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Gunter v. Cicero

United States District Court, D. Massachusetts

March 11, 2019




         In this civil rights case, Plaintiff George Gunter alleged Defendants Anthony Cicero and John Lopez-both police officers in Springfield, Massachusetts-unlawfully stopped him, assaulted him in the process of stopping and arresting him, and brought criminal charges against him in violation of federal and Massachusetts law. The case was tried before a jury, which returned a verdict in Defendants' favor on all counts.

         At the close of the evidence, Plaintiff moved for judgment as a matter of law on Counts I and II (unlawful seizure in violation of the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights, respectively).[1] (Dkt. No. 112.) The Court heard argument and denied the motion at sidebar. After trial, Plaintiff renewed the motion and, in the alternative, sought a new trial on those counts. (Dkt. No. 123.) Defendants opposed the renewed motion, arguing the seizure was lawful and, even if it was not, Defendants are entitled to qualified immunity. (Dkt. No. 126.) Defendants also contend Plaintiff has not met his burden of establishing a new trial is warranted. The court heard argument on the matter on January 16, 2019. At the hearing, the court requested the parties order the final trial transcripts so there would be a record on which the court could rely in considering Plaintiff's motion. The parties did so, and, on February 22, Plaintiff filed a supplemental memorandum in which he provided citations to the transcripts supporting his summary of the facts presented at trial. (Dkt. No. 137.) Defendants filed their supplemental memorandum on March 6. (Dkt. No. 138.)

         For the reasons set forth below, Plaintiff's renewed motion for judgment as a matter of law on Counts I and II will be granted. Defendants are not entitled to qualified immunity on either count. Plaintiff's motion for a new trial will be conditionally denied.


         The following facts are based on the evidence introduced at trial.

         On the night of Monday, September 14, 2015 and into the early morning of Tuesday, September 15, 2015, Defendants were on duty working the midnight to 8:00 a.m. shift. They participated in roll call at the police station at 10:45 p.m.[2] and then patrolled the downtown Springfield area.

         At approximately 2:00 a.m. on September 15, 2015, Plaintiff was walking on Market Way[3] in downtown Springfield between Harrison Avenue and Falcon Way. Plaintiff testified he had gone out that night (starting the night of Monday, September 14) to celebrate his upcoming birthday. He had been at a gentleman's club called Center Stage, was hungry, and was on his way to Crown Fried Chicken, a several-minute walk from the club.

         As Plaintiff walked south on Market Way toward Falcon Way, Defendants drove east up Harrison Avenue. Defendant Lopez was driving, and Defendant Cicero was in the passenger seat. Defendant Cicero saw Plaintiff on Market Way. Defendant Cicero testified: “I saw somebody coming or walking on Harrison. It sort of seemed like he was coming out of a building.”[4] (10/30/18 Trial Tr. (Dkt. No. 133) at 109:9-11.) When defense counsel sought to confirm Defendant Cicero “had seen [Plaintiff] coming out of the rear of a building, ” Defendant Cicero responded, “That's what I believed I saw. It was poorly lit, so.” (Id. at 111:10-13.) On cross-examination, Plaintiff's counsel asked, “And you testified that when you were driving east on Harrison Avenue that you looked to your right and you saw somebody come out of a building on Marketplace [sic]; is that right?” (Id. at 135:24-136:2.) Defendant Cicero replied, “What I believed to be happening, yes.” (Id. at 136:3.) He “couldn't tell, ” though, which business (if any) he saw Plaintiff exit. (Id. at 136:8-10.) Defendant Cicero further testified that he saw Plaintiff on the end of Market Place closer to Harrison Avenue than to Falcon Way, but Defendant Cicero did not know which businesses were on that street, and he did not document the businesses in his report.

         Defendant Cicero told Defendant Lopez he had seen someone on Market Way. Defendant Lopez continued driving east, up the rest of the block on Harrison Avenue. He then took a right onto Dwight Street and a second right onto Falcon Way and proceeded to where Market Way meets Falcon Way. Defendants saw Plaintiff coming out of Market Way onto Falcon Way and intercepted him there. The parties' testimony differed as to what happened next. But because the court views the evidence in the light most favorable to Defendants in assessing both the motion for judgment as a matter of law and whether Defendants are entitled to qualified immunity, the court summarizes Defendants' version of events.

         Both Defendants testified that during the 10:45 p.m. roll call, the supervising sergeant (Sergeant Philip McBride) informed them there had been break-ins in the Market Way area. Sergeant McBride testified at trial and initially explained he worked the midnight to 8:00 a.m. shift on September 15, 2015, he arrived at the police department at 11:20 or 11:30 p.m. before the shift started, and roll call began at 11:45 p.m. He later testified it was possible he arrived earlier and was there for the 10:45 p.m. roll call, in which case Defendants would have encountered him then. Either way, he did not recall having a conversation with Defendants or giving them any information about Market Way or break-ins in the surrounding area.

         Based on Sergeant McBride's purported warnings, Defendant Cicero was suspicious of Plaintiff's presence on Market Way because it was after business hours, and Defendant Cicero believed there had been recent break-ins in the area. But Defendant Cicero did not see broken glass, hear an alarm, or see Plaintiff running or carrying anything that might indicate he had broken into a building. Moreover, neither Defendant could identify a single report of, investigation into, or prosecution related to a break-in on Market Way leading up to September 15, 2015. Call for service records showed that there had not been any report of a break-in on Market Way from January 1, 2015 through September 14, 2015. There was testimony that had any buildings on Main Street, which back up to Market Way, been broken into, records of any such break-in would not appear on call for service records for Market Way. Here, neither Defendant returned to Market Way after Plaintiff was arrested to investigate whether there had in fact been a break-in.

         Defendant Cicero testified that when Defendants drove up to Plaintiff on Falcon Way, they wanted to conduct a field interview to find out Plaintiff's name and what he had been doing on Market Way. So when Defendants approached Plaintiff, Defendant Cicero called out to him from the cruiser and asked what he was doing. Defendants testified Plaintiff did not respond and kept walking across Falcon Way. Defendant Lopez then asked Plaintiff where he was going and to come over to the cruiser, and-according to Defendants-Plaintiff again did not respond and kept walking. According to Defendants, this further raised their suspicions. They got out of the cruiser and seized Plaintiff by telling him to stop, which he did. Specifically, Defendants said to Plaintiff, “hey, hey, hold up.” (Id. at 113:6-9, 113:17-19.) Defendant Cicero testified about this interaction as follows:

Q: What was your intent in speaking to Mr. Gunter?
A. Our intent was just to find out what he was doing in the alley, possibly his name, and that's about it.
Q. And so what happened when you approached Mr. Gunter as he emerged from Market Way?
A. I asked him, what are you doing and he continued to walk away.
Q. What direction was he walking at that point?
A. He was walking across the street towards the MassMutual Center.
Q. Did you -- were you in the car at this point in time?
A. Yes.
Q. At that point in time did you have -- or when you first encountered Mr. Gunter, did you have any intention of getting out of the car?
A. No.
Q. So what happened after you spoke to him and do I understand he failed to respond to you?
A. Yes.
Q. So what happened next?
A. He walked around the rear of the cruiser and continued to walk across the street.
Q. And what, if anything, happened then?
A. Officer Lopez said to him, hey, where are ...

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