Santiago v. Keyes et al
Filing
89
Magistrate Judge Kenneth P. Neiman: MEMORANDUM AND ORDER entered regarding 58 Motion for Summary Judgment, 60 Motion for Summary Judgment, and 62 Motion for Summary Judgment, cc:cl. See Memorandum and Order for details. (Healy, Bethaney)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JERRY LUIS SANTIAGO,
)
Plaintiff
)
)
)
v.
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)
)
)
COMMONWEALTH OF
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MASSACHUSETTS DEPARTMENT
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OF STATE POLICE, CHRISTOPHER )
KEYES, CARLOS RIVERA, AND
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RICHARD ROE,
)
Defendants )
Civil Action No. 11-30248-KPN
MEMORANDUM AND ORDER WITH REGARD TO
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
(Document Nos.58, 60 and 62)
February 22, 2013
NEIMAN, U.S.M.J.
Presently before the court are motions by Carlos Rivera (“Rivera”), Christopher
Keyes (“Keyes”), and the Commonwealth of Massachusetts Department of the State
Police (“State Police Department”) (collectively, the “Defendants”) for summary
judgment on a variety of federal and state claims brought by Jerry Luis Santiago
(“Plaintiff”). The claims in this case arise out of a case of mistaken identity that led to
Plaintiff’s arrest on a warrant intended for someone else.
At the motion hearing on January 9, 2013, Plaintiff’s counsel indicated that he
was no longer pursuing any claim against the as-yet-to-be formally identified Richard
Roe, a Hampden County District Attorney (“Roe”), named in the complaint. In addition,
Plaintiff’s voluntary dismissal of Roe, along with the court’s prior dismissal of the section
1985 conspiracy claim against Rivera, led Plaintiff to drop his section 1985 conspiracy
claim against Keyes as well. Plaintiff also acknowledged that his claim against the state
police is directed only at the State Police Department and not the Commonwealth of
Massachusetts. Accordingly, the only remaining claims are: Count One (section 1983
claims for violation of the Fourteenth Amendment against Rivera and violation of the
Fourteenth and Fourth Amendments against Keyes); Count Two (intentional infliction of
emotional distress against Keyes); Count Three (gross negligence/ unconstitutional
policy or custom against the State Police Department); and Count Four (negligence
under the Massachusetts Tort Claims Act pursuant to Mass. Gen. Laws ch. 258 § 2
against the State Police Department).
The parties have consented to this court’s jurisdiction. See 28 U.S.C. § 636(c);
Fed. R. Civ. P. 73. For the reasons which follow, the court will allow Rivera’s motion for
summary judgment (Document No. 60) and will allow in part and deny in part the
motions by both Keyes and the State Police Department (respectively, Document Nos.
62 and 58).
I. STANDARD OF REVIEW
When ruling on a motion for summary judgment, the court must construe the
facts in a light most favorable to the non-moving party. Benoit v. Tech. Mfg. Corp., 331
F.3d 166, 173 (1st Cir. 2003). Summary judgment is appropriate when “there is no
genuine issue as to any material fact” and “the moving party is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). An issue is “genuine” when the evidence is such
that a reasonable fact-finder could resolve the point in favor of the non-moving party,
and a fact is “material” when it might affect the outcome of the suit under the applicable
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law. Morris v. Gov’t Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994). The non-moving party
bears the burden of placing at least one material fact into dispute after the moving party
shows the absence of any disputed material fact. Mendes v. Medtronic, Inc., 18 F.3d
13, 15 (1st Cir. 1994) (discussing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
II. DISCUSSION
The facts of this case were set forth in detail by this court in Document Nos. 15
and 54 and will be revisited here only where necessary.
A. Rivera’s Motion for Summary Judgment
Plaintiff’s remaining claim against Rivera, a section 1983 claim for violation of his
Fourth Amendment rights, is based on Rivera’s alleged role in Plaintiff’s detention
subsequent to his arrest. In denying Rivera’s earlier motion to dismiss this particular
claim, the court explained that if Plaintiff’s assertion that Rivera “was not acting as a
mere interpreter” were true, “Rivera’s failure to intervene or investigate [could] constitute
either negligence or deliberate indifference” in violation of Plaintiff’s constitutional rights.
(Document No. 54 at 14.) Rivera, by way of background, was asked to act as an
interpreter for Plaintiff after Keyes brought him to the State Police barracks; in that
capacity; Rivera also allegedly told Plaintiff’s wife that Plaintiff was arrested because his
fingerprints matched those of an individual wanted in New York. (Opp. to Mot. for
Summary Judgment, Ex. M at 31.)
Rivera presently moves for summary judgment based on the dearth of facts
supporting Plaintiff’s claim. He first argues that, as a mere interpreter, he had no role in
Plaintiff’s detention and, therefore, cannot be liable for any constitutional deprivation
Plaintiff may have suffered. Second, Rivera argues, to the extent Plaintiff seeks to hold
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him liable for a failure to act to end his detention, that claim is not supported by wellsettled law. In this vein, Plaintiff conceded at oral argument that, at best, discovery has
established that Rivera was only “minimally involved” in his detention. Actually,
discovery since the court’s earlier denial of Rivera’s motion to dismiss establishes that
Rivera was not involved in Plaintiff’s arrest and did not have any involvement with
Plaintiff’s detention subsequent to his initial role as interpreter at the State Police
barracks.
Given this posture, the court will grant Rivera’s motion for summary judgment.
The evidence offered by both parties demonstrates that Rivera merely acted as an
interpreter when Plaintiff was brought to the State Police barracks and had no
involvement in his detention. Accordingly, Rivera did not have an obligation to
investigate Plaintiff’s claims of innocence. See Baker v. McCollan, 443 U.S. 137, 145146 (1979) (police officers have no affirmative obligation to investigate claims of
innocence raised during a relatively short period of confinement). Even if Rivera had
believed Plaintiff’s protestations of innocence, he would not have been permitted to
release him in the short period of time before he was brought before a judge. See
Brady v. Dill, 187 F.3d 104, 112 (1st Cir. 1999) (after an arrest is made, “the ordinary
course is for the prosecutor to decide whether to go forward, and if he elects to proceed,
for the judicial branch to make the final ascertainment of guilt or innocence - not for the
police to take matters into their own hands”). Given the absence of any countervailing
evidence, Plaintiff has failed to show that Rivera had a role in depriving him of any
constitutional right.
B. Keyes’s Motion for Summary Judgment
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The remaining claims against Keyes in his individual capacity are Count One, a
section 1983 claim for violation of Plaintiff’s Fourth and Fourteenth Amendment rights,
and Count Two, a claim asserting intentional infliction of emotional distress. Keyes
moves for summary judgment on Count One based on qualified immunity and argues
that Plaintiff has not alleged sufficient facts to support his claim for emotional distress in
Count Two. For the reasons that follow, the court will allow Keyes’s motion with regard
to Count One but only in part.
1. Section 1983 claims
Plaintiff’s section 1983 claims are based on his assertion that Keyes not only
violated his Fourth Amendment rights by arresting him without probable cause but, as
well, subsequently violated his Fourteenth Amendment rights by depriving him of due
process which, in turn, improperly prolonged his detention. To prevail on his section
1983 claims, Plaintiff must show that Keyes, acting under color of state law, deprived
him of rights secured by the Constitution and that Keyes’s conduct was the cause in fact
of the alleged deprivation. Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008)
(quoting Rodriguez-Cirilo v. Garcia, 115 F.3d 50, 52 (1st Cir. 1997)). Keyes, it should
be noted, does not dispute that he was acting under color of state law at all relevant
timest. At issue, then, is whether Keyes deprived Plaintiff of his constitutional rights.
a. Plaintiff’s Fourth Amendment claim
The Fourth Amendment guarantees the right of the people to be free from
“unreasonable searches and seizures.” U.S. CONST. AMEND. IV. Plaintiff argues that
Keyes violated this right by arresting him without probable cause. His argument to this
effect is two-fold. First, Plaintiff argues that Keyes lacked probable cause to even ask
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him, as a passenger, for identification. Second, Plaintiff asserts that there was no
probable cause to arrest him given the discrepancies between the New York warrants
and Plaintiff’s physical appearance. The court addresses each argument in turn.
i. The initial inquiry
To recap: Plaintiff was riding as a passenger in a car that Keyes stopped after
noticing that it had a rejected inspection sticker in the front window. After the driver of
the car identified himself, Keyes asked Plaintiff for identification as well. Plaintiff gave
Keyes a valid Massachusetts drivers license, at which point Keyes returned to his
cruiser and asked a State Police dispatcher to run Plaintiff’s name through the National
Crime Information Center (“NCIC”) system; the dispatcher did so and informed Keyes
that Plaintiff’s name and date of birth matched two NCIC warrants from the state of New
York. Shortly thereafter, Keyes arrested Plaintiff based on the outstanding warrants and
brought him to the State Police barracks.
The legal premise on which the first part of Plaintiff’s Fourth Amendment claim is
based has evolved in various memoranda to the court. Plaintiff’s most focused
argument appears to be that Keyes impermissibly prolonged his seizure when he
improperly asked for Plaintiff’s identification and then ran his identification through the
NCIC system, leading to Plaintiff’s arrest on outstanding warrants. For his part, Keyes
argues that the inquiry was justified and reasonable because Plaintiff was not wearing
his seatbelt, which itself is grounds for a traffic citation, and that, in any event, the
inquiry did not measurably prolong the duration of the stop. Plaintiff, in turn, responds
that he was wearing his seatbelt and only unfastened it to obtain his identification;
because Plaintiff is the non-moving party, the court must defer to those factual
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assertions. Morelli v. Webster, 552 F.3d 12, 18-19 (1st Cir. 2009).
The Supreme Court has explained that “[t]he touchstone of our analysis under
the Fourth Amendment is always ‘the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal security.” Maryland v. Wilson,
519 U.S. 408, 411 (1997) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 108-09
(1977)). The reasonableness of a particular invasion “‘depends on a balance between
the public interest and the individual’s right to personal security free from arbitrary
interference by law officers.” Id. (quoting Mimms, 434 U.S. at 109). In the context of
valid traffic stops - - that is, stops arising from traffic infractions - - ordering a passenger
out of a stopped car is not an unreasonable intrusion in light of the counterbalancing
factor of officer safety. Id. More generally, the Court instructs, “an officer’s inquiries into
matters unrelated to the justification for the traffic stop . . . do not convert the encounter
into something other than a lawful seizure, so long as those inquiries do not measurably
extend the duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333 (2009).
The Supreme Court has not yet addressed the issue of whether a police officer,
without particularized suspicion that a passenger in a stopped vehicle poses a safety
risk or is violating the law, may request identification from the passenger. The First
Circuit, however, appears to have answered the question in the affirmative, holding that
“unrelated matters an officer may probe include the identity of the detained individuals.”
United States v. Fernandez, 600 F.3d 56, 60 (1st Cir. 2010). In Fernandez, the
passenger argued that, because he was wearing his seatbelt at the time of the traffic
stop, the officer’s request for identification was impermissible. The First Circuit
disagreed, explaining that “the lawfulness of [the officer]’s request for Fernandez’s
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identification does not depend on whether he properly could be cited for a seat belt
violation.” Id. at 58. Rather, the First Circuit explained, the proper inquiry for Fourth
Amendment purposes is whether the request “measurably extends the duration of the
stop.” Id. at 62. (quoting Johnson, 555 U.S. at 333).
Here, even if Santiago was wearing a seatbelt at the time of Keyes’s otherwise
lawful traffic stop, Keyes’s inquiry, at least for constitutional purposes, was justified as
long as the request did not improperly prolong the stop. Keyes asked for Plaintiff’s
identification, which was promptly produced, and then returned to his cruiser; he
communicated the information to the State Police dispatcher, who informed him that
there were two outstanding warrants for someone with Plaintiff’s name and date of birth.
At that point, in the court’s view, Keyes had reasonable suspicion to investigate further
and any reasonable delay attendant to that investigation was permissible. More to the
point, perhaps, the facts do not lend themselves to a finding that Keyes’s initial request
measurably extended the duration of the initial stop which, in total, lasted no more than
twenty minutes.1
ii. The arrest
The second part of Plaintiff’s Fourth Amendment claim is that Keyes lacked
probable cause to arrest him because of what Plaintiff asserts were the obvious
discrepancies between Plaintiff’s background and physical appearance and the
information in the New York warrants. In essence, Plaintiff argues that no reasonable
1
In so ruling, the court takes no position as to whether Keyes’s actions might run
afoul of Massachusetts law. See United States v. Henderson, 463 F.3d 27, 31-32 (1st
Cir. 2006) (declining to decide legal question as to whether passenger could be cited for
failing to wear a seatbelt on the facts presented).
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officer could find probable cause where significant discrepancies exist between an
individual’s physical appearance and a warrant’s description of those characteristics. To
be sure, Plaintiff concedes that relatively minor discrepancies in physical features or
other data do not render unreasonable an arrest pursuant to a facially valid warrant, but
argues nonetheless that, “major discrepancies” do. Here, Plaintiff asserts, those
discrepancies are height differences (the warrants list variously 6'10", 6'9", 6'3" and
6'1",while Santiago is 5'8"), build (the warrants say big, while Santiago is heavy), race
(the warrants say white, while Santiago is Hispanic), and, at least with regard to one of
the warrants, different social security numbers.
Keyes, in response, minimizes the differences and, in any event, asserts that he
is entitled to qualified immunity because a reasonable officer would have arrested
Plaintiff after learning that the name and birth date matched outstanding warrants.
Keyes, in the court’s opinion, has the stronger argument.
“Qualified immunity is a judicial gloss designed to allow public officials to perform
discretionary tasks without the constant threat of legal liability.” Morelli, 552 F.3d at 18.
In determining whether an official is entitled to qualified immunity, “a court must decide
whether the plaintiff has made out a violation of a constitutional right and, if so, whether
the right was clearly established at the time of the violation.” Drumgold v. Callahan, - F.3d - - , 2013 WL 376747, at * 11 (1st Cir. Jan. 31, 2013). In determining the latter, the
court must focus on “the clarity of the law at the time of the violation” and, in assessing
the facts of the case, decide “whether a reasonable defendant would have understood
that his conduct violated the plaintiff’s constitutional rights.” Id. (internal citations
omitted).
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In the instant matter, Keyes would be entitled to qualified immunity if, given the
described circumstances, a reasonable officer could have believed that probable cause
existed to arrest Plaintiff. Probable cause exists if “at the moment the arrest was made .
. . the facts and circumstances within [Keyes’s] knowledge and of which [he] had
reasonably trustworthy information were sufficient to warrant a prudent man in
believing” that an individual whose name and birth date were a match with outstanding
warrants was, in fact, the subject of the warrants. Hunter v. Bryant, 502 U.S. 224, 228
(1991).
The court concludes that Keyes has met these standards. He was told by the
State Police dispatcher that there were two NCIC arrest warrants which matched
Plaintiff’s name and date of birth. Because Keyes received this information during a
traffic stop, he had little time to investigate further. Thus, Keyes had probable cause to
arrest Plaintiff based on the outstanding warrants even if the warrants later turned out to
have been targeting another individual who had co-opted Plaintiff’s identifying
information. Accordingly, Keyes is entitled to qualified immunity with regard to Plaintiff’s
Fourth Amendment claim. See Hunter, 502 U.S. at 227 (“even law enforcement officials
who ‘reasonably but mistakenly conclude that probable cause is present’ are entitled to
immunity”) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)) .
b. Fourteenth Amendment Claim
Plaintiff’s Fourteenth Amendment claim is also comprised of various scenarios
which, from his perspective, amount to due process violations. Plaintiff’s first argument
appears to be that Keyes violated his due process rights by failing to release him
despite (1) his claims of innocence and (2) discrepancies between the warrant and
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Plaintiff’s physical appearance that came to light once Plaintiff was at the State Police
barracks. Keyes responds that, post-arrest, the decision to release Plaintiff was not his
to make and that he was only required was bring him before a judge in a timely manner.
Even viewing the facts in a light most favorable to Plaintiff, the court finds Keyes to have
the better argument. See Brady, 187 F.3d at 111 (“once the arrest has been properly
effected, it is the magistrate and not the policeman who should decide whether probable
cause has dissipated to such an extent following arrest that the suspect should be
released”). Keyes’s motion for summary judgment, therefore, will be allowed in this
regard.
Plaintiff nonetheless argues that Keyes thereafter violated his due process rights
by withholding exculpatory information from the Hampden County District Attorney’s
office. Here, Plaintiff has the better argument. According to Plaintiff, after his initial
court appearance on August 21, 2008, Assistant District Attorney James Channing (the
“A.D.A.”) - - evidently the “Richard Roe” named in Plaintiff’s complaint but now
dismissed from this action - - instructed Denise Smith-Carelock (“Carelock”), the clerk of
the District Attorney’s office in Chicopee, to contact Keyes to determine whether
Plaintiff’s fingerprints were a match for those in the Automated Fingerprint Identification
System (“AFIS”). Carelock got in touch with a State Police dispatcher who told her that
Keyes was on the road but that she would call him. Carelock states that the dispatcher
made a call and then reported back to her that she, the dispatcher, was told that
Plaintiff’s fingerprints were checked through AFIS and that they were a match for those
on the warrant. (Pl.’s SOF ¶ 32 (Document No. 74).) As a result, when Plaintiff
returned to court on August 28, 2008, the A.D.A. told the judge that “the state police
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indicate that when he was arrested last Wednesday night he was, in fact, fingerprinted.
It did, in fact, go through AFIS, and they do, in fact, match.” (Defs.’ SOF (Document No.
64) Ex. 9 pg 27.) As came to be known, after Plaintiff had been detained for quite some
time, there was no such match.
For his part, Keyes states that he never told anyone that the fingerprints were a
match; rather, he avers, he informed someone at the D.A.’s office “that a search of AFIS
revealed no match between Mr. Santiago’s fingerprints and that despite there being no
match Mr. Santiago was likely to be the person wanted under the NY warrants because
of the match with the name, date of birth and social security number.” (Defs.’ SOF ¶
39.) Keyes also argues that he is entitled to qualified immunity with regard to Plaintiff’s
claim.
As explained, a claim of qualified immunity requires a court to first determine
whether a constitutional violation has occurred and then proceed to determine whether,
in light of the facts and circumstances, a reasonable officer would have known that his
actions violated “clearly established statutory or constitutional rights.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). While courts have repeatedly instructed that
qualified immunity claims “‘should be resolved, where possible, in advance of trial,’ pretrial resolution sometimes will be impossible because of a dispute as to material facts.”
Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir. 2002). That latter situation, in the court’s view,
is the situation here.
If, on the one hand, Keyes knowingly or recklessly provided false information
pertaining to Plaintiff’s fingerprints to the A.D.A., he would likely have violated Plaintiff’s
due process rights and would most likely not be entitled to qualified immunity because a
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“similarly situated reasonable official would have understood that the challenged action
violated the constitutional right at issue.” Mihos v. Swift, 358 F.3d 91, 102 (1st Cir.
2004). If, on the other hand, a jury determines that Keyes properly relayed the
information or had no role in informing the A.D.A. that the fingerprints were a match,
then there is no constitutional violation and the inquiry would end. Accordingly, Keyes’s
motion for summary judgment with regard to Plaintiff’s Fourteenth Amendment claim will
be denied.
2. Intentional Infliction of Emotional Distress (Count Two)
Keyes moves for summary judgment on this count as well, arguing that Plaintiff
has not alleged any facts that would support a claim for intentional infliction of emotional
distress. Plaintiff responds that Keyes’s decision to arrest him without probable cause
and then hold him resulted in emotional distress. The elements of a claim for intentional
infliction of emotional distress require Plaintiff to demonstrate that: (1) Keyes intended to
cause, or should have known that his conduct would cause, emotional distress; (2)
Keyes’s conduct was extreme and outrageous; (3) Keyes’s actions caused him distress;
and (4) the emotional distress sustained by him was severe and of a nature that no
reasonable person could be expected to endure it. See Agis v. Howard Johnson Co.,
355 N.E.2d 315, 318-19 (Mass. 1976).
Applying these standards, the court rules as follows. To the extent Plaintiff’s
claim is based on Keyes’s decision to arrest him, it cannot survive summary judgment
given the court’s determination that the arrest was reasonable. If it turns out, however,
that Keyes relayed false information to the A.D.A., a jury could find that such conduct
satisfies the requisite elements to prevail on a claim for the intentional infliction of
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emotional distress. In sum, Keyes’s motion for summary judgment on this count will be
allowed in part and denied in part in accord with the above analysis.
C. State Police Department Motion for Summary Judgment
As described, two claims presently remain against the State Police Department:
Count Three (gross negligence/ unconstitutional police or custom) and Count Four
(negligence pursuant to the Massachusetts Tort Claims Act (“MTCA”)). The State
Police Department has moved for summary judgment on both counts.
1. Gross Negligence/ Negligent training, supervision, control, or investigation
With regard to Count Three, the State Police Department argues that it is entitled
to summary judgment because there is no evidence to support Plaintiff’s claim of
negligent training, supervision, control, or investigation. Plaintiff objects to that
characterization but completely fails to direct the court to any evidence in support of his
claim. Accordingly, the court will allow the motion for summary judgment with regard to
Count Three.
2. MTCA
In applicable part, the MTCA states that “public employers shall be liable for
injury or loss of property or personal injury or death caused by the negligent or wrongful
act or omission of any public employee while acting within the scope of his office or
employment.” Mass. Gen. Laws Ch. 258 § 2. The State Police Department argues that
it is entitled to summary judgment on this count based on several exemptions in the Act,
specifically, exemptions under Chapter 258 § 10(a), 10(b), 10(h), and 10(j). In the
court’s opinion, these exemptions, with one exception (section 10(b)), are inapplicable
to Plaintiff’s remaining claim that Keyes negligently or wrongfully relayed false
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information to the District Attorney’s office.
Relying on section 10(b), the State Police Department argues that it is exempt
from liability for injury resulting from any negligence by Keyes in his performance of
“discretionary duties.” Section 10(b) provides that Chapter 258 shall not apply to a
public employer for
any claim based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty
on the part of a public employer or public employee, acting
within the scope of his office or employment, whether or not
the discretion involved is abused.
Chapter 258 § 10(b). The State Police Department asserts that Keyes would have been
performing a discretionary function when reporting whether Plaintiff’s fingerprints were a
match.
The Massachusetts Supreme Judicial Court has adopted a two-step inquiry
crafted by the Supreme Court for determining whether particular actions are
discretionary. “‘The first step . . . is to determine whether the governmental actor had
any discretion at all as to what course of conduct to follow . . . The second and far more
difficult step is to determine whether the discretion that the actor had is that kind of
discretion for which 10(b) provides immunity from liability.’” Sena v. Com., 629 N.E.2d
986, 990 (Mass. 1994) (quoting Harry Stoller & Co. v. City of Lowell, 587 N.E.2d 780,
782 (Mass. 1992)).
With regard to step one, the court concludes that it is unlikely that a state police
officer may choose to do anything other than relay accurate information to a district
attorney’s office charged with prosecuting an individual arrested by that officer. Indeed,
the Supreme Judicial Court has recognized “that an officer who carelessly or recklessly
15
misstates or fails to disclose relevant information he has to a magistrate evaluating a
warrant application, and thereby subverts the integrity of the warrant process by selling
the magistrate shoddy merchandise without appropriate disclaimers would likely not be
engaged in a discretionary activity for purposes of the discretionary functions
exemption.” Sena, 629 N.E.2d at 990, n. 5. (internal quotation marks omitted). Looking
at the facts in a light most favorable to Plaintiff, the court cannot say that Keyes’s
actions fit within the section 10(b) exemption.
Even if such a course of action were somewhat discretionary, the State Police
Department’s argument still fails when considering the second step of the analysis,
which “is far narrower” than discretion in the ordinary sense of the word. Harry Stoller &
Co, 587 N.E.2d at 783. In essence, the section 10(b) exemption and resulting immunity
is only available “for discretionary conduct that involves policymaking or planning.” Id.
By way of example, such conduct generally includes “decisions of law enforcement
officers regarding whether, when, how, and whom to investigate, and whether and when
to seek warrants for arrest [which] are based on considerations of, and necessarily
affect, public policy.” Sena, 629 N.E.2d at 990. However and whatever Keyes may
have relayed to the District Attorney’s Office, the communication of information
regarding a “match” of Plaintiff’s fingerprints to those on a warrant cannot be construed
as involving policymaking or planning or left to the discretion of an individual officer. In
sum, the court is not convinced that Keyes was performing a discretionary function for
purposes of section 10(b). Accordingly, the State Police Department’s motion for
summary judgment on Count Four will be denied.
III. CONCLUSION
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For the reasons explained, Rivera’s motion for summary judgment as to Count
One (Document No. 60) is ALLOWED, Keyes’s motion for summary judgment
(Document No. 62) is ALLOWED as to that part of Count One alleging violation of
Plaintiff’s Fourth Amendment rights but DENIED with respect to Plaintiff’s Fourteenth
Amendment rights and as to Count Two as well. Finally, the State Police Department’s
motion for summary judgment (Document No. 58) is ALLOWED with regard to Count
Three but DENIED with regard to Count Four. The Clerk shall set this matter down for a
pretrial conference and trial.
IT IS SO ORDERED.
DATED: February 22, 2013
/s/ Kenneth P. Neiman
KENNETH P. NEIMAN
U.S. Magistrate Judge
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