Mlodzinski, et al. v. Lewis, et al. CV-08-289-JL 07/16/10 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Thomas Mlodzinski et a l .

v. Civil No. 08-cv-289-JL Opinion No.

Michael F. Lewis et a l .

O R D E R

This case raises questions about the scope of law

enforcement officers' authority to detain the occupants of a

premises while executing valid search and arrest warrants there.

Plaintiffs Thomas Mlodzinski, his wife Tina Mlodzinski, and their

daughter, Jessica, have sued a number of officers who took part

in executing warrants for the arrest of Tina's then-17 year-old

son, Michael Rothman, for allegedly beating another man with a

nightstick, and for the search of the Mlodzinskis' home for that

nightstick. The Mlodzinskis say that, while executing the

warrants, officers handcuffed them, pointed assault rifles at the

heads of Tina and Jessica--who was 15 years old at the time--for

several minutes after they had been handcuffed, and left them in

handcuffs for nearly an hour, while interrogating them about the

location of the nightstick, as well as the alleged assault.

The Mlodzinskis claim that these actions amounted to

unreasonable seizures and excessive force in violation of the

Fourth Amendment, and thus actionable under

, as well as common-law assault and battery, false arrest, and false

imprisonment. The defendants, including three officers from the

Bristol Police Department and thirteen officers from the Center

of New Hampshire Special Operations Unit ("CNHSOU") who

participated in executing the warrants, have moved for summary

judgment. They argue that they legitimately detained the

Mlodzinskis during the search and used reasonable force to do so

but that, even if not, they are entitled to gualified immunity

from the constitutional claims and official immunity from the

common-law claims.

After hearing oral argument, the court grants the

defendants' motions for summary judgment in part and denies them

in part. Taking the evidence in the light most favorable to the

Mlodzinskis, a rational jury could find that they were subjected

to excessive force by the Bristol officers and certain of the

CNHSOU officers, in violation of the Fourth Amendment. Also

taking the evidence in the light most favorable to the

Mlodzinskis, the court cannot conclude that reasonable officers

in the defendants' position would have believed their actions

were consistent with the Mlodzinskis' clearly established Fourth

Amendment right to be free from excessive force, so the

defendants are not entitled to summary judgment on the basis of

gualified immunity. For largely the same reasons, a rational

2 jury could find that certain of the CNHSOU officers committed

common-law assault and battery against Tina and Jessica

Mlodzinski, and that those defendants do not enjoy official

immunity from those claims.

But the Bristol officers are entitled to summary judgment on

the Mlodzinskis' claims that, apart from the use of allegedly

excessive force, they were unreasonably seized under the Fourth

Amendment, or unlawfully imprisoned at common law, during the

execution of the search warrant because that detention lacked

probable cause or was accompanied by attempts to interrogate

them. Furthermore, at oral argument, the Mlodzinskis dropped all

of their claims against a number of the CNHSOU officers, so

summary judgment will enter in their favor as well.1

I. Applicable legal standard

Summary judgment is appropriate where the "pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law."

1In their summary judgment papers, the Mlodzinskis also waived their common-law assault and battery claims against the Bristol defendants, as well as any claims against either the Town of Bristol itself or the CNHSOU itself for the alleged constitutional violations by their officers under Monell v . Pep't of Soc. Servs.,

(1978).

3 Fed. R. Civ. P. 56(c)(2). Under this rule, "[o]nce the moving

party avers an absence of evidence to support the non-moving

party's case, the non-moving party must offer 'definite,

competent evidence to rebut the motion.'" Meuser v. Fed. Express

Corp.,

(1st Cir. 2009) (guoting Mesnick v. Gen.

Elec. C o .,

(1st Cir. 1991)).

Where, however, "the party moving for summary judgment bears

the burden of proof on an issue, he cannot prevail unless the

evidence that he provides on that issue is conclusive." EEOC v.

Union Independiente de la Autoridad de Acueductos y

Alcantarillados de P.R.,

(1st Cir. 2002)

(guotation marks omitted). As discussed infra, this standard

applies to the defendants' arguments for gualified immunity from

the constitutional claims, and privilege and official immunity

from the state-law claims, because they bear the burden of proof

on each of those defenses.

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

scrutinize the record in the light most flattering to the party

opposing the motion, indulging all reasonable inferences in that

party's favor." Mulvihill v. Top-Flite Golf Co.,

(1st Cir. 2003). The following facts are set forth accordingly,

though the court has made an effort to note the defendants'

version of events where appropriate.

4 II. Background

A. The investigation

In late July 2006, defendants Sergeant Michael Lewis and

Officer Gordon Ramsay, of the Bristol Police Department,

responded to a report of an assault on Central Street in the

town. Near the scene, they located 21 year-old Jeffrey

Burchfield. When asked about the blood on his clothes,

Burchfield said that it belonged to one Brandon Stachulski, whom

Burchfield had "beat[en] up" because Stachulski "had been running

his mouth about [Burchfield's] girlfriend." Burchfield said that

he had been accompanied by another "kid" who also "had a problem

with" Stachulski, but claimed not to know that kid's name.

Following his apprehension, Burchfield was taken to the Bristol

police station, processed, and released on his own recognizance.

A few days later, Stachulski, age 19, arrived at the station

to speak with Sergeant Lewis. Stachulski named the other person

who attacked him as 17 year-old Michael Rothman, and said that

Rothman "had an expandable baton during the incident and struck

[Stachulski] several times over his body." Lewis noted that

Stachulski bore "several clearly visible marks, which were

consistent with the use of a night stick, on his upper body."

5 Stachulski told Lewis where Rothman lived and that he "is known

to carry a firearm."2

Based on this information. Sergeant Lewis promptly secured

warrants to arrest Rothman on a charge of second-degree assault

and to search his residence, on South Main Street in Bristol, for

the nightstick.3 The warrants issued from the Plymouth District

Court around 9:30 p.m., and authorized their execution at "any

time of the day or night." Lewis then contacted defendant Robert

Cormier, the commander of the defendant Central New Hampshire

Special Operations Unit, seeking its assistance in executing the

warrants, which Lewis faxed to Cormier along with their

supporting affidavits. At 11 p.m., Lewis set up two surveillance

teams, each comprised of two Bristol police officers, outside

2The defendants have pointed to no evidence in the record as to what else, if anything, Stachulski told Lewis, or Lewis asked Stachulksi, about Rothman's alleged firearm possession, or how Stachulski came by his professed knowledge that Rothman "is known to carry" one. Lewis acknowledged at his deposition that Stachulski did not say he had actually seen Rothman with a firearm.

3In New Hampshire, second-degree assault is a class B felony, see

, I, punishable by in excess of one year but not in excess of seven years' imprisonment, see

§ 625:9, 111(a)(2).

6 Rothman's residence, where Lewis knew that plaintiffs Thomas and

Tina Mlodzinski also resided.4

The CNSHOU is comprised of officers chosen from the police

departments of a number of towns in central New Hampshire and is

overseen by a board chosen from among the police chiefs of those

towns. Its officers "are trained for high-risk warrant entries."

During these operations, as a matter of standard operating

procedure, they carry automatic assault rifles, with the safeties

off, and wear military-style camouflaged uniforms and helmets.

Sergeant Lewis believed that executing the warrants against

Rothman "posed a high risk of danger based upon the viciousness

of the assault and the allegations that Rothman was armed with an

expandable baton and possibly a gun." Lewis also considered "the

size of the structure occupied by Rothman and the likelihood that

there would be other persons present." In response to Lewis's

communications. Commander Cormier told 15 other CNHSOU officers

to gather at the Bristol police station. There, Lewis told

Cormier that Rothman "had bludgeoned another individual, cracked

his skull multiple times, and basically left him to die . . . and

made statements that, you know, he would kill anyone if they

4According to the record, the surveillance teams did not observe anything of note.

7 ratted on him or told on him." If these accusations have any

support in the record, the defendants have not identified it.5

Commander Cormier decided to use the assembled CNSHOU team

to execute the warrants. Furthermore, according to Sergeant

Lewis, the team would enter before sunrise "to maximize the

surprise for Rothman and thereby reduce the possibility of injury

to police officers and third parties and to limit Rothman's

opportunity to escape and to dispose of the night stick."

B. The entry

Just before 4 a.m. the next morning, the Mlodzinskis were

awakened by the sound of a battering ram breaking down the front

door to their three-bedroom apartment, located on the second

floor of a two-family house. Inside the apartment, the front

door and the door to each of the bedrooms opens onto a central

hallway. Then 15 year-old Jessica Mlodzinski, clad in underwear

and a T-shirt, got out of her bed in response to the noise. She

opened the door to her room to find a masked man in military

fatigues pointing an assault rifle at her face, yelling, "Get

down, palms in the air!" This man was defendant Richard Arell,

5According to Lewis's police report, Stachulski did say that he had not immediately reported the assault "because he was afraid of what would happen to him or possibly his friends." an officer with the CNHSOU (though Arell, like all the CNHSOU

officers, denies having been masked).

Jessica complied, lying on the floor in a prone position.

She then thought she heard Officer Arell tell her that she could

get up, but, after she pushed herself up into a crouching

position, he shoved her back to the floor and screamed at her to

stay down. As a result of the shove, Jessica's left kneecap

struck the floor, causing a permanent injury for which she has

since received medical treatment. She was then handcuffed,

either by Arell or by defendant Richard Tyler, another officer

with the CNHSOU who entered the room after Arell.6 Arell then

continued to hold his gun to her head another seven to ten

minutes. After that, Jessica was brought into the living room.

In the meantime, Tom Mlodzinski rose from his bed in a

different room after hearing the outer door breaking down and

someone screaming "search warrant!" As he approached the door to

his bedroom, he was confronted by a masked man in military

fatigues carrying an assault rifle, who ordered him to get down

on the ground. It turns out that this man was defendant

6Ihere is a factual dispute over who handcuffed Jessica: in his deposition. Officer Tyler took credit for doing it, but Jessica testified in her deposition that "the first guy" to enter her room--Offleer Arell--had done it. Arell, however, says he does not recall touching Jessica. Christopher Tyler, an officer with the CNHSOU. Tom complied with

the order. Another man, similarly armed and attired, then

entered the room and handcuffed Tom's hands behind his back with

a zip tie, placing both knees into Tom's back in the process

(though Tyler denies that anyone knelt on Tom). The man then

held the gun to Tom's head until, after what he describes as a

"short time," he was taken into the living room.7

One of the officers who had entered the Mlodzinskis' bedroom

also pointed his assault rifle at Tina, who was still in bed

wearing only her underwear, and screamed for her to get down on

the floor. When she said she was not wearing a top, the man

allowed her to remain in bed, lying face down, and handcuffed her

behind her back with zip ties. Either this officer or another

similarly armed and attired one then continued pointing his

assault rifle at her head for a period of time that Tina has

testified "seemed like it was forever but [was] almost half [an]

hour." At that point, a female officer with the NHSOU, wearing

street clothes, entered the room. She wrapped a sheet around

Tina--who had been lying in bed uncovered--and escorted her into

the living room. Also in the living room by then were Tom and

7The Mlodzinskis have yet to identify this officer and, as a result, do not assert any claim arising out of this alleged mistreatment of Thomas.

10 Jessica, as well as Amy Furmanick, who was Rothman's girlfriend

at the time, and was holding the couple's then two-week old baby

daughter in her arms. Furmanick had not been handcuffed.8

Rothman, for his part, had encountered a CNHSOU officer

while exiting the bedroom that Rothman shared with Furmanick and

their baby. Rothman obeyed a command to get down on the floor,

was handcuffed, and was removed from the apartment without

incident. He estimates that the exchange took 15 seconds,

including the time it took for an officer to pull shorts onto

Rothman over his boxer shorts; the defendants acknowledge that he

was arrested "immediately." He was then placed in the back seat

of a sguad car parked outside. He has never been a party here.

Back in the living room. Sergeant Lewis told the Mlodzinskis

they were under arrest and read them their Miranda rights. Also

present were defendant Timothy Woodward of the Bristol Police

Department, as well as at least one armed CNHSOU officer. Lewis

began asking the Mlodzinskis for the location of "the stick,"

taking out his own baton and saying, "I'm looking for one of

these." Lewis told them that he was not leaving without "the

stick" and that they would remain under arrest until he found it.

8Furmanick was originally named as a plaintiff to this action, but her claims were dismissed without prejudice after her lawyer was allowed to withdraw because he could not contact her.

11 Referring to Furmanick's and Rothman's two week-old daughter,

Lewis said, "We're going to take the baby away unless we get some

answers." Lewis denies making these threats, saying only that he

"guestioned [the Mlodzinskis] about the location of the baton."

There is also conflicting testimony on whether the Mlodzinskis

remained handcuffed during the guestioning--they say they did,

while Lewis says their handcuffs were off by the time he began

talking to them--and for how long--they say for as long as 45

minutes after they were brought into the living room, but other

testimony calls their timeline into dispute.

After the Mlodzinskis had been assembled in the living room,

the CNHSOU officers who had entered the apartment left--with the

exception of the female officer who had brought Tina into the

living room, and another officer, apparently unarmed, who had

agreed to give that woman a ride home. Tina and Jessica recall

that, in addition to those CNHSOU officers, another one who

appeared to be the "head guy" did not leave until the Bristol

officers finally did. But the "head guy" in guestion. Commander

Cormier, says that he left "within a minute or two" after the

rest of the CNHSOU officers did, which, he recalls, was no more

than 10 minutes after the initial entry.

At some point. Officer Ramsay brought Furmanick and Jessica,

one at a time, into the kitchen for guestioning. Jessica says

12 her handcuffs were still on during this time, while Ramsay says

he is "close to one hundred percent sure that they weren't."

Jessica recalls that her cuffs were eventually removed after a

period of time that she estimates as exceeding one hour, just

before she and Ramsay accompanied Furmanick in going outside for

a smoke. During the cigarette break, according to Jessica,

Ramsay said that if she didn't tell him what happened with

Rothman, "they were going to take my niece away from me."

Shortly thereafter, Jessica told Sergeant Lewis that Rothman and

Burchfield "beat up" Stachulski and that Rothman was "seen" (by

whom is unclear) with a nightstick around that time.

In the meantime, Tina's and Tom's zip-tie handcuffs were

taken off by a yet-unidentified Bristol police officer. This was

done with a pair of cutters the officer had retrieved from Tom's

truck, parked in the driveway, and locked, so the officer had to

get Tom's car keys from him first. After the cuffs were removed,

Tom then remained in the living room, watching television, while

Tina returned to her bedroom and dressed. In conduct she has

since described as "voluntary," she then accompanied an officer

while he searched the apartment.

Tina later gave what she described in her deposition as a

"voluntary statement" to a Bristol police officer, though she

also testified that Sergeant Lewis told her that "he wasn't going

13 to leave my house until he had a statement." The statement

recounted, in relevant part, that Rothman and Stachulski "had a

fight" over Furmanick. Tina gave the statement around 5 a.m.

Shortly thereafter, any remaining officers left the Mlodzinskis'

home, after the search had been completed.9

The search uncovered three baggies containing small

guantities of marijuana and a glass smoking pipe, as well as an

8-inch hunting knife hidden between the mattress and the

boxspring of the bed where Rothman and Furmanick had been

sleeping. But the police did not find a nightstick--or a

firearm. Rothman eventually acknowledged hiding the baton under

the stairs outside the apartment prior to the search, and

disposing of the baton afterwards by throwing it into the river.

9Tina testified that the officers did not leave her apartment until some 90 minutes later, but she also testified that "after I wrote the statement they left," and that she gave the statement at 5 a.m. This apparent inconsistency is unimportant, however, as Tina does not say that the officers spent the extra 90 minutes doing anything but continuing the search, and there is no other evidence to that effect.

14 Ill. Analysis

After agreeing to drop certain claims and defendants from

the case, as already noted, the Mlodzinskis maintain the

following claims against the following parties:

• unreasonable seizure in violation of the Fourth Amendment against the Bristol officers (count 1);

• common-law false arrest and imprisonment against the Bristol officers (count 3);

• vicarious liability against the Town of Bristol for the Bristol defendants' alleged common-law torts (count 4);

• excessive force in violation of the Fourth Amendment against CNHSOU officers Arell and Richard Tyler for their alleged treatment of Jessica, and against CNHSOU officer Christopher Tyler for his alleged treatment of Tina, as well as unreasonable seizure in violation of the Fourth Amendment against Cormier for the Mlodzinskis' continued detention in handcuffs following the entry (count 5);

• common-law assault and battery against Arell and Richard Tyler for their alleged treatment of Jessica, and against Christopher Tyler for his alleged treatment of Tina (count 6);

• common-law false arrest and imprisonment against Cormier for the Mlodzinskis' continued detention in handcuffs following the entry (count 7); and

• vicarious liability against the CNHSOU for its officers' alleged common-law torts (count 8).

Thus, the Mlodzinskis do not challenge the CNHSOU's tactics

in entering the apartment as excessive force or on any other

basis. C f . Est. of Smith v. Marasco,

(3d

Cir. 2003) (ruling that plaintiff presented a triable excessive

15 force claim arising from the use of a "special emergency response

team" to enter his home); Holland ex rel. Overdorff v.

Harrington,

(10th Cir. 2001) (refusing to

extend gualified immunity against excessive force claims arising

out of SWAT team's tactics in executing a warrant); Alexander v.

City & County of S.F.,

, 1366-67 (9th Cir. 1994)

(overturning summary judgment for defendants on an excessive

force claim arising from the use of a "tactical team" to execute

a warrant). While this court is reluctant to second-guess the

tactical decisions of highly trained law enforcement officers,

who perform public service at great risk to themselves, the court

nevertheless must register its concern over the use of the CNHSOU

team to execute the warrants against Rothman by sending as many

as ten officers, dressed in military fatigues and armed with

assault rifles, into his family's apartment after breaking down

the door with a battering ram at 4 a.m. To protect citizens from

excessive force, as guaranteed by the Constitution, "the

activation of [a 'special emergency response team'] and the

tactics of that unit" must be "a reasonable response . . . in the

circumstances." Smith,

.

As outlined above, while the Mlodzinskis do not challenge

the entry itself, they do challenge what particular officers did

16 after they entered. Their challenges, though spanning several

different claims, fall into essentially two categories:

(A) their continued detention in handcuffs after they were

brought into the living room, and (B) the force that certain

CNHSOU officers used in initially detaining Tina and Jessica.

A. Unreasonable seizure and false arrest and imprisonment by the Bristol officers and Cormier

1. The parties' arguments

The Mlodzinskis' claims for unreasonable seizure in

violation of the Fourth Amendment, and false arrest and

imprisonment at common law, arise out of their continued

detention in handcuffs after they were brought from their

bedrooms into the living room. The defendants argue that, in

detaining the Mlodzinskis, they were acting within the scope of

their "limited authority to detain the occupants of the premises

while a proper search is conducted." Michigan v. Summers,

(1980) (footnote omitted). They further argue

that, under the Court's subseguent decision in Muehler v. Mena,

(2005), they used reasonable force to accomplish that

17 detention by keeping the Mlodzinskis in handcuffs, even for the

45 minutes alleged.10

In response, the Mlodzinskis argue that (1) their seizure

exceeded the "investigative detention" authorized by Summers and

therefore amounted to a "de facto arrest" unsupported by probable

cause, (2) Summers also does not apply because "the purpose of

the detention was to coerce information out of them," not to

conduct the search authorized by the warrant, and (3) keeping

them in handcuffs for 45 minutes was unreasonable, because "the

extraordinary circumstances" that justified handcuffing for the

duration of the search in Muehler were absent in this case.

As explained infra. Summers and Muehler foreclose the

Mlodzinskis' first two arguments, so their claim for an

unreasonable seizure fails insofar as it is based on the lack of

probable cause for, or their interrogation during, their

10While the handcuffs were placed by CNHSOU officers, rather than Bristol officers, "'[a]n officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's excessive force can be held liable under section 1983 for his nonfeasance.'" Torres-Rivera v. O'Neill- Cancel,

(1st Cir. 2005) (guoting Gaudreault v. Municip. of Salem,

, 207 n.3 (1st Cir. 1990)). One of the Mlodzinskis' theories is that the Bristol officers engaged in such "nonfeasance" by not promptly removing the handcuffs placed by the CNHSOU officers. Neither the Bristol officers nor Commander Cormier (who, though a CNHSOU officer, was also not personally involved in placing the handcuffs) argues that this theory does not apply here.

18 detention. A rational jury could find, however, that the

defendants used more force than reasonably necessary by leaving

the Mlodzinskis in handcuffs during their detention, amounting to

an unreasonable seizure under the Fourth Amendment, and gualified

immunity does not shield the defendants from that claim. Yet the

excessive force does not render the otherwise valid detentions

actionable as false arrest or imprisonment under state law.

2. The governing law

The Fourth Amendment provides, in relevant part, that "[t]he

right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause." U.S. Const. Am. IV. In Summers, the Supreme

Court articulated the Amendment's "general rule that every

arrest, and every seizure having the essential attributes of a

formal arrest, is unreasonable unless it is supported by probable

cause." Id. at 700. The Court also recognized, however, "the

exception for limited intrusions that may be justified by special

law enforcement interests" depending on "both the character of

the official intrusion and its justification." Id. at 700-01.

One such exception, the Court ultimately held, was that "a

warrant to search for contraband founded on probable cause

19 implicitly carries with it the limited authority to detain the

occupants of the premises while a proper search is conducted."

Id. at 705 (footnotes omitted).

In weighing the character of this intrusion, the Court

concluded that "detention of one of the residents while the

premises was searched, while admittedly a significant restraint

on his liberty, was surely less intrusive than the search

itself." Id. at 701 (footnote omitted). The Court went on to

identify three justifications for such seizures: (1) "preventing

flight in the event that incriminating evidence is found,"

(2) "minimizing the risk of harm to the officers," and

(3) facilitating "the orderly completion of the search" because

the occupants' "self-interest may induce them to open locked

doors or locked containers to avoid the use of force that is not

only damaging to property but may also delay completion of the

task at hand." Id. at 702-03.

The Court later held in Muehler that, under Summers, "[a]n

officer's authority to detain incident to a search is

categorical; it does not depend on the 'guantum of proof

justifying detention or the extent of the intrusion to be imposed

by the seizure.'"

(guoting Summers,

n.19). In Muehler, the defendant police officers

investigating "a gang-related, driveby shooting . . . had reason

20 to believe at least one member of a gang"--and one of the

suspects in the shooting--lived at the plaintiff's home. Id. at

95. After securing a warrant to search the home for "deadly

weapons and evidence of gang membership," the defendants entered

the house with a SWAT team due to "the high degree of risk

involved in searching a house suspected of housing at least one,

and perhaps multiple, armed gang members." Id. at 94-95.

Officers encountered the plaintiff asleep in her bed, handcuffed

her at gunpoint, and removed her and three other handcuffed

people they had found into the garage. Id. at 95.

"While the search proceeded, one or two officers guarded the

detainees, who were allowed to move around the garage but

remained in handcuffs." Id. At some point during the detention,

a federal officer asked the plaintiff for her name, date and

place of birth, and immigration status. Id. The plaintiff and

the other detainees remained in handcuffs for the duration of the

search, which took between two and three hours. Id. at 100. She

was then released before the officers left the area. Id. at 95.

The court of appeals ruled that the plaintiff's detention

had violated the Fourth Amendment in two ways: first, "it was

objectively unreasonable to confine her . . . and keep her in

handcuffs during the search," and, second, "the guestioning of

[her] about her immigration status constituted an independent

21 Fourth Amendment violation." Id. at 97. The Supreme Court

disagreed on both counts.

The Court ruled that the plaintiff's "detention for the

duration of the search was reasonable under Summers because a

warrant existed to search [an address] and she was an occupant of

that address at the time of the search." Id. at 98.

Furthermore, while recognizing that "[t]he imposition of

correctly applied hancuffs on [the plaintiff], who was already

being lawfully detained during the search of the house, was

undoubtedly a separate intrusion" and "thus more intrusive than

that . . . in Summers," the Court ruled that the handcuffing "was

reasonable because the governmental interest outweighed [that]

marginal intrusion." Id. at 99 (citing Graham v. Connor,

(1989)). As the court explained, "this was no

ordinary search . . . a warrant authorize[d] a search for weapons

and a wanted gang member reside[d] on the premises." Id. at 100.

Even though "this safety risk inherent in executing a search

warrant for weapons was sufficient to justify the use of

handcuffs, the need to detain multiple occupants made the use of

handcuffs all the more reasonable," particularly in light of the

fact that only two officers were left to watch the detainees in

the garage while the rest searched the house. Id.

22 Finally, the Court disagreed with the court of appeals "that

the officers were required to have independent reasonable

suspicion to question [her] concerning her immigration status

because the questioning constituted a discrete Fourth Amendment

event." Id. at 100-01. Given the Court's holdings in prior

cases that "mere police questioning does not constitute a

seizure," and the lack of any finding by the court of appeals

"that the detention was prolonged by the questioning, there was

no additional seizure" and therefore no need for "reasonable

suspicion to ask" the plaintiff about her immigration status.

Id. at 101 (quotation marks omitted).

3. The Mlodzinskis' seizure claims

a. Lack of probable cause

The Mlodzinskis appear to misunderstand Summers in claiming

that their detention violated the Fourth Amendment because they

were arrested without probable cause. As just discussed. Summers

recognized an exception to the Fourth Amendment rule that

probable cause support "every arrest, and every seizure having

the essential attributes of a formal arrest."

-

01. So their argument that their detention was a "de facto

arrest"--in other words, that it had "the essential attributes of

a formal arrest"--is beside the point. Whatever the proper

23 categorization of the Mlodzinskis' seizure (and the defendants

have not contested that it was an arrest, at least while the

handcuffs were still on), it did not violate the Fourth Amendment

so long as it fell within the "limited authority to detain the

occupants of [a] premises while a proper search is conducted"

pursuant to a valid warrant to search for contraband, which was

itself founded on probable cause.

.

Summers holds guite clearly that no independent probable

cause is necessary; as the Mlodzinskis acknowledge, the Court

described the case as raising--and then establishing--"the

constitutionality of a pre-arrest 'seizure' which we assume was

unsupported by probable cause."11

. And, if Summers

left any doubt, the Court expressly held in Muehler that the

authority to detain occupants of a home while a search warrant is

carried out there "does not depend on the 'guantum of proof

justifying detention or the extent of the intrusion to be imposed

by the seizure.'"

(guoting Summers, 452 U.S. at

11As the Court explained, it used the term "pre-arrest 'seizure'" in this passage to distinguish the detention at issue from "'"arrests" in traditional terminology,'" which "'eventuate in a trip to the station house and prosecution for crime.'" Summers,

n.5 (guoting Terry v. Ohio,

(1968)). Short of that, then, Sommers authorizes every other "seizure having the attributes of formal arrest" when it is effected against the occupants of a premises during the execution of a valid warrant to search for contraband there. Id. at 705.

24 705 n.19). The lack of probable cause to arrest the Mlodzinskis

has no bearing on the validity of their detention here.

b. Interrogation

The Mlodzinskis also argue that their detention violated the

Fourth Amendment because it was intended "to coerce information

out of them." Thus, they say, the detention exceeded the bounds

of the "temporary detention authorized by Summers," which "is

limited to the purposes for which it was created," i.e.

"preventing flight, minimizing risk of harm to the officers, and

facilitating the orderly completion of the search." That

argument, though, was sguarely rejected by Muehler when it

overturned the lower court's ruling that the defendants "should

have released [the plaintiff] as soon as it became clear that she

posed no immediate threat."

.

Instead, as discussed above, the Court explained that the

plaintiffs' "detention for the duration of the search was

reasonable under Summers because a warrant existed to search [an

address] and she was an occupant of that address at the time of

the search."

. The Mlodzinskis found themselves in

precisely the same situation and, accordingly, were subject to

detention for the entire length of the search, regardless of

whether it served what Summers identified as the typical

25 justifications for such a detention. "Summers makes clear that

when a neutral magistrate has determined police have probable

cause to believe contraband exists, '[t]he connection of an

occupant to [a] home alone 'justifies a detention of that

occupant.'"

at 99 n.2 (quoting Summers,

)

(emphasis added). Summers specifically noted, in fact, that its

rule does not require "balancing of competing interests" by

police officers making "an ad hoc determination" in each

individual case.

n.19). In other words, as the

Court later held in Muehler, "[a]n officer's authority to detain

incident to a search is categorical."

; see also

Dawson v. City of Seattle,

(9th Cir. 2006)

(reading Muehler "to mean that the duration of a detention may be

coextensive with the period of a search, and require no further

justification").

It follows that, even if the detention were used for some

other purpose--such as interrogating the Mlodzinskis in the

manner they recall--there was still no violation of the Fourth

Amendment.12 Indeed, "the Supreme Court has repeatedly held that

12This is not to say that interrogating the occupants of a home who have been detained during its search cannot violate other constitutional provisions. The court of appeals has held that, depending on the circumstances, these interrogations can violate the Fifth Amendment if the detainees have not been advised of their Miranda rights. See United States v. Mittel-

26 'subjective intentions play no role in ordinary, probable-cause

Fourth Amendment analysis.'" United States v. Fernandez,

(1st Cir. 2010) (quoting Whren v. United States,

(1996) (bracketing by the court omitted)). In

other words, "an officer's motive" for a detention, even if

illegitimate, cannot "'invalidate objectively justifiable

behavior under the Fourth Amendment.'"

at 62 n.6 (quoting

Whren,

) (bracketing omitted).

Nor does the fact that the questioning occurred (apart from

what it suggests about the officers' motives) have any Fourth

Amendment significance. That is also clear from Muehler which,

again, rejected the argument that questioning a detainee while

carrying out a search of her home pursuant to a valid warrant

"constituted an independent Fourth Amendment violation."

. Like the plaintiff there, the Mlodzinskis were

subject to detention during the execution of the search warrant

Carey,

(1st Cir. 2007). This court need not consider that point here, though, because (1) the Mlodzinskis have made no Fifth Amendment claim, (2) it is undisputed that they received their Miranda warnings before they were questioned, and (3) even without regard to the warnings, there was no Fifth Amendment violation anyway because their statements were never used against them in a criminal proceeding, see Chavez v. Martinez,

(2003). While Chavez acknowledged that coercive questioning can amount to a substantive due process violation even if the answers are never used in a criminal proceeding against the plaintiff, the Mlodzinskis have made no such claim here, so the court need not consider it.

27 anyway, so "there was no additional seizure within the meaning of

the Fourth Amendment" due to any interrogation. Id. at 101.

As Muehler also holds, the outcome would be different if

"the detention was prolonged by the guestioning," because then

the execution of the warrant could no longer serve to justify the

detention. Id. But the Mlodzinskis have not disputed that the

search of their home concluded right around the time the officers

left the apartment, by which point any Fourth Amendment detention

had certainly come to an end. Thus, the search and the detention

were coterminous, as Muehler expressly contemplates. Id. at 96;

see also Dawson,

.

For this reason, the Mlodzinskis cannot rely on Hall v.

Ochs,

(1st Cir. 1987), to make out a Fourth

Amendment claim here. The court of appeals ruled in Hall that,

even if probable cause supported the plaintiff's arrest and

detention at a police station, it was nevertheless unreasonable

under the Fourth Amendment because the defendant police officer

admitted that he "had made up his mind" to release the plaintiff

if he signed a waiver of his right to sue the police.

. In light of this admission, the court concluded that the

plaintiff "was not being held to insure his appearance in court,

or for any other reason related to [his] prosecution," but "for

the sole purpose of gaining absolution for the prior violations"

28 of his civil rights by the police in arresting him (though the

waiver was never enforced).

Indeed, the plaintiff was

released as soon as he signed the waiver, rather than having to

wait until the next morning for a bail hearing.

This, the

court reasoned, amounted to " [c]onditioning [the plaintiff's]

freedom on the waiver of his [F]irst [A]mendment right" to sue

the police and therefore "deprived him of his right to liberty"

from unreasonable restraint under the Fourth Amendment.

Here, though, there is no evidence that the Mlodzinskis'

"freedom" was "conditioned" on the waiver of their "right not to

speak to the police," as they put it. While Lewis allegedly

announced that "he wasn't going to leave [the] house until he had

a statement" from Tina, it is undisputed that he did leave the

house as soon as the search was completed. See note 9 and

accompanying text, supra. And, again, the Mlodzinskis were

lawfully subject to detention until that point.

At most, then, Lewis's alleged demand for a statement

threatened a Fourth Amendment violation, i.e., detaining the

Mlodzinskis beyond the duration of the search, that was never

carried out. Such unrealized threats do not implicate the Fourth

Amendment, as this court and others have held.13 Nagy v. Town of

13A threat to hold a suspect until she makes a statement could, of course, render any resulting statement involuntary. Again, though, there is no such claim here. See note 12, supra.

29 Andover,

; see also, e.g., Palmieri v. Town of

Babylon, No. 06-cv-0968,

, at *13 (E.D.N.Y. Aug.

4, 2008); Brown v. Sweeney,

(D. Mass.

2007); Bodek v. Bunis, No. 06-cv-6022,

, at *9

(W.D.N.Y. May 23, 2007); Sterne v. Thompson, No. 05-cv-477,

, at *4 (E.D. V a . Oct. 7, 2005).

Nor have the Mlodzinskis pointed to anything in the record

suggesting that any aspect of the alleged interrogation, e.g.,

Lewis's initial demands for information, his subsequent demand

for a statement from Tina, or Ramsay's questioning of Jessica

"extended the time [they were] detained" so as to require a

justification beyond that already provided by the execution of

the warrant. Muehler,

; cf. Ganwich v. Knapp,

(9th Cir. 2003) (denying qualified immunity from

a Fourth Amendment claim to defendants who "did precisely what

the Summers Court warned was improper: [they] exploited the

detention, prolonging it to gain information from the detainees,

rather than from the search") ,14

14As this passage suggests. Summers noted that "special circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case."

n.20. But, as just discussed, there was no "prolonged detention," nor do there appear to be any "special circumstances" here (at least in the nature of the detention itself, as opposed to the force used to effectuate it). Notably, the Muehler Court did not consider the detention there--which lasted for as long as three

30 As far as the court can tell from the record, the search

began almost immediately after the officers entered the apartment

and did not end until they left, and, even during those times

when certain officers were allegedly guestioning the Mlodzinskis,

other officers were carrying on with the search. The alleged

interrogation does not support a Fourth Amendment claim. See

Muehler,

.

c. State-law false arrest and imprisonment

Furthermore, the Bristol defendants are entitled to summary

judgment on the Mlodzinskis' state-law claims for false arrest

and imprisonment. To prevail on either of these claims under New

Hampshire law, the Mlodzinskis must show, among other things,

that they were confined by the Bristol defendants "without legal

authority." MacKenzie v. Linehan,

(2009).15

As just discussed at length, the Bristol defendants had the

legal authority to detain the Mlodzinskis during the execution of

hours, and included guestioning on topics unrelated to the search--to present any "special circumstances."

15A s MacKenzie states, a false imprisonment claim arises out of "[a]ny period of unlawful confinement, however brief,"

(guotation marks omitted), so that "[t]he difference between false arrest and false imprisonment is one of terminology only," 1 Isidore Silver, Police Civil Liability § 4.01 [1], at 4-4 n .4 (rev. e d . 2 010).

31 the search warrant at their home, so their false arrest and

imprisonment claims cannot succeed. See Lee v. City of N.Y.,

(N.Y. A p p . Div. 2000) (upholding dismissal of a

common-law false imprisonment claim where "plaintiffs were

detained by the police during the execution of a search warrant,"

which is "constitutionally permissible" under Summers). The

Bristol officers are entitled to summary judgment on the

Mlodzinskis' state-law false arrest and imprisonment claims.

Furthermore, because those claims were the only basis for any

liability on the part of the Town of Bristol itself, see note 1,

supra, the Town is entitled to summary judgment too. See Dupont

v. Aavid Thermal Techs., Inc.,

(2002) .

d. Excessive force

i. Liability

The Mlodzinskis argue that their seizure was unreasonable

because they remained in handcuffs for at least 45 minutes after

they were brought into the living room. As the Court recognized

in Muehler, "[i]nherent in Summers' authorization to detain an

occupant of the place to be searched is the authority to use

reasonable force to effectuate the detention."

-99

(citing Graham,

). Determining whether a seizure

was reasonable "reguires careful attention to the facts and

32 circumstances of each particular case, including the severity of

the crime at issue, whether the suspect poses an immediate threat

to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by

flight." Graham,

. Furthermore, "[t]he

''reasonableness' of a particular use of force must be judged from

the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight."

The Bristol officers argue that leaving the Mlodzinskis in

handcuffs, even for the 45 minutes they claim, amounted to

reasonable force as a matter of law. Their argument, however,

does not address any of the particular "facts and circumstances"

of this case. Instead, they take the position that, because they

were categorically authorized to detain the Mlodzinskis for the

duration of the search under Muehler, they were also

categorically authorized to use handcuffs to do so. That is

incorrect. As discussed supra, Muehler ruled that keeping the

plaintiff handcuffed during the entirety of the search was

reasonable in that particular case, not in all such cases. See

Dawson,

(holding that, while "the duration of a

detention may be coextensive with the period of a search" under

Muehler, the police do not have "unfettered authority to detain a

building's occupants in any way they see fit").

33 As Muehler explained, "[t]he imposition of correctly applied

hancuffs" on a person "already being lawfully detained during [a]

search" amounts to "a separate intrusion," i.e., beyond that

imposed by the detention itself.

. There, the

Court went on to weigh the degree of that intrusion against the

governmental interest it served, concluding that the plaintiff's

"2- to 3-hour detention in handcuffs in this case does not

outweigh the government's continuing safety interests . . . .

[Tlhis case involved the detention of four detainees by two

officers during a search of a gang house for dangerous

weapons."16

(emphases added); see also

at 102-

03 ("The use of handcuffs is the use of force, and such force

must be objectively reasonable under the circumstances")

16Similarly, in a passage emphasized by the Bristol defendants, the Court observed that "this safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs."

(emphasis added). "This safety risk," as described in the preceding two sentences, was that presented when "a warrant authorizes a search for weapons and a wanted gang member resides on the premises."

(emphasis added). Furthermore, the Court made this statement in analyzing the initial use of handcuffs to detain the plaintiff, then went on to address her argument that "the duration of the use of handcuffs made the detention unreasonable."

So, again, Muehler does not categorically authorize handcuffing the occupants of a home during the entirety of a search for weapons there. See

(Kennedy, J., concurring) (agreeing that the use of handcuffs was reasonable there, but "add[ing] [a] brief statement to help ensure that police handcuffing during searches becomes neither routine nor unduly prolonged").

34 (Kennedy, J., concurring). But this case does not involve most,

if any, of those factors, and therefore does not implicate the

same "safety interests" as Muehler.

First, the detainees did not outnumber the officers: by the

time the Mlodzinskis were brought into the living room, there

were between seven and ten CNHSOU officers, in addition to the

four Bristol officers, still in the apartment, compared to only

four detainees (not counting the 2-week old baby). Even

according to the defendants' version of events, at least two

CNHSOU officers, in addition to all four Bristol officers,

remained throughout the entirety of the search. This is in

contrast to Muehler, where "the detainees outnumber[ed] those

supervising them, and this situation could not be remedied

without diverting officers" from the search itself.17

(Kennedy, J., concurring).

Second, the home was not a "gang house" or, so far as the

record indicates, the location of any potentially criminal

activity whatsoever (save for the possession of a small amount of

marijuana and a pipe, which has not been invoked as necessitating

the continued use of handcuffs). Bristol officers, in fact, had

17According to Lewis, he and Woodward conducted the search, which would have freed the four remaining officers to supervise the four remaining detainees.

35 the home under surveillance for nearly five hours prior to the

search, but did not observe anything suspicious. Similarly,

Sergeant Lewis testified that, before the search, he knew Tom and

Tina Mlodzinski lived there, but has not suggested he was aware

of anything that would potentially make them--let alone their 15-

year old daughter--dangerous. "While the existence of a search

warrant may, in some circumstances, support a reasonable belief

that anyone present at the premises to be searched is engaged in

criminal activity, that justification is significantly weakened

when, as here, police know the occupant's identity and yet have

no articulable reason for suspecting that person of criminal

activity." Heitschmidt v. City of Houston,

(5th Cir. 1998) (citation omitted).

Lewis did have reason to believe, of course, that Rothman

was dangerous. Yet Rothman had been removed from the home

immediately after the CNHSOU officers had entered it, so even his

demonstrated potential for violence could not have justified

leaving the rest of his family in handcuffs for almost another

hour beyond that. And the Mlodzinskis did not resist arrest or

attempt to flee at any point; to the contrary, they obeyed all of

the officers' orders from the minute they were told to get down

on the floor when the CNHSOU team entered the apartment.

36 Third, like in Muehler, the object of the search was a

"dangerous weapon"--unlike in Muehler, though, it was a

nightstick used when two teenagers attacked another one over a

girl, not a gun possessed by a gang member who had "recently been

involved in [a] driveby shooting."

. Sergeant

Lewis had been told by Stachulski, the victim of the assault,

that Rothman was "known to carry a firearm," but, again, Rothman

had been removed from the apartment nearly an hour before the

Mlodzinskis were released from their handcuffs, and there is

nothing to suggest that the officers were otherwise concerned

about the presence of a gun in the home. It does not appear that

the officers ever asked any of the Mlodzinskis (or even Rothman,

for that matter) about a gun, despite the repeated guestioning

about the location of the nightstick.

The "safety interests" that justified the continued

handcuffing of the detainees in Muehler, then, were largely

absent here. And, as mentioned at the outset of this discussion,

the Bristol defendants do not point to anything else about this

particular case that supports keeping the Mlodzinskis handcuffed.

Even after Muehler, a number of courts have ruled, under

circumstances similar (if not identical) to those here, that the

continued handcuffing of detainees while executing a search

warrant could constitute excessive force. See, e.g., Binay v.

37 Bettendorf,

(6th Cir. 2010) (though the warrant

was for drug trafficking, the detainees "had no criminal record,

cooperated throughout the ordeal, posed no immediate threat to

the officers, and did not resist arrest or attempt to flee");

Tekle v. United States,

(9th Cir. 2006)

(though the warrants were for drug trafficking, there was no

"suspicion that there were deadly weapons and a gang member

thought to be armed and dangerous on the premises" as in Muehler,

yet a minor remained in handcuffs for 15 to 20 minutes after

search of his person that "uncovered no weapons or anything else

to warrant further concern for [officer] safety") (guotation

marks omitted); Hepner v. Balaam, No. 03-681,

, at

*3 (D. Nev. July 10, 2007) (though the warrants authorized the

search of a Hells Angels clubhouse and a nearby residence, "many

law enforcement personnel were present" and plaintiffs "were

patted down and found to have no weapons"); Schafer v. Ashworth,

No. 06-cv-1259,

, at *3 (E.D. Cal. Oct. 16, 2008)

(though the warrant was for narcotics, and the teenaged plaintiff

possessed "a small, inexpensive plastic knife in his pocket," he

was "at all times submissive and cooperative," yet remained in

handcuffs for three hours); Elliot v. Lator, No. 04-cv-74817,

, at *12 (E.D. Mich. June 28, 2006) (though the

warrant was for the weapons used in a robbery, "the suspected

38 armed robber was already in custody" so there was "no reason to

believe that anyone on the premises posed a particular threat to

the safety of the officers" and no "evidence that any Plaintiff

behaved in a way that would have triggered any [such] concerns").

There is similar caselaw predating Muehler as well. See,

e.g.. Baker v. Monroe Twp.,

, 1193 (3d Cir. 1995)

(though the warrant was executed as part of a "drug raid," the

police had no reason to feel threatened by a family, including

two teenaged girls, "paying a social visit" to the premises, yet

they were left handcuffed for as long as 25 minutes); Ingram v.

City of Columbus,

(6th Cir. 1999) (though the

officers chased a drug dealer into a home, they had no "general

right" to handcuff the occupants); Heitschmidt,

("Once the premises was secure and police were proceeding with

their work without interference, there was no justification for

prolonging the physically intrusive aspect of [plaintiff's]

detention" in handcuffs, particularly where "there were between

ten and twelve police officers in the home during the search");

United States v. Greathouse,

(D. Or.

2003) ("no reason to believe that any of the residents posed a

particular threat of harm or danger of flight . . . there were at

least 10 and perhaps 11 officers and agents on the scene . . .

there was no . . . evidence offered to suggest that [plaintiff]

39 (or anyone else in the residence) resisted arrest in any way");

United States v. Rodriquez,

(D.P.R. 1999)

(though the warrant was for "firearms, narcotics, and

ammunition," a protective sweep did not turn up weapons, and

"there were about ten to fifteen agents in the house").

The Bristol defendants provide no authority to the

contrary.18 A rational jury could conclude that keeping the

Mlodzinskis in handcuffs amounted to "force that was unreasonable

under the circumstances" in violation of the Fourth Amendment.

Jennings v. Jones,

(1st Cir. 2007) .

ii. Qualified immunity

The Bristol officers also argue that, even if a jury could

rationally find that they used excessive force in keeping the

Mlodzinskis handcuffed, summary judgment should nevertheless

enter in their favor by virtue of gualified immunity. They bear

the burden of proving gualified immunity, an affirmative defense

protecting government officials from liability if they can show

18The Bristol defendants rely on United States v. Timpani,

(1st Cir. 1981), which concluded that detaining the occupant of a house for 45 minutes during the execution of a search warrant was reasonable. That case is inapposite to the Mlodzinskis' excessive force claim, though, because the defendant there was not handcuffed; the police merely "insisted that [he] remain with them while they searched."

.

40 that their conduct, while illegal, did not violate "clearly

established" constitutional rights. See, e.g., DiMarco-Zappa v.

Cabanillas,

(1st Cir. 2001). In analyzing the

defense, the court considers "(1) whether the facts alleged or

shown by the plaintiff make out a violation of a constitutional

right; and (2) if so, whether the right was 'clearly established'

at the time of the defendant's alleged violation." Maldonado v.

Fontanes,

(1st Cir. 2009) (guoting Pearson v.

Callahan, 129 S. C t . 808, 815-16 (2009)). The second step of the

test "in turn, has two aspects. One aspect of the analysis

focuses on the clarity of the law at the time of the alleged

civil rights violation . . . . The other aspect focuses more

concretely on the facts of the particular case, and whether a

reasonable defendant would have understood that his conduct

violated the plaintiffs' constitutional rights."

As just discussed, this court concludes that, taking the

facts in the light most favorable to the Mlodzinskis, they can

show a violation of their constitutional right to freedom from

excessive force under the Fourth Amendment, so they survive the

first step of the test. See, e.g., Jennings,

.

Furthermore, the court of appeals has held that its "case law

supplies a crystal clear articulation of the right, grounded in

the Fourth Amendment, to be free from the use of excessive force

41 by an arresting officer," so the Mlodzinskis' excessive force

claim survives the first "aspect" of the second step of the test

as well. Morelli v. Webster,

(1st Cir. 2009).

The Bristol officers' qualified immunity defense, then,

turns on the second aspect of the second step of the test:

whether their alleged "use of excessive force constituted the

kind of erroneous judgment that a reasonable police officer under

the same or similar circumstances might have made," such that

"qualified immunity gives an officer the benefit of a margin of

error."

. The Mlodzinskis' excessive force claim

survives this final part of the test as well.

As already noted, the Bristol officers--who, again, bear the

burden of proving the defense--have pointed to no circumstances

that could justify, to a reasonable officer, the Mlodzinskis'

continued handcuffing. They did not outnumber the officers; they

had not resisted arrest, attempted to flee, or taken any action

at all to threaten the safety of the officers, who were not aware

of any other reason to believe they might be dangerous; and the

only potentially dangerous person in the apartment, Rothman, had

been removed from there immediately. The absence of any of these

factors places the Bristol officers' alleged "actions outside the

universe of protected mistakes." Morelli,

(denying qualified immunity from excessive force claim based on

42 physically restraining the plaintiff, given the lack of any

"evidence of either dangerousness or attempted flight, and the

presence of a cadre of other officers at the scene").

Relying on Muehler, the Bristol defendants argue that

"officers may take reasonable action to secure the premises and

to ensure their own safety and the efficacy of the search in

executing a search warrant" and that "[s]uch reasonable action

includes the use of handcuffs in detaining occupants." It is

true that, "[i]f the officer's mistake as to what the law

reguires is reasonable, . . . the officer is entitled to the

immunity defense." Saucier v. Katz,

, 204-05 (2001).

But, as discussed at length above, Muehler did not lay down a per

se rule authorizing the use of handcuffs to detain the occupants

of a home while executing a warrant regardless of whether using

that force is reasonable--nor could a reasonable officer

understand such a rule to have been adopted. The Bristol

defendants have not identified any case law at all supporting

their contrary view.

Yet, as just discussed, there are numerous decisions pre­

dating Muehler--and therefore the events at issue here, which

occurred just months after that decision issued--that recognize

excessive force claims based on handcuffing occupants while

carrying out a warrant under circumstances closely analogous to

43 the ones that confronted the Bristol officers here. This case

law therefore served to give them "reasonable notice that the

conduct [they are] alleged to have committed in this litigation

is unlawful." Riverdale Mills Corp. v. Pimpare,

(1st Cir. 2004). Indeed, as the Sixth Circuit Court of Appeals

has held, "the law is clearly established that the authority of

police officers to detain the occupants of the premises during a

proper search for contraband is ''limited, and that officers are

only entitled to use 'reasonable force' to effectuate such a

detention.'" Binay,

(citing Summers,

, and Muehler,

) (denying gualified immunity to

officers who unreasonably kept the occupants of a home handcuffed

while executing a search warrant there); see also Tekle,

(same); Schafer,

, at *5-*6 (same). The

Bristol defendants are not entitled to gualified immunity from

the excessive force claim, at least when the facts are taken in

the light most favorable to the Mlodzinskis.19

19A s discussed in Part II, supra, Lewis says that the Mlodzinskis' handcuffs were removed shortly after they were brought into the living room, just before he began interacting with them. The court has not considered whether, on this version of events, the Mlodzinskis could make out a successful excessive force claim against the Bristol officers or, if so, whether gualified immunity would apply.

44 B. Excessive force and assault and battery by CNHSOU officers

Tina and Jessica claim that they were subjected to excessive

force in violation of the Fourth Amendment, as well as assault

and battery at common law, by the CNHSOU officers who allegedly

kept their rifles pointed at them for several minutes after they

had been handcuffed. Like their Bristol counterparts, these

CNHSOU officers argue that even this alleged use of force was

reasonable as a matter of law (and therefore privileged under

state law) but that, even if not, reasonable officers in their

position would have believed that it was, entitling the CNHSOU

officers to gualified immunity (or official immunity, in the case

of the state law claim). The CNHSOU officers also argue that,

because the Mlodzinskis did not "identify which CNHSOU member, if

any, used the alleged excessive force" against them, any claims

arising out of it fail for that reason as well.

1. Identity of the officers

Taking the CNHSOU officers' last argument first, it is

inconsistent with the record. There is evidence that either

Officer Richard Tyler or Officer Arell handcuffed Jessica, and

that Arell proceeded to hold his gun to her head. See note 6,

supra, and accompanying text. While Arell denies touching

Jessica, she identified him as the one who shoved her to the

45 floor and handcuffed her, and this dispute presents a factual

question to be resolved by the jury.

Similarly, there is evidence that, even if it does not

permit the inference that Officer Christopher Tyler was the man

who handcuffed and held Tina at gunpoint, at least places him in

the room while another officer did so. That could make

Christopher Tyler responsible for the allegedly excessive force,

even if he did not personally apply it, see note 10, supra, and

the CNHSOU officers have not argued that this theory would not

apply here. They are not entitled to summary judgment based on

the claimed lack of evidence identifying the officers responsible

for the allegedly excessive force against Jessica and Tina.20

2. The Fourth Amendment claim

a. Liability

In arguing that the force they used was reasonable as a

matter of law, the CNHSOU officers, like their Bristol

counterparts, rely principally on the fact that they were

executing a search warrant for a weapon, which, they say, "alone

was sufficient to justify the use of handcuffs on all present"

201he Mlodzinskis concede that they cannot identify the officer who allegedly handcuffed Tom by placing a knee in his back, and that Tom has no excessive force claim as a result. See note 7, supra.

46 under Muehler. As already discussed in detail, however, Muehler

did not hold that handcuffing the occupants of a home while

executing a warrant to search for a weapon can never amount to

excessive force, only that it did not under the circumstances

presented there. And, as also already discussed in detail, the

circumstances in Muehler differed from the circumstances here in

a number of important ways: there were more than twice as many

officers as there were occupants, the apartment was not the

suspected site of gang-related or any other criminal activity,

and the object of the search was a nightstick, not a gun used in

a drive-by shooting by a wanted gang member.

Furthermore, all of the home's occupants readily complied

with the CNHSOU officers' orders to get down on the ground (or,

in Tina's case, to lay face down in her bed) with their palms up.

They did not attempt to flee or resist. The officers did not

find a weapon on anyone's person--not surprisingly, since the

Mlodzinskis were wearing little more than their underwear--nor

did they have any other reason to suspect that Tina, a woman in

her 40s, or Jessica, a 15 year-old girl, was the suspect, or was

otherwise dangerous. Indeed, defendant Stephen Adams, one of the

CNHSOU officers who participated in executing the warrants here,

and who is now an assistant commander, testified that there would

"be no need to" handcuff a 15 year-old girl while executing a

47 warrant unless she was violent or was herself a suspect. Jessica

was neither. As noted in Part III.A.3.i, supra, a number of

courts have ruled that a triable excessive force claim arose out

of handcuffing the occupants of a home while carrying out a

search under similar circumstances.

In any event, the responsible CNHSOU officers allegedly did

more than just handcuff Jessica and Tina: one held his assault

rifle to Jessica's head for what she says was between seven and

ten minutes, while another held his assault rifle to Tina's head

for what she says seemed like half an hour. The CNHSOU officers

have not come forward with any justification for holding weapons

to the heads of Jessica and Tina, particularly after they had

already been handcuffed.21 "Where a person has submitted to the

officers' show of force without resistance, and where an officer

has no reasonable cause to believe that person poses a danger to

the officer or to others, it may be excessive and unreasonable to

continue to aim a loaded firearm directly at that person."

Holland,

; see also Baird v. Renbarger, 576 F.3d

210fficers Arell and Richard Tyler have testified that, in accordance with standard CNHSOU procedures, they in fact held their weapons at the ready, at a 45-degree angle to the ground. They do not deny, however, pointing their rifles at the heads of Jessica and Tina. In any event, both women testified uneguivocally that the guns were pointed at their heads, and it is their version of the facts that controls at this stage.

48 340, 346 (7th Cir. 2009) ("pointing guns at persons who are

compliant and present no danger is a constitutional violation").

A number of courts have found triable excessive force claims

to arise from the continued pointing of weapons at detainees

under circumstances similar (if not identical) to those here.

See, e.g., Baldwin v. Placer County,

(9th Cir.

2005) (there was no evidence that plaintiffs would resist or

flee, or to justify believing they would be armed); Jacobs v.

City of Chi.,

, 773-74 (7th Cir. 2000) (an "officer

kept [his] gun pointed at [plaintiff] for over ten minutes, even

after ascertaining that [he] was not the person [the officer] was

looking for, and during which time [plaintiff] did nothing . . .

threatening"); Baker, 50 F.3d at 1193 (police handcuffed

plaintiffs at gunpoint with no "reason to feel threatened by

[them], or to fear [they] would escape"); Ingram,

(though the officers chased a drug dealer into a home, they had

no "general right to handcuff and detain at gunpoint the

occupants . . . in order to apprehend" the suspect).

In addition, as the Mlodzinskis emphasize, a number of

courts have found triable excessive force claims to arise from

pointing guns at children while executing a search warrant,

reasoning that they generally pose less of a safety risk than

adults. See, e.g., Tekle,

(officers held the

49 11 year-old plaintiff "handcuffed, with their guns pointed at

him, for ten to fifteen minutes"); Holland,

(pointing guns at children, ages 18, 14, and 8, for "nearly 10

minutes" after they complied with orders to lie face-down on the

ground); McDonald ex rel. McDonald v. Haskins,

(7th Cir. 1992) ("holding a gun at the head of a 9 year-old"

despite "the alleged absence of any danger to [the officer] or

other officers at the scene and the fact that the victim, a

child, was neither a suspect nor attempting to evade the officers

or posing any other threat"); Lucas v. City of Boston, No. 07-cv-

10979,

, at *22 (D. Mass. June 19, 2009) (pointing

"weapons directly at the heads of two young children"); Schaefer,

, at *3 (pointing guns at the head of a 14 year-

old boy, even though he possessed "a small, inexpensive plastic

knife," when he "was at all times submissive and cooperative").

Los Angeles County v. Rettele,

(2007), on which

the CNHSOU defendants rely heavily, is not to the contrary.

There, the defendant deputies obtained a warrant to search a

house where they believed they could find the suspects in "a

fraud and identity-theft crime ring," one of whom held a

registration for a handgun.

. In executing the

warrant at 7 a.m., the deputies entered the plaintiffs' "bedroom

with guns drawn and ordered them to get out of their bed and to

50 show their hands," despite their protests that they were not

dressed--and despite the fact that they did not fit the physical

description of the suspects.

. Nevertheless, the

plaintiffs remained "at gunpoint for one to two minutes" before

they were permitted to dress, and under arrest for "three to four

minutes" more, before the deputies realized their mistake,

apologized, and left the house.

Rejecting the plaintiffs' claim that this amounted to an

unreasonable seizure in violation of the Fourth Amendment, the

Court ruled that the deputies, "who were searching a house where

they believed a suspect might be armed, possessed authority to

secure the premises before deciding whether to continue with the

search."

. The Court explained that ordering the

plaintiffs from bed was "permissible, and perhaps necessary, to

protect the safety of the deputies. Blankets and bedding can

conceal a weapon, and one of the suspects was known to own a

firearm."

. The Court further recognized that the

"deputies needed a moment to secure the room and ensure that

other persons were not close by or did not present a danger."

. Yet the Court cautioned that "[t]his is not to say,

of course, that the deputies were free to force [the plaintiffs]

to remain motionless . . . for any longer than necessary . . . to

protect their safety."

51 Here, however, a rational jury could find that the

responsible CNHSOU officers forced Tina and Jessica to remain

motionless for longer than necessary through the use of handcuffs

and, allegedly, loaded weapons pointed at their heads. According

to the Mlodzinskis, the use of that force continued for much

longer than the "one or two minutes" the plaintiffs were held at

gunpoint in Rettele, or, more importantly, the time the officers

needed to "secure the room" by ensuring that Tina and Jessica

were unarmed, did not otherwise pose a threat, and were

unaccompanied by others who might. It bears repeating here that

Rothman, the only person in the apartment whom the officers

believed to be dangerous or to possibly have a gun, had been

arrested and removed immediately after the officers entered.

Moreover, in contrast with Rettele, the officers were not

carrying out a warrant against a suspected "crime ring," but

against a suspect in an assault, so, unlike the officers there,

they had no reason to fear that Tina and Jessica were "engage[d]

in joint criminal activity" with Rothman.

.

Under these circumstances, a jury could rationally find that

the responsible CNHSOU officers subjected Tina and Jessica to

excessive force by holding them handcuffed and with guns to their

heads for the extended periods they recall. See Lucas,

, at *20 (distinguishing Rettele as a case of "officers

52 pointing guns at adults who the officers had some reason to

suspect were cooperating with dangerous suspect," and denying

summary judgment to officers who pointed guns at two children),22

b. Qualified immunity

The CNHSOU officers also seek summary judgment on gualified

immunity grounds, arguing that, even if a jury could find that

their actions amounted to excessive force, they were nevertheless

"objectively reasonable." The court disagrees, for much the same

reasons it disagrees that the Bristol officers are entitled to

gualified immunity. See Part III.A.3.b, supra. While, as the

CNHSOU officers emphasize, they had been told "that the suspect

to be apprehended had recently committed a violent assault with a

deadly weapon and was known to have a gun," they do not explain

how a reasonable officer would have understood that information

22The other cases cited by the CNHSOU defendants are similarly inapposite because the force allegedly used there was considerably less than the force allegedly used against Tina and Jessica here. In both Johnson v. Deep E. Tex. Reg'1 Narcotics Trafficking Task Force,

(5th Cir. 2004) and Solis-Alarcon v. United States,

(D.P.R. 2007), the officers executing the warrant merely had their guns drawn. They were not holding them to the heads of handcuffed detainees, as the Mlodzinskis allege here. And Isom v. Town of Warren,

(1st Cir. 2004)--where the police used pepper spray against "a distraught, seemingly suicidal man, who had briefly held two hostages and was refusing to comply with continuous officer reguests that he put down an axe"--could hardly be more different from this case.

53 to justify the force they allegedly used against Tina and

Jessica--as opposed to Rothman, who was the violent suspect in

guestion. C f . Ingram,

(explaining that, if

officers reasonably but mistakenly believed one of the occupants

of the home was the fleeing suspect, they could have used

appropriate force in handcuffing him face-down on the floor at

gunpoint). Nor, as already discussed at length, does the record

disclose any such justification; to the contrary, one of the

CNHSOU's assistant commanders has testified, in essence, that

there was "no need" even to handcuff Jessica.

And the mere fact that the search warrant had issued during

the investigation of a violent crime would not, in and of itself,

lead a reasonable officer to believe he could legally handcuff

and hold Tina and Jessica at gunpoint for several minutes. That

much is clear from Muehler itself which, again, authorizes only

"reasonable force to effectuate the detention" of a home's

occupants while executing a search warrant.

.

See also Baird, 576 F.3d at 345 (noting that, while the

defendants in Muehler "pointed their guns at people during the

execution of a search warrant," the facts there "revealed a

serious potential danger to the police").

It is also clear from the numerous cases, preceding the

events at issue here, that recognized excessive force claims for

54 handcuffing or holding the occupants of a home at gunpoint, even

while executing a search warrant for potentially violent criminal

activity. See Baker, 50 F.3d at 1193 (warrant for drug

trafficking); Holland,

(warrant for assault by

throwing victims "to the ground where they were kicked and

beaten, often by several men at once"); Jacobs, 215 F.3d at 773-

74 (warrant for drug trafficking); cf. Ingram,

(pursuit of fleeing drug dealer) . Based on this body of law, a

number of courts have denied gualified immunity to officers for

handcuffing or pointing weapons at the occupants of a home under

similar circumstances. See, e.g., Binay,

; Baird,

576 F.3d at 347; Tekle,

; Holland,

; Jacobs, 215 F.3d at 774. The CNHSOU officers provide no

authority to the contrary.23 Their motion for summary judgment

on the Mlodzinskis' Fourth Amendment claim is denied.

23Indeed, the CNHSOU officers' summary judgment brief does not even address the evidence that they pointed guns at Tina and Jessica, but instead relies on the officers' version of events, i.e., that they held their weapons toward the floor, to claim that no reasonable officer would have thought that excessive. Again, that is not the version of events that controls at the summary judgment stage.

55 3. The state-law assault and battery claim

Finally, the CNHSOU officers argue that they cannot be

liable on the Mlodzinskis' state-law claims for assault and

battery because they acted reasonably in using the alleged force

against the Tina and Jessica. In New Hampshire, "[a] law

enforcement officer is justified in using non-deadly force upon

another person when and to the extent that he reasonably believes

it necessary to effect an arrest or detention."

. Under this statute, though, "[w]hether the

defendant's beliefs were 'reasonable' is determined by an

objective standard. A belief that is unreasonable, even though

honest, will not support the defense." New Hampshire v.

Cunningham,

(2009) (citation omitted).

As just discussed, the CNHSOU officers have not shown an

objectively reasonable belief that, to effect the detention of

Tina and Jessica while executing the warrant, they needed to

handcuff them and hold them at gunpoint for as long as they

allegedly did. So, just as the CNHSOU officers are not entitled

to summary judgment on the Fourth Amendment excessive force claim

against them on this basis, they are not entitled to summary

judgment on the state-law assault and battery claim against them

56 either.24 C f . Statchen v. Palmer,

(noting

that the standards for the claims are essentially the same).

The CNHSOU officers also argue that, even if a jury could

rationally find that they assaulted and battered Tina and Jessica

by using unreasonable force to detain them, that claim would be

barred by the state-law doctrine of official immunity. Under

that doctrine, "municipal police officers are immune from

personal liability for decisions that are: (1) within the scope

of their official duties while in the course of their employment;

(2) discretionary, rather than ministerial; and (3) not made in a

wanton or reckless manner." Everitt v. Gen. Elec. Co.,

(2007). The defendant bears the burden of proving that

official immunity shields the acts in guestion. See Belcher v.

Paine,

(1992).

Assuming, without deciding, that the CNHSOU officers were

carrying out their official duties while in the course of their

employment, and undertaking discretionary acts, while detaining

Tina and Jessica, the CNHSOU officers have failed to establish

24The CNHSOU officers also argue that they cannot be liable for assault and battery because they did not intend to cause any injury to Tina or Jessica. That reflects a fundamental misunderstanding of tort law. The "intent" reguired for a battery claim is not "a desire to injure" the plaintiff, but the intent "to cause a harmful or offensive contact" with the plaintiff. Restatement (Second) of Torts § 13 cmt. c (1965).

57 that they were not acting in a wanton or reckless matter while

doing so. This follows from the fact that, as just discussed

above, they have failed to establish that a reasonable officer in

their position would have believed his conduct was consistent

with the Mlodzinskis' Fourth Amendment rights. See Binay,

(upholding denial of official immunity from assault

and battery claim arising out of excessive force during arrests

for the same reasons for upholding denial of gualified immunity

from overlapping Fourth Amendment claim). The CNHSOU defendants'

motion for summary judgment on the assault and battery claim by

Tina and Jessica is denied.

IV. Conclusion

For the foregoing reasons, the Bristol defendants' motion

for summary judgment25 is GRANTED as to count 1, insofar as it

arises out of the lack of probable cause or the alleged

interrogation of the Mlodzinskis, but otherwise DENIED as to that

count; and GRANTED as to counts 2, 3, and 4. The CNHSOU

defendants' motion for summary judgment26 is GRANTED as to count

6 as to all defendants but Cormier, Arell, Richard Tyler, and

25Document no. 37.

26Document no. 36.

58 Christopher Tyler, as to whom it is DENIED; GRANTED as to count 7

(which alleges Cormier's liability for common-law false arrest

and imprisonment); and GRANTED as to count 8 insofar as it

alleges the CNHSOU's vicarious liability for the false arrest and

imprisonment, but DENIED as to count 8 insofar as it alleges the

CNHSOU's vicarious liability for the assault and battery.

As a result, the following defendants are terminated from

the case: the Town of Bristol, Steven Henry, Bill Jolly, Matt

Culver, Rick Paulsen, Brad Sargent, Stephen Adams, Scott

Thompson, Todd Eck, and Shawn O'Keefe.

SO ORDERED.

Jc^feeph N~. La^lante United States District Judge

Dated: July 16, 2010

cc: Matthew J. Lahey, Esq. Charles P. Bauer, Esq. Jeanne P. Herrick, Esq K. Joshua Scott, Esq. William G. Scott, Esq.

59