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Fisher v. Kew

United States District Court, D. Massachusetts

August 5, 2019

MATTHEW FISHER, Plaintiff,
v.
DAVID KEW, NICKOLAS[1] DOKOS, Defendants.

          ORDER ON DEFENDANTS' MOTION TO COMPEL PLAINTIFF'S FURTHER DEPOSITION TESTIMONY (#25.)

          M. PAGE KELLEY, UNITED STATES MAGISTRATE JUDGE

         Matthew Fisher brings suit against Lowell police officers David Kew and Nickolas Dokos, in their individual capacities, alleging excessive force and illegal arrest in violation of 42 U.S.C. § 1983 (Counts I and II) and violation of Mass. Gen. L. c. 12, § 11I, the Massachusetts Civil Rights Act (Count IV).[2] (#1 at 3-4.)

         On August 19, 2015, in Lowell, Massachusetts, police responded to a report of a robbery of a store. Id. at 2. According to Mr. Fisher's version of the facts, taken from his complaint and his deposition testimony, Officers Kew and Dokos stopped him as he was walking down the street, even though he did not fit the description of the robber. Id. at 2. They told plaintiff, “[A] store was robbed and you fit the description.” (#26-4 at 12.) Plaintiff told them he did not rob the store, asked if he was free to go, and when the officers told him he was not, he ran away. Id. at 13. As he was fleeing, plaintiff encountered a police officer who was pointing a gun at him, so he lay down on the ground as instructed. Id. at 14. Plaintiff alleges that while he was “on [his] belly, ” with his hands cuffed behind him, Officers Dokos and Kew beat him, id. at 14-15, fracturing his nose, damaging his “orbital eye area” which caused “some sight loss, ” and inflicting other injuries. (#1 at 2-3.)

         Defendants' account is that when they approached plaintiff and told him that “he fit the description of the possible suspect, ” he began to walk backward, away from the officers; he then ran across a busy street, throwing his backpack away as he ran; when the officers finally caught up with him, he “resisted arrest” and became “physically assaultive” as he had “an extensive struggle” with the officers; and the officers only hit him twice, in order to subdue him. (#26 at 2; #26-1 at 1-2.) The backpack which plaintiff discarded had a “TEC-DC9 firearm along with a loaded magazine” containing four rounds of nine-millimeter ammunition, and the firearm's serial number was obliterated. (#26-1 at 2.)

         Plaintiff was indicted by a Middlesex County grand jury for knowingly having in his possession a large capacity weapon without a license, in violation of Mass. Gen. L. c. 269, § 10A and § 10M; being an armed career criminal, in violation of Mass. Gen. L. c. 269, § 10G(d); possession of ammunition, in violation of Mass. Gen. L. c. 269, § 10(h); removing the serial number of a firearm, in violation of Mass. Gen. L. c. 269, § 11(c); assault and battery on a public employee, in violation of Mass. Gen. L. c. 265, § 13B; resisting arrest, in violation of Mass. Gen. L. c. 268, § 32B; and disorderly conduct, in violation of Mass. Gen. L. c. 272, § 53. (#26 at 3.)

         In the criminal case in Middlesex County, (Superior Court no. 1581-cr-00510), the court, Leibensperger, J., allowed a motion to suppress all evidence from the stop on the grounds that the police did not have reasonable suspicion to stop and seize plaintiff. (#26-2 at 7-8.) On May 31, 2016, the government nol prossed all the charges against plaintiff. (#26-3.)

         Plaintiff filed this suit in August 2018. (#1.) At plaintiff's deposition in connection with this case, he asserted his Fifth Amendment privilege against self-incrimination when asked questions pertaining to the backpack. (#26 at 11-13, 21-22.)[3] Defendants filed a motion to compel the plaintiff's further deposition testimony. (#25.) Defendants argue that plaintiff must answer questions about the backpack and its contents, for three reasons: (1) plaintiff “automatically” waived his Fifth Amendment privilege by bringing this lawsuit; (2) plaintiff's refusal to answer questions hampers the ability of defendants to defend against the claims; and (3) because the indictment against defendant was nol prossed by the government after a motion to suppress was allowed, it is unlikely that the case will be reopened. (#26 at 1, 6.)

         II. Discussion.

         A. Plaintiff has a valid Fifth Amendment right, even though the charges against him were nol prossed.

         Defendants argue that the court should order plaintiff to answer questions about the backpack because it is “unlikely” that the Middlesex District Attorney's Office, having nol prossed the charges against him, will pursue those charges again, and because his testimony about the gun would not “support a conviction under a federal criminal statute.” (#26-6, 10.)

         The Fifth Amendment has long been interpreted to mean that a defendant may refuse to “answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973); Kastigar v. United States, 406 U.S. 441, 453 (1972) (witness protected by the Fifth Amendment may refuse to answer questions unless he is protected against the use of his compelled answers and evidence derived from them in any subsequent criminal case); United States v. Perez-Franco, 873 F.2d 455, 462 (1st Cir. 1989). While a person asserting the privilege must be facing “some authentic danger of prosecution, ” United States v. Castro, 129 F.3d 226, 229 (1st Cir. 1997), the burden to demonstrate such a danger is “not a particularly onerous” one. Id. To properly invoke the privilege, “the prospective witness need only limn some reasonable possibility that, by testifying, he may open himself to prosecution.” Id.

         Defendants offer no support for their assertion if plaintiff confessed to possessing the firearm and ammunition, it is “unlikely” that Massachusetts authorities would refrain from again instituting criminal charges against him. There would certainly be nothing to prevent them from doing so. “A nolle prosequi is a strategic decision by the Commonwealth to cease pursuing charges.” Commonwealth v. Denehy, 2 N.E.3d 161, 172 (Mass. 2014). The entry of a nolle prosequi is the equivalent of a dismissal under Massachusetts law. See Mass. R. Crim. P. 16, 378 Mass. 885 (1978); Commonwealth v. Mogelinski, 40 N.E.3d 544, 549 (Mass. 2015). Unless jeopardy has attached, which it did not here, a prosecutor may reinstate charges that have previously been nol prossed by refiling them. Id.; see Mass. R. Crim. P. 16(b).

         Prosecution in Massachusetts state court would not be barred by the statute of limitations. Mass. Gen. L. c. 277, § 63 provides for a six-year statute of limitations for the gun charges plaintiff previously faced. The incident in question occurred on August 19, 2015, so the statute of limitations will run in August 2021. Nor would the fact that Massachusetts Superior Court Judge Leibensperger allowed a motion to suppress prevent the government from reinstituting the charges, as plaintiff's confession would constitute “other evidence, independent of the evidence which had been suppressed” on which to base a prosecution. See Commonwealth v. Williams, 725 N.E.2d 217, 222 (Mass. 2000).

         Defendants' assertion that plaintiff's confession to illegal possession of the gun and ammunition would not expose plaintiff to federal prosecution borders on the ridiculous. The statute of limitations for federal gun charges is five years, see 18 U.S.C. ...


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