Castagna et al v. Jean et al
Filing
305
Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. This court grants Plaintiffs' 292 Motion for a New Trial as to the 42 U.S.C. § 1983 unlawful entry claim as to Defendants Daran Edwards, Keith Kaplan, and Harry Jean. The motion is otherwise denied.(DaSilva, Carolina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CHRISTOPHER CASTAGNA and
GAVIN CASTAGNA,
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Plaintiffs,
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v.
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DARAN EDWARDS, ANTHONY TROY, *
JAY TULLY, KAMAU PRITCHARD,
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MICHAEL BIZZOZERO, KEITH
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KAPLAN, and HARRY JEAN,
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Individually,
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Defendants.
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Civil Action No. 15-cv-14208-IT
MEMORANDUM & ORDER
January 17, 2019
TALWANI, D.J.
After a jury found in favor of all Defendants as to all claims, Plaintiffs Christopher
Castagna and Gavin Castagna moved for a new trial, asserting that: (1) the jury verdict on the 42
U.S.C. § 1983 unlawful entry claim against Defendants Daran Edwards, Keith Kaplan, and Harry
Jean is against the law and against the weight of the credible evidence; (2) the jury was
improperly instructed on probable cause to arrest Plaintiffs for disorderly conduct and disturbing
the peace; and (3) defense counsel improperly argued in her closing that Christopher Castagna
was racist and that the court’s supplemental jury instruction was insufficient to cure the
prejudice, thus warranting a new trial on all claims. Pls.’ Mot. New Trial at 1-2 [#292]. Finding
that relief is not merited under the second and third argument, but that the verdict is against the
law as to the warrantless entry into the home and that the warrantless entry on the facts at trial is
not protected by qualified immunity, Plaintiffs’ motion is ALLOWED as to the § 1983 unlawful
entry claim against Defendants Edwards, Kaplan, and Jean, but is otherwise DENIED.
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I.
STANDARD
“A district court may set aside the jury's verdict and order a new trial only if the verdict is
against the law, against the weight of the credible evidence, or tantamount to a miscarriage of
justice.” Casillas-Diaz v. Palau, 463 F.3d 77, 81 (1st Cir. 2006). In considering the weight of the
evidence, the court views the evidence in the light most favorable to the non-moving party.
Cambridge Plating Co. v. Napco, Inc., 85 F.3d 752, 764 (1st Cir. 1996).
II.
THE UNLAWFUL ENTRY CLAIM
A. The Evidence at Trial
The events leading up to Defendants Edwards, Kaplan and Jean’s entry to the apartment
were, for the most part, not in dispute.
On March 17, 2013, Plaintiffs and most of the non-police witnesses spent the day
enjoying various Saint Patrick’s Day festivities in South Boston, eventually arriving at
Christopher Castagna’s first-floor apartment on East 6th Street. Defendants, all Boston Police
Officers, spent the day patrolling the Saint Patrick’s Day parade route, and after that, responding
to party calls.
At 5:54 p.m., a 911 caller reported a loud party at the intersection of East 6th Street and
O Street in South Boston. According to the caller, the party participants were “whipping” beer
bottles off the second-floor porch, which faced 6th Street. Officer Kaplan did not hear the 911
call, but he received notice from dispatch of a disturbance and the street intersection where the
party was located.
Around 7:29 p.m., when police officers, including Kaplan, Edwards, and Jean,
approached East 6th Street and O Street, the only apartment with music and yelling was a firstfloor apartment on 6th Street, later identified as Christopher Castagna’s apartment. Officer
Kaplan observed several people leave the apartment and other people inside drinking and
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dancing. Detective Jean observed what appeared to be someone vomiting on the sidewalk outside
of the apartment. Detective Edwards heard loud music as he approached the apartment.
According to the officers, the front door of the apartment was open. (Although Plaintiffs
attempted to show that the temperature was too cool for the door to be open, there was no dispute
that people were entering and exiting the apartment, and there was no direct evidence to
contradict the officers’ assertion that at the moment they arrived, the door was ajar). Officer
Kaplan stepped into the apartment first and yelled “hello” and “Boston Police” into the
apartment. No one answered right away. Without asking for permission, Officer Kaplan and
Detectives Edwards and Jean walked into the apartment. At this point, the people inside the
apartment stopped dancing, turned down the music, and walked over towards Officer Kaplan.
Officer Kaplan testified that when he entered the apartment, his objective was to get the
attention of the homeowners and to tell them to keep the doors shut and the noise down. Officers
Edwards and Jean also testified that their objectives were to contact the owner and ask him to
turn the music down. Officer Kaplan and Detective Jean further testified that they had no
intention of arresting anyone at the party.
After entering, the officers inquired about where the homeowners were. Some guests told
the officers that the owner of the apartment, Christopher Castagna, was down the hall, in the
bathroom. While Officer Kaplan and Detective Edwards stayed in the kitchen speaking to the
guests, Detective Jean and another officer, Terry Cotton, walked down the hall.
B. The Officers’ Entry Was Unlawful and Was Not Protected by Qualified Immunity
Plaintiffs argue that the entry of Officer Kaplan and Detectives Edwards and Jean into
Plaintiffs’ home and Christopher Castagna’s bedroom was not supported by a warrant or exigent
circumstances, and was not entitled to qualified immunity. Pls.’ Mem. Supp. Mot. New Trial
(“Pls.’ Mem.”) at 8-12 [#293]. Defendants respond that exigent circumstances did exist and
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moreover, that the officers’ actions were justified by an exception to the warrant requirement for
police officers engaging in community caretaking functions. Defs.’ Opp. Pls.’ Mot. New Trial
(“Defs.’ Opp.”) at 11-14 [#298]. Defendants further argue that the officers are also entitled to
qualified immunity due to the unsettled nature of the community caretaking exception in 2013, at
the time of the entry. Id. at 16.
1. The Officers’ Entry Was Unlawful
The Fourth Amendment shields individuals from “unreasonable searches and seizures.”
U.S. Const. amend. IV. “It is common ground that a man’s home is his castle and, as such, the
home is shielded by the highest level of Fourth Amendment protection.” Matalon v. Hynnes, 806
F.3d 627, 633 (1st Cir. 2015) (citing United States v. Martin, 413 F.3d 139, 146 (1st Cir. 2005)).
“‘A warrantless police entry into a residence is presumptively unreasonable unless it falls within
the compass of one of a few well-delineated exceptions’ to the Fourth Amendment’s warrant
requirement.” Id. (quoting United States v. Romain, 393 F.3d 63, 68 (1st Cir. 2004)).
a.
Exigent Circumstances
The well-delineated exceptions offered for exigent circumstances include: “(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
[themselves].” Hegarty v. Somerset Cty., 53 F.3d 1367, 1374 (1st Cir. 1995) (citing Minnesota v.
Olsen, 495 U.S. 91, 100 (1990)). “[A] subset of the exigent circumstances rubric covers
‘emergency aid.’” Matalon, 806 F.3d at 636. Within this emergency aid exception, “law
enforcement officers may enter a home without a warrant to render emergency assistance to an
injured occupant or to protect an occupant from imminent injury.” Brigham City v. Stuart, 547
U.S. 398, 403 (2006). “[A] cognizable exigency must present a ‘compelling necessity for
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immediate action that w[ould] not brook the delay of obtaining a warrant.’” Hegarty, 53 F.3d at
1374 (quoting United States v. Almonte, 952 F.2d 20, 22 (1st Cir. 1991)). Thus, in an emergency
situation, police “‘may enter a residence without a warrant if they reasonably believe that swift
action is required to safeguard life or prevent serious harm.’” Matalon, 806 F.3d at 636 (quoting
United States v. Martins, 413 F.3d 139, 147 (1st Cir. 2005)).
At the hearing on the pending motion, Defendants argued that the officers properly
entered the apartment without a warrant due to a concern for safety of underage party goers. The
weight of the evidence does not support this claim of a concern for the safety of underage party
goers, let alone a need for emergency assistance. Although Detective Jean testified that he saw
someone vomiting twice outside of the apartment, he also admitted that he did not look for or
inquire inside about the person who vomited. No other officer testified that they observed any
vomiting inside or outside of the apartment. Prior to entering the apartment, none of the officers
observed anything remarkable about the scene in the apartment; Officer Kaplan testified that he
observed people dancing and Detective Edwards testified that he observed people chatting and
drinking from cups.
During the trial, none of the officers articulated any concern as to an emergency need to
enter. Nor did the officers articulate a specific safety concern other than the possibility that the
party goers may have been underage, and as to that concern, none of the officers testified to
asking any party goers their age or for identification. Officer Kaplan testified that upon entering
the home, the guests were cooperative. None of the officers testified that the anyone tried to run
or hide from the officers to avoid detection. Cf. Howes v. Hitchcock, 66 F. Supp. 2d. 203, 208215 (D. Mass. Sept. 9, 1999) (finding that officers are entitled to qualified immunity for entering
house after monitoring underage party outside, announcing police presence at the entryway, and
observing teenagers run to basement and climb out of bedroom window to escape detection).
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Furthermore, all three men testified that they were responding to a noise complaint and
that their primary objective in entering the home was to find the owner and ask him to turn down
the music. In Commonwealth v. Kiser, 48 Mass. App. Ct. 647 (2000), like here, the police
officers entered a home without a warrant when responding to a noise disturbance complaint. Id.
at 649. As the court explained there, “[t]his situation does not involve the degree of exigency
needed to bypass the Fourth Amendment.” Id. at 651-652. Thus, the officer’s actions do not fall
within the exigent circumstance exception. 1
b.
Community Caretaking Exception
Defendants also argue that the search was appropriate as a “community caretaker” search
because the search was “totally divorced from criminal investigation activity.” Defs.’ Mem. at 12
[298]. The court rejected this argument when Defendants asked for a “community caretaker”
instruction for the jury and rejects the argument again here.
This exception to the warrant requirement for searches “totally divorced from the
detection, investigation, or acquisition of evidence relating to the violation of a criminal statute”
has been allowed by the United States Supreme Court as to cars. Cady v. Dombrowski, 413 U.S.
433, 441, 447-48 (1973); see also United States v. Rodriguez-Morales, 929 F.2d 780, 785 (1st
Cir. 1991) (“[b]ecause of the ubiquity of the automobile . . . and the automobile’s nature . . . the
police are constantly faced with dynamic situations . . . in which they, in the exercise of their
community caretaking function, must interact with car and driver to promote public safety.”). In
Defendants also argue that their actions qualify as exigent circumstances under Commonwealth
v. Tobin, 108 Mass. 426 (1871) and Ford v. Breen, 173 Mass. 52 (1899). Defs.’ Mem. at 13
[#298]. The Massachusetts Court of Appeals addressed the two cases in Kiser, noting that “[it] is
true that two earlier Massachusetts cases decided in the late nineteenth century upheld an
officer’s right to enter a home without a warrant to quell a breach of the peace, but the noise that
precipitated the officers’ entries in those cases was that of violent fighting, with the attendant
fear that someone inside was in physical danger.” 48 Mass. App. Ct. at 651.
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performing this community caretaking role, a police officer is “‘a jack-of-all emergencies,’ . . .
expected to aid those in distress, combat actual hazards, prevent potential hazards from
materializing, and provide an infinite variety of services to preserve and protect public safety.”
Id. at 784–85 (1st Cir. 1991) (internal citation omitted).
In the 45 years since Cady, the First Circuit has declined to directly address claims of a
community caretaking exception for searches of homes, but also has not endorsed such an
exception. In United States v. Tibolt, 72 F.3d 965 (1st Cir. 1995), where the court did not need to
reach the issue after finding exigent circumstances permitted the warrantless entry, the court
responded to the government’s request to characterize the warrantless entry as a “so-called
‘community caretaker’” exception, with a citation to Cady’s note of the “‘constitutional
difference’ between search of home and search of automobile.” Id. at 969 n.2 (quoting Cady, 413
U.S. at 439). The Tibolt court also listed decisions from three other circuits finding that Cady
applied only to searches of automobiles and not homes. Id. (citing United States v. Bute, 43 F.3d
531, 535 (10th Cir. 1994); United States v. Erickson, 991 F.2d 529, 532 (9th Cir. 1993); United
States v. Pichany, 687 F.2d 204, 209 (7th Cir. 1982)). 2
These circuits have since been joined by the Third Circuit in Ray v. Township of Warren,
626 F.3d 170 (3rd Cir. 2010), where the court “agree[d] with the conclusion[s] of the Seventh,
Ninth, and Tenth Circuits on this issue, and interpret[ed] the Supreme Court’s decision in Cady
as being expressly based on the distinction between automobiles and homes for Fourth
Amendment purposes.” Id. at 177; see also id. at 175 (noting that the Supreme Court “expressly
distinguished” the searches, noting that a “search of a vehicle may be reasonable ‘although the
The First Circuit has declined on two more occasions to endorse or reject application of the
community caretaking exception to police activities involving a person’s home. See MacDonald
v. Town of Eastham, 745 F.3d 8, 13 (1st Cir. 2014) and Matalon v. Hynnes, 806 F.3d 627, 634
(1st Cir. 2015). Both cases are discussed below in the section on qualified immunity.
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result might be the opposite in a search of a home.’”) (quoting Cady, 413 U.S. at 440). That
distinction “recognizes that the sanctity of the home ‘has been embedded in our tradition since
the origins of the Republic.’” Id. (quoting Payton v. New York, 445 U.S. 573, 601 (1980)).
And as the Third Circuit explained, while the Sixth and Eighth Circuits have referenced a
community caretaking exception, their analyses appear to actually use a “modified exigent
circumstances test.” Id. at 176 (citing United States v. Quezada, 448 F.3d 1005 (8th Cir. 2006)
(holding “that an officer acting in a community caretaking role may enter a residence when the
officer has a reasonable belief that an emergency exists that requires attention”) and United
States v. Rohrig, 98 F.3d 1506, 1519 (6th Cir.1996) (holding that “ongoing and highly intrusive
breach of a neighborhood’s peace in the middle of the night constitutes exigent circumstances
justifying warrantless entry”)); see also United States v. Williams, 354 F.3d 497, 508 (6th Cir.
2003) (“[D]espite references to the doctrine in Rohrig, we doubt that community caretaking will
generally justify warrantless entries into private homes.”).
In sum, Defendants’ claim that they are entitled under the law to enter an occupied home,
without a warrant or consent, to find the owner to have him turn down the music, simply because
they were not involved in criminal investigation activity, is supported by neither case law nor
reason.
2. The Officers’ Entry Was Not Protected by Qualified Immunity
Defendants argue that they are protected from liability for the entry under the doctrine of
qualified immunity. Defs.’ Mem. at 14-16 [#298]. For qualified immunity to apply, the court
must explore “whether the facts that a plaintiff has alleged or shown make out a violation of a
constitutional right” and “whether the right at issue was ‘clearly established’ at the time of
defendant’s alleged conduct.” Matalon, 806 F.3d at 633 (quotations and citations omitted).
Defendants fail the first prong, as detailed above. The court turns here to the second prong and
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finds the right at issue to be clearly established at the time of Defendants’ warrantless entry into
Plaintiffs’ home.
Defendants rely on the First Circuit’s decision in MacDonald, where the court stated that
“‘the reach of the community caretaking doctrine is poorly defined’ outside of the motor vehicle
milieu,” that the court “‘has not decided whether the community caretaking exception applies to
police activities involving a person’s home,’” and that the First Circuit’s “survey of the case law
revealed that ‘the scope and boundaries of the community caretaking exception [were]
nebulous.’” Defs.’ Mem. at 14-15 [#298] (quoting MacDonald, 745 F.3d at 13-14). Moreover,
Defendants note, the First Circuit concluded that “‘neither the general dimensions of the
community caretaking exception nor the case law addressing the application of that exception
provides the sort of red flag that would have semaphored to reasonable police officers that their
entry into the plaintiff’s home was illegal.’” Id. (quoting MacDonald, 745 F.3d at 15).
Defendants’ reliance on the First Circuit’s comments on the poorly defined reach of the doctrine
outside of the automobile context, without consideration of the specific facts at issue in that case
or here, suggests that, in their view, officers are immune from all entry and search of an occupied
home so long as the officer is not engaged in criminal investigation and claims instead a
“community caretaking” function. The court disagrees.
Although the First Circuit did find the officers’ entry into the home in MacDonald to be
protected by qualified immunity, the facts in MacDonald were quite different than those here. In
MacDonald, police officers responded to a call from a citizen concerned about a neighbor’s front
door standing wide open. 745 F.3d at 10. The police officers first interviewed the citizen, then
approached the neighbor’s home, announced their presence, and entered the home only after
receiving no response. Id. The entry and search of a home with an open door and no response
from any inhabitant was taken “to ensure that nothing was amiss.” Id. at 14. As the court noted,
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“given the parade of horribles that could easily be imagined had the officers simply turned tail, a
plausible argument can be made that the officers’ actions were reasonable under the
circumstances.” Id. The language concerning the absence of a “red flag” followed the court’s
discussion of cases in other states finding the community caretaking exception applicable on
facts, similar to those in MacDonald, involving the entry of homes where doors were open, no
occupants responded to the officers’ inquiry, and there were true safety concerns.
Here, in contrast, while the door was open, the front room was filled with people, and
Defendants’ reason for entering was to find the owner and have him turn down the music. Even
if a plausible argument can be made that the officers’ initial step across the threshold of the open
door was reasonable as necessary to obtain the partygoers attention, there is no argument that the
officers’ further entry into the home was reasonable once the partygoers’ attention was obtained.
Unlike in MacDonald, no “parade of horribles . . .[can] . . . be imagined” if the officers simply
had directed the guests to keep the music down or had waited outside for the guests to bring the
owner to the door.
The First Circuit again addressed qualified immunity in connection with a community
caretaking argument in Matalon. There the court explained that this exception “‘requires a court
to look at the function performed by a police officer’ when the officer engages in a warrantless
search or seizure.” 806 F.3d at 634 (emphasis in original) (quoting Huntsberger v. Wood, 570
F.3d 546, 554 (4th Cir. 2009)). The entry in Matalon involved the pursuit of a robber. Id. at 631.
The court found a reasonable officer standing in the defendant’s shoes should have known that
her warrantless entry while pursuing a fleeing felon in the aftermath of a robbery was not within
the compass of the community caretaking exception and that her intrusion into the plaintiff's
home abridged his constitutional rights. Id. at 636. As the court explained,
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In sum, the contours of both the plaintiff's right to enjoy the sanctity of his home and the
heartland of the community caretaking exception were sufficiently clear to alert [the
officer] that her plan of action—a warrantless entry—would infringe the plaintiff’s
constitutional rights. Put another way, an objectively reasonable officer should have
known that a warrantless entry into the plaintiff’s home could not be effected on the basis
of the community caretaking exception.
Id. at 635. The court underscored that “[t]hough the precise dimensions of the community
caretaking exception are blurred, that circumstance does not mean that every attempt to resort to
the exception must be regarded as arguable.” Id.
Here, an objectively reasonable officer in Defendants’ position would have known of
Plaintiffs’ right to enjoy the sanctity of their home, and moreover, that the function sought to be
performed by the police – having the noise turned down at a party – was well beyond the safety
or emergency aid function that would arguably fall within any community caretaking exception.
Finding otherwise, as another judge in this district has noted, “would be a betrayal of the bedrock
principle at the foundation of the Fourth Amendment, the protection of the home.” Hutchins v.
McKay, 285 F. Supp. 3d. 420, 427 (D. Mass. 2018) (rejecting the officers’ qualified immunity
argument).
Accordingly, because the weight of the evidence does not demonstrate that Defendants
Kaplan, Edwards, and Jean’s entry into Christopher Castagna’s home falls within an exception to
the Fourth Amendment’s warrant requirement, this court grants Plaintiffs’ request for a new trial
as to the 42 U.S.C. § 1983 unlawful entry claim. 3
III.
PLAINTIFFS’ FALSE ARREST CLAIMS
A. The Evidence at Trial
The events that followed the officers’ entry into the home was very much in dispute.
3
In allowing Plaintiffs’ motion as to the unlawful entry of the home, the court need not address
separately whether Defendants Edwards, Jean, and Kaplan unlawfully entered Christopher
Castagna’s bedroom, as it is a subset of the same claim.
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Detective Jean testified that after waiting outside the door of what he understood was the
bathroom, he heard noise inside, like people chatting. He knocked on the door, and Christopher
Castagna opened it. The room was not a bathroom, but a bedroom, with Christopher Castagna’s
girlfriend, Samantha Pratt, his friend John Doran, and Gavin Castagna inside of the room.
Detective Jean testified further that after Christopher Castagna opened the door and saw
Detective Jean, Christopher Castagna promptly shut the door on Detective Jean’s foot. Detective
Jean testified that he pushed the door open, and entered the room, and that after he entered the
room, Christopher Castagna pushed him. (Christopher Castagna denies being the person who
pushed Detective Jean). Officer Kaplan and Detective Edwards testified that they ran to
Christopher Castagna’s bedroom after they heard yelling and swearing coming from the room.
Detective Jean informed Christopher Castagna that he was under arrest. The officers did
not have handcuffs and they requested backup officers to bring handcuffs to the apartment.
Detective Jean and Officer Cotton escorted Christopher Castagna from the bedroom into the
kitchen area. Before doing so, the officers asked everyone else in the bedroom to leave that
room, and Detective Jean told Christopher Castagna to tell the party goers to leave the apartment.
When he was brought to the kitchen, rather than asking the party goers to leave, Christopher
Castagna instead told everyone to record everything with their phone cameras.
At some point, backup officers, including Anthony Troy, Jay Tully, Kamau Pritchard,
and Michael Bizzozero arrived at the apartment with handcuffs. Officers testified that once they
obtained handcuffs, Christopher Castagna actively resisted arrest, by stiffening and then flailing
his arms; the officers eventually had to pull him to the ground to arrest him. (Christopher
Castagna denies resisting arrest). Christopher Castagna was eventually handcuffed, escorted
from his apartment, and brought to the police station. He was charged with assault and battery on
a police officer, keeper of a disorderly house, and disturbing the peace.
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Officers testified further that Gavin Castagna attempted to stop a police officer from
arresting another party goer by grabbing the officer’s shoulder. Sergeant Troy testified that he
grabbed Gavin Castagna, told him to back off, and attempted to place him under arrest, but
Gavin attempted to struggle and pulled away from Sergeant Troy. Both Sergeant Troy and Gavin
Castagna fell to the ground. Ultimately, other officers assisted in placing handcuffs on Gavin
Castagna and he was brought to the police station. Gavin Castagna was initially charged with
assault and battery on a police officer and resisting arrest; however, the charges were amended to
disturbing the peace and resisting arrest.
B. Plaintiffs Are Not Entitled to a New Trial on their False Arrest Claims
Plaintiffs further argue that the court provided incomplete jury instructions as to the
elements for disturbing the peace and disorderly conduct, and that these incomplete instructions
may have allowed the jury to improperly find probable cause to arrest on these grounds.
Plaintiffs. Pls.’ Mem. at 13-16 [#293]. Defendants accurately argue that Plaintiffs must
demonstrate that the alleged error in instructing the jury affected Plaintiffs’ “substantial rights.”
Defs.’ Opp. at 4 [#298]; see Mejias-Aguayo v. Doreste Rodriguez, 863 F.3d 50, 57 (1st Cir.
2017) (quoting Play Time, Inc. v. LDDS Metromedia Commc’ns, Inc., 123 F.3d 23, 29 n.7 (1st
Cir. 2001)). An error “affects ‘substantial rights’ only if it results in substantial prejudice or has a
substantial effect on the outcome of the case.” Play Time, Inc., 123 F.3d at 29 n. 8. The
challenged jury instructions, if erroneous, did not affect Plaintiffs’ substantial rights because the
evidence presented at trial supported the jury’s finding that Defendants had sufficient probable
cause to arrest.
An arrest is lawful when the arresting officer has probable cause. Tennessee v. Gardner,
471 U.S. 1, 7 (1985). An officer has probable cause, when, at the time of the arrest, the “facts
and circumstances within the officers’ knowledge . . . are sufficient to warrant a prudent person,
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or one of reasonable caution, in believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S.
31, 37 (1979). “[A]n officer’s state of mind (except for facts that he knows) is irrelevant to the
existence of probable cause,” and his “subjective reason for making the arrest need not be the
criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford, 543
U.S. 146, 153 (2004); United States v. Jones, 432 F.3d 34, 41 (1st Cir. 2005). “[T]he fact that the
officer does not have the state of mind which is hypothecated by the reasons which provide the
legal justification for the officer’s action does not invalidate the action taken as long as the
circumstances, viewed objectively, justify that action.’” Devenpeck, 543 at 153 (citing Whren v.
United States, 517 U.S. 806, 812-13 (1996)).
Detective Jean testified that after opening his bedroom door, Christopher Castagna
shoved him from the doorway and shut the door on his foot. Several moments later, after he
entered the room, Christopher Castagna pushed Jean again. Another officer, Sergeant Troy,
testified that Gavin Castagna interfered with the arrest of another party goer by grabbing the
shoulder of the officer attempting to arrest that person. After Sergeant Troy tried to place Gavin
under arrest, Gavin resisted arrested by refusing to put his arms behind his back and pushing
Troy. These acts alone are sufficient probable cause to arrest. The weight of the evidence thus
demonstrates that Defendants had probable cause to arrest Gavin and Christopher Castagna.
Plaintiffs’ request for a new trial as to the 42 U.S.C § 1983 unlawful seizure and common law
false arrest claims is denied.
IV.
CLOSING ARGUMENTS
A. Related Trial Testimony
All but one of the officers who entered the apartment, including the two officers who first
entered Christopher Castagna’s bedroom, were black, while almost all of the party goers were
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white. Christopher Castagna testified that the men who entered his room were “wearing masks”
and that he initially thought that he was being robbed. Officer Kaplan testified that when he, the
only non-black police officer, entered the room, Christopher Castagna became calmer and spoke
to him in a normal level.
The day after the arrests, Gavin Castagna sent and received multiple text messages to
friends related to the incident. Their text messages, introduced as Exhibits 75 and 86 at trial,
include statements such as, “We all need to meet up sometime in the next few days to go over the
events with each other so we can have the story for our lawyers,” and “We are getting all our
stories together at Chris’s right now.”
Gavin Castagna’s text communications also used derogatory language, including racial
slurs, in describing the police officers. In less explicit messages, he stated, “[the police officers]
were all huge black cops from the gang unit in Roxbury,” “I felt like I was in a rap video,” and
“Cause black cops hate whites.” Gavin Castagna also described the incident as “a matter of race.
Black cops beating up white people.” Six months later, he still referred to the officers in text
messages using racial slurs.
B. Closing Arguments
Plaintiffs object to portions of defense counsel’s closing argument, where counsel stated
as follows:
You have seen Chris and Gavin testify in this courtroom. They presented very
well. Very polite. Nice suits. But Trial Chris and Trial Gavin are not the real Chris
and the real Gavin. Trial Chris and Trial Gavin are not the Chris and Gavin that
these officers encountered on March 17, 2013. Real Chris assaults police officers,
and Real Gavin is a racist. But that's not a good look when you're trying to get a
jury to award you damages, which is why Attorney Klehm told you at the
beginning of this case, in his opening statement, that you're going to hear some
racially charged language that came from Gavin Castagna, but don't pay attention
to that. It's not important. Don't let it distract you. Chris and Gavin don't want you
to pay attention to who they really are or what they really did that day because
they would prefer that you use your imaginations. And those are not my words.
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That is another quote from Gavin. He said, “The video going black is good
because it leaves it up to people's imaginations.”
And so they have concocted this theory, which Attorney Falkner just called a
battle plan, where the police are targeting Gavin and Chris because they're white,
where these officers are knocking and punching phones out of people's hands to
prevent them from showing their misconduct, where the police are putting on
masks and stepping on Chris’ neck and saying things like, “They've got cell
phones, come in hard." That is not reality. In fact, I think all of these officers
would agree that that sounds pretty unreasonable. But none of this stuff happened.
This is a fiction that Chris and Gavin have created because, at the end of the day,
they don't like that these police officers, especially black police officers, who
Gavin refers to as the n-word, were in their home no matter how reasonable of an
explanation the officers had to be there.
As Attorney Klehm mentioned in his opening, Chris and Gavin weren’t attacking
all cops. He made that very clear. It’s just something about this group in particular
that Gavin and Chris have a problem with. And I submit to you that’s because six
out of the seven officers who entered that apartment originally were black and
that, had Officer Kaplan been the officer to go into the bedroom that evening, we
wouldn’t be sitting here because, after all, the hostility of this whole incident only
begins as a result of Chris and Gavin’s initial interaction with Detective Jean.
Tr. Closing Argument, Day 8, 92:25-93:5, 104:18-105:2 [#296].
Plaintiffs’ counsel objected to the closing argument at sidebar:
Your Honor, I’m very concerned about, and I would ask for some kind of
instruction. There was no evidence whatsoever that Christopher had any kind of
racial motives whatsoever, and it was suggested during the closing argument that
Christopher, just like Gavin, was behaving on the basis of race. There was just no
evidence that he had any kind of racial motive whatsoever. And I think it was
unfair, unfairly prejudicial, and the jury needs to be instructed that there was
nothing like that. The general instruction [that lawyers’ arguments are not
evidence] is not sufficient to cure this.
Defs.’ Opp. Ex. A, 111:21-112:7 [#298-1].
Plaintiffs’ counsel made no request for a mistrial. He then proceeded with
rebuttal, in which he argued to the jury that there was no evidence that Christopher
Castagna has any racial prejudice. Id. 115:20-25. The court provided a general instruction
to the jury:
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Arguments and statements by the plaintiffs’ lawyers or the defendants’ lawyers
are not evidence. What the attorneys say in their opening statements and closing
arguments is intended to help you interpret the evidence but it is not evidence.
Id. 126:18-22. The court also provided a curative instruction addressing the text messages.
I do want to give a further instruction regarding Gavin Castagna’s text messages.
These text messages were to or from Gavin Castagna, and not Christopher
Castagna. There is no evidence that Christopher Castagna made or received any
of these messages, and, accordingly, you may not consider these messages in any
way in considering Christopher Castagna’s actions or statements or in evaluating
Christopher’s credibility.
Id. 128:25-129:7.
C. Plaintiffs Are Not Entitled to a New Trial Based on Defendants’ Closing Argument
Plaintiffs now argue that it was improper for Defendants’ counsel to suggest that
Christopher Castagna would not have been hostile had Officer Kaplan, who was white, gone into
the bedroom first instead of Detective Jean, who was black. They argue further that the closing
arguments unfairly painted Christopher Castagna as a racist, even though only Gavin Castagna
had used a racial slur, and that Defendants’ counsel left the jury to think that, because of his
alleged racism, Christopher Castagna was part of a scheme to create a false story about the
actions of the police officers, and that “the claim that the brothers concocted a story about what
happened because of the race of some of the officers is unfair and untrue.” Pls.’ Mem. at 17-20
[#293]. Plaintiffs argue further that the court’s curative instruction “constituted plain error,” and
that the result was a “substantial miscarriage of justice” and requires a new trial as to all claims.
Id. at 17-18.
A determination of whether a closing statement was prejudicial depends on the totality of
the circumstances, including: “(1) the nature of the comments; (2) their frequency; (3) their
possible relevance to the real issues before the jury; (4) the manner in which the parties and the
court treated the comments; (5) the strength of the case; and (6) the verdict itself.” Mejias-
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Aguayo v. Doreste Rodriguez, 863 F.3d 50, 55 (1st Cir. 2017) (quoting Granfield v. CSX
Transp., Inc., 597 F.3d 474, 490 (1st Cir. 2010)).
The court starts first with the strength of the case. With or without the closing statement,
the evidence strongly supported the officers’ version of events. Although the entry was improper
as discussed, the evidence at trial was overwhelmingly supported Defendants’ version of events.
While the witnesses who testified on behalf of the Plaintiffs all claimed that they were not drunk
at the time of the events, most conceded that they had been drinking since morning, making their
recollection of events far less reliable than otherwise. And as Plaintiffs attempted to piece
together what happened and may well have convinced themselves as to the truth of their version,
the events they described did not seem credible. For example, while witnesses for Plaintiffs
contended that they were assaulted for filming the officers, the jury appears to have found, and
the court agrees, that the film footage does not support Plaintiffs’ version of events. In another
example, friend John Doran testified that he heard Sergeant Troy as Troy was entering the
Castagna residence say something to the effect of, “they have their phones out, come in hard.”
Doran also testified that he saw Brian Feltch, another friend, leaning over the railing near the
doorway holding his phone as Sergeant Troy walked into the apartment. Troy testified
meanwhile that he was hit in the face with the phone as he entered the apartment. While Feltch
may not have intended to hit Troy in his face, Troy’s recounting of being hit was far more
credible than Doran’s testimony that Troy told his officers to “come in hard” because the party
goers had cell phones. Similarly, while Christopher Castagna testified that as he was being
handcuffed, he was told to shut up and had his necked stepped on by Officer Bizzozero, and
while he offered as evidence of this alleged assault, Trial Exhibit 15E, the exhibit only shows
Officer Bizzozero looking down, and shows no evidence of this alleged brutal assault. The jury
had more than ample reason to credit the officers’ version of events.
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To the extent that defense counsel argued that Christopher Castagna’s perceptions or
reactions may have been based on racial stereotyping, there was no error. Christopher Castagna
testified that when he first saw Detective Jean at his bedroom door, he believed that he was about
to be robbed. Officer Kaplan testified that Christopher Castagna noticeably calmed down when
he spoke him as opposed to when Detectives Jean and Edwards, two black police officers, spoke
to him. Defendants’ closing statement draws a reasonable inference based on these interactions.
That Christopher Castagna initially thought the black officers were robbers (but may have
understood that they were police officers once the white officer joined the others) is relevant, as
it suggests that his perception of what was happening may well have been affected by
stereotypes that affect understanding, actions and decisions in an unconscious manner. Defense
counsel’s comments on such evidence does not amount to a miscarriage of justice.
Throughout the rest of defense counsel’s 35-minute closing, defense counsel
differentiated as to what the evidence established for each Plaintiff, arguing that “Real Chris
assaults police officers, and Real Gavin is a racist.” Trial Tr. Day 8, 92:3-4 [#296]. In addressing
the text messages, defense counsel argued that they were indicative of Gavin Castagna’s state of
mind. Id. 103:1-104:1-17 (“What matters is what Gavin thought at the time of the incident, and
his text messages speak for themselves.”).
To the extent that defense counsel may have inferred anything negative about Christopher
Castagna based on Gavin Castagna’s text messages, the court provided a curative instruction.
Plaintiffs did not object again following the curative instruction or seek a mistrial. See Granfield,
587 F.3d at 490-91; Hatfield-Bermudez v. Aldanondo-Rivera, 496 F.3d 51, 64 (1st Cir 2007)
(“The granting of a mistrial is a last resort, and the trial court’s usual remedy for an impropriety
will be to give a curative instruction.”).
In sum, defense counsel’s closing did not result in a miscarriage of justice.
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V.
CONCLUSION
For the foregoing reasons, this court grants Plaintiffs’ Motion for a New Trial [#292] as
to the 42 U.S.C. § 1983 unlawful entry claim as to Defendants Daran Edwards, Keith Kaplan,
and Harry Jean. The motion is otherwise denied.
IT IS SO ORDERED.
Date: January 17, 2019
/s/ Indira Talwani
United States District Judge
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