Barbosa v. Conlon

Filing 98

Magistrate Judge Judith G. Dein: ORDER entered. FINDINGS OF FACT AND RULINGS OF LAW. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MARIA BARBOSA, HENRIQUETA
BARBOSA, MANUEL BARBOSA,
and ANGELA BARBOSA,
Plaintiffs,
v.
THOMAS HYLAND, JESSE DRANE,
BRIAN DONAHUE, STEVEN JOHNSON,
FRANK BAEZ, EMANUEL GOMES,
and LEON McCABE,
Defendants.

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CIVIL ACTION
NO. 11-11997-JGD

FINDINGS OF FACT AND RULINGS OF LAW
December 2, 2013
DEIN, U.S.M.J.
I. INTRODUCTION
This action arises out of an altercation between the plaintiffs and various Brockton
police officers on November 15, 2008 at the plaintiffs’ home. A jury-waived trial was
held before this court on July 15, 16, 17 and 18, 2013. The parties have submitted
proposed findings of fact and rulings of law. The court has been provided with draft
transcripts of the trial. After careful consideration of the transcripts, exhibits, and the
parties’ submissions, this court makes the following findings of fact and rulings of law.
As detailed more fully below, judgment shall enter:
1.

in favor of Henriqueta Barbosa against the defendants Thomas Hyland and

Brian Donahue, jointly and severally, for their unlawful entry into her home, in violation

of her Fourth Amendment rights, in the amount of $25,000, plus interest, costs and fees
pursuant to 42 U.S.C. § 1983.
2.

in favor of Manuel Barbosa against the defendants Thomas Hyland and

Brian Donahue, jointly and severally, for their unlawful entry into his home, in violation
of his Fourth Amendment rights, in the amount of $7,500, plus interest, costs and fees
pursuant to 42 U.S.C. § 1983.
3.

in favor of Henriqueta Barbosa against the defendant Thomas Hyland for

his use of excessive force in connection with her arrest, in violation of her Fourth
Amendment rights, in the amount of $5,000, plus interest, costs and fees pursuant to 42
U.S.C. § 1983. This award shall also compensate Henriqueta for her claims of assault
and battery.
4.

in favor of Angela Barbosa against the defendant Jesse Drane for his use of

excessive force in connection with her arrest, in violation of her Fourth Amendment
rights, in the amount of $7,500, plus interest, costs and fees pursuant to 42 U.S.C. § 1983.
This award shall also compensate Angela for her claims of assault and battery.
5.

in favor of Maria Barbosa against the defendants Steven E. Johnson and

Frank Baez, jointly and severally, for their use of excessive force, in violation of her
Fourth Amendment rights, in the amount of $15,000 plus interest, costs and fees pursuant
to 42 U.S.C. § 1983. This award shall also compensate Maria for her claims of false
arrest and assault and battery.

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6.

in favor of defendants Emanuel Gomes and Leon McCabe on all claims

against them.
7.

Count XVIII (Intentional Infliction of Emotional Distress) is dismissed, as

are the plaintiffs’ claims based on alleged deliberate indifference to the plaintiffs’ medical
needs.
II. FINDINGS OF FACT
The Plaintiffs
The plaintiffs Manuel and Henriqueta Barbosa, husband and wife, are the owners
of a single family home located at 22 Leavitt Street, Brockton, Massachusetts. They
purchased the house on May 28, 1988. At the time of trial, Manuel was 61 years old and
Henriqueta was 54.
Manuel and Henriqueta are American citizens originally from Cape Verde. While
they understand English, they do not speak it fluently and converse in their native
language, Creole. They testified at trial through an interpreter.
The plaintiff Angela Barbosa is the daughter of Manuel and Henriqueta Barbosa.
At the time of trial, she was 24 years old. Angela was born in Cape Verde, but came to
America as a child and is fluent in English. On November 8, 2008, Angela gave birth to
Jezmany Andrade, by cesarian section, and at the time of the incident she was staying at
her parents’ home to recuperate. Jezmany’s father, John Andrade, was also staying there
to help out with the baby.

3

The plaintiff Maria Barbosa is also the daughter of Manuel and Henriqueta
Barbosa. At the time of trial she was 26 years old. Maria is fluent in English. On the
date of the incident, Maria had left her parents’ home before the police arrived, and was
at the home of another sister, Nilda Barbosa. Maria’s claims arise out of events that
transpired at the Brockton Police Department after the incident at her parents’ home.
22 Leavitt Street
On November 15, 2008, the Barbosa family was gathered at the home of Manuel
and Henriqueta for a Nota Sete, a Cape Verdean traditional celebration held seven days
after a child is born. It was a small gathering of about 15 family members and friends,
half adults and half children ranging in age from the newborn Jezmany to a 9 year old.
At the time of the incident, Manuel and Henriqueta had seven grandchildren, and it
had been expected that five would sleep over that night.
The Barbosas’ home is a well-maintained single family home in a residential
neighborhood. There is a front door with a doorbell on Leavitt Street, and a side door
with a doorbell on Hazel Street. To get to the side door, you have to walk up some stairs
onto a back porch. (Exhibit (“Ex.”) 4).
When you come into the home from the side door, there is a small vestibule and
then, off to the left, is a dining room area, with a table surrounded by chairs. (Exs. 5, 8).
The refrigerator is also in the dining room. (Ex. 8). Through the dining area is a small
galley kitchen with a sink, stove, dishwasher and cabinets along one wall. (Exs. 9, 10).
There is not enough room for the refrigerator in the kitchen.
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There is also at least one bedroom on the first floor of the home. On the second
floor there are additional bedrooms and a room used as a living room. At the time of the
Nota Sete, there was a disc jockey playing records in the living room upstairs.
The Noise Complaint
At the Nota Sete, food was served to the family, including soup, finger food and
desserts. There was beer in the refrigerator and some of the adults had some beers to
drink. Prior to the entry of the police, as discussed below, however, there is no evidence
that the participants in the party were rowdy or in any way unruly.
On November 15, 2008, the defendant Thomas Hyland was working the midnight
to 8 a.m. shift at the Brockton Police Department. Officer Hyland was a 15 year veteran
of the Brockton Police Department. Officer Hyland was partnered with the defendant
Brian Donahue, and they were riding in one car.1
A 911 call came in at around midnight from a resident at 30 Leavitt Street in
Brockton. (Ex. 17). According to the female caller, her neighbors across the street who
had “just bought the house” were “blasting” music. (Ex. 13). It is unclear to this court
whether the caller was actually complaining about noise coming from 22 Leavitt Street,
since the Barbosa family had been living at the home since 1988, and were not new
neighbors. In addition, the defendant Officer Jesse Drane testified that when he arrived

1

Officer Donahue did not testify at trial. Plaintiffs conceded that there was no evidence
that Officer Donahue used excessive force against any of the plaintiffs. They are, however,
pursuing the case against him for illegal entry.
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on site, he heard loud music.2 However, as detailed below, Officer Hyland testified that
the music had been shut off at 22 Leavitt Street by the time Officer Drane arrived. One
way of reconciling this conflicting testimony is to conclude that the music may have been
coming from another location. However, that issue does not need to be resolved. I do
find that there was music being played by a disc jockey on the second floor of 22 Leavitt
Street and that it could be heard from the street.
According to the police log, about one hour after the neighbor’s call, at approximately 1:13 a.m., Officers Hyland and Donahue were dispatched to the scene. Officer
Hyland reported his arrival at a little after 1:14 a.m. (Ex. 17).
Upon their arrival at the street near 30 Leavitt Street, Officers Hyland and
Donahue parked on Leavitt Street and walked toward 22 Leavitt Street. According to
Officer Hyland, he heard loud music coming from the second floor of the house through
an open window. He could not identify the music, other than to say it had a bass beat.
He did not hear any vocals.
The officers did not go to the front door of the house, and did not ring the front
door bell or knock on the door.
The officers went directly to the side door by going up the stairs and onto the
porch. Officer Hyland admits that the officers did not knock on the door, and that he did

2

The defendant Jesse Drane is a 20 year veteran of the Brockton Police Department
where he serves as a patrolman. Officer Drane testified at trial. In many significant respects, his
testimony differs from that of Officer Hyland.
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not have consent to enter the premises. He also admits that the police did not ring the
bell for the side door even though it is clearly visible. (Ex. 5).
For the reasons detailed more fully below, I find that Officers Hyland and
Donahue entered the home at 22 Leavitt Street without probable cause, in violation of the
home owners’ Fourth Amendment rights.
A Call For Backup?
Although not argued by either party, it seems to this court that there is strong
circumstantial evidence that Officer Hyland called for backup before he even entered the
house. Officer Shane Cantone, the dispatcher on the night of November 16, 2008,
testified that the dispatch log (Ex. 17) shows that Officer Hyland logged in as arriving at
22 Leavitt Street by 1:14 a.m. Although there is no record of the time of the call for
backup, the log shows that by 1:18, Officer Drane was en route to provide backup.
According to Officer Drane, he understood that he was coming to the residence to clear
the house. Consequently, the call for backup had to come in the four minutes between
1:14 a.m. and 1:18 a.m. By 1:20 a.m., the first of six backup cars arrived. Sergeant
Lofstrom arrived at 1:20 a.m., Officer Celia arrived at 1:21:57, Officer Dube arrived at
1:22:01, Officer Drane arrived at 1:24:20, Officer Almeida arrived at 1:25:01, and
Sergeant Maker arrived at 1:25:04.
As detailed below, Officer Hyland testified that he engaged in various conversations both inside and outside the house, went upstairs and engaged in conversation with
the disc jockey, who shut off the music and produced identification, and came back
7

downstairs and engaged in further conversations and obtained the homeowner’s
identification, all before he decided to call for backup. It is difficult to imagine that
Officer Hyland engaged in all of these activities in less than four minutes.
Moreover, even accepting Officer Hyland’s testimony as to what he encountered
in the house to be true, it was unnecessary for six other patrol cars to be dispatched to the
scene. It seems more likely that so many cars were dispatched in anticipation of trouble,
not in response to what Officer Hyland actually encountered.
Finally, Officer Drane testified that he heard the music when he arrived, and that
he was in the house before Officer Hyland went upstairs where the music was located.
Such testimony would be consistent with Officer Hyland calling for backup before he
entered the house.
In any event, I find, based on my observations of the witnesses, that Officer
Hyland arrived at the house anticipating problems with the occupants and acted
accordingly.
Police Entry Into The Home
Upon his arrival at 22 Leavitt Street, Officer Hyland noted some beer bottles lined
up on the porch. There is no evidence as to how many beer bottles, but the evidence is
that they were lined up as if placed on the porch, not strewn about. Thus, it does not
appear that the party had been taking place outside.
Officer Hyland testified that from the porch he could see that persons inside the
house, who were either standing or sitting around a dining room table, had glassy and/or
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bloodshot eyes. Given the layout of the property, and based on my observations of the
witnesses, I do not find this testimony credible. While it is perhaps possible that Officer
Hyland may have been able to see people in the dining room, I do not find it credible that
he could see that they had glassy and/or bloodshot eyes from outside the house.
Officer Hyland testified that he has responded to an “exorbitant” number of loud
music calls. His general procedure is to enter a house with the cooperation of the homeowner, find “the literal source of the music,” “get their information and tell them that I
am going to have to charge them with disturbing the peace, at which point 100 percent of
the time . . . they shut it down” since no one wants to be charged. (See Tr. III:22). This
is not the procedure he followed in the instant case.
The side door of 22 Leavitt Street had both a glass storm door and a wooden door.
According to Officer Hyland, both doors were wide open when he got there. According
to the Barbosa witnesses, the doors were closed when the officers arrived.
I find credible the Barbosa witnesses’ testimony that at least the glass door was
closed when the police arrived, at around 1:00 a.m. Given the lateness of the hour, the
fact that it was November, the fact that there were children in the house, and based on my
observation of the witnesses, I find it more likely than not that at least one of the doors
was closed to the outside.
Officer Hyland admits that he had no probable cause to enter the house, and he
made no attempt to get consent to enter before he came in. It is undisputed that the

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officers did not have a warrant to enter the house. Officer Hyland admits that there were
no exigent circumstances justifying the officers’ entry into the house.
Officer Hyland testified that he stood at the threshold of the doorway and he
announced police, but got no response. He testified that he announced police again and
then stated that the music has to be turned down, to which an unidentified male
responded from inside the house that “the music was only going to be turned up when
you leave.” (Tr. III:19). Since no one got up to shut off the music, according to Officer
Hyland he and Officer Donahue walked into the house, and Officer Hyland went upstairs
and confronted the DJ.
The Barbosas testified that the first they knew of the officers’ presence was when
the officers walked into the dining area where several adults were seated around the table.
Angela and Nilda were in the dining area, and Henriqueta was in the kitchen washing
dishes. Manuel had gone to bed and was in a bedroom on the first floor. None of these
witnesses heard the police announce themselves before entering the house. Nor did
anyone hear the alleged statement about the music being turned up once the officers left.
I find that Officers Hyland and Donahue entered into the house before engaging in
any conversation with anyone from the house, and before announcing themselves.
Given that the officers did not attempt to knock on the door or ring the doorbell, I
do not find it credible that they stood outside the door attempting to engage anyone in
conversation. If there were people easily visible from the “threshold” of the door, there is
no reason why the police would not have knocked or rung the bell. Moreover, there is a
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vestibule and wall directly in front of the outside door. (Ex. 5). You have to look at a
diagonal through the vestibule to speak to anyone in the dining room. (Ex. 8). It would
be much easier to speak to someone from inside the house than from the porch.
I also find that the officers did not loudly announce themselves, nor did they give
anyone in the house an opportunity to turn down the music before entering. If, as Officer
Hyland contends (although I do not credit), someone said that the music was going to be
turned back up after he left, this would have been an ideal opportunity for Officer Hyland
to engage in his usual practice of informing the occupants that they would be charged
with disturbing the peace if the music was not turned down. According to Officer
Hyland, this threat always resulted in cooperation. It is undisputed that he did not engage
in any such colloquy when he went to the Barbosas’ home.
Instead, Officers Hyland and Donahue simply walked into the house. Officer
Hyland went up the stairs without consent.
According to Officer Hyland, when he went upstairs, he had to work to get the
DJ’s attention since he was wearing headphones and the music was loud. Once he got
the DJ’s attention, he demanded that the DJ produce identification. According to Officer
Hyland, once he got his attention, the DJ was cooperative and gave him identification. In
fact, the DJ went beyond Officer Hyland’s request to turn the music lower, rather, he shut
it down completely and packed up the equipment. The music never went back on.
Events After The Music Was Turned Off

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While Officer Hyland went upstairs, Officer Donahue asked Angela who owned
the house. Angela told him that her mother did, and translated the conversation for
Henriqueta.
Officer Hyland testified that he also wanted to find out who owned the home in
case he had to come back if the music got turned up again. Therefore, he wanted
identification from the homeowner. At his request, Angela Barbosa told her mother, in
Creole, that Officer Hyland wanted her to produce identification.
Henriqueta was very cooperative. She went and got her purse and showed Officer
Hyland various forms of identification. Officer Hyland was satisfied with the identification. He also testified that Henriqueta was not inebriated. Nevertheless, he did not leave
immediately. As detailed herein, I find that the officers’ conduct caused matters to
escalate, despite the fact that they had entered the home without consent, and certainly
had no reason to remain once the music was turned off and the DJ had packed up the
equipment to leave.
Officer Hyland immediately ordered all the people who did not live in the house to
leave. Most of the adults left without incident or fuss after Officer Hyland told them that
the “party was over” and that they had to leave if they didn’t live there.
Other than the police officers’ unilateral decision to break up the party, there does
not seem to have been any reason to take this aggressive posture. There were not many
people in the house. The music was turned off and the DJ had packed up the equipment.
The home owner was cooperative and had turned over her ID. The homeowner was
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admittedly not inebriated. Officer Hyland had not seen any illegal activity or any
children in distress.
Nevertheless, Officer Hyland contends that he gave “a legal order” that everyone
should leave because he couldn’t “maintain the peace if the party is going to continue.”
(Tr. III:57).
Most, if not all, of the adults except Henriqueta and Manuel, Angela who was
staying with her baby, John Andrade, the baby’s father, and Nilda, another daughter, left.
This, however, did not satisfy the police.
As Nilda testified, Officer Hyland was “frustrated and angry” and he demanded
that everyone leave. He told the guests to “get the fuck out.” I find this testimony
credible.
Officer Hyland testified that he heard a female voice say “you don’t know what
you walked into” and you “better be careful.” (Tr. III:37). At this point Officer Hyland
testified that he made the decision not to leave, although he did not feel personally
threatened by these statements. Again, no one corroborates hearing these comments.
Nevertheless, given that there was no reason for the officers to remain in the home, I do
not find that these statements, if made, warranted further intrusive actions by the officers.
Officer Hyland testified that he saw John Andrade look at Officer Donahue and
say words to the effect of “why were you grilling me,” “you don’t have any power in this
house and get the fuck out.” (Tr. III:43). Everyone understood that “grilling” meant
staring. Officer Hyland testified that Andrade and other people were saying things like
13

“you don’t have any right to be here. You don’t have a warrant. You didn’t knock.
What are you doing here? This is just a family celebration.” (See Tr. III:45). People
were complaining about having the music turned off. Officer Hyland expressly
remembers someone saying you don’t have a warrant. I find that, even assuming that
these comments were made, they were entirely appropriate given the way the police
entered the home. I also find that Officer Hyland knew that he had walked into a family
celebration.
Apparently, Officer Hyland was unwilling to accept this challenge to his authority,
and he decided not to leave. Admittedly, no one had threatened the police officers, and
no one prevented them from leaving. According to Officer Hyland, the music had been
turned off by this time. Nevertheless, according to Officer Hyland, although he was not
in imminent fear for his safety at all, he decided to call for back up at this point due to the
“potential hazard” to himself. (Tr. III:44). As detailed above, regardless of when he
made the call, within minutes of his arrival six police cars responded.
The Application Of The Community Caretaking Doctrine
At trial, Officer Hyland testified that while his primary purpose in entering the
house was to have the music turned down, his “secondary” purpose was to insure the
safety of the children inside, as a result of which he did not leave even after the music was
turned off, and even after most of the people present had left when he ordered them to do

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so. I find this testimony to be a fabrication in an attempt to fit within the “community
caretaking” doctrine, which allows for warrantless searches under certain circumstances.3
I find that the officers entered the house without consent for the sole purpose of
shutting off the music.
At his deposition, Officer Hyland testified as follows:
Did I feel that I had the right to enter the house without a warrant
based on a caller saying they were disturbed? No. However, I did
enter that house to stop the music because the time that it would take
to obtain a search warrant to merely get into a house to quell a
disturbance would be unreasonable based on the fact that it would
take so much time, that the disturbance would go on and that it would
make it so that the police that the police are impotent to perform their
duties, so I felt justified going into the house and merely having the
music stopped or at least lowered.
(III:24; Ex. 14 at 36).
Officer Hyland was given several other opportunities at his deposition to explain
why he entered the house without consent or a warrant. Each time he stated, as above,
that his purpose in entering was “to quell the disturbance” or words to that effect. (Ex. 14
at 33; see also id. at 34-35 (“when I couldn’t get cooperation from anybody that was inside
that home to have that music stopped, that’s when I decided I will go to the source of the
music myself, make sure the disturbance is quelled.”)). He never expressed any concern
about the children present.

3

Like plaintiffs’ counsel, I do not use the word “fabrication” lightly.
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In addition, at his deposition, Officer Hyland was given the opportunity to explain
why he remained in the house after the music was turned down. Again, he made no
mention of any concern about the children. As he testified in response to an inquiry as to
why the homeowner had to produce her identification for him after the music had been
turned down:
A.

... I asked her for it because she would be charged and she was
subject to arrest on anticipatory breach of the peace if she did not
give me that name and date of birth, so I did want that so that we
weren’t impotent leaving there.

Q.

Did you just use the phrase “anticipatory breach of the peace”?

A.

Yes.

Q.

Did you make that up?

A.

No, I have heard that before.

Q.

Is that a crime on the books of the Commonwealth of Massachusetts?

A.

I believe so.

Q.

Anticipatory breach of the peace?

A.

I have arrested people and charged them –

Q.

I could be wrong. I’m no criminal expert. I just never heard it before.

A.

Okay.

Q.

So the reason that you remained in the house was to establish the identity of
the homeowners in case you had to charge them with anticipatory breach of
the peace.

A.

Yes.

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Q.

That’s your testimony?

A.

Yes.

(Ex. 14 at 52-53). Again, no mention was made of any concern for the children.
Officer Hyland was also given the opportunity to add anything he wanted at the
deposition “in terms of helping us understand what happened in the house that night” and
he testified that “we’ve covered everything.” (Ex. 14 at 83-84; see also id. at 88 (“Is there
anything else you would like to tell me about this incident? A. Not that I can think of, sir,
no.”)). At no time did he testify about having any concerns about the welfare of the
children inside.4
Nevertheless, at trial Officer Hyland testified that he could not leave the house after
the music had been turned down because he “couldn’t” and “wouldn’t walk away”
because there were children and intoxicated adults and he “needed [to] make sure those
children were being cared for properly without just walking away from it.” (Tr. III:31).
“There were potential hazards from my training and experience that based on people –
children being supervised by adults who are in my opinion intoxicated, that could

4

I also note that while the defendants moved for summary judgment on May 31, 2013 on
the grounds of qualified immunity, they did not raise the “community caretaking doctrine.” In
fact, their statement of material facts makes no mention of any children at all. (Docket No. 44).
They justified the entry into the house on the basis that Officer Hyland was “[f]aced with the
possibility of having to return to the house on repeated occasions to deal with the loud music that
was disturbing the peace of neighbors.” (Docket No. 42 at 6). It was not until July 12, 2013,
after a recent decision by Judge Stearns applying the doctrine, that the defendants moved for
summary judgment based on the community caretaking doctrine. (Docket No. 78). This court
denied the motion as untimely and because the facts as alleged did not invoke the doctrine.
(Docket No. 79).
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definitely raise a problem for children pose some kind of hazard. I wasn’t sure what I was
dealing with at the time.” (Tr. III:41-42). At his deposition, however, he did not recall if
there were children present after he came down from upstairs. (Ex. 14 at 47). Moreover,
none of his actions exhibited any concerns about the well being of the children.
Officer Hyland has no memory of how many children he saw when he entered the
home, their genders or their ages. He admitted that none of them seemed to be at risk.
(Tr. III:33-34).
After he came from downstairs, Officer Hyland wanted all the adults to leave — he
expressed no concern about where the children were or who was taking care of them.
Officer Hyland testified that Henriqueta was not intoxicated. The fact that he had
determined that she was the owner of the house, and was not intoxicated further negates
any contention that he had continued concerns about the children’s well-being.
Officer Hyland’s actions were also inconsistent with someone concerned about the
children’s welfare. He never interviewed the children, he never asked anyone about the
children and, although he called for backup, he did not call for help with the children. He
has no idea how many children were there, how many left with the other adults, or anything else about them that would indicate a concern about their well-being.
Based on these facts and my observations of the witnesses, I find that Officers
Hyland and Donahue did not enter or remain in the house for any reasons supported by the
community caretaking doctrine.

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John Andrade’s Arrest
The baby’s father, John Andrade, refused to leave voluntarily despite Officer
Hyland’s demand that he do so. Andrade was staying at the house to help with the baby.
Andrade was demanding an explanation and refused to go outside when the party
was cleared out. Officer Hyland continued to demand that he leave. According to Officer
Hyland, Andrade retreated into the galley kitchen, crossed his arms and refused to leave.
Henriqueta was in the galley kitchen washing the dishes.
Officer Hyland testified that he arrested Andrade because he had refused to leave
the house when ordered to do so, and because he “had created a disturbance” by, inter
alia, simply being present at the party where there was loud music. There is no evidence
that Andrade engaged in any other disruptive behavior, other than challenging the officers’
authority to demand that he leave. This is confirmed by Officer Drane, who testified that
he did not see Andrade do anything that warranted being arrested.
Officer Hyland testified that he arrested Andrade because he “believed that John
Andrade was going to assist in committing the crime of breaching the peace” because the
music would be turned up after he left. (Tr. III:58). This alleged concern, however, is
inconsistent with Officer Hyland’s testimony that the DJ already had packed up the music.
Once Officer Hyland decided to arrest Andrade, who was staying in the house with
the permission of the owner, it appears that things got out of control rapidly. While there
was no direct testimony on this point, the situation was undoubtedly complicated by the

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arrival of six more police cars filled with officers who were milling around either inside or
outside of the house.
According to Officer Hyland, while he was trying to arrest Andrade he felt
“something slam into – significant weight slam into the top of my head from behind.”
(Tr. III:64). At that point he released Andrade, who was pulling his arm away. He
doesn’t remember if he had handcuffed Andrade at that point. He released Andrade to
Officer Dube who escorted him out.
I find that there was a scuffle in the kitchen with Andrade before he was arrested.
As detailed below, I find credible the testimony of Henriqueta, as confirmed by Manuel,
that Andrade and Officer Hyland knocked into Henriqueta during Andrade’s arrest.
Although the record was not introduced at trial, Andrade apparently was charged
with disturbing the peace and disorderly conduct. (Ex. 14 at 69-70). It does not appear in
the record whether the charges against Andrade were dismissed, like all the others arrested
at the house. Andrade is not a party to this action and did not testify at trial.
Henriqueta’s Arrest
Although Officer Hyland didn’t see what hit him while he was attempting to arrest
Andrade, he heard a “smash” and saw silverware hitting the floor. When he turned around
after being hit he saw Henriqueta holding what appeared to be a dish strainer, and he
believes that Henriqueta slammed it into the back of his head.

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According to Officer Drane, he saw Henriqueta come up behind Officer Hyland
and take a silverware strainer, “just take it over her head, crash it right over . . . the back of
Tommy Hyland’s head.” (Tr. III:180).
Henriqueta denies hitting Officer Hyland with the strainer (or anything else) and
testified that when Officer Hyland was attempting to arrest Andrade, there was a scuffle
and they bumped into her and the silverware went flying. I accept this testimony as true,
as well as her testimony that she was trying to explain that Andrade did not have to leave
the house, because he was helping her clean up and was the baby’s father. Things were
happening very fast, and Henriqueta was upset and speaking in Creole, and/or broken
English, which accomplished nothing. Manuel, who had come out of his room at this
point after hearing loud voices speaking English, also saw Andrade and a police officer
fall on his wife while Andrade was being arrested. Manuel was also demanding an
explanation, in Creole, about what the police were doing in his house. However, he was
being ignored.
I find Henriqueta’s testimony credible. I do not find it credible that Henriqueta,
who is approximately 5 feet tall, hit Officer Hyland, who is over 6 feet tall, in the head
with the strainer. I find it much more credible that in the confusion with the arrest of
Andrade, Henriqueta was knocked into and the silverware went flying.
Officer Hyland did not receive any medical treatment for any injuries arising out of
the incident. Officer Hyland did not collect the strainer or any silverware as evidence.

21

After Officer Hyland released Andrade to Officer Dube, he proceeded to arrest
Henriqueta. I find that he used excessive force in this arrest.
As noted above, Officer Hyland did not see Henriqueta do anything to him.
Apparently, however, she was very distraught by the arrest of Andrade. Instead of deescalating the situation and trying to speak with her, Officer Hyland arrested her.
Henriqueta was charged with assault and battery with a dangerous weapon, disorderly
conduct, disturbing the peace, interference with a police officer and resisting arrest.
(Ex. 11). As discussed below, these charges were either dismissed or she admitted to
sufficient facts in exchange for the charges being continued without a finding and
dismissed after six months probation.5
In arresting Henriqueta, according to Officer Hyland, he “spun” her around and
handcuffed her with her hand behind her back while she was up against a wall. He
grabbed her by the arms and “walked” her to the cruiser. He had his left hand on the
“meaty” portion of her arm, and his right hand on her wrist or handcuff, and she was
escorted out. According to Officer Hyland, Henriqueta “became limp” when she was
taken out onto the porch and fell to the floor in “passive resistance.” Another officer
assisted her back up to her feet and she walked to the cruiser. (See III:74-75).

5

As detailed below, I also reject the defendants’ contention that by admitting to sufficient
facts of assault and battery with a dangerous weapon, Henriqueta admitted to hitting Officer
Hyland with the strainer.
22

I accept as true the testimony of Henriqueta and her daughters that Officer Hyland
treated Henriqueta roughly and that she banged her shoulder on a door or wall after being
“spun around,” handcuffed and slammed against a wall. I find that while Henriqueta was
yelling, she did not engage in any physical altercation with Officer Hyland and her
conduct did not warrant her being treated roughly or slammed against a wall. I also accept
her testimony that she tripped and fell while being dragged or pushed outside, and that she
did not intentionally go limp. I further find that Henriqueta could not get up because she
was handcuffed, and that she was lifted to her feet by a police officer.
Henriqueta testified at trial that she wet her pants while being arrested, and that she
had to remain in wet clothes through the booking process. She did not testify to this
earlier, and I find that, even assuming it occurred, Henriqueta did not notify anyone that
her pants were wet during the incident or thereafter.
Henriqueta did not introduce any medical evidence of treatment for injuries
allegedly sustained during the arrest. She did testify, however, that she suffered pain in
her shoulder, which felt broken. I find this testimony credible. She also testified that she
suffered and continued to suffer emotional distress after being arrested, including being
fearful of either being home alone or going places alone. I also find this testimony
credible.
By the time Officer Hyland arrested Henriqueta, the few remaining adults in the
house were quite angry. This included Manuel, Angela and Nilda. They were yelling that
this was a party and questioning what the police were doing there. While I find that the
23

plaintiffs may have exaggerated the swearing and racial epithets in which the officers
engaged, I do find that both sides were yelling at each other and that both sides were
cursing at each other.
Even assuming, arguendo, that the police are entitled in certain circumstances to
respond to verbal challenges to their authority by arresting people, in the instant case they
seem to have completely forgotten that they were in someone’s home, with people who
were lawfully entitled to be there. The police conduct in failing to leave and engaging in
confrontation with the few remaining adults is even more unacceptable given the undisputed fact that the music had stopped, and there was no disruption of the neighborhood’s
peace and quiet, except, perhaps, the disruption caused by the fact that six additional
police cruisers had been sent to break up a small family party.
Angela’s Arrest
Seeing her mother arrested and dragged outside upset Angela considerably. She
rushed over to assist her mother. According to Officer Hyland, while running over
towards him Angela threw what appeared to be a red phone which hit him in the calf.
Angela denies throwing anything at Officer Hyland. She also denies owning a red phone.
Officer Hyland did not receive any medical treatment for any injuries arising out of
the events at issue. He did not seize the phone as evidence.
Officer Drane testified that he grabbed onto Angela because she was yelling and
swearing. He testified that he “took her by the arms,” and “placed her against a chair or
something, just to maintain control of her[.]” (III:180-81). He cuffed her and took her out
24

of the house. At some point Officer Drane heard someone say either that Angela was
pregnant or had a C-section.
According to Officer Drane, he handcuffed Angela for his protection because she
was flailing around. He grabbed her collar while walking her out to the cruiser, and “there
was some hair attached with the collar[.]” (Tr. III:184) He testified that he first grabbed
her by the blouse, but he was afraid “it might have come off, or whatever, so I grabbed her
by the handcuffs and by the back of the collar which had some hair to it. I led her out the
door of the house to the cruiser while she was screaming and yelling, swearing and calling
me names.” (Tr. III:184). At his deposition, Officer Drane had testified that because
Angela was resisting arrest, he needed to exert “a little more pressure to gain control” and
apply the handcuffs and that he had “grabbed her by the back of the hair to gain control[.]”
(III:188-90).
Officer Drane testified that he is African American and his wife is from Guatemala.
He denies ever calling Angela “an immigrant bitch” or making other racial comments
attributed to him.
Angela admits to yelling when the police arrested her mother, and to cursing at
Officer Drane, using racial epithets. She testified that Officer Drane suddenly arrested
her, grabbed her by the back and slammed her to the floor, where she was handcuffed.
She was then dragged by the hair and arms out of the house. Angela testified that she was
yelling that she had just had a C-section and was in pain. She further testified that while

25

she called Officer Drane names, he was also swearing at her. I find Angela’s testimony to
be credible.
Specifically, but without limitation, I find that Angela did not throw the phone at
Officer Hyland. I find her testimony that she did not own such a phone credible. Given
that Angela admitted to yelling and cursing at Officer Drane, I find that she would have
admitted throwing the phone if she had done so. In Angela’s mind, she was coming to the
rescue of her mother, and I find that she would have admitted to taking steps to protect her
mother if she had done so.
I find that Officer Drane used excessive force in arresting Angela. I find that he
heard (probably from her) that she had recently been released from the hospital after
having undergone a C-section, yet he took no steps to limit his physical handling of her
during her arrest. I find that Officer Drane did grab her by the hair and slam her either
against a chair or to the floor, where she was handcuffed. I also find that she was treated
very roughly, being pushed and shoved outside into the police cruiser.
I find that while Angela was yelling, she did not physically engage with Officer
Drane. I find further that Angela’s conduct did not warrant her being treated roughly
during the arrest.
In a rather remarkable case of overcharging, Angela was charged with assault and
battery with a dangerous weapon, interfering with a police officer, resisting arrest,
disorderly conduct, inciting a riot and intimidating a witness. (Ex. 7). No probable cause
was found for the intimidation charge. The disorderly conduct and inciting a riot charges
26

were dismissed, and she admitted to sufficient facts to the other charges in exchange for a
continuance without a finding and one month of probation, after which the charges were
dismissed.6
In addition, Angela had to write a letter to Officer Drane, which read in full as
written as follows:
To Officer Jesse Drane,
I Angela Barbosa wants to apoligize to you and the Brockton Police
Department regarding the incident that accord on 11/16/2008. I’m
very sorry and it won’t happen again.
Thank you.
Angela Barbosa
(Ex. 2). Angela testified that she wrote this letter to apologize for swearing at Officer
Drane, not for throwing the phone. I find this testimony credible.
Angela testified that she was bleeding from her C-section and was in much pain
after the arrest. Her arms and feet were scraped. I find this testimony credible. Angela
also testified that she suffered and continues to suffer emotional distress as a result of the

6

As detailed below, I do not find that by admitting to sufficient facts to an assault and
battery with a dangerous weapon charge Angela admitted to throwing the phone.
27

incident, has trouble sleeping and is fearful of the police.7 I find this testimony credible as
well.
Angela did not submit any medical records evidencing any treatment she may have
received as a result of injuries sustained during the arrest.
Manuel
Manuel was in the bedroom when the police arrived at his home. He came out
when he heard English being spoken, which was unusual in the house. He does not drink
and was not inebriated.
Manuel came out of the bedroom to see Officer Hyland cuffing Andrade, and the
two of them falling against Henriqueta. He saw Henriqueta getting arrested and saw the
police dragging and hitting her. They then threw her at the door and then out on the
porch.
Manuel felt “impotent” because he could not intervene with the police because he
respects authority.
As a result of the incident, Manuel has had trouble sleeping and is nervous. His
relationship with Maria has become strained, and Henriqueta cries a lot. His status as

7

Angela was questioned by defense counsel as to whether she had been arrested by
Brockton police on “numerous occasions,” implying that there are other reasons for her bad
relationship with police. However, there does not seem to be any factual support for such
questions. The only evidence before this court is that Angela was arrested once before this
incident in connection with a fight with Andrade, and that the charges were dismissed. No
criminal records were offered into evidence. I do not find that Angela suffered any emotional
distress as a result of this prior arrest.
28

head of the household has been undermined, and he is very depressed. I find this
testimony credible.
Events Following Henriqueta’s and Angela’s Arrest
Andrade, Henriqueta and Angela were transported to the Brockton police station.
As is customary with all arrestees, they were handcuffed to a railing in the garage to await
booking.
While there Angela was yelling, including yelling that she needed medical
attention, and, by her own admission, was swearing at the officers. I find that her requests
for medical treatment were ignored.
I find credible the testimony of Angela and Henriqueta that while they were handcuffed to the railing, an officer walked by with a sandwich and taunted them by asking if
they wanted some food while they were handcuffed. I also find credible the Barbosas’
testimony that derogatory statements were made about their immigrant backgrounds. I do
also find, however, that their description of the comments may be exaggerated.
While Angela and Henriqueta were awaiting booking, as discussed below, Maria
was arrested and brought to the garage and handcuffed to the railing as well. Angela and
Henriqueta saw bruising on Maria’s face that had not been there before.
Angela, Henriqueta and Maria were eventually transported from the police station
to Brockton Hospital by ambulance. Either Nilda or a female police officer had called the
ambulance.

29

Angela testified that she was seen at the Brockton Hospital that evening and discharged, and was seen by her own doctor soon thereafter. She was ordered to continue
taking the pain medications she had been prescribed for her C-section. As noted above,
she did not introduce any medical records reflecting any treatment following her arrest.
Angela testified that she recovered physically in a few months, but that she continues to have nightmares, trouble sleeping and she is unable to trust the police. Angela
has not sought any professional help for emotional issues. I find Angela’s testimony
credible.
Henriqueta also went to Brockton Hospital by ambulance after she was released.
She was suffering from pain in her shoulder, neck and arm, which got worse later.
According to Henriqueta, she was kept in the hospital overnight, and prescribed pain
medicine, which she continues to take. She testified that she still has difficulty turning her
neck, which has prevented her from driving. As noted above, she did not introduce any
medical records reflecting any treatment following her arrest. While I accept Henriqueta’s
testimony concerning her physical injuries immediately following her arrest, she has not
met her burden of proving any permanent physical injury.
Henriqueta testified that she is still afraid to be alone in her house, or to venture
outside to the store or anywhere else on her own. She has had a camera installed on the
door of her house because she is so afraid. Henriqueta has not sought any professional
help for any emotional issues. I find Henriqueta’s testimony about her emotional distress
to be credible.
30

The Missing Videotape
As detailed below, Maria was arrested after she came to the Brockton Police
Station to check on her sister and mother. The next day Maria filed a citizen’s complaint
concerning the events surrounding her arrest.
There was a videotape covering Maria’s interactions with the police in the lobby of
the police station and the events surrounding her arrest.
Although the Brockton police knew about Maria’s complaint, and the Internal
Affairs Department (“IAD”) allegedly reviewed the tape before responding to Maria’s
complaint denying any wrongdoing, no steps were taken by the police to save the tape.
Emanuel Gomes was the head of IAD in November 2008. He testified that he did
not instruct the officer in charge of the investigation to preserve the tape. He testified
further, however, that the preservation of the tape was such a fundamental task in an IAD
investigation that the officer should have known to do so without instruction.
According to Captain Gomes, he was told that the tape was taped over. However,
there was no testimony from the officer who allegedly determined that the tape was no
longer available.
There was no evidence concerning how the surveillance system worked. However,
given that the tape was allegedly segregated and viewed by the officers conducting the
investigation of the events that transpired with Maria, it is unclear how it would have been
taped over. This is not a situation where no one reviewed the relevant portion of the tape

31

and it was just recycled in the normal course of events. Moreover, the failure to preserve
the tape violated the police’s own internal policies.
As a result of the destruction of the tape, Maria was forced to defend herself against
the officers’ version of her arrest without the benefit of a critical piece of evidence. I find
that an adverse inference should be drawn from the Brockton police’s failure to preserve
the tape under the doctrine of spoliation of evidence described below.
Maria’s Arrest
At the time of the incident on November 15, 2008, Maria was living at her parents’
home. She attended the party for awhile, but left around 9 p.m. and went to sleep at her
sister Nilda’s apartment.
Nilda called and woke her up, and told her that the police had gone to the house
and “attacked” her mother and Angela.
Nilda and a friend named Gerard picked Maria up at the apartment, and they all
went to the police station to find out about Angela and Henriqueta.
Coming into the police station through the west door, from the parking lot, there are
glass doors that open into a small vestibule, and then another set of glass doors that slide
open automatically when you approach them from either side. There is a long corridor
and a duty officer is stationed at the information window at the end, which is in a glass
enclosure. There is a wooden bench against one wall in the lobby.
Nilda and Maria testified that Nilda first approached Officer Steven Johnson who
was at the information window. However, he ignored her. Officer Johnson does not have
32

any memory of Nilda approaching him. I find that while Nilda approached the window,
Officer Johnson did not notice her. I also find that at this point neither Nilda, Maria nor
Gerard were causing any disturbance or being disruptive so as to call attention to themselves.
It is undisputed that Maria then approached Officer Johnson to inquire about her
family members. According to Maria, she expressed concern about Angela, who had just
had a C-section, and her mother. She wanted to know when they would be ready to leave.
According to Officer Johnson, Maria came screaming up to the window where he
was standing, yelling and screaming that she wanted to bail people out and demanding the
badge numbers of the police officers that had arrested her family members. According to
Officer Johnson, he was “shocked” and he didn’t know what she was talking about. He
did, however, go to the booking area to find out some information.
Based on my observations of the witnesses, the fact that Nilda and Gerard
admittedly did not cause any disruption, the fact that Officer Johnson himself admits that
he was willing to leave Maria unattended when he went to find out about her family, and
the fact that there is nothing in Maria’s testimony or demeanor which indicated that she,
herself, desired to be arrested, I find that while Maria was upset when she approached
Officer Johnson, she was not yelling and screaming or otherwise causing a scene.
The parties also disagree as to what happened next. According to Maria, Officer
Johnson walked away without any explanation, and when he returned he told her to come
back in one half hour. She decided to stay and was going to sit down on a bench when
33

Officer Johnson came out of the information booth yelling at her to get out and using
obscenities while he pushed her out of the door. Nilda also testified that Officer Johnson
demanded that they get out, using obscenities.
According to Officer Johnson, it takes 30-40 minutes to book a person if they are
being cooperative. Since Andrade was being booked, and Henriqueta and Angela were in
the garage waiting to be booked, he told Maria that it was going to take 1-2 hours before
bail could be set. She did not like that, and was yelling obscenities as well. He demanded
that she leave.
I find it most likely that while Officer Johnson was giving his explanation of how
long it would take, Maria understood that it would take 30 minutes in total, not 30 minutes
per person, and she decided to wait. For his part, Officer Johnson understood that it could
take several hours, and did not understand why Maria was not leaving. Consequently,
Officer Johnson was encouraging Maria to leave and she did not want to. I find that a
verbal altercation ensued, with both sides using inappropriate language.
I do not find that Maria unilaterally escalated the matter into a screaming,
unprovoked scene at the police station. On the other hand, I do not find that Officer
Johnson came screaming out of the information booth.
It is undisputed that Nilda and Gerard left without incident.
I find that Officer Johnson left his enclosure and walked towards Maria. They
were still arguing, but Maria was backing out towards the street. At this point, the

34

commotion had attracted the attention of other officers, including Captain Gomes, Captain
McCabe, Sergeant Celia and Officer Baez. However, they did not intervene.
I find that if she had been allowed to leave the building, Maria would have left, as
Nilda and Gerard were already outside. I find that Maria made it through the first glass
doors into the vestibule when Officer Johnson decided to arrest her. At this point, he
grabbed her arms. Maria started yelling for him to get his hands off of her. Things
deteriorated rapidly from there, and Officer Johnson and Officer Baez grabbed Maria to
place her under arrest. As Captain Gomes testified, he saw the two officers lift Maria and
take her to the bench to be cuffed — she was not walking on her own.
I do not credit Maria’s and Nilda’s testimony that Maria was already out on the
street when the fracas started, or that Officer Johnson intentionally swung punches at
Maria’s face. I do find, however, that Officers Johnson and Baez used excessive force in
connection with the arrest.
Officers Johnson and Baez each weighed about 220 lbs at the time of the incident.
Officer Johnson described Maria as weighing about 100 pounds “soaking wet.”
According to Officer Johnson, he had the opportunity to observe Maria before the
arrest. She did not have any bruises on her face prior to her arrest.
I find that Officers Johnson and Baez grabbed Maria from the vestibule and
slammed her down, face first, onto the wooden bench. One of them pressed on her back
while cuffing her hands behind her back.

35

As evidenced by the photographs taken shortly after her arrest, Maria suffered cuts
and abrasions around her right eye, on her right eyelid and on her forehead. She also had
a black eye. (Ex. 6A-C).
I find that Maria suffered these injuries during her arrest.
The defendants suggest that some of Maria’s injuries may have been caused earlier
in the day when she had an alleged “fistfight” with a woman named Sandy Antunes. (See
Defs. Proposed Findings (Docket No. 95) at ¶ 64). There is no evidence to support such a
finding.
Maria testified that earlier that day she had a fight with Sandy Antunes, a woman
known to the Barbosas. They were at a convenience store. When Sandy grabbed a tomato
can, Maria grabbed it from her and hit Sandy with it. Maria was not hit. Maria was
arrested, and Sandy was not. According to Maria, she was not injured during the altercation.
The defendants were given the opportunity by this court to locate Maria’s booking
photograph from that arrest to see if she was injured during this altercation, but they did
not do so. All the witnesses, including Officer Johnson, testified that Maria was not
injured before her arrest at the Brockton police station. Thus, there is no support for the
contention that she may have been injured earlier in the day.8

8

I also credit Maria’s testimony that she did not tell her family about the earlier arrest
when she attended the Nota Sete. Maria was immediately released after her arrest, and the family
party was not the appropriate place to discuss the incident.
36

Captain (now Chief) Gomes and Captain McCabe witnessed Maria’s arrest and did
not intervene. However, I find that things happened too quickly to warrant their intervention.
I do find it noteworthy, however, that Captain Gomes was concerned that Nilda and
Gerard, who had left, would vandalize the police cars outside. Consequently, he
instructed Captain McCabe to make sure that they were off the property completely and
that they did not vandalize the police cars.
There is no evidence that Nilda and Gerard had done anything at all to warrant the
concern. I find that Captain Gomes’ conduct is indicative of the preconceived distrust
shown to the Barbosa family throughout this encounter.
After she was arrested by Officers Johnson and Baez, Maria was dragged to the
garage where she awaited booking with the rest of her family. The charges brought
against Maria are unknown to this court. They were all dismissed.
I find credible Maria’s testimony that when she complained to the police officers
while she was handcuffed that “they would pay for this,” they responded by saying that
the judge would only laugh at her. I also find credible that there were disparaging
statements made by the police about Maria’s immigrant status.
After being booked, Maria went to Brockton Hospital with Angela and Henriqueta
by ambulance. In addition to the bruises around her eye, Maria was complaining about a
number of bruises and aches to her head, face, neck, arm and other parts of her body.

37

After being seen by a nurse at the Brockton Hospital, Maria was seen at Good Samaritan
hospital in Brockton. She continued to receive some medical treatment up until trial.
There was no expert medical testimony at trial. Maria did, however, submit
medical records. (Ex. 15). There was no explanation at trial about the specific content of
any of the records.
Since the incident, Maria has complained consistently of migraine headaches,
anxiety, pain – predominantly in her eye and face, with some pain more recently in her
right arm and neck. No physical cause of these symptoms have been found.
In January 2009, Maria saw her primary care physician (“PCP”), Dr. Joshi,
complaining of continuous headaches and eye pain. On February 25, 2009, she was
assessed by a new PCP, Dr. Canda, with suffering from acute post-traumatic stress
disorder. She was seen by a neurologist, Dr. Louie, on May 8, 2009 when she continued
to complain of pains in her head, not sleeping and worrying. No physical basis for the
pain was ever found. Maria continued to complain of migraines to Dr. Canda during visits
on October 22, 2009 and March 19, 2010.
From March 20, 2009 through May 20, 2009, Maria was seen at South Bay Mental
Health Center. It appears that she was suffering from anxiety and depression, among other
things, which she attributed to the encounter with the Brockton Police. It is unclear why
the treatment terminated.

38

On April 16, 2010, Maria was seen by a neurologist, Dr. Ho, of Tufts Medical
Center.9 Maria continued to complain of migraines and pain in her eye. While no
physical cause was found, Dr. Ho prescribed a different pain medication. He diagnosed
her as suffering from “post concussive headache syndrome.” Maria’s complaints
remained unchanged during her visits with Dr. Ho on June 4, 2010, September 10, 2010,
and November 26, 2010. During this period, she was also seen by an opthamologist for
her eye pain. No physical explanation for her pain was ever found.
Maria was seen at the Beth Israel Deaconess Medical Center’s Comprehensive
Headache Center on January 6, 2011 by Dr. Wells. Dr. Wells reported being “concerned
that [Maria] may have post-traumatic headaches with migrainous features” with a
“[p]ossible component of trigeminal neuralgia.” Dr. Wells further noted that Maria
continued to have a lot of anxiety about the incident with the Brockton Police and
recommended further psychiatric care. Dr. Wells recommended to Maria that she should
“see what she could do to resolve” the incident with the police. Dr. Wells noted that
9

In his notes, Dr. Ho wrote to Dr. Canda:
We had the pleasure of seeing your patient Ms. Maria Barbosa in the
neurology clinic today with regards to her headache. Thank you for the
kind referral. Ms. Barbosa is a pleasant 22-year-old right-handed woman
who has been having headaches for the last 2 years ever since her assault in
05/2008. In 05/2008 the patient was attacked and punched multiple times
in the right face causing severe bruising and swelling.

(Ex. 15). While the defendants suggest that this relates to a different incident in May 2008, I
reject this suggestion. The description of events mirrors Maria’s description of her encounter
with the Brockton Police. Moreover, later records attribute her complaints to an incident on
November 16, 2008. (See Beth Israel Deaconess report of January 6, 2011). I find that the May
reference is a typographical error.
39

“[u]ntil she is able to get this unresolved incident resolved, it is possible that the pain will
persist.” (Ex. 15). There is no evidence that Maria followed up with any type of
counseling.
Maria was last seen by Dr. Ho on May 25, 2012. At that time, Dr. Ho noted that
Maria’s persistent headaches have been “somewhat difficult to control with medications.”
No follow up appointment was scheduled, although Maria was advised that she could call
if she needed to see the doctor again.
Since the incident, Maria has attended Bunker Hill Community College. She has
worked as a service representative in a financial institution and a customer service
representative. At the time of trial, she was a college student and working part-time in
sales.
Events Following Maria’s Arrest
On November 17, 2008, Maria filed a complaint with IAD. (Ex. 16). Therein, she
complained that she was punched and assaulted during the arrest, and the police called her
“ugly names” and used abusive language. (Ex. 16). While the details of the arrest are not
precisely what she testified to at trial, the accounts are substantively similar.
On July 6, 2009, IAD sent her a letter saying that the investigation had been
completed. (Ex. 1). The investigation was described as including Maria’s written
complaint, various written reports from police officers, and “a review of the police lobby
surveillance video, and other department documents.” (Ex. 1). Apparently there were no

40

interviews or attempts to ascertain Maria’s version of events. Chief Gomes described the
investigation as “shoddy.” I concur.
The letter describes IAD’s findings only as follows:
After reviewing the facts and circumstances surrounding the incident,
the Internal Affairs Division Investigation has disclosed that the
officers were not involved in any misconduct. An incident occurred
but was lawful and proper.
This matter is now a closed issue with the Internal Affairs Division of
the Brockton Police Department.
(Ex. 1). Thus, not only is the surveillance tape missing, but there is also no written description of what the tape actually showed. As described above, Maria has been forced to
defend herself without access to this critical evidence.
Henriqueta hired Attorney Frank Modanado to represent her, Angela, Maria and
Andrade with respect to the charges brought against them in connection with their arrest
on November 16, 2008. He charged them $12,000.00, which was a lot of money for them
to pay. Attorney Modanado worked out agreements with the government. It appears that
the charges against Andrade and Maria were dismissed.
The charge against Henriqueta for disorderly conduct was dismissed. (Ex. 11).
She pleaded to sufficient facts to the charges of assault and battery with a dangerous
weapon (“ABDW”), disturbing the peace,10 interfering with a police officer and resisting

10

Since, as detailed below, disturbing the peace includes a public element, that charge
must relate to the loud music, even though that was not the basis for either Henriqueta’s or
Angela’s arrest.
41

arrest. They were all continued without a finding, and Henriqueta was given concurrent
six months probation and ordered to write a letter of apology to Officer Drane and Officer
Hyland. (Ex. 11). There is nothing in the record before me concerning whether
Henriqueta wrote the letter or what it said. However, it does appear that Henriqueta
completed her period of probation without incident.
The defendants contend that the fact that Henriqueta pleaded to sufficient facts to
the charge of ABDW conclusively establishes that she threw the dish strainer at Officer
Hyland. For the reasons detailed below, I disagree.
As noted above, with respect to Angela’s charges, no probable cause was found for
the witness intimidation charge, and the charges of disorderly conduct and inciting a riot
were dismissed. Angela admitted to sufficient facts to the charges of assault and battery
with a dangerous weapon, interfering with a police officer and resisting arrest. She was
given concurrent one month periods of probation, which she successfully completed
without incident, and ordered to write a letter of apology.
The defendants contend that the fact that Angela admitted to sufficient facts to the
ABDW charge establishes that she threw the phone. Again, I reject this argument. The
apology letter that Angela wrote makes no mention of throwing anything.
I also note that neither Henriqueta’s nor Angela’s plea colloquies were put into
evidence. Their criminal records do not identify the alleged dangerous weapons. (See
Exs. 7, 11). Even if the colloquies referenced throwing items, I find that Henriqueta and
Angela found it expedient to have admitted to whatever facts were proffered, as continu42

ing to challenge the charges would require more money, and all charges were in effect
being dismissed. Thus, despite their admission to sufficient facts, I accept as true
Henriqueta’s testimony that she did not hit Officer Hyland with a dish strainer, or
anything else. I also accept as true Angela’s testimony that she did not throw the phone.
Additional facts will be included below where appropriate.
III. RULINGS OF LAW
A.

Standard for Claims Pursuant to 42 U.S.C. § 1983

Henriqueta, Angela and Maria Barbosa have brought claims under 42 U.S.C.
§ 1983 alleging violations of their constitutional rights. Section 1983 “is not itself a
source of substantive rights, but merely provides a method for vindicating federal rights
elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 1870,
104 L. Ed. 2d 443 (1989) (quotations and citation omitted). It provides:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress ....
42 U.S.C. § 1983.
“A claim under section 1983 has two essential elements. First, the challenged
conduct must be attributable to a person acting under color of state law” and “second, the
conduct must have worked a denial of rights secured by the Constitution or by federal
law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997). The plaintiffs base their
43

§ 1983 claims on the defendants’ conduct in entering and remaining at their premises
without probable cause, the defendants’ alleged use of excessive force, and the
defendants’ alleged abusiveness and deliberate indifference to their medical needs while in
custody.
The defendants do not dispute that they were acting under color of state law in
connection with the events at issue. However, they contend that their conduct did not
deprive the plaintiffs of their constitutional rights. For the reasons detailed below, this
court disagrees.
I find that Officers Hyland and Donahue violated Henriqueta’s and Manuel’s
Fourth Amendment rights by entering their home without a warrant and by remaining
there after the music was turned off. I find further that Officer Hyland violated
Henriqueta’s Fourth Amendment rights, and Officer Drane violated Angela’s Fourth
Amendment rights, by using excessive force in connection with their arrests. I also find
that Officers Johnson and Baez violated Maria’s Fourth Amendment rights by using
excessive force in connection with her arrest.11 I find further that the plaintiffs have not
met their burden in connection with their claims of deliberate indifference to their medical
needs.

11

It does not appear that Maria is asserting a Fourth Amendment claim of arrest without
probable cause. She has, however, asserted a state law claim of false arrest, which applies the
same standard. As detailed below, I find that Maria has met her burden of proof on her false
arrest claim For the same reasons, she would prevail on a Fourth Amendment false arrest claim as
well.
44

Damages
“[T]he basic purpose of a § 1983 damages award should be to compensate persons
for injuries caused by the deprivation of constitutional rights[.]” Carey v. Piphus, 435
U.S. 247, 254, 98 S. Ct. 1042, 1047, 55 L. Ed. 2d 252 (1978). Such compensatory
damages may include, but are not limited to, compensatory damages for the physical
injury, pain and suffering, mental anguish, shock, and discomfort the plaintiff has
suffered, and is reasonably certain to suffer in the future, because of the defendant’s
conduct. Martin A. Schwartz & George C. Pratt, Section 1983 Litigation Jury Instructions
§ 18.01.1 (Aspen Publishers 2013).
The plaintiffs have the burden of proving by a preponderance of the evidence that
there is “a sufficient causal connection between the defendant’s acts and the alleged
injury.” Fernandez v. Chardon, 681 F.2d 42, 55 (1st Cir. 1982), aff’d sub. nom. Chardon
v. Soto, — U.S. — , 103 S. Ct. 2611, 77 L. Ed. 2d 47 (1983).
A medical expert may be required “where the cause of an injury claimed to have
resulted from a negligent act is a complicated medical question involving fact finding
which properly falls within the province of medical experts (especially when the symptoms of the injury are purely speculative in nature, or where disability does not develop
until some time after the negligent act)[.]” Craig v. Chenoweth, 232 Md. 397, 400, 194
A.2d 78, 79 (1963) (internal quotation and citation omitted). In the instant case, I find that
although I accept Maria’s testimony regarding her perceived pain and anxiety, in the
absence of an expert opinion, I cannot find that her complaints of continued debilitating
45

pain and suffering were substantially caused by the events of November 2008. Moreover,
I find that even with her continued pain and suffering, Maria has successfully attended
college, held responsible employment, and made a life for herself. I also find that while
Henriqueta may be suffering from pains in her neck and elsewhere, she has not met her
burden of proving permanent physical injury as a result of the events of November 2008.
Pre-judgment interest on § 1983 damages may be awarded upon a finding that it is
necessary to fully compensate the plaintiff. See Furtado v. Bishop, 604 F.2d 80, 97-98
(1st Cir. 1979).
Punitive damages may be awarded in a § 1983 action where “the award is justified
by the defendant’s ‘bad faith.’ Most courts agree, however, that intentional interference
with constitutional rights, standing alone, is not enough; there must also be ‘aggravating
circumstances.’” Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 121 (1st Cir. 1977)
(internal citation omitted). Moreover, punitive damages are not warranted if actual
damages are “suffic[ient] to deter a defendant’s wrongdoing.” Id.
In the instant case, Officer Hyland has testified that even in retrospect, he would
not do anything differently. Moreover, as I have found above, Officer Hyland’s testimony
that he entered the home without a warrant due to his concern about the children was a
recent fabrication. I find that the question whether punitive damages are warranted in the
instant case is a close one. However, I will not award punitive damages because I find
that the award of actual damages is a sufficient deterrent.
B.

Standard for Qualified Immunity
46

“The doctrine of qualified immunity protects government officials ‘from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v.
Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)).
It “gives government officials breathing room to make reasonable but mistaken judgments,
and protects all but the plainly incompetent or those who knowingly violate the law.”
Stanton v. Sims, No. 12-1217, — S. Ct. — , 2013 WL 5878007, at *2 (Nov. 4, 2013)
(internal quotations omitted).
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably. The protection of qualified immunity applies regardless of whether the
government official’s error is a mistake of law, a mistake of fact, or a mistake based on
mixed questions of law and fact.” Pearson, 555 U.S. at 231, 129 S. Ct. at 815 (quotations
and citations omitted).
The determination whether an official is entitled to qualified immunity requires an
assessment as to whether the facts alleged or shown by the plaintiff “make out a violation
of a constitutional right” and, if so, “whether the right at issue was clearly established at
the time of defendant’s alleged misconduct.” Id. at 232, 129 S. Ct. at 816 (quotations and
citations omitted). “[T]he second, ‘clearly established’ step of the qualified immunity
47

analysis . . . in turn, has two aspects.” Maldonado v. Fontanes, 568 F.3d 263, 269 (1st
Cir. 2009). As the First Circuit has described:
One aspect of the analysis focuses on the clarity of the law at the time
of the alleged civil rights violation. To overcome qualified immunity,
the contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.
The other aspect focuses more concretely on the facts of the
particular case and whether a reasonable defendant would have
understood that his conduct violated the plaintiffs’ constitutional
rights. Indeed, it is important to emphasize that this inquiry must be
undertaken in light of the specific context of the case, not as a broad
general proposition.
Id. (quotations, citations and alterations omitted). Thus, “the relevant, dispositive inquiry
in determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.” Id.
(quotations, citations and alterations omitted).
The defendants contend that they are entitled to qualified immunity in connection
with their decision to enter the home without a warrant under the community caretaking
doctrine. As detailed below, this court finds that argument unpersuasive.
C.

The Entry Into The Barbosa Home
Warrantless Entry

For the reasons detailed herein, this court finds that Officers Hyland and Donahue
violated the Fourth Amendment rights of the homeowners Henriqueta and Manuel
Barbosa.
As the First Circuit has explained:
48

We begin with the “basic rule ... that, absent consent or exigency, a
warrantless search of the home is presumptively unconstitutional”
under the Fourth Amendment. Groh v. Ramirez, 540 U.S. 551, 564,
124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). “To show exigent
circumstances, the police must reasonably believe that ‘there is such a
compelling necessity for immediate action as will not brook the delay
of obtaining a warrant.’” United States v. Samboy, 433 F.3d 154, 158
(1st Cir. 2005) (quoting Fletcher v. Town of Clinton, 196 F.3d 41, 49
(1st Cir.1999)). “Proof of exigent circumstances should be supported
by particularized, case-specific facts, not simply generalized
suppositions about the behavior of a particular class of criminal
suspects.” Id. (citation omitted).
DeMayo v. Nugent, 517 F.3d 11, 15 (1st Cir. 2008).
It is undisputed that the police officers did not have consent to enter the Barbosa
home.
“There are four recognized categories of exigent circumstance: (1) hot pursuit of a
fleeing felon; (2) threatened destruction of evidence inside a residence before a warrant
can be obtained; (3) a risk that the suspect may escape from the residence undetected; or
(4) a threat, posed by a suspect, to the lives or safety of the public, the police officers, or
to herself.” Fletcher v. Town of Clinton, 196 F.3d 41, 49 (1st Cir. 1999) (internal
quotations omitted). None of these situations existed in the instant case.
I find that Officer Hyland’s fear that he might have to return to the home to have
the music turned down a second time to prevent the plaintiffs from disturbing the peace
does not qualify as exigent circumstances. Thus, even if an unidentified individual stated
that they were going to turn the music up after the police left, it would not justify the
warrantless entry into the home.

49

I also find that the fact that there was loud music emanating from the home did not
constitute exigent circumstances justifying the warrantless entry into the Barbosa home.
Moreover, Officer Hyland himself testified that he did not believe that there were exigent
circumstances justifying his warrantless entry into the home.
Courts have long recognized, that “[w]hatever intimidating – and hence compelling
circumstances – the police may have to dispense with the warrant requirement to enter a
dwelling,” the mere fact that there was loud music coming from a home, in and of itself,
does not rise to the level of such an exigency. See Commonwealth v. Kiser, 48 Mass.
App. Ct. 647, 651, 724 N.E.2d 348, 352 (2000). Thus, in rejecting a claim that a
complaint about a loud party constituted exigent circumstances which justified the
warrantless entry into a home, the Massachusetts Supreme Judicial Court in Kiser held:
As the Supreme Court put it, ‘it is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth
Amendment when the underlying offense is extremely minor.’ Welsh
v. Wisconsin, 466 U.S. 740, 753, 104 S. Ct. 2091, 80 L. Ed. 2d 732
(1984). Playing music—even so loudly that it disturbs the
neighbors—is an extremely minor offense.
Kiser, 48 Mass. App. Ct. at 651, 724 N.E.2d at 352.
Given this clear statement of the law from a Massachusetts court, I find that
Officers Hyland and Donahue knew or reasonably should have known that it was unlawful
for them to enter the Barbosa home without a warrant just because there was loud music.12

12

It is unclear whether the defendants are claiming that they are entitled to qualified
immunity on the issue whether they were allowed to enter the home because of the loud music, or
just on their decision to stay. If they are seeking qualified immunity on their decision to enter, I
50

The defendants cite to United States v. Rohrig, 98 F.3d 1506 (6th Cir. 1996), where
the court found that “the governmental interest in immediately abating an ongoing
nuisance by quelling loud and disruptive noise in a residential neighborhood [may be]
sufficiently compelling to justify warrantless intrusions” where “strict adherence to the
warrant requirement would subject the community to a continuing and noxious
disturbance for an extended period of time without serving any apparent purpose.” Id. at
1522. However, even assuming Rohrig would be followed in this jurisdiction, and there is
no indication that it would, Rohrig is distinguishable from the instant case in many
significant respects. Perhaps most importantly, in determining that the police officers’
conduct in entering the home without a warrant was reasonable, the Rohrig court found it
critical that the officers had “attempted to abate the nuisance through various measures
short of entering Defendant’s home, including repeated banging on Defendant’s front door
and tapping on his windows.” Id. at 1524. As I have found in the instant case, however,
Officers Hyland and Donahue did not knock or make their presence known before entering
the home.
In addition, Rohrig has been limited to the situation where there is evidence of a
“continuing and noxious disturbance.” See, e.g., State v. Price, 134 Ohio App. 3d 464,
468-69, 731 N.E.2d 280, 283-84 (1999) (distinguishing Rohrig and finding that loud
music, alone, was insufficient to justify warrantless entry); United States v. Meixner, 128

find that the law on this issue is clearly established in Massachusetts and they are not entitled to
qualified immunity.
51

F. Supp. 2d 1070, 1075 (E.D. Mich. 2001) (Rohrig was predicated on finding that “the
noise was continuous and offensive to neighbors” and “it was necessary to immediately
abate the nuisance”). Here, the police waited for about an hour before even sending a
police car to the site. This delay negates any conclusion that it was necessary to
immediately enter the home. There were no exigent circumstances.
Community Caretaking Doctrine
Officer Hyland contends that he entered the home without a warrant because of his
concern about the children. As detailed above, I reject this contention. Thus, as a factual
matter, there is no support for the application of the community caretaking doctrine.
Moreover, even a most sympathetic view of the evidence in favor of the officers mandates
the conclusion that they are invoking the community caretaking doctrine as a subterfuge
for investigation.
In Cady v. Dombrowski, the Supreme Court recognized that police officers
frequently “engage in what, for want of a better term, may be described as community
caretaking functions, totally divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S.
433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706 (1973). This doctrine recognizes that
“[t]he policeman plays a rather special role in our society; in addition to being an enforcer
of the criminal law, he is a ‘jack-of-all-emergencies,’ W. LaFave, Search and Seizure
§ 5.4(c) (2d ed. 1987), expected to aid those in distress, combat actual hazards, prevent
potential hazards from materializing, and provide an infinite variety of services to preserve
52

and protect community safety.” United States v. Rodriguez-Morales, 929 F.2d 780, 78485 (1st Cir. 1991).
“Virtually by definition, the need for police to function as community caretakers
arises fortuitously, when unexpected circumstances present some transient hazard which
must be dealt with on the spot.” Id. at 787.
“When an officer is performing a community caretaking role, the imperatives of the
Fourth Amendment are satisfied so long as his actions are reasonable.” Macdonald v.
Town of Eastham, No. 12-12061-RGS, — F. Supp. 2d — , 2013 WL 2303760, *3 (D.
Mass. May 24, 2013) (citing United States v. Coccia, 446 F.3d 233, 239 (1st Cir. 2006)).
As long as the actions allegedly taken “pursuant to the community caretaking
function [are] not a mere subterfuge for investigation, the coexistence of investigatory and
caretaking motives will not invalidate the seizure.” Rodriguez-Morales, 929 F.2d at 787.
In the instant case, I find that Officer Hyland’s trial testimony that he entered
and/or stayed in the home due to his concern for the children therein was unsubstantiated
by either his actions or his prior testimony.
Moreover, any actions he may have taken in the home based on caretaking motives
were, in fact, “a subterfuge for further criminal investigation.” State v. D’Amour, 150
N.H. 122, 124-26, 128, 834 A.2d 214, 216-17, 219 (N.H. 2003) (reversing summary
judgment entered in favor of the police because “the trial court’s finding that the initial
search and seizure of the backpack was done solely as community caretaking was clearly
erroneous”). Once the music was shut off, Officers Hyland and Donahue were most
53

concerned with obtaining identification from the homeowner, i.e., furthering their
investigation. They took no steps to safeguard the children.
The defendants rely on Macdonald v. Town of Eastham, where the defendant
police officers were granted qualified immunity after entering the plaintiff’s home without
a warrant in response to a call from a neighbor reporting that the door to the home had
been left wide open and the neighbor was concerned. In Macdonald, the police announced
their presence prior to entering the home, and only went in after receiving no response.
Macdonald, 2013 WL 2303760, at *1. The state court suppressed drugs found by the
police upon their entry, finding the warrantless entry to have been unconstitutional. Id. at
*2. Macdonald then brought an action against the officers under § 1983. The District
Court (Stearns, J.) found that the police officers were performing a community caretaking
role when they searched the home for the limited purpose of determining if anyone was
lurking inside. Id. at *3. He further found, however, that “[t]here is a split of authority,
state and federal, as to whether the community caretaking doctrine extends beyond the
context of automobile searches” to a warrantless entry into a home. Id. at *4. Since the
law was unsettled on this point, Judge Stearns ruled that the police were entitled to
qualified immunity. He concluded that “[f]aced with this absence of controlling authority
and conflicting precedent, a reasonable officer would not have known whether his actions
violated Macdonald’s Fourth Amendment rights.” Id. at *5.
Macdonald does not aid the defendants in the instant case. Here, the law was clear
that the police officers’ warrantless entry into a home to quell loud music, especially
54

without taking steps to make their presence known, violated the Fourth Amendment. The
issue is not whether the defendants knew that the community caretaking doctrine allowed
them to enter a home. Rather, the issue is whether the doctrine has any application to the
facts of the instant case. It does not, and the defendants are not entitled to qualified
immunity in connection with their entry into the Barbosas’ home.
D.

The Claimed Use Of Excessive Force

Henriqueta, Angel and Maria have all brought claims of excessive force. I find that
the police did use excessive force in connection with each of their arrests.
Where “an excessive force claim arises in the context of an arrest, the claim ‘must
be analyzed in light of the Fourth Amendment’s prohibition of unreasonable searches and
seizures.’” LaFrenier v. Kinirey, 478 F. Supp. 2d 126, 137-38 (D. Mass. 2007) (quoting
Gaudreault v. Municipality of Salem, 923 F.2d 203, 205 (1st Cir. 1990)). “Determining
whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth
Amendment requires a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental interests
at stake.” Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871, 104 L. Ed. 2d
443 (1989) (quotations and citations omitted). Thus, the critical question is “whether ‘the
defendant officer employed force that was unreasonable under the circumstances.’”
Raiche v. Pietroski, 623 F.3d 30, 36 (1st Cir. 2010) (quoting Jennings v. Jones, 499 F.3d
2, 11 (1st Cir. 2007)).

55

In applying the test for reasonableness under the Fourth Amendment, courts must
pay “careful attention to the facts and circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872. However, in doing so, it is
important to remain mindful that “[t]he ‘reasonableness’ of a particular use of force must
be judged from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Id. As the Supreme Court has cautioned,
[n]ot every push or shove, even if it may later seem unnecessary in
the peace of a judge’s chambers, violates the Fourth Amendment.
The calculus of reasonableness must embody allowance for the fact
that police officers are often forced to make split-second judgments –
in circumstances that are tense, uncertain, and rapidly evolving –
about the amount of force that is necessary in a particular situation.
Id. at 396-97, 109 S. Ct. at 1872 (internal quotations and citation omitted).
Henriqueta
This court recognizes that because Henriqueta and Angela admitted to sufficient
facts, they cannot base their § 1983 action on a claim for false arrest.13 Nevertheless, the
circumstances presented here are that the police themselves caused the altercation by first

13

It is well established that “[a] § 1983 claim is not cognizable if its success would
necessarily imply the invalidity of an underlying conviction or sentence.” Salcedo v. Town of
Dudley, 629 F. Supp. 2d 86, 102 (D. Mass. 2009) (citing Heck v. Humphrey, 512 U.S. 477, 48687, 114 S. Ct. 2364, 2372-73 (1994)) (court assumes, without deciding, that an admission to
sufficient facts and a continuance without a finding “constitutes a conviction for the purposes of
the Heck limitation on subsequent § 1983 actions”).
56

unlawfully entering the home without probable cause, and then unlawfully disbanding the
family party. Simply put, “[a]fter the police asked the occupants of the apartment to turn
down the music, there was no reason to arrest them.” Commonwealth v. Kiser, 48 Mass.
App. Ct. at 653, 724 N.E.2d at 353. “A police officer is not a law unto himself; he cannot
give an order that has no colorable legal basis and then arrest a person who defies it.”
Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999). Under such circumstances, even if
you assume that the police were entitled to arrest Henriqueta, only the most minimal force
would be allowable.
I find that the police did not arrest Henriqueta or Angela for anything to do with the
music, which had been turned off before the disturbance which resulted in their arrest.
Rather, I find that the police arrested them for their strong objections to the arrest of
Andrade and the continued police presence in the home. Moreover, even under the
defendants’ scenario, Henriqueta and Angela were not engaged in serious criminal
behavior. Their conduct came down to verbally challenging the police decision to break
up the party and arrest Andrade. I find that neither of them posed such an immediate
threat to the safety of the officers that significant force was warranted.
The conduct for which Henriqueta and Angela were arrested did not even rise to
the level of disorderly conduct, since the melee occurred in the privacy of the Barbosas’
home. Where the conduct charged takes place on “purely private property[,]” the police
must also “establish that the disturbance nevertheless had or was likely to have had an
impact upon persons in an area accessible to the public.” Commonwealth v. Mulvey, 57
57

Mass. App. Ct. 579, 583, 784 N.E.2d 1138, 1142 (2003). They failed to do so in the
instant case. For the same reason, apart from the loud music, which was promptly shut
off, the conduct inside the home did not rise to the level of disturbing the peace. Udemba
v. Nicoli, 237 F.3d 8, 13-14 (1st Cir. 2001) (“An officer has probable cause to arrest a
person for disturbing the peace if that person, in the officer’s presence, engages in
unreasonably disruptive conduct that annoys or disturbs one or more other individuals.”).
Furthermore, it has long been established that drunkenness in one’s own home is not a
breach of the peace. Commonwealth v. Gorman, 288 Mass. 294, 298, 192 N.E. 618, 620
(1934).
Even more significantly, yelling at police, especially in the privacy of one’s own
home, does not constitute a crime. See Veiga v. McGee, 26 F.3d 1206, 1214 (1st Cir.
1994) (speech alone does not constitute disorderly conduct); Nuon v. City of Lowell, 768
F. Supp. 2d 323, 331-33 (D. Mass. 2011) (summary judgment in favor of plaintiff on
claim of false arrest where plaintiff’s conduct in standing in front yard yelling at
policeman, waiving his arms, and refusing to obey order to be quiet and go inside, did not
constitute disorderly conduct). Rather, it is well established that “the First Amendment
protects a significant amount of verbal criticism and challenge directed at police
officers[.]” Houston v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 2509, 96 L. Ed. 2d 398
(1987). “Surely, one is not to be punished for nonprovocatively voicing [her] objection to
what [she] obviously felt was a highly questionable detention by a police officer.”
Norwell v. Cincinnati, 414 U.S. 14, 16, 94 S. Ct. 187, 188, 38 L. Ed. 2d 170 (1973) (per
58

curiam) (arrest of individual for walking away from police officer and protesting his arrest
was an unconstitutional punishment of constitutionally protected speech). See also Payne
v. Pauley, 337 F.3d 767, 777 (7th Cir. 2003) (“Police officers must be more thick skinned
than the ordinary citizen and must exercise restraint in dealing with the public. . . . It
would be inherently unfair if an officer could rile up a crowd by mistreating a citizen in
front of the crowd, and then could arrest that citizen for creating the disturbance.”).
As detailed above, I find that Henriqueta did not bring the silverware strainer down
on Officer Hyland’s head or otherwise throw the silverware at him.
Even assuming, arguendo, that Officers Hyland and Drane believed that Henriqueta
had struck Officer Hyland, at most it could only have been considered an impulsive act.
Officer Hyland had just engaged in a civil conversation with Henriqueta, she had
agreeably provided her identification to him, the music was off, and she was washing the
dishes. Henriqueta is a slight woman who had not exhibited erratic or violent behavior
until the police escalated matters.
I find that by slamming Henriqueta against the wall, cuffing her hands behind her
back, dragging her outside, letting her fall to the ground, unable to rise, after which she
was dragged by someone, Officer Hyland used excessive force in connection with the
arrest of Henriqueta.
I find that Henriqueta suffered bruises and pain. I do not find, however, that she
has established any permanent physical injury. I also find that Henriqueta suffered
emotional pain and distress which continues to today.
59

Angela
For the same reasons, I find that the use of force in arresting Angela was also
unreasonable. Again, I find that Angela was not arrested due to the loud music. Rather,
she was arrested after objecting strenuously to the arrest of her boyfriend and her mother.
Her verbal objections, however, did not warrant her arrest.
Again, even if Officers Hyland and Drane believed that Angela had thrown the
phone at Officer Hyland’s leg (and I find that she did not do so), this would still not have
warranted the level of force used in arresting her.
Like her mother, Angela was fully cooperative with the police, assisting them in
obtaining identification from her mother and the like, until they decided to break up the
party and arrest Andrade. Thus, even if the police believed that Angela had thrown the
phone, it should have objectively been viewed as an impulsive act.
Officer Drane has admitted that he heard someone say that Angela was either
pregnant or had had a C-section. Under such circumstances, the use of force was even
more inappropriate.
I find that Angela suffered bruises, which have healed, and pain which has abated.
I also find that she suffered emotional pain and distress which continues to today.
Maria
In evaluating Maria’s claim of use of excessive force, I rely not only on my
assessment of the credibility of the witnesses, but also on an adverse inference which I
draw as a result of the destruction of the tape of the events that transpired involving Maria.
60

Although the defendants asserted that the tape was relevant to the so-called investigation
of Maria’s complaint, no steps were taken to preserve the tape. “When [evidence] relevant
to an issue in a case is destroyed, the trier of fact sometimes may infer that the party who
obliterated it did so out of a realization that the contents were unfavorable.” Blinzler v.
Marriott Int’l, 81 F.3d 1148, 1158 (1st Cir. 1996). That is the situation here.
“Before such an inference may be drawn there must be a sufficient foundational
showing that the party who destroyed the [evidence] had notice both of the potential claim
and of the document’s potential relevance.” Id. at 1159. Such a foundation is easily
established in the instant case given the acknowledgment by the police of their receipt of
Maria’s complaint. Moreover, although the exact standard for imposing the adverse
inference remains undefined, the imposition must “make sense in the context of the
evidence[.]” United States v. Laurent, 607 F.3d 895, 903 (1st Cir. 2010) (no adverseinference instruction warranted where police video surveillance tape routinely erased after
lengthy period without an arrest). In the instant case, an inference that the tape revealed
information adverse to the police makes sense in the context of the dispute.14
As detailed above, the tape was allegedly viewed by experienced law enforcement
officers. It is unclear how the tape could then be taped over, and its destruction violated
fundamental principles of an investigation. In light of the numerous unsupportable
charges brought against the members of the Barbosa family, I decline to find that the tape

14

The fact that an adverse inference should be drawn is supported by (although in no way
dependent on) the fact that all charges were dismissed against Maria.
61

was “destroyed accidently or for an innocent reason[.]” Blinzler, 81 F.3d at 1159. I also
find that the destruction of the tape caused Maria significant harm by forcing her to defend
herself without access to critical evidence. I find that an adverse inference that the tape
contained information favorable to Maria and adverse to the Brockton police is
appropriate. See Kelley v. United Airlines, Inc., 176 F.R.D. 422, 427-28 (D. Mass. 1997)
(jury could draw adverse inference from routine destruction of documents after notice of a
claim).
Viewing the circumstances of her arrest, I find that Officers Johnson and Baez used
excessive force in connection with Maria’s arrest.
At most, Maria yelled at Officer Johnson. There is no evidence that she instigated
a physical altercation with the police. She was on her way out, albeit unhappily, when she
was carried back into the lobby by the officers — she was not walking on her own. Maria
was thrown down on the bench with sufficient force to cause bruising around her eye. She
was then carried and/or dragged down to the garage. Her conduct did not warrant such
rough treatment.
While Captains Gomes and McCabe witnessed Maria’s arrest, I do not find them
liable for her injuries. Given that the entire incident only took a few minutes, realistically
these officers did not have an opportunity to intervene. See Torres-Rivera v. O’NeillCancel, 406 F.3d 43, 52 (1st Cir. 2005).
I find that Maria suffered physical injuries to her head and eye area, and that she
has suffered from migraine headaches. However, the doctors have been unable to identify
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the cause of these problems. Absent any expert testimony, I am unable to ascertain the
cause or extent of any alleged permanent physical injury.
I also find that Maria suffered emotional pain and suffering as a result of the
altercation, and that she continues to suffer from some level of anxiety up until today. I
do not find, however, that Maria has met her burden of proving that the serious
psychological harm she claims to have suffered is causally related to the November 16,
2008 incident. Expert testimony would, in this court’s view, be needed to establish such
causation. In addition, the records put into evidence indicate that Maria declined
psychological counseling. Moreover, the evidence before this court is that, regardless of
her diagnoses, Maria has made much progress in her life. She has attended college and
has worked. Therefore, I find that Maria has been able to function fully regardless of any
permanent or physical and emotional trauma she has suffered.
E.

Deliberate Indifference to Medical Needs

Henriqueta, Angela and Maria testified that they asked for medical help but they
were ignored. I find, however, that they have failed to establish deliberate indifference to
their medical needs.
The due process clause of the Fourteenth Amendment requires “responsible
governmental authorities to provide medical care to persons who have been injured while
being apprehended by the police.” Gaudreault v. Municipality of Salem, Mass., 923 F.2d
203, 208 (1st Cir. 1990). “Generally, the standard applied [to such claims] is the same as
the Eighth Amendment standard.” Ruiz-Rosa v. Rullan, 485 F.3d 150, 155 (1st Cir.
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2007). “The Eighth Amendment, in turn, imposes a duty to attend to a prisoner’s ‘serious
medical needs.’” Gaudreault, 923 F.2d at 208 (quoting Cortes-Quinones v. JimenezNettleship, 842 F.2d 556, 558 (1st Cir. 1988)). “A medical need is ‘serious’ if it is one
that has been diagnosed by a physician as mandating treatment, or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s attention.” Id.
“Government officials violate the Constitution if they exhibit ‘deliberate indifference’ to
such needs.” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L.
Ed. 2d 251 (1976)).
“In order to establish deliberate indifference, the [plaintiff] must prove that the
defendant[ ] had a culpable state of mind and intended wantonly to inflict pain.”
DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991). The negligent failure to provide
medical care does “not sink to the level of deliberate indifference.” Id. (citations omitted).
I find that although Henriqueta and Angela were bruised, they did not have serious
medical conditions which the defendants ignored. Neither has submitted any medical
records. According to their testimony, they did not receive any significant medical
treatment at the hospital. Thus, they have not met their burden of proving that the
defendants ignored a serious medical need.
Moreover, the plaintiffs have not established that the defendants acted with the
requisite intent. “The requisite state of mind may be manifested by the official[’s]
response to [the plaintiff’s] known needs or by denial, delay, or interference with

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prescribed health care.” Id. In the instant case, however, there is no evidence that the
defendants interfered with the plaintiffs’ ability to obtain medical treatment.
Maria did suffer bruises during her arrest. However, she has not met her burden of
proving that the police were deliberately indifferent to her medical needs. As an initial
matter, while bruised, it does not appear that she suffered from any serious medical
condition. Moreover, the police did not prevent her from receiving medical treatment
promptly upon her release. Therefore, the plaintiffs’ claims of deliberate indifference to
the plaintiffs’ medical needs will be dismissed.
F.

State Law Claims
1.

Intentional Infliction of Emotional Distress

Henriqueta, Angela, Maria and Manuel have brought claims against the arresting
defendants for intentional infliction of emotional distress. I find that the plaintiffs have
failed to meet their burden of proof as to these claims.
To sustain a claim of intentional infliction of emotional distress, a
plaintiff must show (1) that the defendant intended to cause, or
should have known that his conduct would cause, emotional distress;
(2) that the defendant's conduct was extreme and outrageous; (3) that
the defendant's conduct caused the plaintiff's distress; and (4) that the
plaintiff suffered severe distress. Agis v. Howard Johnson Co., 371
Mass. 140, 144-145, 355 N.E.2d 315 (1976), and cases cited. To be
considered extreme and outrageous, the defendant's conduct must be
“beyond all bounds of decency and ... utterly intolerable in a civilized
community.” Id. at 145, 355 N.E.2d 315, quoting Restatement
(Second) of Torts § 46 comment d (1965). Liability cannot be
founded upon mere insults, threats, or annoyances. Foley v. Polaroid
Corp., 400 Mass. 82, 99, 508 N.E.2d 72 (1987).

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Sena v. Com., 417 Mass. 250, 263-64, 629 N.E.2d 986, 994 (1994). Moreover, to the
extent that police are merely carrying out their obligations as law enforcement officers,
their conduct as a matter of law is not deemed extreme and outrageous. See Sietins v.
Joseph, 238 F. Supp. 2d 366, 379 (D. Mass. 2003).
In the instant case, the plaintiffs have not established that the arresting officers
intended to cause or should have known that they were causing emotional distress.
Moreover, while overzealous, I do not find that the defendants’ conduct was extreme and
outrageous and beyond all bounds of decency. Compare Poy v. Boutselis, 352 F.3d 479,
485-86 (1st Cir. 2003) (officer’s extreme use of force, including publicly striking plaintiff
repeatedly on face and back, and using handcuffs as brass knuckles with a resulting scar
on plaintiff’s forehead, supported jury verdict of intentional infliction of emotional
distress).
Therefore, plaintiffs’ claim of intentional infliction of emotional distress will be
dismissed.
2.

False Arrest

“False arrest is a species of the tort of false imprisonment.” Nuon v. City of
Lowell, 768 F. Supp. 2d 323, 336 (D. Mass. 2011). Under Massachusetts law, the tort of
“[f]alse imprisonment consists of ‘(1) intentional and (2) unjustified (3) confinement of a
person, (4) directly or indirectly (5) of which the person confined is conscious or is
harmed by such confinement.’” Sietins, 238 F. Supp. 2d at 381 (quoting Ball v. WalMart, 102 F. Supp. 2d 44, 55 (D. Mass. 2000)). “Police officers may be liable for this tort
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‘unless the police officer had a legal justification’ for the restraint.” Sietins, 238 F. Supp.
2d at 381 (quoting Rose v. Town of Concord, 971 F. Supp. 47, 51 (D. Mass. 1997)). Such
justification exists where “the officer had probable cause to arrest the suspect.” Sietins,
238 F. Supp. 2d at 381. “The probable cause standard is a ‘relatively low threshold’ for
police officers to establish.” Id. at 375 (quoting White v. Town of Marblehead, 989 F.
Supp. 345, 349 (D. Mass. 1997)). It is met “‘when police officers, relying on reasonably
trustworthy facts and circumstances, have information upon which a reasonably prudent
person would believe the suspect had committed or was committing a crime.’” United
States v. Jones, 432 F.3d 34, 41 (1st Cir. 2005) (quoting United States v. Young, 105 F.3d
1, 6 (1st Cir. 1997)).
In the instant case, Maria has established that she was arrested at the police station
without probable cause.15 As detailed above, Maria was arrested because she yelled at the
police. She was on her way out of the door, and would have continued exiting if allowed
to do so. Drawing the adverse inference from the absence of the tape, Maria has
established that the police lacked probable cause to arrest her. Therefore, she will prevail
on her claim for false arrest.

15

Since Henriqueta and Angela have admitted to sufficient facts to establish that they
committed crimes in connection with the incident at their home, they cannot now claim that the
police did not have probable cause to arrest them. Consequently, this court previously dismissed
their claim of false arrest.
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3.

Assault and Battery

“Assault and battery is the ‘intentional and unjustified use of force upon the person
of another, however slight, or the intentional doing of a wanton or grossly negligent act
causing personal injury to another.’” Sietins,, 238 F. Supp. 2d at 380 (quoting Jesionowski
v. Beck, 937 F. Supp. 95, 105 (D. Mass. 1996)). Under Massachusetts law, “‘an officer
authorized to make an arrest may use such force as is reasonably necessary to effect the
arrest.’” Id. (quoting Julian v. Randazzo, 380 Mass. 391, 396, 403 N.E.2d 931, 934
(1980)) (punctuation omitted). Where, as here “a plaintiff alleges both a § 1983 excessive
force claim and common law claims for assault and battery, [the] determination of reasonableness of the force used under § 1983 controls [the] determination of the reasonableness
of the force used under the common law assault and battery claims.” Raiche, 623 F.3d at
40. Because, as detailed above, Henriqueta, Angela and Maria have prevailed on their
claim for use of excessive force under § 1983, they will also prevail on their assault and
battery claim.
CONCLUSION
For all the reasons detailed herein, I find as follows:
1.

Thomas Hyland and Brian Donahue violated Henriqueta Barbosa’s Fourth

Amendment rights by entering her home without a warrant, consent or exigent circumstances, and by remaining in the home after the music was turned off.
a.

As a result of such conduct, Thomas Hyland and Brian Donahue are

jointly and severally liable to Henriqueta Barbosa pursuant to 42 U.S.C. § 1983
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(Count I) and for breach of Henriqueta Barbosa’s Fourth Amendment rights (Count
VII).
b.

As a result of such conduct, Thomas Hyland and Brian Donahue are

jointly and severally liable to Henriqueta Barbosa in the amount of Twenty-five
Thousand ($25,000.00) Dollars for compensatory damages.
c.

I find that pre-judgment interest should be awarded to Henriqueta

Barbosa to fully compensate her for her loss.
2.

Thomas Hyland and Brian Donahue violated Manuel Barbosa’s Fourth

Amendment rights by entering his home without a warrant, consent or exigent circumstances, and by remaining in the home after the music was turned off.
a.

As a result of such conduct, Thomas Hyland and Brian Donahue are

jointly and severally liable to Manuel Barbosa pursuant to 42 U.S.C. § 1983 (Count
I) and for breach of Manuel Barbosa’s Fourth Amendment rights (Count VII).
b.

As a result of such conduct, Thomas Hyland and Brian Donahue are

jointly and severally liable to Manuel Barbosa in the amount of Seven Thousand
Five Hundred ($7,500.00) Dollars for compensatory damages, since Manuel was
not witness to much of the unconstitutional behavior.
c.

I find that pre-judgment interest should be awarded to Manuel

Barbosa to fully compensate him for his loss.
3.

I find that Thomas Hyland violated Henriqueta Barbosa’s Fourth Amend-

ment rights by using excessive force in connection with her arrest.
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a.

As a result of such conduct, Thomas Hyand is liable to Henriqueta

Barbosa pursuant to 42 U.S.C. § 1983 (Count V).
b.

As a result of such conduct, Thomas Hyand is liable to Henriqueta

Barbosa in the amount of Five Thousand ($5,000.00) Dollars in compensatory
damages.16
c.

I find that pre-judgment interest should be awarded to Henriqueta

Barbosa to fully compensate her for her loss.
4.

Based on the same conduct, I find that Thomas Hyland is liable to

Henriqueta Barbosa for assault and battery (Counts X, XII).
a.

The damages awarded to Henriqueta Barbosa’s pursuant to ¶ 3b

above ($5,000.00) are sufficient to compensate her for the assault and battery; no
additional compensatory damages will be awarded.
b.

However, interest on these damages ($5,000.00) shall be

calculated at the rate of 12% per annum from the date suit was commenced
pursuant to Mass. Gen. Laws ch. 231, § 6B.
5.

I find that Jesse Drane violated Angela Barbosa’s Fourth Amendment rights

by using excessive force in connection with her arrest.
a.

As a result of such conduct, Jesse Drane is liable to Angela Barbosa

pursuant to 42 U.S.C. § 1983 (Count V).

16

The compensatory damages awarded to Henriqueta Barbosa for the unconstitutional
entry into her home and for the use of excessive force are not duplicative.
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b.

As a result of such conduct, Jesse Drane is liable to Angela Barbosa

in the amount of Seven Thousand Five Hundred ($7,500.00) Dollars in compensatory damages.
c.

I find that pre-judgment interest should be awarded to Angela

Barbosa to fully compensate her for her loss.
6.

Based on the same conduct, I find that Jesse Drane is liable to Angela

Barbosa for assault and battery (Counts X, XII).
a.

The damages awarded to Angela Barbosa’s pursuant to ¶ 6b above

($7,500.00) are sufficient to compensate her for the assault and battery; no
additional compensatory damages will be awarded.
b.

However, interest on these damages ($7,500.00) shall be

calculated at the rate of 12% per annum from the date suit was commenced
pursuant to Mass. Gen. Laws ch. 231, § 6B.
7.

I find that Steven E. Johnson and Frank Baez violated Maria Barbosa’s

Fourth Amendment rights by using excessive force in connection with such arrest.
a.

As a result of such conduct, Steven E. Johnson and Frank Baez are

jointly and severally liable to Maria Barbosa pursuant to 42 U.S.C. § 1983 (Counts
III, V).
b.

As a result of such conduct, Steven E. Johnson and Frank Baez are

jointly and severally liable to Maria Barbosa in the amount of Fifteen Thousand
($15,000.00) Dollars.
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c.

I find that pre-judgment interest should be awarded to Maria Barbosa

to fully compensate her for her loss.
8.

I also find that Steven E. Johnson and Frank Baez are jointly and severally

liable to Maria Barbosa for false arrest (Count IX), assault (Count XI) and battery (Count
XIV).
a.

The damages awarded to Maria Barbosa pursuant to ¶ 8b above

($15,000.00) are sufficient to compensate her for the claims of false and arrest and
assault and battery; no additional compensatory damages will be awarded.
b.

However, interest on these damages ($15.000.00) shall be

calculated at the rate of 12% per annum from the date suit was commenced
pursuant to Mass. Gen. Laws ch. 231, § 6B.
9.

Judgment shall enter in favor of defendants Emanuel Gomes and Leon

McCabe on all claims brought against them.
10.

Count XVII: Intentional Infliction of Emotional Distress, and the claims

based on alleged deliberate indifference to the plaintiffs’ medical needs, are dismissed.
ORDER
Plaintiffs’ counsel shall file a proposed Final Judgment in accordance with the
court’s Findings of Fact and Rulings of Law within fourteen (14) days of the date of this
Order. Defendants’ counsel shall file any objection to the proposed Judgment within
seven (7) days thereafter.
/ s / Judith Gail Dein
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Judith Gail Dein
U.S. Magistrate Judge

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