United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
PARTIAL SUMMARY JUDGMENT
Dennis Saylor, IV, United States District Judge
a civil rights action arising out of a confrontation between
Boston police officers and a teenage boy. Plaintiff Radcliffe
Walker, who was then 17 years old, was with his cousin when
he was approached by four police officers in a cruiser near
his home. The parties dispute whether Walker was trespassing
on a construction site or standing on the sidewalk. The
officers say (and Walker has not disputed) that they smelled
burnt marijuana. One of the officers, defendant Frank Femino,
asked the boys a question. Walker suddenly took off running.
Femino got out of the car and began chasing him.
ran into the basement of a house, from which a woman emerged,
screaming. Femino chased Walker into the basement. Walker
alleges that he was punched and beaten by Femino and perhaps
other officers. He was handcuffed, searched, and removed from
the basement. No marijuana or other contraband was found.
Shortly thereafter, Walker's mother informed the police
that he lived at the house and was not trespassing. Walker
was then released.
alleges that Femino violated his Fourth Amendment rights,
falsely imprisoned him, intentionally inflicted emotional
distress, assaulted him, and used excessive force in
connection with his arrest. Femino has moved for partial
summary judgment on the Fourth Amendment and false
are three basic components to this lawsuit, involving the
legality of (1) the initial pursuit, (2) the subsequent
arrest and searches, and (3) the use of force. Only the first
two are the subject of the motion for summary judgment;
defendant does not contend that he is entitled to summary
judgment on the excessive-force claim. For the following
reasons, the Court concludes that, under the circumstances,
Femino's pursuit of Walker is protected by the doctrine
of qualified immunity, and that he had probable cause to
conduct the arrest and search. Accordingly, partial summary
judgment will be granted in favor of Femino.
otherwise indicated, the following facts are set forth in the
light most favorable to plaintiff.
Walker is an African-American teenager who lives with his
mother at 16 Rockland Street in the Roxbury section of
Boston. (Def. SMF Ex. 5; Pl. SMF Ex. 3 at 6:12-14).
Femino is a Boston police officer. On October 12, 2012,
Femino was on patrol with three other officers, Douglas
McGrath, Thomas Bernier, and Michael Paradis, in the same
police car. (Def. SMF ¶ 1; id. Ex. 1 at
12:5-13, 12:16-21; id. Ex. 2 at 25:5-16). Bernier
was driving, and Femino was sitting in the front passenger
side of the car. (Def. SMF Ex. 3 at 30:22-31:6). At least
Femino and Paradis are white. (Pl. SMF Ex. 4 at Answer 10).
6 or 7 p.m., the officers noticed Walker and another
individual, his cousin Lester Walker, near a house that was
under construction. (Def. SMF Ex. 2 at 43:19-44:3;
id. Ex. 3 at 37:5-9; id. Ex. 5; Pl. SMF Ex.
1 at 41:20-23, 46:3-11, 49:1-15; id. Ex. 3 at
106:3-21; id. Ex. 4 at Answer 10). Walker contends
that they were on the sidewalk and on their way back to his
home; Femino contends that they were standing in the driveway
of a house under construction, and therefore trespassing.
(Def. SMF Ex. 2 at 43:19-44:3; id. Ex. 3 at 37:5-9;
Pl. SMF Ex. 3 at 106:10-12; id. Ex. 4 at Answer 10).
pulled the car up to Walker and Lester and stopped. There had
been no discussion among the officers about the two boys, and
Femino testified that he had no opinion as to why Bernier
stopped the car in front of them. (Pl. SMF Ex. 1 at 32:7-18).
Femino rolled his window down and addressed the boys. (Def.
SMF Ex. 3 at 44:4-14).
officers contend that they smelled burnt marijuana. (Def. SMF
Ex. 1 at 52:10-17; id. Ex. 2 at 43:19-44:3;
id. Ex. 3 at 37:5-9; id. Ex. 4 at
39:7-10). No officer contends that he saw either boy
smoking marijuana. Only Femino testified that he saw
“smoke in the air.” (Def. SMF Ex. 3 at 37:5-9).
No marijuana was ever recovered, either from the boys or in
the immediate area. (Def. SMF Ex. 1 at 52:21-23; id.
Ex. 3 at 81:1-6, 94:17-22). Plaintiff, however, has submitted
no evidence disputing the existence of the marijuana smell.
asked Walker at least one question, although the parties
dispute what was said. Femino contends that he asked them if
they lived at the house that they were standing next to, and
that Walker answered, “No.” (Def. SMF Ex. 3 at
44:10-14; id. Ex. 4 at 38:14-19). Paradis testified
that Femino also asked Walker his name, and he answered,
“Zane.” (Def. SMF Ex. 4 at 38:22-39:3; see
Id. Ex. 3 at 78:13-14 (Femino testifying that he told
Walker's mother that Walker had told him his name was
“Zane”); id. Ex. 5 (listing
“Zane” as an alias of Walker)). Walker, however,
contends that the officer said something like,
“Don't you guys think you should be inside, wrong
place?” (Pl. SMF Ex. 4 at Answer 10).
to Walker, he became scared and took off running home as soon
as they spoke to him. (Pl. SMF Ex. 3 at 107:14-18). Femino
contends that Walker started running when he opened the door
to the car to get out. (Pl. SMF Ex. 1 at 46:20-24;
see Def. SMF Ex. 4 at 39:14-19). Lester did not
run. (Def. SMF Ex. 4 at 42:14-19).
testified that he had a suspicion that Walker had a weapon
because “[t]he way he ran it was an indication that he
was in possession of a weapon.” (Def. SMF Ex. 3 at
50:22-51:1). He and Paradis pursued Walker on foot,
while Bernier followed with the car and McGrath stayed with
Lester. (Def. SMF Ex. 1 at 37:8-38:9; id. Ex. 4 at
ran into the backyard of a house at 16 Rockland Street. He
then entered the basement. (Def. SMF Ex. 3 at 57:3-58:3; Pl.
SMF Ex. 3 at 117:10-22). The basement is a separate
apartment; Walker did not live there. (Def. SMF Ex. 6 at
45:13-24; id. Ex. 8 at 16:15-20).
contends that while he was running into the yard, he was
shouting back at the pursuing officers that it was his home.
(Pl. SMF Ex. 3 at 117:10-11). Femino testified that he did
not know that 16 Rockland Street was Walker's home at the
time, and he suspected him of trespassing. (Def. SMF Ex. 3 at
50:10-14; Pl. SMF Ex. 1 at 60:15-21).
after Walker entered the basement, a woman ran out of the
basement screaming. (Def. SMF Ex. 3 at 57:24-58:3;
id. Ex. 4 at 56:8-57:18). The woman did not return
and was never identified by the officers. (Def. SMF Ex. 3 at
58:11-68:2; id. Ex. 4 at 57:19-24).
entered the basement in pursuit of Walker. (Pl. SMF Ex. 1 at
60:22-61:4). It was dark in the basement, and he had to get
out his flashlight. (Pl. SMF Ex. 1 at 61:2-10; Def. SMF Ex. 7
at 9). At some point, Femino drew his weapon, a .40-caliber
Glock 23 semi-automatic pistol. (Pl. SMF Ex. 1 at 61:15-20).
He testified that at that time, his assessment of the
situation was that it had “escalated from a trespass
and drug use to an individual with a weapon fleeing the scene
and invading a house that he had no authority to.”
(Def. SMF Ex. 3 at 93:20-94:1).
contends that Femino punched him on the right side of the
head and on the left jaw, and he fell to the ground. Femino
then handcuffed him. (Pl. SMF Ex. 3 at 117:19-22,
127:5-128:11). Walker testified that the whole time he was
telling the officer that this was his house. (Pl. SMF Ex. 3
at 117:10-13, 128:11-12).
contends that after he was handcuffed, multiple officers
punched him and hit him with their pistols in the basement
and then kicked him while he was on the floor. (Pl. SMF Ex. 1
at 128:14-23; Def. SMF Ex. 7 at 131:5-20; id. Ex. 9
at Answers 3, 7). He testified that at some point he was
knocked unconscious and that it had shaken his memory. (Def.
SMF Ex. 7 at 123:3-10, 161:15-18 (“I'm not exactly
sure because of me losing my memory that night. Not lose but,
you know, my memory being shaken by me getting knocked out
unconscious . . . .”)).
testified that he ordered Walker to get on the ground, but
instead of complying, Walker turned around to face him. (Pl.
SMF Ex. 1 at 65:12-66:2). Femino testified that he could see
Walker's hands were empty, but “[i]t appeared he
was in a fighting stance.” (Pl. SMF Ex. 1 at 66:1-7).
He holstered his weapon, grabbed Walker's arms, and
pulled him to the ground to handcuff him. (Def. SMF Ex. 3 at
66:5-69:2). According to Femino, during this time Walker was
“screaming repeatedly that he ha[d] PTSD” and was
pulling away and resisting. (Def. SMF Ex. 3 at 68:3-6,
“did a quick search on” Walker in the basement,
but did not find a weapon, drugs, drug paraphernalia, or any
other contraband. (Def. SMF Ex. 3 at 50:19-51:14,
to the officers, Paradis entered the basement after Walker
was handcuffed, and helped him to his feet. (Def. SMF Ex. 3
at 70:8-12; id. Ex. 4 at 59:12-18). Bernier then
arrived. He stood at the end of the hallway and asked Paradis
if they were “all set.” (Def. SMF ¶ 28;
id. Ex. 3 at 70:3-7; id. Ex. 4 at
escorted Walker from the basement into the backyard. (Pl. SMF
Ex. 1 at 76:6-10). Femino did not remember whether the
backyard was lit by artificial light, but he testified that
he could see. (Pl. SMF Ex. 1 at 76:1-5). He searched Walker
again, because he “wanted to make sure he didn't