Taylor v. Town of Falmouth et al
Filing
101
Chief Judge Patti B. Saris: MEMORANDUM AND ORDER entered.The Court ALLOWS IN PART and DENIES IN PART Defendant's motion for summary judgment (Docket No. 56 ). SO ORDERED.(Lara, Miguel)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
PATROL OFFICER RYAN MOORE
)
and TOWN OF FALMOUTH,
)
)
Defendants.
)
___________________________________)
CARLI A. TAYLOR,
Civil Action
No. 17-11443-PBS
MEMORANDUM AND ORDER
June 6, 2019
Saris, C.J.
INTRODUCTION
Plaintiff Carli A. Taylor asserts that Patrol Officer Ryan
Moore violated her civil rights under 42 U.S.C. § 1983 and the
Massachusetts Civil Rights Act during a traffic stop in
Falmouth, Massachusetts. She alleges that Moore used excessive
force when, after stopping her for suspected drunk driving, he
grabbed her arm, pulled her out of the car, put her on the
ground, placed his knee on her back, and tased her. She also
asserts a claim against the Town of Falmouth for its failure to
discipline, train, or supervise its officers. Defendants move
for summary judgment, arguing that Moore is protected by
qualified immunity and that Taylor presents no evidence to
1
support an allegation that the Town was deliberately indifferent
to the rights of its citizens. After hearing, the Court ALLOWS
IN PART and DENIES IN PART Defendants’ motion for summary
judgment (Docket No. 56).
BACKGROUND
The parties heavily dispute the facts concerning the night
in question, but at this stage of the litigation, the Court
reviews the record in the light most favorable to the nonmoving
party. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217
F.3d 46, 52 (1st Cir. 2000).
I. Drunk Driving
On the night of Tuesday, September 9, 2014, Carli A. Taylor
met a friend for dinner at Bobby Byrne’s Restaurant and Pub in
Mashpee on Cape Cod. She had a beer and ordered dinner.
Afterwards, Taylor drove to two other bars. Taylor does not
remember the name of the second bar, or how long she stayed
there. She does remember driving to the third location, the
Añejo Mexican Bistro & Tequila Bar in Falmouth, Massachusetts.
At Añejo, Taylor had a margarita. When Taylor left Añejo to
drive home, bar employees took down her license plate number and
called the police to report suspected drunk driving. Falmouth
patrol officers were subsequently dispatched to find her.
Taylor was driving herself home along Route 28 in Falmouth
when she observed two bicyclists on her right and had to
2
“swerve” to go around them. Almost immediately afterwards,
Taylor saw blue police lights go on behind her. Docket No. 58-1
at 53:12-18. She pulled over, turned her car off, and produced
her license and registration when the officer approached her
driver-side window. Patrol Officer Ryan Moore of the Falmouth
Police Department asked Taylor if she knew why he had pulled her
over, and she said she did not. She lied and said that she was
coming from work. After further conversation, Taylor eventually
admitted that she had been at Añejo. Taylor knew she was in
trouble at the time because she had consumed too much alcohol to
drive.
Moore asked Taylor to “step out of the car,” at which point
Taylor said that she “would like to wait for backup.” Id. at
56:4-13. Moore then went back to his cruiser. When Moore
returned to Taylor’s car, he again requested that she step out
of the vehicle and asked Taylor to perform a field sobriety
test. At this point Moore’s demeanor was “forceful” but he was
not “yelling.” Id. at 57:3-6. Taylor stated again that she
“would wait for backup” before getting out of the car. Id. at
56:4-13; Docket No. 64-1 at 68:22. Moore continued to tell
Taylor that she needed to take a field sobriety test, or she
would be arrested based on his observations. Taylor continued to
refuse to get out of the car without back-up present. Moore went
back to the rear of the vehicle and called dispatch to send
3
another police unit. Moore returned to Taylor’s driver-side
window and again asked her to get out of the car. And again,
Taylor refused. She does not know exactly how many times Moore
told her to get out the car during their conversation.
II. Use of Force
Without warning, Moore proceeded to reach in through
Taylor’s open driver-side window, open the car door, grab
Taylor’s arm, and pull her out of the car. Once Taylor was out
of the car, Moore dragged Taylor to the rear of the vehicle,
away from the road. Taylor was not resisting at this point and
her feet barely hit the ground. Moore then put Taylor on the
ground, face first. Taylor describes being “slammed” into the
ground causing her eye to hit a rock. Docket No. 34 ¶ 191.
With Taylor prone on the ground, Moore pressed his knee
into her back, a position he characterizes as a “full body
mount.” Docket No. 34 ¶ 19; Docket No. 64 ¶ 101. Moore attempted
to get control of Taylor’s hands in order to handcuff her.
Taylor was screaming for help at this point. Moore ordered her
to stop resisting and put her hands behind her back for cuffing.
Whenever she attempted to lift her head off the ground, Moore
During her deposition, Taylor was asked to confirm whether paragraphs 9
through 46 of her complaint were “true and accurate.” Docket No. 72-4 at
155:3-4. She replied that they were “[t]o the best of [her] knowledge” and
made one modification to paragraph 14. Id. at 155:5-13. At the hearing,
Plaintiff’s counsel agreed that the complaint was “verified” with respect to
these paragraphs. See also Docket No. 72 at 3.
1
4
pushed it back down. Taylor pleaded for Moore to release her,
stating that she would do whatever he wanted her to do.
With his knee still on top of Taylor’s back, Moore
unholstered his taser and threatened to deploy it. Taylor
asserts that the “full body mount” position made it impossible
for her to comply with Moore’s orders. The only thing she could
move was her head and hear hands were beside her. Moore told
Taylor that if she “didn’t shut up he was going to taze [her].”
Docket No. 58-1 at 75:22-24; Docket No. 64-1 at 81:8-11. Taylor
tried to look back at Moore, but he proceeded to lift her shirt
and place the taser’s electrodes directly on her back. Moore
then deployed his taser in “drive-stun” mode. The parties
dispute how many times Moore tased Taylor, with Taylor asserting
that she was tased at least two times. Taylor screamed out in
pain and then went motionless.
Moore stayed with his knee on Taylor’s back, using his body
weight to control her until a second officer arrived. At the
time of the incident, Taylor was five feet, five inches tall and
weighed 125 pounds. Officer Walker arrived at the scene, and the
two officers placed Taylor in handcuffs. The officers lifted
Taylor off the ground and placed her in the back of a police
cruiser, with one officer having to fold her legs into the car
in order to close the door because she was unable to do so at
that point due to the taser.
5
The officers transported Taylor back to the police station
where she was booked and charged with several offenses. Sergeant
Cummings made notes regarding Taylor’s injuries. Photographs of
her injuries were also taken, which show cuts, scratches, and
abrasions on Taylor’s arms, shoulders, and right hand. Photos
also appear to show four marks on Taylor’s back. Taylor refused
to take a breathalyzer test and was ultimately released to her
mother and sister at 2:00 AM on September 10, 2014.
III. Aftermath
Later on September 10, Taylor appeared in court and then
went to Falmouth Hospital for emergency medical care. Taylor was
diagnosed with facial trauma, with additional diagnoses of
concussion and headache. Since the incident, Taylor has
experienced frequent migraines, headaches, nausea, sound and
light sensitivity. In November of 2016, Dr. Deborah Tepper
diagnosed Taylor with chronic post-traumatic headaches, which
started immediately after her concussion. In March of 2018,
Taylor sought evaluation for what she described as near daily
headaches and was diagnosed by Dr. John Pettinato with chronic
migraines. With respect to the charges against her, Taylor
eventually admitted to facts sufficient to make out the charge
of driving under the influence, which was continued without a
finding.
6
IV. Experts
A. Plaintiff’s Medical Expert
Dr. Gary Stanton conducted a physical examination of Taylor
on December 13, 2018 and reviewed her prior medical records,
including notes from Drs. Tepper and Pettinato. After his
physical examination of the Plaintiff, Dr. Stanton diagnosed her
with postconcussion syndrome, migraines, cough/sneeze-induced
headaches, and Chiari I malformation. As to the causal
relationship for Taylor’s headaches, Dr. Station opined: “In my
opinion, the incident of 9/09/2014 was causally related to Ms.
Taylor’s ongoing complaints of posttraumatic headaches, which in
her case is a symptom of a postconcussion syndrome.” Docket No.
75-5 at 7. He went on to state that Taylor’s “postconcussion
syndrome [was] unlikely to substantially change in the next
year,” and that while she complained of “mild memory
difficulties,” it “does not interfere with activities of daily
living.” Id.
B. Plaintiff’s Use of Force Expert
David W. O’Laughlin, Taylor’s use-of-force consultant, has
more than 43 years of experience in law enforcement, is a
certified master instructor in the use of force, and holds more
than 30 additional federal, state, and industry certifications
in law enforcement force-related disciplines. After reviewing
Falmouth Police Department policies, and reports from the night
7
of the incident, O’Laughlin stated that “[i]n [his] many years
as a defensive tactics instructor[,] [he had] not heard of [a
full body mount] and [does] not recognize it as one being taught
by the Massachusetts Police Training Committee.”
Docket No. 64-
3 at 4. He opined that “Moore had no legitimate reason to remove
[Taylor] from the vehicle, as the vehicle was pulled to the side
of the road, was not running and was not creating a
hazard. . . . [H]er forceful removal from her vehicle was both
unreasonable and unnecessary.” Id. As to the tasing, O’Laughlin
stated Moore’s use of an electronic control device was “both
extreme and unnecessary.” Id. at 5. However, he conceded that
she was only tased once. Id. He explained that “[p]art of
defensive tactics training incorporates the practice of deescalation, using time and distance and the avoidance of
physical force.” Id. “Officer Moore,” O’Laughlin observed, “had
called for back-up assistance and yet decided not to wait for
that assistance, but instead became involved in actions using a
significant amount of force on an unarmed female who at best was
offering passive resistance.” Id. He continued that tasing “is
usually reserved for use on a person who has committed a crime
of violence and is presenting a danger or high risk of harm to
the officer,” and that “committing traffic violations, and being
suspected of driving under the influence does not rise to . . .
a level of danger to the officer that would result in the use of
8
such a high level of force.” Id. Finally, O’Laughlin concluded
that Moore did not act in accordance with the Falmouth police
Department’s policy on electronic control devices because “[i]t
is the policy of [the FPD] to use only that level of force
reasonable to control or otherwise subdue violent or potentially
violent individuals,” and “Taylor could not have posed a threat
to Officer Moore or any others, as she was down, on the ground,
in a so-called ‘full body mount’ at the point of being tasered.”
Id. at 6.
C. Defendants’ Taser Expert
Defendants initially submitted an affidavit from Bryan
Chiles, the product compliance manager and former validation
test manager of Axon Enterprise, Inc. (formerly TASER
International, Inc.), and then submitted a second affidavit
after the motion hearing. Chiles is currently responsible for
coordinating the testing and certification of Axon’s products,
and for conducting forensic investigations of Axon’s Conducted
Energy Weapons (CEW) products. The TASER X2 CEW has two
cartridge bays which allow two taser cartridges to be installed
at the same time. In his second affidavit, Chiles explained that
each cartridge has two electrodes, so that when both cartridges
are installed in the taser, the taser has four total electrodes
– two in the first cartridge bay and two in the second cartridge
bay.
9
There are two main ways to use a CEW – deploy a cartridge,
in which probes are fired at the subject, or drive-stun
application, in which the CEW is applied directly to the skin of
the subject without deploying the probes. Cartridge deployment
is designed to cause neuromuscular incapacitation, where as
drive-stun application only affects the sensory nerves of a
subject and does not cause a subject to lose voluntary muscle
movement. When the front of the X2 CEW is pressed against a
subject’s skin for a drive-stun application, “four burn marks in
the pattern of the four X2 CEW cartridge electrodes may be
visible on the skin from a single application.” Docket No. 78-4
¶ 15, at 6.
Chiles assertion that the X2 has four electrodes
contradicts the testimony of Detective Christopher Bartolomei,
submitted by Defendants prior to the motion hearing. Bartolomei,
the certified TASER and defensive tactics instructor for the
Falmouth Police Department, stated that the “Arc discharge also
allows for an officer to use the X2 in the ‘drive-stun’
(touch/contact) mode in which electrical impulses are
transmitted to an individual superficially through two fixed
electrodes on the front of the Taser.” Docket No. 58-6 ¶ 13, at
2 (emphasis added).
10
Turning to the taser log submitted by Defendants, Chiles
explains that the X2 CEW automatically records the date, time,
and details of each event in its event log (also known as a
download report or TASER report). The X2 CEW records “every time
the weapon is armed, the trigger is pulled, either ARC switch is
pressed to activate the high voltage, the menu is accessed, the
time is changed, the safety switch is placed in the safe
position,” etc. Docket No. 58-6 ¶ 13, at 9. A duration listed in
the event log is rounded up to the nearest second, so a duration
of 1 second can be anything from less than 0.05 seconds to 1.49
seconds. An “arc” event in the log means one of the X2 CEW’s arc
switches was pressed for more than 0.25 seconds in which high
voltage was activated for both cartridge bays, but neither
cartridge was deployed. Id. ¶ 29, at 12. Chiles’s analysis of
Moore’s X2 CEW event log reveals that the arc button activating
high voltage was pressed twice during the night, once at
10:54:25 p.m. at the beginning of Moore’s shift and again at
11:35:04 p.m. for a recorded duration of one second each. Chiles
concludes that “[i]n total, from September 9, 2014 11:00 p.m. to
September 10, 2014, 12:00 a.m., this CEW activated to deliver
electricity in ‘drive stun’ (arc) mode for a duration of one (1)
second.” Id. ¶ 34, at 14.
11
LEGAL STANDARD
Summary judgment is appropriate when there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue is
“genuine if the evidence about the fact is such that a
reasonable jury could resolve the point in the favor of the nonmoving party,” and “[a] fact is material if it has the potential
of determining the outcome of the litigation.” Farmers Ins.
Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quotation
omitted). The moving party is responsible for “identifying those
portions of [the record] which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). It can meet this burden
either by “offering evidence to disprove an element of the
plaintiff's case or by demonstrating an ‘absence of evidence to
support the non-moving party's case.’” Rakes v. United States,
352 F. Supp. 2d 47, 52 (D. Mass. 2005) (quoting Celotex, 477
U.S. at 325). If the moving party shows the absence of a
disputed material fact, the burden shifts to the non-moving
party to “set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256 (1986) (quotation omitted). “[C]onclusory
allegations, improbable inferences, and unsupported speculation”
are insufficient to create a genuine issue of material fact to
12
survive summary judgment. Sullivan v. City of Springfield, 561
F.3d 7, 14 (1st Cir. 2009) (quotation omitted). When ruling on a
motion for summary judgment, the court “view[s] the facts in the
light most favorable to the party opposing summary judgment.”
Rivera–Colón v. Mills, 635 F.3d 9, 10 (1st Cir. 2011).
DISCUSSION
I. Civil Rights Claims Against Moore (Counts I and II)
Moore argues that Taylor’s excessive force claims under 42
U.S.C. § 1983 and the Massachusetts Civil Rights Act fail as a
matter of law because he is entitled to qualified immunity.
“Qualified immunity affords limited protection to public
officials faced with liability under 42 U.S.C. § 1983, ‘insofar
as their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known.’” Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir. 2010)
(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The
qualified immunity analysis has two prongs: (1) whether the
facts that plaintiff has shown make out a violation of a
constitutional right, and (2) whether the right at issue was
“clearly established” at the time of defendant’s alleged
misconduct. Pearson, 555 U.S. at 232. These two prongs do not
need to be considered in a particular order, see id. at 236, but
“both prongs must be satisfied for a plaintiff to overcome a
qualified immunity defense,” Raiche, 623 F.3d at 35.
13
A. Constitutional Violation
“Excessive force claims are founded on the Fourth Amendment
right to be free from unreasonable seizures of the person.”
Raiche, 623 F.3d at 36. “The Fourth Amendment is implicated
where an officer exceeds the bounds of reasonable force in
effecting an arrest or investigatory stop.” Id. Whether the
force employed was reasonable under the circumstances is an
objective inquiry that is determined “in light of the facts and
circumstances confronting [the officers], without regard to
their underlying intent or motivation.” Graham, 490 U.S. at 397.
Factors to be considered include “the severity of the crime at
issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.”
Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007) (quoting
Graham, 490 U.S. at 396).
The question is whether a reasonable jury could find that
Moore violated Taylor's Fourth Amendment rights through the use
of excessive force. See Gray v. Cummings, 917 F.3d 1, 8 (1st
Cir. 2019). Viewing the record in the light most favorable to
Taylor, and drawing all reasonable inferences in her favor, a
reasonable jury could find that the force employed by Moore was
constitutionally excessive.
14
As a threshold matter, Moore had the right to require
Taylor to step out of the car. See United States v. Ruidiaz, 529
F.3d 25, 32 (1st Cir. 2008) (holding it is within an officer’s
authority to order the driver and any passengers out of the car
during a Terry stop, and that the officer can do so “as a matter
of course” without an “independent fear for his safety”); United
States v. Coplin, 463 F.3d 96, 102 (1st Cir. 2006) (noting that
“a police officer may, as a matter of course, require the driver
of a car lawfully stopped for a suspected traffic violation to
step out of his vehicle”). When Taylor refused to leave the car,
Moore had the right to use reasonable physical force to remove
her. “[T]he right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” Graham, 490
U.S. at 396. By her own account, Taylor was given multiple
chances to comply with Moore’s commands, and the amount of force
used was proportionate. See Boude v. City of Raymore, 855 F.3d
930, 934 (8th Cir. 2017) (“Officers are justified in using force
to remove a driver, whom they believed to be impaired, from his
vehicle after he refused to comply with their order to exit.”
(quotation omitted)). To this point, Moore’s actions were not
objectively unreasonable in light of the circumstances.
Taylor also alleges Moore used excessive force in taking
her to the ground, placing her in a “full body mount,” and
15
tasing her. The Graham factors cut both ways. With respect to
the first factor - the severity of the crime - drunk driving is
a serious offense, but once Moore pulled Taylor out of the car,
she was no longer able to drive away while intoxicated.
Moreover, it is not a violent crime like an assault or robbery.
See Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008) (“Though
driving while intoxicated is a serious offense, it does not
present a risk of danger to the arresting officer that is
presented when an officer confronts a suspect engaged in an
offense like robbery or assault.”). This factor weighs slightly
in Defendants’ favor. As to the second Graham factor - whether
the suspect poses an immediate threat to the safety of the
officers or others – Taylor was not an immediate threat to other
motorists, bicyclists, or Moore once she was out of the car.
There is no evidence that Taylor was threatening Moore once she
was out of the car, and a “jury could supportably find that, at
the time of the tasing, [Taylor] had been subdued [via a “full
body mount”] to a point at which she no longer posed a threat.”
Gray, 917 F.3d at 9. This factor weighs in favor of Taylor.
With respect to the third Graham factor – whether she was
actually resisting arrest - the parties heavily dispute whether
Taylor actually resisted arrest while on the ground. Viewing the
facts in the light most favorable to Taylor, a reasonable jury
could find she was not resisting when Moore dragged her to the
16
rear of the vehicle and slammed her to the ground before Moore
tased her. Instead, in her version, Taylor was not physically
able to comply with any order to put her hands behind her back
because of the way in which Moore was kneeling on her back in a
“full body mount.” Taylor pleaded with Moore that she would do
anything he wanted at that point, and yet when Taylor looked
back at Moore, he proceeded to deploy a pain compliance tool in
“drive-stun” mode. Crediting her account, the Court concludes
this Graham factor weighs in Taylor’s favor. Accordingly, the
Graham factors point in conflicting directions.
The parties dispute whether Moore tased Taylor once or
twice. In her deposition, Taylor testified that she remembered
being tased “[a]t least twice.” Docket No. 64-1 at 83:16-17. She
has also provided a photo distinctly showing four prong marks on
her upper right back. The record has been confusing on this
point. Initially, Defendants put forward evidence that the
device only had two electrodes. After the hearing on the motion
for summary judgment, Defendants submit that the taser Moore
used on the night of the incident contained four flat
electrodes, not two like some common taser models. Defendants
also submit a taser log, downloaded from the internal computer
of the taser Moore used, indicating that the taser “arc[ed]” –
or was only deployed - once during Moore’s encounter with
Taylor. See Docket No. 78-2 at 3. And Plaintiff’s expert seems
17
to concede that the log shows Taylor was only tased once.
Defendants argue that based on the record, the court must find
that Taylor was only tased once. See Scott v. Harris, 550 U.S.
372, 380 (2007) (“When opposing parties tell two different
stories, one of which is blatantly contradicted by the record,
so that no reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling on a
motion for summary judgment.”). The record, as stated, is still
unsettled because the Defendants submitted new evidence posthearing to which Plaintiff has not had time to reply.
Regardless, even if Taylor was only tased once by a fourpronged taser, based on Plaintiff’s testimony, photos, and
medical evidence, a jury could supportably find that Moore’s
decision to take Taylor to the ground, put her in a “full body
mount,” slam her head into the ground, and tase her was
constitutionally excessive. See Gray, 917 F.3d at 9 (holding
that a reasonable jury could find that a single use of a taser
in drive-stun mode to quell a nonviolent, mentally ill
individual who was taken to the ground but refused to comply
with order to put her hands behind her back, was excessive
force); Parker, 547 F.3d at 9 (finding an intoxicated driver’s
de minimis resistance to arrest insufficient to justify
deploying a taser in order to handcuff him); see also Ciolino v.
Gikas, 861 F.3d 296, 298, 304 (1st Cir. 2017) (holding that
18
although the plaintiff had “disobeyed a police order,” he “was
not given a chance to submit peacefully to arrest before
significant force was used to subdue him” and, therefore, “an
‘objectively reasonable police officer’ would have taken a more
measured approach” before forcing plaintiff to the ground
without warning); McCue v. City of Bangor, 838 F.3d 55, 64 (1st
Cir. 2016) (“[E]xerting significant, continued force on a
person's back while that [person] is in a face-down prone
position after being subdued and/or incapacitated constitutes
excessive force.” (alteration in original) (quotation omitted)).
While the calculus of reasonableness must embody allowance for
the fact that police officers are often forced to make splitsecond judgments, Moore’s use of his taser in this case was not
done in a split-second but was a deliberate choice, as evidenced
by his threatening her to be quiet and lifting her shirt to
apply the taser electrodes. Additionally, Plaintiff’s expert
opines that Moore’s use of the taser under these circumstances
was “both extreme and unnecessary” because Moore “had called for
back-up assistance and yet decided not to wait for that
assistance, but instead became involved in actions using a
significant amount of force on an unarmed female who at best was
offering passive resistance.” Docket No. 64-3 at 5.2
Cf. Parker, 547 F.3d at 9 (“The use of expert testimony is permissible in
assisting the jury in evaluating claims of excessive force.”).
2
19
B. “Clearly Established”
Having sufficiently shown a constitutional violation,
Taylor must next show that the right was “clearly established”
at the time of the violation. This prong has two parts: “(a) the
clarity of the law in general at the time of the alleged
violation; and (b) the clarity of the law as applied to the
case—in other words, whether a reasonable person in the
defendant's shoes ‘would have understood that his conduct
violated the plaintiff['s] constitutional rights.’” Raiche, 623
F.3d at 38 (alteration in original) (quoting Maldonado v.
Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)). Together, “these
steps normally require that, to defeat a police officer's
qualified immunity defense, a plaintiff must ‘identify a case
where an officer acting under similar circumstances was held to
have violated the Fourth Amendment.’” Gray, 917 F.3d at 10
(quoting City of Escondido v. Emmons, 139 S. Ct. 500, 504 (2019)
(per curiam)). The case “need not arise on identical facts,” so
long as it is sufficiently analogous. Id.
The parties provide dueling First Circuit cases as to
whether it was clearly established at the time of the incident,
in 2014, that Moore’s single use of a taser when a subject
refused to be handcuffed violated Taylor’s constitutional
rights. Taylor relies primarily on Parker v. Gerrish, which the
First Circuit decided in 2008. In Parker:
20
[T]he plaintiff had been stopped on suspicion of
driving while intoxicated. After the plaintiff failed
several sobriety tests, the officer tried to arrest
him. When the plaintiff resisted, the officer drew his
Taser and ordered the plaintiff to turn around and
place his hands behind his back. The plaintiff
complied but clasped his right wrist with his left
hand. Another officer approached and cuffed the
plaintiff's left wrist. There was substantial dispute
about what happened next, but according to the
plaintiff's account (to which the court was required
to defer in the posture of the case), he released his
right wrist, yet was tased anyway.
Gray, 917 F.3d at 12 (citations omitted). The First Circuit held
then “that the police officer could be found to have violated
the Fourth Amendment by tasing an unarmed suspect who, in the
course of an arrest, ‘present[ed] no significant active
resistance or threat’ at the time of the tasing.” Id.
(alteration in original) (footnote omitted) (quoting Parker, 547
F.3d at 10-11).
Defendants argue that Parker is inapplicable to the present
case, and that the First Circuit’s recent decision in Gray v.
Cummings should guide the Court. In Gray, a police officer was
dispatched to locate and return a patient who was experiencing a
manic episode and had absconded from a local hospital on foot.
917 F.3d at 6. When the officer located the patient, she swore
at him, refused to return to the hospital, and continued to walk
away. Id. The officer radioed for back-up and continued to
follow the plaintiff on foot, closing the distance between him
and the patient. Id. When the officer was within five feet of
21
the patient, the patient stopped, turned, clenched her fists,
and swore at the officer. Id. The officer grabbed the patient’s
shirt and took her to the ground. Id. Once on the ground, the
officer repeatedly instructed the patient to place her hands
behind her back, but the patient did not comply and instead
tucked her arms underneath her chest. Id. The officer warned the
patient that he would tase her if she did not place her hands
behind her back. Id. The patient did not comply, but instead
swore at the officer and told him to “do it”. Id. The officer
tased the patient in drive-stun mode for four to six seconds, at
which point the officer successfully handcuffed the patient. Id.
at 6-7.
On these facts, the First Circuit held that a reasonable
jury could find it was an excessive use of force for an officer
to use a taser once, in drive-stun mode, to quell a nonviolent,
mentally ill individual who was resisting arrest. Id. at 9, 12.
However, the court granted the officer qualified immunity,
reasoning that “[b]ased on the body of available case law, . . .
an objectively reasonable police officer in May of 2013 could
have concluded that [his actions], did not violate the Fourth
Amendment.” Id. at 12.
In distinguishing Parker, the court
stated that Gray was “a horse of quite a different hue” because
there was “no indication [in Gray] that [the patient], despite
ample opportunity to do so, ever complied with [the officer’s]
22
command to put her hands behind her back.” Id. Whereas in
Parker, it appeared as if the plaintiff was in the process of
complying by releasing his wrist to be cuffed, in Gray, “[e]ven
when [the officer] warned [the patient] that she would be tased,
she did not comply but, rather, continued cursing and told him
to ‘do it.’” Id.
Defendants argue Gray indicates Moore would have not known
in 2014 that his use of a taser on Taylor violated her Fourth
Amendment rights. Docket No. 57 at 13-15. But in so arguing,
Defendants fail to view the totality of the facts in the light
most favorable to Taylor. Defendants assert that even on the
ground, Taylor was resisting arrest and refused to put her
flailing hands behind her back, while Taylor states that she
could not comply because she was unable to move while prone, on
the street, with Moore’s knee pinned on her back in a full body
mount. Moreover, she claims Moore used excessive force when he
“slammed” her body to the ground and then repeatedly pushed her
head into the ground, causing a concussion, even after she
agreed to do whatever Moore wanted. These are exactly the kind
of fact disputes meant for trial. Additionally, the record
indicates that Moore simply told Taylor to “shut up” or be
tased, but tasing someone for “insolence” qualifies as a clearly
established constitutional violation under Parker, while tasing
23
someone for failing to comply with a direct order to put her
hands behind her back shields Moore from liability under Gray.
Finally, it was clearly established in 2010 that “slamming”
a slightly built, non-violent drunk driver into the ground when
she was not given an opportunity to submit is a constitutional
violation. See Raiche, 623 F.3d at 36-38 (holding defendant
police officer used excessive force when he tackled a stationary
individual who was pulled over for a minor infraction and posed
no threat to officer safety).
Because of the unresolved factual disputes regarding
Moore’s use of force, the claim of qualified immunity is denied
without prejudice to its being reasserted at trial after
resolution of factual questions.3 The Court denies Defendants’
motion for summary judgment on Count I.
C. Massachusetts Civil Rights Act (Count II)
Taylor also asserts a claim against Moore under the
Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. Laws ch. 12,
§ 11I. To establish an MCRA claim, a plaintiff “must prove that
(1) [her] exercise or enjoyment of rights secured by the
Constitution or laws of either the United States or of the
The ultimate question of whether an officer is entitled to qualified
immunity is “a question of law, subject to resolution by the judge not jury.”
St. Hilaire v. City of Laconia, 71 F.3d 20, 24 n.1 (1st Cir. 1995) (quoting
Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir. 1991)). However, “[g]enuine
disputes concerning material facts must be resolved by the jury, perhaps by
special verdict form.” Wilson v. City of Bos., 421 F.3d 45, 53 n.10 (1st Cir.
2005) (citation omitted).
3
24
Commonwealth (2) has been interfered with, or attempted to be
interfered with, and (3) that the interference or attempted
interference was by ‘threats, intimidation or coercion.’” Bally
v. Ne. Univ., 532 N.E.2d 49, 51–52 (Mass. 1989) (quoting Mass.
Gen. Laws ch. 12, § 11H). So, while the MCRA is the state
analogue to 42 U.S.C. § 1983, it is “narrower” than the federal
cause of action. Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011).
Where the plaintiff asserts an MCRA claim some courts have
held that the plaintiff must establish threats, coercion, or
intimidation “in addition” to a constitutional violation.
Santiago v. Keyes, 890 F. Supp. 2d 149, 155 (D. Mass. 2012)
(emphasis in original); see also Longval v. Comm’r of
Correction, 535 N.E.2d 588, 593 (Mass. 1989) (“A direct
violation of a person’s rights does not by itself involve
threats, intimidation, or coercion and thus does not implicate
the Act.”). “The majority of courts [in this district] have held
that in cases involving wrongful arrests or excessive force, the
fact of a Fourth Amendment violation, standing alone, does not
give rise to a claim under the MCRA.” Ciolino v. Eastman, 128 F.
Supp. 3d 366, 380 (D. Mass. 2015) (collecting cases); see also
Mercurio v. Town of Sherborn, 287 F. Supp. 3d 109, 123 (D. Mass.
2017).
Defendants argue that they are entitled to summary judgment
on Taylor’s MCRA claim because she has not shown that Moore’s
25
use of force “was accompanied by a secondary motive or arose
from an ‘intent to achieve some further purpose of violating one
or more of Plaintiff[’s] rights, beyond [the] Fourth Amendment
right to be free from unlawful searches or seizures.’” Docket
No. 57 at 16-17 (alterations in original) (quoting Ciolino, 128
F. Supp. at 381).
Plaintiff responds that Moore threatened, intimidated, and
coerced her into giving up her Fifth Amendment right against
self-incrimination by ordering her to get out of the car to take
a field sobriety test and then forcefully grabbing her and
arresting her when she failed to do so. See Docket No. 63 at 20.
However, “field sobriety tests do not elicit testimonial or
communicative evidence and therefore do not trigger the
protections afforded by the Fifth Amendment” or art. 12 of the
Massachusetts Declaration of Rights. Commonwealth v. Brennan,
438 N.E.2d 60, 65, 67 (Mass. 1982). Moreover, a driver lawfully
stopped does not have the right, under federal or state law, to
refuse to perform field sobriety tests. See Commonwealth v.
Blais, 701 N.E.2d 314, 318-19 (Mass. 1998). So, as discussed
above, there is neither an underlying constitutional violation
for excessive force in removing Taylor from the car nor evidence
that Moore was threatening, intimidating, or coercing her in
order to achieve an additional constitutional violation.
26
Therefore, the Court allows Defendants’ motion for summary
judgment on Count II.
II. Civil Rights Claim Against the Town (Count III)
Taylor asserts that the Town of Falmouth’s failure to
train, supervise, and discipline its officers created an
atmosphere in which use of excessive force was tolerated, and
that such a de facto policy was the moving force behind the
violation of her rights. Prior to the September 2014 incident,
Moore received use of force training in 2013. In the spring of
2014, a citizen complaint was reported against Moore for
discourtesy and racial bias. An internal affairs investigation
exonerated Moore on the racial bias claim but sustained the
claim for discourtesy and Moore was provided with verbal
counseling. Between January 2010 and March 2018, Moore did not
receive a citizen complaint against him alleging excessive
force. Over this same time period, there were nine complaints
made to the Falmouth Police Department regarding excessive
force, assault and battery, or use or force. Each was
investigated by internal affairs, which sustained one of the
complaints resulting in verbal counseling. From 2011 to 2014,
there were nine complaints of harassment made against the
Falmouth Police Department, twenty-three complaints of
discourtesy, and sixteen complaints of conduct unbecoming an
officer.
27
A plaintiff may bring a § 1983 claim against a municipal
entity “when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the
injury” on the plaintiff. Monell v. Dep't of Soc. Servs., 436
U.S. 658, 694 (1978). To succeed, the plaintiff must show that
“there is a direct causal link between a municipal policy or
custom and the alleged constitutional deprivation.” City of
Canton v. Harris, 489 U.S. 378, 385 (1989).
A claim for failure to train “can be actionable where ‘the
failure to train amounts to deliberate indifference to the
rights of persons with whom the police come into contact’ and
where ‘the identified deficiency in a city's training program
[is] closely related to the ultimate injury.’” Young v. City of
Providence ex rel. Napolitano, 404 F.3d 4, 26 (1st Cir. 2005)
(alteration in original) (quoting City of Canton, 489 U.S. at
388, 391). Plaintiff does not identify a deficiency in the
Town’s training program. Moore was given use of force training
in 2013, and Taylor has not shown that the training was lacking.
See City of Canton, 489 U.S. at 391 (“[F]or liability to attach
. . . the identified deficiency in a city's training program
must be closely related to the ultimate injury. . . . Would the
injury have been avoided had the employee been trained under a
program that was not deficient in the identified respect?”); see
28
also Young, 404 F.3d at 27 (“[A] training program must be quite
deficient in order for the deliberate indifference standard to
be met . . . .”). And the citizen complaints would not have
reasonably put Falmouth on notice that its use of force training
was subpar. There is no evidence that the Town was deliberately
indifferent to the rights of its citizens.
As to the allegation that Falmouth failed to properly
discipline its officers, Taylor has not shown that the Town was
deliberately indifferent to the rights of citizens. For eight
years, between January 2010 and March 2018, Moore did not
receive one citizen complaint alleging excessive force. And over
that same time period, there were only nine complaints made to
the Falmouth Police Department regarding excessive force,
assault and battery, or use of force. Each was investigated with
one being sustained, and the Court cannot, from these complaints
alone, draw an inference that Falmouth was indifferent to the
behavior of its officers. Taylor provides a compilation of
citizen complaints between 2011 and 2014, and while it shows
that some officers have been accused of harassment quite
frequently, it also shows Falmouth’s internal affairs officers
actually sustained a fair number of claims against officers in
2013 and 2014 leading up to the incident, resulting in various
disciplinary actions. Additionally, when complaints were lodged
against Moore in the spring of 2014, internal affairs sustained
29
one claim of discourtesy and provided verbal counseling. On
these facts, Taylor has not shown that Falmouth was deliberately
indifferent to its officers’ behavior with respect to use of
force. Therefore, the Court grants Defendants’ motion for
summary judgment with respect to Count III.
ORDER
For the reasons stated, the Court ALLOWS IN PART and DENIES
IN PART Defendants’ motion for summary judgment (Docket No. 56).
SO ORDERED.
/s/ PATTI B. SARIS
Hon. Patti B. Saris
Chief United States District Judge
30
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?