United States Court of Appeals
For the First Circuit
Nos. 08-2221, 08-2222
BRIAN J. KENNEDY; MICHELLE KENNEDY, individually and as mother
and next friend of B.D.K.; M.K.; D.K.,
Plaintiffs, Appellees/Cross-Appellants,
v.
TOWN OF BILLERICA; DANIEL C. ROSA, individually and as Chief of
the Billerica Police Department; MARK TSOUKALAS; RICHARD NESTOR;
SCOTT PARKER,
Defendants, Appellants/Cross-Appellees,
THOMAS CONNERS; FRANK A. MACKENZIE; RICHARD RHONSTOCK; MARTIN E.
CONWAY; ANDREW DEVITO; RICHARD HOWE; STEVEN ELMORE; MICHAEL A.
CASEY; WILLIAM MACDONALD; ALAN MUNN,
Defendants, Appellees,
JOHN BARRETTO, individually and as former Chief of the Billerica
Police Department, et al.,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Leonard H. Kesten with whom Deidre Brennan Regan, Jeremy I.
Silverfine, and Brody, Hardoon, Perkins & Kesten, LLP were on brief
for the appellants/cross-appellees and appellees.
Andrew M. Fischer with whom Jason & Fischer, Frederick V.
Gilgun, Jr., and Nicholson, Sreter & Gilgun, P.C. were on brief for
the appellees/cross-appellants.
July 13, 2010
LYNCH, Chief Judge. We affirm in part and reverse in
part in this contentious civil rights case brought by a family of
plaintiffs, the Kennedys, against the Town of Billerica,
Massachusetts, and numerous individual police officers. Before us
are cross-appeals from jury verdicts and court rulings in the two
trials in this bifurcated case.
Specifically, we hold that error in instructing the jury
in the first trial on the state law crime of assault and battery on
a police officer requires that there be a new trial on the only
successful federal civil rights claim against a police officer in
that trial. The error undercut the basis for a defendant police
officer's defense to a federal claim of false arrest for that
crime. The federal civil rights award against the Town and the
award of attorney's fees under 42 U.S.C. § 1988 must, as well, be
vacated.
As to the state law verdicts in the first trial against
two individual police officers based on intentional infliction of
emotional distress (IIED), we vacate and direct entry of judgment
for defendants. A minor's fear of going to court and a fear of the
police, nightmares, and the loss of sleep, after arrest or after
the filing of an application for a complaint against a minor, do
not meet the severity of harm requirements under state law to find
liability on IIED claims. We also vacate the state law verdict
against the Town, which rested on a theory not recognized under
-3-
Massachusetts law, that the Town may be liable for supervisory
negligence even in the absence of cognizable underlying torts
attributable to individual municipal employees or the Town. We
order entry of judgment for the Town on this claim. We further
reject plaintiffs' cross-appealed claims from the first trial,
which were waived and also lack merit.
The verdict for plaintiffs in the second trial solely
involved state law claims against two individual officers. We
vacate and enter judgment for defendants on a state intentional
infliction of emotional distress claim against an individual
officer, because there was no evidence at trial supporting a
finding that the officer intended to inflict emotional distress or
that his conduct caused the emotional harms asserted by one of the
minor plaintiffs. The verdict for plaintiffs against the other
individual officer on an assault charge stands; the evidence
presented on this claim was not so insufficient that no reasonable
jury could have found for plaintiffs. We also affirm the district
court's grant to defendants of judgment as a matter of law on
plaintiffs' cross-appealed claims against the two officers.
I. Background
In 2004, plaintiffs, Michelle and Brian Kennedy, Sr., and
their three children, Brian Jr., Mitchell, and Dylan, all minors,
brought suit under 42 U.S.C. § 1983 and state law against the Town
of Billerica, Massachusetts, and more than two dozen individual
-4-
police officers in their official and personal capacities.
Plaintiffs claimed that for thirteen years and in approximately
sixty-five different incidents, from 1991 through the filing of
their suit in 2004, the Billerica police conspired to and did
deprive family members of their constitutionally protected civil
rights and committed state law torts in order to drive the Kennedys
out of town.
In light of the number and complexity of these claims,
the district court bifurcated the case into two trials held in
April and October 2007. The Kennedys introduced numerous witnesses
and detailed dozens of events to try to show that defendants were
involved in a department-wide campaign to harass them and violate
their civil rights. They say the harassment began when Michelle
Kennedy allegedly spurned defendant Officer Frank MacKenzie's
advances in 1991.
Defendants denied all allegations and contested
plaintiffs' account of the events, countering that the Billerica
Police, like the police in nearby Tewksbury, investigated members
of the Kennedy family because of their suspected involvement in
drug crimes during this period. In both trials, juries rejected
nearly all of the Kennedys' federal and state claims, including the
Kennedys' central civil rights conspiracy claim in the first trial.
The first trial concerned the Kennedys' claims against
the Town and seven named police officers: Chief Daniel Rosa and
-5-
Officers Frank MacKenzie, Steven Elmore, Michael Casey, Thomas
Conners, Martin Conway, and Mark Tsoukalas.1 The lone federal
claim on which the jury found against the individual defendants and
awarded damages was Mitchell Kennedy's § 1983 false arrest claim
against Officer Tsoukalas, a claim arising from an incident in
2004, when Mitchell was fourteen years old. On the state IIED
claims, the jury found for Mitchell on the same incident involving
Officer Tsoukalas, and awarded Mitchell $15,000 in total damages
for the two claims.2 The jury also found for Brian Jr. on a claim
against Chief Rosa arising from a 1997 incident that occurred when
Brian Jr. was nine years old, awarding $10,000 in damages.
As to the Town, there were two verdicts for plaintiffs,
one each under federal and state law. The jury found the Town
liable under Monell v. Department of Social Services, 436 U.S. 658
1
The district court dismissed a number of plaintiffs'
claims against defendants in the first trial on summary judgment,
ruling that these claims were either outside the November 5, 2001
statute of limitations or supported by insufficient evidence to
state a claim. Among those claims the court ruled as outside the
statute of limitations were plaintiffs' loss of consortium claims,
including those made by the Kennedy children. See Kennedy v. Town
of Billerica (Kennedy I), 502 F. Supp. 2d 150, 160 (D. Mass. 2007).
The court also granted defendants' motion for a directed
verdict following the close of evidence on all claims against
Officer Conway, virtually all claims against Officer Casey, and
almost all claims Michelle, Brian Sr., and Mitchell made arising
from a November 9, 2001 incident (the "Masone incident").
2
The jury also found for Dylan on one IIED claim but
awarded no damages; the district court granted defendants judgment
on this claim. See Kennedy v. Town of Billerica (Kennedy IV), No.
04-cv-12357, slip op. at 2 (D. Mass. Dec. 10, 2007).
-6-
(1978), only for Mitchell's § 1983 false arrest claim, on the
ground that the Town's failure to properly supervise or discipline
Officer Tsoukalas amounted to deliberate indifference to Mitchell's
civil rights. The jury further found against the Town, and for
Michelle, Brian Jr., Dylan, and Mitchell Kennedy, on a state law
supervisory negligence claim, on the theory that the Town's
practices were responsible for free-standing harms independent of
identifiable torts committed by individual officers. Plaintiffs
obtained nearly $380,000 in total damages at the first trial,
mostly from the latter claim against the Town.3 See Kennedy v.
Town of Billerica (Kennedy IV), No. 04-cv-12357, slip op. at 1-4
(D. Mass. Dec. 10, 2007) (judgment on damages); Kennedy v. Town of
Billerica (Kennedy III), No. 04-cv-12357, slip op. at 1-3, 7-10 (D.
Mass. Aug. 21, 2007) (ruling on defendants' post-verdict motion for
judgment as a matter of law in the first trial).
The second trial concerned the Kennedys' federal
constitutional and state law tort claims against six other
individual officers: Officers Alan Munn, Richard Howe, Richard
Rhonstock, Andrew Devito, Richard Nestor, and Scott Parker.4 Only
3
On May 10, 2007, defendants filed a post-verdict motion
for judgment as a matter of law or a new trial, and on August 21,
2007, the district court rejected all of defendants' arguments on
the merits. See Kennedy III, No. 04-cv-12357, slip op. at 1-7
(Aug. 21, 2007). Plaintiffs did not file any post-verdict motions
for reconsideration of any issues from the first trial, including
the claims they now assert are a basis for a new trial.
4
Plaintiffs initially proceeded against an additional
fourteen officers in the second trial but later agreed to dismissal
-7-
claims against Officers Nestor and Parker, involving two discrete
incidents in 1993 and 2002 respectively, went to the jury. The
jury found for Brian Jr. on an IIED claim against Officer Nestor
arising from the emotional trauma Brian Jr. said he suffered when
his mother was arrested in front of him in 1993, when Brian Jr. was
five years old, and awarded $2,500 in compensatory damages. The
jury also found that in 2002, Officer Parker engaged in conscience-
shocking conduct against Michelle Kennedy, assaulted her, and
intentionally inflicted emotional distress on her, for which the
jury awarded compensatory and punitive damages.
The district court granted defendants' post-verdict
motion for judgment as a matter of law on Michelle's federal claim
of conscience-shocking conduct and state IIED claim against Officer
Parker, but left the verdicts against Officer Parker on Michelle's
assault claim and against Officer Nestor on Brian Jr.'s IIED claim
intact. See Kennedy v. Town of Billerica (Kennedy V), No. 04-cv-
12357, slip op. at 2-12 (D. Mass. Jul. 24, 2008) (ruling on
defendants' motion for judgment as a matter of law on claims in the
first and second trials). The district court also vacated the
with prejudice of all claims against these officers. See Kennedy
v. Town of Billerica (Kennedy II), No. 04-cv-12357, slip op. at 1
& n.1 (D. Mass. Aug. 15, 2007) (order granting in part and denying
in part defendants' motion for summary judgment). The district
court also granted summary judgment to defendants Officers Howe,
Munn, Rhonstock, and Devito on all claims, and on certain claims
against Officers Parker and Nestor. See id. at 1-15. Plaintiffs
do not appeal any of these claims.
-8-
punitive damages award against Officer Parker, id. at 16, and
Officer Parker was ultimately deemed liable for $2,000 in
compensatory damages only.
II. Issues Arising from the First Trial
The first trial, against the Town and seven individual
officers, lasted seventeen days and involved testimony from nearly
fifty witnesses. Though most of the Kennedys' claims had a three-
year (November 5, 2001) statute of limitations, the district court
allowed testimony about incidents stretching back to 1991 to
provide context for the alleged civil rights conspiracy. It also
allowed certain pre-2001 claims involving the Kennedy children,
since the statute of limitations was tolled on some of those claims
while they were minors.
The district judge described the trial as "an intense,
nasty, awful case" and "the least civil trial I have presided over
. . . within the last five years, maybe the last ten" due to
incessant "uncivil and unprofessional" and even "unethical[]"
behavior by both parties' counsel. The record fully supports this
assessment. We commend the district court's handling of this
extremely difficult case.
Eventually, twenty federal and state law claims against
the Town, Chief Rosa, and Officers MacKenzie, Elmore, Conners, and
Tsoukalas went to the jury, which rejected most, but not all, of
plaintiffs' claims. Defendants now appeal the denial of their
-9-
motion for judgment as a matter of law, or in the alternative for
a new trial, on all claims on which the jury found for plaintiffs.
They also claim prejudicial errors. Because we grant defendants a
new trial on some claims and judgment as a matter of law on all
others, we need not reach those issues. We also reject all the
claims raised on plaintiffs' cross-appeal.
We review the district court's denial of a post-verdict
motion for judgment as a matter of law under Rule 50 de novo,
viewing the evidence in the light most favorable to the verdict.
See Jennings v. Jones, 587 F.3d 430, 438 (1st Cir. 2009); Visible
Sys. Corp. v. Unisys Corp., 551 F.3d 65, 71 (1st Cir. 2008). We
reverse the district court's denial of such motions if "the jury
'would not have a legally sufficient evidentiary basis' for its
verdict." Jennings, 587 F.3d at 436 (quoting Fed. R. Civ. P.
50(a)). We review the denial of a motion for a new trial for abuse
of discretion. See id. at 436-37. "Any error of law, if
prejudicial, is a good ground for a new trial," among other
grounds. 11 Charles A. Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice and Procedure § 2805, at 55 (2d ed. 1995). We
describe the facts, framed in light of the applicable standard of
review, as relevant.
A. Federal and State Law Liability of Officer Tsoukalas
Mitchell Kennedy's false arrest and IIED claims against
Officer Tsoukalas arose from a contested incident after dark on the
-10-
evening of February 20, 2004, when Mitchell was fourteen years old.
That night, Officer Tsoukalas, in uniform, and another officer went
to the trailer park where the Kennedys lived to respond to police
reports that children were running across the top of a vacant
trailer. The officers looked for signs of break-ins or vandalism
but saw none, and told the children they initially encountered that
they were free to leave.
Mitchell alleged at trial that at this point, Officer
Tsoukalas stopped him on the Kennedys' property, shined a
flashlight in his face, scratched his face when putting the
flashlight down, and then arrested him without probable cause and
threw him into a police car. Officer Tsoukalas pressed charges for
assault and battery of a police officer against Mitchell. A jury
acquitted Mitchell on these charges. A friend of the Kennedy
family who said he saw the incident thirty feet away testified that
he saw Officer Tsoukalas shine a flashlight in Mitchell's face,
"belly-bump" him, and arrest him, and that Mitchell never touched
Officer Tsoukalas.
Mitchell testified that he was "scared" of Officer
Tsoukalas when he was arrested in front of his home. His mother
was not home at the time but his older brother came by and spoke to
the officer. Mitchell also testified he was "wicked scared" when
he was photographed at the police station after his arrest and
started crying; the police then called his mother and took him
-11-
home. He was at the police station for half an hour or so. He
testified that he was "nervous" when he went to court to face
charges and "really scared" when the jury came out because he
"didn't know what was going to happen."5 He also testified that as
a result of this incident and other run-ins he had with the police
(including when he was videotaping the police and later incidents
in which he was questioned by the police), he suffered nightmares
about being taken away from his family and was afraid whenever he
heard police sirens. This was the only evidence plaintiffs
introduced regarding the emotional harms Mitchell suffered from the
February 20, 2004 arrest.
Officer Tsoukalas testified that, after he completed his
initial investigation of the incident, he "saw another kid come
walking around the corner from one of the trailers," shined a
flashlight to illuminate him because it was dark, and asked the
child to come toward him, again illuminating him to identify who it
was. At this point, Tsoukalas identified the child as Mitchell
Kennedy. Mitchell approached, swore at Officer Tsoukalas and told
him to get the flashlight out of his face, and shoved Officer
Tsoukalas, thus providing Officer Tsoukalas with probable cause to
5
Mitchell also testified on cross-examination that he had
been to court in an earlier case in which he had been criminally
charged, but not arrested, and then acquitted of beating a car
windshield. Plaintiffs claimed that this incident was malicious
prosecution, but the district court directed a verdict for
defendants on this claim. For the reasons we discuss below, there
was no error in this ruling.
-12-
arrest Mitchell for assault and battery of a police officer.
Officer Tsoukalas denied scratching or otherwise hitting Mitchell.
Pertinent to the issue of whether Officer Tsoukalas had
probable cause to arrest Mitchell for shoving a police officer,
defendants requested an instruction on the elements of the crime of
assault and battery on a police officer. The district court
declined the request and said the jury could be instructed if it
asked. After it was charged, the jury then returned with a
question: "Does light contact initiated, whether intentional or
not, by a suspect on an officer constitute probable cause for
arrest? For example, if a baseball player so much as touches an
umpire, is it grounds for expulsion?"
The court then instructed the jury that under
Massachusetts law, the elements of assault and battery on a police
officer included "two types of batteries": either "a touching by an
individual of the person of another with such violence that harm is
likely to result, regardless of whether the person so touched
consented thereto," or "a touching, which is not physically
harmful, but offensive as an affront to the police officer's
personal integrity," requiring "proof of nonconsent by the police
officer." The latter type of battery, the court elaborated,
required proof "that [Mitchell] touched the police officer," that
"the police officer did not consent to the touching," and "that the
conduct constituting the act of touching was an intended act and
-13-
not an accidental one." The difficulty came in the court's next
statement, that Officer Tsoukalas "also has to establish that
[Mitchell's] act which resulted in the touching was both
intentional and wanton and reckless, that is to say, more than
negligent, and that it caused bodily injury to the victim; in other
words, the police officer [Tsoukalas]."
Defense counsel objected to the last part of this
instruction, focusing on the argument that the "bodily injury
requirement" was not necessary to show offensive battery.6 The
district court said it would consider the objection over the
weekend, review cases, "and, if necessary, change [the instruction]
on Monday." Later in the discussion, the district court stated
that although "the last paragraph" of the battery instruction was
not wrong, it was "not well crafted" and "just a little confusing,"
and the court invited both parties "to try your hand at doing
something cleaner." Defense counsel reiterated his objection.
The following Monday, defense counsel submitted a
proposed supplemental jury charge to clarify that the state crime
of offensive battery did not require proof of bodily injury. The
district court rejected the instruction and decided that the
original instruction had been clear enough. Defense counsel again
objected. The jury ultimately found for Mitchell on the § 1983
false arrest claim, which required finding that Officer Tsoukalas
6
We accordingly do not examine the "wanton and reckless"
portion of the instruction.
-14-
had arrested Mitchell for assault and battery on a police officer
without probable cause. The jury also found for Mitchell on the
state law IIED claim derived from that arrest.
1. Mitchell's § 1983 False Arrest Claim
Defendants say the assault and battery jury instruction
created prejudicial error because it wrongly conveyed to the jury
that offensive battery--the type of battery defendants alleged
Mitchell committed on Officer Tsoukalas--required proof that
Officer Tsoukalas suffered a bodily injury. Officer Tsoukalas
never claimed bodily injury resulted when Mitchell shoved him;
defendants say the instruction precluded the jury from finding that
Mitchell committed battery on a police officer, and therefore that
Officer Tsoukalas had probable cause to arrest Mitchell.7 In
effect, defendants argue, the court instructed a verdict in
Mitchell's favor.
Where, as here, defendants have a preserved objection
that the jury instructions were so inaccurate that they are
entitled to a new trial, our review of the instructions is de novo.
7
Plaintiffs claim defendants' objections to the
instruction were waived because defendants failed to offer a jury
instruction before deliberations began. But the claimed error here
is not that the district court failed to provide the jury with an
essential instruction; it is that when the jury asked for further
instructions, the district court provided an erroneous instruction
on the law. Defense counsel timely objected to that instruction.
See 9C Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 2553, at 72-73 & n.39 (3d ed. 2008). Counsel also
timely provided a supplemental instruction at the court's
invitation; the district court rejected it.
-15-
Goodman v. Bowdoin Coll., 380 F.3d 33, 47 (1st Cir. 2004). We look
to the challenged instructions in relation to the charge as a
whole, "asking whether the charge in its entirety--and in the
context of the evidence--presented the relevant issues to the jury
fairly and adequately." Id. Even if the instructions were
erroneous, we find that the district court abused its discretion in
denying a motion for new trial on this basis only if "the preserved
error, based on a review of the entire record, can fairly be said
to have prejudiced the objecting party." Id. (quoting Levinsky's,
Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st Cir. 1997))
(internal quotation marks omitted). That threshold is satisfied
here, and we hold that defendants are entitled to a new trial on
Mitchell's § 1983 false arrest claim.
The instructions at issue prevented the jury from fairly
and adequately understanding the elements of offensive battery
essential to Officer Tsoukalas's defense. Massachusetts law, as
defendants point out, does not require proof of physical injury as
an element of offensive battery. See Commonwealth v. Hartnett, 892
N.E.2d 805, 814 & n.4 (Mass. App. Ct. 2008); see also Commonwealth
v. Cohen, 771 N.E.2d 176, 177-78 (Mass. App. Ct. 2002). The sample
Massachusetts jury instruction from which the district court
instructed the jury correctly identified the three elements of
offensive battery in the initial portions of its instructions. The
final part of the court's instructions to the jury nonetheless
-16-
conveyed a contradictory and confusing statement of the law to the
jury and effectively identified bodily injury as a required element
of offensive battery.
This instruction materially prejudiced defendants on
Mitchell's false arrest claim against Officer Tsoukalas, whose
primary defense was that he had probable cause to arrest Mitchell
because Mitchell had committed an offensive battery against him.
The jury clearly considered this issue essential to its
deliberations and indicated that neither the evidence nor other
instructions had given it a clear sense of the issue, prompting it
to specifically ask for further instructions. Cf. Susan Wakeen
Doll Co., Inc. v. Ashton Drake Galleries, 272 F.3d 441, 452 (7th
Cir. 2001). The instructions given prevented the jury from fairly
evaluating Officer Tsoukalas's defense and arguably precluded a
finding for Officer Tsoukalas entirely. Defendants are entitled to
a new trial on this claim.
2. Mitchell's State Law IIED Claim
Defendants argue, and we agree, that they were also
entitled to judgment on Mitchell's IIED claim against Officer
Tsoukalas.8
8
Our conclusion on this state law claim is independent of
our holding that Officer Tsoukalas is entitled to a new trial on
Mitchell's § 1983 false arrest claim. Even assuming arguendo that
a properly instructed jury could find that Officer Tsoukalas
arrested Mitchell without probable cause, and even viewing the
evidence in Mitchell's favor, Mitchell's asserted emotional harms
do not make out an IIED claim.
-17-
Under Massachusetts law, a plaintiff must show he
suffered "severe" emotional distress as one of the four elements of
an IIED claim.9 This means the kind of distress "that no
reasonable man could be expected to endure," Agis v. Howard Johnson
Co., 355 N.E.2d 315, 319 (Mass. 1976) (quoting Restatement (Second)
of Torts § 46 cmt. j (1965)) (internal quotation marks omitted), as
opposed to mere "emotional responses including anger, sadness,
anxiety, and distress," which, though "blameworthy," are "often not
legally compensable." Quinn v. Walsh, 732 N.E.2d 330, 338 (Mass.
App. Ct. 2000).
We do not downplay the possible emotional effect of an
allegedly wrongful arrest on a fourteen-year-old. However, though
Massachusetts recognizes that children and other particularly
susceptible persons are likely to be more vulnerable to emotional
harm, see Boyle v. Wenk, 392 N.E.2d 1053, 1056 (Mass. 1979), the
generalized harms Mitchell alleged were too transient, too vague,
and insufficiently severe to satisfy this standard.
The strength of a standard is always a matter of degree,
but the Massachusetts cases are demanding. See Bailey v. Shriberg,
9
The other elements are "(1) that the actor intended to
inflict emotional distress or that he knew or should have known
that emotional distress was the likely result of his conduct ...;
(2) that the conduct was extreme and outrageous, was beyond all
possible bounds of decency and was utterly intolerable in a
civilized community," and "(3) that the actions of the defendant
were the cause of the plaintiff's distress." Howell v. Enter.
Publ'g Co., LLC, 920 N.E.2d 1, 28 (Mass. 2010) (quoting Agis v.
Howard Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976)) (internal
quotation marks omitted).
-18-
576 N.E.2d 1377, 1379 (Mass. App. Ct. 1991) (finding no "severe"
emotional distress, even for susceptible plaintiffs, where the
allegations merely involved being upset as a result of defendants'
conduct); cf. Homesavers Council of Greenfield Gardens, Inc. v.
Sanchez, 874 N.E.2d 497, 504 (Mass. App. Ct. 2007) (finding
"severe" emotional distress where the plaintiff presented evidence
of severe depression, suicidal thoughts, and loss of sleep for more
than a month). The harms Mitchell alleged in his testimony--that
he feared Officer Tsoukalas at the time of arrest and feared going
to court, and that this arrest, as well as other incidents, had
made him generally "nervous," afraid of police sirens, and had
sometimes given him "nightmares" that produced sweating and a
racing pulse--are little different from the harms Massachusetts
courts have deemed insufficiently severe.
We do not reach the question of whether Mitchell could
have made out an IIED claim on different facts, for instance if he
had offered detailed testimony that established that he had
suffered serious emotional injury or anguish, exhibited psychiatric
or physical symptoms of severity, or that Mitchell's life was
otherwise materially disrupted by his reaction to this arrest. No
such evidence was offered in this case. On the facts developed at
trial--and we do not go beyond them--plaintiffs have not made the
requisite showing that Mitchell suffered "severe" emotional
distress.
-19-
B. State Law Liability of Chief Rosa
The sole ground on which the jury found against Chief
Rosa was on a state law IIED claim by Brian Jr. The factual
predicate for this claim, viewed in the light most favorable to the
verdict, was that in 1997, when Brian Jr. was nine years old, Chief
Rosa deliberately filed a baseless complaint application against
him for malicious destruction of property, using a report from
another officer stating that Brian Jr. had thrown rocks at his
neighbor's trailer. As a result of the complaint application,
Brian Jr. said that he was "scared" and "didn't sleep much" when he
learned he would have to appear in court because he had "never been
in court before."
We agree with defendants that Chief Rosa was entitled to
judgment on this IIED claim. Even when viewing the evidence in
plaintiffs' favor, Brian Jr., like Mitchell, clearly did not allege
emotional harm of a requisite severity to make out an IIED claim,
for the reasons discussed above with respect to Mitchell's claim.10
Brian Jr.'s alleged loss of sleep for an unspecified period before
his court appearance, and his generalized fear of going to court,
do not rise to the level of emotional suffering that "no reasonable
man should be expected to endure," Agis, 355 N.E.2d at 319 (quoting
Restatement (Second) of Torts § 46 cmt. j (1965)) (internal
10
We bypass whether Chief Rosa's alleged conduct was
"extreme and outrageous" and "beyond all possible bounds of
decency," Howell, 920 N.E.2d at 28, another required element of an
IIED claim that defendants say was not satisfied here.
-20-
quotation marks omitted), even considering Brian Jr.'s susceptible
emotional state as a nine-year-old.
C. Federal and State Law Liability of the Town of Billerica
1. Monell Liability on Mitchell's § 1983 False Arrest Claim
against Officer Tsoukalas
Mitchell's false arrest claim against Officer Tsoukalas
was the only constitutional violation to which the jury attributed
the Town's negligent failure to train and supervise under Monell.
Because we have granted a new trial on the false arrest claim, we
also vacate the jury's verdict on the Monell claim and remand for
a new trial with the false arrest claim.
Monell can impose municipal liability only for
underlying, identifiable constitutional violations attributable to
official municipal policy; the municipality's failure to train or
supervise its police officers only becomes a basis for liability
when "action pursuant to official municipal policy of some nature
caused a constitutional tort." Monell, 436 U.S. at 691 (emphasis
added); see also City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986) (per curiam) ("If a person has suffered no constitutional
injury at the hands of the individual police officer, the fact that
the departmental regulations might have authorized the use of
constitutionally excessive force is quite beside the point.");
McSherry v. City of Long Beach, 584 F.3d 1129, 1147 (9th Cir.
2009); Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006);
Wilson v. Town of Mendon, 294 F.3d 1, 6-7 (1st Cir. 2002). Other
-21-
than Mitchell's § 1983 false arrest claim, the district court
either entered judgment for defendants or the jury rejected all
other remaining constitutional torts that could have formed a basis
for municipal liability. Plaintiffs did not allege, nor did the
evidence suggest, any other possible underlying constitutional
torts that the jury could have attributed to the municipality.
2. The Town's State Law Liability for Supervisory Negligence
Claims
We also hold that the defendants were entitled to
judgment on the state law supervisory negligence claim against the
Town, and we vacate the award for plaintiffs.
The jury found that the Town was liable under state law
for supervisory negligence because the Town "commit[ted] negligence
in disciplining or supervising its police officers which
proximately caused harm" to Michelle, Brian Jr., Mitchell, and
Dylan Kennedy. Plaintiffs were awarded more than $300,000 in total
damages against the Town, beyond the Town's joint and several
liability for individual torts the jury found were committed by
individual officers. The district court held that this claim could
be made under Mass. Gen. Laws ch. 258, § 2, and that it could be
sustained based on general evidence that the Billerica police
engaged in a pattern of harassment over the course of a decade, see
Kennedy III, slip op. at 7, not on the basis of individual torts
committed by individual officers.
-22-
Defendants start by objecting that they were unfairly
caught by surprise by the district court's ruling. The plaintiffs
never framed the state negligent supervision claim as a free-
standing claim against the Town in the absence of a finding that
particular torts were committed by Town employees and these were
caused by the Town's negligent supervision, much less that
liability could be predicated on a pattern of events including
events outside the three-year statute of limitations. They protest
that this theory of liability was first articulated by the district
court in its order denying defendants judgment as a matter of law.11
We pretermit analysis of that question in favor of
addressing defendants' more substantive objections. Defendants
argue that the verdict against the Town must be vacated, and
judgment granted to defendants, in the absence of a finding that
individual officers committed any specific torts which in turn were
traceable to the Town's supervisory negligence. They say that
under Massachusetts law, the Town is only liable for supervisory
negligence for failing to prevent torts committed by individual
employees, not for unattributed, general practices that do not rise
11
The district court concluded that the Town could be held
liable for free-standing incidents only in a post-verdict motion
denying defendants judgment as a matter of law, and even then it
recognized that "neither side thoroughly discussed this claim
during closing arguments." See Kennedy III, slip op. at 4-7.
Articulation of this issue in a post-verdict ruling is too late for
defendants to have had an adequate chance to counter the claim at
trial.
-23-
to the level of tortious conduct. Defendants have preserved this
issue for appeal.
The district court did not address this argument in
denying defendants judgment as a matter of law.12 Defendants are
correct that thus far, Massachusetts cases have only allowed
supervisory negligence claims against municipalities where the
municipality knew or should have known about an underlying,
identifiable tort which was committed by named or unnamed public
employees. See Mass. Gen. Laws ch. 258, § 2, 10(c); Dobos v.
Driscoll, 537 N.E.2d 558, 569 (Mass. 1989) (explaining that
municipalities can be sued under the MTCA for supervisory
negligence "where the supervisory officials allegedly had, or
should have had, knowledge of a public employee's assaultive
behavior"); Doe v. Blandford, 525 N.E.2d 403, 408 (Mass. 1988)
(same). No Massachusetts case has been cited to us that has ever
recognized a supervisory negligence claim against municipalities
for generalized, free-standing, and unspecified wrongs when no
individual employee or group of employees committed an underlying
tort.
12
It merely held that defendants were not entitled to
judgment because the Massachusetts Tort Claims Act (MTCA) generally
recognizes the tort of supervisory negligence and that the evidence
that various unspecified Billerica officers harassed plaintiffs as
a general practice over the course of a decade was sufficient to
support the claim. See Kennedy III, slip op. at 3-7.
-24-
We decline to extend the doctrine of municipal
supervisory liability that far, especially in light of the policy
and economic concerns for municipalities. A federal court,
interpreting state law, is not the appropriate place to adopt a
novel and expansive view of municipal liability under state law.
See Warren v. United Parcel Serv., Inc., 518 F.3d 93, 100-01 (1st
Cir. 2008). Plaintiffs failed at trial and on appeal to identify
any cognizable tort committed against Michelle, Brian Jr.,
Mitchell, or Dylan, outside of the specific torts that either were
rejected by the jury or were directed out by the district court,
which the jury could have connected to the Town's negligent
supervision. Plaintiffs cannot collect on this claim by simply
asserting that the Town created unspecified harms.
Second, there is reason to doubt the SJC would adopt such
a view. Under 28 U.S.C. § 2680(h) of the Federal Tort Claims Act,
which Massachusetts considers a "nearly identical provision" to
§ 10(c) of the Massachusetts Tort Claims Act, Doe, 525 N.E.2d at
407, the United States can be held liable for certain identifiable
torts committed by its agents. But the FTCA has never been
interpreted to impose free-standing liability on the federal
government for unspecified and unattributed conduct that do not
fall under recognized categories of torts. See 28 U.S.C.
§ 2680(h); see also Santoni v. Potter, 369 F.3d 594, 603 (1st Cir.
2004). This suggests a further reason not to extend the doctrine.
-25-
We vacate the jury's award of damages to Michelle, Brian
Jr., Dylan, and Mitchell Kennedy on this basis and hold that the
Town was entitled to judgment on this claim.13
D. Plaintiffs' Cross-Appeal
Plaintiffs also cross-appeal issues from the first trial.
They argue that they are entitled to a new trial because the
district court erred in (1) granting summary judgment to defendants
on the Kennedy children's loss of consortium claims; (2) entering
judgment for the defendants on plaintiffs' false arrest, malicious
prosecution, unlawful imprisonment, and related claims arising from
the so-called November 9, 2001 "Masone incident"; (3) admitting
"bad character" hearsay evidence as to the Kennedy parents'
involvement in drugs; (4) bifurcating the two trials into an
initial trial against the Town and seven individual officers, and
13
Our conclusion is further supported by the fact that, as
defendants argue, plaintiffs never framed negligent supervision as
a free-standing claim that could confer independent liability on
the Town based on events that occurred well outside the three-year
statute of limitations. In their presentment letter, their
complaint, their arguments and submissions at trial, and in their
proposed jury instructions, plaintiffs never argued that the Town
could be held liable for supervisory negligence in the absence of
specified individual torts committed by named or unnamed individual
officers. Indeed, plaintiffs suggested the opposite. Defense
counsel's colloquy with the district court regarding jury
instructions appeared to confirm defendants' position that the Town
had to be linked to individual constitutional or state law torts to
be liable on either Monell or supervisory negligence claims. And
the jury instructions were ambiguous.
Moreover, plaintiffs did not point to any incidents within the
three-year statute of limitations that were not attributable to
individual defendants and could have provided a viable basis for
supervisory liability.
-26-
a second trial against remaining individual officers; and (5) not
submitting a federal constitutional substantive due process claim
to the jury. They also claim that the district court erred in
reducing the damages award to Mitchell and Brian Jr. on the
negligent supervision claim against the Town and to Mitchell on the
Monell claim.
We have reviewed all of these claims and reject them.
Plaintiffs have waived most of these arguments by failing to timely
make them before the district court. See States Res. Corp. v. The
Architectural Team, Inc., 433 F.3d 73, 85 (1st Cir. 2005). They
are in any event meritless for reasons we briefly discuss.
The district court properly granted summary judgment on
the Kennedy children's loss of consortium claims because they are
plainly barred by the November 5, 2001 statute of limitations,
notwithstanding the rule preserving claims of minors. The
underlying injuries that caused the Kennedy children to allegedly
suffer a loss of consortium involved time-barred claims of injuries
to the Kennedy parents. Under Massachusetts law, "loss-of-
consortium claims that do not accrue until after the statute of
limitations has run on the underlying injury may not be enforced."
Lareau v. Page, 39 F.3d 384, 391 (1st Cir. 1994).
Likewise, the district court properly granted judgment
for defendants on claims arising from the so-called "Masone
incident," in which Brian Sr., Michelle, and Mitchell were
-27-
arrested, prosecuted, and eventually acquitted for their alleged
involvement in breaking car windows and fighting with various
acquaintances who showed up by the Kennedy's trailer in the middle
of the night on November 5, 2001. The district court properly
directed a verdict on the claims made by Michelle and Brian Sr.,
since a grand jury found there was probable cause to arrest them in
connection with this incident, disposing of their false arrest,
malicious prosecution, and other derivative claims. See Gonzalez
Rucci v. I.N.S., 405 F.3d 45, 49 (1st Cir. 2005). Plaintiffs'
attempts to impugn the grand jury testimony are not only belated
and unpreserved but also insufficient to upset the district court's
conclusion.
The district court also properly directed a verdict on
Mitchell's malicious prosecution claims against all officers but
Chief Rosa. All of plaintiffs' arguments on these claims were not
made to the district court and cannot be raised now. Plaintiffs
could not, in any event, have submitted Mitchell's claims against
non-defendant officers in the first trial to the jury, as they now
request, and there was insufficient evidence connecting the other
defendant officers to the incident.
Plaintiffs' assertion that they are entitled to a new
trial because the district court committed prejudicial error by
admitting hearsay evidence is meritless. We review the specific
evidentiary objections presented. On appeal, plaintiffs claim there
-28-
was error in the admission of a police chart and a related 1991
police report regarding a drug investigation, testimony about
Michelle and Brian Sr.'s involvement in a drug ring, testimony
about drug buys, questioning about a drug conviction, plaintiffs'
drug treatment records, testimony regarding plaintiffs' eviction
from their trailer park, and defense counsel's opening and closing
arguments. The district court did not err in admitting this
evidence.
Defendants introduced assorted evidence regarding the
Kennedys' involvement in drug dealing to rebut plaintiffs' central
theory, that the police were targeting the Kennedys for no reason,
by showing that the Kennedys' involvement in drugs gave the police
ample grounds to investigate them. Defendants were entitled to do
so. Indeed, the district court explicitly warned plaintiffs'
counsel that plaintiffs were "open[ing] the world" to testimony
regarding the Kennedys' suspected involvement in drug dealing by
suggesting that the police began investigating the Kennedys for
drugs only in retaliation for Michelle spurning Officer MacKenzie's
advances. Plaintiffs' counsel at that point agreed to the risk and
even conceded that it was "fine" to allow in the 1991 police report
that plaintiffs now challenge on appeal. The district court also
reminded the jury that the 1991 report, like other documents
regarding drug investigations of the Kennedys, was "hearsay from an
informant," and explained that such documents were "relevant only
-29-
as to what was in the mind of the police when they were
investigating the Kennedys in 1991." The court repeated this
instruction before the jury went to deliberate. Plaintiffs fail to
acknowledge these curative instructions and have not, in any event,
established prejudice. For the same reasons, even if plaintiffs
had timely objected to defense counsel's statements in opening and
closing arguments about the Kennedy's involvement in drugs, these
claims fail.
As for defense counsel's questions regarding Brian Sr.'s
1988 drug conviction, the district court repeatedly sustained
plaintiffs' objections, and the conviction was never admitted.
Plaintiffs have not shown that defense counsel's repeated
references to this incident caused prejudice, not least in light of
the district court's instructions. Moreover, both sides repeatedly
flouted the court's various rulings; plaintiffs' request for a
mistrial on this basis is misplaced.
Similarly, the district court restricted the scope of
testimony regarding the plaintiffs' eviction but allowed limited
testimony to rebut plaintiffs' central claim, that they were forced
out of Billerica and evicted from the trailer park because of
constant police harassment. Plaintiffs' objections to questions
beyond the scope of this testimony were consistently sustained, and
plaintiffs' assertions that the jury was nonetheless exposed to
prejudicial hearsay misrepresents the record.
-30-
Plaintiffs' objections to the admission of Michelle
Kennedy's drug treatment records are also meritless. Plaintiffs
not only asked Michelle about her counseling at the Seven Hills
treatment center and about her addiction to various pills but
admitted her medical records into evidence themselves. At no point
did plaintiffs object to the admission of records concerning
methadone use. Plaintiffs also failed to object when defense
counsel questioned Michelle Kennedy regarding her treatment for
heroin and cocaine use.
We also reject plaintiffs' cross-appeal of the district
court's bifurcation of their claims into the two trials. This
claim is in any event waived, since plaintiffs failed to timely
object to the bifurcation during the two trials. Plaintiffs
inaccurately argue that they were unable to present the "full scope
of harassment and misconduct" at both trials. The district court
in fact gave plaintiffs great leeway, allowing them in both trials
to introduce extensive evidence about incidents occurring well
before the statute of limitations bar date, and to present, in the
first trial, evidence of conduct by defendants who were involved
only in the second trial. Plaintiffs' other, cursory objections
were not preserved and also fail to show prejudice.
We further reject plaintiffs' argument that they should
have been able to submit a federal constitutional "substantive due
process" claim to the jury asserting that the Kennedys were singled
-31-
out for disparate treatment and deprived of their liberty.
Plaintiffs have repeatedly waived this claim. To the extent this
is a substantive due process claim, it is waived because plaintiffs
specifically told the district court they did not want to submit
such a claim to the jury. To the extent this may be characterized
as an equal protection claim, it is equally waived and meritless.
The district court properly found that plaintiffs never gave
defendants fair notice of such a claim in any relevant pleadings,
and plaintiffs did not timely object to that ruling.
Finally, the district court did not erroneously reduce
damages awards to plaintiffs. Plaintiffs say that the court erred
in reducing the Monell award to Mitchell because they say the jury
could have held (and should have been instructed) that the Town was
liable for cumulative constitutional violations even if no
individual officer was found liable. Plaintiffs' objections to the
jury instructions are waived. Even assuming dubitante that the
jury could have considered uncharged, accumulated instances of
harassment in addition to the specific constitutional violations
plaintiffs asserted (all but one of which the jury rejected),
plaintiffs never argued, nor is it apparent, that the uncharged
harassment could have amounted to a constitutional violation.
Their argument also incorrectly states the law; the Town may be
liable even if individual officers are ultimately exonerated, for
instance because the officers are granted qualified immunity or for
-32-
failure of proof, but plaintiffs must still show some underlying
constitutional tort attributable to the Town. See Wilson, 294 F.3d
at 6-7. And we have directed entry of judgment to defendants on
the supervisory negligence claim against the Town, making
plaintiffs' objections to the reduction of that award moot.
III. Issues Arising from the Second Trial
The second trial lasted six days and involved testimony
from eleven witnesses. Only claims against Officers Nestor and
Parker went to the jury. See Kennedy II, slip op. at 14 (granting
summary judgment on claims against all other defendants). After
the district court granted in part defendants' post-verdict motion
for judgment as a matter of law, the only claims on which
plaintiffs prevailed were Brian Jr.'s IIED claim against Officer
Nestor for events in 1993 and Michelle's assault claim against
Officer Parker for events in 2002. See Kennedy V, slip op. at 16.
Defendants now argue that the district court erred in not
granting them judgment on these claims as well.14 They also say the
district court erred in denying their motion for a mistrial because
of allegedly prejudicial comments admitted into evidence.
Plaintiffs cross-appeal the district court's grant of judgment to
14
Defendants' motion before the district court requested
judgment as a matter of law or, in the alternative, a new trial,
and the district court denied both remedies on these claims in its
opinion. See Kennedy V, slip op. at 1-2, 10. On appeal,
defendants only request judgment in their favor on these claims;
they have waived their appeal of the district court's denial of a
new trial.
-33-
defendants on Michelle's substantive due process and IIED claims
and say the jury verdicts on those claims should not have been
vacated.
We review the district court's grant or denial of
judgment as a matter of law de novo, Visible Sys. Corp., 551 F.3d
at 71, viewing the evidence in the light most favorable to the
verdict-winner, and vacating the jury verdict only if it lacks a
sufficient evidentiary basis, Jennings, 587 F.3d at 438. We review
the district court's denial of a motion for a mistrial for manifest
abuse of discretion. See United States v. DeCologero, 530 F.3d 36,
52 (1st Cir. 2008). We again describe the facts as necessary and
in light of the relevant standards of review.
A. State Law Liability of Officer Nestor
The jury returned a verdict for Brian Jr., and against
Officer Nestor, on an IIED claim that arose from a 1993 incident in
which Brian Jr. allegedly suffered emotional harms from watching
his mother being arrested and taken by police in their trailer home
when he was five years old.15 Plaintiffs asserted that Officer
Nestor was responsible for Brian Jr.'s emotional distress, even
though Officer Nestor was not present at the arrest, because they
claim he had no basis for filling out a criminal complaint against
15
We do not decide whether Brian Jr.'s asserted emotional
harms of not being able to sleep alone and being afraid for a
period of months that his mother would be taken away were "severe"
given the emotional susceptibility of a five-year-old. Other
required IIED elements are plainly absent.
-34-
Michelle after an earlier incident in which she allegedly
confronted Nestor for driving dangerously close to the Kennedys'
car. Officer Nestor testified that in that incident, Michelle
swore and spat at him. He considered this an assault and filled
out a complaint application, but he decided not to apply for a
warrant. He further stated that the charges against Michelle were
enhanced while he was away, without his knowledge. Even assuming
arguendo that Officer Nestor had no basis for filing this complaint
application, there was no evidence that he was involved in or
intended for the charge to be enhanced to have Michelle arrested.
We hold that defendants were entitled to judgment on this
claim. Even when viewing the record most favorably to plaintiffs,
no evidence at trial established, and considerable evidence
rebutted, two of the essential elements of an IIED claim: "that the
actor intended to inflict emotional distress or that he knew or
should have known that emotional distress was the likely result of
his conduct" and that "the actions of the defendant were the cause
of the plaintiff's distress." Agis, 355 N.E.2d at 18-19.
Uncontroverted testimony from Officer Nestor and other
witnesses confirmed that he explicitly and deliberately requested
only a complaint application, which results in a mere summons, not
an arrest. He was on vacation when the application was enhanced
(either by another officer or the magistrate clerk at the local
court) to request an arrest warrant, and he was still away when
-35-
Michelle was arrested.16 Officer Nestor testified that on his
return, he was "upset to learn" that the charge had been enhanced
without consulting him. He cannot be held liable for the harms
Brian Jr. alleged as a result of that arrest, which Officer Nestor
did not seek and which was sought without his knowledge or input.
B. State Law Liability of Officer Parker
The only verdict the district court left in place against
Officer Parker was a state law assault claim brought by Michelle
for events in 2002. See Kennedy V, slip op. at 11. Defendants say
the district court erred by not granting them judgment as a matter
of law on this claim because the evidence was insufficient to
support the verdict. We disagree.
Viewing the evidence in the light most favorable to
plaintiffs, the verdict-winners, we cannot find that "the evidence
was so strongly and overwhelmingly inconsistent with the verdict
that no reasonable jury could have returned it." See Crowe v.
Bolduc, 334 F.3d 124, 134 (1st Cir. 2003). Assault, under
Massachusetts tort law, requires that the defendant "act[ed]
intending to cause a harmful or offensive contact" with plaintiff,
"or an imminent apprehension of such a contact," and that plaintiff
was "thereby put in such imminent apprehension." Restatement
(Second) of Torts § 21(1) (1965); see also Conley v. Romeri, 806
16
Plaintiffs assert on appeal that Officers Nestor and
Conners lied about altering the complaint application and both
intended to have Michelle arrested. No evidence at trial supports
these assertions.
-36-
N.E.2d 933, 939 n.6 (Mass. App. Ct. 2004). "'Words do not make the
actor liable for assault unless together with other acts or
circumstances they put the other in reasonable apprehension of an
imminent harmful or offensive contact with his person.'"
Commonwealth v. Delgado, 326 N.E.2d 716, 719 n.3 (Mass. 1975)
(quoting Restatement (Second) of Torts § 31 (1965)).
The assault claim here arose from a 2002 incident in
which Michelle testified that Officer Parker "shoved [her] really
hard" when she was walking to her car, "tr[ied] to get in" her car
after she locked herself in, and was "kicking it and calling [her]
really bad names" and continually swearing at her.17 Dean Royston,
a (now-former) police officer who appeared on the scene, testified
that he saw Officer Parker standing at the driver's door of
Michelle's car yelling and swearing, and that Michelle left her car
and swore back at him in a "screaming match." Officer Parker
denied shoving Michelle, kicking her car, or attempting to break
into her car to get to her. Parker conceded that "unfortunately,
I lost my cool and started giving it back to her, cursing at her,
17
The incident began when Michelle, her husband Brian Sr.,
and two friends began loading skateboard ramps--which they said
they had permission to take--in a wooded area behind the local
Boys' Club. Officer Parker said he received a call reporting a
suspected drug deal at the location, identified the skateboard
ramps as those used in a police recreational league, and asked that
the ramps be put back.
As Brian Sr. and the other friends left, Michelle was swearing
at Officer Parker. The assault allegedly occurred when no one else
was around. Michelle called then-Officer Dean Royston from her car
during the alleged assault, and exited her car when Royston
arrived. The incident ended when Royston told Michelle to leave.
-37-
swearing at her" after she "had gotten back in the car and locked
the door" and that he cursed at her "through the open sunroof" of
her car for several minutes.
The jury rejected Michelle's claims that Officer Parker
used excessive force, had battered her, or had unreasonably
detained her. It could nonetheless have found Officer Parker
liable for assault on the basis of Michelle's testimony that
Officer Parker repeatedly kicked her car while swearing at her and
attempting to get inside her car.
Defendants' argument to the contrary rests on an overly
narrow view of the state law tort of assault. Under Massachusetts
tort law, a defendant need not "be able instantly to carry out the
physical violence threatened by his conduct," Ginsberg v. Blacker,
852 N.E.2d 679, 684 n.8 (Mass. App. Ct. 2006); rather, "'[i]t is
enough that one is so close to striking distance that he can reach
[plaintiff] almost at once." Id. (quoting Restatement (Second) of
Torts § 29 cmt. b (1965)). On this basis, Massachusetts has
suggested--and other state courts have held--that "shouting angrily
at a person and raising a hand (or shaking a fist) in that person's
face" constitutes assault. Id. On these facts, Officer Parker's
shouting and swearing, combined with his proximity to Michelle
while he was kicking her car and allegedly trying to get into her
car, qualifies as an assault.18
18
There may be relevant defenses or privileges available to
police officers under other provisions of Massachusetts law, for
-38-
C. Defendants' Motion for a Mistrial
Defendants cursorily appeal the district court's denial
of their motion for a mistrial, arguing that the district court
abused its discretion by admitting improper and prejudicial
evidence. Specifically, defendants object to the admission of
evidence regarding another officer's arrest of Michelle months
after the 1993 incident involving Officer Nestor and "inflammatory
suggestions" regarding a non-defendant witness, retired Deputy
Chief Conners, who allegedly "gave the 'finger' to Brian Jr." in
the courthouse after Conners's testimony at the second trial.
Neither of these incidents rise to the exceedingly high
level of prejudice required for us to find a manifest abuse of
discretion. See DeCologero, 530 F.3d at 52. The admission of
evidence regarding another officer's arrests of Michelle later in
1993 was hardly prejudicial; indeed, the officer's testimony
suggested that Officer Nestor had little to do with these later
arrests and that the officer had probable cause to arrest Michelle.
In any event, any prejudice would have only affected the jury
verdict against Officer Nestor, which we already vacated.
The admission of evidence concerning Deputy Chief
Conners's conduct at the federal courthouse was admitted as
instance to use reasonable force to effect an arrest. Defendants,
however, solely argued that Officer Parker could not be liable for
the tort of assault because shouting and kicking a car generally do
not rise to the level of assault. We reject that position in
relation to the facts of this particular case, viewed in the light
most favorable to the jury verdict.
-39-
relevant to Conners's credibility. Any prejudice from the
admission of this testimony would again have been limited to the
incident involving Officer Nestor, in which Conners had been
involved. Neither side alleged that Deputy Chief Conners had
anything to do with the 2002 incident involving Officer Parker, and
Conners' testimony was limited to the 1993 incident. We therefore
hold that there was also no prejudice in admitting this testimony.
D. Plaintiffs' Cross-Appeal
We reject plaintiffs' cross-appeal of the district
court's grant of judgment to defendants on Michelle's substantive
due process and IIED claims against Officer Parker, arising out of
this same 2002 incident. The district court was correct. Even
taken in the light most favorable to the verdict, the evidence fell
far short of showing conscience-shocking conduct, a sine qua non
for the claim. Martinez v. Cui, No. 09-1471, 2010 WL 2404390, at
*8-9 (1st Cir. June 17, 2010).
The jury rejected plaintiffs' claims that Officer Parker
used excessive force against Michelle or unreasonably detained her;
the only remaining bases for finding Officer Parker engaged in
conscience-shocking conduct were Michelle's allegations that
Officer Parker kicked her car repeatedly and swore and screamed at
her for several minutes. This conduct may have been reprehensible,
but it falls short of conduct that is "so brutal and so offensive
to human dignity" that it gives rise to a substantive due process
-40-
violation. Chavez v. Martinez, 538 U.S. 760, 774 (2003) (quoting
Rochin v. California, 342 U.S. 165, 172 (1952)); see also Cummings
v. McIntire, 271 F.3d 341, 344 (1st Cir. 2001). That is so even
assuming arguendo that, as plaintiffs assert, Officer Parker's
actions were the product of a decade-long campaign of harassment.
That fact goes to the intentionality of Officer Parker's conduct on
that day in 2002, not its severity. "[T]he due process guarantee
does not entail a body of constitutional law imposing liability
whenever someone cloaked with state authority causes harm." County
of Sacramento v. Lewis, 523 U.S. 833, 848 (1998).19
The district court also properly held that defendants
were entitled to a verdict on the state IIED claim. The emotional
harms Michelle asserted as a result of the 2002 incident involving
Officer Parker were feeling "always nervous that I'm going to get
arrested," not being able to sleep, and thinking about the incident
"all the time" for several months. As we have discussed with
respect to the IIED claims in the first trial, these are not the
kind of "severe" emotional harms required to make out an IIED claim
under Massachusetts law. See Bailey, 576 N.E.2d at 1379.
19
This court has left open the possibility that severe
"verbal harassment and intimidation could violate due process."
Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 623 (1st Cir. 2000).
Engaging in a mutual shouting match in which both parties hurled
profanities at the other would simply not meet this standard even
if we were to assume arguendo that the theory was viable. Id. at
623-24 (holding that even more severe verbal harassment, including
alleged death threats by police officers, did not shock the
conscience); see also McConkie v. Nichols, 446 F.3d 258, 261-62
(1st Cir. 2006) (surveying cases).
-41-
IV.
Plaintiffs were awarded attorney's fees under 42 U.S.C.
§ 1988, solely for civil rights claims on which they prevailed in
the first trial, namely Mitchell's § 1983 false arrest claim
against Officer Tsoukalas and the related Monell liability for the
Town on this claim. See Kennedy v. Town of Billerica (Kennedy VI),
No. 04-cv-12357, slip op. at 6-7 (D. Mass. Jul. 24, 2008) (order
granting attorney's fees). Because we vacate and remand the jury
verdict on these claims and order a new trial, we also vacate the
district court's award of attorney's fees.
V.
We remand and direct the grant of a new trial to
defendants on Mitchell's § 1983 false arrest claim against Officer
Tsoukalas for the 2004 incident from the first trial and on the
accompanying Monell claim against the Town on the question of its
liability for this incident only. We order entry of judgment for
the defendants on the IIED claims by Mitchell against Officer
Tsoukalas and by Brian Jr. against Chief Rosa from the first trial,
as well as the state supervisory negligence claim against the Town.
We also order entry of judgment for defendants on Brian
Jr.'s IIED claim against Officer Nestor on the 1993 incident in the
second trial. We affirm judgment for Michelle Kennedy on her
assault claim against Officer Parker. We vacate the award of
-42-
attorney's fees under 42 U.S.C. § 1988. No costs are awarded.
So ordered.
-43-
Kennedy Ex Rel. B.D.K. v. Town of Billerica
Court: Court of Appeals for the First Circuit
Date filed: 2010-07-13
Citations: 617 F.3d 520
Copy CitationsCombined Opinion