Mirsky v. Barkas

• Decision Date: 31 January 2011
• Docket Number: 20100624
• Parties: Lawrence N. Mirsky v. Kathryn L. Barkas, Quincy Police Detective et al.[1] No. 115835
• Court: Massachusetts Superior Court

Lawrence N. Mirsky v. Kathryn L. Barkas, Quincy Police Detective et al.^[1]

No. 115835

No. 20100624

Superior Court of Massachusetts, Norfolk

January 31, 2011

Caption Date: January 31, 2011.

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Troy, Paul E., J.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS

Paul E. Troy Justice.

This action arises out of a police investigation of and the initiation of a criminal complaint against the pro-se plaintiff, Lawrence N. Mirsky("Mirsky").In 2007 and 2008, Detective Kathryn L. Barkas("Barkas") of the Quincy Police Department("Quincy Police") investigated thirty-nine-year-old Mirsky for allegedly criminally harassing a seventeen-year-old female who worked at a grocery store near Mirsky's home.Detective Timothy V. Cohoon("Cohoon") of the Braintree Police Department became involved in Barkas's investigation in late 2007.The investigation eventually resulted in a criminal harassment charge against Mirsky, which was resolved by a continuance without a finding.

Mirsky now asserts the following claims: (1) defamation/slander against Barkas (Count I); (2) violation of G.L.c. 4, §7 clause 26, against Barkas and the Quincy Police (Count II)(3) violation of G.L.c. 66, §10, against Barkas and the Quincy Police (Count III); (4) filing a false police report, against Barkas (Count IV); (5) abuse of process, against Barkas and Cohoon (Count V); (6) conspiracy to deprive Mirsky of his Second Amendment rights, against Barkas and Cohoon (Count VI); (7) conspiracy to convict using false evidence, against Barkas and Cohoon (Count VII); (8) violation of G.L.c. 140, §129D, against the Quincy Police and the City of Quincy("City")(Count VIII); (9) violation of G.L.c. 12, §11I, against Barkas and Cohoon (Count IX); and (10) violation of G.L.c. 265, §37, against Barkas and Cohoon (Count X).The action is now before the court on the motions to dismiss of Barkas, the Quincy Police, and the City (collectively, "Quincy defendants") and of Cohoon.For the reasons that follow, the Quincy defendants' motion to dismiss is ALLOWED, and Cohoon's motion to dismiss is ALLOWED.

BACKGROUND

The facts which are alleged by Mirsky in his amended complaint are as follows.At the time of the events at issue, Mirsky was thirty-nine years old, living in Quincy, Massachusetts, and working in banking.Mirsky collected antique guns and had a valid license to carry from the Quincy Police.He never openly carried a firearm and no one but the police knew of his collection of firearms or his license to carry, both of which he kept secret.

Mirsky frequented a Roche Bros. grocery store located approximately two hundred yards from his apartment in Quincy.He visited the store three or four times a week.Mirsky became friendly with various Roche Bros. employees, including seventeen-year-old A.V., a cashier/product demonstrator, who welcomed and sought out interaction with Mirsky.^[2] Mirsky understood that A.V. was too young to date and he never associated with her outside the grocery store.Unbeknownst to Mirsky at the beginning of the events herein repeated, A.V. lived around the corner from him.

Beginning in March 2007, A.V.'s behavior changed—she appeared jumpy and behaved erratically when Mirsky saw her at Roche Bros.On March 4, 2007, it appeared to Mirsky that A.V. took down his license plate number with pen and paper as he drove away from the store.On April 6, 2007, Barkas took a police report from A.V. in which the latter stated that Mirsky would talk to her for hours in Roche Bros., which made her nervous.She made it clear, however, that Mirsky had never acted improperly towards her.Based on this report, Barkas asked Roche Bros. management to issue a trespass notice against Mirsky to protect A.V.'s safety.At some later time, Barkas gave management a copy of the April 6, 2007 police report, which included information about Mirsky's license to carry.

On April 6, 2007, after Barkas had taken A.V.'s report and asked Roche Bros. to issue a trespass notice against Mirsky, Mirsky entered the grocery store.Upon seeing Mirsky, a female department manager showed a look of terror.She called over the loudspeaker for the store manager.Mirsky, seeing the woman tremble, decided to leave the store.On the way out, he passed by the store manager, who appeared too afraid to approach him.Later the same day, as Mirsky was walking home from dropping off several letters at Roche Bros., Barkas and her partner, James Lencki("Lencki"), confronted him.Barkas told Mirsky that she had thoroughly looked into his background, including a 2001 incident with another girl.She also told him that he was banned from all Roche Bros. stores, when in truth he was only banned from the Quincy store.Mirsky walked away from the two officers when Lencki loudly called him a "kook."

On April 9, 2007, Barkas and Lencki intended to seize Mirsky's firearms after their supervisor had signed a letter revoking his license to carry.They first spent time at the home of A.V.'s family, waiting for Mirsky to leave work.When Lencki called Mirsky's office phone to determine whether Mirsky was still at work, he inadvertently left a voicemail on Mirsky's phone.On the voicemail, Barkas could be heard talking on the phone at A.V.'s family's home.She stated, "Yep we caught the 'perp' earlier, we got him, now we're going to get the perv's guns."When Mirsky returned home from work on April 9, 2007, Barkas and Lencki blocked in his car.Barkas yelled, "Hey Larry!Remember us!" and "We're here for your guns!You're going to let us in, or we're coming back with a warrant!"Mirsky, believing that failure to comply with Barkas's demands would lead to his arrest, let Barkas, Lencki, and other officers into his apartment so they could search for and seize his firearms.When Mirsky asked Lencki how he could have his firearms returned, the officer told him, "You can't.I know it's the chief's policy to never return guns.These are going to be sold or destroyed.But maybe you can talk to him."About a month after the Quincy Police seized his firearms, while Mirsky was struck in traffic in front of Roche Bros., a stock boy laughed and made a handgun sign at him.

Mirsky obtained judicial review of the Quincy Police's revocation of his license to carry on May 9, 2007, resulting in the Quincy Police returning his firearms and reinstating his license to carry.

Mirsky next approached Roche Bros. management in an attempt to have the trespass notice rescinded.Each level of management informed Mirsky that Barkas had told them repeatedly that he was a threat to A.V.'s safety and should not be allowed in the store under any circumstances.Eventually, Mirsky ceased attempting to come to an understanding with Roche Bros. after the executive vice president stated that the store would not ignore the Quincy Police's "strong recommendations."

Over the next few months, Mirsky had several run-ins with A.V. and her boyfriend, who appeared to follow Mirsky home and to the South Shore Plaza mall in Braintree, Massachusetts on separate occasions.After the latter encounter—during which Mirsky observed Barkas at the mall—A.V. and her boyfriend filed a false police report indicating that Mirsky had followed A.V. to her boyfriend's store at the mall.

Between December 3 and December 7, 2007, someone damaged A.V.'s car.The damage was blamed on Mirsky, and Barkas took a police report from A.V. on December 10, 2007.The report alleged criminal harassment based on A.V.'s car, the mall incident, and numerous sightings A.V. had of Mirsky while he walked in the neighborhood the two shared.Barkas then coordinated with Cohoon of the Braintree Police Department.He created a December 13, 2007 police report based on Barkas's December 10, 2007 report, inflating the number of times A.V. had seen Mirsky.Cohoon did this to aid Barkas at Mirsky's expense.

Based mostly on Cohoon's December 13, 2007 police report, Mirsky appeared at a clerk magistrate hearing on February 12, 2008.After the clerk magistrate questioned Mirsky, he or she continued the charges for six years.^[3]

On March 7, 2008, Mirsky was alone at a Quincy bar when Cohoon and another Braintree Police Department detective approached him.Cohoon appeared inebriated and attempted to draw Mirsky into a physical confrontation.After Mirsky distracted Cohoon with a statement about how Mirsky's case was suspicious and being investigated, Mirsky left the bar for his own safety.

After A.V. reported seeing Mirsky drive down her street twice in the span of five days in late November and early December 2008, Mirsky was arrested on December 2, 2008 and charged with criminal harassment the next day.The court agreed to release Mirsky on his own recognizance if he surrendered all the firearms he possessed.Mirsky did so, also surrendering numerous firearm-related items not subject to his license to carry.To avoid a trial with false testimony and the consequences of a guilty plea, Mirsky accepted a Continuance Without a Finding ("CWOF") on the criminal harassment charge.

Subsequently, pursuant to G.L.c. 140, §129D, Mirsky attempted to have the almost $11, 000 in firearms and related property that the Quincy Police seized from him transferred to his brother, a licensed firearms dealer in New York.In November 2009, Mirsky learned that the Quincy Police had improperly disposed of his property due to Barkas's paperwork error.

DISCUSSION

I.Motion to Dismiss Standard

When evaluating the legal sufficiency of a complaint pursuant to Mass.R.Civ.P. 12(b)(6), the court accepts as true all of the factual allegations of the complaint, and draws all reasonable inferences from the complaint in favor of the...