 F.3d at 22. The suspect — for whom the police had an arrest warrant — was behind a screen door and refused to come out at the officers' request. The police took it upon themselves to enter the house and effectuate his arrest. Based on its determination that the law was unsettled, the court extended the protection of qualified immunity to the officers without deciding whether there was a constitutional violation. Id. at 23.
The court in Joyce found that "[b]ecause it is not even clear that there was a violation — a point that we do not decide — there certainly was no violation so patent as to strip the officers of qualified immunity." Joyce, 112 F.3d at 23. I recognize that here — as in Joyce — there are strong arguments on both sides. Nevertheless, I choose to decide whether there has been a violation because I do not deem the facts here to present as close a case as was found in Joyce. Moreover, in a body of case law with few bright-line rules, this case certainly resides with those in which an officer is protected by the doctrine of qualified immunity, where an objectively reasonable officer could believe they were acting pursuant to the law. See Hegarty v. Somerset County, 53 F.3d 1367, 1381 (1st Cir. 1995) ("We determine only whether the discretionary decisions made by the defendants were within the broad range of reasonable conduct to be expected from competent police officers . . . in like circumstances.") (emphasis added).
Considering the relatively serious nature of the suspected crime and uninterrupted nature of the defendant's pursuit of Kelly into the plaintiff's house, I find that no violation of the plaintiff's Fourth Amendment rights occurred. Regardless of an ultimate finding on the merits, Somers could reasonably believe that it was constitutional for him to enter the house without a warrant, thereby providing him the protection — at the very least — of qualified immunity. Whether the defendant — once legally inside the plaintiff's home — acted outside the Constitution when he struck the plaintiff is taken up in the following section.
Delving more deeply into the qualified immunity analysis, I conclude "an objectively reasonable police officer could have believed . . . that 'exigent circumstances' . . . existed" for the warrantless entry into the plaintiff's home in order to effectuate the arrest of Kelly. Hegarty, 53 F.3d at 1374. As noted above, I ultimately find the defendant's entry to be constitutional on the merits. Therefore, an objectively reasonable officer could have believed that entering the house was legitimate regardless of the ultimate finding by this court.See Saucier v. Katz, 533 U.S. 194, 206 (2001) (finding that "even if a court were to hold that the officer violated the Fourth Amendment by conducting an unreasonable, warrantless search, Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions.").
3. Excessive Force
Stoddard also contends that Somers used excessive force in violation of 42 U.S.C. § 1983 during the encounter between them in his home on April 21, 2002. Use of excessive force by a police officer is a constitutional tort, Wilson v. Mendon, 294 F.3d 1, 6 (1st Cir. 2002), and "all claims that law enforcement officers have used excessive force . . . in the course of a . . . 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard. . . ." Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis omitted). A court must carefully balance "'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Id. at 396 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). "'Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' violates the Fourth Amendment." Graham, 490 U.S. at 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (1973)) (internal citation omitted).
Stoddard has also raised a common law assault and battery claim against Somers in this suit. Under Massachusetts law, if an officer is authorized to make an arrest, he or she "may use 'such force as is reasonably necessary to effect the arrest.'" Dean v. City of Worcester, 924 F.2d 364, 369 (1st Cir. 1991) (quotingJulian v. Randazzo, 380 Mass. 391, 396 (1980)). Consequently, if the defendant did not violate Stoddard's Fourth Amendment rights, he cannot be found liable for assault and battery. See Jesionowski v. Beck, 937 F. Supp. 95, 105 (D. Mass 1996) (concluding that "the plaintiff's assault and battery claims will rise or fall in the same manner as his Fourth Amendment claims");Dean, 924 F.2d at 369.
On the other hand, if the defendant is found to have violated the Fourth Amendment and, as here, is not protected by qualified immunity, the assault and battery claim will survive summary judgment as well. See Aceto v. Kachajian, 240 F. Supp. 2d 121, 127 (D. Mass. 2003) (noting that under Massachusetts law police officers may use the force reasonably necessary to effectuate an arrest "but may not go 'beyond what was reasonably necessary to secure both their own safety and the safety of the general public'"); see also Rosenfeld v. Egy, No. 01-10730-DPW, 2003 U.S. Dist. LEXIS 1302, at *23 n. 11 (D. Mass. Jan. 29, 2003) (noting that "suits against police officers for intentional torts are not barred by the Massachusetts Torts Claim Act, but the standard for liability can be slightly different" because "[a] police officer has 'the right to use the force which is reasonably necessary to overcome physical resistance by the person sought to be arrested'") (quoting Julian v. Randazzo, 380 Mass. 391, 396 (1980)).
In applying the reasonableness standard, courts should pay "careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting or attempting to evade arrest by flight." Id. Reasonableness is an objective standard, see id. at 397, and in determining whether the Somers's actions were objectively reasonable, it must be remembered that "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 396-97.
Although reasonableness is at the heart of the determination both of whether a constitutional violation occurred and also whether qualified immunity applies, the analyses are distinct.
In Anderson [v. Creighton, 483 U.S. 635 (1987)], a warrantless search case, we rejected the argument that there is no distinction between the reasonableness standard for warrantless searches and the qualified immunity inquiry. We acknowledged there was some "surface appeal" to the argument that, because the Fourth Amendment's guarantee was a right to be free from "unreasonable" searches and seizures, it would be inconsistent to conclude that an officer who acted unreasonably under the constitutional standard nevertheless was entitled to immunity because he "'reasonably' acted unreasonably." This superficial similarity, however, could not overcome either our history of applying qualified immunity analysis to Fourth Amendment claims against officers or the justifications for applying the doctrine in an area where officers perform their duties with considerable uncertainty as to "whether particular searches or seizures comport with the Fourth Amendment." With respect, moreover, to the argument made in Anderson that an exception should be made for Fourth Amendment cases, we observed "the heavy burden this argument must sustain to be successful," since "the doctrine of qualified immunity reflects a balance that has been struck 'across the board.'" We held that qualified immunity applied in the Fourth Amendment context just as it would for any other claim of official misconduct.Saucier, 533 U.S. at 203 (internal citations omitted).
The First Circuit has noted similarly in the context of probable cause and qualified immunity determinations: "A state actor may be entitled to qualified immunity for rights-violating conduct as long as he had an objectively reasonable basis for believing that his conduct would not abridge the rights of others." Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999). "This means, of course, that the reasonableness standards underlying the probable cause and qualified immunity inquiries are not coterminous." Id.
In addition, an officer's bad intentions will not make an objectively reasonable use of force unconstitutional. See id. The Graham court did add, however, that "in assessing the credibility of an officer's account of the circumstances that prompted the use of force, a factfinder may consider, along with other factors, evidence that the officer may have harbored ill-will toward the citizen." Id. at 399 n. 12.
Here, Somers insists that the plaintiff moved toward the officer arresting Kelly. He contends that he struck Stoddard in an attempt to prevent him from interfering with the arresting officer. If Stoddard had conceded that he moved toward the officer but for a benign purpose, then — even drawing inferences in Stoddard's favor — Somers's actions begin to look much more reasonable as an objective matter. The police need not be all-knowing and flawless in their judgments regarding the intentions of suspects or others in the vicinity. See Hegarty, 53 F.3d at 1379 n. 11 ("[O]mniscience is not the presumed mind set with which an objectively reasonable police officer approaches life-endangering situations.").
But the record before me does not simply present alternative interpretations of a particular action. Instead, the parties dispute whether the plaintiff took any action at all and, given the procedural posture of this case, I must draw inferences in favor of the plaintiff on this matter. Under Stoddard's version of events, he did not move, was clearly unarmed, and said nothing. Stoddard contends that Somers attacked him immediately upon entering the house. When Stoddard asked Somers why he had done so, Somers evidenced anger and frustration at Stoddard in his response.
If there were no dispute regarding the physical actions of the plaintiff (even if a dispute remained about their implication), the plaintiff's contention that he was not a suspect would miss the mark. If Stoddard's movements reasonably could be deemed evidence of his intent to interfere with Kelly's arrest, the defendant would have probable cause to physically detain him, not only to protect a fellow officer and effectuate Kelly's arrest, but also to effectuate the arrest of Stoddard himself for resisting arrest. Massachusetts law provides that "[a] person commits the crime of resisting arrest if he knowingly prevents or attempts to prevent a police officer, acting under color of his official authority, from effecting an arrest of the actor or another. . . ." Mass. Gen. Laws ch. 268, § 32B(a) (2004) (emphasis added).
Under this version of events, Stoddard was not suspected of committing a severe crime, there was no observable, objective indication that he posed "an immediate threat to the safety of the officers or others," nor was he "actively resisting or attempting to evade arrest by flight." Nevertheless, according to Stoddard, Somers punched him in the face, pushed him over a bookcase, and held him in place. I therefore find — drawing inferences in favor of the plaintiff, as I must — that Somers used an excessive amount of force in detaining Stoddard. See Jacobson v. City of Nashua, No. 01-165, 2002 U.S. Dist. LEXIS 11443, at *11 (D.N.H. June 19, 2002) ("[The plaintiff's] account of his arrest places him sitting passively under a tree in his backyard, responding immediately to the officer's command to show his hands, and then being attacked by the police dog. If the jury were to credit Jacobson's testimony, it could find that [the police officer] violated his Fourth Amendment right to be free from excessive force during arrest."). In fact, no amount of force — given Stoddard's account — would have been reasonable.
To come to this conclusion, I need not consider the relevance of the defendant's epithet-laden comment about his frustration with the plaintiff's calls to the police. The defendant's alleged comment would not in itself be sufficient to turn an objectively reasonable use of force into one that is deemed unreasonable. Nevertheless, as already noted, "in assessing the credibility of an officer's account of the circumstances that prompted the use of force, a factfinder may consider, along with other factors, evidence that the officer may have harbored ill-will toward the citizen." Graham v. Connor, 490 U.S. 386, 399 n. 12 (1989). This question of credibility will be left for the jury, because I find that applying the summary judgment standards to the factual disputes in this case, the defendant's actions were unreasonable notwithstanding anything he might have said.
Somers contends that excessive force cannot be found where, as here, there is no evidence that the plaintiff suffered substantial injuries. That is not the case. While "[t]he severity of injuries resulting from police intervention may be considered in ascertaining the reasonableness of the degree of force used,"Herrera v. Davila, 272 F. Supp. 2d 154, 161 (D.P.R. 2003), it cannot be said that a plaintiff may only recover if he has lasting, observable injuries resulting from the police conduct.
The next step is to determine whether this constitutional right was clearly established. I do so cognizant that "[t]his inquiry . . . must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. Accordingly, the standard when addressing the question of qualified immunity is that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 635.
The application of qualified immunity is most appropriate when there is a dispute about the proper interpretation of particular actions taken by the party alleging excessive force. For instance, in Roy, the police used deadly force against an armed man who they claim was acting erratically. The plaintiff in Roy contended that he was about to put down the knives he was holding in each hand, and, therefore, the police action was unreasonable. In these circumstances, the court would not permit a jury to consider the plaintiff's claim that the situation could have been handled differently — that is, in essence, to second-guess police choices made in a dangerous situation. See Roy, 42 F.3d at 695; see also Medeiros v. Town of Dracut, 21 F. Supp. 2d 82, 87 (D. Mass. 1998) ("The question then is not whether [the defendant's] use of deadly force was excessive, but whether it was reasonable for an officer in [the defendant's] position to perceive plaintiff's actions as hostile rather than merely defensive.").
When there exist multiple explanations for observed actions, it is not the place of a court or, for that matter, a jury to supplant a police officer's judgment. For example, in a case where a police officer shot a man who claimed that he had been diving for cover, the court found:
There are at least two reasonable explanations for plaintiff's conduct. On the one hand, diving for cover is a perfectly reasonable reaction on the part of an innocent person caught in a firefight. On the other hand, a culpable individual might dive for a weapon to prevent capture, or, worse, to take the offensive against the police. Confronted with two possible explanations, and the need to make a split-second decision that, either way, would have potentially life-threatening consequences, Richardson could not know why plaintiff moved as he did. This is particularly true where plaintiff's companion had just moved from a position of relative surrender to one that threatened the lives of the officers. Richardson made his choice. The excessive force and qualified immunity cases discourage us from assessing what a reasonable officer could or could not believe beyond asking whether his conduct was plainly incompetent.Medeiros, 21 F. Supp. 2d at 88.
Again, however, as mentioned in addressing whether an unreasonable amount of force was used by the police, the handling of the situation is only of minor import because there is a very real dispute about the nature of the situation itself — namely, what, if anything, Stoddard did in the presence of the arresting officers. See Gonzalez-Perez v. Gomez-Aguila, 312 F. Supp. 2d 161, 170-71 (D.P.R. 2004) (finding that the defendants were "not entitled to the qualified immunity defense" where there was a factual dispute about whether a suspect "was in fact carrying and firing an AK-47"). If Stoddard's version of events is credited, no amount of force would be reasonable, thereby making immaterial the dispute over the extent of the contact. Cf. Iacobucci v. Boulter, 193 F.3d 14, (1st Cir. 1999) (where the court found that defendants were not entitled to qualified immunity when they handcuffed and arrested a man who "was in a public area of a public building; had a right to be there; . . . and neither spoke to nor molested them in any way"). For the concern in such cases is "not with proof of raw facts but whether, on known or assumed facts, police behavior can be deemed egregious enough to submit the matter to the jury." Roy, 42 F.3d at 696.
The defendant attempts to make this aspect of the case turn on an officer's freedom to interpret actions, rather than on — as it actually does — whether any actions were taken by the plaintiff. Somers implies that he is basing his arguments on inferences drawn in Stoddard's favor but, in fact, does the opposite. Somers writes that "even assuming that, as Stoddard claims, Somers struck him once on the chin — without causing any type of serious injury — in the course of attempting to keep him away from the officers arresting Kelly, Stoddard cannot show that Somers' alleged conduct was so plainly in violation of clearly-established constitutional requirements as to waive his entitlement to qualified immunity." (Def.'s Mem. at 6.) This statement assumes that Somers had reason to think Stoddard was going to interfere with the arrest. To come to this conclusion requires a finding at this stage that Stoddard was a threat in some objectively observable way, in essence, resolving whether he moved or said anything that would indicate he was a threat. Such facts are clearly in dispute and therefore cannot support summary judgment for the defendant on this matter.
Here, the case is one of whether he acted a certain way, not to what extent or why he did so. In this sense, it is distinguishable from a case such as Roy in which a court should refuse to second-guess an officer's response to particular actions taken by a suspect. Stoddard contends that he neither moved at all, nor said anything, and that he was neither armed nor holding anything. There is no indication that Stoddard was himself suspected of a crime, nor was there any background knowledge that would lead an officer to be concerned for his safety in Stoddard's presence.
If inferences are properly drawn in Stoddard's favor, Somers would be hard-pressed to find a justification for his actions — indeed he doesn't try to. For purposes of summary judgment, inferences are so drawn and, therefore, I find that Somers does not enjoy the protection of qualified immunity at this stage of the proceedings and reserve the question of qualified immunity for a later date. See Wiggins v. Rhode Island, 326 F. Supp. 2d 297, 310 (D.R.I. 2004) ("Since the facts that gave rise to the altercation are neither know to this Court nor (at this procedural stage) can be assumed not to reflect Plaintiff's view, the Court must defer the resolution of the Officers' assertion of the qualified immunity defense as to the claim of excessive force."). I do so fully aware that whenever possible, qualified immunity should be resolved before trial. See Roy, 42 F.3d at 694. It is not possible here, however, at least not without "find[ing] facts or draw[ing] inferences in favor of the [defendant] and against [the plaintiff]. This, of course, would run afoul of the summary judgment standard." Wiggins, 326 F. Supp. 2d at 309; see Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir. 2002) ("Although '[w]e recognize that the immunity question should be resolved, where possible, in advance of trial,' pre-trial resolution sometimes will be impossible because of a dispute as to material facts.") (quoting Swain v. Spinney, 117 F.3d 1, 10 (1st Cir. 1997)).
While I recognize that I need not credit "bald assertions" in considering this motion, such description of the plaintiff's claims by the defendant is not apt. In situations like this, plaintiffs may have no other sources of evidence than their own account of what occurred.
The Kelley court added:
We have previously noted that the Supreme Court has not clearly indicated whether the judge may act as fact-finder when there is a factual dispute underlying the qualified immunity defense or whether this function must be fulfilled by a jury. See St. Hilaire v. City of Laconia, 71 F.3d 20, 24 n. 1 (1st Cir. 1995). In any event, when facts are in dispute, "'we doubt the Supreme Court intended this dispute to be resolved from the bench by fiat.'" Id. (quoting Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir. 1991).Kelley v. LaForce, 288 F.3d 1, 7 n. 2 (1st Cir. 2002).
Although qualified immunity is designed to create a shield of protection permitting officers to make necessary decisions in often dangerous situations, the shield has limits. To extend the protection of qualified immunity to this case would be to impose a nearly insurmountable burden on the plaintiff. If events actually unfolded as the plaintiff contends but immunity were granted at the summary judgment stage — thereby precluding a fact-finder from resolving the key factual disputes — there would rarely be recourse for a plaintiff when it is his testimony against the testimony of the police. To apply immunity here would subvert the summary judgment paradigm, flipping the inferences drawn and the allocation of burdens. That is not the purpose served by the doctrine. In the end, a jury may find Stoddard's version of events not credible. At this stage, however, it is sufficient to survive summary judgment.
In sum, conceptualizing a jury drawing inferences in favor of the plaintiff, I cannot find that an objectively reasonable officer would deem it permissible to punch, hold down, and abuse a bystander to an arrest who had neither moved nor spoken.
III. CONCLUSION
For the reasons set forth more fully above, the defendants' motion for summary judgment as to the § 1983 claim of illegal entry and the state common law claim of trespass is hereby GRANTED. The defendants' motion for summary judgment as to the § 1983 claim of excessive force and the common law claim of assault and battery is hereby DENIED.
The plaintiff no longer pursues his claim for intentional infliction of emotional distress nor any claims against the defendant-Town of Rockland. Consequently, the defendants' motion for summary judgment as to those claims is hereby GRANTED.