United States District Court, D. Massachusetts
MEMORANDUM & ORDER REGARDING PLAINTIFF'S
RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW OR, IN THE
ALTERNATIVE, FOR A NEW TRIAL (Dkt. No. 123)
G. MASTROIANNI UNITED STATES DISTRICT JUDGE.
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.
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). (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.)
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
following facts are based on the evidence introduced at
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
and then patrolled the downtown Springfield area.
approximately 2:00 a.m. on September 15, 2015, Plaintiff was
walking on Market Way 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
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.” (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.
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.
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.
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.
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
Q. What direction was he walking at that point?
A. He was walking across the street towards the MassMutual
Q. Did you -- were you in the car at this point in time?
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?
Q. So what happened after you spoke to him and do I
understand he failed to respond to you?
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 ...