PAX Centurion - Spring 2019

Page 38 • PAX CENTURION • Spring 2019 617-989-BPPA (2772) Legal Thoughts: Peter Pasciucco, Esq. Anderson, Goldman, Tobin & Pasciucco, L.L.P., Counsel to Members of the Boston Police Patrolmen’s Association Party like it’s 1983! T he Civil Rights Act of 1871 is a Federal statute, numbered 42 U.S.C. § 1983, and allows people to sue the government, a governmental entity and its employees for alleged civil rights violations. Essentially, the statute allows citizens to seek monetary damages against public employees and their employers for alleged “misuse” of authority. Police officers, especially active ones who make arrests, are sitting targets for “1983” claims whether it be for excessive force, false arrest or unlawful search and seizure. A recent “1983” lawsuit that made some news locally involved arrests made by Boston Police officers inside an apartment at the intersection of East 6th and O Streets in South Boston on St. Patrick’s Day in 2013. At around 7:30 p.m. that evening, officers arrived to the area in response to complaints for a loud party that was getting a bit out of hand. According to reports, the only apartment from which loud music could be heard was on the first-floor and people could be seen drinking and dancing inside the apartment through an open door. Someone was also observed puking outside of the party on the sidewalk. Officers entered the apartment through a side door and announced “Boston Police.” One officer requested to speak with the tenant and was directed towards a bedroom. The officer knocked on the bedroom door. Christopher Castagna , who lived there, opened the door but quickly slammed it on the officer’s foot. The officer made another attempt to open the door but Castagna shoved him and then forcefully resisted when he was placed under arrest. Castagna was ultimately charged withAssault and Battery on a Police Officer, Keeper of a Disorderly House and ResistingArrest in South Boston District Court. Gavin Castagna , Christopher’s brother, also began wrestling with officers on scene and was taken into custody. He was charged as well. Both of the Castagna brothers’ cases were eventually dismissed . Nonetheless, the brothers filed a “1983” lawsuit against the Boston Police Department and seven of the responding officers alleging false arrest, unlawful entry, excessive force, failing to conduct a proper investigation, amongst other claims. Following a seven-day trial in June of 2018, a jury found in favor of the officers on all counts. However, despite the jury’s verdict, the federal judge who heard the case ordered a new trial on the brothers’ unlawful entry claim. In the decision which came down last month, the judge found that the testimony and evidence at trial did not support a conclusion that the warrantless entry into the apartment was justified by exigent circumstances due to safety concerns nor was it allowed under a community caretaking rationale. Essentially, the judge found that loud music alone does not give police officers the right to breach the sanctity of one’s home. It is unknown whether the City will now try to settle the case, appeal the ruling or take it to trial again knowing that a judge has essentially ruled that one of the brothers’ claims is meritorious. My bet is on settlement . Another “1983” suit making national headlines occurred about 4,500 miles from O Street. This past October the United States Supreme Court heard oral arguments in Nieves v. Barlett , a case arising out of an encounter between a civilian andAlaska State Troopers during “Arctic Man” which is an annual ski event in the Hoodoo Mountains near Paxson, Alaska which features large crowds of Bernie Sanders supporters and exorbitant amounts of substance abuse. During the event, troopers were investigating underage drinking in one of the ski mountain’s parking lots. On the final evening of the event, Trooper Luis Nieves approached an individual named Russell Bartlett and asked him to put the keg of beer he was drinking from back into his motorhome. Bartlett, who was not breaking the law by having the keg outside, essentially ignored the trooper’s request and told him that the keg was fine where it was. Trooper Nieves let it be. Later that evening, Trooper Bryce Weight approached another reveler in the same vicinity as Bartlett who appeared to be under 21 and engaged him in conversation. Observing Trooper Weight’s interaction with the suspected minor, Bartlett quickly intervened and told the boy not to speak with the trooper. Although disputed by the parties, Bartlett was aggressive and hostile in his tone, caused a scene and at one point tried to head butt Trooper Neives who had come over to assist Trooper Weight. When told he was being placed under arrest, Bartlett allegedly pulled away and struggled with troopers. He was subsequently charged with Disorderly Conduct and ResistingArrest. The charges were later dismissed by the local DA’s office for budgetary reasons but prosecutors maintained that it was not because the facts lacked probable cause. With the charges dropped, Bartlett took his cue from the Castagna brothers and filed a “1983” lawsuit against Troopers Nieves and Weight alleging false arrest, false imprisonment, excessive force and retaliatory arrest in violation of the First Amendment, amongst other claims. The District Court ruled there was probable cause to arrest Bartlett and dismissed all claims summarily. The Ninth Circuit Court of Appeals, agreeing there was probable cause for Bartlett’s arrest, affirmed the District Court’s summary judgment ruling on all counts except the retaliatory arrest claim. In its decision, the Ninth Circuit found that probable cause [for an arrest] does not bar a plaintiff’s claim that his or her arrest may have been retaliatory in nature. The Court explained that a jury in this instance might be persuaded that Bartlett was actually arrested in retaliation for his earlier refusal to put the keg back in his RV and his failure to cooperate with troopers. The Supreme Court elected to hear this case and their decision - which should come out this spring - will be important. An affirmation of the Ninth Circuit, in my opinion, will open the floodgates for “1983” retaliatory arrest claims in public disorder or excessive force type cases. And, as we know, more “1983” claims means more IAD interviews, more depositions and more bad press which only makes the job of police officers that much more difficult. Similarly, an affirmation could be dangerous for the rule of law and criminal procedure as we know it. Fact finders – whether it be judges or juries – would be allowed to disregard whether the evidence actually supports an arrest. Rather, they would be allowed to guess or speculate what an officer’s subjective motivation is in locking someone up. This would not be a good trend to set and hopefully the Court will get it right.