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Bazinet v. Thorpe

United States District Court, D. Massachusetts

June 3, 2016




         This case arises from Bruce and Lori Bazinet’s encounter with police on July 29, 2012, which began with Bruce’s suicidal behavior and ended with an allegedly falsely procured abuse prevention order and two criminal charges against Bruce. The Bazinets brought suit against several officers from the Paxton police department and the Massachusetts State Police, alleging constitutional and common-law claims. The three remaining defendants move for summary judgment. For the reasons set forth below, Forrest Thorpe and Robert Desrosiers’s motion for summary judgment (Docket No. 56) is denied, and Francis Leahy’s motion for summary judgment (Docket No. 61) is denied.


         Lori and Bruce Bazinet (Plaintiffs) are married and reside with their ten-year-old daughter in a house in Paxton, Massachusetts. On July 29, 2012, Lori[1] came home and found Bruce holding a gun and pointing it at his head. After trying unsuccessfully to talk him into putting the gun down, she decided to leave for a while, hoping that he would calm himself. According to Lori, he pointed the gun only at himself, not at her. (Docket No. 74-1 at 22.)

         The Bazinets live next door to Robert Desrosiers, who is the Chief of the Paxton Police Department. At some point after Lori found Bruce with the gun, Desrosiers entered his driveway and saw Lori and her daughter, standing in front of his house with his wife, looking upset. Before leaving his vehicle or speaking with Lori, he contacted dispatch, because he “made an assumption that something had gone wrong in [Lori’s] house." (Docket No. 74-1 at 4.) Desrosiers testified during his deposition that he and Bruce “were not friends." (Docket No. 74-1 at 5.) Out of concern for his officers, Desrosiers told dispatch to keep all responding Paxton police units away from the Bazinets’ home, but to go to the area to observe. Desrosiers also summoned the State Police “STOP" team, which is a specialty unit that is trained to set up perimeters and deal with high-risk entries to homes. (Docket No. 74-1 at 6.) He evacuated some of the neighbors’ houses and had responding officers bring the neighbors, his wife, Lori, and the Bazinets’ daughter to the police station. (Docket No. 74-1 at 10-12.)

         On that same evening, Major Francis Leahy of the State Police was assigned to the Worcester District Attorney’s office as commanding officer of the Homicide Unit. He received several telephone calls regarding the incident. When he arrived in the neighborhood, several streets were blocked off by police officers. Leahy remained in the outer perimeter but made Desrosiers aware of his presence. The parties dispute whether Leahy or Desrosiers was “in charge" of the scene. The stand-off between the police and Bruce lasted approximately three hours. At some point, Leahy learned that Bruce was suicidal. Desrosiers testified during his deposition that he did not learn until after the stand-off had concluded that Bruce had threatened to kill himself earlier in the day. (Docket No. 74-1 at 14.)

         After a peaceful resolution of the stand-off, Bruce was involuntarily committed to Saint Vincent’s Hospital for a psychiatric evaluation pursuant to Mass. Gen. Laws ch. 123, § 12. After Bruce was taken to the hospital, Lori spoke with Desrosiers, Leahy, and Detective Forrest Thorpe from the Paxton police. (Docket No. 74-1 at 25-26.) The three officers and Lori dispute the nature of what occurred during this conversation. It is undisputed that, while she was with these three officers, she completed and signed an application for an abuse prevention order (APO) under Mass. Gen. Laws ch. 209A. On the application form, she checked the box indicating that Bruce had placed her in fear of imminent serious physical harm. (Docket No. 58-2 at 2.)

         According to the officers, Lori applied for the APO voluntarily. According to Lori, she never asked for an APO and only completed the application because the officers pressured her into doing so. This allegedly occurred in the context of a discussion with Desrosiers and Leahy, in which they said that having Bruce committed under section 12 would not necessarily ensure that he would get the help that he needed, because the hospital could release him. (Docket No. 77-1 at 30-32.) Lori recalled that Desrosiers said “we need to get him on more than just that." (Docket No. 74-1 at 29-30.) According to Lori, Leahy suggested that they report that Bruce had pointed his gun at her and that she had been afraid to leave. (Docket Nos. 74-1 at 30; 77-1 at 31.) Lori testified that the conversation centered on figuring out how to keep Bruce in the hospital. (Docket No. 77-1 at 41.) Thorpe was writing down a statement while Leahy and Desrosiers were speaking. (Docket No. 77-1 at 31-32.)

         Lori testified that one of the three officers-Desrosiers, Leahy, or Thorpe-suggested that she apply for an APO. (Docket No. 77-1 at 33-34, 35-36.) According to Lori, she was told that if she did not do this, the officers could complete the application for her, which would make it look like she was not protecting her daughter, and her daughter could be taken away. (Docket No. 77-1 at 36.) As part of the application, Lori prepared and signed a narrative affidavit, in which she stated that she believed that Bruce had planned to kill himself.[2] (Docket No. 58-4 at 2.) She maintains that this statement was true, but that he never threatened to harm her.

         During the conversation between Lori and the officers, Thorpe wrote a “voluntary" statement allegedly given by Lori. (Docket No. 58-5 at 2.) He wrote that Lori had said that Bruce had pointed the gun at her, that she had been in fear for her life, and that she had felt that she could not leave. (Docket No. 58-5 at 2.) Lori testified that, after Thorpe wrote the statement, she signed it, because she had been listening to the officers and was afraid that if she did not sign the statement, Bruce might be released and might not get the help that he needed. (Docket No. 77-1 at 32.) Then she asked to read the statement again and, seeing that it did not reflect what had actually happened, and not wanting to lie, she ripped off the bottom portion of the page where she had signed it. (Docket No. 77-1 at 24-25.)

         At 11:30 p.m., a judge entered an emergency APO against Bruce. (See Docket No. 58-6 at 2.) According to Thorpe, he spoke with the judge by telephone for approximately twenty minutes and “gave the gist" of what had occurred earlier in the Bazinets’ house but did not directly tell the judge that Lori had feared for her safety. (Docket No. 74-1 at 42-43.) Thorpe told the judge that negotiators had been used to get Bruce out of the house and that he had been committed under section 12. (Docket No. 74-1 at 43.)

         Bruce was served with the APO at St. Vincent’s Hospital shortly after it was issued. According to Bruce, he was served around midnight. (Docket No. 74-1 at 57.) According to Desrosiers, Bruce then attempted to contact Lori via telephone, in violation of the APO. (Docket No. 59 at 2.) According to Bruce and Lori, Bruce did not try to contact her after being served with the APO. (Docket No. 74-1 at 34, 57.) Bruce testified that he attempted to contact a friend who was at the Bazinets’ house, to instruct the friend to tell the police where he kept his guns, which were ordered seized when Bruce was committed to the hospital. (Docket No. 74-1 at 39, 58.)

         The next day, on July 30, 2012, Thorpe wrote an incident report. (Docket No. 74-1 at 62-66.) In the narrative portion of the report, he wrote that Lori had come home to find Bruce pointing a gun at his head, and that Bruce “then pointed the gun in Lori’s direction and then back to his head, " and that Lori had stated that “she was in fear, frozen, and did not feel she could leave the room." (Docket No. 74-1 at 65.) These statements were nearly identical to those in Lori’s “voluntary" statement from the night before. She claims to have torn her signature off of that statement because, according to her, it did not reflect the truth. Thorpe also wrote that Lori had “requested a restraining order and filled out a 209A packet." (Docket No. 74-1 at 65.) Lori denies that she requested a restraining order. (Docket No. 77-1 at 34-36.) Additionally, Thorpe reported that Bruce, after being served with the APO, “made several attempts, via third party, to get messages to his wife, " and that he failed to immediately surrender all firearms to the Paxton Police Department, as he was required to do. (Docket No. 74-1 at 65.) Bruce denies that he tried to contact Lori or failed to turn over his guns. (Docket No. 74-1 at 57-58.)

         Bruce was arrested on July 30, 2012 and charged with: (1) violating the APO, for attempting to contact Lori; and (2) assault and battery with a dangerous weapon, for pointing a gun at Lori. (Docket No. 74-1 at 62.) Bruce spent ten days incarcerated while awaiting a dangerousness hearing. The charges were dismissed by entries of nolle prosequi on August 14, 2012 and April 16, 2013. Plaintiffs allege that several local newspapers published articles about the incident and the criminal charges. (Docket No. 1 at 12-14.)

         After the events of July 29, 2012, Lori took two months off from work, in part to take care of Bruce, and in part because the incident had been publicized and she was embarrassed. She attended counseling as a requirement to return to work. (Docket No. 77-1 at 28-29.) Bruce testified that no one at his workplace had known about his mental health issues until the incident was publicized. (Docket No. 77-1 at 51.) He also testified that he suffers emotional distress, has less energy, and has lost friends. (Docket No. 77-1 at 52.) His distress is worsened because he lives close to Desrosiers and Leahy and sees their houses regularly. He and Lori are planning to move out of Paxton. (Docket No. 74-1 at 56.)

         Bruce and Lori brought this suit against Thorpe, Desrosiers, and Leahy, [3] alleging the following counts: constitutional violations for filing a false police report and APO application by Thorpe and Desrosiers, pursuant to 42 U.S.C. § 1983 (count I); constitutional violations by Thorpe and Desrosiers, pursuant to Mass. Gen. Laws ch. 12, § 11I (MCRA) (count II); intentional infliction of emotional distress by Thorpe, Desrosiers, and Leahy (count IV); supervisory liability of Desrosiers for Thorpe’s actions, pursuant to 42 U.S.C. § 1983 (count V); and defamation by Thorpe (count VI).[4] Desrosiers and Thorpe have moved together for summary judgment. (Docket No. 56). Leahy has moved separately. (Docket No. 61).

         Standard of Review

         Rule 56 of the Federal Rules of Civil Procedure provides that the court shall grant summary judgment if the moving party shows, based on the materials in the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A factual dispute precludes summary judgment if it is both “genuine" and “material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, (1986). An issue is “genuine" when the evidence is such that a reasonable factfinder could resolve the point in favor of the nonmoving party. Morris v. Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994). A fact is “material" when it might affect the outcome of the suit under the applicable law. Id.

         The moving party is responsible for “identifying those portions [of the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its burden either by “offering evidence to disprove an element of the plaintiff's case or by demonstrating an ‘absence of evidence to support the non-moving party's case.’" Rakes v. United States, 352 F.Supp.2d 47, 52 (D. Mass. 2005) aff'd, 442 F.3d 7 (1st Cir. 2006) (quoting Celotex, 477 U.S. at 325). Once the moving party shows the absence of any disputed material fact, the burden shifts to the non-moving party to place at least one material fact into dispute. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir. 1994) (citing Celotex, 477 U.S. at 325). When ruling on a motion for summary judgment, “the court ...

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