United States District Court, D. Massachusetts
JOHN W. HUMPHREY Plaintiff,
TOWN OF SPENCER, et al., Defendants.
REPORT AND RECOMMENDATION
H. Hennessy, United States Magistrate Judge
Order of Reference dated May 15, 2015 (Docket #12), and
pursuant to 28 U.S.C. § 636(b)(1)(A), this matter,
including all other pretrial and dispositive motions, was
referred to me for a ruling on Defendants' collective Motion
for Partial Summary Judgment (Docket #60). Plaintiff John W.
Humphrey filed an opposition to the motion. (Docket #68).
This matter is now ripe for adjudication. In consideration of
the foregoing submissions and for the reasons that follow, I
recommend that Defendants' Motion to Partial Summary
Judgment (Docket #60) be GRANTED as to Counts V, VII, and
VIII and DENIED as to Count VI.
September 22, 2011, Plaintiff Humphrey was living at Kim
Thomas's apartment on Elm Street in Spencer with his
girlfriend, Katy Lajeunesse. (Docket #67-1 ¶ 1). That
evening, Ms. Lajeunesse was on the phone with her mother when
Plaintiff and Lajeunesse got into an argument. (Id.
¶ 2). At around 11:16 p.m. the call disconnected during
the argument, prompting Lajeunesse's mother to call 9-1-1
and report a domestic disturbance. (Docket #67 ¶¶
8-9). After receiving the report, Spencer Police discovered
that Plaintiff had an outstanding arrest warrant and a
criminal history which included convictions for assault and
battery, criminal threats, intimidation, and multiple abuse
prevention orders. (Docket #67 ¶¶ 11-12). Moreover,
Plaintiff was already known to several members of the Spencer
Police Department (“SPD”) as a result of previous
encounters with him, including one incident where he
threatened to harm officers or himself with a knife. (Docket
#67 ¶ 13).
Officer Todd LaPorte and Defendant Officer Paul Magierowski
were apprised of Plaintiff's criminal history at the
Spencer Police Department. (Docket #67 ¶ 14). Officer
LaPorte then contacted the East Brookfield Police Department
and the Massachusetts State Police (“MSP”) for
backup. (Docket #67 ¶ 19). As a result, East Brookfield
Officer Joseph Lazarick reported directly to the Spencer
Police Station where the officers, along with Sergeant George
L. Edwards, conferred prior to reporting to the scene.
(See Docket #67 ¶¶ 21, 23-29).
Massachusetts State Troopers Marland Rogers and Matthew
Mormino later responded directly to the scene, having been
briefed by LaPorte about the nature of the call and
Plaintiff's criminal history. (Docket #67 ¶¶
arrival at the scene, LaPorte and Magierowski knocked on the
door of the apartment and Kim Thomas answered, identifying
herself as a tenant of the apartment. (Docket #67
¶¶ 30-31). When asked for the whereabouts of
Plaintiff and his girlfriend, Thomas initially denied that
either was present, but then admitted that they were both in
the apartment. (Docket #67 ¶¶ 33-35). LaPorte and
Magierowski proceeded into the apartment until they reached a
locked door separating the kitchen from the living room.
(Docket #67 ¶ 41).
knocked on the door and received no response. (Docket #67
¶ 43). According to Plaintiff, when he heard the police
knock at the door he ran to the bedroom off the living room
and hid behind the bedroom door because he knew there was a
warrant for his arrest. (Docket #67 ¶ 44). LaPorte again
knocked and Lajeunesse opened the door. (Docket #67 ¶
46). Lajeunesse denied any domestic abuse earlier in the
evening and said that Plaintiff had left the apartment hours
before. (Docket #67 ¶¶ 47-49).
and Magierowski asked Lajeunesse to step out of the doorway
and she complied. (Docket #67 ¶ 50). Both officers
stepped into the living room. (Docket #67 ¶ 52). The
room was dimly lit. (Docket #67-1 ¶ 66). LaPorte had his
flashlight on and gun drawn in the low-ready position as he
and Magierowski began to search for Plaintiff. (Docket #67-1
¶ 62). As this occurred, the two Troopers entered
the apartment, but remained near the apartment entrance
separate from LaPorte and Magierowski. (Docket #67-1 ¶
64). Eventually, only the bedroom remained to be searched.
(Docket #67-1 ¶ 65). The door to the bedroom which
opened inwardly from the living room was partially open.
(Docket #67-1 ¶¶ 5-6). The bedroom was dark.
(Docket #67-1 ¶ 66).
parties dispute what occurred next. According to the
Plaintiff, he was hiding behind the door with his hands
raised above the door. (Docket #67-1 ¶ 4). Officer
LaPorte crossed the threshold into the bedroom, kicked the
partially open door with his foot and leaned into the door,
thereby “smushing” Plaintiff against the wall.
(Docket #67-1 ¶¶ 7-8). Plaintiff's hands stayed
up and he “surrendered multiple times, ” but
Officer LaPorte nonetheless shot him in his abdomen. (Docket
#67-1 ¶ 7). After he was shot, LaPorte told Plaintiff
“I didn't [shoot you]. I only tased you, ”
(Docket #67-1 ¶ 10), and Plaintiff heard another officer
ask LaPorte, “[W]hy [did] you shoot him[?] You [were]
only supposed to tase him[.]” (Docket #67-1 ¶ 10).
contrast, according to Defendants, Magierowski remained at
the bedroom entry with his Taser drawn. (Docket #67-1 ¶
39). LaPorte entered the bedroom with his flashlight on and
gun drawn, and proceeded to search the room in a
counterclockwise direction. (Docket #61 ¶ 54; Docket
#67-1 ¶ 72). When the only space left to be cleared was
behind the partially open door, LaPorte, while facing the
door, pulled the door and felt resistance, as if someone was
holding it open from the opposite side. (Docket #67-1
¶¶ 72-77). LaPorte then pulled the door harder; it
quickly shut, revealing in the light from LaPorte's
flashlight the Plaintiff standing only a few feet away.
(Docket #67-1 ¶¶ 76-78). Plaintiff took a step
toward LaPorte and, without being able to see Plaintiff's
hands, LaPorte shot Plaintiff once in his
abdomen. (Docket #67-1 ¶¶ 78-79, 85).
and Magierowski immediately began treating Plaintiff who was
conscious and could hear them speaking. (Docket #67 ¶
57). The Spencer Rescue Squad arrived shortly thereafter to
assume medical care and bring Plaintiff to the hospital.
(Docket #67 ¶ 58).
officers at the scene with LaPorte did not discuss the
shooting. For instance, in response to LaPorte trying to
explain what happened, Lazarick said, “I don't want
you to, you know, get into any specifics. It's best that
you, you know, talk to your union rep.” (Docket #67-1
¶ 17). Additionally, Lazarick again stopped LaPorte from
discussing the shooting later at the station, deposing that
LaPorte “began to explain but I told him not to.”
(Docket #67-1 ¶ 18). Similarly, Magierowski did not ask
LaPorte about the incident because someone told him
“basically not to talk about the incident.”
(Docket #67-1 ¶ 24). Lastly, neither Trooper Mormino nor
Trooper Rogers asked LaPorte about the incident, and each
deposed that if he had tried to talk to them they probably
would have discouraged that discussion. (Docket #67-1
¶¶ 25, 29). LaPorte spoke to Sergeant Edwards and
Chief David Darrin after the incident, but no account of that
conversation was recorded. (Docket #67-1 ¶¶ 115,
the shooting, Chief Darrin asked MSP to conduct an
investigation to determine whether criminal charges should be
brought against LaPorte. (Docket #67-1 ¶ 110). As a
result of its investigation, MSP obtained written statements
from the witnesses, including Plaintiff Humphrey, Katy
Lajeunesse, Kim Thomas, Officer LaPorte, Officer Magierowski,
and Officer Lazarick. (See Docket #61-10 at 6).
Ultimately LaPorte was not charged.
#67-1 ¶ 123). Independent of the investigation, Chief
Darrin did not interview witnesses, (Docket #67-1
¶¶ 124-25), instead deferring to the MSP
investigation and report. (Docket #61-11 at 46).
regard to Officer LaPorte's training and experience,
LaPorte received his training at the Boylston Regional police
Academy, run by the Massachusetts Criminal Justice Training
Council. (Docket #61 ¶ 65). In the academy, LaPorte
received training on subjects including criminal and
constitutional law, first aid, CPR, firearms, use of force,
and defensive tactics. (Docket #61 ¶ 66). Neither
LaPorte nor Magierowski have any disciplinary history, and no
complaint has ever been filed against either officer. (Docket
#61-11 at 24-25).
of force training curriculum provides, in pertinent part,
that an officer “may use deadly force in self-defense
or defense of others if the four following conditions exist:
a) The subject has the ability (e.g., a firearm or a
knife) to cause death or serious bodily harm. b) The subject
has the opportunity to use his or her ability (e.g.,
a firearm or a knife) to cause death or serious bodily
injury. c) The subject's threat of causing death or
serious bodily injury is imminent (a life is in jeopardy). d)
The officer has no reasonable alternative for addressing the
subject.” (Docket #67-1 ¶ 56 (internal citations
omitted)). SPD has a use of force policy that requires that
officers use force “[t]hat is reasonably necessary to
accomplish lawful objectives, ” and that deadly force
is authorized under a limited set of circumstances. (Docket
#67-1 ¶ 58; see Docket #67-6). In addition,
pursuant to that policy, the Chief of Spencer Police is
required to “conduct an administrative review of all
reports submitted to determine whether the use of force was
in compliance with departmental policy and procedure.”
(Docket #67-1 ¶ 59).
Liability and Supervisory Claims
approximately seventeen sworn officers and does not have an
internal affairs unit. (Docket #61-11 at 8; Docket #67-1
¶ 99). Darrin has been the Chief for over 18 years.
(Docket #67-1 ¶ 90). Darrin became the Chief shortly
after MSP's management of SPD in 1998 in response to
allegations of misuse of funds and “certain types of
force.” (Docket #67-1 ¶¶ 91, 95). When a
citizen complaint is received, it is directed either to the
officer in charge or directly to the Chief of Police. (Docket
#67-1 ¶ 97). The Chief has the authority to give verbal
and written reprimands or issue suspensions for less than
five days. (Docket #67-1 ¶ 102). Any punitive action
beyond that must be approved by the Town. (Docket #67-1
past ten years, Chief Darrin has issued only one suspension
for one day for conduct unbecoming of a police officer.
(Docket #67-1 ¶ 103). Darrin reviews every police report
generated by officers for, among other things, compliance
with policies and procedures. (Docket #61-11 ¶ 19).
Darrin has also never sustained a complaint of excessive
force against an SPD officer. (Docket #67-1 ¶ 104).
Although he tracks the use of force where a weapon is
involved, Darrin does not track the hands-only use of force.
initiated this action by filing a complaint on September 5,
2014. (Docket #1). In his complaint, Plaintiff asserts the
following nine claims:
Count I Section 1983 - Excessive force Against Officer
Count II Common Law Assault and Battery; Against Officer
Count III Negligent Infliction of Emotional Distress
Against Officer LaPorte
Count IV Intentional Infliction of Emotional Distress
Against Officer LaPorte
Count V Massachusetts Civil Rights Act; G.L. c. 12, §
11I Against Officer LaPorte, Sgt. Edwards and Chief
Count VI Massachusetts Tort Claims Act 258 Against Town
Count VII Section 1983 - Conspiracy Against Officers