#113, Drano Series
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MASSACHUSETTSCIVIL ACTION:
John Smith,
Plaintiffv.
Pocahontas Smith, in her professional and individual capacities,
John G. DiPiano, Esq., in his partnership, professional, and individual capacities,
Mauser & Mauser,
Timothy M. Mauser, Esq., in his partnership,professional, and individual capacities
Martha D. Mauser, Esq., in her partnership,professional, and individual capacities
Susan James, in her official and individual capacities,
City of Boston
Defendants
--------------------------------------------------------PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT
OF HIS
OPPOSITION TO MOTION TO DISMISS BY
DEFENDANT CITY OF BOSTON
(with Affidavit and Certiificate of Service)
Now comes Plaintiff John Smith ["Smith"], of Massachusetts and submits this opposition and memorandum in support of his opposition to the Motion to Dismiss by Defendant City of Boston ["Boston"]. A supporting affidavit accompanies this motion.INTRODUCTION
Smith incorporates herein by reference the section entitled INTRODUCTION in Smith‘s Opposition to the Motion to Dismiss by Defendant Susan/Suzanne James ["James"].
James had a duty (1) to be familiar with §5A of M.G.L. c. 209A and as a police detective, (2) to investigate (a) whether the facts as told by Pocahontas and DiPiano (who made the 911 call) were true [Comp.¶ 63], (b) whether an effective 209A restraining order existed and/or (c) whether Pocahontas had followed the procedure set out in §5A of M.G.L. c. 209A for putting the full faith and credit clause into effect.
Defendant Detective James had allegedly been trained by the Boston Police Department, and at all times relevant to this case was acting under the direction and control of the Boston Police Department and the Defendant City of Boston, which had the continuing duty to instruct, supervise, control, and discipline the Defendant detective in her duties [Comp. ¶¶53-55].
ISSUES
- The City of Boston is not entitled to the dismissal of Smith’s §1983 claims as he has set out allegations sufficient to prove a claim for municipal liability.
- The City of Boston had duties to instruct, supervise, control, and discipline Detective James on a continuing basis, to correct her errors, and to protect Smith’s rights as well as those of Pocahontas, his wife [Comp. ¶¶10, 53-55].
- The City of Boston was deliberately indifferent to the known and obvious consequences of its Domestic Violence policies and practices [Comp. ¶¶ 53-55].
- The policies and practices of the City of Boston discriminate against men both facially and as applied and are thus unconstitutional.
- The City of Boston is not entitled to the dismissal of Smith’s allegations of intentional torts as it can be held liable for intentional torts committed by its employees because M.G.L. c, 258 is unconstitutional. Also, c. 258 does not apply to civil rights violations by its employees.
- Where the jury would have to find James liable before the indemnity by the City of Boston would kick in, dismissing Smith’s common-law tort claims against Defendant James in her official capacity is inappropriate.
STANDARD OF REVIEWWhen deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir. 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass. 2001). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir. 1992 (internal quotations omitted).
ARGUMENTS
- The City of Boston is not entitled to the dismissal of Smith’s §1983 claims as he has set out allegations sufficient to prove a claim for municipal liability.
In reckless disregard and with deliberate indifference of its duty to protect Smith’s rights, the City of Boston did not train or teach James about §5A or train her to familiarize herself with the statute under which she is charging a defendant. This was a violation of Domestic Violence Guidelines,\1/§3.0 [Exh. B]. The City also negligently promoted and retained James as a detective in its police department. It is because of the City of Boston’s failed duties and unconstitutional policies and practices that false charges were levied against Smith.
- The City of Boston had duties to instruct, supervise, control, and discipline Detective James on a continuing basis, to correct her errors, and to protect Smith’s rights as well as those of Pocahontas, his wife [Comp. ¶¶10, 53-55].
FN1 Domestic Violence Law Enforcement Guidelines 2002 (Revised):Massachusetts Policy for Law Enforcement Response to Domestic Violence [Massachusetts Executive Office of Public Safety, Boston, MA: 2002]."Probable cause determinations deal with articulable facts and circumstances, not just reasonable states of mind." Com. v. Fourteen Thousand Two Hundred Dollars, 421 Mass. 1, 14 (1995), citing Commonwealth v. Grzembski, 393 Mass. 516, 521 (1984).Probable cause could not be obtained because there was no crime with which to charge Smith. Under M.G.L. C, 209A, no mens rea is required and no act is required. The crime charged, according to Comp. Exhs. P-2, Q-2, occurred when Pocahontas unexpectedly arrived at the Smiths’ jointly owned Boston home (from which she had moved to Maine a year earlier) and she "observed him in the hallway videotaping her" [Comp. Exhs. L-1 and 2, P-2, Q-2]. Pocahontas’s observation of him videotaping is the only allegation in James’ application for a criminal complaint.
The probable cause standard in the Domestic Violence Guidelines, in effect as of 15 February 2002, three months prior to the event of 13 May 2002, reads:
Police officers should keep in mind that the same standard
for probable cause applies to domestic violence offenses
as for any other crime. (See Arrest Guidelines, Section 3.3).Figure 1. Probable cause standard in Domestic Violence Law Enforcement Guidelines 2002
(Revised):Massachusetts Policy for Law Enforcement Response to Domestic Violence §3.1(B)[Exh. C]. (Mass. Executive Office of Public Safety, Boston, 2002)),
This same instruction appears also in Massachusetts Domestic Violence Handbook
(Fall River, MA: Commonwealth Police Services, Inc. 2000), p. 136 [Exh. D-3].
3.3 ARREST GUIDELINES
A. The decision to arrest
. . .
3. The decision to arrest must be based on whether probable cause exists that
the crime occurred, not on whether the victim wishes to seek complaints or
wishes to testify at a future date.Figure 2. Domestic Violence Guidelines, §3.3(A)(3) (emphasis in original) [Exh. C].
and also in the Massachusetts Domestic Violence Handbook at page 138 [Exh. D-4]
So, clearly, when James, who was not an arresting officer, but a detective, based her decision to file an application for a criminal complaint against Smith on Pocahontas’s wish to seek a complaint [James, Mot.Dis., p. 11, ¶2, lines 8-11], her superiors at the Boston Police Department were obliged to correct her error. See Figure 2. (More on this subject at p. 7, infra.) Smith called James’ misstep to the attention to Attorney Piemonte-Stacey (counsel to the officers, the department, and the City in Smith #1), but she, although an agent of the City, refused and failed to act.The issuance of the application for a criminal complaint against Smith was contrary to Massachusetts public policy and specifically to the Domestic Violence Guidelines, promulgated in 1991. See in Figure 2 the warning not to base probable cause on a wish for a complaint to issue. Domestic Violence Guidelines, §3.3(A)(3). James ignored the guideline.
Significantly, the Handbook, at pp. 19-20 [Figure 3, below], used at the police academy, proves that the police officers are taught about ¶1 and ¶3 of §5A of chapter 209A, and incorrectly about ¶2. The first and third paragraphs (the latter coupled with §6 [Exhs. A-2,3,4]) are clearly for arresting officers. Given that "[a]ll words and provisions of statutes are intended to have meaning and are to given effect, and no construction should be adopted which would render statutory words or phrases meaningless, redundant, or superfluous" [U.S.A. v. Ven-Fuel, 758 F.2d 741, 751-752 (1st Cir. 1985), and cases gathered], ¶2 must also be part of the statutory scheme. Therefore, the Editor’s Note on p.20 of the Handbook which instructs officers to ignore ¶2 of §5A recklessly disregards, with deliberate indifference, the suspects’ rights to constitutional equal protection. In fact, the §5A IS unconstitutional because it does not require that NOTICE be given to the accused. An example appears in the margin.\2/
FN2 E.g., wife moves to California with the children. Dad remains in Massachusetts. Wife gets restraining order in California. (As quick and easy to get as popping corn in a microwave.) Husband either does not get notice of California order or defaults because of distance to hearing. Wife flies with children to Logan to deliver children to Dad for two weeks during summer vacation. Dad approaches the children with delight. Wife nearby. Wife files application for violation of foreign order. Wife might or might not have filed the foreign order. Under Commonwealth training of police officers, wife does not need to file it. Under §5A, wife need to comply with ¶2. Either way, Dad does not get notice that the foreign order is effective in Massachusetts. Due process is absent. He is found guilty.
Figure 3. Massachusetts Domestic Violence Handbook, at pp. 19-20 [Exhs. D-1 and D-2] The harm to Smith was 1½ years of suffering from anxiety from the false charge and the fear of being convicted and losing his liberty for doing only as a Massachusetts court ordered: Make his real property available for an inspection for appraisal purposes at 10 o’clock on May 13, 2002. It is the official municipal policy that causes a constitutional tort, making the City of Boston liable. Monell v. New York City Department of Social Services, 436 U.S. at 691. Smith is not relying on "a single decision to take a particular action" [Pembaur v. City of Cincinnati et al, 475 U.S. 469, 478 (1986)], Smith is relying on written official policy, "the kind of ‘official policy’ required by Monell as a predicate to municipal liability under §1983." Pembaur, at 478.
In sum, Defendant James violated §§3.0, 3.1(B), and 3.3(A)(3) of the Domestic Violence Guidelines and her Sergeant-Detective did not correct her errors, as required under Boston Police Department Rule 104, as amended, November 5, 1982 [Exh. E]. James’ sergeant had a duty to protect the rights not only of complainants but also of "arrested persons and criminal suspects" [see Figure 4], of which Smith had found himself one when his wife falsely accused him of violating the Maine restraining order.
Figure 4. Boston Police Department Rule 104 [Exh. E] In addition to the rules and DV Guidelines violated, Defendant James also violated Boston Police Department Rules and Procedures Rule 320-B by filling the Application for Complaint form. That form is to be completed by the "arresting officer." The boldfacing here is not added by counsel, the boldfacing exists in the original Rule 320-B [Exh. F]. Section 9(E-H) of that rule requires review by the duty supervisor. Section 9(I) of that rule requires review by the commanding officer. Neither of those people reviewed James’ Application for Complaint form. While the "Supervisor of Court Cases Sgt. H-D" did sign off, as required by Section 9(J), on the application two times -- once on 6/10/02 [Comp. Exh. P-1] and then again on 7/12/02 [Comp. Exh. Q-1] – it is not known whether the case was reviewed or merely rubber-stamped.
It is clear that the emphatic requirement that it be the arresting officer who fills out the application is a safeguard that as much personal knowledge as possible be presented on the application to the court. In the instant case, James had absolutely no personal knowledge. She only had Pocahontas wanting a complaint to issue ostensibly because she observed her husband, Smith, in the hallway allegedly videotaping her. As a detective, she was obliged to investigate. She did not. She did not confirm whether the facts were true. She did not confirm whether the foreign order was effective here in Massachusetts. She ignored the Massachusetts court order commanding Smith to make available the condominium for an appraisal inspection. She wrote the application only because Pocahontas was a woman – a woman who stood to gain a collateral advantage in a divorce by accusing her husband of an alleged crime. That appealed to James’ preternatural bias.
Prior to the application being filed in Boston Municipal Court, Smith himself brought Piemonte-Stacey copies of all the documents, such as the police incident reports, related to the incident and a copy of the audio-videotape. Smith suggests that Piemonte-Stacy, knowing how difficult it is for a defendant to extricate himself from the criminal justice system (particularly when chapter 209A violations are charged), strategized that a conviction on the new charges would help her extricate the police officers and the City of Boston from civil liability in Smith #1.\3/
- The City of Boston was deliberately indifferent to the known and obvious consequences of its Domestic Violence policies and practices [Comp. ¶¶ 53-55].
FN3 Subsequently, Smith’s counsel spoke to Piemonte-Stacey and discussed the DV Guideline issue specifically. Piemonte-Stacey, who professed knowing Sergeant Detective Margot Hill, Commander of the BPD Domestic Violence Unit of the Bureau of Investigative Services, headquartered at One Schroeder Place in Boston. Piemonte-Stacey promised to discuss the issue with Hill, under whom James worked. Neither Piemonte-Stacey nor Hill interceded before Defendant Detective James took the horrendous affirmative step of depriving Smith of his right to be free of false charges and putting his liberty in jeopardy. (This is not in the complaint because counsel did not want to become a fact witness, but she will likely call Piemonte-Stacey and Hill as witnesses.)Notwithstanding what might or might not have been done or said behind the scenes, when neither the duty supervisor nor the commanding officer nor the supervisor of court cases acted to stop James from filing an extremely flawed Application for Complaint, those failures became proof of the department’s and thus the City of Boston’s deliberate indifference to the BPD’s own rules and the known and obvious tragic consequences of that indifference to Smith’s constitutional rights.Given also that Piemonte-Stacey had a copy of the audio-videotape of the May 13th appraisal, Smith suggests that she told James that the tape did not confirm the accusations by John DiPiano, the wife’s divorce lawyer, to the 911 calltaker. Smith further suggests that for this reason, James did not include any mention of DiPiano’s accusations in her application for the criminal complaint or, for that matter, in her motion to dismiss Smith’s complaint in the instant case. Smith expected this fact to be denied, so he did not include it in his complaint. But the failure of James to make mention of DiPiano’s role – beyond being the 911 caller -- in the conspiracy is conspicuous by its absence.
Proof that the City discriminates against men in matters involving accusations of domestic violence is found in James’ explicit admission that Pocahontas’s allegedly telling her "that she wanted to file a complaint against the Plaintiff for violation of the restraining order" was sufficient to "give Defendant James probable cause to bring criminal charges against the Plaintiff" [James, Mot.Dis., p. 11, ¶2, lines 8-11].\4/ (Note: the Maine order had not been filed in Massachusetts.)
- The policies and practices of the City of Boston discriminate against men both facially and as applied and are thus unconstitutional.
FN4 The revelation by James that Pocahontas wanted to file a complaint against Smith for violation of a restraining order – when there was none in effect in Massachusetts on 5/13/02 – not only makes Pocahontas vulnerable to liability but sets Pocahontas up for liability on Smith’s malicious prosecution claim. Where a "citizen presses the police to apply for a complaint, an action for malicious prosecution lies against the importuning citizen (provided, of course, that all other elements of the tort are present)." Conway v. Smerling, 37 Mass.App.Ct. 1, 4-5 (1994), citing Carroll v. Gillespie, 14 Mass.App.Ct. 12, 25 (1982).Yet, when Smith had complained at Area A-1 about Pocahontas’s false reporting to the police on January 5th, 2001, the police did not file an application for a complaint on his behalf. It can be argued that his desire, unlike Pocahontas’s, did not constitute probable cause for those officers. See §3.3(A)(3) of the Domestic Violence Guidelines. But Smith had more than just a request for a complaint: he had considerable documentary evidence that Pocahontas had falsely reported to the police, whereas Pocahontas did not have a scrap of evidence that he should not have been at the Temple Street property. Her request was naked. His was not. A complaint should have been entered against Pocahontas for false reporting to the police. M.G.L. c. 269 §13A.Gender discrimination is the only possible explanation for the failure of the police to issue an application for a criminal complaint against Pocahontas. The police were sympathetic; yet they did not file an application for a complaint on his behalf against Pocahontas. In fact, there are no reported Massachusetts cases of a prosecution under M.G.L. c. 269 §13A in a domestic violence situation. Given that there are\5/ approximately 50,000 new 209A restraining orders (excluding extensions of existing orders) issued annually in the Commonwealth and that in over 98 percent of the DV events, it is the men who are arrested under the preferred-arrest policy, it is inescapable that the City discriminates against men because of their gender on a daily basis.
FN5 "In Massachusetts, requests for restraining orders are filed approximately once every two minutes during the hours of court operation." Registry of Civil Restraining Orders. Mass. Executive Office of Public Safety:<www.state.ma.us/eops>That preferred-arrest policy is stated in the Domestic ViolenceGuidelines 3.3(B), in the Massachusetts Domestic Violence Handbook (on page 138), and in Section 3(F) of Rule 327 (Protection of Abused Persons) of the Boston Police Department Rules and Procedures [Exh. G]. Thestatistics as to the number of preferred arrests are well hidden. Although by a twist of luck, Smith was not arrested on 13 May 2002 (the day on which the criminal charge underlying the instant case arose), his arrest on 5 January 2001 (out of which Smith #1 arose) did become one of those hidden statistics.Smith suggests that there is political motivation to hide them. They are skewed in extremis and untrue in result. An article addressing the issue of domestic violence statistics appears in the margin.\6/,\7/
FN6 MensNewsDaily.com, on Nov. 10, 2003 at <http://mensnewsdaily.com/archive/ae/charalambous/03/charalambous111003.htm>. Sentinel & Enterprise, on Nov. 12, 2003.Add to those stunning statistics the fact that James is a Domestic Violence detective. She is assigned to the Domestic Violence Unit and goes from precinct to precinct on DV matters, matters in which -- James admits in so many words [James, Mot.Dis., p. 10, ¶1, lines 9-11] -- officers follow the preferred-arrest policy of the DV guidelines and the department. It is unconstitutional, of course, to presume someone guilty just because of his gender.\8/ And with James’ predisposition as a radical feminist believing all men are batterers, it was easy for Pocahontas to persuade James to help her bring the criminal justice system down upon Smith by writing an application for the criminal complaint. Domestic Violence Guideline §3.3(A)(3) was not written for James to follow!FN7 "Domestic Violence Lies and the Lying Liars Who Tell Them," by Mark Charalambous (November 9, 2003) Another Domestic Violence Month has come and gone, and the public has once again been reminded of the horrific amount of domestic violence committed by men. Remarkably, domestic violence accounts for 20–45% of all women’s injuries seen in hospital emergency rooms, we are told.
This is truly a staggering statistic, and raises a crucially important question that demands an answer. This question is not, however, "Why do men treat women with such violence," because like most domestic violence factoids, this one evaporates under close scrutiny.
The problem with debunking these factoids is that no matter how often the truth squad answers the bell, the lies continue to propagate. Fueled by a plethora of taxpayer-funded grants for domestic violence education programs, they have a life of their own.
Variants of the factoid can be found in numerous places. An Internet search turned up hundreds of hits, typically on domestic violence "fact sheets" from such sources as the Ohio Dept. of Health, the Murray, UT police department, and various battered women’s shelters such as Safe Horizon (NY) and the Family Refuge Center (WV).
A legitimate analysis of women’s injuries treated in hospital emergency departments comes from the CDC’s National Electronic Injury Surveillance System (NEISS) which tracks a representative sample of hospitals nationwide. The Dept. of Justice released a report in 1997, "Violence-Related Injuries Treated in Hospital Emergency Departments," based on 1994 NEISS data. According to the report, 1.4 million people were treated "for injuries from confirmed or suspected interpersonal violence." The report notes in the first paragraph: "These patients represented about 1.5% of all visits to hospital ED’s and 3.6% of the injury-related ED visits in 1994."
So, right off the bat, 96.4% of injuries treated in emergency rooms are not due to assaults, domestic or otherwise. As anyone with a modicum of common sense should realize, most injuries come from accidents in the home and car crashes.
The percentages that follow are, therefore, percentages of a percent (3.6%). The percentage of female patients whose injury was caused by a spouse, ex-spouse, or boyfriend is 36.8%. Additionally, 19.3% of female victims would not report the identity of the assailant. If we take the worst case scenario and assume that all unreported assailants were of the spouse/ex-spouse/boyfriend variety, the percentage rises to 56.1%.
But these are percentages of the small percentage (3.6%) of hospital emergency room visits that are attributed to assaults. To find the actual percentage of women’s injuries due to domestic violence, we need to take 56.1% of 3.6%, which is approximately 2%.
This 2% represents the maximum percentage of women’s injury-related emergency room visits that can be attributed to domestic violence. The comparable figure for men, by the way, is 1.4%.
Now we get to the crucially important question raised by the factoid. If in actuality 2% of women’s injuries are due to domestic violence ? not "half" or "a third" or "most" as claimed ? how is it that we accept without question, let alone with no indignation, the horrific portrayal of men that this lie implies, an inflation of the truth by up to a staggering 2,250%?
It is a testament to the successful campaign of male demonization that feminism has been waging for three decades and counting. Victim-feminism preaches that control of women through violence is built into the very fabric of masculinity by the "patriarchy." But this is the exact opposite of the truth. The "patriarchy" teaches men that it is fundamentally wrong ? and even worse, unmanly ? to hit women. Men are socialized to protect women, not to harm them. All boys are taught by their fathers not to hit girls.
There is no more poignant picture of the goodness of men than that of the NYC firefighter gazing up the staircase of the World Trade Center into his imminent death. Men everywhere routinely put themselves in harm’s way for women, seeking no recognition or reward ? while feminists denigrate men from the safety and comfort of their offices and class- rooms. From the Y chromosome to the institution of fatherhood itself, no aspect of masculinity escapes their attack.
Is there really any qualitative difference between saying: "The primary cause of injury to women in the US is domestic violence," and "We live in an epidemic of male violence against women" (author/columnist Katha Pollitt)?
Pop quiz: How would you react to a news story that exaggerated black-on-white violent crime by a factor of 22.5?
Trick question. Such a news item would never get past the editor’s desk. The claim might or might not get fact-checked, but most likely the author would be categorized as a racist, and the story would be terminated by the Delete key.
But we not only provide forums and sympathetic ears to these sexists, we give them literally billions of dollars of taxpayer money (VAWA funding) to spread their twisted worldview of male-female relations.
A second generation of women is now being poisoned from this well. Isn’t it time we just said "No."?
The author is a Leominster, MA resident. He is the Spokesman for CPF/The Fatherhood Coalition and an instructor in the Massachusetts state college system.
FN8 Had Smith been at Temple Street when the police arrived on May 13th, he would have been arrested. That was Pocahontas and DiPiano’s goal: to get him arrested to gain a collateral advantage in the divorce. After his arrest, it would have taken merely a short trip for Pocahontas to the family court merely a few blocks away both to get him excluded once again from the property and to get still another postage-stamp de facto unconstitutional restraining order against him. That is the reality.She can argue that §3.3(A)(3) was written for arresting officers and that is the reason she did not have to follow it. If that were true, then she should also not have followed 209A §5A ¶¶1 and 3. That section, too, was written for arresting officers.Arbitrary compliance with the rules, arbitrary enforcement, arbitrary decisions. Those are the inconsistent consequences of official municipal policy and with them, due process and equal protection disappear.
- The City of Boston is not entitled to the dismissal of Smith’s allegations of intentional torts as it can be held liable for intentional torts committed by its employees because M.G.L. c. 258 is unconstitutional. Also, c. 258 does not apply to civil rights violations by its employees.
The Commonwealth and its political subdivisions are persons for all purposes. Massachusetts General Law c. 4 §7, which provides the meaning to be given to words when construing statutes, defines "person" as "corporations, societies, associations and partnerships." Given that the Commonwealth is, according to the Preamble of the Constitution, an association, the Commonwealth is, under G.L. c.4 §7, a "person." Given that the City of Boston is a municipal corporation, the City of Boston, too, is a "person."When the Preamble is coupled with G.L. c. 4, §7, the inescapable conclusion is that the Commonwealth is a "person" for all purposes.\9/ And all persons – including magistrates and officers of all three branches of the Commonwealth -- must be accountable to all the people all the time. Art. V, Mass. Declaration of Rights, as ratified in 1780.
FN9 This is the danger encountered more often than not when the courts create "legal fictions." Legal fictions breed inequities: they are arbitrary, despite "sweet-talking" rationales. Nevertheless, so long as they exist, the Commonwealth may not be excluded from the legal fictions solely for the purpose of defeating plaintiffs’ claims for redressing of ills committed by the government by those working for it. Government must be accountable to the people.Virtually simultaneously with the enactment of the federal Civil Rights Act in 1871, one hundred years after the ratification of the Mass. Declaration of Rights, the United States Congress expressed its manifest intent to consider the sovereign a "person": the States themselves, as bodies corporate and politic, should be embraced by the term "person" in sec. 1 of that Act. Quern v. Jordan, 440 U.S. 332, 355-357 (1979) (Brennan, J., with whom Marshall, J. joined, Concurring).\10/,\11/FN10Between the Civil War and the enactment of the Massachusetts Tort Claims Act ["MTCA"] "[in 1978,] the Commonwealth's common law sovereign immunity had been abrogated for nearly one century as to certain claims." Irwin v. Commissioner of Dept. of Youth Services, 388 Mass. 810, 813 (1983).Monell [436 U.S. 658 (1978)] held that "[s]ince there is nothing in the 'context' of the Civil Rights Act [of 1871] calling for a restricted interpretation of the word 'person,' the language of that section should prima facie be construed to include 'bodies politic' among the entities that could be sued." [Cites omitted.] Even the Court's opinion today does not dispute the fact that in 1871 the phrase "bodies politic and corporate" would certainly have referred to the States. [Cites omitted.] Penhallow v. Doane's Administrators, 3 Dall. 54, 92-93 [1 L.Ed. 507] (1795) (Iredell, J.); Mass. Const., Preamble. Indeed, during the very debates surrounding the enactment of the Civil Rights Act, States were referred to as bodies politic and corporate. See, e. g., Cong. Globe, 42d Cong., 1st Sess., 661-662 (1871) (hereinafter Globe) (Sen. Vickers) ("What is a State? Is it not a body politic and corporate?"); cf.id., at 696 (Sen. Edmunds). Thus the expressed intent of Congress, manifested virtually simultaneously with the enactment of the Civil Rights Act of 1871, was that the States themselves, as bodies corporate and politic, should be embraced by the term "person" in sec. 1 of that Act.
Quern, at 355-357. (Monell is, of course, the "seminal" case allowing municipal liability under §1983, and the court in Quern was tracing the history of the confluence of Eleventh Amendment immunity and §1983.)
[The Court in Alabama v. Pugh, 438 U.S. 781 (1978)] were thus necessarily without the benefit of Monell's major re-evaluation of the legislative history of sec. 1983. Respondents did not even raise the possibility that Alabama might be a "person" for purposes of sec. 1983. Since the issue is not, as the Court now phrases it, whether the Members of this Court were then aware of Monell, ante, at 1145 n. 9, but rather whether they had before them briefs and arguments detailing the implications of Monell for the question of whether a State is a "person" for purposes of sec. 1983, it is not anomalous that the Court's opinion in Pugh failed to address or consider this issue.
Quern, at 352-354 (Brennan, J, Concurring).
Thus, the Court today decides a question of major significance without ever having had the assistance of a considered presentation of the issue, either in briefs or in arguments. The result is pure judicial fiat. . . . This fiat is particularly disturbing because it is most likely incorrect.
Id, at 354, 99 S.Ct. at 1152. Smith’s counsel, not unexpectedly, agrees with Justice Brennan on this and other issues.
FN11 The Commonwealth, the "body-politic," the "person," is also implicitly included in article XI of the Declaration of Rights. Article XI of the Massachusetts Declaration of Rights provides:Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. . . . During the decade prior to Irwin, the issue whether the Commonwealth should continue to claim it sovereign immunity had come to a head. As a result, the Massachusetts Supreme Judicial Court reviewed, in Irwin, supra, in excruciating detail, the history of the Tort Claims Act after two "significant decisions of [that] court." Id. at 816. Those decisions were, in 1973, Morash & Sons, Inc. v. Com., 363 Mass. 612, and four years later, Whitney v. Worcester, 373 Mass. 208 (1977).
In Whitney, the Court announced its intention to abrogate the sovereign immunity doctrine, retroactively to the date of the decision in Morash, should the Legislature have failed to act by the conclusion of its 1978 session. Whitney. So the Legislature effected some loosening of sovereign immunity in the Commonwealth.
In 1986, the SJC declared, "[T]he doctrine of sovereign immunity is 'logically indefensible.'" Hallett v. Town of Wrentham, 398 Mass. 550, 558 (1986), quoting Morash at 618-619. "[W]e stress that abrogation of governmental immunity need not necessarily mean that governmental entities would be liable for all harm which results from the conduct of their activities." Whitney, at 212.\12/
FN12From the fifteenth-century English common law to Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), and beyond, courts have never held that prohibited conduct can be shielded by sovereign immunity. That rule makes good sense -- since a principal cannot authorize unlawful conduct, such conduct is of necessity ultra vires. There is no reason to abandon such a well-settled and sensible rule.
Pennhurst State School and Hospital et al v. Halderman et al, 465 U.S. 89, 166 n. 51 (1984) (Stevens, Dissent).
In Bain v. Springfield, 424 Mass. 758 (1997), the SJC held that the antidiscrimination statute waived the Commonwealth's sovereign immunity and that of its political subdivisions by including them in the statutory definition of persons and employers subject to the statute. In that same case, the Commonwealth and its subdivisions were also held liable for punitive damages. Id. at 762-763.
As of 2003, the SJC excluded civil rights from the MTCA. Cf . Triplett v. Town of Oxford, 439 Mass. 720, 726 (2003) (MTCA immunized public employees against personal negligence suits [G.L. c. 258, § 2], but provided public employers with the discretion to indemnify public employees for financial loss and expenses arising from intentional torts and civil rights violations. Simply put from another perspective, maybe the Commonwealth will help out with satisfying a money judgment, but each public employee is accountable for his or her own actions. This is what article V of the Massachusetts Declaration of Rights has mandated since 1780.\13/ To hold that Boston has immunity from intentional torts would perpetuate an inconsistent, if not unsustainable, legal fiction that it is not a "person" for all purposes. It is a government for the people, by the people, for the people. A corporation whose veil may be pierced. Immunity was a concept unconsidered at Massachusetts’ first Constitutional Convention.
FN13 Article V of the Massachusetts Declaration of Rights guarantees that the three branches of government be accountable to the people, of whom Smith is one
All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.
Constitution of the Commonwealth of Massachusetts, Part the First, art. V, ratified on 16 June 1780, a little more than fourteen years before the first 10 amendments to the U.S. Constitution were ratified by Massachusetts and thirteen years before the decision in Chisholm, infra. Several colonial charters, including those of Massachusetts, ... expressly specified that the corporation body established thereunder could sue and be sued.... If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that Colonies as such enjoyed any immunity from suit.Never has article V been amended. Never has Massachusetts' article V been repealed. Never has the word "accountable" as used in article V been interpreted by a Massachusetts court. Not even in the impressive account of the history of sovereign immunity set out in Irwin v. Comm'r of Dept.of Youth Services, 388 Mass. 810, (1983) was article V cited.
Never has the Massachusetts Supreme Judicial Court analyzed the confluence of article V and the Eleventh Amendment to the United States Constitution. Never has the impact of the Eleventh Amendment of the United States Constitution on article V been considered and determined by a Massachusetts court.
Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2271 (1999). This comports with the notion that every Massachusetts subject "ought to find a certain remedy, by having recourse to the laws." Mass. Const., Art. XI (1780).. . . There is also the postulate that States of the Union, . . . shall be immune from suits, without their consent, save where there has been "a surrender of this immunity in the plan of the convention." 292 U.S., at 322-323, 54 S.Ct. 745 (quoting The Federalist No. 81) (footnote omitted).
Alden, 119 S.Ct. at 2254 (emphasis supplied).That surrender and consent to suit by its citizens was the plan of the Massachusetts convention.\14/See also Federalist Paper No. 80 ( McLean's ed., June 21, 1788, New York) (Hamilton). With accountability having been mandated at the convention, any claim today by Massachusetts or its branches of government to sovereign or absolute or judicial immunity is misleading, if not unlawful.\15/
FN14 John Adams, one of a committee of 30, drafted "‘a Declaration of Rights, and the Form of a Constitution,’ to be laid before the Convention at its second session (Mass. Constitutional Convention, 1779-1780), Jour., p. 26)." The adopted instrument "is still in force today as the organic law of the Commonwealth of Massachusetts." L. H. Butterfield, ed., The Adams Paper: Diary and Autobiography of John Adams, vol. 2, p. 401 n. 1 (Cambridge, Mass. Belknap Press of Harvard University, 1962).To waive that constitutional mandate for accountability in Massachusetts, the procedures for an initiative petition, described in Article LXXIV of the Articles of Amendment to the Massachusetts Constitution, must be followed.\16/FN15 The MTCA, G.L. c. 258, enacted in 1978, implies that sovereign immunity exists in Massachusetts with certain exceptions set out in that statute -- meaning that the Commonwealth has agreed to waive its sovereign immunity and consent to be sued for certain causes of action. That the MTCA violates article V -- and has yet to be deemed unconstitutional -- appears to have escaped challenge. For the MTCA to be "constitutional," article V would have had to be repealed or amended before the MTCA was passed.
FN16 Article LXXIV was ratified by the voters in 1944.Those procedures have never been invoked vis-à-vis article V, leaving in effect the unequivocal mandate by the forefathers of Massachusetts memorialized in article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts: to wit, the mandate that all three branches of government at all times must be accountable to the people. Thus the State's waiver of the ancient common-law doctrine of sovereign immunity has long been effectuated.To treat the Commonwealth’s political subdivisions differently from the Commonwealth itself would be legally indefensible.
- Where the jury would have to find James liable before the indemnity by the City of Boston would kick in, dismissing Smith’s common-law tort claims against Defendant James in her official capacity is inappropriate.
As to his common-law tort claims, Smith does not dispute that James is indemnified under G.L. c. 258, by the City of Boston for any negligent conduct. She was and is an agent of the City. Medeiros v. Middlesex Ins. Co., 48 Mass.App.Ct. 51, 55 (1999), citing Gangl v. Ford Motor Credit Co., 37 Mass.App.Ct. 561, 563 (1994): "a judgment holding an agent or servant not negligent 'compels a similar finding, as matter of law, for the principle or master.'" An agent is a proper party. An agent's acts bind the principal. The jury would have to find James in her official capacity liable, before the indemnity by the City of Boston would kick in. Gangl, at 563-564. Respondeat superior is at work here, where it was not in the §1983 claims. The jury would have to find James in her individual capacity liable, before the the City of Boston would have to use its discretion to help her satisfy any judgment. Thus, dismissing James in her official capacity is inappropriate.Whether municipal immunity is appropriate or inappropriate, respondeat superior is applicable to Smiths’s claims for intentional torts.
WHEREFORE, Plaintiff prays the Motion to Dismiss by the City of Boston be denied.
Respectfully submitted,
18 December 2003 __________________________
John Smith,
By his attorney,
Barbara C. Johnson, Esq.,
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833AFFIDAVIT
I, Barbara C. Johnson, Esq., hereby depose that all statements and observations I attribute to myself saying or observing are true, and all other statements are true upon information and belief.
Sworn under the pains and penalties of perjury.
_________________________________
19 December 2003 Barbara C. Johnson, Esq.,
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was served upon each party appearing pro se and the attorney of record for each other party by mail/in hand on 19 December 2003.
_________________________________
19 December 2003 Barbara C. Johnson, Esq.,
