Walker v. Femino, Civil Action No. 16–11004–FDS

• Decision Date: 02 May 2018
• Docket Number: Civil Action No. 16–11004–FDS
• Citation: 311 F.Supp.3d 441
• Parties: Radcliffe WALKER, Plaintiff, v. Frank FEMINO, Defendant.
• Court: U.S. District Court — District of Massachusetts

311 F.Supp.3d 441

Radcliffe WALKER, Plaintiff,

v.Frank FEMINO, Defendant.

Civil Action No. 16–11004–FDS

United States District Court, D. Massachusetts.

Signed May 2, 2018

Kevin B. Nugent, Nugent Law Offices, LLP, Boston, MA, for Plaintiff.

John J. Boscia, Jacob Goodelman, Nieve Anjomi, City Of Boston Law Department, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

SAYLOR, United States District Judge

This is a civil rights action arising out of a confrontation between Boston police officers and a teenage boy. Plaintiff Radcliffe Walker, who was then 17 years old, was with his cousin when he was approached by four police officers in a cruiser near his home. The parties dispute whether Walker was trespassing on a construction site or standing on the sidewalk. The officers say (and Walker has not disputed) that they smelled burnt marijuana. One of the officers, defendant Frank Femino, asked the boys a question. Walker suddenly took off running. Femino got out of the car and began chasing him.

Walker ran into the basement of a house, from which a woman emerged, screaming. Femino chased Walker into the basement. Walker alleges that he was punched and beaten by Femino and perhaps other officers. He was handcuffed, searched, and removed from the basement. No marijuana or other contraband was found. Shortly thereafter, Walker's mother informed the police that he lived at the house and was not trespassing. Walker was then released.

Walker alleges that Femino violated his Fourth Amendment rights, falsely imprisoned him, intentionally inflicted emotional distress, assaulted him, and used excessive force in connection with his arrest. Femino has moved for partial summary judgment on the Fourth Amendment and false imprisonment claims.

There are three basic components to this lawsuit, involving the legality of (1) the initial pursuit, (2) the subsequent arrest and searches, and (3) the use of force. Only the first two are the subject of the motion for summary judgment; defendant does not contend that he is entitled to summary judgment on the excessive-force claim. For the following reasons, the Court concludes that, under the circumstances, Femino's pursuit of Walker is protected by the doctrine of qualified immunity, and that he had probable cause to conduct the arrest and search. Accordingly, partial summary judgment will be granted in favor of Femino.

I. Background

A. Factual Background

Unless otherwise indicated, the following facts are set forth in the light most favorable to plaintiff.

Radcliffe Walker is an African–American teenager who lives with his mother at 16 Rockland Street in the Roxbury section of Boston. (Def. SMF Ex. 5; Pl. SMF Ex. 3 at 6:12–14).

Frank Femino is a Boston police officer. On October 12, 2012, Femino was on patrol with three other officers, Douglas McGrath, Thomas Bernier, and Michael Paradis, in the same police car. (Def. SMF ¶ 1; id. Ex. 1 at 12:5–13, 12:16–21; id. Ex. 2 at 25:5–16). Bernier was driving, and Femino was sitting in the front passenger side of the car. (Def. SMF Ex. 3 at 30:22–31:6). At least Femino and Paradis are white. (Pl. SMF Ex. 4 at Answer 10).

Around 6 or 7 p.m., the officers noticed Walker and another individual, his cousin Lester Walker, near a house that was under construction. (Def. SMF Ex. 2 at 43:19–44:3; id. Ex. 3 at 37:5–9; id. Ex. 5; Pl. SMF Ex. 1 at 41:20–23, 46:3–11, 49:1–15; id. Ex. 3 at 106:3–21; id. Ex. 4 at Answer 10).¹ Walker contends that they were on the sidewalk and on their way back to his home; Femino contends that they were standing in the driveway of a house under construction, and therefore trespassing. (Def. SMF Ex. 2 at 43:19–44:3; id. Ex. 3 at 37:5–9; Pl. SMF Ex. 3 at 106:10–12; id. Ex. 4 at Answer 10).

Bernier pulled the car up to Walker and Lester and stopped. There had been no discussion among the officers about the two boys, and Femino testified that he had no opinion as to why Bernier stopped the car in front of them. (Pl. SMF Ex. 1 at 32:7–18). Femino rolled his window down and addressed the boys. (Def. SMF Ex. 3 at 44:4–14).

The officers contend that they smelled burnt marijuana. (Def. SMF Ex. 1 at 52:10–17; id. Ex. 2 at 43:19–44:3; id. Ex. 3 at 37:5–9; id. Ex. 4 at 39:7–10).² No officer contends that he saw either boy smoking marijuana. Only Femino testified that he saw "smoke in the air." (Def. SMF Ex. 3 at 37:5–9). No marijuana was ever recovered, either from the boys or in the immediate area. (Def. SMF Ex. 1 at 52:21–23; id. Ex. 3 at 81:1–6, 94:17–22). Plaintiff, however, has submitted no evidence disputing the existence of the marijuana smell.

Femino asked Walker at least one question, although the parties dispute what was said. Femino contends that he asked them if they lived at the house that they were standing next to, and that Walker answered, "No." (Def. SMF Ex. 3 at 44:10–14; id. Ex. 4 at 38:14–19). Paradis testified that Femino also asked Walker his name, and he answered, "Zane." (Def. SMF Ex. 4 at 38:22–39:3; see id. Ex. 3 at 78:13–14 (Femino testifying that he told Walker's mother that Walker had told him his name was "Zane"); id. Ex. 5 (listing "Zane" as an alias of Walker) ). Walker, however, contends that the officer said something like, "Don't you guys think you should be inside, wrong place?" (Pl. SMF Ex. 4 at Answer 10).

According to Walker, he became scared and took off running home as soon as they spoke to him. (Pl. SMF Ex. 3 at 107:14–18). Femino contends that Walker started running when he opened the door to the car to get out. (Pl. SMF Ex. 1 at 46:20–24; see Def. SMF Ex. 4 at 39:14–19).³ Lester did not run. (Def. SMF Ex. 4 at 42:14–19).

Femino testified that he had a suspicion that Walker had a weapon because "[t]he way he ran it was an indication that he was in possession of a weapon." (Def. SMF Ex. 3 at 50:22–51:1).⁴ He and Paradis pursued Walker on foot, while Bernier followed with the car and McGrath stayed with Lester. (Def. SMF Ex. 1 at 37:8–38:9; id. Ex. 4 at 26:18–27:1, 42:21–23).

Walker ran into the backyard of a house at 16 Rockland Street. He then entered the basement. (Def. SMF Ex. 3 at 57:3–58:3; Pl. SMF Ex. 3 at 117:10–22). The basement is a separate apartment; Walker did not live there. (Def. SMF Ex. 6 at 45:13–24; id. Ex. 8 at 16:15–20).

Walker contends that while he was running into the yard, he was shouting back at the pursuing officers that it was his home. (Pl. SMF Ex. 3 at 117:10–11). Femino testified that he did not know that 16 Rockland Street was Walker's home at the time, and he suspected him of trespassing. (Def. SMF Ex. 3 at 50:10–14; Pl. SMF Ex. 1 at 60:15–21).

Immediately after Walker entered the basement, a woman ran out of the basement screaming. (Def. SMF Ex. 3 at 57:24–58:3; id. Ex. 4 at 56:8–57:18). The woman did not return and was never identified by the officers. (Def. SMF Ex. 3 at 58:11–68:2; id. Ex. 4 at 57:19–24).⁵

Femino entered the basement in pursuit of Walker. (Pl. SMF Ex. 1 at 60:22–61:4). It was dark in the basement, and he had to get out his flashlight. (Pl. SMF Ex. 1 at 61:2–10; Def. SMF Ex. 7 at 9). At some point, Femino drew his weapon, a .40–caliber Glock 23 semi-automatic pistol. (Pl. SMF Ex. 1 at 61:15–20). He testified that at that time, his assessment of the situation was that it had "escalated from a trespass and drug use to an individual with a weapon fleeing the scene and invading a house that he had no authority to." (Def. SMF Ex. 3 at 93:20–94:1).

Walker contends that Femino punched him on the right side of the head and on the left jaw, and he fell to the ground. Femino then handcuffed him. (Pl. SMF Ex. 3 at 117:19–22, 127:5–128:11). Walker testified that the whole time he was telling the officer that this was his house. (Pl. SMF Ex. 3 at 117:10–13, 128:11–12).

Walker contends that after he was handcuffed, multiple officers punched him and hit him with their pistols in the basement and then kicked him while he was on the floor. (Pl. SMF Ex. 1 at 128:14–23; Def. SMF Ex. 7 at 131:5–20; id. Ex. 9 at Answers 3, 7). He testified that at some point he was knocked unconscious and that it had shaken his memory. (Def. SMF Ex. 7 at 123:3–10, 161:15–18 ("I'm not exactly sure because of me losing my memory that night. Not lose but, you know, my memory being shaken by me getting knocked out unconscious ....") ).

Femino testified that he ordered Walker to get on the ground, but instead of complying, Walker turned around to face him. (Pl. SMF Ex. 1 at 65:12–66:2). Femino testified that he could see Walker's hands were empty, but "[i]t appeared he was in a fighting stance." (Pl. SMF Ex. 1 at 66:1–7). He holstered his weapon, grabbed Walker's arms, and pulled him to the ground to handcuff him. (Def. SMF Ex. 3 at 66:5–69:2). According to Femino, during this time Walker was "screaming repeatedly that he ha[d] PTSD" and was pulling away and resisting. (Def. SMF Ex. 3 at 68:3–6, 69:11–15, 73:15–17).

Femino "did a quick search on" Walker in the basement, but did not find a weapon, drugs, drug paraphernalia, or any other contraband. (Def. SMF Ex. 3 at 50:19–51:14, 72:24–73:4).

According to the officers, Paradis entered the basement after Walker was handcuffed, and helped him to his feet. (Def. SMF Ex. 3 at 70:8–12; id. Ex. 4 at 59:12–18). Bernier then arrived. He stood at the end of the hallway and asked Paradis if they were "all set." (Def. SMF ¶ 28; id. Ex. 3 at 70:3–7; id. Ex. 4 at 63:14–19).

Femino escorted Walker from the basement into the backyard. (Pl. SMF Ex. 1 at 76:6–10). Femino did not remember whether the backyard was lit by artificial light, but he testified that he could see. (Pl. SMF Ex. 1 at 76:1–5). He searched Walker again, because he "wanted to make sure he didn't have any contraband or weapons still," and again found nothing. (Pl. SMF Ex. 1 at 76:11–15).

Femino then noticed a woman, who turned out to be Walker's mother, Anne Marie Wynter, in the open first-floor window of 16 Rockland Street. (Def. SMF Ex. 3 at 77:3–78:7)....