2004 | Cited 0 times | D. Massachusetts | December 7, 2004


Plaintiff George Stoddard brings this action against policeofficer Richard Somers and the Town of Rockland, Massachusettsunder 42 U.S.C. §§ 1983 and 1988, as well as the Fourth andFourteenth Amendments to the United States Constitution.1In addition, Stoddard alleges that Somers committed the state lawtorts of intentional infliction of emotional distress, trespass,and assault and battery. The defendants have moved for summaryjudgment under Fed.R.Civ.P. 56.

I. BACKGROUND Dating back to 1997 or 1998, Stoddard and his next-doorneighbor, Louis Rubbo, have disputed the ownership of landbetween their homes where a driveway is located. The RocklandPolice Department has been called to the homes on more than 30occasions regarding this ongoing argument.

On April 21, 2002, the Rockland Police responded to a call fromRubbo. On the previous day, Stoddard's girlfriend, Deborah Kelly,parked her pickup truck adjacent to Rubbo's house in thedriveway. Kelly parked the truck on that portion of the drivewaybecause she claimed Rubbo's truck was parked on the side adjacentto Stoddard's house. On the morning of the 21st, a Sunday,Stoddard noticed that the tires on Kelly's truck were deflatedand that the valve stems were bent and pulled out. He thereforewent to the store to purchase new valve stems and, upon hisreturn, began inflating the tires. While Stoddard was engaged inthis task, Rubbo demanded that he move Kelly's truck. Stoddarddid not and, instead, after inflating the tires, he went to acoffee shop.

Upon Stoddard's return, he noticed that once again the tires onKelly's truck were flat. Consequently, a dispute between Stoddardand Rubbo broke out2 and Rubbo threatened to call a towtruck to move Kelly's truck. Sometime between 1:00 and 1:30 that afternoon, while Stoddard and Kelly were working in the yard ofStoddard's house, a tow truck arrived. Stoddard told the driverthat he had no right to move Kelly's truck and the driverindicated that he would therefore leave. Stoddard then saw Rubbotalking on his cellular phone; fifteen to twenty minutes latertwo police cars arrived. As all this was happening, Somers — apolice officer then off-duty — was working in his yard just downthe street. His wife told him that police cars had arrived atStoddard's house.

Out in front of his home, Stoddard began to speak to theofficers, one of whom noted that it appeared to him that thedriveway, based on its location, was on Rubbo's property.Therefore, Stoddard went to the backyard to tell Kelly that hertruck would be towed if she did not move it. Kelly returned tothe front of the house, where another officer confirmed that hertruck would be towed if she did not move it. Shortly thereafter,Rubbo moved his truck into the street and Kelly got into hertruck and backed it onto the lawn in front of Stoddard's house.There exists a dispute, however, regarding what happened as Kellymoved her truck. The defendants claim that "Kelly recklesslystruck [the officer] while backing her truck up," which Stoddarddisputes. At this point, Somers's wife, who was outside theirhouse, shouted to her husband that an officer had been hit by apickup truck down the street and needed help.

Consequently, Somers ran to Stoddard's house, arriving at the scene as one of the officers told Kelly she was under arrestand ordered her to get out of her truck. Kelly did notimmediately do so. Somers instructed the officer to break thedriver-side window with his police baton to enable them to openthe door. At this point, Stoddard went into his house, followedshortly thereafter by Kelly, who got out of her truck via thepassenger-side door. Kelly closed — but did not lock — the frontdoor to the house behind her. The officers on the scene,including Somers, followed her into the house.

It is undisputed that upon entering the house Somers struckStoddard. The parties dispute, however, the nature and purpose ofthis contact. Stoddard contends that Somers — immediately uponentering the house — punched him on the chin, pushed him over abookcase, and "`squished' him between [the] bookcase andhimself." Somers denies punching Stoddard, insisting that hesimply pushed Stoddard in an attempt to prevent him frominterfering with the arrest of Kelly. According to Stoddard, hischin bled for approximately two hours after the incident withSomers.

While or immediately after striking Stoddard, Somers said —using an expletive-laden comment — that he was "sick of" the factthat the police had to come to Stoddard's house so often.Stoddard was on the ground after Somers struck him and stayedthere until the officers left with Kelly. The parties disputewhether Stoddard was physically prevented from getting up by Somers.3

In the end, Kelly was arrested and charged with assault andbattery with a dangerous weapon, assault and battery on a policeofficer with a dangerous weapon, criminal trespass, and resistingarrest. She was convicted of criminal trespass and resistingarrest and acquitted of the remaining charges.

Stoddard filed a six-count complaint in this action on March10, 2003. Two counts raised Fourth Amendment claims, one based onSomers's alleged use of excessive force and the other claimingofficers illegally entered Stoddard's house. Three counts dealtwith alleged assault and battery, trespass, and intentionalinfliction of emotional distress by Somers. The plaintiff alsobrought a claim against the Town of Rockland. In responding tothe instant motion for summary judgment, the plaintiff hasdecided not to pursue his claim of intentional infliction ofemotional distress against Somers or any of his claims againstRockland. Summary judgment will be granted on those claimswithout further discussion. The following discussion deals onlywith the remaining claims raised against Somers, whom I willrefer to as the defendant.


A. Standard of Review Summary judgment is appropriate when "the pleadings,depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to judgment as a matter of law." Fed.R.Civ.P.56(c). A party seeking summary judgment must make a preliminaryshowing that no genuine issue of material fact exists. Nat'lAmusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995), cert. denied, 515 U.S. 1103 (1995). Once the movant hasmade such a showing, the nonmovant must point to specific factsdemonstrating that there is, indeed, a trialworthy issue. Id.

A fact is "material" if it has the "potential to affect theoutcome of the suit under the applicable law," Santiago-Ramos v.Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000),and a "genuine" issue is one supported by such evidence that "a`reasonable jury, drawing favorable inferences,' could resolve itin favor of the nonmoving party." Triangle Trading Co. v. RobroyIndus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting Smith v.F.W. Morse & Co., 76 F.3d 413, 428 (1st Cir. 1996))."[C]onclusory allegations, improbable inferences, and unsupportedspeculation," are insufficient to establish a genuine dispute offact. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8(1st Cir. 1990).

B. Section 1983 Claims

Stoddard raises two § 1983 claims, one based on the alleged illegal entry into his home and the other based on the claimedexcessive force used by the defendant. To establish a claim under§ 1983, Stoddard must prove: "(i) that the conduct complained ofhas been committed under color of state law, and (ii) that theconduct worked a denial of rights secured by the Constitution orlaws of the United States." Collins v. Nuzzo, 244 F.3d 246, 250(1st Cir. 2001). The parties have stipulated that the defendantwas acting under color of state law. Therefore, I concern myselfonly with the second half of the § 1983 inquiry when taking upStoddard's claims.

1. Qualified Immunity

The Fourth Amendment claims in this case must be analyzed inlight of the qualified immunity enjoyed by police officers.Pursuant to the doctrine of qualified immunity, "the police intheir arrest and detention functions are normally `shielded fromliability for civil damages' under federal law insofar as theirconduct does not violate `clearly established' rights of which `areasonable person would have known.'" Ringuette v. City of FallRiver, 146 F.3d 1, 5 (1st Cir. 1998) (quoting Harlow v.Fitzgerald, 457 U.S. 800, 818 (1982)). The immunity extends "sobroadly that `all but the plainly incompetent or those whoknowingly violate the law'" enjoy its protection. Hegarty v.Somerset County, 53 F.3d 1367, 1373 (1st Cir. 1995) (quotingHunter v. Bryant, 502 U.S. 224, 229 (1991)).

Courts are directed to take a two-step approach when assessing a claim of qualified immunity. First, they must bedetermined whether "the facts alleged show the officer's conductviolated a constitutional right." Saucier v. Katz,533 U.S. 194, 201 (2001). Then, "if a violation could be made out on afavorable view of the parties' submissions, the next, sequentialstep is to ask whether the right was clearly established." Id.

These steps should be resolved, whenever possible, beforetrial, see Roy v. City of Lewiston, 42 F.3d 691, 694 (1stCir. 1994) (citing Hunter, 502 U.S. 224), because it is "anentitlement not to stand trial or face the other burdens oflitigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)."The privilege is `an immunity from suit rather than a meredefense to liability; and like an absolute immunity, it iseffectively lost if a case is erroneously permitted to go totrial.'" Saucier, 533 U.S. at 200-01 (quoting Mitchell,472 U.S. at 526).

This broad protection from civil liability is a by-product ofpolicy considerations regarding the judicial role in assessingpolice conduct. See Hegarty, 53 F.3d at 1372-73. As theSupreme Court has made clear,

[w]hen government officials abuse their offices, `action[s] for damages may offer the only realistic avenue for vindication of constitutional guarantees.' On the other hand, permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties. Anderson v. Creighton, 483 U.S. 635, 638 (1987) (quotingHarlow, 457 U.S. at 814); see Hegarty, 53 F.3d at 1372-73.

I therefore turn to the claims in this case cognizant of thedangers posed both by judicial second-guessing of difficultpolice decisions and by preventing citizens from vindicatingclearly established rights.

2. Illegal Entry

The plaintiff contends in his complaint that the defendant'sentry into his home to assist in effectuating Kelly's arrest wasa violation of his Fourth Amendment rights. The defendant hasmoved for summary judgment on this issue and the plaintiff hasnot — at least in any easily discernible manner — opposed themotion as to this issue. Nevertheless, I will address the issueand, for the reasons stated below, find the defendant is entitledto summary judgment on the illegal entry claim.4

Stoddard enjoys the protection the Fourth Amendment providesagainst unreasonable searches and seizures of his home by the government. The government must be particularly careful insituations such as this, for in no place "is the zone of privacymore clearly defined than when bounded by the unambiguousphysical dimensions of an individual's home." Payton v. NewYork, 445 U.S. 573, 589 (1980); see Welsh v. Wisconsin,466 U.S. 740, 748 (1984) ("It is axiomatic that the `physical entryof the home is the chief evil against which the wording of theFourth Amendment is directed.'") (quoting United States v.United States District Court, 407 U.S. 297, 313 (1972)).Therefore, it is not surprising that "[a] warrantless searchinvolving an intrusion into someone's home is presumptivelyunreasonable. . . ." United States v. Beaudoin, 362 F.3d 60, 65(1st Cir. 2004).

Nevertheless, the presumption can be overcome. One exception tothe general warrant requirement is when the police are facing"exigent circumstances." See United States v. Soto-Beníquez,356 F.3d 1, 36 (1st Cir. 2004); Fletcher v. Town of Clinton,196 F.3d 41, 49 (1st Cir. 1999). "One consistently recognizedexample of exigent circumstances encompasses the `hot pursuit' ofa suspect the police reasonably believe to be a felon."5Soto-Beníquez, 356 F.3d at 36 (citing Minnesota v. Olson, 495 U.S. 91, 100 (1990) and Hegarty, 53 F.3d at 1374);2 John Wesley Hall, Search and Seizure § 22.27, at 35 (3d ed.2000) ("Hot pursuit is the oldest recognized justification for awarrantless entry to search for and arrest a suspect."). It hasbeen said that "[h]ot pursuit is really a melding of all theother recognized exigencies." 2 Hall, Search and Seizure § 22.27,at 35. Unfortunately, the component elements of the resultantexception are not crystalline.

The Supreme Court established in United States v. Santana,427 U.S. 38 (1976), and later refined in Welsh v. Wisconsin,466 U.S. 740 (1984), the analysis to be undertaken in "hotpursuit" cases.6 In Santana, an undercover officerarrested a woman who had just sold him drugs. After doing so, he asked where the moneythat he had previously given her was and she responded that hermother had it back at her house. When officers returned to thehome, they saw the suspect's mother standing in the doorway witha brown bag in her hand. As the officers approached the door, thewoman retreated into the house and the officers followed. One ofthe questions taken up by the Santana court was "whether heract of retreating into her house could thwart an otherwise properarrest." Santana, 427 U.S. at 42. The court "conclude[d] that asuspect may not defeat an arrest which has been set in motion ina public place, and is therefore proper under [United States v.Watson, 423 U.S. 411 (1976)], by the expedient of escaping to aprivate place." Id. at 43. The conclusion in Santana wasinformed, however, by the Court's concern "that any delay wouldresult in destruction of evidence." Id. at 43.

In contrast, the Supreme Court found in Welsh that the policehad not faced exigent circumstances allowing them to enter anapparently inebriated plaintiff's home without a warrant. Thepolice there had reason to believe that Welsh — who had left hiscar in an open field after being witnessed by a layperson drivingerratically — had been driving while intoxicated. The officerssuspected that Welsh had decided to walk home and, therefore,made their way to and entered his house without a warrant. One of their arguments regarding exigent circumstances — in additionto arguing that evidence (i.e., the defendant's blood alcohollevel) would be affected by delay and that public safety was atstake — was that they were in "hot pursuit." The Supreme Courtrejected this argument "because there was no immediate orcontinuous pursuit of the petitioner from the scene of thecrime." Welsh, 466 U.S. at 753.

These decisions do not provide a great deal of clarity whenapproaching "hot pursuit" cases, and so it has been left largelyto lower courts to determine the concept's boundaries. SeeJoyce v. Town of Tewksbury, 112 F.3d 19, 22 (1st Cir. 1997) (enbanc) ("The governing case law under the Fourth Amendment doesnot yield very many bright line rules."); see alsoBeaudoin, 362 F.3d at 70-71. While Santana can be read simplyto declare that a suspect may not evade a public arrest byducking indoors, it is not entirely clear whether that conclusionturned on a fact-specific concern regarding the destruction ofevidence. "Hot pursuit" is arguably an exception with its ownindependent rationale, where all that is required is the"immediate and continuous pursuit" of a petitioner. See Birtzv. Town of Lincoln, No. 95-286, 1996 U.S. Dist. LEXIS 10873, at*21 (D. Me. July 29, 1996) (noting that the Supreme Court definesthe exception "as `some sort of chase' set in motion in a publicplace"). As observed above, however, the Court's conclusionsarguably have been informed by arguments relating to thedestruction of evidence and concern for public safety. For example, in Soto-Beníquez, the First Circuit concluded: "Wehave previously held in a remarkably similar situation that anofficer who is looking for a fleeing suspect and has a reasonedbasis to think that he has found the suspect is justified inpursuing the suspect into a house." 356 F.3d at 36. The situationdescribed was one where the suspect was believed to be armed,thereby raising possible public safety concerns.

Arguably, then, "hot pursuit" comprises the other recognizedexigencies. It has been applied, however, as if it has anindependent foundation. For example, in St. Laurent v. Town ofSturbridge, No. 89-30005, 1990 WL 92470 (D. Mass. June 18,1990), a police officer spotted a car driving erratically andattempted to pull the driver over. The driver did not stop and,instead, continued driving to and then entered his house.

Applying Welsh and Santana to the stage of the drama as plaintiff entered the house and [the officer] was left standing at the foot of the driveway, [the officer] was empowered immediately to pursue the plaintiff and enter his home, without a warrant, if necessary to effect his arrest. Plaintiff was not justified in fleeing to his house and literally hiding under the bedclothes in response to [the officer's] initiative.St. Laurent, 1990 WL 92470, at *8. The same reasoning applieshere and, unlike in Santana, the suspect in this case, Kelly,was clearly outside the house at the time the police firstattempted to arrest her, thereby making the initial encounterclearly public. In addition, as noted in Santana, the relativebrevity and short distance of the pursuit does not automaticallyremove it from the exception. 427 U.S. at 42-43 (noting that"`hot pursuit' means some sort of a chase, but it need not be anextended hue and cry `in and about [the] public streets'" and"[t]he fact that the pursuit here ended almost as soon as itbegan did not render it any the less a `hot pursuit' sufficientto justify the warrantless entry into [his] house.").

Here, there is no indication either that Kelly was armed orthat there was evidence that could be destroyed. Under thesecircumstances, finding for the defendant suggests that theofficer's "hot pursuit" alone was sufficient — absent any otherindication of exigency — for entry into the house without awarrant. While this construction may be accurate, the facts inthis case do not require such a broad understanding of theexception. The officers were not simply pursuing Kelly for thesake of pursuit. The defendant believed that Kelly had assaulteda fellow officer moments earlier and personally observed herresist arrest. Both of these actions could reasonably lead him tobelieve — in the few moments he had to react — that Kelly mightpose a continued danger to himself and his fellow officers. Forexample, Kelly could have been retreating to the house in orderto arm herself. Even if such a possibility seems remote inretrospect, it would be inappropriate to second-guess anofficer's objectively reasonable, spur-of-the-moment decision insuch an instance.

Whether or not the "hot pursuit" exception applies, thedefendant is entitled to the protection of qualified immunity atthe very least. Given the less than clear state of the law on this issue and the facts in this case, the defendant cannot beexpected to know where the exact boundaries of the exception lie.In the end, the standards set for the officer, as well as thecourt, in hot pursuit cases is quite fact-specific. The FirstCircuit in Joyce, for instance, determined that "there arearguments to be made on both sides" in a case where the suspectwas confronted at the door to his house. 112 F.3d at 22. Thesuspect — for whom the police had an arrest warrant — was behinda screen door and refused to come out at the officers' request.The police took it upon themselves to enter the house andeffectuate his arrest. Based on its determination that the lawwas unsettled, the court extended the protection of qualifiedimmunity to the officers without deciding whether there was aconstitutional violation.7 Id. at 23.

Considering the relatively serious nature of the suspectedcrime and uninterrupted nature of the defendant's pursuit of Kelly into the plaintiff's house, I find that no violation of theplaintiff's Fourth Amendment rights occurred. Regardless of anultimate finding on the merits, Somers could reasonably believethat it was constitutional for him to enter the house without awarrant, thereby providing him the protection — at the very least— of qualified immunity.8 Whether the defendant — oncelegally inside the plaintiff's home — acted outside theConstitution when he struck the plaintiff is taken up in thefollowing section.

3. Excessive Force

Stoddard also contends that Somers used excessive force inviolation of 42 U.S.C. § 1983 during the encounter between themin his home on April 21, 2002.9 Use of excessive force bya police officer is a constitutional tort, Wilson v. Mendon,294 F.3d 1, 6 (1st Cir. 2002), and "all claims that law enforcementofficers have used excessive force . . . in the course of a? . . .`seizure' of a free citizen should be analyzed under the FourthAmendment and its `reasonableness' standard. . . ." Graham v.Connor, 490 U.S. 386, 395 (1989) (emphasis omitted). A courtmust carefully balance "`the nature and quality of the intrusionon the individual's Fourth Amendment interests' against thecountervailing governmental interests at stake." Id. at 396(quoting United States v. Place, 462 U.S. 696, 703 (1983))."`Not every push or shove, even if it may later seem unnecessaryin the peace of a judge's chambers,' violates the FourthAmendment." Graham, 490 U.S. at 396 (quoting Johnson v.Glick, 481 F.2d 1028, 1033 (1973)) (internal citation omitted).

In applying the reasonableness standard, courts should pay"careful attention to the facts and circumstances of eachparticular case, including the severity of the crime at issue,whether the suspect poses an immediate threat to the safety ofthe officers or others, and whether he is actively resisting orattempting to evade arrest by flight." Id. Reasonableness is anobjective standard,10 see id. at 397, and indetermining whether the Somers's actions were objectively reasonable, it must beremembered that "[t]he calculus of reasonableness must embodyallowance for the fact that police officers are often forced tomake split-second judgments — in circumstances that are tense,uncertain, and rapidly evolving — about the amount of force thatis necessary in a particular situation." Graham,490 U.S. at 396-97.

In addition, an officer's bad intentions will not make anobjectively reasonable use of force unconstitutional. See id.The Graham court did add, however, that "in assessing thecredibility of an officer's account of the circumstances thatprompted the use of force, a factfinder may consider, along withother factors, evidence that the officer may have harboredill-will toward the citizen." Id. at 399 n. 12.

Here, Somers insists that the plaintiff moved toward theofficer arresting Kelly. He contends that he struck Stoddard inan attempt to prevent him from interfering with the arrestingofficer. If Stoddard had conceded that he moved toward theofficer but for a benign purpose, then — even drawing inferencesin Stoddard's favor — Somers's actions begin to look much more reasonable as an objective matter. The police need not beall-knowing and flawless in their judgments regarding theintentions of suspects or others in the vicinity. SeeHegarty, 53 F.3d at 1379 n. 11 ("[O]mniscience is not thepresumed mind set with which an objectively reasonable policeofficer approaches life-endangering situations.").

But the record before me does not simply present alternativeinterpretations of a particular action. Instead, the partiesdispute whether the plaintiff took any action at all and, giventhe procedural posture of this case, I must draw inferences infavor of the plaintiff on this matter.11 Under Stoddard'sversion of events, he did not move, was clearly unarmed, and saidnothing. Stoddard contends that Somers attacked him immediatelyupon entering the house. When Stoddard asked Somers why he haddone so, Somers evidenced anger and frustration at Stoddard inhis response.

Under this version of events, Stoddard was not suspected of committing a severe crime, there was no observable, objectiveindication that he posed "an immediate threat to the safety ofthe officers or others," nor was he "actively resisting orattempting to evade arrest by flight." Nevertheless, according toStoddard, Somers punched him in the face, pushed him over abookcase, and held him in place. I therefore find — drawinginferences in favor of the plaintiff, as I must — that Somersused an excessive amount of force in detainingStoddard.12 See Jacobson v. City of Nashua, No.01-165, 2002 U.S. Dist. LEXIS 11443, at *11 (D.N.H. June 19,2002) ("[The plaintiff's] account of his arrest places himsitting passively under a tree in his backyard, respondingimmediately to the officer's command to show his hands, and thenbeing attacked by the police dog. If the jury were to creditJacobson's testimony, it could find that [the police officer]violated his Fourth Amendment right to be free from excessiveforce during arrest."). In fact, no amount of force — givenStoddard's account — would have been reasonable.13

The next step is to determine whether this constitutional rightwas clearly established. I do so cognizant that "[t]his inquiry . . .must be undertaken in light of the specific context of thecase, not as a broad general proposition." Saucier,533 U.S. at 201. Accordingly, the standard when addressing the question ofqualified immunity is that "[t]he contours of the right must besufficiently clear that a reasonable official would understandthat what he is doing violates that right." Anderson,483 U.S. at 635.

The application of qualified immunity is most appropriate whenthere is a dispute about the proper interpretation of particularactions taken by the party alleging excessive force. Forinstance, in Roy, the police used deadly force against an armedman who they claim was acting erratically. The plaintiff in Roycontended that he was about to put down the knives he was holdingin each hand, and, therefore, the police action was unreasonable.In these circumstances, the court would not permit a jury toconsider the plaintiff's claim that the situation could have beenhandled differently — that is, in essence, to second-guess police choices made in a dangerous situation. See Roy,42 F.3d at 695; see also Medeiros v. Town of Dracut,21 F. Supp. 2d 82, 87 (D. Mass. 1998) ("The question then is notwhether [the defendant's] use of deadly force was excessive, butwhether it was reasonable for an officer in [the defendant's]position to perceive plaintiff's actions as hostile rather thanmerely defensive.").

When there exist multiple explanations for observed actions, itis not the place of a court or, for that matter, a jury tosupplant a police officer's judgment. For example, in a casewhere a police officer shot a man who claimed that he had beendiving for cover, the court found: There are at least two reasonable explanations for plaintiff's conduct. On the one hand, diving for cover is a perfectly reasonable reaction on the part of an innocent person caught in a firefight. On the other hand, a culpable individual might dive for a weapon to prevent capture, or, worse, to take the offensive against the police. Confronted with two possible explanations, and the need to make a split-second decision that, either way, would have potentially life-threatening consequences, Richardson could not know why plaintiff moved as he did. This is particularly true where plaintiff's companion had just moved from a position of relative surrender to one that threatened the lives of the officers. Richardson made his choice. The excessive force and qualified immunity cases discourage us from assessing what a reasonable officer could or could not believe beyond asking whether his conduct was plainly incompetent.Medeiros, 21 F. Supp. 2d at 88.

Again, however, as mentioned in addressing whether anunreasonable amount of force was used by the police, the handlingof the situation is only of minor import because there is a very real dispute about the nature of the situation itself — namely,what, if anything, Stoddard did in the presence of the arrestingofficers. See Gonzalez-Perez v. Gomez-Aguila, 312 F. Supp. 2d 161,170-71 (D.P.R. 2004) (finding that the defendantswere "not entitled to the qualified immunity defense" where there was afactual dispute about whether a suspect "was in fact carrying andfiring an AK-47"). If Stoddard's version of events is credited,no amount of force would be reasonable, thereby making immaterialthe dispute over the extent of the contact. Cf. Iacobucci v.Boulter, 193 F.3d 14, (1st Cir. 1999) (where the court foundthat defendants were not entitled to qualified immunity when theyhandcuffed and arrested a man who "was in a public area of apublic building; had a right to be there; . . . and neither spoketo nor molested them in any way"). For the concern in such casesis "not with proof of raw facts but whether, on known or assumedfacts, police behavior can be deemed egregious enough to submitthe matter to the jury." Roy, 42 F.3d at 696.

The defendant attempts to make this aspect of the case turn onan officer's freedom to interpret actions, rather than on — as itactually does — whether any actions were taken by the plaintiff.Somers implies that he is basing his arguments on inferencesdrawn in Stoddard's favor but, in fact, does the opposite. Somerswrites that "even assuming that, as Stoddard claims, Somersstruck him once on the chin — without causing any type of seriousinjury — in the course of attempting to keep him away from theofficers arresting Kelly, Stoddard cannot show that Somers' alleged conduct was so plainly in violation ofclearly-established constitutional requirements as to waive hisentitlement to qualified immunity." (Def.'s Mem. at 6.) Thisstatement assumes that Somers had reason to think Stoddard wasgoing to interfere with the arrest. To come to this conclusionrequires a finding at this stage that Stoddard was a threat insome objectively observable way, in essence, resolving whether hemoved or said anything that would indicate he was a threat. Suchfacts are clearly in dispute and therefore cannot support summaryjudgment for the defendant on this matter.

Here, the case is one of whether he acted a certain way, notto what extent or why he did so. In this sense, it isdistinguishable from a case such as Roy in which a court shouldrefuse to second-guess an officer's response to particularactions taken by a suspect. Stoddard contends that he neithermoved at all, nor said anything, and that he was neither armednor holding anything. There is no indication that Stoddard washimself suspected of a crime, nor was there any backgroundknowledge that would lead an officer to be concerned for hissafety in Stoddard's presence.

If inferences are properly drawn in Stoddard's favor, Somerswould be hard-pressed to find a justification for his actions —indeed he doesn't try to. For purposes of summary judgment, inferences are so drawn14 and, therefore, Ifind that Somers does not enjoy the protection of qualifiedimmunity at this stage of the proceedings and reserve thequestion of qualified immunity for a later date. See Wigginsv. Rhode Island, 326 F. Supp. 2d 297, 310 (D.R.I. 2004) ("Sincethe facts that gave rise to the altercation are neither know tothis Court nor (at this procedural stage) can be assumed not toreflect Plaintiff's view, the Court must defer the resolution ofthe Officers' assertion of the qualified immunity defense as tothe claim of excessive force."). I do so fully aware thatwhenever possible, qualified immunity should be resolved beforetrial. See Roy, 42 F.3d at 694. It is not possible here,however, at least not without "find[ing] facts or draw[ing]inferences in favor of the [defendant] and against [theplaintiff]. This, of course, would run afoul of the summaryjudgment standard." Wiggins, 326 F. Supp. 2d at 309; seeKelley v. LaForce, 288 F.3d 1, 7 (1st Cir. 2002) ("Although`[w]e recognize that the immunity question should be resolved,where possible, in advance of trial,' pre-trial resolutionsometimes will be impossible because of a dispute as to materialfacts.") (quoting Swain v. Spinney, 117 F.3d 1, 10 (1st Cir.1997)).15 Although qualified immunity is designed to create a shield ofprotection permitting officers to make necessary decisions inoften dangerous situations, the shield has limits. To extend theprotection of qualified immunity to this case would be to imposea nearly insurmountable burden on the plaintiff. If eventsactually unfolded as the plaintiff contends but immunity weregranted at the summary judgment stage — thereby precluding afact-finder from resolving the key factual disputes — there wouldrarely be recourse for a plaintiff when it is his testimonyagainst the testimony of the police. To apply immunity here wouldsubvert the summary judgment paradigm, flipping the inferencesdrawn and the allocation of burdens. That is not the purposeserved by the doctrine. In the end, a jury may find Stoddard'sversion of events not credible. At this stage, however, it issufficient to survive summary judgment.

In sum, conceptualizing a jury drawing inferences in favor ofthe plaintiff, I cannot find that an objectively reasonableofficer would deem it permissible to punch, hold down, and abusea bystander to an arrest who had neither moved nor spoken.

III. CONCLUSION For the reasons set forth more fully above, the defendants'motion for summary judgment as to the § 1983 claim of illegalentry and the state common law claim of trespass is herebyGRANTED. The defendants' motion for summary judgment as to the §1983 claim of excessive force and the common law claim of assaultand battery is hereby DENIED.

The plaintiff no longer pursues his claim for intentionalinfliction of emotional distress nor any claims against thedefendant-Town of Rockland. Consequently, the defendants' motionfor summary judgment as to those claims is hereby GRANTED.

1. The plaintiff asserts the claims in this fashion and thedefendants respond in kind. Therefore, "this opinion adheres tothe conventional and convenient (though technically imprecisepractice) of referring to [the] underlying Bill of Rightsprovision? (which of course impose[s] limitations only on thefederal government) rather than solely to the FourteenthAmendment (which applies to state actors and has been construedto embody such Bill of Rights guaranties)." McNamara v. Hess,67 Fed. Appx. 139, 141 n. 1 (3d Cir. 2003).

2. The defendants claim that both Stoddard and Rubbo "againexchanged angry words" at this point. The plaintiff, however,contends that only Rubbo used "angry" words.

3. Although it is disputed whether Somers physically preventedStoddard from getting up, Somers admittedly ordered him to staydown while Kelly was being handcuffed and taken into custody.

4. Stoddard has brought a trespassing claim as well. Toestablish a trespassing claim under Massachusetts law, theplaintiff "must prove two elements: (1) that the plaintiff hadactual possession of the property and (2) that defendant[`s]entry was intentional and illegal." Donovan v. Fafard RealEstate and Dev. Corp., 11 Mass. L. Rptr. 35, 2000 WL 16766, at*6 (Mass.Super. 1999) (citing New England Box Co. v. C & RConstr. Co., 313 Mass. 696, 707 (1943)). If the defendantentered the house pursuant to the exigent circumstances exceptionto the warrant requirement in order to assist in the arrest ofKelly, it cannot be found that he entered the home illegally.Because I find that the defendant entered Stoddard's homelegally, the defendant cannot be found liable for trespassing.

5. In order to benefit from the "hot pursuit" exception, thedefendant must have "reasonably believe[d] [Kelly] to be afelon." The defendant was under the not-unreasonable impressionthat Kelly struck a fellow officer with her car shortly beforehis arrival on the scene. The defendant himself observed Kellyresist arrest. Stoddard disputes that Kelly ever struck theofficer with her truck, but does not directly raise this issue inhis opposition. Therefore, even drawing inferences in theplaintiff's favor, there seems to be no real dispute that Somershad probable cause to believe that Kelly had struck a fellowofficer with her truck and then resisted a valid arrest.

6. The issue of warrantless searches for a suspect in athird-party's home has also been addressed by the Supreme Court.See Steagald v. United States, 451 U.S. 204 (1981). As theFirst Circuit has noted: When the police enter the home of the person they wish to arrest, the arrest warrant suffices for entry if `there is reason to believe the suspect is within.' But even when armed with an arrest warrant, police must generally have a search warrant to enter lawfully a third person's home. However, a third person's house may be lawfully entered without a search warrant if exigent circumstances exist, and exigent circumstances include `hot pursuit.'Joyce v. Town of Tewksbury, 112 F.3d 19, 21-22 (1st Cir. 1997)(en banc) (internal citations omitted). Whether Stoddard's home can properly be considered a "thirdperson's home" with respect to Kelly is not entirely clear fromthe record evidence. The record indicates that Kelly lives atStoddard's home, but the issue is not developed by the parties.In any event, the police are permitted to enter the house withouta warrant in the face of exigent circumstances whether or not sheis deemed to live there. Kelly's status in the home would onlyaffect her standing to sue regarding the illegal entry by thepolice, and not the result of the analysis regarding exigentcircumstances in this case brought by Stoddard.

7. The court in Joyce found that "[b]ecause it is not evenclear that there was a violation — a point that we do not decide— there certainly was no violation so patent as to strip theofficers of qualified immunity." Joyce, 112 F.3d at 23. Irecognize that here — as in Joyce — there are strong argumentson both sides. Nevertheless, I choose to decide whether there hasbeen a violation because I do not deem the facts here to presentas close a case as was found in Joyce. Moreover, in a body ofcase law with few bright-line rules, this case certainly resideswith those in which an officer is protected by the doctrine ofqualified immunity, where an objectively reasonable officer couldbelieve they were acting pursuant to the law. See Hegarty v.Somerset County, 53 F.3d 1367, 1381 (1st Cir. 1995) ("Wedetermine only whether the discretionary decisions made by thedefendants were within the broad range of reasonable conduct tobe expected from competent police officers . . . in likecircumstances.") (emphasis added).

8. Delving more deeply into the qualified immunity analysis, Iconclude "an objectively reasonable police officer could havebelieved . . . that `exigent circumstances' . . . existed" forthe warrantless entry into the plaintiff's home in order toeffectuate the arrest of Kelly. Hegarty, 53 F.3d at 1374. Asnoted above, I ultimately find the defendant's entry to beconstitutional on the merits. Therefore, an objectivelyreasonable officer could have believed that entering the housewas legitimate regardless of the ultimate finding by this court.See Saucier v. Katz, 533 U.S. 194, 206 (2001) (finding that"even if a court were to hold that the officer violated theFourth Amendment by conducting an unreasonable, warrantlesssearch, Anderson still operates to grant officers immunity forreasonable mistakes as to the legality of their actions.").

9. Stoddard has also raised a common law assault and batteryclaim against Somers in this suit. Under Massachusetts law, if anofficer is authorized to make an arrest, he or she "may use `suchforce as is reasonably necessary to effect the arrest.'" Dean v.City of Worcester, 924 F.2d 364, 369 (1st Cir. 1991) (quotingJulian v. Randazzo, 380 Mass. 391, 396 (1980)). Consequently,if the defendant did not violate Stoddard's Fourth Amendmentrights, he cannot be found liable for assault and battery. SeeJesionowski v. Beck, 937 F. Supp. 95, 105 (D. Mass 1996)(concluding that "the plaintiff's assault and battery claims willrise or fall in the same manner as his Fourth Amendment claims");Dean, 924 F.2d at 369. On the other hand, if the defendant is found to have violatedthe Fourth Amendment and, as here, is not protected by qualifiedimmunity, the assault and battery claim will survive summaryjudgment as well. See Aceto v. Kachajian, 240 F. Supp. 2d 121,127 (D. Mass. 2003) (noting that under Massachusettslaw police officers may use the force reasonably necessary toeffectuate an arrest "but may not go `beyond what was reasonablynecessary to secure both their own safety and the safety of thegeneral public'"); see also Rosenfeld v. Egy, No.01-10730-DPW, 2003 U.S. Dist. LEXIS 1302, at *23 n. 11 (D. Mass.Jan. 29, 2003) (noting that "suits against police officers forintentional torts are not barred by the Massachusetts Torts ClaimAct, but the standard for liability can be slightly different"because "[a] police officer has `the right to use the force whichis reasonably necessary to overcome physical resistance by theperson sought to be arrested'") (quoting Julian v. Randazzo,380 Mass. 391, 396 (1980)).

10. Although reasonableness is at the heart of thedetermination both of whether a constitutional violation occurredand also whether qualified immunity applies, the analyses aredistinct. In Anderson [v. Creighton, 483 U.S. 635 (1987)], a warrantless search case, we rejected the argument that there is no distinction between the reasonableness standard for warrantless searches and the qualified immunity inquiry. We acknowledged there was some "surface appeal" to the argument that, because the Fourth Amendment's guarantee was a right to be free from "unreasonable" searches and seizures, it would be inconsistent to conclude that an officer who acted unreasonably under the constitutional standard nevertheless was entitled to immunity because he "`reasonably' acted unreasonably." This superficial similarity, however, could not overcome either our history of applying qualified immunity analysis to Fourth Amendment claims against officers or the justifications for applying the doctrine in an area where officers perform their duties with considerable uncertainty as to "whether particular searches or seizures comport with the Fourth Amendment." With respect, moreover, to the argument made in Anderson that an exception should be made for Fourth Amendment cases, we observed "the heavy burden this argument must sustain to be successful," since "the doctrine of qualified immunity reflects a balance that has been struck `across the board.'" We held that qualified immunity applied in the Fourth Amendment context just as it would for any other claim of official misconduct.Saucier, 533 U.S. at 203 (internal citations omitted). The First Circuit has noted similarly in the context ofprobable cause and qualified immunity determinations: "A stateactor may be entitled to qualified immunity for rights-violatingconduct as long as he had an objectively reasonable basis forbelieving that his conduct would not abridge the rights ofothers." Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999)."This means, of course, that the reasonableness standardsunderlying the probable cause and qualified immunity inquiriesare not coterminous." Id.

11. If there were no dispute regarding the physical actions ofthe plaintiff (even if a dispute remained about theirimplication), the plaintiff's contention that he was not asuspect would miss the mark. If Stoddard's movements reasonablycould be deemed evidence of his intent to interfere with Kelly'sarrest, the defendant would have probable cause to physicallydetain him, not only to protect a fellow officer and effectuateKelly's arrest, but also to effectuate the arrest of Stoddardhimself for resisting arrest. Massachusetts law provides that"[a] person commits the crime of resisting arrest if he knowinglyprevents or attempts to prevent a police officer, acting undercolor of his official authority, from effecting an arrest of theactor or another. . . ." Mass. Gen. Laws ch. 268, § 32B(a)(2004) (emphasis added).

12. To come to this conclusion, I need not consider therelevance of the defendant's epithet-laden comment about hisfrustration with the plaintiff's calls to the police. Thedefendant's alleged comment would not in itself be sufficient toturn an objectively reasonable use of force into one that isdeemed unreasonable. Nevertheless, as already noted, "inassessing the credibility of an officer's account of thecircumstances that prompted the use of force, a factfinder mayconsider, along with other factors, evidence that the officer mayhave harbored ill-will toward the citizen." Graham v. Connor,490 U.S. 386, 399 n. 12 (1989). This question of credibility willbe left for the jury, because I find that applying the summaryjudgment standards to the factual disputes in this case, thedefendant's actions were unreasonable notwithstanding anything hemight have said.

13. Somers contends that excessive force cannot be foundwhere, as here, there is no evidence that the plaintiff sufferedsubstantial injuries. That is not the case. While "[t]he severityof injuries resulting from police intervention may be consideredin ascertaining the reasonableness of the degree of force used,"Herrera v. Davila, 272 F. Supp. 2d 154, 161 (D.P.R. 2003), itcannot be said that a plaintiff may only recover if he haslasting, observable injuries resulting from the police conduct.

14. While I recognize that I need not credit "bald assertions"in considering this motion, such description of the plaintiff'sclaims by the defendant is not apt. In situations like this,plaintiffs may have no other sources of evidence than their ownaccount of what occurred.

15. The Kelley court added: We have previously noted that the Supreme Court has not clearly indicated whether the judge may act as fact-finder when there is a factual dispute underlying the qualified immunity defense or whether this function must be fulfilled by a jury. See St. Hilaire v. City of Laconia, 71 F.3d 20, 24 n. 1 (1st Cir. 1995). In any event, when facts are in dispute, "`we doubt the Supreme Court intended this dispute to be resolved from the bench by fiat.'" Id. (quoting Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir. 1991).Kelley v. LaForce, 288 F.3d 1, 7 n. 2 (1st Cir. 2002).

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