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Rosencranz v. Freeman

United States District Court, D. Massachusetts

March 31, 2017

JAMES A. FREEMAN, Defendant.


          Judith Gail Dein United States Magistrate Judge


         This 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).[1] 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).

         The 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 DENIED.


         The following facts, which are relevant to the parties' cross-motions for summary judgment, are undisputed unless otherwise indicated.

         The Parties

         The 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.

         Plaintiff's Initial Interactions with the Winthrop Police

         On the 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).

         After 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).

         Subsequently, 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).

         Thereafter, 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).

         Rosencranz 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).

         Circumstances Surrounding the Plaintiff's Arrest

         Following 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).

         Several 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.).

         Despite 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.

         A at 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 sorry.”

(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).

         It is 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).

         Freeman 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 ¶¶ 55-56).

         At that point, a second police officer, Officer Hickey, [3] 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).

         The 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.).

         After 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).

         Additional factual details are described below to the extent they are relevant to this court's analysis.

         IV. ...

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