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Deluca v. Merner

United States District Court, D. Massachusetts

June 14, 2018

MICHAEL DELUCA and DAWN DELUCA, Plaintiffs,
v.
ROBERT MERNER, PETER CHU, and CHARLES MOORE, Defendants.

          DECISION AND ORDER ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT (DOC. NO. 79)

          TIMOTHY S. HILLMAN, DISTRICT JUDGE

         Background

         Michael Deluca (“Mr. Deluca”) and his now wife, Dawn Deluca (“Mrs. Deluca”), filed this action against Boston Police officers Peter Chu (“Officer Chu”), Robert Merner (“Officer Merner”), and Charles Moore (“Officer Moore”) (collectively referred to as “Defendants”). The claims arise out of an incident that occurred after leaving a Bruins game at TD Boston Garden, located at 100 Legends Way in Boston, MA. Pursuant to this Court's order on the Defendants Motion to Dismiss (Doc. No. 28) and subject to the Amended Complaint (Doc. No. 54) the following counts remain: assault and battery of Mr. Deluca by Officer Merner (count I); assault and battery of Mrs. Deluca by Officer Moore (count II); violations of the Massachusetts Civil Rights Act (MCRA) against the Deluca's by Officers Chu, Merner, and Moore (count III). The Defendants filed a motion for summary judgment as to all counts.

         Facts

         On June 7, 2013, Mr. and Mrs. Deluca attended a Bruins playoff game in Boston. Prior to the game, they went to the Greatest Bar for food and drinks with two of their friends. Mr. Deluca had approximately five beers and Mrs. Deluca had two. Around 10:30 PM, after a Bruins win the Deluca's and their friends exited the arena with a large crowd of people onto Causeway Street. No. one in the Deluca's direct vicinity was acting disorderly.

         Mr. Deluca was carrying a professionally made sign that he wanted to show on the television screen at the Ace Tickets Window. The group walked down the street towards the intersection of Causeway Street and Friend Street, in the rain. There were no physical barriers restricting access to the area located by the Ace Tickets Window. As Mr. Deluca approached the Ace Tickets Window, Officer Chu, who was with a group of police officers, yelled at him to “get the fuck out of here.” Officer Deluca asked what he had done wrong and Officer Chu repeated his order “to get the fuck out of here.” Mr. Deluca identified himself as an off duty police officer and Officer Chu requested to see identification. While Mr. Deluca was looking for his identification, Officer Merner approached calling Mr. Deluca an asshole and ordering him to “get the fuck out of here.” Officer Merner pointed his finger in Mr. Deluca's face and poked him several times. Mr. Deluca informed Officer Merner that he didn't know what he had done wrong. Officer Merner shoved Mr. Deluca with both hands causing Mr. Deluca to move backwards. Even though Officer Merner was informed that Mr. Deluca was an off-duty officer he continued to yell at and walk aggressively towards Mr. Deluca, forcing Mr. Deluca to take multiple steps backwards. At some point, Officer Merner began to walk away but then re-approached Mr. Deluca, ripped the sign out of his hands, and threw it as he continued to curse at him.

         Mrs. Deluca observed this interaction and approached the group of officers. She was shoved from the side by Officer Moore, which caused her to stumble backwards. Mrs. Deluca cursed at Officer Moore and asked why he had pushed her. She too was told that she needed “to get the fuck out of here.” Mrs. Deluca informed Officer Moore that she was a nurse and again asked why she had been pushed. Officer Moore ordered her “to get the fuck out of here before you get arrested.” The Deluca's left the area out of fear of being arrested.

         Legal Standard

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists when the disputed evidence, viewed in the light most favorable to the nonmoving party, would not lead a reasonable jury to resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). It is the burden of the moving party to establish “an absence of evidence to support the non-moving party's position.” Mitchell v. City of Boston, 130 F.Supp.2d 201, 208 (D. Mass. 2001).

         Assault and Battery

         A. Officer Merner (Count I)

         “[A] public official, exercising judgment and discretion, is not liable for negligence or other error in the making of an official decision if the official acted in good faith, without malice, and without corruption.” Nelson v. Salem State Coll., 446 Mass. 525, 537, 845 (2006). “There is every presumption in favor of the honesty and sufficiency of the motives actuating public officers in actions ostensibly taken for the general welfare.” S. Boston Betterment Tr. Corp. v. Boston Redev. Auth., 438 Mass. 57, 69 (2002) (quoting Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass.App.Ct. 284, 294 (1980). “Police officers are permitted to take reasonable protective measures whenever the public safety is threatened by acts that are dangerous, even if not expressly unlawful, ” including disobedience of police orders. Com. V. Marcavage, 76 Mass.App.Ct. (2009).

         To the extent that the Defendants argue that summary judgment should be granted as to the counts of assault and battery against Officer Merner, I disagree. While Officer Merner's use of force occurred within his discretionary functions, I find that the facts may permit a reasonable factfinder to conclude that he was not acting in good faith. Viewing the facts in the light most favorable to Plaintiffs, Mr. Deluca did nothing to warrant such aggressive behavior by Officer Merner. While Mr. Deluca did not immediately comply with the officers orders to leave the area, Officer Chu requested identification purportedly permitting Mr. Deluca to remain in the location for a short period of time. The record shows that Mr. Deluca and Officer Chu notified Officer Merner of this information but that did not halt his aggressive conduct. Officer Merner approached Officer Deluca from the start in an aggressive manner yelling expletives, pointing his finger in Mr. Deluca's face, poking his chest, shoving him, and ripping the sign out of his hand. Mr. Deluca was the only individual in the area of the Ace Tickets Window and although the street was crowded, no one around him was acting disorderly. I find that these facts taken together could allow a reasonably jury to conclude that Officer Merner acted with hostility towards Mr. Deluca as a result of bad faith.[1]

         B. Officer ...


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