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Freedman v. Ali

United States District Court, D. Massachusetts

November 14, 2018



          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Jason Freedman (“Freedman”) brings claims against officers of the Cambridge Police Department, Asif Ali, Edward Burke, Nicholas Mochi and Lester Sullivan (“the Defendants”) arising out of events surrounding his arrest on November 14, 2013. D. 1. The Defendants now move for summary judgment. D. 46. For the foregoing reasons, the Court ALLOWS in part and DENIES in part the Defendants' motion.

         II. Standard of Review

         The Court will grant summary judgment “only when the record reflects to genuine issues as to any material fact and indicates that the moving party is entitled to judgment as a matter of law.” Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009). A genuine dispute of material fact exists where the evidence with respect to that fact “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of demonstrating the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000). The court must “view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary judgment motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (citation omitted).

         Qualified immunity is a defense that a public official may assert against claims “from personal liability for actions taken while performing discretionary functions.” Barton v. Clancy, 632 F.3d 9, 21 (1st Cir. 2011) (quoting Lynch v. City of Boston, 180 F.3d 1, 13 (1st Cir. 1999)). The qualified immunity analysis requires a court to decide ‘(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was ‘clearly established' at the time of the defendant's alleged violation.'” Id. at 21-22 (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)). Moreover, the assertion of a qualified immunity defense may not necessarily be resolved as a matter of law, particularly where the resolution of same involves factual disputes. See Penn v. Escorsio, 764 F.3d 102, 112 (1st Cir. 2014); Prokey v. Watkins, 942 F.2d 67, 73 (1st Cir. 1991) (holding that “if what the policeman knew prior to the arrest is genuinely in dispute, and if a reasonable officer's perception of probable cause would differ depending on the correct version, that factual dispute must be resolved by a fact finder”).

         III. Factual Background

         The following facts are undisputed unless otherwise noted and are taken from the parties' submissions, D. 47, D. 52, D. 56. On the evening of November 14, 2013, Freedman and several other individuals took part in a labor picket in front of Insomnia Cookies, an establishment in Cambridge, Massachusetts. D. 47 ¶ 1; D. 52 ¶ 1. There were approximately fifteen participants, who demonstrated by walking in a circle on the sidewalk in front of Insomnia Cookies, chanting, singing, and distributing literature. D. 47 ¶¶ 2-4; D. 52 ¶¶ 2-4. Geoffrey Carens, another individual participating in the picket, used a megaphone at times during the picket. D. 47 ¶ 5; D. 52 ¶ 5. The picketers made it “a point to always let people come in and out and pass” them on the sidewalk. D. 52 ¶ 14; D. 56 ¶ 14.

         At some point, the Defendants, all uniformed patrol officers with the Cambridge Police Department, arrived at the picket. D. 47 ¶¶ 6-8; D. 52 ¶¶ 6-8. Ali approached Carens and other picketers and told them to “try to move over to” to a median, or “island” in the middle of the street and off the sidewalk. D. 47-7 at 15; D. 47 ¶ 9; D. 52 ¶ 9. Ali described his action as “trying to convince the individuals to move over” but also stated that he “tried to really say, All right, you guys got to move to this location” and stated that he did “tell some of the individuals that you have to move.” D. 54-1 at 32. Carens and the other picketers did not move to the island. D. 47 ¶ 11; D. 52 ¶ 11. Burke and Ali requested that Carens turn off the megaphone and Carens complied. D. 47 ¶¶ 12-13; D. 52 ¶¶ 12-13. According to Freedman and Carens, Ali and Burke then stopped Carens, “grabb[ed] his arms and chest and push[ed] him out of the picket line, ” pushing Carens backwards such that Carens was pushed into the street. D. 47-1 at 20; D. 47-10 at 13-16; D. 47 ¶¶ 14-15; D. 52 ¶¶ 14-15. After that, several picketers, including Freedman, began protesting Ali's and Burke's actions towards Carens. D. 47 ¶ 16; D. 52 ¶ 16. Freedman was holding a flag on a flagpole in one hand as the flag leaned against his shoulder. D. 47 ¶ 17; D. 52 ¶ 17; D. 53-1 at 22. Freedman was standing about three feet away from Burke and Ali at the time that Freedman began protesting Ali's and Burke's actions and Burke and Ali were not facing Freedman at that moment. D. 47 ¶¶ 17-18; D. 52 ¶¶ 17-18.

         The events immediately after the picketers began to protest the treatment of Carens are disputed. According to Ali, after the altercation with Carens, Freedman “used a wooden flagpole and shoved Officer Burke in the chest area with this pole, ” and Ali then “attempted to restrain” Freedman. D. 54-1 at 48-49. According to a witness, Burke responded to Freedman's verbal protest by grabbing the picket flag Freedman was holding and pulling it towards his own body, stating “are you assaulting me with this stick” while tapping his own chest with the flag. D. 52 ¶¶ 28-30; D. 56 ¶¶ 28-30; D. 53-5 at 20-21. Another witness testified that Freedman made no “forward movement” but that the officers “were encroaching on his physical space, ” “put their hands on him, ” and then “jumped on him.” D. 53-2 at 28. According to Freedman, Ali and Burke then started pushing Freedman approximately five seconds after they pushed Carens, “getting up in [Freedman's] face, pushing [Freedman], grabbing [Freedman] and pushing [Freedman] backwards, ” and Freedman responded by “try[ing] to backpedal away from them.” D. 47-1 at 23-24; D. 47 ¶ 19; D. 52 ¶ 19. According to another witness, the other officers started to “jump[] in” to “subdue” Freedman and “pull[] him down together.” D. 53-5 at 21. Freedman stated in his deposition that he was eventually pushed such that he “fell against” a parked car, caught “between the curb, the gutter and the car.” D. 47-1 at 25.

         There is a video of at least part of the interaction between Freedman, Burke, and Ali. The parties dispute whether the video depicts Burke or Mochi grabbing Freedman by the arm or Freedman physically struggling against Burke, Ali, and Mochi. D. 47 ¶¶ 20-21; D. 52 ¶¶ 20-21.[1]The video begins once Freedman is already surrounded and being held by the officers. D. 47 ¶¶ 21-22; D. 52 ¶¶ 21-22. It is undisputed that Ali and Mochi brought Freedman to the ground while Sullivan placed his knee on Freedman's legs in order to prevent Freedman from moving. D. 47 ¶ 24; D. 52 ¶ 24. According to Freedman, he was attempting to comply with the officer s' instructions at this time, but it was difficult for him to do so because multiple officers were pulling on him simultaneously, potentially working at cross-purposes. D. 52 ¶¶ 44-51; D. 56 ¶¶ 44-51; D. 54 at 114. Also according to Freedman, his face hit the ground, he felt “blows to his body, ” “knees in his back, ” and felt that “someone was sitting on his legs and twisting his arm.” D. 52 ¶ 40; D. 56 ¶ 40.

         Ali then placed Freedman under arrest. D. 47 ¶ 25; D. 52 ¶ 25. Freedman was transported to the Cambridge Police Department, where he was treated by two paramedics for a scrape on his nose and received, at his request, a sling for his left arm. D. 47-15 at 7; D. 47 ¶¶ 31-32; D. 52 ¶¶ 31-32. During the early morning hours of November 15, 2013, Ali completed and signed an application for a criminal complaint against Freedman asserting charges for assault and battery on a public employee, resisting arrest and disorderly conduct. D. 47 ¶¶ 39, 41; D. 52 ¶¶ 39, 41. Burke, Ali, Mochi and Sullivan wrote reports relating to the events of that evening. D. 52 ¶ 60; D. 56 ¶ 60. On November 15, 2013, Freedman was arraigned in Cambridge District Court, D. 47 ¶ 43; D. 52 ¶ 43, and was released on his own recognizance. D. 47 ¶ 45; D. 52 ¶ 45. On July 20 and July 21, 2015, a criminal trial was held, during which Ali, Burke, and Mochi testified, and Freedman was acquitted of all charges. D. 47 ¶ 46; D. 52 ¶ 46; D. 52 ¶¶ 61-62; D. 56 ¶¶ 61-62.

         IV. Procedural History

         Freedman filed his complaint on June 20, 2016. D. 1. On October 28, 2016, the Defendants moved to dismiss the complaint. D. 14. The Court (O'Toole, J.). denied that motion. D. 29. On January 26, 2018, the case was reassigned to this session of the Court. D. 39. The Defendants have now moved for summary judgment. D. 46. The ...

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