Plaintiff’s Opposition to City of Boston’s Motion for Reconsideration (#77)  of Memorandum and Order of September 2004 Denying  City of Boston’s Motion to Dismiss (#23) Read about  o Domestic Violence Guidelines o municipal liability o custom and policy deliberate indifference o  single incidence or "obviousness" o arrest-preferred policy o full faith and credit for out-of-state restraining order (in both .html and .pdf files) The .pdf file (19 pages) is on  top. It is prettier. (Go have a cup of coffee while it loads.) The .html is below the .pdf file. It is searchable. (No waiting necessary.)

 
 

 

 
 
 

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MASSACHUSETTS CIVIL ACTION: 03-CV-11895-MLW François Gouin, Jr. Plaintiff v. Dori C. Gouin, Esq., a/k/a Dori Faith Chadbourne, 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 TO CITY OF BOSTON'S  MOTION FOR RECONSIDERATION (#77) OF MEMORANDUM AND ORDER OF SEPTEMBER 2004 DENYING CITY OF BOSTON’S MOTION TO DISMISS (#23)

 

Now comes Plaintiff François Gouin ["Gouin"] of Massachusetts and opposes City of Boston’s Motion for Reconsideration of Memorandum and Order of September 2004 denying City of Boston’s Motion to Dismiss (#23). A supporting affidavit accompanies this pleading, above the certification of service at the bottom of this document. As grounds for opposing City of Boston’s Motion for Reconsideration, Gouin states in general terms that the issues raised by the City in its memorandum (Paper #24) do not accurately state either the law or the facts. In a nutshell, the City of Boston puts a spin on both. First, the City of Boston is directly liable, as Gouin contends, for the injuries he has suffered as a result of constitutional deprivations because there is a causal connection or an affirmative link between the City’s conduct and his constitutional deprivations.\1/ For example, the City has an official policy\2/ (e.g., Boston Police Department rules and regulations) or a custom (e.g., the failure to monitor the performance of its employees) , the policy or custom was the "causal connection" or "affirmative link" between the offending conduct and the constitutional deprivation, or the "moving force" behind the constitutional deprivation,\3/ and the City’s training program was inadequate; for instance, the City, by its deliberate indifference or reckless disregard for the rights of Gouin, failed to train, prevent, or monitor Defendant Detective Susan James.\4/ That failure to train its employees is deemed an official "policy" [City of Canton, in the margin at note 3] or failure to monitor its employees, a "custom" [Bordanaro, at note 4]. FACTS RELEVANT TO GOUIN’S OPPOSITION Since 1991, governors of the Commonwealth have caused to be published a set of Domestic Violence Guidelines\5/and a Domestic Violence Handbook. Municipalities throughout Massachusetts have chosen to obey those guidelines despite the guidelines’ transgression of safeguards, constitutions, and established law. For example, those volumes (1) set forth an arrest-preferred policy that disregards all traditional bases for arrest,\6/(2) encourage prosecution even where there is no mens rea,\7/ and (3) require for prosecution no act whatsoever by the defendant, who is customarily a male. When the municipal police departments choose to arrest or prosecute under Massachusetts General Law chapter 209A, the domestic violence statute, which is, for all intents and purposes, a companion of the Guidelines and Handbook, the municipal police departments and/or the municipalities receive money bonuses from the federal government. These annual bonuses are the incentives for police departments and municipalities to prosecute approximately 50,000 restraining orders annually statewide pursuant to c. 209A. The City generates its own binder-filling Boston Police Department Rules and Procedures, which makes mention of the Boston Police Domestic Violence Unit of the Bureau of Investigative Services but both fails to describe that unit’s mandatory or discretionary tasks and fails to provide job descriptions for the members of that unit. Its operating procedures are secret, likely because very little that the unit does is done within the bounds of acceptable, i.e., lawful or constitutional, procedure.See Exh. A, attached hereto. The unit is a cash cow, or cash center, for the BPD. At the relevant times of the complaint in this action, Lt. Det. Margot Hill ["Hill"] was the Commander, or "chief" of that unit.\8/ Defendant Detective Susan James ["James"] had been appointed a member of that unit and was rotating from one Area police station to another within Boston. The Guidelines, Handbook, and BPD Rules are the standards by which she works: the bibles of her profession. That the facts show clearly that James violated the BPD rules demonstrates that the City failed to train her adequately. The BPD rules also explicitly require James’s supervisor to monitor her applications for complaints as well as other writings. That the supervisor failed to note that the basis of James’s application against Gouin was that his then-wife, Defendant Dori Chadbourne Gouin ["Chadbourne"], wanted the criminal complaint to issue [see Table 1, pp. 7-8, infra], that failure demonstrated that James’s supervisor (1) failed to monitor James’s work as prescribed by the BPD rules or (2) negligently or intentionally did not follow the BPD rules or (3) was inadequately trained by the City (or State police academy) for his or her work. See City Oklahoma City v. Tuttle, 471 U.S. 808 (1985). These are all questions that might be answered after the production of documents and responses to interrogatories from the City are received, or only by the jury after evidence is taken. Second, Gouin challenges the issues raised by the City of Boston by arguing the following in roughly the order in which the City of Boston argued the issue in its brief: City of Boston’s recitation of the facts of the complained-of events is inaccurate.   The abundant evidence of James’s incompetence and violation of rules followed by the Boston Police Department is clearly sufficient to prove a claim for municipal liability [see Compl. ¶¶52-57]. A. Where the injury claimed by Gouin was inflicted as a result of a policy or custom or the deliberate indifference of the City conduct, municipal liability attached [City/Boston Mem (Paper #24) at 7]. That deliberate indifference was the "moving force" behind Gouin’s injury caused by the constitutional violation alleged and §1983 attached [contra  City/Boston Mem at 8]. The anti-men policies in the Domestic Violence Guidelines and Handbook, followed by Boston’s police department and forming the basis of "unconstitutional custom" and/or official policy, are sufficient to support a single incidence of misconduct [contra City/Boston Mem at 8-9].   The City of Boston errs by relying on §5A of c. 209A [City/Boston Mem at 11].   The doctrine of respondeat superior applies to Gouin’s §1983 claims where the supervisors’ conduct or inaction amounted to a reckless or callous indifference to Gouin’s constitutional rights. In Count 3, the City alone is sued for its own actions.   Notwithstanding the Mass. Torts Claims Act, the City of Boston is not entitled to dismissal for intentional torts committed by Defendant Detective James. Those torts are malicious prosecution (count 4), abuse of process (count 5), conspiracy (count 6), James can be liable for intentional infliction of emotional distress (count 7), for the doctrine of respondeat superior applies to Gouin’s common-law or pendent claims. NOTE Gouin incorporates herein by reference his objections to the Reports and Recommendations made by this court regarding the defendants and his six memoranda in opposition to the six motions to dismiss. 1.   City of Boston’s recitation of the facts of the complained-of events is inaccurate. The City repeatedly states that James filed the Application for Complaint on 17 May 2002. That inaccuracy began in ¶35 of the Complaint, where Gouin’s counsel used the word "filed," but counsel also clearly referred to Complaint Exhibits P and Q, the Application for Complaint and the

 

Exh. P, Application for Complaint Exh. Q, Modified Application for Complaint

 

modified application, respectively, upon which Gouin was relying and which are the best evidence of where the truth lies. See the figure for excerpts of two relevant sections of those exhibits. Upon close inspection of the enlarged excerpts, Gouin contends that we still cannot tell when the date "5/17/02" was written. We also cannot tell when "6/15/02" was written. That date might also be 6/10/02." Gouin does know that he visited James at the Area A-1 police station within a week or so after the event on 5/13/02 and that no application for a criminal complaint had yet been filed. Complaint Exhibit P(1 of 3) shows (a) that a "Sgt. H.D." allegedly signed page 1 of the three-page Compl.Exh. P on 6/10/02; if 6/10/02 is accurate, then the inserted date "6/15/02" in the field "Date of Application" is INaccurate, regardless of whether written by accident or intention, (b) that the court received the application on "2002 Jun 14," (c) that the very fuzzy numeral "5" which appears to be correcting the "Date of Application" on page 2 of Complaint Exhibit P might be "0," making the revised Date of Application "6/10/02," and (d) that the court hearing was scheduled for "7/15/02." Complaint Exhibit Q(1 of 3) shows (a) that a "Sgt. H.D." allegedly signed page 1 of the three-page Compl.Exh.Q on 7/12/02, (b) that the court received the application on "2002 Jul 16," and (c) that the court hearing was scheduled for "7/22/02." It is therefore reasonable to conclude that the Application for Criminal Complaint had not been filed either on 17 May 2002 or by the time Gouin and his counsel visited James at the Area A-1 police station and told her the details described in Compl. at ¶41: Gouin told Detective James (a) that a judge in the Suffolk Division of the Probate & Family Court ordered Gouin to make available the condominium for inspection by a real estate appraiser on 13 May 2002. (b) that the Massachusetts court gave Dori a choice to attend the appraisal if she so chose, (c).that Dori gave him no notice that she would attend, (d) that Dori’s purpose was to try to entrap Gouin into having contact with her outside of the court, (e) that Dori had levied false charges against him on 5 January 2001, and (f) that he brought suit in federal court against the BPD officers as well as Dori and the other defendants. Therefore James had "full knowledge and documentary and statutory evidence of the truth of Gouin’s defenses before James filed the Application for Criminal Complaint in court.   2.  The abundant evidence of James’s incompetence and violation of rules followed by the      Boston Police Department is clearly sufficient to prove a claim for municipal liability      [see Compl. ¶¶52-57]. The overwhelming evidence throughout James’s memorandum (#22) in support of her Motion to Dismiss and in Complaint Exhibit O is her admission that she wrote the Application solely because Chadbourne wanted her to do so. See Exh. O (p. 1 of 3) and the following statements from James’s memorandum in support of her Motion to Dismiss:

 

TABLE 1. SUSAN/SUZANNE JAMES’S ADMISSIONS
The facts of this case clearly support that Defendant James acted in an objectively reasonable manner when she completed a criminal complaint on behalf of Defendant Chadbourne, who was located in Maine, and who complained of violation of a restraining order against the Plaintiff.	James’s Memorandum in Support of Motion to Dismiss (Paper #22), page 7, ¶ 2
Defendant Chadbourne, who was residing in Maine, informed Defendant James that she wanted to bring a complaint against the Plaintiff for violation of the restraining order.	James’s Mem. for M/Dism., page 7, ¶ 2
Here, the action of Detective James in signing the application on Defendant Chadbourne’s behalf was objectively reasonable under the circumstances.	James’s Mem. for M/Dism., page 8, ¶ 2
. . . that Defendant Chadbourne informed Defendant James that she wanted to file a complaint against the Plaintiff for violation of the restraining order would give Defendant James probably cause to bring criminal charges against the Plaintiff.	James’s Mem. for M/Dism., page 11, ¶ 2
What is clear is that Defendant James completed a criminal application on behalf of Defendant Chadbourne, at Defendant Chadbourne’s request, who claimed that the Plaintiff violated a restraining order, and that Defendant James acted properly in doing so, based upon the incident report completed by the responding offices, as well as the information she obtained independently from Defendant Chadbourne.	James’s Mem. for M/Dism., page 13, ¶ 1
The facts demonstrate that Defendant James’ actions in completing a criminal complaint on behalf of Defendant Chadbourne, who informed Defendant James that the Plaintiff had violated a restraining order and that she wanted to file a complaint against the Plaintiff, fail to rise to the level . . .	James’s Mem. for M/Dism.,page 16, ¶ 4
. . . Defendant James actions in completing a criminal complaint on behalf of a victim in Maine cannot be said to be outrageous, and beyond all possible bounds of decency, especially when Defendant James was authorized and empowered to "use every reasonable means to enforce such abuse protection orders", . . .  Note: By declaring Chadbourne a victim both without proof and before determining Gouin’s guilt or innocence of the charge by trial, James showed her bias for the female Chadbourne and her prejudice against the male Gouin	James’s Mem. for M/Dism.,page 17, ¶ 2.

 
 

James absolutely brought the application for a criminal complaint based on nothing that Gouin did. As noted in the margin at note 8, supra, on p. 4, James is but one of many activists who "perpetuate false information, waste money and urge vulnerable women to mistrust all men." Unfortunately, James had been put by Boston’s police department in a position by which she was "empowered" – as she said on page 17 of her motion – to wreak havoc on the lives of innocent men such as Gouin and force them to fight false charges of criminal wrongdoing. A. Where the injury claimed by Gouin was inflicted as a result of a policy or custom or the deliberate indifference of the City conduct, municipal liability attached [contra City/Boston Mem at 7]. That deliberate indifference was the "moving force" behind Gouin’s injury caused by the constitutional violation alleged [contra City/Boston Mem at 8]. The amount of supervision of James by her immediate supervisor, by the BPD officer assigned to the BMC, by DV Commander Margot Hill is as yet unknown, although clearly they allowed James’s application to go forward absent probable cause, i.e., based solely on Chadbourne’s wishes. Such gross negligence has been deemed a "deficient custom or policy" amounting to "deliberate indifference to the constitutional rights of those with whom the police would come into contact. Bordanaro, 1989.C01.40505 at ¶60 <http://www.versuslaw.com>. When James’s supervisors failed to act, their "deliberate indifference" was "such a shortcoming [that it can] be properly thought of as a city ‘policy or custom’ that is actionable under §1983." City of Canton, 489 U.S. at 389; Monell, 436 U.S. at 691. When "the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need . . . the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury." City of Canton, 489 U.S. at 390. When James’ supervisors failed to act, their "deliberate indifference" was the "moving force" behind Gouin’s injury. Bordanaro, 1989.C01.40505 at ¶55. See also Miller v. Kennebec County, 219 F.3d 8 (1st Cir. 2000). [W]here municipal policymakers are confronted with an obvious need to train city personnel to avoid the violation of constitutional rights and they are deliberately indifferent to that need, the lack of necessary training may be appropriately considered a city "policy" subjecting the city itself to liability under our decision in Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). City of Canton, 489 U.S. at 393 (Justice O’Connor, with whom Justice Scalia and Justice Kennedy joined, concurring with the majority for the above proposition). See also Parker v. Town of Swansea, 270 F.Supp.2d 92 (D.Mass. 2003) (Dein, M.J.), for the proposition that the failure to train municipal employees amounts to deliberate indifference to the rights of plaintiffs with whom the police came into contact. ContraCity/Boston Mem. at 10. Where the supervisors of City of Boston’s police department chose not to act when they should have, their deliberate or conscious choice may be deemed a municipal policy.\9/ In order for municipal liability to attach under § 1983, the city must be the "moving force" behind the injury alleged. Id. A municipal action qualifies as a policy if it is undertaken with "deliberate or conscious choice." Santiago v. Fenton, 891 F.2d 373, 381 (1st Cir. 1989) (quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)). "‘[M]unicipal liability under § 1983 attaches where -- and only where -- a deliberate choice to follow a course of action is made from among various alternatives’ by city policymakers." Harris, 489 U.S. at 389 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84 (1986)). Lewis v. City of Boston, No. CIV.A.00-11548 (D.Mass. 3/29/2002) (Woodlock, J.) slip op. at 9. "The plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights." Bd. of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997). "his requirement is satisfied if "a particular municipal action itself violates federal law, or directs an employee to do so...." Id. (emphasis in original). Lewis v. City of Boston, slip op. at 10. Thus liability under §1983 can be imposed on the City of Boston here, where Boston’s policy or custom is responsible for causing the constitutional violation or injury to Gouin. See Monell v. Dep't of Soc. Servs., 436 U.S. at 690-691. Kelley v. LaForce, at ¶37 (same). The anti-men policies in the Domestic Violence Guidelines and Handbook, followed by the City’s police department and forming the basis of "unconstitutional custom" and/or official policy, are sufficient to support a single incidence of misconduct [contra City/Boston Mem at 8-9]. \10/ The City of Boston raises for the first time in its Motion for Reconsideration of Judge Wolf’s order the issue of whether a single incident of misconduct can provide the basis for municipal liability under §1983 [City/Boston Mem. at 8-9]. To assert that proposition, the City argues that Gouin has presented no evidence of an unconstitutional municipal policy. Gouin disagrees. . . . a government frequently chooses a course of action tailored to a particular situation and not intended to control decisions in later situations. If the decision to adopt that particular course of action is properly made by that government's authorized decisionmakers, it surely represents an act of official government "policy" as that term is commonly understood.*fn9 More importantly, where action is directed by those who establish governmental policy, the municipality is equally responsible whether that action is to be taken only once or to be taken repeatedly. To deny compensation to the victim would therefore be contrary to the fundamental purpose of §1983.                                                     fn9 Webster's defines the word as "a specific decision or set of decisions designed to carry out such a chosen course of action." Webster's Third New International Dictionary 1754 (1981). Similarly, the Oxford English Dictionary defines "policy" as "[a] course of action adopted and pursued by a government, party, ruler, statesman, etc.; any course of action adopted as advantageous or expedient." VII Oxford English Dictionary 1071 (1933). Pembaur v. City Cincinnati, 475 U.S. 469, 480, 480 n. 9 (1986) (citations to Monell, Owen and Newport omitted). The focus on a rule of general applicability does not mean that more than one instance of its application is required. The local government unit may be liable for the first application of a duly constituted unconstitutional policy. Pembaur, at 478 n. 6. A §1983 cause of action is as available for the first victim of a policy or custom that would foreseeably and avoidably cause an individual to be subjected to deprivation of a constitutional right as it is for the second and subsequent victims; by exposing a municipal defendant to liability on the occurrence of the first incident, it is hoped that future incidents will not occur. Oklahoma City v. Tuttle, 471 U.S. 808, 832 (1985) (Justice Brennan, with whom Justice Marshall and Justice Blackmun join, concurring in part and concurring in the judgment) Section 1983 also refers to deprivations under color of a state "custom or usage," and the Court in Monell noted accordingly that "local governments, like every other §1983 ‘person,’ . . . may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body's official decisionmaking channels." 436 U.S., at 690-691. Pembaur, at 481 n.10. Unformalized custom and/or official policy: In the instant action, each and every day for more than a decade, the City of Boston police department’s domestic violence unit, to which Defendant Det. James is attached, has been under the order of the executive branch of government to act in accordance with the Domestic Violence Guidelines and Handbook. "[L]aw enforcement agencies shall adopt this policy or establish and implement specific operational guidelines consistent with the provisions of this policy." James P. Jajuga, Secretary of Public Safety, Guidelines (2002) p. 5. Gouin hopes to learn during the discovery process of the DV unit’s policies, practices, and procedures and of any written material that commemorates the DV unit’s adherence to the policy or course of action set out in the Domestic Violence Guidelines and Handbook publications. Clearly because of the word "guidelines" in its title, the volume appears on the surface to contain unformalized "custom," but, in actuality, it unquestionably contains official governmental policy. Despite all the support in the common law that "[g]overnment policy or custom . . . may be established by ‘a single decision by municipal policymakers under appropriate circumstances’" [Pembaur, 475 U.S. at 480 (emphasis supplied)], the City clings in error to the notion that the municipality may be held liable under §1983 only where a municipal policymaker directs the action depriving Plaintiff of his constitutional rights [C/B Mem. at 9]. Single incidence or "Obviousness": It is also acceptable to find direct municipal liability for only a single incident of misconduct in a circumstance when the misconduct is obvious to the policymakers of the City. Board of the County Commissioners of Bryan County, Oklahoma v. Brown, No. 95-1100, 1997.SCT.0000039 at ¶40 <http://www.versuslaw.com> (U.S. 4/28/1997). The rationale behind this proposition is that the "obviousness" would "substitute for the pattern of injuries ordinarily necessary to establish municipal culpability and causation." Id. Here, James’s supervisors in the Area-A1 police station, Sgt. "H.D.," who was the BPD’s man assigned to the BMC for the very purpose of checking applications for criminal complaints, and any other supervisors between those supervisors and Margot Hill, failed to act and intercede with James’s application. Given that James’s application was so obviously deficient, the failure of the supervisors who needed to act rose to "deliberate indifference." Id. at ¶59. Where the "single act amount[ed] to deliberate indifference to a substantial risk that a violation of federal law would result" [id. at ¶53] and through its deliberate conduct of failing act when it should have acted, the City became the "moving force" behind Gouin’s injury. " [id. at ¶32] Where Gouin has shown that the City’s action was taken with the requisite degree of culpability and was the direct causal link between the City’s action and the deprivation of federal rights of Gouin, direct municipal direct liability attached. Id. Need or No Need for Decisionmaker: Whether Gouin must identify a decisionmaker in order to "demonstrate the existence of a policy causing the constitutional violation," as Boston contends on pages 8-9 of its Motion to Reconsider, is unsettled in the law.\11/ For instance, under Boulais, a case cited by the City of Boston [City/Boston Mem at 7], there was no discussion of a requirement of the involvement of a decisionmaker. Boulais, instead, held that "[a] municipality can be liable under §1983 for a policy or custom that causes a constitutional violation."\12/ And although there was discussion regarding the involvement of a decisionmaker in Jonielunas\13/ -- also cited by the City in its motion to reconsider (Paper #77) at pages 7 and 12 -- the issue of whether certain conduct is a policy or custom became a question for the jury. Id., at 7. The City of Boston errs by relying on §5A of c. 209A. [See C/B Mem at 11]. The City relies upon a unique interpretation of M.G.L. c. 209A §5A,\14/ which has not yet been interpreted by the Massachusetts court, making this a case of first impression.\15/ To reach its interpretation, the City throws out one-third of the statute; that is, of the three paragraphs composing the statute, the City throws out the second and then asserts that Gouin was properly charged with violating here in Massachusetts a restraining order issued in Maine. Gouin contends that the Commonwealth may not give, in accordance with ¶1 of G.L. c. 209A, §5A, full faith and credit to the Maine order because by 13 May 2002 that order had not been filed in any court in Massachusetts with or without the affidavit required of Dori by ¶2 of c. 209A, §5A.\16/ Further, ¶1 is clearly to be used by arresting officers in usually exigent circumstances. Those exigent circumstances did not exist for the detective, who did not come into the case until after the "reported event" had concluded. Clearly, again, where there are no exigent circumstances, ¶1 is not mutually exclusive of ¶2. There would be no purpose of including ¶2, if ¶1 were not dependent upon it. Thus, ¶1 is triggered only if the procedure in ¶2 has been followed. Here, where ¶2 was not followed, ¶1 may not and cannot apply. Significantly, the Handbook, at pp. 19-20 [see Fig. 3, Gouin’s Opp. to City’s Mot. to Dism. (Paper #32)], 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 [Opp. 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 be 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, a suspect’s rights to constitutional equal protection. In fact, §5A is unconstitutional because it does not require that notice be given to the accused. An example appears in the margin at note 2 of Gouin’s Opposition to the City of Boston’s Motion to Dismiss (Paper #32). Gouin and his counsel have good reason to believe that one or more of James’s supervisors and/or agents of the City of Boston told James to bring the Application for Complaint forward because it would be helpful in Gouin I if Gouin were found guilty of violating the Maine order. The City and its Police Department could do this if they ignored the second paragraph of §5A and then charged Gouin with violating chapter 209A, §7 (through which §5A claims are prosecuted). Given that a "209A" charge – which requires no mens rea and has no safeguards against entrapment by an alleged victim -- are treacherous to even the most innocent of defendants, it must have appeared to the BPD and the City that a "Guilty" verdict would be a shoo-in. It would have been, had Gouin not vigorously fought for 1+ anxious years in the BMC, the Mass. Appeals Court, and the BMC again before the second criminal case against him was dismissed.   The doctrine of respondeat superior applies to Gouin’s §1983 claims where the supervisors’ conduct or inaction amounted to a reckless or callous indifference to Gouin’s constitutional rights. In Count 3, the City alone is sued for its own actions. A supervisor may be liable under §1983 if his "conduct or inaction amounted to a reckless or callous indifference to the constitutional rights of others." Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 48 (1st Cir.1999), quoting Gutierrez-Rodriguez v. Cartagena, supra at 562. "An official displays such reckless or callous indifference when it would be manifest to any reasonable official that his conduct was very likely to violate an individual's constitutional rights." Germany v. Vance, 868 F.2d 9, 18 (1st Cir.1989). . . . "Indifference that rises to the level of being deliberate, reckless, or callous suffices to establish [supervisory] liability under §1983." Febus-Rodriguez v. Betancourt-Lebron, supra at 92 n. 4, quoting Gutierrez-Rodriguez v. Cartagena, supra. Clancy v. McCabe, 441 Mass. 311, 318, 805 N.E.2d 484, 490-491 (2004). . . . the Monell Court stated that §1983 authorizes suit "for constitutional deprivations visited pursuant to governmental 'custom' even though such a custom ha[d] not received formal approval through the body's official decisionmaking channels." of [Monell v. DSS of the City of N.Y., 436 U.S. 658,] 690-691 [(1978)]. Smith v. City of Boston, 413 Mass. 607, 610-611, 602 N.E.2d 198, 200 (1992). . . . The Monell Court stated that a municipality could be held liable only when its "lawmakers or those whose edicts or acts may fairly be said to represent official policy" cause the constitutional harm. Id. at 694. . . . Following Monell, the Supreme Court set out to clarify the circumstances under which an act or acts of a government official represent official policy. [Internal cites omitted.] In Pembaur v. Cincinnati, 475 U.S. 469, 480(1986), a plurality of the Court stated that "municipal liability may be imposed for a single decision by [a] municipal policymaker[ ] under appropriate circumstances." . . . Smith, 413 Mass. at 611, 602 N.E.2d at 200. In St. Louis v. Praprotnik, 485 U.S. 112, 127 1988), the Court stated: "When an official's discretionary decisions are constrained by policies not of that official's making, those policies, rather than the subordinate's departures from them, are the act of the municipality.... If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality...." Smith, 413 Mass. at 612, 602 N.E.2d at 200. 6. Notwithstanding the Mass. Torts Claims Act, the City of Boston is not entitled to dismissal for intentional torts committed by Defendant Detective James. Those torts are malicious prosecution (count 4), abuse of process (count 5), conspiracy (count 6), James can be liable for intentional infliction of emotional distress (count 7), for the doctrine of respondeat superior applies to Gouin’s common-law or pendent claims. Article V of the Massachusetts Declaration of Rights explicitly guarantees that all magistrates and officers of the three branches of government be accountable at all times to all the people, of whom Gouin is one.\17/ The article constitutes the state’s express and unequivocal consent to suit by the people. It does not distinguish between the Commonwealth of Massachusetts or the individuals in their individual or official capacities: 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. 5, ratified on 16 June 1780,\18/ 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. 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, 448 N.E.2d 721 (1983) was article V cited. Between 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, 388 Mass. at 813, 448 N.E.2d at 724. During the previous decade, the issue whether the Commonwealth should continue to claim sovereign immunity had come to a head. As a result, the Supreme Judicial Court of Massachusetts 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. 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. 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 Mass. Torts Claim Act. 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. In sum, where Gouin is one of the people to whom Article V guarantees accountability by all three branches of government, there is no basis for giving more protection to those citizens who suffered from the negligence of public employees than that given to citizens such as Gouin who suffered from the intentional wrongdoing and civil rights violations by public employees. To do otherwise would be not only illogical, it would be unconstitutional. For the above reasons, the doctrine of respondeat superior logically and constitutionally applies to the Gouin’s claims for intentional torts and civil rights violation by the City of Boston employees in the Boston Police Department. WHEREFORE Gouin prays that the City of Boston’s Motion for Reconsideration be DENIED.

 

E N D N OT E S [1] Oklahoma City v. Tuttle, infra, at 824-825, n. 8 (direct municipal liability under §1983 possible where there is a "direct causal connection" or an "affirmative link" between municipal conduct and the constitutional deprivation).  [2] The fact issue of whether a defendant city maintains a custom or policy is a jury issue. Jonielunas v. City of Worcester Police Department, 2004 WL2181604 at 5 (D.Mass. 2004 (Gertner, J.). [3] [W]here municipal policymakers are confronted with an obvious need to train city personnel to avoid the violation of constitutional rights and they are deliberately indifferent to that need, the lack of necessary training may be appropriately considered a city "policy" subjecting the city itself to liability under our decision in Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978). As the Court observes, "[o]nly where a failure to train reflects a ‘deliberate’ or ‘conscious’ choice by a municipality -- a ‘policy’ as defined by our prior cases -- can a city be liable for such a failure under [42 U.S.C.] § 1983."  City of Canton v. Harris, 489 U.S. 378, 1989.SCT.41195 at ¶47 <http://www.versuslaw.com> (1989) (Justice O’Connor, with whom Justice Scalia and Justice Kennedy, JJ. join, concurring in part and dissenting in part). [4] Bordanaro v. McLeod, 871 F.2d 1151, 1989.C01.40505 at ¶53 <http://www.versuslaw.com> (1st Cir. 03/30/1989): The Chief's own testimony and that of others was that he oversaw the operations of the department and set much of its policy. The evidence showed that the Chief utilized an extensive report review process to monitor the conduct of his officers and to ensure their compliance with the rules of the department. Such a review process would alert the Chief to practices that transgressed department policy. Knowledge of the practice may thus be imputed to the Chief. And allowing this custom to continue amounted to a deliberate indifference to the rights of the citizens of Everett, making a constitutional violation "'almost bound to happen, sooner or later.'" Spell, 824 F.2d at 1391; see also City of Canton v. Harris, 57 U.S.L.W. at 4273. In this case, the jury could conclude that there was "supervisory encouragement, condonation and even acquiescence" in the unconstitutional practice. Voutour,761 F.2d at 820 (noting absence of supervisory acquiescence in that case). Chief Bontempo's failure to eradicate this facially unconstitutional practice from the police department attributes that custom to the municipality. [5] The original guidelines were revised in 1997 and 2002. The latter revision begins with the title "Policy for Law Enforcement Response to Domestic Violence." Section1.0. is entitled "AUTHORITY AND EFFECTIVE DATE" and reads, "This policy is established pursuant to . . . the Acts of 1990, and shall take effect as of February 15, 2002. Pursuant to Section 15 of Chapter 403 of the Acts of 1990, law enforcement agencies shall adopt this policy or establish and implement specific operational guidelines consistent with the provisions of this policy." Continuing, the documents reads: "It is . . . imperative that police officers receive appropriate training in the handling of domestic violence complaints and departments implement the guidelines outlined here. It is also imperative that departments follow the statutory obligations for action, and implement these guidelines." Id. at 5 (emphasis supplied). [6] Violative of constitutional precepts, c. 209A has caught judicial attention. "It's an awful problem, because while there's more domestic violence than we like to think there is, our sense is that the 209A's are not infrequently abused," says Middlesex Probate Judge Beverly Boorstein. "This law is having the side effects that aren't intended." Kate Zernike, Boston Globe, "Divorced dads emerge as a political force" (part 3) (Boston, MA 05/19/98) page A01.  [7] Where there is no mens rea component needed to issue a restraining order pursuant to M.G.L. C. 209A, the statute is wrongly named the Domestic Violence Statute. Cf. LEOCAL v. ASHCROFT, No. 03-583 (U.S.S.C. 11/09/2004) ("State DUI offenses, which either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle, are not crimes of violence under 18 U.S.C. section 16"). The full text of this opinion is at http://laws.lp.findlaw.com/us/000/03583.html. [8] On Thursday, 5 September 2002, the Washington Post, in an article by Dana Milbank, wrote that Attorney General John D. Ashcroft invited the president and a board member of the Independent Women's Forum to join the National Advisory Committee on Violence Against Women. The IWF's national advisory board member who was invited was Boston police detective Margot Hill. The NAC advises the Justice and Health and Human Services departments on implementation of the Violence Against Women Act ["VAWA"]. The frequently amended VAWA legislation "provides funds to track down domestic abusers, expand shelters for battered women and prevent violent crimes against women on college campuses." The IWF, Milbank wrote, "has waged a bitter fight against the legislation [the 2002 VAWA amendment], providing congressional testimony in opposition and supporting a lawsuit challenging the act," and called attention to IWF’s position that the VAWA "legislation ‘will do nothing to protect women from crime’ but would ‘perpetuate false information, waste money and urge vulnerable women to mistrust all men.’" Milbank continued, "Another IWF article said the legislation is based on ‘deceitful data’ and argued that it ‘is not only unconstitutional, but often harmful to the victims it purports to help.’" The IWF website also argues, according to Milbank, that the VAWA legislation is based on ignorance, non-facts, and wishful thinking.. . . ."  Whether Hill’s thinking is in sync with the IWF position is as yet unknown to Gouin. Gouin does know, however, that she refused to enforce or to bring a charge against Gouin’s then-wife (Defendant Dori) under M.G.L. c. 269, §13A, False Reporting to the Police. In fact, refusing to enforce that statute, the BPD has brought NO charges under 269:13A, and thus has deprived men falsely accused of their constitutional right to the equal protection of the laws. G.L. c. 269, § 13A: "Whoever intentionally and knowingly makes or causes to be made a false report of a crime to police officers shall be punished by a fine of not less than one hundred nor more than five hundred dollars or by imprisonment in a jail or house of correction for not more than one year, or both." In fact, there are no Massachusetts cases showing prosecution under that statute, although a few cases mention it in passing. That which does appear to be true is that Defendants City of Boston and James follow VAWA positions rigidly. It also appears to be true that the BPD DV unit benefits significantly from the controversial VAWA legislation that does indeed propel the Commonwealth’s police departments and municipalities such as the Defendant City of Boston to adhere to the rigid unconstitutional DV Guidelines and DV Handbook. [9] On page 10 of the City of Boston’s memorandum, Boston’s counsel contends that Gouin had to plead that the City subsequently learned of a serious incident and took no action to provide the necessary training [City of Boston Mem at 10]. In the circumstances here, Gouin let it be known to James as well as to the City’s counsel (Piemonte-Stacy) that James had no basis to bring a criminal complaint. They did nothing. Gouin tried to communicate with James’s immediate supervisor, and the man set an appointment, but at the last minute, refused to meet with Gouin for the appointment. There was a complete runaround. While Gouin does not dispute that this is evidently one way to prove "deliberate indifference" [Chaabouni v. City of Boston, 133 F.Supp. 2d 93, 100 (D.Mass.) (Young, J.), citing Canton], there are also other ways. Gouin has described them in the body of this pleading. [10] Gouin is suffering not only from misconduct in this action (Gouin II) [contra City/Boston Mem at 8], but also from the exacerbation of the injuries he suffered from the misconduct he encountered from the events recounted in Gouin v. Gouin, 249 F.2d 62, 71 (D.Mass. 2003) (Gouin I). [11] The municipal official who appears to have final policymaking authority for the domestic violence policy for the City is Margot Hill, the Commander of the DV unit to which James is attached. Hill’s role in this case has been "behind the scenes." See comments and assertions regarding BPD DV decisionmaker Margot Hill in note 3 in Gouin’s Opposition to the City’s Motion to Dismiss. See also note 8, supra. [12] In Boulais v. Town of Rehoboth, 2002 WL 1769874 at 3, No. Civ.A. 00-12086-GAO (D.Mass. 7/31/2002) summary judgment was granted the defendants because, although "[a] municipality can be liable under §1983 for a policy or custom that causes a constitutional violation," Plaintiff’s "complaint [did] not contain any allegations and the record [did] not contain any evidence regarding the Town's policies or customs." In contrast, the record in Gouin’s case is replete with evidence regarding Boston’s policies and customs. [13] Jonielunas v. City of Worcester Police Department, 2004 WL2181604 at 7 (D.Mass.C.D. 6/01/2004) (Gorton, J.) (jury verdict; new trial). The overall probem in Jonielunas on appeal was inconsistent verdicts. [14] The three paragraphs of Massachusetts G.L. c. 209A read: Any protection order issued by another jurisdiction, as defined in section one, shall be given full faith and credit throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction. A person entitled to protection under a protection order issued by another jurisdiction may file such order in the superior court department or the Boston municipal court department or any division of the probate and family or district court departments by filing with the court a certified copy of such order. . . . Such person shall swear under oath in an affidavit, to the best of such person's knowledge, that such order is presently in effect as written. Upon request by a law enforcement agency, the register or clerk of such court shall provide a certified copy of the protection order issued by the other jurisdiction. A law enforcement officer may presume the validity of, and enforce in accordance with section six, a copy of a protection order issued by another jurisdiction which has been provided to the law enforcement officer by any source; provided, however, that the officer is also provided with a statement by the person protected by the order that such order remains in effect. Law enforcement officers may rely on such statement by the person protected by such order. [15] Section 5A also does not appear on the Criminal Complaint against Gouin -- only §7 and §3B do – but §5A was argued by the assistant district attorney at the hearing on Gouin’s motion to dismiss and relied upon by the court. [16] Dori did not file the Maine restraining order until almost a year later, on 30 April 2003 [Compl. Exh. U]. [17] And of whom the Commonwealth is one. The Preamble of the Massachusetts Constitution defines the Commonwealth as a "Body politic . . . formed by a voluntary association of individuals," a body politic that "is a social compact, by which the whole people covenants with each Citizen, and each citizen with the whole people, that all shall be governed by certain Laws for the Common good." Kargman v. Boston Water and Sewer Com'n, 18 Mass.App.Ct. 51, 54 (1984). 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."  When the Preamble is coupled with G.L. c. 4, §7, the inescapable conclusion is that the Commonwealth is a "person" for all purposes. [18]  From 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). Throughout its history this Court has derived strength from institutional self-discipline. Adherence to settled doctrine is presumptively the correct course. Departures are, of course, occasionally required by changes in the fabric of our society. When a court, rather than a legislature, initiates such a departure, it has a special obligation to explain and to justify the new course on which it has embarked. Today, however, the Court casts aside well-settled respected doctrine that plainly commands affirmance of the Court of Appeals -- the doctrine of the law of the case, the doctrine of stare decisis (the Court repudiates at least 28 cases), the doctrine of sovereign immunity, the doctrine of pendent jurisdiction, and the doctrine of judicial restraint. No sound reason justifies the further prolongation of this litigation or this Court's voyage into the sea of undisciplined lawmaking. Pennhurst at 164-166 (Stevens, Dissent) (references to notes 47 through 52 omitted).

 

Respectfully submitted,                                                FRANÇOIS GOUIN, Jr.                                                By his attorney,                                                /s/ Barbara C. Johnson <barbaracjohnson@worldnet.att.net> 15 November 2004                 Barbara C. Johnson                                                 6 Appletree Lane                                                 Andover, MA 01810-4102                                                 978-474-0833 AFFIDAVIT 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.                                                   /s/ Barbara C. Johnson <barbaracjohnson@worldnet.att.net> 15 November 2004                   Barbara C. Johnson