Dean v. City of Worcester, 90-1093

• Citation: 924 F.2d 364
• Decision Date: 02 August 1990
• Docket Number: No. 90-1093,90-1093
• Parties: Gerard DEAN, Plaintiff, Appellant, v. CITY OF WORCESTER, et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 364

924 F.2d 364

Gerard DEAN, Plaintiff, Appellant, v. CITY OF WORCESTER, et al., Defendants, Appellees.

No. 90-1093.

United States Court of Appeals First Circuit.

Heard Aug. 2, 1990.

Decided Jan. 23, 1991.

Terry Scott Nagel, Springfield, Mass., and John D. Egnal, Philadelphia, Pa., with whom Alan D. Sisitsky, Springfield, Mass., was on brief, for plaintiff, appellant.

Brian Rogal, Dedham, Mass., with whom Timothy M. Burke and Mark Newman, Needham, Mass., were on brief, for defendants, appellees Greaney and Murray.

Edward R. Joyal, Jr., Asst. Atty. Gen., for defendant, appellee Mattioli.

Elaine M. Lucas, Asst. City Sol., for defendants, appellees City of Worcester, Houlihan and Decelles.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Mistakenly identified and arrested as an escaped felon who had threatened to shoot any officer who tried to return him to prison, plaintiff Gerard Dean brought the present civil action against the defendant police officers and the City of Worcester. Dean appeals from a grant of summary judgment in favor of all defendants. We affirm.

I

The facts leading up to Dean's arrest are uncontroverted. On September 3, 1985, Massachusetts State Police Officer Paul Greaney, assigned to the Violent Fugitive Arrest Squad, received information from a reliable informant that Richard Burbo, an escapee from the Massachusetts Correctional Institution at Shirley, was staying with an unknown female and her small child at a Worcester apartment. The informant advised Greaney that Burbo was armed with a .38 caliber revolver and that Burbo had expressed the intention to shoot any officer who attempted to return him to prison. Upon further investigation, Officer Greaney discovered that Burbo, at the time of the escape, was serving sentences for armed assault, armed robbery, and rape. An arrest warrant issued following Burbo's escape. Officer Greaney considered Burbo "armed and dangerous."

On September 4, Greaney and other members of the Violent Fugitive Arrest Squad, along with officers of the Worcester Police Department, located a male individual, resembling Burbo, seated on a rock at a city bus stop near the apartment at which Burbo reportedly was staying. After consultation, the officers decided to apprehend the subject at the bus stop, rather than at the nearby apartment, so as not to endanger the woman and child believed to be residing at the apartment. The officers decided that the subject would have to be apprehended and immobilized as quickly as possible in order to avoid endangering innocent bystanders and the arresting officers. Unbeknownst to the officers, the subject was not Burbo but Dean.

At about noon, a police car drove onto the sidewalk directly in front of Dean. Dean got to his feet as the police car approached. Two officers alighted from the car and pushed Dean down, causing his face to hit the sidewalk. One of the officers placed a gun to Dean's ear and threatened to blow his head off if he moved. Dean felt a knee in his back and a slight kicking to his feet. Dean was then lifted to his feet, tightly handcuffed, and pushed against a wall; in the process, he suffered a cut to his scalp. The police informed Dean that he was being placed under arrest. Dean gave his correct name and told the police that they had the wrong person.

After arresting Dean, the officers noticed that Dean appeared taller than Burbo was reported to be. The police decided to place Dean in a cruiser while they executed the search warrant for the nearby apartment where Burbo was staying. Burbo was arrested inside the apartment. A loaded .38 caliber revolver was seized from under a cushion on the couch where Burbo had been sitting.

The police explained their mistake to Dean and released him from custody. Dean had been detained for about thirty minutes and suffered minor physical injuries: a cut nose and scalp, a scratch on the neck, and welts on his back. He alleges that he later suffered severe emotional trauma as well.

Two years later Dean filed suit in the United States District Court for the District of Massachusetts. The amended complaint contains six counts: one count charges respondeat superior liability against the City of Worcester under the Massachusetts Civil Rights Act (MCRA); ¹ two counts charge the Worcester police officers and Massachusetts state troopers with civil rights violations under 42 U.S.C. Sec. 1983 and MCRA; three counts allege common law claims against the defendant officers for assault and battery, intentional infliction of emotional distress, and false imprisonment. ² Dean appeals the summary judgment dismissing the common law claims for assault and battery and intentional infliction of emotional distress, and the section 1983 claims alleging official use of excessive force in effecting the arrest.

II

Summary judgment is appropriate only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The record must be viewed and reviewed in the light most favorable to the nonmoving party. See, e.g., Jensen v. Frank, 912 F.2d 517, 520 (1st Cir.1990). When a motion for summary judgment is competently supported, however, the nonmoving party "may not rest upon the mere allegations or denials of [his] pleading, but ... must set forth specific facts showing there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue exists only if a material conflict in the evidence warrants trial. See, e.g., Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71, 73 (1st Cir.1990).

III

Dean contends that the district court granted summary judgment on the section 1983 claims in mistaken reliance on an incorrect legal standard, and that there remains a genuine dispute as to the reasonableness of the force used in effecting Dean's arrest.

A civil rights claim alleging official use of excessive force in effecting an arrest must contend with the familiar fourth amendment "reasonableness" standard, which balances the public interest in effective law enforcement against the intrusiveness of the challenged police action in light of all the circumstances disclosed by the evidence. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). As with any judicial inquiry into the realm of the reasonable, we first identify our perspective. The inquiry is an objective one and the "question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. 109 S.Ct. at 1872. We examine with care the particular facts and circumstances of the case, id., to determine whether the force used exceeded "the ... force ... necessary" to effect the arrest from the perspective of an objectively reasonable officer at the scene, with due "allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving...." Id.

Dean argues that the reasonableness standard annunciated in Graham v. Connor is less stringent than the "shock the conscience" test used by the district court. The district court indeed did refer to the "shock the conscience" and "good faith" standards superseded by Graham v. Connor. Although the court in the present case arrived at its determination in the course of an analysis of Dean's common law assault and battery claims, rather than the section 1983 claims, it considered the "facts and circumstances of the particular case" and determined that the force used by the officers "could not be viewed as ... unreasonable." Moreover, the section 1983 claims and the assault and battery claims arose out of the same facts and circumstances and Dean concedes that the rule of reasonableness relied on by the district court is "strikingly similar to the Fourth Amendment analysis commanded by Graham v. Connor." We conclude that Dean was occasioned no prejudice by virtue of the district court's reference to some other standard, since the record demonstrates that the force used to effect the intended arrest was reasonable as a matter of law.

The district court correctly concluded that the defendant officers reasonably believed that Dean was the escaped felon, Burbo, and that Dean's unsupported allegations to the contrary were insufficient to raise a triable issue. The defendants submitted affidavits to the effect that Dean and Burbo were of similar physical appearance and that Dean was arrested near the apartment house at which Burbo was believed to be staying and where he was later found.

Dean contends that the misidentification was unreasonable because he is taller than Burbo. ³ We disagree. Dean was seated on a rock near the bus stop when first observed by the officers and when the arrest decision was made. As the police cruiser, carrying two arresting officers in plain clothes, approached the scene of the arrest at high speed and drove onto the sidewalk, Dean stood up. According to Dean, the cruiser came so close that it almost ran over his feet. The two officers in plain clothes, with guns drawn, got out of the cruiser "very fast," according to Dean. Given all the circumstances that conspired in their hapless misidentification of Dean as the "armed and dangerous" prison escapee, Burbo, the failure of the officers to note, instantaneously, as they suddenly alighted from the cruiser, that Dean was somewhat taller than Burbo, cannot be considered objectively unreasonable, particularly amidst the tension and urgency prevailing at the moment of the arrest.

As the officers reasonably believed that Dean was the escaped felon Burbo, ⁴ they were "entitled to do what the law would have allowed them to do if [Dean] had in fact been [Burbo]." Hill v. California, 401 U.S. 797, 804, 91 S.Ct. 1106, 1111, 28 L.Ed.2d 484 (1971) (police had probable...