617 F.3d 520 (1st Cir. 2010), 08-2221, Kennedy v. Town of Billerica

Docket Nº:08-2221, 08-2222.
Citation:617 F.3d 520
Opinion Judge:LYNCH, Chief Judge.
Party Name:Brian J. KENNEDY; Michelle Kennedy, individually and as mother and next friend of B.D.K.; M.K.; D.K., Plaintiffs, Appellees/Cross-Appellants, v. TOWN OF BILLERICA; Daniel C. Rosa, individually and as Chief of the Billerica Police Department; Mark Tsoukalas; Richard Nestor; Scott Parker, Defendants, Appellants/Cross-Appellees, Thomas Conners; Frank
Attorney:Leonard H. Kesten with whom Deidre Brennan Regan, Jeremy I. Silverfine, and Brody, Hardoon, Perkins & Kesten, LLP were on brief for the appellants/cross-appellees and appellees. Andrew M. Fischer with whom Jason & Fischer, Frederick V. Gilgun, Jr., and Nicholson, Sreter & Gilgun, P.C. were on bri...
Judge Panel:Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.
Case Date:July 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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617 F.3d 520 (1st Cir. 2010)

Brian J. KENNEDY; Michelle Kennedy, individually and as mother and next friend of B.D.K.; M.K.; D.K., Plaintiffs, Appellees/Cross-Appellants,

v.

TOWN OF BILLERICA; Daniel C. Rosa, individually and as Chief of the Billerica Police Department; Mark Tsoukalas; Richard Nestor; Scott Parker, Defendants, Appellants/Cross-Appellees,

Thomas Conners; Frank A. MacKenzie; Richard Rhonstock; Martin E. Conway; Andrew Devito; Richard Howe; Steven Elmore; Michael A. Casey; William MacDonald; Alan Munn, Defendants, Appellees,

John Barretto, individually and as former Chief of the Billerica Police Department, et al., Defendants.

Nos. 08-2221, 08-2222.

United States Court of Appeals, First Circuit.

July 13, 2010

Heard May 3, 2010.

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Leonard H. Kesten with whom Deidre Brennan Regan, Jeremy I. Silverfine, and Brody, Hardoon, Perkins & Kesten, LLP were on brief for the appellants/cross-appellees and appellees.

Andrew M. Fischer with whom Jason & Fischer, Frederick V. Gilgun, Jr., and Nicholson, Sreter & Gilgun, P.C. were on brief for the appellees/cross-appellants.

Before LYNCH, Chief Judge, BOUDIN and LIPEZ, Circuit Judges.

LYNCH, Chief Judge.

We affirm in part and reverse in part in this contentious civil rights case brought by a family of plaintiffs, the Kennedys, against the Town of Billerica, Massachusetts, and numerous individual police officers. Before us are cross-appeals from jury verdicts and court rulings in the two trials in this bifurcated case.

Specifically, we hold that error in instructing the jury in the first trial on the state law crime of assault and battery on a police officer requires that there be a new trial on the only successful federal civil rights claim against a police officer in that trial. The error undercut the basis for a defendant police officer's defense to a federal claim of false arrest for that crime. The federal civil rights award against the Town and the award of attorney's fees under 42 U.S.C. § 1988 must, as well, be vacated.

As to the state law verdicts in the first trial against two individual police officers based on intentional infliction of emotional distress (IIED), we vacate and direct entry of judgment for defendants. A minor's fear of going to court and a fear of the police, nightmares, and the loss of sleep, after arrest or after the filing of an application for a complaint against a minor, do not meet the severity of harm requirements under state law to find liability on IIED claims. We also vacate the state law verdict against the Town, which rested on a theory not recognized under Massachusetts law, that the Town may be liable for supervisory negligence even in the absence of cognizable underlying torts attributable to individual municipal employees or the Town. We order entry of judgment for the Town on this claim. We further reject plaintiffs' cross-appealed claims from the first trial, which were waived and also lack merit.

The verdict for plaintiffs in the second trial solely involved state law claims against two individual officers. We vacate and enter judgment for defendants on a state intentional infliction of emotional distress claim against an individual officer, because there was no evidence at trial supporting a finding that the officer intended to inflict emotional distress or that his conduct caused the emotional harms asserted by one of the minor plaintiffs. The verdict for plaintiffs against the other individual officer on an assault charge stands; the evidence presented on this claim was not so insufficient that no reasonable jury could have found for plaintiffs. We also affirm the district court's grant to defendants of judgment as a matter of law on plaintiffs' cross-appealed claims against the two officers.

I. Background

In 2004, plaintiffs, Michelle and Brian Kennedy, Sr., and their three children, Brian Jr., Mitchell, and Dylan, all minors, brought suit under 42 U.S.C. § 1983 and

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state law against the Town of Billerica, Massachusetts, and more than two dozen individual police officers in their official and personal capacities. Plaintiffs claimed that for thirteen years and in approximately sixty-five different incidents, from 1991 through the filing of their suit in 2004, the Billerica police conspired to and did deprive family members of their constitutionally protected civil rights and committed state law torts in order to drive the Kennedys out of town.

In light of the number and complexity of these claims, the district court bifurcated the case into two trials held in April and October 2007. The Kennedys introduced numerous witnesses and detailed dozens of events to try to show that defendants were involved in a department-wide campaign to harass them and violate their civil rights. They say the harassment began when Michelle Kennedy allegedly spurned defendant Officer Frank MacKenzie's advances in 1991.

Defendants denied all allegations and contested plaintiffs' account of the events, countering that the Billerica Police, like the police in nearby Tewksbury, investigated members of the Kennedy family because of their suspected involvement in drug crimes during this period. In both trials, juries rejected nearly all of the Kennedys' federal and state claims, including the Kennedys' central civil rights conspiracy claim in the first trial.

The first trial concerned the Kennedys' claims against the Town and seven named police officers: Chief Daniel Rosa and Officers Frank MacKenzie, Steven Elmore, Michael Casey, Thomas Conners, Martin Conway, and Mark Tsoukalas. 1 The lone federal claim on which the jury found against the individual defendants and awarded damages was Mitchell Kennedy's § 1983 false arrest claim against Officer Tsoukalas, a claim arising from an incident in 2004, when Mitchell was fourteen years old. On the state IIED claims, the jury found for Mitchell on the same incident involving Officer Tsoukalas, and awarded Mitchell $15,000 in total damages for the two claims.2 The jury also found for Brian Jr. on a claim against Chief Rosa arising from a 1997 incident that occurred when Brian Jr. was nine years old, awarding $10,000 in damages.

As to the Town, there were two verdicts for plaintiffs, one each under federal and state law. The jury found the Town liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), only for Mitchell's § 1983 false arrest claim, on the ground that the Town's failure to properly supervise or discipline Officer Tsoukalas amounted to deliberate indifference to Mitchell's civil rights. The jury further found against the Town, and for Michelle, Brian Jr., Dylan, and Mitchell Kennedy, on a state law supervisory negligence claim,

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on the theory that the Town's practices were responsible for free-standing harms independent of identifiable torts committed by individual officers. Plaintiffs obtained nearly $380,000 in total damages at the first trial, mostly from the latter claim against the Town. 3 See Kennedy v. Town of Billerica ( Kennedy IV ), No. 04-cv-12357, slip op. at 1-4 (D.Mass. Dec. 10, 2007) (judgment on damages); Kennedy v. Town of Billerica ( Kennedy III ), No. 04-cv-12357, slip op. at 1-3, 7-10 (D.Mass. Aug. 21, 2007) (ruling on defendants' post-verdict motion for judgment as a matter of law in the first trial).

The second trial concerned the Kennedys' federal constitutional and state law tort claims against six other individual officers: Officers Alan Munn, Richard Howe, Richard Rhonstock, Andrew Devito, Richard Nestor, and Scott Parker. 4 Only claims against Officers Nestor and Parker, involving two discrete incidents in 1993 and 2002 respectively, went to the jury. The jury found for Brian Jr. on an IIED claim against Officer Nestor arising from the emotional trauma Brian Jr. said he suffered when his mother was arrested in front of him in 1993, when Brian Jr. was five years old, and awarded $2,500 in compensatory damages. The jury also found that in 2002, Officer Parker engaged in conscience-shocking conduct against Michelle Kennedy, assaulted her, and intentionally inflicted emotional distress on her, for which the jury awarded compensatory and punitive damages.

The district court granted defendants' post-verdict motion for judgment as a matter of law on Michelle's federal claim of conscience-shocking conduct and state IIED claim against Officer Parker, but left the verdicts against Officer Parker on Michelle's assault claim and against Officer Nestor on Brian Jr.'s IIED claim intact. See Kennedy v. Town of Billerica ( Kennedy V ), No. 04-cv-12357, slip op. at 2-12, 2008 WL 2945436 (D.Mass. Jul. 24, 2008) (ruling on defendants' motion for judgment as a matter of law on claims in the first and second trials). The district court also vacated the punitive damages award against Officer Parker, id. at 16, and Officer Parker was ultimately deemed liable for $2,000 in compensatory damages only.

II. Issues Arising from the First Trial

The first trial, against the Town and seven individual officers, lasted seventeen days and involved testimony from nearly fifty witnesses. Though most of the Kennedys' claims had a three-year (November 5, 2001) statute of limitations, the district court allowed testimony about incidents stretching back to 1991 to provide context for the alleged civil rights conspiracy. It also allowed certain pre-2001 claims involving the Kennedy children, since the statute of limitations was tolled on some of those claims while they were minors.

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The district judge described the trial as " an intense...

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