Plaintiff John Smith’s Opposition to Defendant Police Officers' Motion for Reconsideration of Their  Qualified Immunity Defense and  Request for Hearing (in both .html and .pdf files)


 

drano143-o-recon-sj-qual-iy-20605.pdf You must have Adobe Acrobat Reader installed on your computer  in order to view the PDF documents. You can download a free  version of Adobe Acrobat Reader by clicking on the following link: www.adobe.com/products/acrobat/readstep.html


 

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MASSACHUSETTS CIVIL ACTION: 01-CV-10890-RBC François Gouin, Jr. Plaintiff v. Dori C. Gouin, Esq., in her professional and individual capacities, Todd D. Posey, William R. Toner, in his official and individual capacities, Edward McMahon, in his official and individual capacities, City of Boston, Paul F. Evans, Police Commissioner of Boston, Mass., in his official and individual capacities, John Does, Jane Doe, Defendants _____________________________________________ PLAINTIFF’S OPPOSITION TO DEFENDANT EDWARD McMAHON’S AND WILLIAM TONER’S MOTION FOR RECONSIDERATION AND REQUEST FOR HEARING


 

Now comes Plaintiff François Gouin ["Gouin"] of Massachusetts and submits this opposition to Defendant Officers William Toner ["Toner"] and Edward McMahon’s ["McMahon"] motion for reconsideration of their motion for summary judgment based on qualified immunity. As grounds, Gouin states that he has two times dealt with the issue of whether the officers were entitled to protection under the umbrella of qualified immunity: (1) in his opposition to Toner and McMahon’s Motion to Dismiss and (2) in his opposition to Toner and McMahon’s Motion for Summary Judgment. Immunity was also discussed (3) in Gouin’s opposition to Commissioner Evans’ Motion to Dismiss and (4) in Gouin’s surreply in opposition to the officers’ Motion for Summary Judgment. Gouin therefore incorporates by reference as if set forth herein his arguments in the four named pleadings. F.R.Civ.P. Rule 59(e), Mistakes, and Incompetence Gouin further notes that Rule 59(e), which defense counsel invoked, provides for motions to alter or amend final judgments, although it has been considered, at least by one treatise, to include motions for reconsideration. 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 2810.1 (1998) ("Rule 59(e) . . . include[s] motions for reconsideration."). Thus, Rodriguez's motion to reconsider was, in essence, a Rule 59(e) motion which was filed within the required 10 days. . . . United States v. $23,000 in United States Currency, 356 F.3d 157, 2004.C01.0000027 at ¶57 n. 10 <http://www.versuslaw.com> (1st Cir. 2004). Here, the officers’ motion to reconsider was untimely served, albeit but a day later than the ten days within which any complaint of the alleged judgment was to be made. See Piedra v. Mercy Hosp., Inc., 39 Mass.App.Ct. 184, 187, 653 N.E.2d 1144, 1147 (1995). While the minor infraction does not offend Gouin,\1/ his counsel does believe that there is significance in the officers’ failure to even request an enlargement of time. What is of greater concern is that "[t]he repetition of previous arguments is not sufficient to prevail on a Rule 59(e) motion." United States v. $23,000, 2004.C01.0000027 at ¶57 n. 10 <http://www.versuslaw.com> and that "[m]otions under Rule 59(e) must either clearly establish a manifest error of law or must present newly discovered evidence." Id. quoting FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992). Here, the officers do neither. Gouin has even greater concern about the officers’ motion (1) because the officers’ repeat as true on pages 2-3 of their motion to reconsider the identical facts and spins on the facts that were thoroughly controverted by Gouin in his Local Rule 56.1 Statement of Facts in Opposition to the Officer’s Motion for Summary Judgment\2/and (2) because, as noted above, the officers neither present newly discovered evidence nor clearly establish a "manifest error of law." The only difference is now the officers almost admit that what they did was "mistaken." They do, however, rely on the same law they relied upon earlier, namely, St. Hilaire v. City of Laconia, 71 F.3d 20, 24 (1st Cir. 1995), for the proposition that a mistaken conclusion or will allow an officer to be protected by qualified immunity.\3/ But according to Harlow, infra, that reasoning only applies if the officers are "reasonable men." Anderson v. Creighton, 483 U.S. 635, 661 (1987), citing Brinegar v. United States, 338 U.S. 160, 176 (1949). "To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." Anderson, 483 U.S. 635, citing Brinegar, 338 U.S. at 176. The problem is that the officers are not "reasonable men." See Gouin’s Memorandum in Opposition to the Officers’ Motion for Summary Judgment, in which he analyzed in some detail each act of the officers to determine whether the officers’ act was objectively reasonable. In each instance, it was inescapable that the officers did almost nothing that was objectively reasonable. So another problem arose: It is very much disputed that Officers Toner and McMahon acted out of a mistaken conclusion. The officers were acting out of an official arrest-preferred policy when responding to alleged "domestic violence" calls, which these officers and others at their police department characterized the two 911 calls as being. That characterization did not happen because of mistake. That characterization happened out of habit, custom, and official policy. And if not out of habit, custom, and official policy, then out of incompetence. As Gouin wrote in his earlier oppositional pleadings, While, according to St. Hilaire, at 24, mistakes are precluded from being deemed unreasonable, incompetence is not. "Qualified immunity protects ‘all but the plainly incompetent OR those who knowingly violate the law.’" Anderson v. Creighton, 483 U.S. 635, 638 (1987), quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)." Gouin’s Opposition to Defendants Toner and McMahon’s Motion for Summary Judgment, page 2. Qualified Immunity Defense Should Fail Where, of course, Gouin’s clearly established constitutional rights were violated, Toner and McMahon are not entitled to protection from trial by qualified immunity. "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982).\4/ And the immunity defense ordinarily should fail where what the officers did was "objectively unreasonable," for "objective legal reasonableness ... is the touchstone of Harlow." Anderson v. Creighton, 483 U.S. 635, 639 (1987). "Police officers [were] denied qualified immunity on summary judgment because their conclusion of probable cause could be found objectively unreasonable when the facts are viewed in light most favorable to the plaintiffs." Id., 483 U.S. at 656 n.12 (1987), citing Reardon v. Wroan, 811 F.2d 1025 (7th Cir. 1987). A"federal agent [was] denied qualified immunity on summary judgment because of genuine issue of probable cause." Anderson, 483 U.S. at 656 n.12 (1987), citing Jasinski v. Adams,781 F.2d 843 (11th Cir. 1986) (per curiam). And "police officers [were] denied qualified immunity on summary judgment because of genuine issue of probable cause." Anderson, 483 U.S. at 656 n.12 (1987), citing Deary v. Three UnNamed Police Officers, 746 F.2d 185 (3d Cir. 1984). "Defendant officers’ asserted dismissal is [still] not warranted at this stage of the proceedings." Gouin I, Paper #46, at 28 (Collings, MJ.). [Excerpt on following page.] Gouin I, Paper #46, at 28 (Collings, MJ.). Where there are unresolved factual disputes, the jury must decide whether the officers’ acts were objectively reasonable. The Court does not consider the possibility that the "objective reasonableness" of the officer's conduct may depend on the resolution of a factual dispute. Such a dispute may preclude the entry of summary judgment but, despite the Court's intimation to the contrary, see ante, at 640, n. 2, should not necessarily prevent a jury from resolving the factual issues in the officer's favor and thereafter concluding that his conduct was objectively reasonable. Anderson, 483 at 655 n. 10 ( JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting). That means that the jury may, indeed, make the decision as to whether the Officers acts were objectively reasonable. That means, under Anderson, Gouin must be allowed to take his case against the officers, as well as against Dori and Posey, to the jury. . . . no such unfairness can be attributed to holding one accountable for actions that she knew, or should have known, violated the constitutional rights of the plaintiff. Harlow [v. Fitzgerald, 457 U. S. 800] itself said as much: "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Id., at 818-819; see also Butz, 438 U. S., at 506 ("[I]t is not unfair to hold liable the official who knows or should know he is acting outside the law ... ."). Crawford-El v. Britton, 523 U.S. 574, 1998.SCT.42083 at ¶67 <http://www.versuslaw.com> (1998). Defendant Officers’ Abridged List of Undisputed Facts Of some interest to Gouin and likely to this Court was Defendant Officers’ list of undisputed facts, a list which has shrunk from the 28 asserted in their Local Rule 56.1 Statements of Fact to 10 on pages 6-7 of their Motion to Reconsider. The current 10 may be seen in Table I on the following page. Fed.R.Civ.P. 52(a) Rule 52(a) is applicable "[i]n all actions tried upon the facts without a jury or with an advisory jury." Here there was no trial with or without a jury or advisory jury. If the court hears a party fully on an issue during such a trial and finds against that party, the court must write findings of fact and rulings of law. Fed.R.Civ.P. 52(c). Short of a trial with or without a jury, advisory or not, it is within the discreion of the court whether to write findings of fact and conclusions of law. By requesting the court to write its reasons for not granting a brevis disposition, the counsel for the Officers and the City of Boston is requesting this court to make a determination before the court hears all the evidence, to play legal counsel for the officers and tell them what part of the case they have to "beef" up, and to usurp the function of the jury – all of which would be highly prejudicial against Gouin. These are possible consequences were the court to write findings and rulings on decisions of motions under Rule 12 or 56.


 

TABLE 1. TONER AND McMAHON’S FACTS
FALSE	MATERIAL FACTS		IMMATERIAL FACTS
	Undisputed	Disputed in whole or in part	Undisputed		Disputed in whole or in part
			Plaintiff was at 58 Temple Street at 5:30 a.m. on January 5, 2001
	Plaintiff possessed personal papers		Plaintiff possessed a drill, screwdriver
	but officers did not itemize papers and note significance of Gouin’s deed Wife’s Maine address expired restraining order		but officers ignored the fact that Gouin was re-novating back bedroom of his own condo and needed these tools. Not unlawful for owner to have them in his possession.
					Plaintiff attempted to enter the condominium at 5:30 a.m.
					Homeowner can enter his home at any time of day or night
			Posey was inside the condominium
Posey called "911" and told the police dispatcher that Plaintiff was not supposed to be at the property	Posey did NOT tell the 911 dispatcher that Gouin was not supposed to be at the property. Posey said: Ah, her ex-husband [Gouin] has shown up. Ah, there                       has been a restraining order filed at the court. [Exh. C(1), attached to Gouin’s LR 56.1 Statement of Facts]. Given that defense counsel has seen Exh. C and heard the 911 tape, Gouin wonders from where this alleged "undisputed fact" came.
Chadbourne called "911" and told the police dispatcher that Plaintiff was not supposed to be at the property	Dori told the 911 call taker that she got a restraining order the day before but he did not yet know about it, and then asked the 911 calltaker to tell him. [Exh. C(2-3), FG’s LR 56.1 Statement/Facts].  DORI: But my ex-husband, who I have a restraining order against -- I got a brand new one today – against him, specifically from going to that residence, . . . DORI: But he has to be told there's a restraining order against him being there . . . 911 PO: Okay, I'll relay that to the call that there is a restraining order against him. Awright? DORI: Okay
				Toner and McMahon arrived at 58 Temple Street in response to the emergency calls to "911"
Both Posey and Chadbourne told McMahon and Toner that the Plaintiff was not supposed to be at the property	Significant about the officers’ "Undisputed fact" is that the officers NEVER checked before arresting François Gouin whether that which Dori Chadbourne Gouin and Todd Posey told them was true. But for the arrest-preferred policy, which orders officers not to investigate before making a warrantless arrest even in a non-exigent circumstance, the competent officers would – if their actions were objectively reasonable – NOT have arrested François Gouin. THEY WOULD HAVE ENFORCED MGL c. 269 §13A, False Reporting to the Police, against both Posey and Dori Chadbourne.
				Plaintiff had removed the lock from the door at 58 Temple Street
.				The lock was in the Plaintiff’s coat when Toner and McMahon arrived


 

CONCLUSION For all the above reasons and the arguments against the application of immunity and qualified immunity which Gouin argued in other pleadings, namely, Gouin’s opposition to Toner and McMahon’s Motion to Dismiss,   Gouin’s opposition to Toner and McMahon’s Motion for Summary Judgment. See not only Gouin’s oppositional Local Rule 56.1 Statement of Facts, but also particularly Gouin’s oppositional memorandum, in which he analyzed in some detail whether each act of the officers was objectively reasonable. It was inescapable that the officers did almost nothing that was objectively reasonable.   Gouin’s opposition to Commissioner Evans’ Motion to Dismiss, and   Gouin’s surreply in opposition to the officers’ Motion for Summary Judgment, and which are incorporated herein by reference, the defendant officers are not entitled to qualified immunity. WHEREFORE, Gouin prays Toner and McMahon’s Motion for Reconsideration [Paper #148] be DENIED. E N D N O T E S [1] The vast majority of interlocutory district court orders are nonappealable, so a litigant's only speedy avenue of recourse is to request the district court to reconsider its ruling. Little purpose would be served in penalizing a party for requesting a district court to reconsider a disputed interlocutory ruling before attempting to take its grievance to the court of appeals. Rodriguez v. Banco Central, 790 F.2d 172, 1986.C01.40395 at ¶30 <http://www.versuslaw.com> (1st Cir. 1986). [2] Gouin incorporates by reference as if set forth herein the facts as they appear in his Local Rule 56.1 Statement. [3] Anderson, 483 U.S. at 666 n. 22 (dissent): Because this case involves the rule that should be applied to the conduct of a law enforcement officer employed by the Federal Government, Justice Jackson's dissenting opinion in Brinegar v. United States, 338 U.S. 160 (1949), is especially pertinent. He wrote, in part:   "These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government." Id., at 180. [4] "[I]t is not unfair to hold liable the official who knows or should know he is acting outside the law ...." Crawford El v. Britton, 523 U.S. 574, 1998.SCT.42083 at ¶67 <http://www.versuslaw.com> (1998), quoting Butz v. Economou, 438 U. S. 478, 506 (1978).


 

Respectfully submitted, FRANÇOIS GOUIN, JR. By his attorney, /s/ Barbara C. Johnson <barbaracjohnson@worldnet.att.net> Barbara C. Johnson, Esq. 6 Appletree Lane Andover, MA 01810-4102 978-474-0833 11 February 2005