United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR
Gail Dein United States Magistrate Judge
action arises out of the arrest of the plaintiff, James
Rosencranz (“Rosencranz”), on July 23, 2011 in
front of Rosencranz's home in Winthrop, Massachusetts.
The plaintiff claims that the arresting officer, James A.
Freeman (“Freeman”), not only lacked probable
cause for the arrest, but also used excessive force by
“chest bumping” the plaintiff, pushing him, and
slamming him into a neighbor's car. By his Complaint in
this action, Rosencranz has asserted claims against Freeman,
pursuant to 42 U.S.C. § 1983 (“Section
1983”) and the Massachusetts Civil Rights Act, Mass.
Gen. Laws ch. 12, §§ 11H and 11I
(“MCRA”), for false arrest and excessive force
(Counts I and II). He has also asserted claims against
Freeman for false imprisonment (Count III), assault and
battery (Count IV) and intentional infliction of emotional
distress (Count V).
matter is presently before the court on “Defendant
James Freeman's Motion for Summary Judgment”
(Docket No. 92), by which Freeman is seeking summary judgment
on all of Rosencranz's claims. It is also before the
court on Rosencranz's “Cross-Motion for Summary
Judgment” (Docket No. 99), by which the plaintiff
argues that he is entitled to summary judgment with respect
to all Counts of the Complaint because there is no genuine
dispute that “the defendant attacked and arrested the
plaintiff without probable cause and has no real and lawful
defenses to this action.” As described below, this
court finds that Freeman is entitled to judgment as a matter
of law with respect to Rosencranz's claim for intentional
infliction of emotional distress, but that disputed issues of
material fact preclude summary judgment for either party on
any of the remaining claims. Therefore, and for all the
reasons detailed herein, the defendant's motion for
summary judgment is ALLOWED IN PART and DENIED IN PART, and
the plaintiff's cross-motion for summary judgment is
STATEMENT OF FACTS
following facts, which are relevant to the parties'
cross-motions for summary judgment, are undisputed unless
plaintiff, Rosencranz, is a resident of Winthrop,
Massachusetts. (See Def. Ex. A at 54). He is also an
attorney who has been practicing law in the Commonwealth for
over thirty-two years. (Compl. (Docket No. 1) ¶ 9). The
defendant, Freeman, is an officer in the Winthrop Police
Department, and was acting in his capacity as a police
officer at all times relevant to this action. (Id.
¶ 7). As described above, this case arises out of
Freeman's arrest of the plaintiff on July 23, 2011.
Initial Interactions with the Winthrop Police
day of the events at issue, Rosencranz learned that his
neighbor, Osman Nil (“Nil”), had been accused of
domestic violence by his estranged wife, and had come to his
house seeking legal advice. (See DF ¶ 1; PF
¶ 3; Def. Ex. A at 19-20). Although Rosencranz was not
home at the time, his wife, Banafsheh Ehteman
(“Ehteman”), was at the house when Nil arrived.
(Def. Ex. A at 19-20). Ehteman called Rosencranz on her cell
phone, and handed her phone to Nil so he could explain the
situation. (Id.). The plaintiff spoke briefly to
Nil, but then had to hang up the phone. (Id. at 20).
When Rosencranz called back a few minutes later, he learned
that officers from the Winthrop Police Department had arrived
and were attempting to arrest Nil in the plaintiff's
driveway. (Id.). Ehteman, who was watching the
events unfold, told the officers that Nil's attorney was
on the phone, and tried to hand Nil the phone. (Id.
at 20-21). However, the officers yelled at Ehteman and
refused to allow Rosencranz to speak with Nil.
(Id.). Nil was then arrested and taken to the
Winthrop police station. (DF ¶ 4).
the arrest, Rosencranz called the police station seeking
information regarding Nil's case, and spoke to an officer
named Sergeant Hickey. (DF ¶¶ 5-6). Rosencranz
tried to explain that he was representing Nil, but Sergeant
Hickey refused to give him any information. (DF ¶¶
6-7). According to the plaintiff, Sergeant Hickey was
“rude, arrogant, abrupt, brusque, ” and hung up
the phone on him. (DF ¶ 9; Def. Ex. A at 22).
Rosencranz went to the police station where he identified
himself as Nil's attorney and spoke to an officer named
Lieutenant Perrin (“Perrin”). (DF ¶¶
10-11). During his initial conversation with Perrin,
Rosencranz told the Lieutenant that he wanted to speak to the
bail commissioner when the commissioner arrived at the police
station in order to address the matter of Nil's bail. (DF
¶ 22; PF ¶ 7). Additionally, Perrin informed
Rosencranz that the police were applying for a warrant to
search Nil's home and motor vehicle. (DF ¶ 11).
Rosencranz then asked to speak with Nil, but Perrin told him
there was no place available where they could talk. (DF
¶ 12). The plaintiff informed Perrin that Nil had a
constitutional right to speak with his attorney, and Perrin
suggested that Rosencranz speak with his client while Nil
remained in his cell. (DF ¶¶13-14; PF ¶ 4).
Although Rosencranz accepted Perrin's suggestion, he
found it impossible to communicate confidentially with his
client through the plexiglass covering Nil's cell. (DF
¶ 15; PF ¶ 5; Def. Ex. A at 27). Accordingly, the
plaintiff proceeded to press Perrin for permission to enter
Nil's cell or to speak with Nil in one of the offices
located in the police station, but Perrin refused to
accommodate the plaintiff's request. (DF ¶¶
16-18; PF ¶ 5).
Nil informed Rosencranz that he had decided to consent to a
search of his home and motor vehicle. (DF ¶ 19; PF
¶ 6). However, when Rosencranz told Perrin about
Nil's decision, Perrin stated that he was going to apply
for a search warrant anyway. (DF ¶ 20). While there is
no evidence indicating why Perrin decided to pursue the
warrant, it is clear from the record that Rosencranz viewed
Perrin's statement, and his treatment toward the
plaintiff in general, as hostile. (See PF ¶ 6).
decided that he would try to get Nil out on bail, and he
asked Perrin if he had heard from the bail commissioner.
(Def. Ex. A at 35). Perrin told the plaintiff that he was
still waiting for the bail commissioner to call.
(Id.). Rosencranz replied that he was going to wait,
and he asked Perrin to let him know when the bail
commissioner was going to arrive. (Id. at 35-36).
After waiting for about forty minutes, the plaintiff again
went to ask about the bail commissioner's arrival. (DF
¶ 23). This time, Perrin told Rosencranz that bail had
been set over the phone for $10, 000 cash. (DF ¶ 24).
Rosencranz responded by telling Perrin, “first you
won't let me speak to my client confidentially which is
his constitutional right and then you deny him another
constitutional right and a statutory right [to address] the
bail commissioner on the issue of bail.” (Def. Ex. A at
36). Although Rosencranz persisted in his effort to speak
with the bail commissioner over the telephone, Perrin refused
to cooperate and Rosencranz was ultimately forced to leave
Nil in police custody. (Id. at 37-40).
Surrounding the Plaintiff's Arrest
the events at the police station, Rosencranz returned to his
home in Winthrop where he began to get ready for guests to
come over by cleaning up his yard. (DF ¶ 31). While he
was outside, Rosencranz observed a police cruiser outside
Nil's home, and walked over to introduce himself to the
officer inside the car. (Def. Ex. A at 63-64). After
explaining that he was the attorney for Nil, Rosencranz asked
the officer, Shawn McCarthy, if the police had obtained a
search warrant yet. (Id. at 64). Officer McCarthy
replied that he had no information regarding the warrant, and
that he was only responsible for keeping an eye on Nil's
house. (Id.). The plaintiff handed Officer McCarthy
his card and asked him to call when the police obtained the
search warrant. (Id.). Officer McCarthy explained,
in essence, that he had no involvement with the warrant, and
that Rosencranz would need to ask Perrin about it.
(Id.). Rosencranz has described his interaction with
Officer McCarthy as “pleasant, ” as well as
“professional and courteous, ” and there is no
dispute that the plaintiff returned to his home without
incident. (See id. at 65).
hours later, at around 7:00 in the evening, Rosencranz went
outside again. (DF ¶ 37; PF ¶ 17). He noticed that
Officer McCarthy was still parked in the vicinity, and that
Freeman and a third officer were approaching Nil's parked
car. (DF ¶ 37; Def. Ex. A at 60). Rosencranz approached
the officers and asked them whether a search warrant had been
issued. (DF ¶ 38). Raising his voice, Freeman responded,
“You know what the story is. You spoke with Lieutenant
Perrin earlier.” (DF ¶ 39). Rosencranz explained
that he had spoken to Perrin earlier that day, and was aware
that Perrin had applied for a search warrant, but that he was
trying to find out whether a warrant had been issued. (Def.
Ex. C at Ans. No. 15). Freeman replied by screaming,
“No, we don't have one.” (Id.).
the defendant's apparent hostility, Rosencranz attempted
to continue the conversation. (PF ¶¶ 29-30). Thus,
Rosencranz indicated that he understood the situation.
(See Def. Ex. C at Ans. 15). He also attempted to
hand Freeman his business card, and asked the defendant to
call him once he had obtained a search warrant.
(Id.). At that point, the defendant raised his voice
even louder, screaming “I don't have to call
you.” (Id.). Rosencranz agreed that Freeman
had no obligation to call him, but suggested that he should
do so as a matter of professional courtesy. (Id.).
The plaintiff also asked Freeman, “Why are you yelling
. . . all the time? Am I yelling at you? Did I raise my voice
to you? Who are you screaming at?” (DF ¶ 43). He
further asked Freeman, “Why can't you act
professionally . . . .? “What is this, Mayberry?”
(Id.). At this point, Rosencranz stopped talking and
turned away from the officers. (Def. Ex.
68-69). He then spotted two beer bottles lying beneath the
hedge that ran along the border of his property.
(Id.). As Rosencranz later described during a
hearing in Boston Municipal Court:
I went over and I picked [the bottles] up. And I put them
down, held them like this with the necks down. And I walked
away from [Freeman]. And then as I got about 10 to 15 feet
away from him, I heard cluck, cluck, cluck. And I looked down
and it was - there was little drops. So I looked back and
there was this semi circle, for lack of a better word, or
trail. And it wasn't that close to [Freeman] because I
hadn't really been close to him when I came by him but,
you know, I said, I looked and I didn't see anything on
him but I turned around I said, I'm - “Did I get
anything on you? I don't see any, but if I did, I'm
(Def. Ex. B at 47-48). It is Freeman's position that
Rosencranz poured beer on his feet, and that he asked the
plaintiff what he was doing. (Pl. Ex. A at 56-57 of 99). He
further contends that he became very agitated “because
the beer had been poured on [his] feet.” (Id.
at 57 of 99). However, Rosencranz claims that any liquid that
came out of the bottles spilled onto the ground, and that he
was not even close enough to Freeman to have poured any beer
on him. (PF ¶ 38).
undisputed that after Rosencranz apologized, Freeman looked
up at him and screamed, “you mother fucking
asshole.” (Def. Ex. A at 80-81). According to
Rosencranz, he was not going to let anyone scream such things
to him in front of his house so he turned to Freeman and
stated, “exactly who do you think you are you piece of
shit?” (Id. at 81-82).
then came rushing up to the plaintiff with his hands balled
up into fists, and said “come on, come on. You want to
go?” (Id. at 82). Next, Freeman proceeded to
“chest bump” Rosencranz, which caused the
plaintiff to fall back. (Id.). After Freeman chest
bumped Rosencranz a second time, Rosencranz turned to Freeman
and asked him, “are you out of your mind?”
(Id. at 82, 85; DF ¶ 55). He then turned away
from the defendant in order to go back into the house, but
Freeman came up behind Rosencranz, grabbed him, and slammed
him into Nil's parked car. (Def. Ex. A at 85; DF
point, a second police officer, Officer Hickey,
came over and assisted Freeman in pinning Rosencranz to the
car. (Def. Ex. A at 85). While Rosencranz was pinned to the
car, Officer Hickey kicked the plaintiff in the leg.
(Id. at 86). At some point, both officers picked the
plaintiff up by the shoulders, dragged him down the street,
and threw him onto one of the police vehicles. (Id.
at 87). They also went through the pockets of
Rosencranz's pants before pulling the plaintiff's
pants all the way down as he stood in the middle of the
street. (Id. at 87-88). Rosencranz admits that at
some point during these events, he called Freeman, and
probably Officer Hickey, “a fucking asshole.”
(Id. at 91).
officers put Rosencranz into the back of Officer
McCarthy's cruiser and drove him to the Winthrop police
station. (Id. at 88). As he was being transported,
Rosencranz heard Freeman yelling into his radio, “this
one's mine, this one's mine.” (Id.).
He also realized that one of his shoes was missing.
(Id.). Thus, Rosencranz arrived at the police
station wearing only one shoe. (Id.).
Rosencranz was taken inside the police station, Officer
McCarthy spoke to him briefly. (Id. at 91; PF ¶
45). According to Rosencranz, Officer McCarthy emphasized
that his statements were “off the record.”
(Id.). He then proceeded to tell the plaintiff that
“this is the most fucked up thing I've seen in 15
years . . . here.” (Def. Ex. A at 91). Additionally,
Officer McCarthy told the plaintiff that Rosencranz had not
done anything, and he described Freeman's actions as
“out of control.” (Id.). Nevertheless,
Rosencranz was detained and placed in a cell across from Nil.
(DF ¶ 63).
factual details are described below to the extent they are
relevant to this court's analysis.