United States District Court, D. Massachusetts
DECISION AND ORDER ON DEFENDANTS MOTION FOR SUMMARY
JUDGMENT (DOC. NO. 79)
TIMOTHY S. HILLMAN, DISTRICT JUDGE
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.
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.
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.
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.
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).
Officer Merner (Count I)
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.
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