D'Ambrosio v. Methuen, City of et al
Filing
87
Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER: "Defendants' Motion for Summary Judgment (# 65 ) is ALLOWED. DAmbrosio's Motion for Partial Summary Judgment (# 67 ) is DENIED. Judgment shall enter for the defendants. "(Belmont, Kellyann)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CAMERON D’AMBROSIO,
Plaintiff,
CIVIL ACTION NO. 16-10534-MPK1
v.
CITY OF METHUEN, MASSACHUSETTS,
MICHEL J. EWING, JAMES A. MELLOR,
JOHN WALSH, CHIEF JOSEPH A. SOLOMON, and
JANE DOE,
Defendants.
MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (#65) AND
PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT (#67).
KELLEY, U.S.M.J.
I.
Introduction.
This case began when Cameron D’Ambrosio, a student at Methuen High School who had
been the victim of bullying, published what he said were rap lyrics on Facebook, in which he
arguably threatened to kill unnamed persons who had bullied him at the high school. As a result,
he was arrested by Methuen police and charged with violating Mass. Gen. Laws c. 269, § 14(b),
which, among other things, makes it a crime to threaten to use or have present a bomb or other
weapon at a certain location. After D’Ambrosio was arrested, and a criminal complaint issued in
the Lawrence District Court, a dangerousness hearing was held pursuant to Mass. Gen. Laws c.
276, § 58A. A district court judge found D’Ambrosio to be dangerous and ordered him held
1
With the parties’ consent, this case was reassigned to the undersigned for all purposes,
including trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c). (#23.)
without bail. Eventually, a grand jury returned a no bill against D’Ambrosio, and he was
released, having spent thirty-seven days in custody. Soon after, the criminal complaint against
him was nolle prossed by the Commonwealth.
D’Ambrosio sues five Methuen police officers in their individual capacities, and two of
them (Chief Joseph Solomon and Sergeant Walsh) also in their supervisory capacities, for civil
rights violations and torts. Regarding Officer Jane Doe, D’Ambrosio has had plenty of time to
identify her and has never done so, and therefore the allegations against her are dismissed. See
Figueroa v. Rivera, 147 F.3d 77, 82-83 (1st Cir. 1998) (holding that after seventeen months,
dismissal was proper as to defendant who had never been identified and served).2
As explained below, the court finds that the officers had probable cause to arrest
D’Ambrosio for violating c. 269, § 14, and further finds that that even if they did not have
probable cause, they are entitled to qualified immunity. Therefore, the claims against the officers
for violating D’Ambrosio’s Fourth Amendment rights are dismissed. The court finds that the
officers also are entitled to qualified immunity for any claim based on D’Ambrosio’s First
Amendment rights. Finally, for the reasons set out below, none of the state law claims has merit.
Therefore, defendants’ motion for summary judgment is allowed, and plaintiff’s cross-motion is
denied.
II.
Plaintiff’s Claims.
In Count I of the complaint, D’Ambrosio claims that the police officers violated 42
U.S.C. § 1983 by: detaining and frisking him without reasonable suspicion; arresting him
without an arrest warrant and without probable cause; falsely and maliciously accusing him of
D’Ambrosio previously filed a stipulation of dismissal of Count V of the complaint against the
City of Methuen. (#79.)
2
2
violating c. 269, § 14 and prosecuting him for that crime; interfering with his First Amendment
right to freedom of speech; submitting a baseless application for a criminal complaint and
signing a baseless criminal complaint; seeking an unreasonable bail amount; making false
statements to the press; failing to conduct a proper investigation; wrongly obtaining a search
warrant for his home; violating his privacy; wrongly executing the search warrant and seizing
property from his home; and maliciously prosecuting him. (#1 at 15-17.)
In Count II, he alleges that the officers committed common law conspiracy to violate his
civil rights in violation of 42 U.S.C. § 1983, with the same wrongful actions alleged as in Count
I. Id. at 18-20.
In Count III, he alleges that the officers violated Mass. Gen. Laws c. 12, §§ 11H and 11I
(the Massachusetts Civil Rights Act, or MCRA), repeating the factual allegations from Count I.
Id. at 20-21. In Count IV, he alleges that the officers committed common law conspiracy to
violate his civil rights under the MCRA. Id. at 21-23.
He also makes claims of false imprisonment (Count VI), false arrest (Count VII),
malicious prosecution (Count VIII), and intentional infliction of emotional distress (Count IX).
Id. at 24-27.
Defendants move for summary judgment, asserting the officers are entitled to qualified
immunity because a reasonable police officer would have believed probable cause supported
D’Ambrosio’s arrest. (#71 at 10.) D’Ambrosio opposes, asserting his arrest was not supported
by probable cause, and defendants are not entitled to qualified immunity. (#73.) He also moves
for partial summary judgment on the § 1983 claims arising under the First and Fourth
Amendments set out in Counts I and II, and his false arrest claim set out in Count VII, asserting
3
that as his arrest was not supported by probable cause, he prevails on those counts as a matter of
law. (#67.)
The court held an oral argument on the cross-motions on March 8, 2019. (#81.) Plaintiff
filed a supplemental memorandum after the hearing. (#83.)
III.
Statement of Facts.
The following narrative is taken from D’Ambrosio’s statement of material facts (#69),
defendants’ statement of material facts (#71), D’Ambrosio’s response to defendants’ statement
(#75), and the exhibits attached to those filings. Both parties attached partial transcripts of certain
witnesses’ depositions to their filings, which are fragmented. The court requested complete
transcripts of the depositions of D’Ambrosio, Sergeant Walsh, and Sergeant Ewing, which are on
the docket at ##84-86,3 and the court also considers the testimony in those depositions. The facts
are undisputed unless noted.
A. D’Ambrosio Posts to Facebook.
D’Ambrosio was a victim of bullying from the third grade through high school. (#71-1 at
8-9.) In September 2012, during the first week of his senior year at Methuen High School
(MHS), he was severely beaten by another student, which he described as “[being beaten] pretty
badly, lacerated spleen, so [as a result he] was seeking counseling from the bullying and PTSD.”
Id. at 10. At his deposition, he described how, after the incident in which he was beaten, he
“couldn’t walk through the hallways [of MHS] without someone saying, “oh, there’s Cam, the
little bitch who got jumped, who got beat up and hospitalized and everyone saw you ….” Id. at 4.
3
D’Ambrosio’s complete deposition transcript is filed under seal because it contains personal
information about him. (#84.) The court cites the excerpts from his deposition that are attached
to the parties’ filings when possible, and only cites the transcript filed under seal when
necessary.
4
On the morning of May 1, 2013, D’Ambrosio took the school bus to MHS. (#70-1 at 3;
#84 at 31-32.) Rather than attending school, however, he walked to the Nevins Memorial
Library, a nearby public library in Methuen. (#84 at 31.) He went to the library instead of going
to his classes because he “didn’t want to deal with the bullying and stuff” at school. Id. at 32.
D’Ambrosio often listened to rap music, and he wrote and performed his own rap lyrics.
(#70-2 at 1-2.) At the library on the morning of May 1, D’Ambrosio was listening to rap music,
and was inspired by a Biggie Smalls song in which the artist uses the phrase “Blow up like the
World Trade,” which D’Ambrosio understood to be a reference to the “first time they tried to
blow [the World Trade Center] up.” (#70-1 at 8-9.) He testified at his deposition that because
“the Boston Marathon [bombing] just happened,”4 he decided to “make a metaphor, let people
know how I’m feeling, see how they feel about this ….” Id.
Using a library computer, he published the following post on his Facebook page to his
approximately 490 Facebook friends:
All you haters keep my fuckin’ name outcha mouths, got it? What
the fuck do I gotta do to get some props and shit huh? Ya’ll wanme
to fucking kill somebody? What the fuck do these fucking demons
want from me? Fucking bastards I aint no longer a person, I’m not
in reality, So when u see me fucking go insane and make the news,
the paper and the fucking federal house of horror known as the white
house, Don’t fucking cry or be worried because all YOU people
fucking caused this shit. fuck a boston bominb wait till u see the
shit I do, I’ma be famous for rapping and beat every murder charge
that comes across me!
(#70-3) (syntax and spelling as in original).
4
The Boston Marathon bombing occurred on April 15, 2013, approximately two weeks before
D’Ambrosio posted his message on Facebook.
5
At his deposition, when questioned about what the post meant, D’Ambrosio stated that he
was addressing the students at MHS who had bullied him. (#71-1 at 6.) “I felt like all these
people that were triggering me and pushing me were just bastards, just fatherless lowlifes who
had nothing better to do than to pick on the weak, pick on me ….” Id. “I didn’t feel like I was a
person. I didn’t feel like I belonged with anybody. Went to school, walked through the hallways,
felt like a ghost.” Id. When asked what the reference to demons meant, he said, “... I felt like I
had a lot of personal demons, and … I just felt like the demons just wanted me – you know, to
lash out, to cease to exist, to go and do something stupid, like kill myself or try to hurt someone
which I would never do because I’ve been hurt my whole life by others …. And I was kind of
just screaming out for help.” (#84 at 48.)
B. The Post is Reported to Officer Mellor at MHS.
Around 12:45 p.m. the day that D’Ambrosio posted the message to Facebook, a student
approached James Weymouth, the athletic director and an associate principal at MHS, because
she had seen the post and was nervous about it. (#70-4 at 2, 7.) Weymouth said at his deposition
that he asked the student to accompany him to an office so he could see the post on a computer
screen. Id. at 3. After reading the post, Weymouth contacted Officer Mellor of the Methuen
police, who worked as the school resource officer for MHS. (##70-5 at 2-3; 71-4 at 3.)5 Officer
5
Weymouth wrote a report dated May 1, 2013, that documents his response to the post. (#71-3 at
2.) He states that after being alerted by the student that there was a “very disturbing post on
Facebook,” he read it, and immediately showed it to Officer Mellor and another associate
principal. Id. Next, he reported the incident to the principal of the school, who then reported it to
the superintendent of schools. Id. After looking up D’Ambrosio’s class schedule and trying to
ascertain whether D’Ambrosio was in the building or had been in his classes that day, he
consulted with D’Ambrosio’s father, and then decided to try to intercept D’Ambrosio at his bus.
Id. Finally, he reported that he and three other associate principals were approached by
approximately thirty students reporting D’Ambrosio’s post. Id.
6
Mellor also spoke to the student who reported the post, and she told him that the post had “made
her uneasy and made her frightened,” because D’Ambrosio usually sat next to her in a class.
(#70-5 at 6-7.)
At his deposition, Officer Mellor recalled reading the post and then asking for it to be
printed out, “because [he was] going to need it to be printed so [he] could show it to my – to my
boss.” (#70-5 at 5.) He next called his supervisor, Sergeant Walsh, and said, “Sergeant, I have a
possible threat.” Id. at 8. He told Sergeant Walsh that it was an emergency, and he should come
to the school right away. Id.
Officer Mellor stated that he and the school administrators considered the threat to be
against “the kids at the school,” or “the people at Methuen High.” (#71-4 at 12-13.) When asked
if he thought the threat was to the “physical building,” he stated, “The people in it. The people.
The building. The presence of. Everybody. All inclusive.” Id. at 32. At his deposition, when
pressed about why he thought the “haters” to which the post was addressed were students at the
school, Officer Mellor said he thought “[a]pparently the young lady that reported it is one of the
haters,” because she was “concerned” by the post. Id. at 29-30. He added, “You know, this is the
sort of thing that’s making us nervous at school.” Id. When asked why he considered the post to
be a threat, he explained that the reference to the Boston Marathon bombing was especially
alarming: “… [A]s a whole, when you’re making reference to a massacre that happened two
weeks earlier than this … and that many people died, over the news all day long, that I’m going
to outdo what they do[sic] made people extremely nervous which we took as a threat.” Id. at 31.
Officer Mellor met Sergeant Walsh at the door of the school. (#70-5 at 10.) Sergeant
Walsh read the post, and then asked Office Mellor where D’Ambrosio was. Id. Officer Mellor
replied that “Mr. Weymouth was looking for him” and that D’Ambrosio might have left the
7
school. Id. Officer Mellor said that Sergeant Walsh told him, “Go back in … [g]o check. See if
they found [D’Ambrosio]. Let me get back to you in a couple – in a few minutes.” Id. at 11. At
his deposition, Officer Mellor said that he was under the impression that Sergeant Walsh was
“trying to process it himself and determine how we were going to proceed.” Id. at 11.
C. Sergeant Walsh Confers with Sergeant Ewing, Who Calls a Prosecutor.
Sergeant Walsh called his supervisor, Lieutenant Kevin Mahoney, and read the post to
him over the phone. (#70-6 at 6.) At Mahoney’s instruction, Sergeant Walsh contacted the court
liaison officer, Sergeant Michael Ewing, and reported the Facebook post, and asked him “what
he thought we might have for charges.” Id. at 8.
At their depositions, Sergeants Walsh and Ewing disagreed about what they discussed
over the phone. Sergeant Walsh recalls he read Sergeant Ewing the post word-for-word; Sergeant
Ewing believes Sergeant Walsh summarized the content of the post. (#70-6 at 14 (Walsh); #70-7
at 2, 9 (Ewing).) Sergeant Walsh believes they discussed c. 269, § 14; Sergeant Ewing does not
recall discussing any specific statute. (#70-6 at 9 (Walsh); #70-7 at 6 (Ewing).) Sergeant Walsh
stated at his deposition that Sergeant Ewing said “he’d call me back, he was going to run it by a
DA.” (#70-6 at 9.)
Sergeant Ewing testified at his deposition that immediately after speaking with Sergeant
Walsh, Sergeant Ewing called an assistant district attorney (ADA), to whom he spoke for “a
couple of minutes.” (#70-7 at 3-4.) He did not remember the name of the ADA. Id. at 5. During
the call, Sergeant Ewing “summed [the post] up in roughly two or three lines.” Id. at 7. The ADA
responded, “[I]t sounds like it’s the threats. If you guys see [D’Ambrosio], you should grab
him.” Id. Although Sergeant Ewing does not recall if the ADA identified a particular statute, he
recalls discussing with the ADA that the crime was a felony. Id. at 7-9.
8
Sergeant Walsh stated that he was driving and was going to help Officer Mellor look for
D’Ambrosio, when Sergeant Ewing called him back and said “something along the lines that
[Sergeant Ewing had] spoke[n] with an ADA, and that 269, 14, would be a good charge.” (#70-6
at 11.) Sergeant Walsh made the determination to charge D’Ambrosio with that crime based on
what the ADA said, “combined with the facts up to that point.” Id. at 11-12. He was not sure if
he had looked at the statute at that time. Id. at 12.
D. D’Ambrosio is Arrested and Charged.
Around 1:00 p.m., (only about fifteen minutes after the post had first been reported to
Office Mellor), Sergeant Walsh met again with Officer Mellor. (#70-5 at 12.) Officer Mellor
testified at his deposition that “Sergeant advised me that what – the way he wanted to proceed
was that he had either written down or possibly a law – you know, a reference book out, and
gave me the chapter and section two six – whatever the chapter and section is that we charged
him with.” Id. at 13. Officer Mellor recalled Sergeant Walsh saying, “This is what we’re going to
go forward with. We’re going to charge him with this. It’s a felony. It’s an arrestable offense.”
Id. When, at his deposition, Officer Mellor was asked if he had “any concern” about charging
D’Ambrosio under that statute, Officer Mellor replied, “[N]o sir. I was told that by my superior
officer [sic] that’s what we would be proceeding with, and I said okay.” Id. at 14. Officer Mellor
summed up what he recalled Sergeant Walsh saying to him: “He said, What we have, meaning
the Facebook post, would violate this statute. Let’s proceed with it. That’s what I want you to
do.” Id. at 14-15.
Sergeant Walsh instructed Office Mellor that if he could not find D’Ambrosio, he should
go to the police station and begin the paperwork for an arrest warrant. Id. at 13-14. After failing
to find D’Ambrosio, Officer Mellor left the high school. Id. at 18.
9
Around 1:30 p.m., Officer Mellor was driving and spotted D’Ambrosio walking toward
MHS. Id. at 18-19. He was on the phone with Sergeant Walsh, who told Officer Mellor to stop
D’Ambrosio. Id. at 20. Officer Mellor stopped his car, and waved D’Ambrosio over to him. Id.
He told him, “Cam, I think we have a problem with a Facebook post.” Id. at 23. He searched
D’Ambrosio’s backpack. Id. at 25-26. The backpack only contained “miscellaneous school
stuff.” Id. at 23. D’Ambrosio asserts that as he was being arrested, he told Officer Mellor the
post was only rap lyrics (#84 at 61); Officer Mellor denies this (#70-4 at 25).
Sergeant Walsh arrived after Officer Mellor had stopped D’Ambrosio, and told
D’Ambrosio he was under arrest. (#70-5 at 22.) Officer Mellor handcuffed D’Ambrosio, and
D’Ambrosio was taken to the Methuen Police Department, where he was booked and given
Miranda warnings. Id. at 23, 28-29. He confirmed he made the post. Id. at 29.
Officer Mellor prepared the police report and an application for a criminal complaint.
(##70-5 at 30; 71-7 at 2.) He testified at his deposition that before he wrote the police report he
looked at c. 269, § 14 and consulted with Sergeant Walsh about the statute. Id. at 37. Officer
Mellor signed the application for a criminal complaint, which simply charged a violation of
“269-14” and not any specific subsection. (#71-7 at 2.) He said that it was his “intention or [his]
thought was it was just 14, which would encompass anything or all under there.” (#71-4 at 28.)
The crime is listed on the complaint application as “bomb scare, communicating.” (#71-7 at 2.)
Officer Mellor also signed the affidavit for the search warrant for D’Ambrosio’s house.
(#70-5 at 38.) A detective wrote the affidavit; the first part of it simply repeated Officer Mellor’s
police report. Id. at 42. In summary, the affidavit repeats the post verbatim, states that after being
read his Miranda rights, D’Ambrosio admitted that he wrote the post, and concludes that there is
10
probable cause to believe that evidence of a violation of c. 269, § 14 will be found at
D’Ambrosio’s house. (#70-14 at 1-3, warrant affidavit.)
The search warrant was executed the same day as D’Ambrosio’s arrest, and no weapons
or devices capable of causing physical harm were recovered from the home. (#69 at 11.) The
police seized an Xbox gaming console and a Dell computer from the home. Id. Nothing
incriminating was found on the electronic devices. (#71-4 at 28.)
MHS was not evacuated in response to D’Ambrosio’s post, nor did Officer Mellor ever
recommend that the school be evacuated. (#69 at 8.) No search for explosive devices was
conducted at the school. Id.
Officer Mellor gave the application for complaint to Sergeant Ewing, who brought the
paperwork to the Lawrence District Court and signed the complaint. (#70-7 at 17, 19.) On May
2, 2018, the clerk’s office issued a criminal complaint. (#69 at 12.) The complaint lists c. 269, §
14(b) as the offense. (#70-16, complaint.)
D’Ambrosio appeared in court on May 2, 2013. (#70-17, docket sheet.) An attorney was
appointed to represent him, and he was held without bail pursuant to Mass. Gen. Laws c. 276, §
58A.6 On May 9, he had a dangerousness hearing under § 58A before District Court Judge Lynn
Rooney, who found him to be dangerous and held him without bail. Id.
6
The court notes that under this statute:
When a person is held under arrest for an offense listed in subsection (1) and upon
a motion by the commonwealth, the judge shall hold a hearing to determine
whether conditions of release will reasonably assure the safety of any other person
or the community.
The hearing shall be held immediately upon the person's first appearance before
the court unless that person, or the attorney for the commonwealth, seeks a
continuance. Except for good cause, a continuance on motion of the person may
not exceed seven days, and a continuance on motion of the attorney for the
commonwealth may not exceed three business days. During a continuance, the
11
D’Ambrosio was held without bail for thirty-seven days. (#69 at 12.) Approximately
three weeks after his release and the grand jury issued a no bill, the Essex County District
Attorney’s Office issued a nolle prosequi. Id.
IV.
Summary Judgment Standard.
When considering a motion for summary judgment, “a court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party
bears the initial burden of averring the absence of a genuine issue of material fact and
“support[ing] that assertion by affidavits, admissions, or other materials of evidentiary quality.”
Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003) (citations omitted). Once the
moving party asserts the absence of genuine issues of material fact, the non-movant must
demonstrate the existence of a factual dispute with requisite sufficiency to proceed to trial.
Fontánez-Núñez v. Janssen Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006).
In determining whether summary judgment is proper, the record must be viewed in the
light most favorable to the non-moving party, and all reasonable inferences must be drawn in the
non-movant’s favor. Caraballo-Caraballo v. Corr. Admin., 892 F.3d 53, 56 (1st Cir. 2018).
V.
The Police had Probable Cause to Arrest D’Ambrosio.
Section 1983 supplies a private right of action against a person who, under color of state
law, deprives another of “any rights, privileged, or immunities secured by the Constitution and
individual shall be detained upon a showing that there existed probable cause to
arrest the person.
Mass. Gen. Laws c. 276, § 58A(4) (emphasis added). Thus, on the facts of this case, on May 2,
2018, a district court judge would have to have found that probable cause existed to arrest
D’Ambrosio in order to hold him during the continuance until the dangerousness hearing on May
9, 2018.
12
[federal] laws.” 42 U.S.C. § 1983. To prove a claim under § 1983, “the plaintiff must show a
deprivation of a federally secured right.” Harrington v. City of Nashua, 610 F.3d 24, 28 (1st Cir.
2010). If D’Ambrosio was arrested without probable cause, then his rights under the Fourth
Amendment were violated. Dist. of Columbia v. Wesby, -- U.S. --, 138 S. Ct. 577, 585-86 (2018)
(citing Payton v. New York, 445 U.S. 575, 585 (1980)); Cox v. Hainey, 391 F.3d 25, 30 (1st Cir.,
2004).
Probable cause exists where “the arresting officer, acting on apparently trustworthy
information, reasonably concludes that a crime has been (or is about to be) committed and that
the putative arrestee is likely one of the perpetrators.” Wilson v. City of Boston, 421 F.3d 45, 54
(1st Cir. 2005) (citing Acosta v. Ames Dep’t Stores, Inc., 386 F.3d 5, 9 (1st Cir. 2004)). To
determine whether an officer had probable cause, the court must “examine the events leading up
to the arrest, and then decide whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to probable cause.” Wesby, 138 S. Ct. at 585-86
(citing Maryland v. Pringle, 540 U.S. 366, 371 (2003)) (further internal citations and quotation
marks omitted). Probable cause is evaluated as of the moment the arrest was made. Beck v. Ohio,
379 U.S. 89, 91 (1964). Although the exact degree of certainty required to establish probable
cause is difficult to quantify, it falls between mere suspicion and what would be necessary to
convict. Burke v. Town of Walpole, 405 F.3d 66, 80 (1st Cir. 2005) (internal citation omitted).
The First Circuit, discussing the difficulty of applying this standard, has stated that “centrally,
the mercurial phrase ‘probable cause’ means a reasonable likelihood.” Valente v. Wallace, 332
F.3d 30, 32 (1st Cir. 2003) (citing Illinois v. Gates, 462 U.S. 213, 235 (1983)).
D’Ambrosio was arrested because the police understood that his Facebook post violated
c. 269, § 14. That statute provides, in relevant part:
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(b) Whoever willfully communicates or causes to be communicated,
either directly or indirectly, orally, in writing, by mail, by use of a
telephone or telecommunication device, including, but not limited
to, electronic mail, Internet communications and facsimile
communications, through an electronic communication device or by
any other means, a threat:—
(1) that a firearm, rifle, shotgun, machine gun or assault
weapon . . . an explosive or incendiary device, a
dangerous chemical or biological agent, a poison, a
harmful radioactive substance or any other device,
substance or item capable of causing death, serious
bodily injury or substantial property damage, will be
used at a place or location, or is present or will be present
at a place or location, whether or not the same is in fact
used or present;
(2) to hijack an aircraft, ship, or common carrier thereby
causing anxiety, unrest, fear, or personal discomfort to
any person or group of persons shall be punished by
imprisonment in the state prison for not more than 20
years or imprisonment in the house of correction for not
more than 2 ½ years, or by fine of not more than $10,000,
or by both such fine and imprisonment.
(c)
Whoever willfully communicates or causes to be
communicated such a threat thereby causing either the evacuation
or serious disruption of a school, school related event, school
transportation, or a dwelling, building, place of assembly, facility or
public transport, or an aircraft, ship or common carrier, or willfully
communicates or causes serious public inconvenience or alarm,
shall be punished by imprisonment in the state prison for not less
than 3 years nor more than 20 years or imprisonment in the house of
correction for not less than 6 months nor more than 2 ½ years, or by
fine of not less than $1,000 nor more than $50,000, or by both such
fine and imprisonment.
..
(e)
Nothing in this section shall authorize the criminal
prosecution of picketing, public demonstrations or other similar
forms of expressing views.
Mass. Gen. Laws c. 269, § 14(b), (c), (e).
D’Ambrosio argues that there was not probable cause to arrest him because c. 269, §
14(b) requires that one threaten to have a specified weapon at a certain location, and the post did
14
not contain this precise information. See, e.g., #74 at 1. The question whether the police had
probable cause to arrest D’Ambrosio, however, is not that simple. While the post did not
explicitly target a specific place, nor did it plainly reference any of the dangerous devices
enumerated in the statute, the question remains whether the police properly could infer from the
post that D’Ambrosio was threatening to use some unspecified destructive device to commit
murder, and whether the police properly could infer that he was threatening to use the device at
the high school.
D’Ambrosio’s Facebook post addressed “All you haters,” which a reasonable police
officer could well have thought were students at the high school.7 He asked – “Y’ll wanme to
fucking kill somebody?” (#70-3.) He went on to say, “[W]hen u see me fucking go insane and
make the news, the paper and the fucking federal house of horror known as the white house,
Don’t fucking cry or be worried because all YOU people fucking caused this shit. fuck a boston
bominb wait till u see the shit I do, I’ma be famous for rapping and beat every murder charge
7
At oral argument, plaintiff argued that there was nothing in the record to establish that the
police knew that D’Ambrosio had been victimized by other students, a fact which supported the
inference that D’Ambrosio was threatening the school. First, for purposes of summary judgment,
plaintiff admitted that he had been bullied since the third grade, that he could not walk the halls
of the high school without being targeted, and that he was severely beaten months prior to the
Facebook posting. (#75 at 1.) Second, even taking the facts in the light most favorable to
D’Ambrosio, one still may infer that since the alarm was raised at the high school by first, one
frightened student, to whom Officer Mellor spoke directly, and then many other students, and
since several school administrators were involved in responding to the post, the police had some
knowledge about D’Ambrosio’s history. Even if one does not draw this inference, however,
Officer Mellor still testified at his deposition that he thought the post was a threat to the high
school building, and the people in it. (#71-4 at 12-13, 29-32.) Further, Officer Mellor’s belief
that D’Ambrosio was addressing students at the high school was in fact correct, as D’Ambrosio
testified to that at his deposition. (#71-1 at 4-6.) Finally, although it is a fine point, when Officer
Mellor was driving and spotted D’Ambrosio walking down the street, it is apparent from his
deposition testimony that Officer Mellor recognized him, and he testified that he called out to
him using a shortened version of his name, “Cam,” suggesting that he knew him. (#70-5 at 19.)
15
that comes across me!” Id. A reasonable police officer could have read this to mean that
D’Ambrosio was threatening to commit murder, on a scale worse than the Boston Marathon
bombing (in which three people were killed and several hundred were injured), with a weapon,
whatever it might be, that was capable of that kind of destruction. The officer could also
reasonably have inferred that the attack would take place at the high school, since the post
appeared to be directed toward those who had bullied D’Ambrosio, and they were his fellow
students. Viewing these facts from the vantage point of a reasonable officer, the determination
that D’Ambrosio had violated the statute was not a “mere suspicion,” but was reasonably likely.
Valente, 332 F.3d at 32. The police had probable cause to arrest him.
The court will go on to analyze this case under the law of qualified immunity, because
even if one assumes arguendo that the police did not have probable cause, the court concludes
that the officers still should be protected from suit.
VI.
The Law of Qualified Immunity.
Qualified immunity protects an officer from civil liability “when a reasonable decision in
the line of duty ends up being a bad guess.” Belsito Comm’ns, Inc. v. Decker, 845 F.3d 13, 22
(1st Cir. 2016) (citing Taylor v. Barkes, -- U.S. --, 135 S. Ct. 2042, 2044 (2015) (further internal
citations omitted)); see also Rivera-Corraliza v. Morales, 794 F.3d 208, 215 (1st Cir. 2015)
(“Courts penalize officers for violating bright lines, not for making bad guesses in grey areas.”).
It protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v.
al-Kidd, 563 U.S. 731, 743 (2011). The doctrine “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.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). Claims of qualified immunity are viewed
16
“through the lens of objective reasonableness.” Conlogue v. Hamilton, 906 F.3d 150, 154 (1st
Cir. 2018). “So viewed, only those officials who should have known that their conduct was
objectively unreasonable are beyond the shield of qualified immunity and, thus, are vulnerable to
the sword of liability.” Id.; Anderson v. Creighton, 483 U.S. 635, 639 (1987).
The Supreme Court has established a two-part inquiry in determining whether a
government official is entitled to qualified immunity. Pearson, 555 U.S. at 232 (citing Saucier v.
Katz, 533 U.S. 194, 201 (2001)). To avoid summary judgment based on a qualified immunity
defense, D’Ambrosio must show that: (a) defendants violated his constitutional rights; and (b)
“these rights were so clearly established that a reasonable officer should have known how they
applied to the situation at hand.” Belsito, 845 F.3d at 23 (citing City & Cnty. of S.F. v. Sheehan, - U.S. --, 135 S. Ct. 1765, 1774 (2015); Pearson, 555 U.S. at 232; Cortes-Reyes v. SalasQuintana, 608 F.3d 41, 51-52 (1st Cir. 2010)). The court may analyze the qualified-immunity
steps in any order. Belsito, 845 F.3d at 23.
When an officer consults with a prosecutor about “the legality of an intended action,” the
officer’s “reliance on emergent advice” may be relevant to the officer’s later conduct and may
help to establish qualified immunity. Belsito, 845 F.3d at 24. The First Circuit has admonished,
however, that “a wave of the prosecutor’s wand cannot magically transform an unreasonable
probable cause determination into a reasonable one,” and in order to rely on a prosecutor’s
advice, the officer must have made a “full presentation of the known facts.” Cox, 391 F.3d at 3435. Further, the officer’s reliance on the advice must be “objectively reasonable.” Id. at 35. An
officer’s reliance on a prosecutor’s advice will not factor favorably into the qualified immunity
analysis when “an objectively reasonable officer would have cause to believe that the
prosecutor’s advice was flawed, off point, or otherwise untrustworthy.” Id.
17
VII.
Qualified Immunity Analysis - D’Ambrosio’s Arrest.
A. D’Ambrosio’s Fourth Amendment Rights.
To analyze this matter, the court goes directly to the “clearly-established” step, which
requires D’Ambrosio to identify “controlling authority” or a “robust consensus of cases of
persuasive authority” that forbade the police from acting as they did. Belsito, 845 F.3d at 23.
B. Was the Fourth Amendment Right Clearly Established?
In determining whether a right was clearly established, the court asks two questions: (a)
whether there was “controlling authority or a consensus of persuasive authority sufficient to put
an officer on notice that his conduct fell short of the constitutional norm”; and (b) whether “an
objectively reasonable officer would have known that his conduct violated the law.” Conlogue,
906 F.3d at 155 (citing McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017), cert. denied, 138
S. Ct. 1131 (2018)).
D’Ambrosio was arrested in May 2013. Six years before, the Supreme Judicial Court of
Massachusetts (SJC) discussed the elements of c. 269, § 14 in Commonwealth v. Kerns, 871 N.E.
2d 433 (Mass. 2007). Citing the statute’s “unambiguous language,” the SJC held that § 14(b)
requires the Commonwealth to prove “(1) that the defendant willfully communicated, or caused
to be communicated, a threat (2) to use or have present (3) one of an enumerated list of
dangerous devices, substances, or items capable of causing death, serious bodily injury, or
substantial property damage (4) at a place or location.” Id. at 441. Observing that the statute was
enacted just after the September 11, 2001 attacks, the SJC “conclude[d] that the Legislature
intended to punish the communication of any threat that a deadly, dangerous, or destructive
device, substance, or item is or will be present or used at a specific place or location.” Id. “Read
18
straightforwardly, the statute protects any ‘place or location’ from threats that deadly, dangerous,
or destructive weapons will be present or used, regardless of an actual ability or intention to
carry out the threat.” Id. The court found there is no requirement that the threat be communicated
to any potential target. Id. at 441-42. In short, § 14(b) “protects places or locations, and
ultimately, the public.” Id. at 443.
Notwithstanding the SJC’s explication of the elements of § 14(b) in Kerns, between 2007
and the date of D’Ambrosio’s arrest in 2013, there were few reported cases concerning the
statute, and none exploring the nuances of its application. However, even though they were
issued after D’Ambrosio’s arrest, two orders by Superior Court Judge Janet Kenton-Walker shed
light on problems that arise in applying the SJC’s pronouncements in Kern to particular facts.
In Commonwealth v. Forts, 2015 WL 6956784 (Nov. 6, 2015), Judge Kenton-Walker
considered whether an indictment should be dismissed against a high school student who was
charged under § 14 with making a bomb threat, where he caused his high school to be evacuated
by leaving messages around the school that suggested that the school would be bombed and, in
one missive, wrote: “Founders Hall – evacuate at 2:33 p.m.” Id. at *2.
In response to defendant’s argument that he did not name a specific weapon in his threats,
Judge Kenton-Walker noted that the statute criminalizes a threat that is made “directly or
indirectly,” so that even if a threat is not specific, “indictment is still proper if a grand jury
determines that the recipient of the threat could reasonably infer that the defendant intended to
use or have present one of the listed weapons.” Id. at *4. She also pointed to the “catch-all”
phrase in the statute: “any other device, substance, or item capable of causing death, serious
bodily injury or substantial property damage.” Id. She concluded: “A threat under § 14,
therefore, need not contain a specific reference to guns, bombs, chemicals, biological agents, or
19
any other weapon, so long as the recipient of the threat reasonably understands that the
individual making the threat intends to use or make present some ‘device, substance or item’
capable of inflicting serious harm, death, or serious property damage.” Id. Judge Kenton-Walker
thus held that while the defendant had not made an explicit reference to any device in his
communications, the indictment should not be dismissed, because one could infer from the
threats communicated that defendant intended to commit “mass murder,” or at least damage the
school building, using “a device, substance or item” capable of causing serious harm or death. Id.
at *5.
In Commonwealth v. Grenga, 2015 WL 6956766 (Nov. 6, 2015), Judge Kenton-Walker
again ruled on a motion to dismiss an indictment for violation of § 14, where a high school
student had asked a teacher what she would do if he showed up to school wearing a bomb vest,
and then later drew a picture of himself wearing one, with the word “soon” under the picture. Id.
at *1. The court found that the evidence presented to the grand jury was sufficient to indict him
for making a bomb threat, because the drawing, considered in light of his prior question to his
teacher, was a communication of his intent to come to the school wearing a bomb vest. Id. at *3.
“Public officials … need not be legal savants to win a qualified immunity case.” Belsito,
845 F.3d at 23 (citing Crawford-El v. Britton, 523 U.S. 574, 590 (1998)). If the relevant “legal
principles are clearly established at only a level of generality so high that officials cannot fairly
anticipate the legal consequences of specific actions, then the requisite notice is lacking.” Savard
v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003) (en banc) (holding that “relevant legal rights and
obligations must be particularized enough that a reasonable official can be expected to
extrapolate from them and conclude that a certain course of conduct will violate the law”).
Although a legal principle can be “clearly established” without factually identical precedent, “the
20
existing case law must have placed the constitutional … question ‘beyond debate.’” PaganGonzalez v. Moreno, -- F.3d --, 2019 WL 1306382 (1st Cir. Mar. 22, 2019) (quoting Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (per curiam)).
At the time of D’Ambrosio’s arrest in 2013 there did not exist “controlling authority”
sufficient to put the officers here on notice that their conduct fell short of the constitutional norm.
Conlogue, 906 F.3d at 155. One might argue, as plaintiff does, that Kerns held that in order to
violate § 14, D’Ambrosio’s post must have constituted a threat that a certain device would be
present at a certain place. However, neither Kerns nor any other Massachusetts case between
2007 and 2013 provides guidance concerning the situation, such as the one here, where a threat
to use a device at a certain location may be inferred from a communication. Although the orders
by Judge Kenton-Walker, discussed above, were issued after D’Ambrosio’s arrest, her
application of the law to specific facts demonstrates that the case law at the time of
D’Ambrosio’s arrest did not constitute “a consensus of persuasive authority” to guide the
officers’ actions in this matter. Id. For example, she held that a threat can violate the statute even
though it does not name a specific weapon, as long as one can infer that the harm threatened
would require the use of one. Commonwealth v. Forts, 2015 WL 6956784, at *4. Likewise, her
decision in the second case suggests that the threat need not explicitly specify the location of the
threatened action, as long as the location may be inferred from the facts surrounding the threat.
See Commonwealth v. Grenga, 2015 WL 6956766, at *1. The orders, while they do not have
precedential value, illustrate the ambiguities facing law enforcement officials in applying § 14 to
specific facts, ambiguities that the Kerns decision did not address.
In the context of a warrantless arrest, the First Circuit has held that an officer is entitled to
qualified immunity if the presence of probable cause is at least arguable. Glik v. Cunniffe, 655
21
F.3d 78, 88 (1st Cir. 2011) (citing Ricci v. Urso, 974 F.2d 5, 7 (1st Cir. 1999)) (further internal
citations omitted) (emphasis added); see also Topp v. Wolkowski, 994 F.2d 45, 48 (1st Cir. 1993)
(holding that an arrest challenged as unsupported by probable cause is deemed to be objectively
reasonable unless there “clearly was no probable cause” at the time the arrest was made.)
(emphasis in original; internal citation and quotation marks omitted).8 That standard is met here,
and the officers are entitled to qualified immunity on the Fourth Amendment claims.
VIII.
First Amendment § 1983 Claim.
In Count I, in addition to his Fourth Amendment claims, D’Ambrosio alleges that
defendants violated his rights under the First Amendment and under Article 16 of the
Massachusetts Declaration of Rights, by arresting him (and taking further actions against him),
for making the post. (#1 at 15-17.)
The fact that the court has found that the officers had probable cause to arrest
D’Ambrosio does not necessarily settle the question whether they violated his First Amendment
rights. The First Circuit has approved jury instructions directing that an officer can be liable
under the First Amendment even where an arrest is supported by probable cause, if the jury finds
that the officer’s intent to curb the expression was the determining or motivating factor behind
The court finds that Sergeant Ewing’s consultation with the prosecutor adds little to the court’s
calculus. As mentioned above, the First Circuit has stated that “a pre-arrest opinion from a
favorable prosecutor does not automatically guarantee that qualified immunity will follow.” Cox,
391 F.3d at 35. Here, Sergeant Ewing spoke to the ADA, whose name he no longer remembered,
for “a couple of minutes.” (#70-7 at 3-5.) He did not read the post to the prosecutor, but merely
“summed [the post] up in roughly two or three lines.” Id. at 7. Ewing’s conversation with the
ADA was not the “full presentation of the known facts” that the First Circuit has stated would
enable a reasonable officer to rely on a prosecutor’s advice. Cox, 391 F.3d at 34-35. The ADA’s
response--“[I]t sounds like it’s the threats. If you guys see [D’Ambrosio], you should grab him”-hardly constitutes thoughtful legal advice concerning what crime D’Ambrosio might have
committed. Id.
8
22
the arrest. Tatro v. Kervin, 41 F.3d 9, 18 (1st Cir. 1994); Freedman v. Ali, No. 16-CV-11151DJC, 2018 WL 5982018, at *4 (D. Mass. Nov. 14, 2018).
Here, there is no evidence that the police were motivated by a desire to squelch
D’Ambrosio’s writing rap lyrics. This is not a case where the police arrested someone
specifically for engaging in protective speech, such as yelling at officers in a hostile manner, see
Lewis v. City of New Orleans, 415 US. 130, 132 (1974), or for annoying or offending officers,
see Houston v. Hill, 482 U.S. 451, 465 (1987). Rather, the officers believed D’Ambrosio had
violated a threats statute, and arrested him for that. See Nuon v. City of Lowell, 768 F. Supp. 2d
323, 335 (D. Mass. 2011) (holding that where officer was not motivated by desire to stop
plaintiff from engaging in protected speech, but in good faith wrongly believed he had probable
cause to arrest plaintiff for disorderly conduct, plaintiff’s motion for summary judgment on First
Amendment violation denied).
One twist remains to be straightened out. Plaintiff argues that the police violated his First
Amendment rights because his post was protected under the “true threats” doctrine. The First
Amendment permits restrictions on speech in a few limited areas, including where the speech
constitutes a “true threat.” Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam). Watts
held that the First Amendment protects statements that a reasonable person would not regard as
threatening. Id. at 706-08. The First Circuit articulates this objective standard, under which a
defendant may be convicted for making a threat, as “whether he should have reasonably foreseen
that the statement he uttered would be taken as a threat by those to whom it [wa]s made.” United
23
States v. Clemens, 738 F.3d 1, 10 (1st Cir. 2013) (quoting United States v. Fulmer, 108 F.3d
1486, 1491 (1st Cir. 1997) (internal quotation marks omitted).9
Massachusetts courts appear to endorse a subjective test. The SJC has said that “[t]he
term ‘true threat’ has been adopted to help distinguish between words that literally threaten but
have an expressive purpose such as political hyperbole, and words that are intended to place the
target of the threat in fear, whether the threat is veiled or explicit.” Commonwealth v. Chou, 741
N.E.2d 17, 23 (Mass. 2001) (communication was not protected by First Amendment because it
was intended to “get back” at the victim) (emphasis added). The SJC again said, in a more recent
case, that the “true threats” doctrine “applies not only to direct threats of imminent physical harm
but to words or actions that — taking into account the context in which they arise — cause the
victim to fear such harm now or in the future and evince intent on the part of the speaker or actor
to cause such fear.” O’Brien v. Borowski, 961 N.E.2d 547, 556 (Mass. 2012) (emphasis added),
abrogated on other grounds by Seney v. Morhy, 3 N.E.3d 577 (Mass. 2014).
If one applies the federal reasonable person standard to D’Ambrosio’s post, he loses: if
there was probable cause to arrest him, then ergo, he should have “reasonably foreseen that the
statement he uttered would be taken as a threat by those to whom it [wa]s made.” Clemens, 738
F.3d at 10. The Massachusetts subjective test is a closer call. It is an open question whether, at
the summary judgment stage, taking the facts in the light most favorable to him, D’Ambrosio’s
9
In Clemens, the First Circuit was invited to change its long-standing “objective defendant’s
vantage point test” to a subjective test, based on language in Virginia v. Black, 538 U.S. 343
(2003). Clemens, 738 F.3d at 2. Some courts, such as the Ninth Circuit, see United States v.
Bagdasarian, 652 F.3d 1113, 1117 (9th Cir. 2011), have held that the Supreme Court in Black
directed that a subjective test should be used for “true threats,” but the First Circuit declined to
change its rule: “Absent further clarification from the Supreme Court, we see no basis to venture
further and no basis to depart from our circuit law.” Id. at 12.
24
protestations that he was only writing rap lyrics might create a disputed issue of fact on the point
whether he intended to put anyone in fear. O’Brien, 961 N.E.2d at 556.
Nevertheless, the court finds that the officers here have qualified immunity. Plaintiff has
pointed to no case law that demonstrates there was “controlling authority or a consensus of
persuasive authority sufficient to put an officer on notice” that under the circumstances here,
D’Ambrosio was entitled to protection for his speech. Conlogue, 906 F.3d at 155. One cannot
expect arresting officers, alarmed by a perceived violation of a threats statute, acting within a
very short period of time, when told by an arrestee that he was only artistically expressing
himself and did not mean to threaten anyone, to first, decide whether they believe him, and then,
engage in a debate concerning the interplay between federal and state intent requirements
concerning the “true threats” doctrine. The law simply does not require it.
For the reasons set out above, all the claims concerning D’Ambrosio’s First and Fourth
Amendment rights fail, including claims involving his initial stop and frisk, claims that police
wrongly accused him of violating c. 269, § 14, wrongly submitted the criminal complaint, sought
an unreasonable bail, made false statements to the press, failed to conduct a proper investigation,
wrongly obtained a search warrant for his home,10 violated his privacy, and maliciously
prosecuted him.11 (#1 at 15-17.)
10
Suit is allowed concerning a wrongly-issued search warrant only when “it is obvious that no
reasonably competent office would have concluded that a warrant should issue.” Malley v.
Briggs, 475 U.S. 335, 341 (1986); Messerschmidt v. Millender, 565 U.S. 535, 546-48 (2012).
That standard cannot be met here.
To show that the officers were liable for his continued pretrial detention, D’Ambrosio would
have to show that they committed some malfeasance such as lying to prosecutors, failing to
disclose exculpatory evidence, or unduly pressuring prosecutors to seek charges. HernandezCuevas v. Taylor, 723 F.3d 91, 100 (1st Cir. 2013). D’Ambrosio argues that this requirement was
met here because the officers demonstrated a “reckless disregard for the truth,” as there was not
probable cause to arrest him. (#83 at 2.) But the court has found that the officers did have
11
25
IX.
Conspiracy Claims.
In Count II, D’Ambrosio alleges that the officers committed common law conspiracy to
violate his civil rights in violation of 42 U.S.C. § 1983, with the same wrongful actions alleged
as in Count I. Id. at 18-20. Given the court’s resolution of the § 1983 claims, the conspiracy
claims fail.
X.
Claims Under the MCRA.
In Count III, D’Ambrosio alleges that the officers violated the MCRA, repeating the
factual allegations from Count I. Id. at 20-21. In Count IV, he alleges that they committed
common law conspiracy to violate his civil rights under the MCRA. Id. at 21-23.
The MCRA is the state analog to § 1983 and provides a cause of action for an individual
whose rights under the Constitution or laws of either the United States or the Commonwealth of
Massachusetts have been interfered with by “threats, intimidation or coercion.” Mass. Gen. Laws
c. 12, §§ 11H and 11I. The SJC has held that MCRA claims are subject to the same standard of
qualified immunity for police officers that is used for claims asserted under § 1983. Duarte v.
Healy, 537 N.E.2d 1230 (Mass. 1989); Nuon, 768 F. Supp. 2d at 333 (citing Howcroft v. City of
Peabody, 51 Mass. App. Ct. 573, 595, 747 N.E.2d 729 (2001) (further internal citation omitted)).
The court has found that the officers have not violated D’Ambrosio’s rights under the
MCRA, and in any event, they are entitled to qualified immunity, so these claims fail.
probable cause to arrest, and plaintiff does not allege that the officers had any other improper
purpose in arresting him. Further, as set out earlier, after his arrest, D’Ambrosio’s dangerousness
hearing under c. 279, § 58A was continued from May 2 to May 9, 2018, which means that the
district court judge would have to have found that probable cause existed to arrest him. The
officers cannot be blamed for his continued detention after his arrest.
26
XI.
Remaining State Law Claims.
Defendants seek summary judgment on D’Ambrosio’s state law claims for false
imprisonment (Count VI), false arrest (Count VII), malicious prosecution (Count VIII), and
intentional infliction of emotional distress (Count IX).
Under Massachusetts law, the elements of false imprisonment are (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. Nuon, 768 F. Supp. 2d at 336 (quoting
Noel v. Town of Plymouth, Mass., 895 F. Supp. 346, 354 (D. Mass. 1995) (further citations
omitted)); see also Wax v. McGrath, 151 N.E. 317 (Mass. 1926) (unlawful restraint by force or
threat constitutes false imprisonment). A police officer is not liable for false imprisonment if he
had a legal justification for the confinement. Cabot v. Lewis, 241 F. Supp. 3d 239, 258 (D. Mass.
2017) (citation omitted). Here, the court has found that there was probable cause to arrest
D’Ambrosio, and so, this claim fails. Id. at 258-59. (“Because success on his false imprisonment
claim would require plaintiff to show that his arrest lacked probable cause, that claim is
barred.”).
Under Massachusetts law, “[t]he elements of a false arrest claim are: ‘(1) defendant(s)
intended to confine plaintiff, (2) plaintiff was conscious of the confinement, (3) plaintiff did not
consent to the confinement, and (4) defendants had no privilege to cause the confinement.’” Id.
at 259 (quoting Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 3 n.6 (1st Cir. 1995)). Again, as
the officers had probable cause to arrest, the claim fails. Id. (“Although probable cause is not an
element of false arrest, the existence of probable cause defeats a false arrest claim.”) (citations
omitted).
27
The elements of a common-law cause of action for malicious prosecution are (1) the
commencement or continuation of a criminal proceeding against the plaintiff at the behest of the
eventual defendant, (2) the termination of the proceeding in favor of the accused, (3) an absence
of probable cause for the charges, and (4) actual malice. Limone v. United States, 579 F.3d 79,
89 (1st Cir. 2009) (“To prevail on a malicious prosecution claim under Massachusetts law, a
suitor must prove that the defendant (i) instituted criminal proceedings (ii) with malice and (iii)
without probable cause, and (iv) that the proceedings were terminated in the accused’s favor.”)
(citation omitted); Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001); Freedman, 2018 WL
5982018, at *5. This claim, too, fails, because the police had probable cause to arrest. But even if
there had not been probable cause, plaintiff cannot establish that the defendants acted with actual
malice. Massachusetts employs the “improper purpose” analysis set forth in § 676 of the
Restatement (Second) of Torts to define the element of malice in a malicious prosecution case.
Chervin v. Travelers Ins. Co., 858 N.E.2d 746 (Mass. 2006). To prove an improper purpose, the
plaintiff must show that defendants “acted primarily for a purpose other than that of properly
carrying out [their] duties, or w[ere] attempting to achieve an unlawful end or a lawful end
through unlawful means, or intended to harass, vex, or annoy the plaintiff.” Williams v. City of
Boston, 771 F. Supp. 2d 190, 206 (D. Mass. 2011); Johnson v. Charbonnier, No. 13-CV-13301ADB, 2015 WL 8215892, at *6 (D. Mass. Dec. 8, 2015) (quoting Shea v. Porter, No. CIV.A. 0812148-FDS, 2013 WL 1339671, at *5 (D. Mass. Mar. 29, 2013)). D’Ambrosio has offered no
evidence to meet this standard.
The elements of an intentional infliction of emotional distress (IIED) claim are (1)
defendants intended to inflict emotional distress or knew or reasonably should have known that
emotional distress was likely to result from such conduct, (2) the conduct was extreme and
28
outrageous, (3) the defendants’ conduct proximately caused plaintiff’s emotional distress, and (4)
the distress was so severe that no reasonable man could be expected to endure it. Sindi v. ElMoslimany, 896 F.3d 1, 21 (1st Cir. 2018); Limone, 579 F.3d at 91 (“Under Massachusetts law,
an individual is liable for intentional infliction of emotional distress when he, by extreme and
outrageous conduct and without privilege, causes severe emotional distress to another.”) (internal
citation and quotation marks omitted). Even assuming arguendo that there was no probable cause
for D’Ambrosio’s arrest, his IIED claims fail “because the facts as alleged are not sufficiently
outrageous to support such a cause of action.” Godette v. Stanley, 490 F. Supp. 2d 72, 81 (D.
Mass. 2007); Thomas v. Town of Chelmsford, 267 F. Supp. 3d 279, 311 (D. Mass. 2017)
(“Outrageous means a high order of reckless ruthlessness or deliberate malevolence that ... is
simply intolerable. ... No extreme and outrageous conduct is adequately pleaded.”) (internal
citation and quotation marks omitted).
XII.
Conclusion.
Defendants’ Motion for Summary Judgment (#65) is ALLOWED. D’Ambrosio’s Motion
for Partial Summary Judgment (#67) is DENIED. Judgment shall enter for the defendants.
March 31, 2019
/s/ M. Page Kelley
M. Page Kelley
United States Magistrate Judge
29
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