333 F.Supp.2d 1 (2004) | Cited 1 time | D. Massachusetts | September 1, 2004


Pursuant to Fed R. Civ. P. 56(c), Robert Levine ("Plaintiff")has filed a motion for partial summary judgment in this civilrights action brought against Office Deborah Clement of theHolyoke Police Department ("Defendant"). Plaintiff's motion ispartial in two respects. First, his motion targets only three ofthe four counts contained in the complaint: Count I, alleging aviolation of his First Amendment right to freedom of speech;Count II, alleging a violation of his Fourth Amendment right tobe free from unreasonable seizure of his person; and Count III,alleging false imprisonment.1 Second, Plaintiff seeks adeclaratory judgment establishing liability only with regard tohis First and Fourth Amendment rights, putting off thedetermination of damages for trial.

For the following reasons, Plaintiff's motion will be allowedin part. A declaratory judgment will be entered establishingDefendant's liability with respect to Plaintiff's civil rightsclaims, Counts I and II, both of which arise pursuant to42 U.S.C. § 1983. Plaintiff's motion with regard to Count III, falseimprisonment, will be denied.


The following facts are taken verbatim from Plaintiff'sstatement of undisputed facts: On March 23, 2003, the City of Holyoke held it's [sic] annual St. Patrick's day parade. The parade was large, and attended by large numbers of members of the public. It took more than two hours to pass the reviewing stand The parade included marching units, marching bands, fire trucks with sirens activated, and cheering spectators. [Plaintiff] attended the parade with his adult son, . . . watching the parade from the intersection of High and Dwight Streets. At some point during the parade, a Westfield marching unit passed the intersection of High and Dwight, carrying a Canadian flag as part of its display. As the Westfield marching unit passed the intersection of High and Dwight, [Plaintiff] shouted a question, asking why there was a Canadian flag being carried in the parade, and stating, among other things, that they "don't support us." [Plaintiff]'s comment was intended as a comment on the lack of Canadian support for U.S. military action in Iraq, and was so understood by his son, and by [Defendant] who overheard the comment from a few feet away. [Defendant] told [Plaintiff] that he had a right to his opinion, but could not express it at that time, and in that place, and in the manner in which he was expressing it. [Plaintiff] disputed with [Defendant] whether his expression of opinion, and the manner in which he was expressing it, was impermissible. [Defendant] left the immediate area of the intersection, and reported to Officer Jane Deshais, a half a block away, that [Plaintiff] was loudly expressing his ideas about the war. When both officers returned to the intersection, [Plaintiff] was again asked to stop expressing his opinion at that time and place, in the manner in which he was expressing it. [Plaintiff] refused to comply with this request that he cease expressing his opinion in the manner he was expressing it, and [Defendant] decided on her own, without further discussion with Officer Deshais, to arrest [Plaintiff] for Disorderly Conduct. [Defendant] arrested [Plaintiff] for Disorderly Conduct [pursuant to Mass. Gen. L. ch. 272, § 53]. He was handcuffed in the crowd, and transported by police car to the Holyoke Police Station, booked, and held in the lockup of a period of time until he could be bailed out. He offered no physical resistance after he was informed he was under arrest. [Defendant] based her decision that there was probable cause to arrest for disorderly conduct on "obscenities"2 contained in [Plaintiff]'s statements about the Canadian flag; the fact that some "people" stopped looking at the parade and looked at [Plaintiff], asking him to be quiet; and that she had given him "numerous chances" to stop disrupting the crowd. [Defendant] filed a report of the incident. She also filed an application for a criminal complaint for disorderly conduct. [Plaintiff] appeared in Holyoke District Court for arraignment, on or about May 19, 2003, and the charge of Disorderly Conduct was dismissed on the motion of defense counsel. At all times material to this lawsuit, [Defendant] was a police officer, employed by the City of Holyoke, in the County of Hampden, Massachusetts, and acting under color of law.(Document 16, Exhibit A, ¶¶ 1-19 (internal citations omitted).)

Defendant does not dispute the accuracy of any facts presentedby Plaintiff. She has, however, presented two additional facts which the courtwill consider in a light most favorable to her: (1) thatPlaintiff used the words "fuck" and "fucking," see n. 2, and (2)that Plaintiff challenged her to arrest him, that is, he statedthat Defendant should place him under arrest if she did not likehis opinion.


A court may grant summary judgment pursuant to Fed.R. Civ. P.56(c) if "there is no genuine issue as to any material fact" and"the moving party is entitled to a judgment as a matter of law."Although it is less common, a plaintiff may move for summaryjudgment, so long as he asserts that no genuine issue of materialfact exists. Once the moving party establishes the absence of anygenuine issue of material fact, the burden is on the opposingparty to point to specific facts demonstrating that there is,indeed, a trialworthy issue. National Amusements, Inc. v. Townof Dedham, 43 F.3d 731, 735 (1st Cir. 1995). At bottom, mattersof law are for the court to decide at summary judgment. Blackiev. Maine, 75 F.3d 716, 721 (1st Cir. 1996).


Partial summary judgment is appropriate in this case. Plaintiffhas established that there are no issues of material factregarding the two elements of his section 1983 claims, namely,that Defendant deprived him of rights secured by the Constitutionand that such deprivation occurred under color of law. SeeAdickes v. S.H. Kress & Co., 398 U.S. 144, 150 (1970). Further,Defendant herself admits that her actions with regard toPlaintiff were carried out under "color of law," that is, underthe authority of the Holyoke Police Department. (See Answer ¶ 4.)Based on the facts viewed most favorably to Defendant, the court finds that Defendant indeedviolated Plaintiff's First and Fourth Amendment rights and thatthe defense of qualified immunity is unavailable.

A. Fourth Amendment

The Fourth Amendment protects citizens from arrests that arenot based on probable cause. See U.S. Const. amend. IV. As willbe described, it is clear that Plaintiff's arrest for violatingthe disorderly conduct statute, Mass. Gen. L. ch. 272, § 53, wasnot grounded in probable cause and, therefore, violatedPlaintiff's Fourth Amendment rights. Defendant conceded as muchduring oral argument, contending only that she is entitled toqualified immunity.

Defendant's concession is entirely appropriate. In 1967, theMassachusetts Supreme Judicial Court ("SJC"), recognizing thefacial unconstitutionality of Mass. Gen. L. ch. 272, § 53,preserved the statute through judicial construction byincorporating therein the Model Penal Code's definition ofdisorderly conduct. See Alegata v. Commonwealth,231 N.E.2d 201, 211 (Mass. 1967). As described in Alegata, the Model PenalCode states as follows: A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or tumultuous behavior; or (b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or (c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.Id. Due to constitutional limitations on subsections (b) and(c),3 and no allegation of "fighting," "threatening" or"violent" behavior in the instant case, Plaintiff's language mustbe evaluated in the context of the portion of subsection (a)describing "tumultuous behavior." Because "neither a provocativenor a foul mouth transgresses the statute," one may be arrestedfor tumultuous behavior only when "the conduct . . . disturb[s]through acts other than speech." Commonwealth v. LePore,666 N.E.2d 152, 155 (Mass.App. Ct. 1996). No disruptive acts havebeen alleged here. Thus, unless Defendant is qualifiedly immune,see infra, Plaintiff's motion must be allowed with respect toCount II.

B. First Amendment

Defendant also conceded at oral argument that she violatedPlaintiff's First Amendment right to freedom of speech, againarguing only that she is entitled to qualified immunity. As withPlaintiff's Fourth Amendment claim, the court deems Defendant'sFirst Amendment concession warranted.

"[T]he First Amendment means that government has no power torestrict expression because of its message, its ideas, itssubject matter, or its content." Police Dep't of Chicago v.Mosley, 408 U.S. 92, 95 (1972). The Supreme Court has established a high level of protection for "the expression of adesire for political change." Meyer v. Grant, 486 U.S. 414, 421(1988). Thus, even though the government can restrict the time,place and manner an idea is expressed, "such regulation isparticularly circumscribed when the speech occurs in a placewhere public speech is usually allowed," Musso v. Hourigan,836 F.2d 736, 742 (2d Cir. 1988) (citing Board of Airport Comm'rs v.Jews for Jesus, Inc., 482 U.S. 569, 572 (1987), for example, atan open school board meeting, see id. As Magistrate JudgeRobert B. Collings recently observed in a matter relevant to thecase at hand, individuals protesting the Iraq war at the 2003South Boston Saint Patrick's Day Parade "would have been wellwithin their First Amendment rights" if they "had gathered at aspecified point along the Parade route and voiced their opinionspeacefully." South Boston Allied War Veterans Council v. City ofBoston, 297 F. Supp. 2d 388, 395 (D. Mass. 2003).

To be sure, as Plaintiff acknowledges, his speech — althoughpolitical and expressed along a parade route — may nonetheless beprosecuted as disorderly conduct under Mass. Gen. L. ch. 272, §53, if it is properly classified as "fighting words." Seegenerally Cohen v. California, 403 U.S. 15 (1971). Defendantconcedes, however, that Plaintiff's language did not fall intothis category. Moreover, thorough research provided byPlaintiff's counsel illustrates that the classification oflanguage as "fighting words" is limited to "those which by theirvery utterance inflict injury or tend to incite an immediatebreach of the peace." Chaplinsky v. New Hampshire,315 U.S. 568, 572 (1942). See also A Juvenile, 334 N.E.2d at 624-25(citing cases). Here, however, as in Cohen, the simple use ofobscenities did not transform Plaintiff's "offensive" speech into fighting words. Accordingly, unlessqualified immunity applies, Plaintiff's motion must be allowedwith respect to Count I.

C. Qualified Immunity

Of all the issues raised by Plaintiff in his motion for partialsummary judgment, qualified immunity is the only one Defendantaddresses. Indeed, among her many concessions, Defendantacknowledged at oral argument that a finding of liability wouldresult if the qualified immunity defense was unavailable. Shealso conceded that the qualified immunity issue is ripe and thatno additional materials were needed to make such a determination.Defendant simply maintained that she is qualifiedly immune fromsuit.

Defendant's assertion to the contrary, the court concludes thatqualified immunity does not apply. To determine whether qualifiedimmunity is available to a particular defendant at a particulartime requires a three part inquiry. See Hatch v. Dep't forChildren, Youth & Their Families, 274 F.3d 12, 20 (1st Cir.2001). First, it must be established that the plaintiff hasalleged the violation of a constitutional right. Id. In thiscase, as indicated, it is undisputed that Plaintiff is allegingthe violation of his First and Fourth Amendment rights. Second,it must be established that the contours of the right allegedwere sufficiently established at the time of the allegedviolation. Id. Defendant has conceded this point as well. Assummarized earlier, debate regarding what constitutes disorderlyconduct under Mass. Gen. L. ch. 272, § 53, as opposed toconstitutionally protected behavior, has been ongoing since 1967when the SJC itself admitted that § 53 was faciallyunconstitutional. See Alegata, 231 N.E.2d at 211. Finally, for qualified immunity to be an applicable defense,the court must determine that an objectively reasonable officialwould have believed that the action taken or omitted violatedthat right. Hatch, 274 F.3d at 20. Although Defendant attemptsto argue this point, the court concludes that, given the facts ofthis case, an objectively reasonable official would have realizedthere was no probable cause to arrest Plaintiff. To be sure,Defendant implies that an ambiguity exists between a socalled"actual probable cause" standard and an "arguable probable cause"standard. However, none of the cases she cites in this regard,all of which are from outside this circuit, concern an officialacting under circumstances anywhere similar to the case at bar.Accordingly, Defendant has not proven that she is protected byqualified immunity.


For the reasons stated, the court hereby ALLOWS Plaintiff'smotion for partial summary judgment as follows: a declaratoryjudgment will enter reflecting the violation of Plaintiff's Firstand Fourth Amendment rights, thereby establishing Defendant'sliability as to Counts I and II. In all other respects,Plaintiff's motion for summary judgment will be DENIED.Specifically, Plaintiff has not sufficiently argued, let alonedemonstrated for summary judgment purposes, that Defendant'sviolation of his Fourth Amendment rights equates to a falseimprisonment under Massachusetts law.


1. The fourth count, alleging malicious prosecution, is notaddressed in the context of Plaintiff's motion.

2. Defendant testified at her deposition that Plaintiff madereference to the "fucking Canadian flag," and stated that hecould say "whatever the fuck" he wanted to. Defendant alsotestified that Plaintiff used no other obscenities. OfficerDeshais, who was present at the arrest and standing besideDefendant, recalls hearing no obscenities. Plaintiff and his sondeny that he used the words in question even once, but Plaintiffdoes not dispute these added facts for purposes of his motion.

3. Nearly two decades ago, the SJC struck down subsection (b)as unconstitutionally overbroad and held that subsections (a) and(c) must only be construed as covering conduct, not activitiesinvolving the "lawful exercise of a First Amendment right." SeeCommonwealth v. A Juvenile, 334 N.E.2d 617, 628 (Mass. 1975).

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