Hunt v. Massi

United States Court of Appeals
For the First Circuit

No. 14-1379

BRIAN HUNT AND KIMBERLY HUNT,

Plaintiffs, Appellees,

v.

DAVID MASSI AND JAMES PORTER,

Defendants, Appellants,

and

TOWN OF FALMOUTH,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Kayatta, Circuit Judges.

Thomas R. Donohue, with whom Leonard H. Kesten, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for
appellants.
Robert S. Sinsheimer, with whom Lauren Thomas and Sinsheimer
& Thomas were on brief, for appellee.

December 10, 2014
 LYNCH, Chief Judge. This civil rights case arises out of

the refusal of officers serving an arrest warrant to accede to the

request of an arrestee, Brian Hunt, that he be handcuffed with his

hands in front of him, and the ensuing events.

Hunt and his wife brought this case, asserting violations

of his federal constitutional rights under 42 U.S.C. § 1983, as

well as pendent state law claims. The district court denied the

police officers' claim of qualified immunity on summary judgment

based, in part, on the court's erroneous conception of the clearly

established law. Hunt v. Massi, 5 F. Supp. 3d 160, 165-67 (D.

Mass. 2014). The defendants sought interlocutory appellate review.

We have interlocutory appellate jurisdiction over

portions of this appeal. We hold that Hunt had no clearly

established right to be cuffed with his hands in front of him and

that the officers reasonably understood their actions in

effectuating the arrest to be constitutional. We reverse the

district court's denial of summary judgment for the plaintiffs'

claim of excessive force under § 1983. Exercising pendent

jurisdiction, we also reach and reverse the district court's denial

of summary judgment on the plaintiffs' state law claims of battery

and violation of the Massachusetts Civil Rights Act ("MCRA"). We

lack appellate jurisdiction over the plaintiffs' malicious

prosecution claims, and remand those claims, both state and

federal.

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 I. Factual Background

On June 2, 2011, the New Bedford District Court issued an

arrest warrant for Hunt based on information that he had an unpaid

fine for a traffic violation. Hunt, 5 F. Supp. 3d at 162. It was

later discovered that Hunt had paid the fine, but that the Town of

New Bedford had mistakenly failed to record the payment. Id.

Four police officers, including defendant officers David

Massi and James Porter, arrived at the plaintiffs'1 home to serve

the warrant at approximately 6:25 a.m., the morning of June 6,

2011. See id. at 163. The officers were aware that Hunt had been

arrested approximately two months earlier for his involvement "in

a major cocaine and heroin distribution ring in Cape Cod." See id.

at 162 n.1. Officers Massi and Porter knocked on the front door,

while the two other officers watched the rear of the house.

Hunt's wife, who answered the front door, led Officers

Porter and Massi to the bedroom where Hunt was sitting on the bed.

When informed that he was under arrest, Hunt requested that he be

handcuffed with his hands in front of him. Id. at 163. Hunt

explained that he had undergone surgery on his stomach the week

before, and claimed that he could not be handcuffed with his hands

behind him. Id. Officer Massi asked Hunt to lift his shirt, and

then looked at his stomach. We take as true Hunt's testimony that

1
We refer to Mr. Hunt as "Hunt," and Mr. and Mrs. Hunt as
"plaintiffs."

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the officers would have seen a "big, long, red mark." The officers

said they saw nothing which dissuaded them from the usual practice

of handcuffing behind the back. They believed that "no injury

could result" from doing so. Id. In response to the plaintiffs'

continued requests that Hunt be handcuffed with his hands in front

of him, Officer Massi stated: "We can't do it that way. That's not

possible."

The district court inferred there was no resistance to

arrest, because, "[a]ccording to Mr. Hunt's testimony, he did not

try to defend or protect himself because he was too weak due to the

surgery."2 Id. But, Hunt's opposition to summary judgment is

clear that he resisted when his request was denied and he was told

to put his arms behind him. In this appeal too, the plaintiffs

specify that Hunt did not resist "until he was told his arms needed

to be placed behind him."

2
On an interlocutory appeal of a district court's denial of
qualified immunity, we generally "accept as given the facts that
the district court ruled could be found by a reasonable jury
viewing the evidence in the light most favorable to the plaintiff."
Snyder v. Gaudet, 756 F.3d 30, 32 (1st Cir. 2014). However, "'we
need not accept [the plaintiff's] version of events if it is
blatantly contradicted by the evidence.'" Penn v. Escorsio, 764
F.3d 102, 105 n.2 (1st Cir. 2014) (quoting Medina-Rivera v. MVM,
Inc., 713 F.3d 132, 136 (1st Cir. 2013)) (internal quotation marks
omitted); see also Scott v. Harris, 550 U.S. 372, 378-81 (2007)
(refusing to adopt the plaintiff's version of facts when it was
"clearly contradict[ed]" by the videotape of the events). In this
case, Hunt's testimony that he was too weak to resist is "blatantly
contradicted" by his own concessions and the record evidence.

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 Events then moved very quickly. Hunt's wife testified

that Hunt got off the bed with his hands in front of him.

According to the plaintiffs, the officers pushed Hunt onto the bed

and then onto the floor. Hunt testified at his subsequent state

criminal trial on charges for resisting arrest and his purported

assault and battery on an officer during the June 6 events. He

admitted that his demeanor changed from being calm when he made his

request to being angry after he was brought to the floor. His wife

agreed that he was "extremely upset." A video made by the

plaintiffs' son of a portion of the events showed the officers and

Hunt struggling on the floor for fifteen to twenty seconds while

the officers tried to handcuff Hunt. The officers kneed Hunt in

the leg and the back during this scuffle. At oral argument, the

plaintiffs' counsel conceded that the officers kneed Hunt in the

course of securing the handcuffs. The defendants estimate, and the

plaintiffs do not contest, that it took them "maybe fifteen seconds

or so" to successfully handcuff Hunt after he refused to be

handcuffed with his hands behind his back. After being handcuffed,

Hunt was taken to the police station.

Due to Hunt's complaints about pain, he was driven by

ambulance from the police station to the Falmouth Hospital, where

he remained for approximately ten hours. Id. The emergency room

report states that nothing could have been damaged during the

altercation because Hunt's recent surgery was a laparoscopic lysis

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of adhesions. Id. He was released from the hospital on his own

recognizance. Id.

The police officers subsequently charged Hunt with

resisting arrest and with assault and battery on a police officer.

Id. Both a clerk magistrate and the District Attorney's office

found probable cause for the charges to go forward. On September

25, 2012, after a two-day trial, Hunt was found not guilty. See

id.

Hunt alleges that he suffered from knee and back pain

after the arrest, embarrassment after the local newspaper coverage

of the arrest, and emotional distress whenever he now sees Officers

Massi or Porter. Id. It is undisputed that Hunt suffered no

physical injury as a result of the handcuffing other than whatever

temporary pain he experienced incident to the arrest.

II. Procedural Background

The plaintiffs brought this lawsuit against Officer

Massi, Officer Porter, and the Town of Falmouth on March 21, 2013

for violations of 42 U.S.C. § 1983, with additional state law

claims. We address only those claims that survived summary

judgment despite the defense of qualified immunity.3 Under § 1983,

3
On January 22, 2014, the district court granted the
defendants' motion for summary judgment for the following claims:
(1) a Monell claim against the Town of Falmouth under § 1983; (2)
negligence/vicarious liability against the Town of Falmouth; (3)
conspiracy against the individual officers and the Town of Falmouth
under § 1983; (4) violation of the MCRA against the Town of
Falmouth only; (5) false imprisonment against the individual

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the plaintiffs brought claims against the individual officers for

excessive force and malicious prosecution. In addition, the

plaintiffs brought state law claims for battery, malicious

prosecution, and violation of the MCRA.

Focusing on the claim that the officers had used

excessive force, the district court denied the officers' motion for

summary judgment after concluding that they were not entitled to

qualified immunity. Hunt, 5 F. Supp. 3d at 167. Finding that the

"MCRA claims are subject to the same standard of immunity for

police officers that is used for claims asserted under section

1983," the district court denied summary judgment on the

plaintiffs' MCRA claim for the same reasons as the plaintiffs'

excessive force claim. Id. at 169. Having determined that the

officers "potentially used excessive force when arresting [Hunt]"

such that qualified immunity did not apply, the district court

reasoned that it must deny summary judgment on the plaintiffs'

claim for battery as well. Id. at 167. Finally, the district

court noted that "there are disputed issues of material fact as to

whether the police officers had probable cause to initiate

prosecution against Mr. Hunt for resisting arrest, thus precluding

summary judgment" for the plaintiffs' malicious prosecution claims

officers and the Town of Falmouth; and (6) intentional infliction
of emotional distress against the individual officers.

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as to the charges brought by the police officers after the

altercation. Id. at 168.

This appeal followed. The defendants argue that the

district court erred in denying their motion for summary judgment

on Hunt's excessive force claim since their use of force was

reasonable, and they did not violate any clearly established

constitutional right. They say they are entitled to qualified

immunity. The defendants argue that if we reverse the district

court's decision on the plaintiffs' claim for excessive force, then

the dismissal of the plaintiffs' claims for battery, violation of

the MCRA, and malicious prosecution must follow suit.

We conclude that the district court erred in denying

qualified immunity to the defendants for the plaintiffs' claim of

excessive force. When defined at the appropriate level of

specificity, the necessary question is whether Hunt had a clearly

established right to have his hands cuffed in front of him due to

an alleged injury despite the officers' judgment call to the

contrary. There is no such clearly established right. Instead,

First Circuit precedent makes clear that the officers' decision to

handcuff an arrestee according to standard police practice is a

judgment call that must be analyzed based on the totality of the

circumstances. Based on the facts here, no reasonable officer

would have believed that his or her decision to handcuff Hunt

according to standard police practice violated the constitutional

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prohibition on excessive force. We agree with the defendants that

reversal of the plaintiffs' state law claims for battery and

violation of the MCRA necessarily follows this conclusion, but we

find we lack jurisdiction over the denial of immunity on the

malicious prosecution claim.

III. Federal Claims

A. Appellate Jurisdiction

"Ordinarily, we hear appeals only from final orders and

decisions." Cady v. Walsh, 753 F.3d 348, 358 (1st Cir. 2014)

(citing 28 U.S.C. § 1291). "An order denying a motion for summary

judgment is generally not a final decision within the meaning of

§ 1291 and is thus generally not immediately appealable." Plumhoff

v. Rickard, 134 S. Ct. 2012, 2018 (2014). Under the collateral

order doctrine, however, a district court's pre-trial denial of

qualified immunity is immediately appealable to the extent that it

turns on legal, rather than factual, grounds. See id. at 2018-19;

Penn v. Escorsio, 764 F.3d 102, 109-10 (1st Cir. 2014). We review

the district court's legal conclusions, based on the undisputed and

uncontradicted facts, de novo. See Snyder v. Gaudet, 756 F.3d 30,

33 (1st Cir. 2014).

B. Excessive Force

As the Supreme Court recently reiterated, "[a] government

official sued under § 1983 is entitled to qualified immunity unless

the official violated a statutory or constitutional right that was

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clearly established at the time of the challenged conduct."

Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (per curiam). "This

doctrine 'gives government officials breathing room to make

reasonable but mistaken judgments,' and 'protects all but the

plainly incompetent or those who knowingly violate the law.'" Id.

(quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011))

(internal quotation marks omitted).

A familiar two-step inquiry determines whether the

defendants are entitled to qualified immunity:

First, we inquire whether the facts, taken
most favorably to the party opposing summary
judgment, make out a constitutional violation.
Second, we inquire whether the violated right
was clearly established at the time that the
offending conduct occurred. The second,
"clearly established," step itself encompasses
two questions: whether the contours of the
right, in general, were sufficiently clear,
and whether, under the specific facts of the
case, a reasonable defendant would have
understood that he was violating the right.

Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014) (internal citations

omitted); see also Rocket Learning, Inc. v. Rivera-Sánchez, 715

F.3d 1, 9 (1st Cir. 2013). It is in our discretion not to engage

in the first inquiry, but to go directly to the second, as we do

here. See Pearson v. Callahan, 555 U.S. 223, 236 (2009); Lopera v.

Town of Coventry, 640 F.3d 388, 396 (1st Cir. 2011).

We start by defining the right at issue at "an

appropriate level of generality." Brady v. Dill, 187 F.3d 104, 115

(1st Cir. 1999). Citing Graham v. Connor, 490 U.S. 386 (1989), the

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plaintiffs argue that "[t]here is little doubt that police must

refrain from use of excessive force." This "casts too broad a

net." See Suboh v. Dist. Attorney's Office of the Suffolk Dist.,

298 F.3d 81, 93 (1st Cir. 2002). The Supreme Court agreed that

"there is no doubt that Graham . . . clearly establishes the

general proposition that use of force is contrary to the Fourth

Amendment if it is excessive under objective standards of

reasonableness." Saucier v. Katz, 533 U.S. 194, 201-02 (2001),

abrogated on other grounds by Pearson v. Callahan, 555 U.S. 223

(2009). "Yet," the Supreme Court explicitly held, "that is not

enough" to defeat qualified immunity. Id. at 202.

The clearly established inquiry must be undertaken "'in

a more particularized, and hence more relevant, sense.'" Id.

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). We must

analyze whether the law is clearly established "'in light of the

specific context of the case, not as a broad general proposition.'"

Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier, 533

U.S. at 201); see also al-Kidd, 131 S. Ct. at 2084 ("We have

repeatedly told courts . . . not to define clearly established law

at a high level of generality."). In this case, the relevant

question is not whether the Fourth Amendment generally prohibited

excessive force. The relevant question is whether, in 2011, Hunt

had a clearly established right to be handcuffed with his hands in

front of him when it would not be obvious to a reasonable officer

-11-
that Hunt's abdominal scar would prevent him from putting his hands

behind his back. The ensuing events, in which Hunt does not claim

to have cooperated, occurred in the course of the handcuffing with

his hands behind his back.4

To be clearly established, the contours of this right

must have been "sufficiently definite that any reasonable official

in the defendant's shoes would have understood that he was

violating it." Plumhoff, 134 S. Ct. at 2023. "In other words,

'existing precedent must have placed the . . . constitutional

question beyond debate.'" Carroll, 135 S. Ct. at 350 (quoting al-

Kidd, 131 S. Ct. at 2083).

The district court undertook this analysis at the

appropriate level of specificity, but erred in its conclusion that

Hunt had a clearly established right to be handcuffed with his

hands in front of him due to an alleged injury, "even if the injury

is not visible." See Hunt, 5 F. Supp. 3d at 166. The district

court relied on four cases to reach this conclusion. Id. Two are

easily distinguishable from the present case since they involved

much more serious, and visible, injuries that would have been

4
To the extent that the plaintiffs attempt to separate the
officers' decision to handcuff Hunt from their use of knee strikes
in order to do so, the plaintiffs have provided no case law clearly
establishing that the latter was unconstitutional. See, e.g.,
Goodrich v. Everett, 193 F. App'x 551, 556 (6th Cir. 2006) (finding
no excessive force when "the kneeing and kicking occurred not when
[the arrestee] was neutralized, but while the officers were
handcuffing him").

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exacerbated by the standard police procedure for handcuffing.5 The

other two district court opinions, which both acknowledge a debate

on the issue, are simply insufficient to show that the law was

clearly established for immunity purposes.

The first, Caron v. Hester, No. Civ. 00-394-M, 2001 WL

1568761 (D.N.H. Nov. 13, 2001), actually supports a grant of

immunity for the defendants in this case. There, the district

court found it "unlikely" that a constitutional violation occurred

when an officer handcuffed an allegedly injured arrestee with his

hands behind his back, but found a material factual dispute on the

issue. Id. at *6, *11. Nevertheless, the district court held that

the officer was entitled to qualified immunity since no precedent

clearly established the plaintiff's right "not to be handcuffed

behind his back after he allegedly informed [the officer] of his

shoulder injury." Id. at *8, *10. Although the First Circuit had

not yet addressed the issue, "several other courts . . . [had]

concluded, at a minimum, that a suspect who displays no visible

signs of being unusually vulnerable or fragile, is not subjected to

excessive force when a police officer uses customary, reasonable

5
In Howard v. Dickerson, 34 F.3d 978 (10th Cir. 1994), the
plaintiff told the officers that she had recently undergone neck
surgery, as evidenced by the neck brace she was wearing. Id. at
979. In Eason v. Anoka-Hennepin E. Metro Narcotics & Violent
Crimes Task Force, No. Civ. 00-311 PAM/SRN, 2002 WL 1303023 (D.
Minn. June 6, 2002), the plaintiff, who offered no resistance, had
his sternum "wired together" after a recent heart surgery and the
officers had difficulty moving his arms behind his back. Id. at
*6.

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force in applying handcuffs or otherwise effecting an arrest." Id.

at *9.6

In the second, Aceto v. Kachajian, 240 F. Supp. 2d 121

(D. Mass. 2003), the district court held that police officers may

have used constitutionally excessive force, and were not entitled

to qualified immunity, when they handcuffed "a non-threatening,

non-flight-risk, cooperative arrestee for a minor crime" with her

hands behind her back despite her alleged shoulder injury. Id. at

124-27. The district court in Aceto stressed that the plaintiff

was arrested for "failing to pay a thirteen-year-old speeding

citation, a minor offense that did not raise concerns of violence

or other exigencies;" that there was "no evidence that Aceto posed

a flight risk, or a safety risk to the officers or anyone else;"

that Aceto was "generally cooperative;" and that Aceto put the

6
The court in Caron explained as a policy matter that,

courts do not want to vest suspects with
casual veto power over efforts to handcuff
them simply by claiming to have a bad wrist,
arm, shoulder, back, etc. To require police
officers to universally credit such
unsupported claims, or embark upon an
investigation into those claims, would
needlessly interfere with their duties and,
perhaps, expose them and members of the public
to unnecessary risk in rapidly evolving
situations.

2001 WL 1568761, at *10. Likewise, the Eleventh Circuit has noted
that "a police officer need not credit everything a suspect tells
him. This idea is especially true when the officer is in the
process of handcuffing a suspect." Rodriguez v. Farrell, 294 F.3d
1276, 1278 (11th Cir. 2002) (internal citation omitted).

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officers on notice of her shoulder injury even if it was not

otherwise visible. Id. at 125. The district court in Aceto was of

the view that the published case law clearly established the

plaintiff's "right to be handcuffed with her arms in front of her

even if the injury is not visible," but acknowledged that "various

'unpublished' appellate opinions . . . support[ed] the positions of

both parties." Id. at 126-27.

As noted by both of these cases, other circuits have

reached different holdings on the constitutionality of handcuffing

an allegedly injured arrestee behind his or her back. In Walton v.

City of Southfield, 995 F.2d 1331 (6th Cir. 1993), superseded by

statute on other grounds as recognized in Livermore ex rel Rohm v.

Lubelan, 476 F.3d 397 (6th Cir. 2007), for example, an arrestee for

driving with a suspended license told the officer that she had a

sore shoulder and asked not to be handcuffed with her hands behind

her. Id. at 1333-34. The Sixth Circuit held that "[a]n excessive

use of force claim could be premised on [the officer's] handcuffing

[the plaintiff] if he knew that she had an injured arm and if he

believed that she posed no threat to him." Id. at 1342; see also

Crooks v. Hamilton Cnty., Ohio, 458 F. App'x 548, 550 (6th Cir.

2012) (holding same when the defendant handcuffed a 65-year-old

arthritic woman for a non-violent crime with her hands behind her

back despite "persistent claims of pain," which caused the woman to

suffer a broken rib).

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 The opposite result was reached in Wells v. Okla. ex rel.

Dep't of Pub. Safety, 97 F.3d 1465, 1996 WL 557722 (10th Cir. Sept.

30, 1996) (unpublished table decision), when a "cooperative and

non-threatening" arrestee for a misdemeanor told the police that

"[his arm] was full of plates and screws," and he could not put it

behind his back. Id. at *1, *3. The Tenth Circuit found no

constitutional violation for "putting handcuffs on a potentially

fragile arrestee without use of abnormal force." Id. at *3; see

also Morreale v. City of Cripple Creek, 113 F.3d 1246, 1997 WL

290976, at *5-6 (10th Cir. May 27, 1997) (unpublished table

decision) (finding no constitutional violation when officers

handcuffed a non-threatening and cooperative arrestee with her

hands behind her back despite her stated shoulder injury).

In this circuit, the controlling case is Calvi v. Knox

County, 470 F.3d 422 (1st Cir. 2006), in which we found no

constitutional violation when officers handcuffed an allegedly

injured arrestee according to standard police practice. Id. at

428. There, police officers responded to a report of a woman,

Calvi, brandishing a knife in a residence. Id. at 425. Calvi's

landlord advised the police officers that Calvi had recently

undergone elbow surgery and asked them to be gentle. Id. The

police officer "did not observe any debilitating condition," id.,

and handcuffed Calvi according to the "[s]tandard police practice"

with her hands behind her back, id. at 428. We held that "[the

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officer's] decision not to deviate from this practice was a

judgment call, pure and simple." Id. "The totality of the

circumstances afford[ed] no legally sufficient basis for a finding

that [the officer's] handcuffing of Calvi represented a

constitutionally proscribed use of excessive force." Id. (citing

Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001)).

The plaintiffs point to no post-Calvi case that would

have put the officers on notice that their decision to handcuff

Hunt with his hands behind his back was not a "judgment call," but

clearly violated the Constitution. Nor could they. Like the

Second Circuit, "[w]e are aware of no case . . . where a court held

that ignoring an uncooperative suspect's claim of invisible injury

(such that handcuffing could be harmful) made during the course of

handcuffing constituted excessive force." Beckles v. City of N.Y.,

492 F. App'x 181, 183 (2d Cir. 2012).

On the facts of this case, a reasonable officer would not

have understood his or her decision to handcuff Hunt with his arms

behind his back to constitute excessive force. The officers knew

of Hunt's serious and recent criminal history, and they encountered

some admitted resistance. They had also looked at the site of his

recent surgery and determined that no new injury or exacerbation

would result from the standard technique for handcuffing. Nor was

this determination unreasonable since Hunt's scar was on his

stomach. Most of the cases finding excessive force incident to

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handcuffing involve injuries to the shoulder or arm. See, e.g.,

Aceto, 240 F. Supp. 2d at 124-25. After Calvi, a reasonable

officer would not have understood this judgment call to be a

violation of the Constitution. For these reasons, the defendants

are entitled to qualified immunity on the plaintiffs' excessive

force claim.

C. Malicious Prosecution

In contrast with the excessive force claim, we do not

have appellate jurisdiction over the federal malicious prosecution

claim. The plaintiffs brought the federal malicious prosecution

claim against the defendants under § 1983 based on Hunt's

subsequent prosecution on charges that he had both resisted arrest

and that he had committed assault and battery on a police officer

during his arrest on June 6.7 The defendants argued that probable

cause had existed to pursue the state charges against Hunt, and so

they were entitled to qualified immunity.

The district court's denial of immunity rested on its

finding that there were "disputed issues of material fact as to

whether the police officers had probable cause to initiate

7
The district court correctly differentiated between the
plaintiffs' malicious prosecution claims based on Hunt's June 6,
2011, arrest, and his subsequent prosecution on charges that Hunt
had both assaulted an officer and resisted arrest on June 6. Hunt,
5 F. Supp. 3d at 167. The district court granted the defendants'
motion for summary judgment on the plaintiffs' malicious
prosecution claims to the extent that they relied on the former,
and the plaintiffs do not appeal this decision. Id. at 168.

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prosecution against Mr. Hunt for resisting arrest." Hunt, 5 F.

Supp. 3d at 168. The court said nothing about the assault and

battery charge and did no further analysis. See id. We take it

that the court implicitly found that there was a dispute over the

assault and battery charge. After all, at deposition, Hunt denied

striking the officers, and he has not made different statements in

his pleadings or on appeal.

The defendants' argument ignores the fact that the state

charges they brought accused Hunt of committing assault and battery

on an officer, and in so doing, went well beyond charging him

merely with resisting arrest. They do not explain how there is

appellate jurisdiction over the clear dispute of fact over Hunt's

claim that he was maliciously prosecuted for assault and battery,

and that there was no probable cause for those charges. This

dispute exists regardless of whether there was probable cause for

the resisting arrest portion of the state charges.

Whether or not we might have had appellate jurisdiction

had the prosecution been only for resisting arrest given our

earlier conclusions, we choose not to divide the malicious

prosecution claim. We have no pure issue of law; rather, there is

a material dispute of fact. The defendants wisely have not argued

that a reasonable officer would think that he could charge an

arrestee with assault and battery on the officer when the arrestee

did not strike the officer in the course of the arrestees' refusal

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to cooperate. We lack jurisdiction on interlocutory appeal to

review purely factual disputes of evidentiary sufficiency. See

Penn, 764 F.3d at 110.

IV. Remaining State Law Claims

"Generally, interlocutory review of a decision denying

qualified immunity under § 1983 'does not in and of itself confer

jurisdiction over other contested issues in the case.'" Suboh, 298

F.3d at 97 (quoting Roque-Rodriguez v. Lema Moya, 926 F.2d 103, 105

& n.2 (1st Cir. 1991)). We may nevertheless exercise pendent

appellate jurisdiction over the plaintiffs' remaining claims if the

party seeking jurisdiction shows "that the issues are 'inextricably

intertwined with [the district] court's decision to deny the

individual defendants' qualified immunity motions, or that review

of the [decision for which pendent jurisdiction is sought] was

necessary to ensure meaningful review of the [qualified immunity

decision].'" Id. (quoting Swint v. Chambers Cnty. Comm'n, 514 U.S.

35, 51 (1995)) (alterations in original). This test is satisfied

here for two of the plaintiffs' state law claims.

The plaintiffs' MCRA claim is subject to the same

standard of qualified immunity for police officers that applies for

§ 1983 claims. Raiche v. Pietroski, 623 F.3d 30, 40 (1st Cir.

2010) (citing Duarte v. Healy, 537 N.E.2d 1230, 1232 (Mass. 1989)).

"Because the police officers [were] not protected by qualified

immunity with respect to the section 1983 excessive force claim,"

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the district court held that they were also not protected by

qualified immunity with respect to the MCRA excessive force claim.

Hunt, 5 F. Supp. 3d at 169. The district court's own logic makes

the claims "inextricably intertwined," and we reverse the denial of

summary judgment on the MCRA claim.

The determination of the reasonableness of the force used

under § 1983 also "controls [the] determination of the

reasonableness of the force used under the common law assault and

battery claims." Raiche, 623 F.3d at 40. The court denied the

officers' motion for summary judgment on the plaintiffs' battery

claim specifically because it had denied the officers' motion for

qualified immunity under § 1983. Hunt, 5 F. Supp. 3d at 167. In

light of our conclusion that a reasonable officer would have

understood that the defendants were justified in handcuffing Hunt

with his hands behind his back, we conclude that the defendants

cannot be liable for the "intentional and unjustified use of force

upon the person of another," as required for the plaintiffs' claim

of intentional battery, Commonwealth v. Porro, 939 N.E.2d 1157,

1162 (Mass. 2010) (citation omitted) (internal quotation marks

omitted), and reverse the denial of summary judgment on this claim

as well.

Finally, having remanded the federal claim of malicious

prosecution, we remand the state law claim of malicious

prosecution.

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 V. Conclusion

We reverse and remand for entry of summary judgment for

the defendants on the plaintiffs' claims of excessive force,

battery, and violation of the MCRA. We lack jurisdiction over the

plaintiffs' claims of malicious prosecution, and remand these

claims for proceedings consistent with this decision.

So ordered.

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