United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (#65) AND PLAINTIFF'S CROSS-MOTION FOR
PARTIAL SUMMARY JUDGMENT (#67)
Page Kelley United States Magistrate Judge.
case began when Cameron D'Ambrosio, a student at Methuen
High School who had been the victim of bullying, published
what he said were rap lyrics on Facebook, in which he
arguably threatened to kill unnamed persons who had bullied
him at the high school. As a result, he was arrested by
Methuen police and charged with violating Mass. Gen. Laws c.
269, § 14(b), which, among other things, makes it a
crime to threaten to use or have present a bomb or other
weapon at a certain location. After D'Ambrosio was
arrested, and a criminal complaint issued in the Lawrence
District Court, a dangerousness hearing was held pursuant to
Mass. Gen. Laws c. 276, § 58A. A district court judge
found D'Ambrosio to be dangerous and ordered him held
without bail. Eventually, a grand jury returned a no bill
against D'Ambrosio, and he was released, having spent
thirty-seven days in custody. Soon after, the criminal
complaint against him was nolle prossed by the Commonwealth.
sues five Methuen police officers in their individual
capacities, and two of them (Chief Joseph Solomon and
Sergeant Walsh) also in their supervisory capacities, for
civil rights violations and torts. Regarding Officer Jane
Doe, D'Ambrosio has had plenty of time to identify her
and has never done so, and therefore the allegations against
her are dismissed. See Figueroa v. Rivera, 147 F.3d
77, 82-83 (1st Cir. 1998) (holding that after seventeen
months, dismissal was proper as to defendant who had never
been identified and served).
explained below, the court finds that the officers had
probable cause to arrest D'Ambrosio for violating c. 269,
§ 14, and further finds that that even if they did not
have probable cause, they are entitled to qualified immunity.
Therefore, the claims against the officers for violating
D'Ambrosio's Fourth Amendment rights are dismissed.
The court finds that the officers also are entitled to
qualified immunity for any claim based on
D'Ambrosio's First Amendment rights. Finally, for the
reasons set out below, none of the state law claims has
merit. Therefore, defendants' motion for summary judgment
is allowed, and plaintiff's cross-motion is denied.
Count I of the complaint, D'Ambrosio claims that the
police officers violated 42 U.S.C. § 1983 by: detaining
and frisking him without reasonable suspicion; arresting him
without an arrest warrant and without probable cause; falsely
and maliciously accusing him of violating c. 269, § 14
and prosecuting him for that crime; interfering with his
First Amendment right to freedom of speech; submitting a
baseless application for a criminal complaint and signing a
baseless criminal complaint; seeking an unreasonable bail
amount; making false statements to the press; failing to
conduct a proper investigation; wrongly obtaining a search
warrant for his home; violating his privacy; wrongly
executing the search warrant and seizing property from his
home; and maliciously prosecuting him. (#1 at 15-17.)
Count II, he alleges that the officers committed common law
conspiracy to violate his civil rights in violation of 42
U.S.C. § 1983, with the same wrongful actions alleged as
in Count I. Id. at 18-20.
Count III, he alleges that the officers violated Mass. Gen.
Laws c. 12, §§ 11H and 11I (the Massachusetts Civil
Rights Act, or MCRA), repeating the factual allegations from
Count I. Id. at 20-21. In Count IV, he alleges that
the officers committed common law conspiracy to violate his
civil rights under the MCRA. Id. at 21-23.
makes claims of false imprisonment (Count VI), false arrest
(Count VII), malicious prosecution (Count VIII), and
intentional infliction of emotional distress (Count IX).
Id. at 24-27.
move for summary judgment, asserting the officers are
entitled to qualified immunity because a reasonable police
officer would have believed probable cause supported
D'Ambrosio's arrest. (#71 at 10.) D'Ambrosio
opposes, asserting his arrest was not supported by probable
cause, and defendants are not entitled to qualified immunity.
(#73.) He also moves for partial summary judgment on the
§ 1983 claims arising under the First and Fourth
Amendments set out in Counts I and II, and his false arrest
claim set out in Count VII, asserting that as his arrest was
not supported by probable cause, he prevails on those counts
as a matter of law. (#67.)
court held an oral argument on the cross-motions on March 8,
2019. (#81.) Plaintiff filed a supplemental memorandum after
the hearing. (#83.)
Statement of Facts.
following narrative is taken from D'Ambrosio's
statement of material facts (#69), defendants' statement
of material facts (#71), D'Ambrosio's response to
defendants' statement (#75), and the exhibits attached to
those filings. Both parties attached partial transcripts of
certain witnesses' depositions to their filings, which
are fragmented. The court requested complete transcripts of
the depositions of D'Ambrosio, Sergeant Walsh, and
Sergeant Ewing, which are on the docket at ##84-86,
the court also considers the testimony in those depositions.
The facts are undisputed unless noted.
D'Ambrosio Posts to Facebook.
was a victim of bullying from the third grade through high
school. (#71-1 at 8-9.) In September 2012, during the first
week of his senior year at Methuen High School (MHS), he was
severely beaten by another student, which he described as
“[being beaten] pretty badly, lacerated spleen, so [as
a result he] was seeking counseling from the bullying and
PTSD.” Id. at 10. At his deposition, he
described how, after the incident in which he was beaten, he
“couldn't walk through the hallways [of MHS]
without someone saying, “oh, there's Cam, the
little bitch who got jumped, who got beat up and hospitalized
and everyone saw you ….” Id. at 4.
morning of May 1, 2013, D'Ambrosio took the school bus to
MHS. (#70-1 at 3; #84 at 31-32.) Rather than attending
school, however, he walked to the Nevins Memorial Library, a
nearby public library in Methuen. (#84 at 31.) He went to the
library instead of going to his classes because he
“didn't want to deal with the bullying and
stuff” at school. Id. at 32.
often listened to rap music, and he wrote and performed his
own rap lyrics. (#70-2 at 1-2.) At the library on the morning
of May 1, D'Ambrosio was listening to rap music, and was
inspired by a Biggie Smalls song in which the artist uses the
phrase “Blow up like the World Trade, ” which
D'Ambrosio understood to be a reference to the
“first time they tried to blow [the World Trade Center]
up.” (#70-1 at 8-9.) He testified at his deposition
that because “the Boston Marathon [bombing] just
happened, ” he decided to “make a metaphor, let
people know how I'm feeling, see how they feel about this
library computer, he published the following post on his
Facebook page to his approximately 490 Facebook friends:
All you haters keep my fuckin' name outcha mouths, got
it? What the fuck do I gotta do to get some props and shit
huh? Ya'll wanme to fucking kill somebody? What the fuck
do these fucking demons want from me? Fucking bastards I aint
no longer a person, I'm not in reality, So when u see me
fucking go insane and make the news, the paper and the
fucking federal house of horror known as the white house,
Don't fucking cry or be worried because all YOU people
fucking caused this shit. fuck a boston bominb wait till u
see the shit I do, I'ma be famous for rapping and beat
every murder charge that comes across me!
(#70-3) (syntax and spelling as in original).
deposition, when questioned about what the post meant,
D'Ambrosio stated that he was addressing the students at
MHS who had bullied him. (#71-1 at 6.) “I felt like all
these people that were triggering me and pushing me were just
bastards, just fatherless lowlifes who had nothing better to
do than to pick on the weak, pick on me ….”
Id. “I didn't feel like I was a person. I
didn't feel like I belonged with anybody. Went to school,
walked through the hallways, felt like a ghost.”
Id. When asked what the reference to demons meant,
he said, “... I felt like I had a lot of personal
demons, and … I just felt like the demons just wanted
me - you know, to lash out, to cease to exist, to go and do
something stupid, like kill myself or try to hurt someone
which I would never do because I've been hurt my whole
life by others …. And I was kind of just screaming out
for help.” (#84 at 48.)
The Post is Reported to Officer Mellor at MHS.
12:45 p.m. the day that D'Ambrosio posted the message to
Facebook, a student approached James Weymouth, the athletic
director and an associate principal at MHS, because she had
seen the post and was nervous about it. (#70-4 at 2, 7.)
Weymouth said at his deposition that he asked the student to
accompany him to an office so he could see the post on a
computer screen. Id. at 3. After reading the post,
Weymouth contacted Officer Mellor of the Methuen police, who
worked as the school resource officer for MHS. (##70-5 at
2-3; 71-4 at 3.) Officer Mellor also spoke to the student
who reported the post, and she told him that the post had
“made her uneasy and made her frightened, ”
because D'Ambrosio usually sat next to her in a class.
(#70-5 at 6-7.)
deposition, Officer Mellor recalled reading the post and then
asking for it to be printed out, “because [he was]
going to need it to be printed so [he] could show it to my -
to my boss.” (#70-5 at 5.) He next called his
supervisor, Sergeant Walsh, and said, “Sergeant, I have
a possible threat.” Id. at 8. He told Sergeant
Walsh that it was an emergency, and he should come to the
school right away. Id.
Mellor stated that he and the school administrators
considered the threat to be against “the kids at the
school, ” or “the people at Methuen High.”
(#71-4 at 12-13.) When asked if he thought the threat was to
the “physical building, ” he stated, “The
people in it. The people. The building. The presence of.
Everybody. All inclusive.” Id. at 32. At his
deposition, when pressed about why he thought the
“haters” to which the post was addressed were
students at the school, Officer Mellor said he thought
“[a]pparently the young lady that reported it is one of
the haters, ” because she was “concerned”
by the post. Id. at 29-30. He added, “You
know, this is the sort of thing that's making us nervous
at school.” Id. When asked why he considered
the post to be a threat, he explained that the reference to
the Boston Marathon bombing was especially alarming:
“… [A]s a whole, when you're making
reference to a massacre that happened two weeks earlier than
this … and that many people died, over the news all
day long, that I'm going to outdo what they do[sic] made
people extremely nervous which we took as a threat.”
Id. at 31.
Mellor met Sergeant Walsh at the door of the school. (#70-5
at 10.) Sergeant Walsh read the post, and then asked Office
Mellor where D'Ambrosio was. Id. Officer Mellor
replied that “Mr. Weymouth was looking for him”
and that D'Ambrosio might have left the school.
Id. Officer Mellor said that Sergeant Walsh told
him, “Go back in … [g]o check. See if they found
[D'Ambrosio]. Let me get back to you in a couple - in a
few minutes.” Id. at 11. At his deposition,
Officer Mellor said that he was under the impression that
Sergeant Walsh was “trying to process it himself and
determine how we were going to proceed.” Id.
Sergeant Walsh Confers with Sergeant Ewing, Who Calls a
Walsh called his supervisor, Lieutenant Kevin Mahoney, and
read the post to him over the phone. (#70-6 at 6.) At
Mahoney's instruction, Sergeant Walsh contacted the court
liaison officer, Sergeant Michael Ewing, and reported the
Facebook post, and asked him “what he thought we might
have for charges.” Id. at 8.
their depositions, Sergeants Walsh and Ewing disagreed about
what they discussed over the phone. Sergeant Walsh recalls he
read Sergeant Ewing the post word-for-word; Sergeant Ewing
believes Sergeant Walsh summarized the content of the post.
(#70-6 at 14 (Walsh); #70-7 at 2, 9 (Ewing).) Sergeant Walsh
believes they discussed c. 269, § 14; Sergeant Ewing
does not recall discussing any specific statute. (#70-6 at 9
(Walsh); #70-7 at 6 (Ewing).) Sergeant Walsh stated at his
deposition that Sergeant Ewing said “he'd call me
back, he was going to run it by a DA.” (#70-6 at 9.)
Ewing testified at his deposition that immediately after
speaking with Sergeant Walsh, Sergeant Ewing called an
assistant district attorney (ADA), to whom he spoke for
“a couple of minutes.” (#70-7 at 3-4.) He did not
remember the name of the ADA. Id. at 5. During the
call, Sergeant Ewing “summed [the post] up in roughly
two or three lines.” Id. at 7. The ADA
responded, “[I]t sounds like it's the threats. If
you guys see [D'Ambrosio], you should grab him.”
Id. Although Sergeant Ewing does not recall if the
ADA identified a particular statute, he recalls discussing
with the ADA that the crime was a felony. Id. at
Walsh stated that he was driving and was going to help
Officer Mellor look for D'Ambrosio, when Sergeant Ewing
called him back and said “something along the lines
that [Sergeant Ewing had] spoke[n] with an ADA, and that 269,
14, would be a good charge.” (#70-6 at 11.) Sergeant
Walsh made the determination to charge D'Ambrosio with
that crime based on what the ADA said, “combined with
the facts up to that point.” Id. at 11-12. He
was not sure if he had looked at the statute at that time.
Id. at 12.
D'Ambrosio is Arrested and Charged.
1:00 p.m., (only about fifteen minutes after the post had
first been reported to Office Mellor), Sergeant Walsh met
again with Officer Mellor. (#70-5 at 12.) Officer Mellor
testified at his deposition that “Sergeant advised me
that what - the way he wanted to proceed was that he had
either written down or possibly a law - you know, a reference
book out, and gave me the chapter and section two six -
whatever the chapter and section is that we charged him
with.” Id. at 13. Officer Mellor recalled
Sergeant Walsh saying, “This is what we're going to
go forward with. We're going to charge him with this.
It's a felony. It's an arrestable offense.”
Id. When, at his deposition, Officer Mellor was
asked if he had “any concern” about charging
D'Ambrosio under that statute, Officer Mellor replied,
“[N]o sir. I was told that by my superior officer [sic]
that's what we would be proceeding with, and I said
okay.” Id. at 14. Officer Mellor summed up
what he recalled Sergeant Walsh saying to him: “He
said, What we have, meaning the Facebook post, would violate
this statute. Let's proceed with it. That's what I
want you to do.” Id. at 14-15.
Walsh instructed Office Mellor that if he could not find
D'Ambrosio, he should go to the police station and begin
the paperwork for an arrest warrant. Id. at 13-14.
After failing to find ...