United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Talwani, United States District Judge
Jonathan Santiago, Nel Sothy and Mihran Mosko bring claims
against Defendants City of Lowell and Thomas Lafferty of the
Lowell Police Department, alleging Defendants' police
practices deprived Plaintiffs of constitutional rights in
violation of 42 U.S.C. § 1983, and related claims
against Defendant Lafferty under state law. Plaintiff Mosko
also brings claims under § 1983 against Barry Golner of
the Lowell Police Department.
three cases were consolidated for purposes of discovery.
Santiago v. Lafferty et al., C.A. No. 13-12172
[#22]; Mosko v. Lafferty et al., C.A. No. 15-12159
[#31]. The City of Lowell filed a single motion for summary
judgment in Santiago v. Lafferty et al., C.A. No.
13-12172 [#157], as to the claims of both Plaintiffs Santiago
and Sothy, and a separate motion for summary judgment in
Mosko v. Lafferty et al., C.A. No. 15-12159 [#51].
Defendant Thomas Lafferty filed separate motions for summary
judgment in each of the three actions. Santiago v.
Lafferty et al., C.A. No. 13-12172 [#153]; Sothy v.
Lafferty et al., C.A. No. 13-12302 [#68]; Mosko v.
Lafferty et al., C.A. No. 15-12159 [#57]. Defendant
Golner moved for summary judgment in Mosko v. Lafferty et
al., C.A. No. 15-12159 [#53].
Santiago and Sothy filed in Santiago v. Lafferty et
al., C.A. No. 13-12172, a single opposition [#173] in
response to the three motions filed on that docket and in
Sothy v. Lafferty, C.A. No. 13-12302. Plaintiff
Mosko filed in Mosko v. Lafferty et al., C.A. No.
15-12159, two oppositions [#68, #69] in response to the three
motions there. With leave of court [#65], Plaintiff Mosko
incorporated by reference Plaintiffs' exhibits filed in
opposition to summary judgment in Santiago v. Lafferty et
al., C.A. No. 13-12172, and Sothy v. Lafferty,
C.A. No. 13-12302.
court held a consolidated hearing on the six motions and now
issues this consolidated order denying summary judgment as to
Defendants Lafferty and the City of Lowell and granting
summary judgment as to Defendant Golner.
The Summary Judgment Standard
resolving a motion for summary judgment, the court takes all
properly supported evidence in the light most favorable to
the non-movant and draws all reasonable inferences in the
non-movant's favor. Griggs-Ryan v. Smith, 904
F.2d 112, 115 (1st Cir. 1990). Summary judgment is
appropriate only if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). “A dispute is
genuine if the evidence about the fact is such that a
reasonable jury could resolve the point in the favor of the
non-moving party. A fact is material if it has the potential
of determining the outcome of the litigation.”
Patco Constr. Co. v. People's United Bank, 684
F.3d 197, 206-07 (1st Cir. 2012) (internal quotation marks
and citations omitted).
factual disputes and drawing inferences in the light most
favorable to the Plaintiffs (as required on summary
judgment), a jury could reasonably find as follows from the
The Lowell Police Department's Special Investigation
Section's Use of Confidential Informants
Lowell Police Department operates a specialized unit known as
the Special Investigations Section (“SIS”)
dedicated to combating “vice crimes, ” with
particular focus on narcotics investigation. As part of this
work, SIS detectives often use confidential informants to
policies are ultimately the responsibility of Lowell's
Superintendent of Police. The official policy governing
SIS's use of confidential informants was the “1989
Informant Policy, ” enacted at a time when the use of
confidential informants, and their abuse, was national news.
As a means of protecting against problems inherent to the use
of confidential informants, that policy required that
officers run background checks and maintain a documentation
system whereby information from confidential informants could
be kept, and their reliability checked and reviewed. Several
SIS officers-including Defendant Lafferty who worked in SIS
from 2005 to 2013-were unaware of this written policy, and
only became aware as the events giving rise to this
litigation began to unfurl. Superintendent Kenneth
Lavallee-who was Superintendent from December 2006 to March
2013-was aware as early as 2009 that officers complained
about lack of access to the policy.
policy as written was not enforced. Several SIS officers
testified to persistent non-adherence to the policy, which
(although the granular facts are in dispute) consisted
largely of systematic failure to document the use of
confidential informants, systematic failure to vet
confidential informants, and systematically inattentive
supervision of officers using confidential informants.
The Confidential Informant Pseudonymously Known as FA
a drug dealer from whom officers had executed controlled
buys. He began informing for SIS between 2001 and 2002. There
is no evidence in FA's informant file or in the record
here that FA was vetted prior to his engagement with SIS.
Detective William Samaras was FA's control officer from
2002 through 2005.
2003, FA was involved in the arrest of a man for cocaine
found in the man's car. The man claimed that the cocaine
had been planted. The trial resulted in a hung jury and
thereafter FA's name was divulged and the cocaine was
tested for purity. The cocaine's purity turned out to be
low, which in the prosecutor's opinion lent credibility
to the claim that the drugs had been planted.
2004 and 2005, FA was arrested for felony distribution of
counterfeit goods and for felony cocaine trafficking. At
around the time of this second arrest, Sergeant James Trudel
learned of FA's involvement with another police
department and deemed FA unreliable for any future use by
SIS. Samaras Dep. 64, Santiago v. Lafferty et al.,
C.A. No. 13-12172 [#175-21]. This decision was not documented
in FA's file or on the SIS computer's informant
2006, FA attempted to work with Assistant District Attorney
Thomas O'Reilly. It appeared to ADA O'Reilly that FA
had lied during his proffer and had arranged for
misinformation to be supplied to the police. O'Reilly
Dep. 16, Santiago v. Lafferty et al., C.A. No.
13-12172 [#175-31]. ADA O'Reilly determined that FA was
unreliable and did not work with him.
December 2008, FA was arrested for assaulting a Lowell police
officer. At the time, FA had pending charges for cocaine
trafficking and was on probation for cocaine distribution.
FA's attorney contacted Defendant Lafferty to work out a
deal, touting FA's prior work with SIS. Defendant
Lafferty did not vet FA's background, did not check
FA's criminal history and did not contact FA's prior
control officer, Detective Samaras, to learn about FA's
past performance as a confidential informant. Lafferty Dep.
50-54, Santiago v. Lafferty et al., C.A. No.
Lafferty asked his supervising officer, Lieutenant Hodgdon,
for permission to use FA, telling him that FA's attorney
says that FA can do some really good work. Defendant Lafferty
also stated that SIS had used him in the past and that FA was
reliable. Lieutenant Hodgdon saw no documentation in FA's
file indicating he could not be used.
Hodgdon instructed Defendant Lafferty to speak with ADA
O'Reilly for his approval of using FA and allowing him to
try to work off the charges he had pending against him.
Hodgdon Dep. 48, Santiago v. Lafferty et al., C.A.
No. 13-12172 [#175-12]. Defendant Lafferty claims to have
secured permission from ADA O'Reilly, but ADA
O'Reilly does not recall any such conversation and states
that he would have not permitted FA's further use.
Lieutenant Hodgdon anticipated that FA would be vetted again
before he was used to make sure he would be reliable through
surveillance, and if need be, controlled buys. Id.
at 56. The record includes no evidence of such vetting taking
June and August 2009, FA was the target of an investigation
conducted by other SIS officers, and these officers, using
another confidential informant, executed two controlled buys
from FA. The officers' supervisor (presumably Lieutenant
Hodgdon) was advised that FA was a target. Lally Dep. 11, 49,
Santiago v. Lafferty et al., C.A. No. 13-12172
Lafferty nonetheless continued to use FA. Although Defendant
Lafferty has testified inconsistently about the frequency of
his use of FA, other officers confirmed that Defendant
Lafferty and FA were frequently involved in investigations
together. Defendant Lafferty has also testified
inconsistently about the quality of FA's tips.
involved with all three Plaintiffs' arrests.
The Confidential Informant Pseudonymously Known as FB
referred to Defendant Lafferty by FA. Defendant Lafferty met
with FB, asked him what he could do, signed paperwork and
obtained a copy of FB's criminal history and photo
identification. Documents in FB's file, however, show the
same name but different birthdates for FB. FB began informing
for SIS in March 2010.
December 2010, another SIS detective began investigating FB
for drug dealing, and using another confidential informant,
conducted three controlled purchases of cocaine from FB, and
obtained a search warrant for FB's home. Defendant Golner
advised the other detective during the execution of the
search warrant that FB was Defendant Lafferty's
informant. Despite the controlled buys, Defendant Lafferty
continued to use FB as an informant.
involved in Plaintiff Mosko's arrest.
The Investigatory Stops, Searches and Arrests
February 21, 2012, Plaintiff Santiago spent the evening with
friends. He encountered FA outside his friend's house. FA
invited Plaintiff Santiago into an apartment in the same
complex and also invited him to go out to a local bar. When
Plaintiff Santiago returned from the apartment to his car, an
associate of FA's (later identified as another of
Defendant Lafferty's informants) was sitting in Plaintiff
Santiago's car. After the associate got out, Plaintiff
Santiago drove away. Plaintiff Santiago returned later, and
he and FA then agreed to go to the bar. Plaintiff Santiago
offered FA a ride, but FA insisted they take separate cars.
Lafferty was stationed at or around Gorham Street at the
intersection with Union Street. Defendant Lafferty testified
to having seen Plaintiff Santiago's car pass Defendant
Lafferty's vantage point twice, but Plaintiff Santiago
denies the logistical possibility of this. Regardless, it is
undisputed that Defendant Lafferty was in a stationary
position when he purportedly saw Plaintiff Santiago's car
and that he did not follow the car before receiving a call
Plaintiff Santiago reached the bar, FA called Defendant
Lafferty. Defendant Lafferty reports that FA told him that
some guy driving a red car was “doing some loops”
near Gorham and Union Streets and was “trying to sell
some coke.” The call lasted 15 seconds and Defendant
Lafferty asked FA no questions about the basis for his
knowledge. Defendant Lafferty ran Plaintiff Santiago's
plates, and radioed Detective David Lavoie and Detective
Rivera, instructing them to follow Plaintiff Santiago.
Lafferty Dep. 128-30, Santiago v. Lafferty et al.,
C.A. No. 13-12172 [#175-8]. Detective Lavoie learned from
Defendant Lafferty before stopping the car that an informant
had stated that there were narcotics in this car. Lavoie Dep.
63, Santiago v. Lafferty et al., C.A. No. 13-12172
Rivera and Detective Lavoie pulled Plaintiff Santiago over in
a school zone for purportedly crossing the double yellow line
-- a traffic violation Plaintiff Santiago denies. Plaintiff
Santiago consented to a search of the car. A canine called to
the scene alerted to the car's gas cap, where ...