Mlodzinski v. Lewis

• Citation: 731 F.Supp.2d 157,2010 DNH 114
• Decision Date: 16 July 2010
• Docket Number: Civil No. 08-cv-289-JL
• Parties: Thomas MLODZINSKI et al. v. Michael F. LEWIS et al.
• Court: U.S. District Court — District of New Hampshire

731 F.Supp.2d 157

2010 DNH 114

Thomas MLODZINSKI et al.

v.Michael F. LEWIS et al.

Civil No. 08-cv-289-JL.

United States District Court, D. New Hampshire.

July 16, 2010.

Matthew J. Lahey, Matthew J. Lahey PA, Laconia, NH, for Thomas Mlodzinski, Tina Mlodzinski.

Charles P. Bauer, Jeanne P. Herrick, Gallagher Callahan & Gartrell PC, Concord, NH, for Michael F. Lewis, Timothy J. Woodward, Gordon C. Ramsay, Bristol.

K. Joshua Scott, Boynton Waldron Doleac Woodman & Scott, Portsmouth, NH, for Central New Hampshire Special Operations.

William G. Scott, Boynton Waldron Doleac Woodman & Scott, Portsmouth, NH, for Central New Hampshire Special Operations, John Does 1-20, Robert Cormier, Steve Henry, Bill Jolly, Matt Culver, Chris Tyler, Rick Paulsen, Brad Sargent, Stephen Adams, Scott Thompson, Todd Eck, Rick Tyler, Shawn O'Keefe, Richard Arell.

ORDER

JOSEPH N. LAPLANTE, District Judge.

This case raises questions about the scope of law enforcement officers' authority to detain the occupants of a premises while executing valid search and arrest warrants there. Plaintiffs Thomas Mlodzinski, his wife Tina Mlodzinski, and their daughter, Jessica, have sued a number of officers who took part in executing warrants for the arrest of Tina's then-17 year-old son, Michael Rothman, for allegedly beating another man with a nightstick, and for the search of the Mlodzinskis' home for that nightstick. The Mlodzinskis say that, while executing the warrants, officers handcuffed them, pointed assault rifles atthe heads of Tina and Jessica-who was 15 years old at the time-for several minutes after they had been handcuffed, and left them in handcuffs for nearly an hour, while interrogating them about the location of the nightstick, as well as the alleged assault.

The Mlodzinskis' claim that these actions amounted to unreasonable seizures and excessive force in violation of the Fourth Amendment, and thus actionable under 42 U.S.C. § 1983, as well as common-law assault and battery, false arrest, and false imprisonment. The defendants, including three officers from the Bristol Police Department and thirteen officers from the Central New Hampshire Special Operations Unit ("CNHSOU") who participated in executing the warrants, have moved for summary judgment. They argue that they legitimately detained the Mlodzinskis during the search and used reasonable force to do so but that, even if not, they are entitled to qualified immunity from the constitutional claims and official immunity from the common-law claims.

After hearing oral argument, the court grants the defendants' motions for summary judgment in part and denies them in part. Taking the evidence in the light most favorable to the Mlodzinskis, a rational jury could find that they were subjected to excessive force by the Bristol officers and certain of the CNHSOU officers, in violation of the Fourth Amendment. Also taking the evidence in the light most favorable to the Mlodzinskis, the court cannot conclude that reasonable officers in the defendants' position would have believed their actions were consistent with the Mlodzinskis' clearly established Fourth Amendment right to be free from excessive force, so the defendants are not entitled to summary judgment on the basis of qualified immunity. For largely the same reasons, a rational jury could find that certain of the CNHSOU officers committed common-law assault and battery against Tina and Jessica Mlodzinski, and that those defendants do not enjoy official immunity from those claims.

But the Bristol officers are entitled to summary judgment on the Mlodzinskis' claims that, apart from the use of allegedly excessive force, they were unreasonably seized under the Fourth Amendment, or unlawfully imprisoned at common law, during the execution of the search warrant because that detention lacked probable cause or was accompanied by attempts to interrogate them. Furthermore, at oral argument, the Mlodzinskis dropped all of their claims against a number of the CNHSOU officers, so summary judgment will enter in their favor as well.¹

I. Applicable legal standard

Summary judgment is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). Under this rule, "[o]nce the moving party avers an absence of evidence to support the non-moving party's case, the non-moving party must offer 'definite, competent evidence to rebut the motion.' " Meuser v. Fed. Express Corp., 564 F.3d 507, 515 (1st Cir.2009) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991)).

Where, however, "the party moving for summary judgment bears the burden ofproof on an issue, he cannot prevail unless the evidence that he provides on that issue is conclusive." EEOC v. Union Independiente de la Autoridad de Acueductos y Alcantarillados de P.R., 279 F.3d 49, 55 (1st Cir.2002) (quotation marks omitted). As discussed infra, this standard applies to the defendants' arguments for qualified immunity from the constitutional claims, and privilege and official immunity from the state-law claims, because they bear the burden of proof on each of those defenses.

In ruling on a motion for summary judgment, the "court must scrutinize the record in the light most flattering to the party opposing the motion, indulging all reasonable inferences in that party's favor." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003). The following facts are set forth accordingly, though the court has made an effort to note the defendants' version of events where appropriate.

II. Background

A. The investigation

In late July 2006, defendants Sergeant Michael Lewis and Officer Gordon Ramsay, of the Bristol Police Department, responded to a report of an assault on Central Street in the town. Near the scene, they located 21 year-old Jeffrey Burchfield. When asked about the blood on his clothes, Burchfield said that it belonged to one Brandon Stachulski, whom Burchfield had "beat[en] up" because Stachulski "had been running his mouth about [Burchfield's] girlfriend." Burchfield said that he had been accompanied by another "kid" who also "had a problem with" Stachulski, but claimed not to know that kid's name. Following his apprehension, Burchfield was taken to the Bristol police station, processed, and released on his own recognizance.

A few days later, Stachulski, age 19, arrived at the station to speak with Sergeant Lewis. Stachulski named the other person who attacked him as 17 year-old Michael Rothman, and said that Rothman "had an expandable baton during the incident and struck [Stachulski] several times over his body." Lewis noted that Stachulski bore "several clearly visible marks, which were consistent with the use of a night stick, on his upper body." Stachulski told Lewis where Rothman lived and that he "is known to carry a firearm." ²

Based on this information, Sergeant Lewis promptly secured warrants to arrest Rothman on a charge of second-degree assault and to search his residence, on South Main Street in Bristol, for the nightstick.³ The warrants issued from the Plymouth District Court around 9:30 p.m., and authorized their execution at "any time of the day or night." Lewis then contacted defendant Robert Cormier, the commander of the defendant Central New Hampshire Special Operations Unit, seeking its assistance in executing the warrants, which Lewis faxed to Cormier along with their supporting affidavits. At 11 p.m., Lewis set up two surveillance teams, each comprised of two Bristol police officers, outside Rothman's residence, where Lewis knew that plaintiffs Thomas and Tina Mlodzinski also resided.⁴

The CNSHOU is comprised of officers chosen from the police departments of a number of towns in central New Hampshire and is overseen by a board chosen from among the police chiefs of those towns. Its officers "are trained for high-risk warrant entries." During these operations, as a matter of standard operating procedure, they carry automatic assault rifles, with the safeties off, and wear military-style camouflaged uniforms and helmets.

Sergeant Lewis believed that executing the warrants against Rothman "posed a high risk of danger based upon the viciousness of the assault and the allegations that Rothman was armed with an expandable baton and possibly a gun." Lewis also considered "the size of the structure occupied by Rothman and the likelihood that there would be other persons present." In response to Lewis's communications, Commander Cormier told 15 other CNHSOU officers to gather at the Bristol police station. There, Lewis told Cormier that Rothman "had bludgeoned another individual, cracked his skull multiple times, and basically left him to die ... and made statements that, you know, he would kill anyone if they ratted on him or told on him." If these accusations have any support in the record, the defendants have not identified it.⁵

Commander Cormier decided to use the assembled CNHSOU team to execute the warrants. Furthermore, according to Sergeant Lewis, the team would enter before sunrise "to maximize the surprise for Rothman and thereby reduce the possibility of injury to police officers and third parties and to limit Rothman's opportunity to escape and to dispose of the night stick."

B. The entry

Just before 4 a.m. the next morning, the Mlodzinskis were awakened by the sound of a battering ram breaking down the front door to their three-bedroom apartment, located on the second floor of a two-family house. Inside the apartment, the front door and the door to each of the bedrooms opens onto a central hallway. Then 15 year-old Jessica Mlodzinski, clad in underwear and a T-shirt, got out of her bed in response to the noise. She opened the door to her room to find a masked man in military fatigues pointing an assault rifle at her face, yelling, "Get down, palms in the air!" This man was ...