United States Court of Appeals
For the First Circuit
Nos. 00-1077
00-1239
00-1240
RICHARD E. WILSON,
Plaintiff, Appellant,
v.
TOWN OF MENDON, JAMES CROSBY, and DENNIS GRADY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Charles B. Swartwood, III, U.S. Magistrate Judge]
Before
Torruella and Lipez, Circuit Judges,
and Stearns*, District Judge.
Stephen B. Hrones, with whom Aderonke O. Lipede and Hrones &
Garrity were on brief for appellant.
Leonard H. Kesten, with whom Deidre Brennan Regan and Brody,
Hardoon, Perkins & Kesten were on brief for the Town of Mendon and
Dennis Grady, appellees; Stephen C. Pfaff, with whom Merrick,
Louison & Costello were on brief for James Crosby, appellee.
June 17, 2002
_______________________
*Of the District of Massachusetts, sitting by designation.
STEARNS, District Judge. This case, which unfolded
against a backdrop of small town intrigue that would have excited
the imagination of Grace Metalious,1 raises interesting questions
about bifurcation, a common practice in police civil rights cases,
and the extent to which the parties to a case may be bound on
appeal by their strategic choices at trial.
After a drunk driving arrest and a station house
altercation, plaintiff-appellant Richard Wilson sued the Towns of
Mendon and Hopedale, their respective chiefs of police, and five
Mendon and Hopedale police officers. Prior to trial, Magistrate
Judge Swartwood, presiding with the parties’ consent, bifurcated
Wilson’s claims against the individual defendants from his claims
against the Towns. As the trial date approached, the roster of
defendants shrank. Ultimately, a jury entered verdicts in favor of
defendant-appellee James Crosby, a Mendon police officer, and
Stephen Sweet, a Hopedale police officer, on claims that they had
used excessive force in subduing Wilson.2 The jury also found for
defendant-appellee Dennis Grady, the Mendon Chief of Police, on
claims of negligent training and supervision. Following the
verdict, Magistrate Judge Swartwood entered judgment for all
defendants including the Town of Mendon.
1
Peyton Place (Doubleday, 1956).
2
Wilson appeals from the final judgment entered in favor of
the Town of Mendon, Crosby and Chief Grady. He has not appealed
the verdict favorable to Sweet.
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Wilson raises four issues on appeal. He claims
reversible error in: (1) the Magistrate Judge’s refusal to submit
a special verdict question to the jury regarding a non-defendant
officer’s alleged use of excessive force; (2) the court’s refusal
to permit expert testimony on the same subject; (3) the court’s
refusal to instruct the jury on theories of joint venture and
failure to intervene; and (4) the court’s refusal to strike
disparaging comments made during closing argument about one of
Wilson’s lawyers. While we are of the view that the trial court
was mistaken about the law in one respect, we discern no prejudice,
and we therefore affirm the verdict.
I. BACKGROUND
A. Relevant Facts
We recite the facts in the light most favorable to the
verdict. Ferragamo v. Chubb Life Ins. Co., 94 F.3d 26, 27 n.1 (1st
Cir. 1996). On May 18, 1996, officer James Crosby, while on patrol
on North Street in Mendon, Massachusetts, observed a green
convertible stray across the double yellow median line and then
drift back to the shoulder of the road, narrowly missing a parked
vehicle. Crosby activated his auxiliary lights and signaled the
car to stop. On approaching the driver’s side of the car, Crosby
detected a mild odor of alcohol. Crosby observed a passenger,
Nancy Wilson, lying face down with her head wedged between the
convertible’s front bucket seats. When Crosby asked the driver,
Richard Wilson, whether his female passenger was all right, he
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replied, "she’s f’in cocked." Crosby summoned officer Kristen
Carchedi to the scene to attend to Nancy Wilson. Officer Sherri
Tagliaferri also responded to the call, and assisted Carchedi and
Crosby in taking Nancy Wilson into protective custody.3
At Crosby’s request, Richard Wilson produced a valid
driver’s license but was unable to locate the vehicle’s
registration papers. Suspecting that Wilson might be intoxicated,
Crosby directed him to perform several field sobriety tests. The
results were sufficiently suggestive to cause Crosby to place
Wilson under arrest for operating under the influence.4 Upon being
placed in the rear compartment of Crosby’s cruiser, Wilson began
screaming epithets and slamming his body against the back of the
seat.
At the station, while Crosby was completing booking
formalities, Wilson again became belligerent. Crosby escorted him
to a cell. Once inside, Wilson began to kick at the cell door.
Crosby ordered Wilson to stop. When Wilson persisted in kicking at
the door, Crosby ordered him to step out of the cell.5 Wilson
refused to comply. Officer Tagliaferri then attempted to flush
3
Nancy Wilson was taken by ambulance to the station after she
began to vomit. She was released to her father’s custody before
the altercation at the station began.
4
Wilson had difficulty performing a heel-to-toe test, and
spoke in a thick-tongued and studied manner while reciting the
alphabet.
5
Crosby’s intent was to manacle Wilson’s legs.
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Wilson from the cell by spraying him with pepper gas.6 Unable to
find her target, Tagliaferri gave the gas cannister to Crosby, who
after several attempts, succeeded in squirting the gas in Wilson’s
face. Wilson responded with a tirade of threats and obscenities.
Alarmed by the ferocity of Wilson’s outburst, Crosby asked that
reinforcements be summoned from the neighboring Town of Hopedale.7
Wilson in the meantime succeeded in kicking open the door
of the cell. He then rushed into the vestibule of the cellblock
with Crosby and Tagliaferri in hot pursuit. Crosby leapt on
Wilson’s back while Tagliaferri grabbed Wilson’s feet. Wilson and
the officers tumbled to the floor where the scrimmage continued.
Carchedi, who was not present when the struggle began, suddenly
appeared, and from a crouching position let loose a spray of pepper
gas, hitting Wilson and Crosby in the face.8 Crosby and
Tagliaferri eventually succeeded in manacling Wilson's legs.
At some point during the struggle, Wilson suffered a cut
to his chin, prompting Crosby to request that an ambulance be
6
Pepper gas, or oleoresin capsicum, is an aerosol spray made
from an oily extract of the capsicum pepper plant. When inhaled,
it induces coughing, a gagging sensation, and an inability to
vocalize. It is a less powerful version of the irritant gases
marketed under the trade name Mace, and its use is authorized under
standard police protocols in less threatening instances than those
in which the use of Mace is sanctioned.
7
Crosby and the two female officers, Carchedi and Tagliaferri,
were the total Mendon complement then on duty.
8
For conceptual clarity, we will refer to a first spraying
incident, the one involving Crosby and Tagliaferri, and a second
spraying incident involving Carchedi.
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called.9 While waiting for the ambulance, Crosby handcuffed Wilson
to a restraining rail, after which Wilson spat at him. Once the
ambulance arrived, Crosby unshackled Wilson from the rail, and
placed him prone on the floor. Officer Sweet, who was assisting
Crosby, restrained Wilson by placing his foot on Wilson’s back.
Wilson was taken, still manacled, by stretcher to the ambulance.
Crosby accompanied Wilson to the hospital. During the ambulance
9
Wilson’s testimony at trial portrayed Crosby in a less
flattering light. According to Wilson, he began voluntarily
walking towards the cell after Crosby refused him permission to
make a telephone call to his uncle, a police detective in a
neighboring town. Enraged, Crosby shoved Wilson against a wall,
knocked him to the ground, and dragged him into the cell with his
hands cuffed behind his back. Once in the cell, Crosby kneed
Wilson in the ribs and punched him several times. Wilson admitted
to shouting obscenities and kicking at the cell door in response to
Crosby’s taunts, but claimed to have regained his composure when
Crosby, without warning, opened the cell door and sprayed several
jets of pepper gas, striking Wilson in the face on the third
attempt. Crosby threw Wilson against the wall before leaving the
cell. Wilson succeeded in kicking the cell door open to escape
from the fumes. He then ran into the vestibule searching for Nancy
Wilson. Crosby jumped him from behind, while Tagliaferri tackled
his legs. Wilson testified that after he was wrestled to the
floor, Carchedi ordered Crosby to lift his [Wilson’s] head so that
she could spray him in "the f’in face." Crosby wrenched Wilson’s
head back while Carchedi sprayed both men in the face. Wilson
stated that he could not recall how he had sustained the laceration
to his chin, but was certain that it had not happened during the
struggle in the vestibule. Wilson testified that after later
viewing a video surveillance tape of the incident with one of his
attorneys, he had come to the realization that his chin had been
cut when he was kicked in the head by officer Sweet after being
unshackled from the restraining bar. Significant aspects of
Wilson’s trial testimony were inconsistent with his deposition
testimony and the allegations made in the complaint. Appellees
claim that Wilson altered or enlarged his earlier testimony after
he realized that it was contradicted by the surveillance tape.
Although rejected by the jury, we recite the gist of Wilson’s trial
testimony for its relevance to the issues of the propriety of Chief
Grady’s counsel’s closing argument and the omitted instruction on
Crosby’s failure to protect Wilson from Carchedi.
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ride, Wilson screamed threats and obscenities and spat at Crosby.
Wilson was treated at the hospital for the cut to his chin.10
B. Procedural History
On April 29, 1997, Wilson served notice on the Mendon
Board of Selectmen of his negligence claims against the officers
and his intent to seek damages from the Town.11 Wilson gave similar
notice to the Hopedale Board of Selectmen on November 5, 1997. On
May 12, 1998, Wilson filed a complaint against the Towns of Mendon
and Hopedale and Mendon officers Crosby, Sergeant Philip Dunlavey,
and Chief Grady. The complaint also named as defendants Hopedale
officers Sweet, Todd Boldy and Mark Boldy, as well as Eugene
10
The hospital record noted no injury to Wilson other than the
chin laceration.
11
The Massachusetts Tort Claims Act, Mass. Gen. Laws ch. 258,
§ 4 (ch. 258), provides in pertinent part that:
A civil action shall not be instituted against a public
employer on a claim for damages under this chapter unless
the claimant shall have first presented his claim in
writing to the executive officer of such public employer
within two years after the date upon which the cause of
action arose.
Presentment is a statutory condition precedent to the bringing
of a lawsuit against a municipality under the Act. Vasys v. Metro.
Dist. Comm’n, 387 Mass. 51, 55 (1982). The Act is a limited waiver
of the immunity of the Commonwealth and its political subdivisions
from suit. The practical effect of ch. 258 is to substitute the
governmental employer for the employee as the defendant and to
release the employee from personal liability. The Act immunizes a
municipal employee from liability for acts of ordinary and gross
negligence, but not for acts of an intentional nature. Mass. Gen.
Laws ch. 258, § 10(c).
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Costanza, the Hopedale police chief.12 Carchedi and Tagliaferri
were not named as defendants.
The complaint, in twenty counts, accused the defendant
officers of federal and state civil rights violations. The chiefs
of police were alleged to have failed to properly train and
supervise their officers. Wilson also brought negligent training
claims against the Towns, as well as numerous common law claims
against the defendant officers, including claims for assault and
battery, conversion, malicious prosecution, false arrest, false
imprisonment, abuse of process, negligent and intentional
infliction of emotional distress, invasion of privacy, defamation,
negligence, and civil conspiracy.
On September 21, 1999, Magistrate Judge Swartwood
bifurcated the claims against the named officers and their
supervisors from the municipal liability claims. On December 6,
1999, trial commenced on the excessive force claims involving
Crosby and Sweet, and on the negligent supervision and training
claims involving Chief Grady.
During the trial, the court disallowed expert testimony
and denied a request for a special verdict question regarding
Carchedi’s alleged use of excessive force. The court also refused
to instruct the jury that Crosby could be found liable as a joint
12
Summary judgment was granted to the Boldys on October 27,
1999. Wilson states in his brief that he voluntarily dismissed his
claims against the Town of Hopedale prior to trial, although this
is not borne out by the trial transcript or the relevant docket
entries. In any event, Wilson does not contend that the verdict
for Sweet is not conclusive of his claims against Hopedale.
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venturer with Carchedi or for having failed to intervene to protect
Wilson from Carchedi. Wilson duly objected. On December 17, 1999,
the jury returned a verdict in favor of Crosby, Sweet, and Chief
Grady. On December 21, 1999, judgment was entered for the Town of
Mendon. This appeal followed.
II. DISCUSSION
A. Principles of Liability
A person may recover damages from a state or local
official who, while acting under color of state law, commits a
constitutional tort. 42 U.S.C. § 1983;13 see also Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389
(1971) (imposing similar liability on federal officers). The
excessive use of force by a police officer against an arrestee is
such a tort. See Graham v. O’Connor, 490 U.S. 386, 395-396 & n.10
(1989). An officer may be held liable not only for his personal
use of excessive force, but also for his failure to intervene in
appropriate circumstances to protect an arrestee from the excessive
use of force by his fellow officers. Gaudreault v. Municipality of
Salem, 923 F.2d 203, 207 n.3 (1st Cir. 1990). Liability will
attach to the municipal employer where its failure to properly
13
42 U.S.C. § 1983 provides that:
Every person who under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law. . . .
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train its officers "amounts to deliberate indifference to the
rights of persons with whom the police come into contact," and
where a specific deficiency in training is the "moving force"
behind a constitutional injury. City of Canton v. Harris, 489 U.S.
378, 388-389, 391 (1989). A supervisory officer may be held liable
for the behavior of his subordinate officers where his "action or
inaction [is] affirmative[ly] link[ed] . . . to that behavior in
the sense that it could be characterized as