David Lee v. City of Portsmouth CV-00-559-B 03/19/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David Lee

v. Civil No. 00-CIV-559-B Opinion No.

The City of Portsmouth, Portsmouth Police Department, Portsmouth Police Chief Bradley Russ, Portsmouth Detective A1 Kane, Portsmouth Police Officers Michael W. Maloney, Russell J. Russo, and John and Jane Doe,

MEMORANDUM AND ORDER

This is a civil rights damages action brought under

and a number of supplemental state-law theories.

The gist of plaintiff David Lee's complaint is that the named

defendants invaded rights secured him by the United States

Constitution, the New Hampshire Constitution, and New Hampshire

common law when they used excessive force in arresting him and

then detaining him beyond the point of even arguably having

probable cause to believe that he had committed a crime. The

pertinent defendants have moved for summary judgment on Lee's

federal claims, contending that (1) they are entitled to qualified immunity from the excessive force claim; (2) Lee's

claims for municipal and supervisory liability are insufficiently

supported; and (3) Lee's detention was at all times justified.1

In his objection to defendants' motion, Lee concedes that he

lacks viable federal claims for municipal and supervisory

liability, but asserts an entitlement to trial on his federal

excessive force and unlawful arrest claims. I agree and deny the

motion with respect to those claims.

I. BACKGROUND

I construe the record in the light most favorable to Lee and

draw all reasonable inferences in his favor. See e.g., Navarro

v . Pfizer Corp.,

(1st Cir. 2001) (explaining the

operation of Fed. R. Civ. P. 56).

On January 13, 2000, at approximately 10:00 p.m, Lee, Mrs.

Ester Lauter (Lee's mother) and Mr. Kenneth Lauter (Lee's step-

1Defendants also assert a derivative argument that their entitlement to summary judgement on Lee's excessive force and unlawful arrest claims concomitantly entitles them to summary judgment on his federal conspiracy claims. Because, as I explain infra, defendants are not entitled to summary judgement on Lee's excessive force and unlawful arrest claims, I reject their conspiracy argument as well.

- 2 - father) arrived at the Lauters' Portsmouth residence, 1151

Woodbury Avenue, and found Lee's sister, Grace Lee, lying outside

with a gunshot wound to her head. Lee gathered his parents and

went inside the house to place a 911 call. An operator in

Concord took the call and routed it to the Portsmouth Police

Department's dispatch center, which in turn informed Detective A1

Kane that the police and an ambulance were needed at 1151

Woodbury Avenue for a gunshot victim who was possibly dead.

While the 911 operator was questioning Lee, Kane dispatched

a number of the police units to the scene of the shooting. Kane

then got on the phone with Lee and asked a number of questions,

to which Lee repeatedly responded, "Can we do this when you get

here?" and hung up the phone. Kane subsequently advised all

responding units that "a male caller was on the phone with me.

He stated that he shot his sister."

Because the responding officers2 were under the false

impression that Lee had shot his sister, they arrived at the

scene of the shooting poised to apprehend him. Russo noted that

20fficers Russell Russo, David H. Colby, Christian M. Cummings, Brabazon, Michael Maloney, Richard Webb Jr., and Sgt. Schwartz.

- 3 - Lee had his left hand in his pocket and a black cylinder shaped

object in his right hand that Russo believed to be a Mag style

flashlight. Russo drew his weapon, pointed it at Lee, and

instructed Lee to lie face-first on the ground and to show both

hands. Lee made both hands visible, but did not comply with

Russo's demand that he lie down on the ground.

According to Lee, the apprehending officers, Maloney and

Russo, then kicked him in the leg, threw him to the ground, hit

him on the back of the head, and handcuffed him behind his back.

Lee repeatedly asked Officers Maloney and Russo to help his

sister, but was told to "shut up."Lee complained that the

handcuffs were too tight and that his wrists and elbows were

injured. Again the officers told him to "shut up." Lee stated

that he "had nothing to do with her [Grace Lee] being shot," but

without effect. The officers told Lee to be quiet, he failed to

comply, and in Lee's words: "I was turned on my back, held by the

throat and choked by one of the officers. While he was choking

me he repeatedly told me to 'shut up.' I almost passed out and

could not catch my breath."

Maloney searched Lee while he was on the ground and found

nothing on his person. Maloney then went to get his cruiser

- 4 - while Colby retained custody of Lee. Colby states without

contradiction that, as Maloney walked to the cruiser, Lee got up

to his feet with his back toward Colby. Colby told him to lie

back down and when Lee did not comply Colby forced Lee to the

ground. Colby and Maloney then threw Lee in the cruiser and

Maloney transported him to the police station. At the police

station, Lee continued to maintain his innocence and to ask about

his sister. Lee told the officers that his elbow and neck hurt

and asked them to front-cuff him. Eventually, the officers did

so .

While the officers were arresting Lee, emergency personnel

found a gun beneath the victim. Russo secured the weapon, and

Swartz, Webb, and Cummings secured the inside of the house.

Inside the house, Kenneth Lauter told Cummings that he did not

know what had happened, but that he did know that David had found

Grace outside. Colby took the Lauter's to the hospital where

Grace Lee had been rushed. There they learned that she had been

pronounced dead.

Meanwhile, just after the 911 call came in, Det. Sgt.

Michael Ronchi was notified of the incident and reported to

Portsmouth Police Headquarters. There he met with Cpt. Price and

- 5 - Deputy Chief Magnant and reviewed the tape of the call. After

doing so, Ronchi immediately notified Price and Magnant that

"David Lee . . . never made the statement that he shot his

sister." At this time, Ronchi also learned that a firearm was

recovered under the body of the deceased. Ronchi and Price then

drove to the scene of the shooting, arriving at 11:05 p.m.

After arriving at the shooting scene, Ronchi and Prince

spoke with Russo and Schwartz and examined the handgun found

under Grace Lee and the blood pattern in the driveway. Ronchi

and Price then went to the Portsmouth Hospital, viewed the victim

and her injuries, and concluded, in Ronchi's words, that Grace

Lee "had taken her own life by shooting herself in the right side

of her head with a 9mm Ruger handgun." Thereafter, Ronchi and

Price left the hospital and returned to police headquarters.

At 11:46 p.m., Ronchi began taking a taped statement from

Lee. Lee began the interview by saying his throat hurt and that

one of the officers had choked him "really, really hard."

Immediately thereafter, Ronchi told Lee that he could stop the

interview and get up and walk out at any time. He also told Lee

- 6 - that he was not under arrest.3

L t . Robert Carbone interviewed Kenneth Lauter at the

hospital. In his affidavit, Lauter states that "the interview

did not end until close to 2:00 a.m.4 [and] David was not brought

to us at the hospital until over an hour later, at approximately

3:15 a.m." Lauter also avers that Lee was injured when he

arrived: "David had blood all over his head, dripping down his

neck and right side, had black and blue bruises on his neck, a

swollen jaw, and complained of pain to his elbow."

According to Officer Colby, when Ester Lauter saw Lee, she

asked him why her son had been beaten up. Colby explained that

Kane had sent the responding officers to the scene of a homicide,

not a suicide, and that the officers needed to handcuff and

secure David until they knew what happened "because we still

didn't know where the gun was." According to Colby, Lee told his

3Lee says in his affidavit that he was not "released" until well after two the next morning, but does not explain why Ronchi's statement that Lee was free to leave did not terminate the arrest. Accordingly, for the purposes of ruling on defendants' summary judgement motion, I shall regard Lee's detention as ending just prior to midnight.

4According to the transcript, the interview ended at 1:46 a.m.

- 7 - mother that he had been punched several times in the face, kicked

repeatedly while he was on the ground, and choked until he passed

out. Colby advised Carbone about this conversation.

Ultimately, the medical examiner's office determined that

Grace Lee's death was a suicide.

II. STANDARD OF REVIEW

Summary judgment is appropriate if the record, viewed in

the light most favorable to the non-moving party, shows that no

genuine issue of material fact exists and that the moving party

is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(c); Avala-Gerena v. Bristol Mvers-Squibb Co.,

, 94-

95 (1st Cir. 1996). A genuine issue is one that "properly can be

resolved only by a finder of fact because [it] . . . may

reasonably be resolved in favor of either party." Anderson v.

Liberty Lobby, Inc.,

(1986). A material fact

is one "that might affect the outcome of the suit."

.

In ruling on a motion for summary judgement, "the court must

construe the evidence in the light most favorable to the non­

movant." Navarro, 2 61 F.3d at 94. The party moving for summary judgment, however, "bears the initial responsibility of informing

the district court of the basis for its motion, and identifying

those portions of [the record] . . . which it believes

demonstrate the absence of a genuine issue of material fact."

Celotex Corp. v. Catrett,

(1986). Once the

moving party has properly supported its motion, the burden shifts

to the nonmoving party to "produce evidence on which a reasonable

finder of fact, under the appropriate proof burden, could base a

verdict for it; if that party cannot produce such evidence, the

motion must be granted." Avala-Gerena,

(citing

Celotex,

; Anderson,

).

Ill. DISCUSSION

A. Excessive Force

As noted above, Lee alleges that defendants Maloney, Russo,

and John and Jane Doe used unconstitutionally excessive force

when they apprehended him. These defendants have moved for

summary judgement on this claim, arguing that, as a matter of

law, they are entitled to qualified immunity. In pressing this

point, defendants contend that their actions were objectively

- 9 - reasonable given their belief that Lee had shot his sister. I

disagree.

The Supreme Court recently elaborated the process for

resolving whether an officer is entitled to qualified immunity

from an accusation of excessive force. The Court cautioned that

reviewing courts must avoid fusing the qualified immunity

analysis with the question of whether unreasonable force was used

in making the arrest, and instead undertake a two-part inquiry.

See Saucier v. Katz, 121 S. C t . 2151 (2001). Courts must

consider whether the facts, "taken in the light most favorable to

the party asserting the injury . . . show [that] the officer's

conduct violated a constitutional right." Id. at 2156. If a

violation could be made out on a favorable view of the

plaintiff's submissions, the second "sequential step is to ask

whether the right was clearly established." Id. "Clearly

established for the purposes of qualified immunity means that the

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right." Wilson v. Lane.

(1999) (quoting Anderson v. Creighton,

(1987) ) .

- 10 - If the law would not have put an objectively reasonable officer

on notice that his conduct was unlawful, summary judgment based

on qualified immunity is appropriate. See Mallev v. Briggs,

(1986) (qualified immunity protects "all but the

plainly incompetent or those who knowingly violate the law.").

The Fourth Amendment protects against the use of excessive

force by police officers in carrying out an arrest. Graham v.

Connor,

(1989); Gaudrealt v. Salem, 92

(1st Cir. 1990). In the case of a non-resisting,

compliant suspect, this freedom is unquestionably an "established

right." Comfort v. Town of Pittsfield,

(D.Me. 1996) (citing Fernandez v. Leonard,

(1st Cir. 1986). There is admissible evidence that while Lee,

handcuffed and restrained face first on the ground, shouted "help

my sister," the officers turned him on his back, held him by the

throat, and choked him. In addition, there is admissible

evidence that, hours after the attack, Lee had blood all over his

head, black and blue bruises on his neck, and a swollen jaw.

This evidence, if credited by the jury, could ground a reasonable

finding that defendants invaded Lee's right to be free from

- 11 - excessive force during his arrest. Accordingly, the defendants

cannot prevail on the first part of the qualified immunity

analysis.

The next step is to ask whether the right to be free from

excessive force under the facts alleged was clearly established.

As set forth above, the defendants argue that they are entitled

to qualified immunity because, based on their then-reasonable

belief that Lee had shot his sister, their actions were not

clearly unreasonable under settled law. But, the right of a

person in custody to be free from assault on his person after

being handcuffed and subdued is "clearly established." See

Fernandez v. Leonard,

(1st Cir.

1980)(holding that the right to be free from the use of excessive

force has been well established since 1976); see also Bartram v.

Wolfe,

(S.D.W.Va. 2001) (An unprovoked

battering of a hand-cuffed arrestee who poses no immediate threat

to the officers safety is objectively unreasonable). Defendants

Russo, Maloney, and John and Jane Doe are not entitled to

qualified immunity from Lee's excessive force claim.

- 12 - B. Unlawful Detention

Lee also alleges that defendants Maloney, Russo, and John

and Jane Doe invaded his right to be free from unlawful arrest by

continuing to detain him beyond the point where they even

arguably had probable cause to believe that he had committed a

crime. Defendants have moved for summary judgement on this claim

as well, arguing that, as a matter of law, Lee's detention while

the circumstances of Grace Lee's death were being investigated

did not amount to a constitutional violation.

"The Fourth Amendment right to be free from unreasonable

seizures of the person demands that an arrest be supported by

probable cause." Santiago v. Fenton,

(1st Cir.

1989)(citing Beck v. Ohio.

(1964)). Probable

cause to arrest "exists when the facts and circumstances within

[the police officers'] knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a prudent

[person] in believing that the [defendant] had committed or was

committing an offense." Rivera v. Murphy.

(1st

Cir. 1992) (alterations in original) (citations omitted).

Following a legal warrantless arrest based on probable cause, an

- 13 - affirmative duty to release arises if the arresting officer

ascertains beyond a reasonable doubt that the suspicion (probable

cause) which forms the basis for the privilege to arrest is

unfounded. Thompson v. Olson,

(1st Cir. 1986)

(citing Restatement (Second) of Torts § 134, Comment f.); see

also Babers v. City of Tallassee, Ala.,

(5th Cir. 2001) .

As stated above, Ronchi learned that Kane had misconstrued

Lee's 911 call at some point prior to 11:05 p.m. on the night of

the shooting. Thus, even if I assume arguendo that Kane's

misinterpretation of Lee's statements during the call initially

shielded the arresting officers from unlawful arrest liability,

any probable cause resulting from the misunderstanding, which

formed the basis for the arrest, evaporated when Ronchi learned

that a mistake had been made. Nonetheless, after learning of

Kane's error, Ronchi did not see to it that Lee was immediately

released. Instead, he and a fellow officer went first to the

crime scene and then to the hospital to conduct further

investigation. Under this set of facts, a jury reasonably could

conclude that Lee's detention beyond the point where Ronchi

- 14 - discovered Kane's error was unlawful. Accordingly, I deny the

defendants' motion for summary judgement on Count II.

C. Municipal and Supervisory Claims

Because Lee concedes that his claims for municipal and

supervisory liability are insufficiently supported, I grant

defendants' motion for summary judgment [document no. 11] with

respect to Lee's federal claims against defendants City of

Portsmouth, Portsmouth Police Department, Chief Bradley Russ, and

Detective Albert Kane.

IV. CONCLUSION

For the foregoing reasons, I deny the defendants' motion for

summary judgment (document no. 11) on Count I, excessive force;

Count II, unlawful detention; and Count III, conspiracy.

SO ORDERED.

Paul Barbadoro Chief Judge March 19, 2002 cc: Lawrence Vogelman, Esq. William G. Scott, Esq.

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