Foley v. Kiely, et al

Filing 920100415

Opinion

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var WPFootnote1 = 'Though DiPientrantonio is still named as a defendant in this\
action, there is no evidence that she took any action with regard\
to Foley other than signing the paperwork that caused him to be\
charged with being a fugitive from justice. This she did in her\
role as the police prosecutor for the Framingham State Police\
Barracks. Foley does not mention DiPientrantonio in either his\
opening or reply brief, and we thus deem his claims against her\
waived. \
'

var WPFootnote2 = 'Defendants refer to Norumbega as "Norumbega Duck Pond" while\
Foley calls it "Nurembega Park."\
'

var WPFootnote3 = 'Kiely and Collins assert that they also asked Foley for his\
middle initial, and Foley stated that it was "F." Foley claims,\
however, that he did not give a middle initial, and for purposes of\
summary judgment, we accept Foley\'s version of the facts.\
'

var WPFootnote4 = 'Foley\'s own deposition is unclear on this point. At one\
point he states that he told the troopers that he did not know what\
his Social Security number was. At another point, he states that\
he "refused" to give his Social Security number. When asked why he\
refused, he states "[p]rivate information. I didn\'t want to."\
'

var WPFootnote5 = 'We note that when Foley was asked at his deposition how long\
he was with the troopers in the parking lot of the pond before he\
was handcuffed and placed in the cruiser, he said "[b]etween 10 to\
20 minutes. Maybe more. I can\'t remember exactly."\
'

var WPFootnote6 = 'Metropolitan District Commission ("MDC") regulations provide\
that "[n]o person is allowed on MDC Reservations except during the\
hours of dawn to dusk unless specified otherwise at the site, or by\
permit." 350 CMR 2.01(2)(b). We note that there is some question\
as to whether Norumbega is, in fact, under the jurisdiction of the\
MDC and whether there were, in fact, signs posted at Norumbega\
indicating the park\'s closing time on the day in question. \
Regardless, we find that it was reasonable for Kiely and Collins to\
believe that Norumbega, a public park, closed at dark, and that it\
was signed accordingly. Foley accepts Kiely\'s statement that at\
some point there were signs posted at the Norumbega parking lot\
which indicated that parking after dark was not allowed. But he\
points to the transcripts of Internal Affairs interviews taken on\
February 27, 2006, when Kiely and Collins indicated that at some\
point the signs were removed by vandals. Collins indicated in his\
interview that he did not recall whether the signs were posted on\
the night in question, and Kiely was not queried as to whether the\
signs were there that night.\
              While it is possible that the signs could have been removed or\
vandalized prior to December 4, 2004, it would have been reasonable\
for the troopers to believe, on the day in question, that the signs\
were, in fact, posted. Thus, their suspicion that Foley was\
trespassing was not unreasonable. See Mass. Gen. Laws ch. 266, §\
120 ("Whoever, without right enters or remains in or upon the . .\
. improved or enclosed land . . . of another . . . after having\
been forbidden so to do by the person who has lawful control of\
said premises, whether directly or by notice posted thereon . . .\
shall be punished by a fine of not more than one hundred dollars or\
by imprisonment for thirty days or both such fine and\
imprisonment.")\
'

var WPFootnote7 = 'While Foley claims that the warrant was not first discovered\
until 11:37 p.m., the record indicates otherwise. \
'

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