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Santiago v. Lafferty

United States District Court, D. Massachusetts

March 31, 2017

JONATHAN SANTIAGO, Plaintiff,
v.
THOMAS LAFFERTY and CITY OF LOWELL, Defendants. NEL SOTHY, Plaintiff,
v.
THOMAS LAFFERTY and CITY OF LOWELL, Defendants. MIHRAN MOSKO, Plaintiff,
v.
THOMAS LAFFERTY, BARRY GOLNER, and CITY OF LOWELL, Defendants.

          MEMORANDUM AND ORDER

          Indira Talwani, United States District Judge

         Plaintiffs 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.

         The 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].

         Plaintiffs 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.

         The 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.

         A. The Summary Judgment Standard

         In 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).

         B. Factual Record

         Resolving 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 record evidence:

         1. The Lowell Police Department's Special Investigation Section's Use of Confidential Informants

         The 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 obtain information.

         SIS's 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.

         The 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.

         2. The Confidential Informant Pseudonymously Known as FA

         FA was 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.

         In 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.

         In both 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 spreadsheet.

         In 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.

         In 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. 13-12172 [#175-8].

         Defendant 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.

         Lieutenant 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 place.

         Between 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 [#175-16].

         Defendant 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.

         FA was involved with all three Plaintiffs' arrests.

         3. The Confidential Informant Pseudonymously Known as FB

         FB was 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.

         In 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.

         FB was involved in Plaintiff Mosko's arrest.

         4. The Investigatory Stops, Searches and Arrests

         i. Plaintiff Santiago

         On 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.

         Defendant 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 from FA.

         Before 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 [#175-15].

         Detective 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 ...


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