Sena v. Com.

• Decision Date: 10 March 1994
• Citation: 629 N.E.2d 986,417 Mass. 250
• Parties: Timothy J. SENA & another 1 v. COMMONWEALTH & others. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 986

629 N.E.2d 986

417 Mass. 250

Timothy J. SENA & another ¹ v. COMMONWEALTH & others. ²

Supreme Judicial Court of Massachusetts,

Hampshire.

Argued Nov. 4, 1993.

Decided March 10, 1994.

David C. Kuzmeski, Northampton (Harry L. Miles, with him), for plaintiffs.

Pamela L. Hunt, Asst. Atty. Gen., for Com. & another.

Michael K. Callan, Boston, for the town of Carver & another.

Before LIACOS, C.J., and NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

The plaintiffs, Timothy J. Sena and Catherine Rude-Sena, appeal from the entry of summary judgments in favor of the defendants, the Commonwealth, town of Carver, James Henderson, and Lawrence Cabeceiras. We transferred this case to this court on our own motion. The uncontroverted facts follow.

This case arises out of the arrest, prosecution, and acquittal of the plaintiffs on charges of receiving stolen property. In September, 1981, the plaintiffs purchased a nickel-plated Colt .45 caliber revolver at the Brimfield Flea Market for $1,400. On the walnut grips of the gun were engraved the initials, "W.E.," and on the backstrap was engraved "Wyatt Earp 1879." Thereafter, the plaintiffs spent almost two years and over $10,000 researching the gun's history and authenticating it as a gun actually owned by Wyatt Earp. ³ In July, 1983, the plaintiffs consigned the revolver to a Beverly Hills, California, establishment which advertised it for sale at $350,000.

During their research of the gun's history, the plaintiffs realized that it possibly had been owned by F. Nelson Blount, the deceased owner of Edaville Railroad (Edaville) and a collector of guns. The plaintiffs communicated with Frederick Richardson, the executor of Blount's estate, who advised them that their gun appeared to be one that was stolen from Edaville in 1968. Richardson subsequently wrote to the plaintiffs, advising them that he was "very sure" that theirs was the gun stolen from Edaville.

In January, 1984, after an article written about the plaintiffs and their acquisition was published in a national magazine, George Bartholomew, owner of the Bartholomew Enterprises, Inc., which acquired Edaville in 1970, telephoned the defendant town's police department. Bartholomew thought that the plaintiffs' gun was in fact the one stolen from Edaville in 1968. The police checked their records of the Edaville burglary, but they had no list of what had been stolen. Edaville then supplied them with a list of what had been taken in the 1968 burglary. The list indicated that the following had been stolen: ".45 Colt Birdshead Grip--7 1/2 [inches] (1879) Wyatt Earp's name engraved on stock." A birdshead grip is significantly different from the "standard" grip of the plaintiffs' pistol.

John Bryden, a long-time employee of Edaville, communicated with the plaintiffs, inquiring about their revolver. Bryden did not disclose to them that he was an employee of Edaville. The plaintiffs sent him a detailed photograph of their gun. On the basis of this photograph, Bryden concluded that the plaintiffs' gun was the same gun that had been on display at Edaville prior to the burglary.

After a lapse of time, Bartholomew complained to one of the town's selectmen about how little he thought the police had been doing to investigate the case. Thereafter, Thomas Orr, chief of police met with the plaintiffs. After the meeting, he concluded that there was some disparity between the plaintiffs' gun and the description of the gun that was stolen. The investigation continued.

The defendants James Henderson, a Carver police officer, and Lawrence Cabeceiras, a State trooper, were assigned to investigate the case further. Henderson and Cabeceiras eventually came to the conclusion that the plaintiffs' revolver was the same gun stolen from Edaville, and they sought warrants for the plaintiffs' arrest. A clerk-magistrate issued the requested warrants. The State police arrested Sena on May 10, 1985, for receiving stolen property. He was confined for approximately twenty-four hours before being released on posting of bail. Rude-Sena thereafter surrendered on May 13. She was confined for a short period before being released on her own recognizance.

Prior to the criminal trial, the plaintiffs moved to dismiss the criminal complaints for lack of probable cause for their arrest. Briefs were submitted by the plaintiffs and the Commonwealth. On April 1, 1985, the motion was denied. Trial began on January 27, 1987, on which day the trial judge denied the plaintiffs' motion for a required finding of not guilty. The plaintiffs were found not guilty on September 15, 1987.

The plaintiffs commenced this action in the Superior Court on January 28, 1988. The complaint included claims for negligence under G.L. c. 258, § 2 (1992 ed.), violations of the plaintiffs' civil rights under 42 U.S.C. § 1983 (1988) and G.L. c. 12, § 11H and 11I (1992 ed.), abuse of process, malicious prosecution, false arrest, false imprisonment, negligent and intentional infliction of emotional distress, and loss of consortium.

After some discovery, the Commonwealth and Cabeceiras moved for summary judgment on April 17, 1990. A Superior Court judge granted their motion. On the plaintiffs' motion for reconsideration, the judge revoked his prior ruling and ordered a motion hearing. On August 27, 1990, the judge reinstated his original ruling, again granting summary judgment in favor of the Commonwealth and Cabeceiras.

On October 15, 1990, the town and Henderson moved for summary judgment. On December 18, 1990, another Superior Court judge granted the motion, adopting the memorandum which had been issued for the motion of the Commonwealth and Cabeceiras. Final judgment was entered on July 22, 1992.

The plaintiffs argue error in granting the town and the Commonwealth summary judgment on their claims for negligence under G.L. c. 258, § 2. As to Henderson and Cabeceiras, the plaintiffs assert error in allowing summary judgment for their claims under 42 U.S.C. § 1983 and G.L. c. 12, § 11H and 11I, and their common law claims of intentional infliction of emotional distress and loss of consortium.

We examine the issues. We are mindful of our obligation to consider the record in a light favorable to the plaintiffs. Conley v. Massachusetts Bay Transp. Auth., 405 Mass. 168, 173, 539 N.E.2d 1024 (1989).

1. G.L. c. 258, §§ 2 and 11. In their complaint, the plaintiffs asserted claims against the town and the Commonwealth under G.L. c. 258, the Massachusetts Tort Claims Act, for negligence in their criminal investigation and in pursuing warrants for the plaintiffs' arrest. The motion judge granted summary judgment on these claims, ruling that the conduct of the defendants' employees falls within the discretionary acts exception to the Massachusetts Tort Claims Act provided in G.L. c. 258, § 10(b ). The plaintiffs argue error, and assert that the conduct of the police officers in investigating the criminal matter and in pursuing arrest warrants was ministerial, and therefore actionable. We agree with the trial judge.

Section 2 of G.L. c. 258 provides in part: "Public employers shall be liable for injury ... caused by the negligent or wrongful act or omission of any public employee while acting within the scope of his office or employment." Exempted from liability, however, are claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a public employer or public employee, acting within the scope of his office or employment, whether or not the discretion involved is abused." G.L. c. 258, § 10(b ). We must determine whether the acts of the police officers were "discretionary functions" as to § 10(b ).

We have long recognized that c. 258 tracks the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) et seq. (1988) (Federal Act). See Harry Stoller & Co. v. Lowell, 412 Mass. 139, 142-143, 587 N.E.2d 780 (1992); Pina v. Commonwealth, 400 Mass. 408, 414, 510 N.E.2d 253 (1987). Thus, in interpreting c. 258, we have found Federal court decisions construing provisions of the Federal Act helpful. See Harry Stoller & Co., supra 412 Mass. at 142-143, 587 N.E.2d 780. In particular, Federal case law concerning the Federal Act's discretionary functions exception has been a source of general guidance in our examination of § 10(b ). ⁴ Id.

Most recently, in Harry Stoller & Co. v. Lowell, supra at 141, 587 N.E.2d 780, we adopted a two-prong inquiry utilized by the United States Supreme Court in Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958-1959, 100 L.Ed.2d 531 (1988), for determining whether certain conduct falls within the discretionary functions exception. "The first step ... is to determine whether the governmental actor had any discretion at all as to what course of conduct to follow. ... The second and far more difficult step is to determine whether the discretion that the actor had is that kind of discretion for which § 10(b ) provides immunity from liability." Harry Stoller & Co., supra. In expanding on the second step, we stated, "Discretionary actions and decisions that warrant immunity must be based on considerations of public policy." Id. 412 Mass. at 143, 587 N.E.2d 780.

As to the first step of our inquiry, it is obvious in the present case that the government actors--Henderson on behalf of the town and Cabeceiras on behalf of the Commonwealth--had discretion as to what course of conduct to follow. As law enforcement officers, they had to make numerous choices regarding their course of investigation of the plaintiffs' conduct, and regarding whether and when to seek warrants for the plaintiffs' arrest. Thus, they constantly had to rely on their own judgment, based on their experience and their knowledge of the law, to determine what evidence to seek, how to gather that evidence, and whether and when to apply for warrants for arrest. There obviously is no objective scale with which a...