Kinan v. City of Brockton, No. 88-1782

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore CAMPBELL, Chief Judge, BOWNES and BREYER; BOWNES
Citation876 F.2d 1029
Parties28 Fed. R. Evid. Serv. 327 Albert J. KINAN, Plaintiff, Appellant, v. CITY OF BROCKTON, et al., Defendants, Appellees. . Heard
Docket NumberNo. 88-1782
Decision Date03 April 1989

Page 1029

876 F.2d 1029
28 Fed. R. Evid. Serv. 327
Albert J. KINAN, Plaintiff, Appellant,
v.
CITY OF BROCKTON, et al., Defendants, Appellees.
No. 88-1782.
United States Court of Appeals,
First Circuit.
Heard April 3, 1989.
Decided June 2, 1989.
Rehearing and Rehearing Denied July 12, 1989.

Page 1030

Robert L. Hernandez with whom Marian L. Klausner was on brief, for appellant.

Frank A. Smith, III, with whom Karen M. Thursby and Herlihy & O'Brien were on brief, for appellees City of Brockton and Edward F. Cronin.

Gerard S. McAuliffe with whom McParland & McAuliffe was on brief, for appellees Philip Sullivan, Walter Carlson, Joseph Dodero and John Kane.

Before CAMPBELL, Chief Judge, BOWNES and BREYER, Circuit Judges.

BOWNES, Circuit Judge.

Plaintiff, Albert J. Kinan, sued the City of Brockton, Massachusetts and several of its police officers pursuant to 42 U.S.C. Sec. 1983, alleging violations of his rights under the first, fourth, fifth and fourteenth amendments to the United States Constitution. He also alleged pendent state claims under the Massachusetts Civil Rights Act, Mass.Gen.L. ch. 12, Sec. 11I, the Massachusetts Tort Claims Act, Mass.Gen.L. ch. 258, and under Massachusetts common law for assault and battery, false arrest, false imprisonment, malicious prosecution and intentional infliction of emotional distress. The police officers sued included former Chief of Police, Edward F. Cronin, Lieutenant Philip F. Sullivan, Sergeant W. Carlson and Officers John Kane and J.E. Dodero. 1

At the close of plaintiff's evidence, the district court directed verdicts for Cronin, Carlson and Dodero on all counts. A directed verdict for Sullivan was ordered on

Page 1031

the counts of false arrest, false imprisonment and assault and battery. In the case against Kane, the court directed a verdict on the malicious prosecution count.

At the close of all the evidence the court directed a verdict for Sullivan on the counts of malicious prosecution and intentional infliction of emotional distress.

The jury was asked to make the following determinations:

(1) Whether defendant Kane was liable under 42 U.S.C. Sec. 1983, the Massachusetts Civil Rights statute, and/or the Massachusetts common law for assault and battery, false imprisonment and intentional infliction of emotional distress.

(2) Whether defendant Sullivan was liable under 42 U.S.C. Sec. 1983 and/or the Massachusetts Civil Rights statute.

(3) Whether defendant City of Brockton was liable under 42 U.S.C. Sec. 1983, the Massachusetts Civil Rights statute, and/or was negligent under the Massachusetts Tort Claims Act.

The jury returned verdicts finding that none of the defendants were liable on any counts. Plaintiff has appealed. We affirm. The issues before us encompass the exclusion of certain evidence, the directed verdicts for defendants Carlson, Dodero and Sullivan, and the jury instructions. 2

I. THE FACTS

On the night of December 6, 1980, plaintiff and two friends, Billy Hunnewell and Jose Avelar, were "cruising around." the Brockton area in plaintiff's 1968 red Mustang. Plaintiff and Avelar were 18; Hunnewell was either 18 or 19.

At some time, plaintiff picked up three male hitchhikers, all of whom appeared to be younger than 18. The hitchhikers sat in the back seat with Hunnewell. They asked him to purchase liquor for them and gave him $9 for that purpose. Hunnewell was not of legal liquor-purchasing age, and plaintiff knew it. Hunnewell asked plaintiff to stop at a parking lot adjacent to a liquor store. The hitchhikers and Hunnewell got out of the Mustang, whose engine remained running. Hunnewell went into the liquor store. The hitchhikers stood near another store. It is disputed as to how close to the Mustang they were. Hunnewell returned to the car without having purchased any liquor, got in and said "let's go." As the car drove off leaving the hitchhikers behind, Hunnewell laughed and gave plaintiff and Avelar $2 each. One of the hitchhikers, David Luke, noted the license plate number of the Mustang and called the Brockton Police Department. The Brockton police log shows that a call reporting an armed robbery in progress was received about the time Luke made the telephone call.

Defendant Kane and his partner, Thomas Crowley, who died prior to trial, were on patrol in a Brockton Police cruiser at this time. They were dispatched to the scene. Kane was the driver of the cruiser. Crowley questioned the three hitchhikers. There is a dispute as to where the questioning took place--either outside the cruiser with the youths standing next to the lowered passenger seat window or inside in the back of the cruiser. Crowley did the questioning and Kane heard all or most of the interrogation and response. The hitchhikers claimed that they had been robbed by plaintiff and his two companions at knife point. A description of the car, its occupants, and the Mustang's license plate number was given to Crowley and Kane.

The questioning of the hitchhikers was completed in a short time. Kane then made a general broadcast call from the cruiser requesting that the occupants of the red Mustang be stopped and held on a complaint of armed robbery. About a half an hour later plaintiff and his companions, who were then in the neighboring town of Stoughton, were stopped at gun point by a Stoughton police officer in a cruiser. There is a dispute as to whether the broadcast made by Kane was or could have been received by the Stoughton police. We will

Page 1032

assume that Officer Kane's broadcast was picked up by the Stoughton police.

The occupants of the Mustang were ordered out of the car and told to lie stomach down on the ground. As plaintiff attempted to put the car in park, he was punched in the nose by the Stoughton police officer and then bitten on the arm by a police dog. More Stoughton police officers arrived on the scene. They repeatedly asked plaintiff, "Where's the piece?" Plaintiff and his companions were thoroughly searched. The police pulled the Mustang's trunk apart, cracked the dashboard, pulled out the console and speakers and searched under the rug. Plaintiff and his companions were subjected to verbal abuse. He and the other two youths were handcuffed with their hands behind their backs. Plaintiff was pulled off the ground by his hair. He and his companions were then taken to the Stoughton police station. When plaintiff requested help to stop his arm from bleeding, which it had done continuously since he was bitten, he was given a dry paper towel. 3

Officers Kane and Crowley subsequently arrived at the Stoughton police station. The three youths were turned over to the Brockton officers who handcuffed them and drove them to the Brockton police station. Defendant Sullivan was a lieutenant and the supervisor on duty. Defendant Dodero was the booking officer who processed plaintiff. Defendant Carlson was a sergeant and was present at the police station; he had supervisory authority over Officers Kane and Crowley. Plaintiff was booked, fingerprinted and photographed. The facts as to what happened subsequently are hotly disputed. We set forth plaintiff's version first and then defendants'.

Plaintiff alleges that he was mistreated by the Brockton Police Department. He claims that he was not advised of the charges on which he was arrested and that the Miranda warnings were not read to him. When confronted at trial with a signed form indicating that the Miranda warnings had been read to him, he testified that he did not know what he was signing. Although he was still bleeding from the dog bite and repeatedly asked to be taken to the hospital, no medical treatment was given plaintiff. The police required plaintiff to remove all his clothing.

Defendant Sullivan's testimony as to what took place at the police station differed sharply from that of plaintiff. Sullivan testified that he told plaintiff that he was charged with armed robbery and plaintiff was orally given the Miranda warnings. He asked plaintiff if he wanted to go to the hospital. Plaintiff declined because it would cost him an extra $5 for bail recognizance; after midnight the clerk's fee for bail recognizance increased from $15 to $20. Plaintiff was not required to remove all his clothes; he took off only his shirt.

The balance of the facts are not in serious dispute. After about an hour, plaintiff was released from custody on his personal recognizance upon payment of the $15 bail commissioner's fee. He and Avelar walked to Brockton Center and then took a cab to the hospital where his dog bite wound was closed by stitches. He returned the next day for treatment of his nose injury.

Shortly after the three youths were booked at the Brockton police station, William Hunnewell, the father of Billy, came to the station. Hunnewell, Sr. was a detective sergeant on the Stoughton Police Department. After talking to his son, Hunnewell met with Officer Crowley and Lieutenant Sullivan. Sullivan directed Crowley to continue the investigation relative to the charges against plaintiff, Billy Hunnewell and Avelar. After questioning the three hitchhikers again, Crowley reported that: there had been no knife point robbery; $9 was given to plaintiffs and his companions to buy beer for the hitchhikers; the money was kept by plaintiff and his companions; the hitchhikers did not want to press charges; they wanted their money returned; and plaintiff and his two companions were willing to return the money and not press counter-charges. Sullivan then wrote a memo to "Records" dated December

Page 1033

7, 1980, to be signed by Crowley. The memo stated: "To: Records from Officer T. Crowley, date: 12/7/80, re: Armed robbery. Further investigation shows no crime committed. Could you be sure this supplement reaches the Court along with the arrest reports on 12/8/80."

The memo notwithstanding, Lieutenant Dufresne of the Brockton Police Department brought a criminal complaint for armed robbery on December 8,...

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  • Montoya v. Shelden, No. CIV 10–0360 JB/WDS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 12, 2012
    ...Lovato that have not been resolved would “result in a series of mini-trials.” Motion in Limine at 8–9 (citing Kinan v. City of Brockton, 876 F.2d 1029, 1034 (1st Cir.1989)). On September 17, 2012, the Montoyas filed the Plaintiffs' Response to Defendants' Motion in Limine to Exclude Introdu......
  • Gilbert v. City of Cambridge, No. 90-1907
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 6, 1991
    ...It follows, then, that appellants' takings claims, being unripe for adjudication, were properly dismissed. See, e.g., Tenoco, 876 F.2d at 1029 n. 23 ("A determination that a claim is not ripe deprives a court of jurisdiction; there is as yet no 'case or controversy' as required by Arti......
  • United States v. O'Sullivan, 20-CR-272 (PKC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 18, 2021
    ...cases would become inextricably intertwined with the case at bar.'" (alterations omitted) (quoting Kinan v. CityPage 26 of Brockton, 876 F.2d 1029, 1034 (1st Cir. 1989))). As the Government illustrates in its own briefing, and made clear at oral argument, allowing the trial to detour i......
  • Comfort v. Town of Pittsfield, Civ. No. 95-106-B.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • April 12, 1996
    ...and acquiesces in a police custom or policy as to which he has actual or constructive knowledge." Kinan v. City of Brockton, 876 F.2d 1029, 1035 (1st Cir.1989); see Praprotnik, 485 U.S. at 122-26, 108 S.Ct. at 923-26. Whether a police officer constitutes a "policymaker" is an......
  • Request a trial to view additional results
30 cases
  • Montoya v. Shelden, No. CIV 10–0360 JB/WDS.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 12, 2012
    ...Lovato that have not been resolved would “result in a series of mini-trials.” Motion in Limine at 8–9 (citing Kinan v. City of Brockton, 876 F.2d 1029, 1034 (1st Cir.1989)). On September 17, 2012, the Montoyas filed the Plaintiffs' Response to Defendants' Motion in Limine to Exclude Introdu......
  • Gilbert v. City of Cambridge, No. 90-1907
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 6, 1991
    ...It follows, then, that appellants' takings claims, being unripe for adjudication, were properly dismissed. See, e.g., Tenoco, 876 F.2d at 1029 n. 23 ("A determination that a claim is not ripe deprives a court of jurisdiction; there is as yet no 'case or controversy' as required by Arti......
  • United States v. O'Sullivan, 20-CR-272 (PKC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 18, 2021
    ...cases would become inextricably intertwined with the case at bar.'" (alterations omitted) (quoting Kinan v. CityPage 26 of Brockton, 876 F.2d 1029, 1034 (1st Cir. 1989))). As the Government illustrates in its own briefing, and made clear at oral argument, allowing the trial to detour i......
  • Comfort v. Town of Pittsfield, Civ. No. 95-106-B.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • April 12, 1996
    ...and acquiesces in a police custom or policy as to which he has actual or constructive knowledge." Kinan v. City of Brockton, 876 F.2d 1029, 1035 (1st Cir.1989); see Praprotnik, 485 U.S. at 122-26, 108 S.Ct. at 923-26. Whether a police officer constitutes a "policymaker" is an......
  • Request a trial to view additional results

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