Alicea v. Wilcox et al

Filing 48

Judge Richard G. Stearns: ORDER entered denying 42 Motion to Present a Unified Non-bifurcated Trial. (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 09-CV-12231-RGS
EUSEBIO ALICEA
v.
KYLE R. WILCOX,
JOHN J. ROMERO,
CHIEF OF POLICE
MICHAEL SULLIVAN, MAYOR
CITY OF LAWRENCE
MEMORANDUM AND ORDER ON
MOTION TO PRESENT
A UNIFIED NON-BIFURCATED TRIAL
April 11, 2011
STEARNS, D.J.
Contrary to plaintiff’s assertion, the City of Lawrence has agreed to indemnify
defendant Wilcox to the extent provided by Mass. Gen. Laws ch. 258, § 9, which
permits indemnification of up to $1,000,000 for claims arising from intentional torts and
civil rights violations arising out of acts committed by public employees in the scope
of their official duties, so long as the employee was not acting in “a grossly negligent,
willful or malicious manner.”
The balance of the motion appears to conflate the issue of bifurcation of
municipal liability with that of the admissibility of propensity evidence under Fed. R.

Evid. 404(b). The latter issue is one to be decided by way of motions in limine or
rulings at trial.
This is not a case where an exception to the Heller rule might apply. See Los
Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam) (verdict in favor of defendant
officer on plaintiff’s excessive force claim precluded liability on the part of his
supervisors and employer). Compare Fagan v. City of Vineland, 22 F.3d 1283, 1292
(3d Cir. 1994) (Heller does not apply to a substantive due process claim, otherwise
“[a] municipality would escape liability whenever the conduct of the acting police
officer did not meet the ‘shocks the conscience’ standard, even though municipal
policymakers, acting with deliberate indifference or even malice, implemented a policy
which dictated his injury-causing actions.”). But see Evans v. Avery, 100 F.3d 1033,
1039-1040 (1st Cir. 1996) (applying Heller to municipal liability generally and
criticizing the Fagan holding).1
Finally, to the extent plaintiff Alicea has reason to pursue claims against the City
of Lawrence (should he prevail on the claims against Wilcox), these are not

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Nor is this a case where the municipality may be liable for a constitutional
deprivation because the officer responsible has prevailed on a claim of “good faith”
immunity. See, e.g., Doe v. Sullivan Cnty., 956 F.2d 545, 554 (6th Cir. 1992). Cf.
Walker v. Waltham Hous. Auth., 44 F.3d 1042, 1047 (1st Cir. 1995) (the exception
applies only in “rare cases”). There is no plausible “good faith” defense to the
allegations of excessive force set out in Alicea’s Complaint.
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compromised – indeed they are facilitated – by trying the case involving Wilcox first.
ORDER
For the foregoing reason, the Motion to Present a Unified Non-Bifurcated Trial
is DENIED.
SO ORDERED.
/s/ Richard G. Stearns
________________________________
UNITED STATES DISTRICT JUDGE

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