FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Jennifer C. Boal, U.S. Magistrate Judge]
J. McCormick III, with whom McCormick & Maitland was on
brief, for appellant.
C. Ouellette, with whom Leonard H. Kesten, Deidre Brennan
Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on
brief, for appellees.
Howard, Chief Judge, Torruella and Selya, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE
April 9, 2012, Bellingham police officers responded to a call
regarding an unresponsive and potentially intoxicated
individual in the woods behind Shirley Drive in Bellingham,
Massachusetts. When the officers arrived, they came upon
Joseph O'Brien ("O'Brien") laying in a
shallow ravine with his pants unbuckled. There are
conflicting versions as to what occurred next, but the
officers eventually placed O'Brien in handcuffs and took
him to the Bellingham Police Station (the "Police
Station"). There, O'Brien became increasingly
irrational and violent -- destroying property, attacking and
threatening the police officers, and harming himself.
O'Brien pleaded guilty to several state criminal charges
stemming from those incidents, including assault and battery
and resisting arrest. Subsequently, O'Brien filed this
civil rights suit in which he asserted excessive force claims
under 42 U.S.C. § 1983 and Massachusetts state law
against the police officers that apprehended him in the woods
and those who attempted to subdue him at the Police Station.
After lengthy pre-trial briefing, the district court granted
the officers' motion for summary judgment, holding that
Heck v. Humphrey, 512 U.S. 477 (1994),
barred O'Brien's excessive force claims as they
relate to the events in the woods and some of the incidents
at the Police Station. The court held that the excessive
force claims arising from the events at the Police Station
failed as a matter of law because the undisputed facts did
not establish the use of excessive force, and in any event,
that the defendants were entitled to qualified immunity.
O'Brien then filed the present appeal. For the reasons
that follow, we affirm.
maintains that he has no recollection of the events related
to either his arrest in the woods or the post-arrest
incidents in the Police Station. For his claims arising from
the events in the woods, O'Brien relies on the testimony
of two eyewitnesses, Bonnie Bourque ("Bourque") and
Paul Nilson ("Nilson"), which we recount below. For
his claims resulting from the events at the Police Station,
we have the benefit of video security footage.
Events in the Woods
April 9, 2012, Bourque -- who was inside her Shirley Drive
residence in Bellingham, Massachusetts -- heard shouting in
the woods behind her property. When she walked outside toward
the back of her property, Bourque saw O'Brien sitting in
a small ravine in the woods behind her backyard, accompanied
by a younger man and a dog. Bourque asked the younger man if
O'Brien needed help and whether she should call the
police. The younger man informed Bourque that
O'Brien's name was "Joe" and left with the
dog. Though Bourque tried to talk to O'Brien, he refused
to respond, he lay down, and he did not move much. Bourque
went back inside and called the Bellingham Police Department.
Timothy Joyce, a Bellingham police officer ("Officer
Joyce"), arrived at Bourque's door shortly
thereafter. Bourque and Officer Joyce walked over to the
woods behind Bourque's house, and they found O'Brien
laying down on his back in the ravine with his pants undone.
Officer Joyce walked over to O'Brien's left side,
shook him by the shoulder, and asked him some questions,
including why his pants were undone. When O'Brien stood
to buckle his pants, Officer Joyce shouted at him:
"[G]et down on the ground. Put your hands behind your
back. You're under arrest." Officer Joyce
immediately yelled, "resisting arrest," pulled
pepper spray out of his coat, and sprayed O'Brien in the
face. O'Brien's pants fell around his ankles, making
it impossible for him to run away. Two other Bellingham
police officers, including defendant-appellee Sergeant James
Russell ("Sergeant Russell"), arrived on the scene
and also started pepper spraying O'Brien. All three
officers sprayed O'Brien simultaneously. Bourque
testified that O'Brien did not threaten the officers or
become aggressive before they pepper sprayed him.
officers were spraying O'Brien, Bourque fled from the
woods and ran back toward her house, stopping at her back
deck, which was roughly the length of a football field away
from O'Brien's location in the woods. She did not see
what was happening in the woods while she was running, but
she heard O'Brien scream for "help." From her
deck, Bourque witnessed defendant-appellee Sergeant Richard
Perry ("Sergeant Perry") cross through the woods
from Caroline Drive towards where O'Brien and the other
officers were. At that point, a hill and a shed obfuscated
Bourque's view of O'Brien and the officers. Bourque
testified that she did not see any officer strike or hit
who also witnessed portions of the incident, lived on
Caroline Drive on the other side of the woods from Bourque.
Nilson heard a commotion and ventured into his backyard to
where his property bordered the woods. From that vantage
point, he saw O'Brien in the woods surrounded by police
officers screaming "help, help, help." According to
Nilson, the officers attempted to talk O'Brien into
voluntarily being handcuffed for approximately ten to fifteen
minutes, without success.
Officer Joyce managed to get one handcuff on
O'Brien's wrist while keeping the other cuff in his
hand. O'Brien swung Officer Joyce around with one arm,
while the other officers attempted to subdue him by striking
him multiple times in the back and torso with their service
batons. This had no apparent effect on O'Brien, who
continued to resist by swinging his arms and swatting at the
officers. According to Nilson, O'Brien continued
resisting until one or two officers struck him on the head
with their batons, knocking him to the ground. O'Brien
finally stopped fighting, and the officers handcuffed him.
Events at the Police Station
O'Brien was taken into custody, the police transported
him to the Police Station for booking. The entire incident
that occurred at the Police Station was captured on video
brought O'Brien into the Police Station at 5:52 p.m.
Simultaneously, Emergency Medical Technicians
("EMTs") from the Bellingham Fire Department, who
had been summoned to treat O'Brien, arrived at the Police
Station and entered the booking area. O'Brien, who was
handcuffed, was immediately placed in a chair and questioned
by a Bellingham firefighter/EMT regarding his medical needs.
Officer John Melanson ("Officer Melanson") uncuffed
O'Brien's right hand and fastened that cuff to a long
chain attached to a bar on the wall, leaving
O'Brien's right hand unrestrained. The bar was
located next to the door that officers used to bring
detainees into the Police Station. Subsequently, O'Brien
began screaming. The EMTs informed O'Brien that he would
be transported to a local hospital, but O'Brien insisted
on being taken to Massachusetts General Hospital in Boston.
O'Brien continued arguing with and cursing at the EMTs,
until they eventually retreated. Next, O'Brien cursed at
the officers and threatened them with violence. He told the
officers that he would "kick the shit out of" and
"beat the fuck out of" them, and he growled. He
asked the officers if they would kill him, and called them
"pussies." O'Brien continued to scream, growl,
and threaten to commit graphic acts of violence against the
officers. He also told them that he had "a lot of fight
left in him."
minutes later, O'Brien spat on the floor, growled, wiped
mucus on the walls, and tore down a window covering. He then
grabbed the handset of a telephone and attempted to smash a
glass window with it, while taunting the officers to shoot
him. Officer Melanson, using a baton, struck O'Brien in
the leg once to stop him from breaking the window.
O'Brien squared off and swung the phone handset at the
officers. Sergeant Perry also deployed a baton. O'Brien
hit the officers, and they struck him with batons before
retreating. O'Brien continued to swing at the officers,
telling them to shoot him.
O'Brien hit the window multiple times and picked up a
metal chair, prompting Officer Melanson to pepper spray him.
Unaffected, O'Brien struck the window with the chair,
then picked up a different chair, which the officers snatched
from him. He then grabbed the phone handset, swung it around,
and used it to smash the glass window. O'Brien taunted,
"where's your gun?" He proceeded to destroy a
window blind and strike at the broken window with his
uncuffed hand and arm. He told Sergeant Perry, "give me
your gun," and hurled a printer across the room. Once
again, O'Brien was pepper sprayed with no apparent
the Bellingham Police Department was not equipped with
tasers, Sergeant Russell called the Franklin Police
Department to have an officer with a taser respond. He also
called the Worcester and the Norfolk County Sheriff's
departments to have a cell extraction team come to the Police
Station to subdue O'Brien, but they were unable to
proceeded to hit the broken window with his uncuffed hand and
arm once again, further shattering the panes. Sergeant Perry
struck O'Brien's leg with a baton and ordered
O'Brien to stay in the corner away from the window. Blood
appeared to drip from O'Brien's hand and arm due to
cuts sustained while smashing the window. O'Brien reached
to his cuff and demanded that the officers give him the key
to uncuff himself. Officer Joyce pepper sprayed O'Brien,
who returned to the window and again hit the glass shards
with his hand. Officer Melanson struck O'Brien in the
torso with a baton and O'Brien swung his fist at him.
Once again, Officer Joyce pepper sprayed O'Brien, who
returned to the window and tried to dislodge shards of glass.
Officer Melanson again struck O'Brien with a baton and
told him to back away. The struggle continued as the officers
attempted unsuccessfully to control O'Brien.
forty minutes after arriving at the Police Station, Franklin
Police Officer defendant Eric Zimmerman ("Officer
Zimmerman") arrived with a taser. The officers ordered
O'Brien to get on his knees and repeatedly told him to
stop resisting or he would be tased, and that he would
receive the medical attention he needed if he submitted.
O'Brien refused. After around twenty minutes, Officer
Zimmerman deployed the taser. O'Brien called the officer
a "pussy" and asked him to "give [him] another
one." The officers informed O'Brien that he required
medical attention and that he would be tased if he did not
comply. O'Brien refused and he was tased a second time
without significant effect. O'Brien told the officers
that he would keep the taser barb as evidence and that he
would swallow it. He then grabbed a clock off the wall and
appeared to swallow the taser barb.
asked the officers if they were going to burn down the Police
Station, as "that [was their] only option." Officer
Perry asked O'Brien if he was going to allow the officers
to restrain him so that they could take him to the hospital,
remarking that O'Brien had "bled all over the
floor." O'Brien refused and was informed that the
officers were going to take the next step if he did not
comply by allowing them to place handcuffs on both his hands,
but he refused once again.
Defendant-appellee Bellingham Officer Brian Kutcher
("Officer Kutcher") positioned a tactical weapon
that shot forty-millimeter rubber projectiles and asked,
"are you going to comply?" Officer Kutcher
commanded O'Brien to get on the ground approximately nine
times, but O'Brien refused. Officer Kutcher then fired a
rubber projectile. O'Brien grabbed the clock that he had
previously torn off the wall from the floor and began using
it as a shield. Officer Kutcher repeatedly ordered
O'Brien to get down on the ground, to which O'Brien
repeatedly responded, "fuck you." Officer Kutcher
then fired two more projectiles. Among other statements,
O'Brien shouted "you're gonna have to kill me
and you're gonna have to do murder right here."
O'Brien was commanded to get on the ground approximately
fourteen more times, to which he continually responded,