O'brien v. O'Hara
| Decision Date | 31 March 2014 |
| Docket Number | CIVIL ACTION NO. 12-10600-GAO |
| Parties | RICHARD O'BRIEN. Plaintiff, v. MICHAEL O'HARA, JAMES BULMAN, and MARK HAMACHER, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
O'TOOLE, D.J.
The magistrate judge to whom this matter was referred has filed a Report and Recommendation ("R&R") with respect to the defendants' motion for summary judgment. The R&R recommends that summary judgment be granted in favor of the defendants as to all counts of the complaint, except as to so much of Count I as alleges that the traffic stop conducted by Officers Mark Hamacher and Michael OTlara violated the plaintiff's Fourth Amendment rights against unreasonable seizure. The defendants filed an objection to the R&R to the extent that it recommends denial of summary judgment as to that issue. The plaintiff filed a response1 to the objection, contending that summary judgment should be denied as to all counts.
After careful review of the R&R and responsive briefing by the parties, I conclude that summary judgment should be granted in favor of the defendants as to all counts of the complaint.
Under Terry v. Ohio, 392 U.S. 1 (1968), an officer may conduct a brief investigatory stop of a vehicle if the officer has a "reasonable suspicion" of criminal activity. United States v. Wright, 582 F.3d 199, 205 (1st Cir. 2009). "Whether a reasonable suspicion exists is treated as an objective inquiry: the actual motive or thought process of the officer is not plumbed." Bolton v. Taylor, 367 F.3d 5, 7 (1st Cir. 2004) (citing Whren v. United States, 517 U.S. 806, 813 (1996)) ( that reasonable suspicion existed where officer likely "lacked any proper intent, but a reasonable police officer could have performed a lawful Terry stop based on what [the officer] knew"). "Police officers are not limited to personal observations in conducting investigatory activities, and reasonable suspicion for a Terry stop may be based on information furnished by others." United States v. Romain, 393 F.3d 63, 71 (1st Cir. 2004).
The magistrate judge recommended that summary judgment be denied as to the traffic stop, concluding that genuine issues of material fact existed as to whether the Terry stop of the plaintiff's vehicle violated his Fourth Amendment rights. After reviewing the record, I am satisfied that there is no genuine issue of fact as to whether there was an objectively reasonable suspicion on the part of the officers who engaged in the stop that the plaintiff was operating his motor vehicle without a valid license. There is no dispute that the plaintiff was operating the car without a valid license. The only concern the magistrate judge had was whether it was clearly not in dispute that the officers knew or suspected that before stopping the car. Defendant Hamacher's affidavits aver that he called dispatch and learned of the invalid license before stopping the car. Essentially, the plaintiff's only substantive response to that factual assertion is to doubt it; he has no factual evidence to the contrary. That is not sufficient to create a genuine dispute of fact.
In any event, as the magistrate judge also noted (R&R at 15 (dkt. no. 53)), the police had reason to stop the defendant to inquire into a possible violation of Mass. Gen. Laws ch. 266, § 126, which punishes unauthorized posting of signs or notices on private or municipal property, or a similar town ordinance. There is also no dispute on the record that Hamacher (and O'Hara) knew who the plaintiff was. A Terry stop would have been warranted on this basis, as well as the unlicensed operation basis.
Indeed, it is the plaintiff who asserts that Hamacher and O'Hara stopped his vehicle "for the sole purpose of harassing and intimidating the Plaintiff for exercising his rights to free speech." (Compl. at ¶ 27 (dkt. no. 1-3).) He testified at his deposition that two police cruisers waited as he exited Tedeschi's, followed his car from the parking lot, and then pulled him over, the implication being that the officers knew who he was and specifically targeted his vehicle. It is pretty clear he does not dispute that they knew who he was and that they wanted to talk to him about his distributing his flyers. I conclude that the stop at issue was supported by reasonable suspicion on two grounds and therefore did not violate the plaintiff's Fourth Amendment rights.
As to the other counts, the plaintiff repeats arguments that the magistrate judge already addressed in the R&R. For example, the plaintiff objects to the magistrate judge's conclusion that the search of his vehicle pursuant to a standardized inventory policy was proper, arguing that Hamacher failed to follow proper procedures. The plaintiff points to various indicia that the inventory search was not carried out pursuant to a standardized policy, such as the fact that no other items were removed from his vehicle, though they are of monetary value and the flyers are not, and the fact that the inventory sheet and vehicle tow/impoundment record were left blank. However, the magistrate judge properly concluded that despite these technical defects, the inventory search at issue here did not violate the plaintiff's Fourth Amendment rights.
Accordingly, I ADOPT the R&R in all respects except its proposed denial of summary judgment on the Fourth Amendment claim. As to that claim, I conclude that the defendants are entitled to summary judgment in their favor as well. The defendants' Motion (dkt. no. 18) for Summary Judgment is GRANTED in its entirety. Judgment shall enter for the defendants.
It is SO ORDERED.
Pro se plaintiff Richard O'Brien ("O'Brien") has filed a four-count complaint against three Scituate Police Officers (collectively "the defendants"), Michael O'Hara ("O'Hara"), James Bulman ("Bulman"), and Mark Hamacher ("Hamacher"). The claims alleged are: Count I for liability under 42 U.S.C. § 1983 for violations of the First, Fourth and Fourteenth Amendments; Count IIfor liability under the Massachusetts Civil Rights Act; Count III for intentional infliction of emotional distress; and Count IV for liability under 42 U.S.C. § 1983 for civil conspiracy.
Following the close of discovery, on May 8, 2013 the defendants filed a motion for summary judgment (#18) together with a memorandum of law (#19) and a statement of undisputed facts (#20). Initially O'Brien filed his motion for opposition to the dispositive motion on October 28, 2013. (#33) The plaintiff thereafter submitted another opposition (#40) and a memorandum in opposition to the summary judgment motion (#41).2 On February 24, 2014, at the Court's request the defendants filed the complete transcript of the plaintiff's deposition ("Plaintiff's Depo.") and then on February 26th that of defendant Bulman.
At this juncture, the record is complete and the motion for summary judgment stands ready for resolution.3
This civil action arises out of the events surrounding the arrest of O'Brien on March 14, 2009.
On or about March 10, 2009, the plaintiff commenced a flyer campaign5 against William LaSala ("LaSala")6 .(#20 ¶ 4; #41 ¶ 18) The flyer read as follows:
#20-2 at 5.
O'Brien posted these flyers on public structures and distributed them to the community. (#20 ¶ 5; #20-1 at 154-56) On March 14, 2009, LaSala reported the flyers to Bulman, and Bulman verified that O'Brien was responsible for them. (#20 ¶ 7-8; #20-1 at 179) Bulman unsuccessfully attempted to reach out to O'Brien at his home to question him about the flyers. (#20 ¶ 8; #20-1 at 179) That evening at roll call Bulman briefed the late shift officers, including defendants Hamacher and O'Hara, about the flyers and his inability to find O'Brien to discuss the flyers. (#20 ¶ 10; #20-2 ¶ 8)
During his patrol that same evening, Hamacher observed what he believed to be O'Brien's vehicle. (#20 ¶ 10) According to Hamacher, in order to confirm his belief, he called dispatch whereupon he learned that it was O'Brien's vehicle and, further, that the plaintiff's license had expired. (#20 ¶ 10)Further, according to Hamacher, O'Brien was then stopped,7 and, after inspecting the plaintiff's license and confirming that the license had, in fact, expired, Hamacher arrested O'Brien for driving with an expired license, a violation of Mass. Gen. L. c. 90 § 10. (#20 ¶ 11; #20-1 at 167; #41 ¶ 13)
Having responded to Hamacher's request for back-up, O'Hara was present at O'Brien's arrest; Bulman was not. (#20 ¶¶ 11, 15; #41 ¶ 13) During the course of the stop and arrest, Hamacher noted that the inspection sticker on the plaintiff's vehicle had expired. (#20 ¶ 12; #20-1 at 171-72) Consequently, Hamacher issued a citation for that infraction as well. (#20 ¶¶ 12, 13) The plaintiff was ultimately found responsible for having no...
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