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O'Brien v. Town of Bellingham

United States Court of Appeals, First Circuit

November 22, 2019

JOSEPH O'BRIEN, Plaintiff, Appellant,
TOWN OF BELLINGHAM, Commonwealth of Massachusetts; RICHARD PERRY, individually and in his official capacity as a police officer; TIMOTHY JOYCE, individually and in his official capacity as a police officer; JAMES RUSSELL, individually and in his official capacity as a police officer; BRIAN KUTCHER, individually and in his official capacity as a police officer; JOHN MELANSON, individually and in his official capacity as a police officer, Defendants, Appellees, ERIC ZIMMERMAN, individually and in his official capacity as a police officer; MICHAEL GILBOY, individually and in his official capacity as a police officer, Defendants.


          Edward J. McCormick III, with whom McCormick & Maitland was on brief, for appellant.

          Evan C. Ouellette, with whom Leonard H. Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for appellees.

          Before Howard, Chief Judge, Torruella and Selya, Circuit Judges.


         On 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.

         Thereafter, 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), [1] 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.

         I. Background

         A. Factual Background[2]

         O'Brien 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.

         1. Events in the Woods

         On 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.

         Defendant-appellee 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.

         As the 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 O'Brien.

         Nilson, 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.

         Eventually, 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.

         2. Events at the Police Station

         After 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 with audio.[3]

         Officers 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.

         Defendant-appellee 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."

         Some 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.

         Subsequently, 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 effect.

         Because 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 respond.

         O'Brien 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.

         Almost 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.

         O'Brien 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.

         Subsequently, 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, ...

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