Wilson v. Town of Mendon

• Decision Date: 17 June 2002
• Docket Number: No. 00-1239.,No. 00-1077.,No. 00-1240.,00-1077.,00-1239.,00-1240.
• Citation: 294 F.3d 1
• Parties: Richard E. WILSON, Plaintiff, Appellant, v. TOWN OF MENDON, James Crosby, and Dennis Grady, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1

294 F.3d 1

Richard E. WILSON, Plaintiff, Appellant, v. TOWN OF MENDON, James Crosby, and Dennis Grady, Defendants, Appellees.

No. 00-1077.

No. 00-1239.

No. 00-1240.

United States Court of Appeals, First Circuit.

Heard October 5, 2001.

Decided June 17, 2002.

Stephen B. Hrones, with whom Aderonke O. Lipede and Hrones & Garrity were on brief for appellant.

Leonard H. Kesten, with whom Deidre Brennan Regan and Brody, Hardoon, Perkins & Kesten were on brief for the Town of Mendon and Dennis Grady, appellees; Stephen C. Pfaff, with whom Merrick, Louison & Costello were on brief for James Crosby, appellee.

Before TORRUELLA and LIPEZ, Circuit Judges and STEARNS^*, District Judge.

STEARNS, District Judge.

This case, which unfolded against a backdrop of small town intrigue that would have excited the imagination of Grace Metalious,¹ raises interesting questions about bifurcation, a common practice in police civil rights cases, and the extent to which the parties to a case may be bound on appeal by their strategic choices at trial.

After a drunk driving arrest and a station house altercation, plaintiff-appellant Richard Wilson sued the Towns of Mendon and Hopedale, their respective chiefs of police, and five Mendon and Hopedale police officers. Prior to trial, Magistrate Judge Swartwood, presiding with the parties' consent, bifurcated Wilson's claims against the individual defendants from his claims against the Towns. As the trial date approached, the roster of defendants shrank. Ultimately, a jury entered verdicts in favor of defendant-appellee James Crosby, a Mendon police officer, and Stephen Sweet, a Hopedale police officer, on claims that they had used excessive force in subduing Wilson.² The jury also found for defendant-appellee Dennis Grady, the Mendon Chief of Police, on claims of negligent training and supervision. Following the verdict, Magistrate Judge Swartwood entered judgment for all defendants including the Town of Mendon.

Wilson raises four issues on appeal. He claims reversible error in: (1) the Magistrate Judge's refusal to submit a special verdict question to the jury regarding a non-defendant officer's alleged use of excessive force; (2) the court's refusal to permit expert testimony on the same subject; (3) the court's refusal to instruct the jury on theories of joint venture and failure to intervene; and (4) the court's refusal to strike disparaging comments made during closing argument about one of Wilson's lawyers. While we are of the view that the trial court was mistaken about the law in one respect, we discern no prejudice, and we therefore affirm the verdict.

I. BACKGROUND

A. Relevant Facts

We recite the facts in the light most favorable to the verdict. Ferragamo v. Chubb Life Ins. Co., 94 F.3d 26, 27 n. 1 (1st Cir.1996). On May 18, 1996, officer James Crosby, while on patrol on North Street in Mendon, Massachusetts, observed a green convertible stray across the double yellow median line and then drift back to the shoulder of the road, narrowly missing a parked vehicle. Crosby activated his auxiliary lights and signaled the car to stop. On approaching the driver's side of the car, Crosby detected a mild odor of alcohol. Crosby observed a passenger, Nancy Wilson, lying face down with her head wedged between the convertible's front bucket seats. When Crosby asked the driver, Richard Wilson, whether his female passenger was all right, he replied, "she's f'in cocked." Crosby summoned officer Kristen Carchedi to the scene to attend to Nancy Wilson. Officer Sherri Tagliaferri also responded to the call, and assisted Carchedi and Crosby in taking Nancy Wilson into protective custody.³

At Crosby's request, Richard Wilson produced a valid driver's license but was unable to locate the vehicle's registration papers. Suspecting that Wilson might be intoxicated, Crosby directed him to perform several field sobriety tests. The results were sufficiently suggestive to cause Crosby to place Wilson under arrest for operating under the influence.⁴ Upon being placed in the rear compartment of Crosby's cruiser, Wilson began screaming epithets and slamming his body against the back of the seat.

At the station, while Crosby was completing booking formalities, Wilson again became belligerent. Crosby escorted him to a cell. Once inside, Wilson began to kick at the cell door. Crosby ordered Wilson to stop. When Wilson persisted in kicking at the door, Crosby ordered him to step out of the cell.⁵ Wilson refused to comply. Officer Tagliaferri then attempted to flush Wilson from the cell by spraying him with pepper gas.⁶ Unable to find her target, Tagliaferri gave the gas cannister to Crosby, who after several attempts, succeeded in squirting the gas in Wilson's face. Wilson responded with a tirade of threats and obscenities. Alarmed by the ferocity of Wilson's outburst, Crosby asked that reinforcements be summoned from the neighboring Town of Hopedale.⁷

Wilson in the meantime succeeded in kicking open the door of the cell. He then rushed into the vestibule of the cellblock with Crosby and Tagliaferri in hot pursuit. Crosby leapt on Wilson's back while Tagliaferri grabbed Wilson's feet. Wilson and the officers tumbled to the floor where the scrimmage continued. Carchedi, who was not present when the struggle began, suddenly appeared, and from a crouching position let loose a spray of pepper gas, hitting Wilson and Crosby in the face.⁸ Crosby and Tagliaferri eventually succeeded in manacling Wilson's legs.

At some point during the struggle, Wilson suffered a cut to his chin, prompting Crosby to request that an ambulance be called.⁹ While waiting for the ambulance, Crosby handcuffed Wilson to a restraining rail, after which Wilson spat at him. Once the ambulance arrived, Crosby unshackled Wilson from the rail, and placed him prone on the floor. Officer Sweet, who was assisting Crosby, restrained Wilson by placing his foot on Wilson's back. Wilson was taken, still manacled, by stretcher to the ambulance. Crosby accompanied Wilson to the hospital. During the ambulance ride, Wilson screamed threats and obscenities and spat at Crosby. Wilson was treated at the hospital for the cut to his chin.¹⁰

B. Procedural History

On April 29, 1997, Wilson served notice on the Mendon Board of Selectmen of his negligence claims against the officers and his intent to seek damages from the Town.¹¹ Wilson gave similar notice to the Hopedale Board of Selectmen on November 5, 1997. On May 12, 1998, Wilson filed a complaint against the Towns of Mendon and Hopedale and Mendon officers Crosby, Sergeant Philip Dunlavey, and Chief Grady. The complaint also named as defendants Hopedale officers Sweet, Todd Boldy and Mark Boldy, as well as Eugene Costanza, the Hopedale police chief.¹² Carchedi and Tagliaferri were not named as defendants.

The complaint, in twenty counts, accused the defendant officers of federal and state civil rights violations. The chiefs of police were alleged to have failed to properly train and supervise their officers. Wilson also brought negligent training claims against the Towns, as well as numerous common law claims against the defendant officers, including claims for assault and battery, conversion, malicious prosecution, false arrest, false imprisonment, abuse of process, negligent and intentional infliction of emotional distress, invasion of privacy, defamation, negligence, and civil conspiracy.

On September 21, 1999, Magistrate Judge Swartwood bifurcated the claims against the named officers and their supervisors from the municipal liability claims. On December 6, 1999, trial commenced on the excessive force claims involving Crosby and Sweet, and on the negligent supervision and training claims involving Chief Grady.

During the trial, the court disallowed expert testimony and denied a request for a special verdict question regarding Carchedi's alleged use of excessive force. The court also refused to instruct the jury that Crosby could be found liable as a joint venturer with Carchedi or for having failed to intervene to protect Wilson from Carchedi. Wilson duly objected. On December 17, 1999, the jury returned a verdict in favor of Crosby, Sweet, and Chief Grady. On December 21, 1999, judgment was entered for the Town of Mendon. This appeal followed.

II. DISCUSSION

A. Principles of Liability

A person may recover damages from a state or local official who, while acting under color of state law, commits a constitutional tort. 42 U.S.C. § 1983;¹³ see also Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (imposing similar liability on federal officers). The excessive use of force by a police officer against an arrestee is such a tort. See Graham v. Connor, 490 U.S. 386, 395-396 & n. 10, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). An officer may be held liable not only for his personal use of excessive force, but also for his failure to intervene in appropriate circumstances to protect an arrestee from the excessive use of force by his fellow officers. Gaudreault v. Municipality of Salem, 923 F.2d 203, 207 n. 3 (1st Cir.1990). Liability will attach to the municipal employer where its failure to properly train its officers "amounts to deliberate indifference to the rights of persons with whom the police come into contact," and where a specific deficiency in training is the "moving force" behind a constitutional injury. City of Canton v. Harris, 489 U.S. 378, 388-389, 391, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). A supervisory officer may be held liable for the behavior of his subordinate officers where his "action or inaction [is] affirmative[ly] link[ed] ... to that behavior in the sense that it could be characterized as `supervisory encouragement, condonation or acquiescence' or `gross negligence amounting to deliberate indifference.'" Lipsett v. University of P.R., 864 F.2d 881, 902 (1st Cir.1988) (internal citation omitted...