Freedman v. Ali

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

JASON FREEDMAN, )

)

Plaintiff, )

)

v. )

) No. 16-cv-11151-DJC

)

ASIF ALI, EDWARD BURKE, )

NICHOLAS MOCHI and )

LESTER SULLIVAN, )

)

Defendants. )

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J. November 14, 2018

I. Introduction

Plaintiff Jason Freedman (“Freedman”) brings claims against officers of the Cambridge

Police Department, Asif Ali, Edward Burke, Nicholas Mochi and Lester Sullivan (“the

Defendants”) arising out of events surrounding his arrest on November 14, 2013. D. 1. The

Defendants now move for summary judgment. D. 46. For the foregoing reasons, the Court

ALLOWS in part and DENIES in part the Defendants’ motion.

II. Standard of Review

The Court will grant summary judgment “only when the record reflects to genuine issues

as to any material fact and indicates that the moving party is entitled to judgment as a matter of

law.” Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009). A genuine dispute of material fact

exists where the evidence with respect to that fact “is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The movant bears the burden of demonstrating the absence of a genuine dispute of material fact

and that it is entitled to judgment as a matter of law. Carmona v. Toledo, 215 F.3d 124, 132 (1st

Cir. 2000). The court must “view the facts and draw reasonable inferences in the light most

favorable to the party opposing the summary judgment motion.” Scott v. Harris, 550 U.S. 372,

378 (2007) (citation omitted).

Qualified immunity is a defense that a public official may assert against claims “from

personal liability for actions taken while performing discretionary functions.” Barton v. Clancy,

632 F.3d 9, 21 (1st Cir. 2011) (quoting Lynch v. City of Boston, 180 F.3d 1, 13 (1st Cir. 1999)).

The qualified immunity analysis requires a court to decide ‘(1) whether the facts alleged or shown

by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was

‘clearly established’ at the time of the defendant's alleged violation.’” Id. at 21-22 (quoting

Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)). Moreover, the assertion of a qualified

immunity defense may not necessarily be resolved as a matter of law, particularly where the

resolution of same involves factual disputes. See Penn v. Escorsio, 764 F.3d 102, 112 (1st Cir.

2014); Prokey v. Watkins, 942 F.2d 67, 73 (1st Cir. 1991) (holding that “if what the policeman

knew prior to the arrest is genuinely in dispute, and if a reasonable officer's perception of probable

cause would differ depending on the correct version, that factual dispute must be resolved by a

fact finder”).

III. Factual Background

The following facts are undisputed unless otherwise noted and are taken from the parties’

submissions, D. 47, D. 52, D. 56. On the evening of November 14, 2013, Freedman and several

other individuals took part in a labor picket in front of Insomnia Cookies, an establishment in

Cambridge, Massachusetts. D. 47 ¶ 1; D. 52 ¶ 1. There were approximately fifteen participants,

who demonstrated by walking in a circle on the sidewalk in front of Insomnia Cookies, chanting,

singing, and distributing literature. D. 47 ¶¶ 2-4; D. 52 ¶¶ 2-4. Geoffrey Carens, another individual

participating in the picket, used a megaphone at times during the picket. D. 47 ¶ 5; D. 52 ¶ 5. The

picketers made it “a point to always let people come in and out and pass” them on the sidewalk.

D. 52 ¶ 14; D. 56 ¶ 14.

At some point, the Defendants, all uniformed patrol officers with the Cambridge Police

Department, arrived at the picket. D. 47 ¶¶ 6-8; D. 52 ¶¶ 6-8. Ali approached Carens and other

picketers and told them to “try to move over to” to a median, or “island” in the middle of the street

and off the sidewalk. D. 47-7 at 15; D. 47 ¶ 9; D. 52 ¶ 9. Ali described his action as “trying to

convince the individuals to move over” but also stated that he “tried to really say, All right, you

guys got to move to this location” and stated that he did “tell some of the individuals that you have

to move.” D. 54-1 at 32. Carens and the other picketers did not move to the island. D. 47 ¶ 11;

D. 52 ¶ 11. Burke and Ali requested that Carens turn off the megaphone and Carens complied. D.

47 ¶¶ 12-13; D. 52 ¶¶ 12-13. According to Freedman and Carens, Ali and Burke then stopped

Carens, “grabb[ed] his arms and chest and push[ed] him out of the picket line,” pushing Carens

backwards such that Carens was pushed into the street. D. 47-1 at 20; D. 47-10 at 13-16; D. 47 ¶¶

14-15; D. 52 ¶¶ 14-15. After that, several picketers, including Freedman, began protesting Ali’s

and Burke’s actions towards Carens. D. 47 ¶ 16; D. 52 ¶ 16. Freedman was holding a flag on a

flagpole in one hand as the flag leaned against his shoulder. D. 47 ¶ 17; D. 52 ¶ 17; D. 53-1 at 22.

Freedman was standing about three feet away from Burke and Ali at the time that Freedman began

protesting Ali’s and Burke’s actions and Burke and Ali were not facing Freedman at that moment.

D. 47 ¶¶ 17-18; D. 52 ¶¶ 17-18.

The events immediately after the picketers began to protest the treatment of Carens are

disputed. According to Ali, after the altercation with Carens, Freedman “used a wooden flagpole

and shoved Officer Burke in the chest area with this pole,” and Ali then “attempted to restrain”

Freedman. D. 54-1 at 48-49. According to a witness, Burke responded to Freedman’s verbal

protest by grabbing the picket flag Freedman was holding and pulling it towards his own body,

stating “are you assaulting me with this stick” while tapping his own chest with the flag. D. 52 ¶¶

28-30; D. 56 ¶¶ 28-30; D. 53-5 at 20-21. Another witness testified that Freedman made no

“forward movement” but that the officers “were encroaching on his physical space,” “put their

hands on him,” and then “jumped on him.” D. 53-2 at 28. According to Freedman, Ali and Burke

then started pushing Freedman approximately five seconds after they pushed Carens, “getting up

in [Freedman’s] face, pushing [Freedman], grabbing [Freedman] and pushing [Freedman]

backwards,” and Freedman responded by “try[ing] to backpedal away from them.” D. 47-1 at 23-

24; D. 47 ¶ 19; D. 52 ¶ 19. According to another witness, the other officers started to “jump[] in”

to “subdue” Freedman and “pull[] him down together.” D. 53-5 at 21. Freedman stated in his

deposition that he was eventually pushed such that he “fell against” a parked car, caught “between

the curb, the gutter and the car.” D. 47-1 at 25.

There is a video of at least part of the interaction between Freedman, Burke, and Ali. The

parties dispute whether the video depicts Burke or Mochi grabbing Freedman by the arm or

Freedman physically struggling against Burke, Ali, and Mochi. D. 47 ¶¶ 20-21; D. 52 ¶¶ 20-21.1

The video begins once Freedman is already surrounded and being held by the officers. D. 47 ¶¶

21-22; D. 52 ¶¶ 21-22. It is undisputed that Ali and Mochi brought Freedman to the ground while

Sullivan placed his knee on Freedman’s legs in order to prevent Freedman from moving. D. 47 ¶

24; D. 52 ¶ 24. According to Freedman, he was attempting to comply with the officers’ instructions

1 Unlike the videotape at issue in Scott v. Harris, 550 U.S. 372, 380 (2007), upon which

the Defendants rely, the videotape at issue here does not resolve the factual dispute between the

parties because the view of Freedman is blocked by several other persons for most of the videotape.

at this time, but it was difficult for him to do so because multiple officers were pulling on him

simultaneously, potentially working at cross-purposes. D. 52 ¶¶ 44-51; D. 56 ¶¶ 44-51; D. 54 at

114. Also according to Freedman, his face hit the ground, he felt “blows to his body,” “knees in

his back,” and felt that “someone was sitting on his legs and twisting his arm.” D. 52 ¶ 40; D. 56

¶ 40.

Ali then placed Freedman under arrest. D. 47 ¶ 25; D. 52 ¶ 25. Freedman was transported

to the Cambridge Police Department, where he was treated by two paramedics for a scrape on his

nose and received, at his request, a sling for his left arm. D. 47-15 at 7; D. 47 ¶¶ 31-32; D. 52 ¶¶

31-32. During the early morning hours of November 15, 2013, Ali completed and signed an

application for a criminal complaint against Freedman asserting charges for assault and battery on

a public employee, resisting arrest and disorderly conduct. D. 47 ¶¶ 39, 41; D. 52 ¶¶ 39, 41. Burke,

Ali, Mochi and Sullivan wrote reports relating to the events of that evening. D. 52 ¶ 60; D. 56 ¶

60. On November 15, 2013, Freedman was arraigned in Cambridge District Court, D. 47 ¶ 43; D.

52 ¶ 43, and was released on his own recognizance. D. 47 ¶ 45; D. 52 ¶ 45. On July 20 and July

21, 2015, a criminal trial was held, during which Ali, Burke, and Mochi testified, and Freedman

was acquitted of all charges. D. 47 ¶ 46; D. 52 ¶ 46; D. 52 ¶¶ 61-62; D. 56 ¶¶ 61-62.

IV. Procedural History

Freedman filed his complaint on June 20, 2016. D. 1. On October 28, 2016, the Defendants

moved to dismiss the complaint. D. 14. The Court (O’Toole, J.). denied that motion. D. 29. On

January 26, 2018, the case was reassigned to this session of the Court. D. 39. The Defendants

have now moved for summary judgment. D. 46. The Court heard argument from the parties on

the motion and took the matter under advisement. D. 62.

V. Discussion

A. Count I: 42 U.S.C. § 1983, Unlawful Arrest in Violation of the Fourth

Amendment

The Defendants contend they are entitled to qualified immunity with respect to Count I,

Freedman’s claim under 42 U.S.C. § 1983 for unlawful arrest in violation of the Fourth

Amendment. A claim for unlawful arrest requires a showing that the officer did not have probable

cause to perform the arrest. Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 9 (1st Cir. 2004).

“Probable cause for an arrest exists when the arresting officer, acting upon apparently trustworthy

information, reasonably concludes that a crime has been (or is about to be) committed and that the

putative arrestee likely is one of the perpetrators.” Id. The Defendants contend that there was

probable cause to arrest Freedman for interfering with a police officer, resisting arrest, disorderly

conduct, and assault and battery on a public employee.

The elements of interfering with a police officer are “intimidat[ing], hinder[ing] or

interrupt[ing] a police officer in the lawful course of his or her duty.” Wilber v. Curtis, 872 F.3d

15, 21 (1st Cir. 2017) (citation omitted). The Defendants contend that probable cause existed to

arrest Freedman for this crime because, they contend, the Defendants issued a lawful order for the

protestors to move to the island; Carens did not comply, providing probable cause for the

Defendants to arrest Carens; and, following that lawful arrest, Plaintiff stood within three feet of

Ali and Burke holding a flag – an object they contend could reasonably have been perceived as a

weapon – and protested the Defendants’ actions. D. 48 at 6-7. The record, however, is not

undisputed as to this matter. It is at least disputed whether Freedman was “hindering” or

“interrupting” the Defendants in the lawful course of their duty and, more significantly, whether

Freedman was “intimidating” the Defendants by standing three feet away from them and holding

a flag in one hand that was leaned against his shoulder.

The Defendants also contend that the undisputed record provides probable cause for

arresting Freedman for resisting arrest and disorderly conduct because they contend that the video

shows that Freedman struggled against the Defendants’ efforts to control him. D. 48 at 8. “A

defendant resists arrest if ‘he knowingly prevents or attempts to prevent a police officer, acting

under color of his official authority, from effecting an arrest of the actor or another, by (1) using

or threatening to use physical force or violence against the police officer or another; or (2) using

any other means which creates a substantial risk of causing bodily injury to such police officer or

another.’” Commonwealth v. Sylvia, 87 Mass. App. Ct. 340, 341–42 (2015) (quoting Mass. Gen.

L. c. 268, § 32B(a)). Conduct that includes “an active, physical refusal to submit to the authority

of the arresting officer,” such as stiffening the arms and pulling the arms away as an officer is

attempting to handcuff the defendant, or pulling away from an officer, constitutes resisting arrest.

Id. A defendant commits disorderly conduct if he, “with the purpose to cause public

inconvenience, annoyance, or alarm, or recklessly creating a risk thereof,” engages in “fighting or

threatening, or in violent or tumultuous behavior” or creates “a hazardous or physically offensive

condition by any act which serves no legitimate purpose of the actor.” Commonwealth v. Mulvey,

57 Mass. App. Ct. 579, 582 (2003).

As attested to by Freedman, he was attempting to comply with the Defendants’ instructions

but was physically unable to do so because multiple officers were holding him. D. 52 ¶¶ 44-51

(citing Freedman’s deposition). The Defendants contend that the video contradicts Freedman’s

account such that the Court should discredit Freedman’s statements contrary to the video. D. 48

at 8. Where, however, it is ambiguous whether the video contradicts the non-movant’s account,

the court must still view the record in the light most favorable to the non-movant for the purposes

of adjudicating the summary judgment motion. See Morris v. Leblanc, 674 F. App'x 374, 378 n.6

(5th Cir. 2016).

Here, the video does not clearly depict the nature of Freedman’s actions since the video is

shot at night and, at times, the officers themselves block the view of Freedman. The video shows

that several officers have their hands on Freedman, at times simultaneously, so although pushing

or pulling occurs, the video does not contradict Freedman’s statement that he was unable to comply

with one officer’s commands because he was physically prevented from doing so. Additionally,

due to the sound of the picketers chanting, it is difficult to understand from the video the

instructions being given to Freedman, and thus the video is ambiguous with respect to whether

Freedman was attempting to comply with the instructions being given. Thus, the record remains

disputed as to whether the evidence supports probable cause for Defendants to have arrested

Freedman for resisting arrest or disorderly conduct.

Finally, the Defendants argue that there was probable cause to arrest Freedman for assault

and battery on a public official because they contend that the video depicts Freedman pushing Ali,

Mochi, and Burke. A defendant commits assault and battery on a public official when he “touches

[a public official] without having any right or excuse to do so and the defendant’s touching was

intentional,” provided that the defendant knew that the victim was a public employee engaged in

the performance of his duties at the time of the putative assault. Commonwealth v. Gonzalez, 71

Mass. App. Ct. 1118, 2008 WL 1069497, at *2 (2008). As noted above, however, the video does

not conclusively show the course of conduct between Freedman and the officers, and for that

reason, the Defendants are not entitled to qualified immunity on this count.

B. Count II: 42 U.S.C. § 1983, Retaliation in Violation of the First Amendment

Freedman asserts a Section 1983 claim for retaliation in violation of the First Amendment,

contending that the Defendants unlawfully arrested and prosecuted him in retaliation for

participating in a lawful picket and protesting the arrest of Carens. For such a claim, a plaintiff

must prove that his conduct was constitutionally protected and that the protected conduct was a

“motivating” factor in the decision to take the retaliatory action. Nuon v. City of Lowell, 768 F.

Supp. 2d 323, 335 (D. Mass. 2011) (citing Tatro v. Kervin, 41 F.3d 9, 18 (1st Cir. 1994)).

The Defendants contend they are entitled to qualified immunity with respect to Freedman’s

retaliation claim because there is nothing in the record that would support an inference that the

Defendants’ arrest and prosecution of Freedman was motivated by Freedman’s protected conduct;

because Freedman’s conduct was not protected conduct since it obstructed an investigation,

jeopardized officer safety, or violated an order by an officer; and because there was probable cause

for the arrest and prosecution. D. 48 at 12-15. As to the first argument, a reasonable jury could

infer from Freedman’s protesting of the Defendants’ actions against Carens and the proximity and

circumstances of Defendants’ arrest of Freedman that Freedman’s protected conduct was a

motivating factor. As to the second argument, as discussed above, the undisputed record does not

show that Freedman was obstructing an investigation, jeopardizing officer safety, or violating an

order by an officer. Here, by contrast to Abraham v. Nagle, 116 F.3d 11, 14 (1st Cir. 1997), upon

which the Defendants rely, D. 48 at 13, the record remains disputed as to whether Freedman failed

to comply with a direct order from the officers on the scene. As to the third argument, the Court

has explained above why there is a genuine dispute of material fact regarding whether there was

probable cause to arrest Freedman.

C. Count III: 42 U.S.C. § 1983, Excessive Force in Violation of the Fourth

Amendment

Freedman also asserts a claim under 42 U.S.C. § 1983 against the Defendants for using

excessive force in violation of the Fourth Amendment. To bring a claim for excessive force, a

plaintiff must show that “the defendant officer employed force that was unreasonable under the

circumstances.” Raiche v. Pietroski, 623 F.3d 30, 36 (1st Cir. 2010) (citation omitted). Factors

relevant to determining the reasonableness of the force are: “(1) ‘the severity of the crime at issue,’

(2) ‘whether the suspect poses an immediate threat to the safety of the officers or others,’ and (3)

‘whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.’” Id.

(quoting Graham v. Connor, 490 U.S. 386, 396 (1989) (alteration in original)). The Defendants

contend that they are entitled to qualified immunity because Freedman was arrested on charges of

assault and battery on a public employee, resisting arrest, and disorderly conduct, which they

contend were sufficiently serious to warrant the exercise of some force, and because, by contrast,

Freedman’s injuries were minimal in nature. D. 48 at 16-17. It is well established that Freedman’s

injuries, even if minor, can ground an excessive force claim if sufficiently unjustified. See Reese

v. Herbert, 527 F.3d 1253, 1272 (11th Cir. 2008) (holding that “even de minimis force will violate

the Fourth Amendment if the officer is not entitled to arrest or detain the suspect” (quoting

Zivojinovich v. Barner, 525 F.3d 1059, 1071 (11th Cir. 2008)). On the present disputed record,

whether the officers’ actions were proportional to the crime(s) that they allege Freedman

committed and the danger he posed will be for the factfinder to decide.

The Defendants cite, in support of their argument that they are entitled to qualified

immunity, Dean v. City of Worcester, 924 F.2d 364 (1st Cir. 1991) and LaFrenier v. Kinirey, 478

F. Supp. 2d 126 (D. Mass. 2007). In Dean, the officers reasonably believed that the arrestee was

“an escaped felon who posed a serious safety threat to the officers and others,” “was armed, had

threatened to shoot any officer attempting to apprehend him, and had an extensive record of violent

crimes.” Dean, 924 F.2d at 368. In LaFrenier, it was undisputed that the arrestee “actively resisted

arrest and attempted to flee the scene throughout the encounter,” and engaged in “violent behavior”

that “clearly posed an immediate threat to himself and the officers.” LaFrenier, 478 F. Supp. 2d

at 138. Here, by contrast, taking the facts in the light most favorable to Freedman as described

above, there is a disputed record as to this claim and the officers’ defenses to this claim.

D. Count IV: 42 U.S.C. § 1983, Malicious Prosecution in Violation of the

Fourth Amendment

Freedman has withdrawn his claim under federal law for malicious prosecution. D. 51 at

1 n.1. Accordingly, the Court ALLOWS the Defendants’ motion for summary judgment with

respect to Count IV.

E. Count V: False Imprisonment

Freedman also brings a claim for false imprisonment against the Defendants. The elements

of false imprisonment are “(1) intentional and (2) unjustified (3) confinement of a person, (4)

directly or indirectly (5) of which the person confined is conscious or is harmed by such

confinement.” Ball v. Wal-Mart, Inc., 102 F. Supp. 2d 44, 55 (D. Mass. 2000). “Any restraint,

even without physical contact, is sufficient to constitute false imprisonment.” Id. Given this broad

definition, there is no dispute that Freedman was confined by police on the scene and then for the

purposes of arrest and transport. This claim, therefore, will turn upon the factfinder’s resolution

of justification of confinement for Freedman and cannot be resolved here on this disputed record

on summary judgment.

F. Count VI: Malicious Prosecution

Freedman also brings a claim for malicious prosecution under Massachusetts law against

the Defendants. To prove a claim of malicious prosecution under Massachusetts law, a plaintiff

“must show that [the defendant] instituted criminal proceedings against [him] with malice and

without probable cause and that those proceedings terminated in favor of [the plaintiff].” Correllas

v. Viveiros, 410 Mass. 314, 318 (1991). The Defendants contend that there is no genuine dispute

of material fact regarding Freedman’s state law malicious prosecution claim because there was

probable cause for the arrest. D. 48 at 21. The Court explained its reasons for rejecting that

argument above.

The Defendants also contend that there is no genuine dispute of material fact regarding the

liability of Burke, Mochi and Sullivan for malicious prosecution, because only Ali instituted the

criminal proceeding against Freedman. D. 48 at 21. “It is well established that a person need not

swear out a criminal complaint in order to be held answerable for malicious prosecution.”

Correllas, 410 Mass. at 318. “[A]n individual may be said to have instituted criminal proceedings

against another if he caused those proceedings to be initiated,” which includes “induc[ing] another

person (say, a police officer or prosecutor) to lodge formal criminal charges.” Limone v. United

States, 579 F.3d 79, 89 (1st Cir. 2009). Freedman contends that Burke, Mochi and Sullivan

induced the prosecutor to lodge criminal charges because they authored reports that falsely stated

that Freedman initiated the physical contact with Burke that evening. D. 51 at 19-20. Other judges

have previously held that action by officers to collaborate to write intentionally inaccurate reports

to justify an arrest can be considered to “cause” the initiation of criminal proceedings for the

purposes of a malicious prosecution claim. Ciolino v. Eastman, 128 F. Supp. 3d 366, 377 (D.

Mass. 2015) (denying summary judgment as to a malicious prosecution claim); see Goddard v.

Kelley, 629 F. Supp. 2d 115, 130 (D. Mass. 2009) (noting that “[s]omeone who, in bad faith,

provides information to a police officer that results in that officer submitting a complaint against

another may also be liable”). Freedman’s reliance on the “reports” written by the various officers,

however, does not save this claim, particularly where all but Ali’s report was a “use of force”

reports, D. 57 at 13 n.11, and there was no support in the record that these latter reports were relied

upon, or induced the prosecution of Freedman. Nor does the fact that officers Ali, Mochi and

Burke, were later called to testify at the trial support Freedman’s showing that such criminal

proceedings were instituted against him with malice. Accordingly, the Court ALLOWS the

Defendants’ motion for summary judgment as to Count VI as to Defendants Burke, Mochi and

Sullivan.

G. Count VII: Massachusetts Civil Rights Act (“MCRA”)

Finally, Freedman brings a claim under the MCRA against the Defendants. That statute

provides that “any person or persons, whether or not acting under color of law, [who] interfere[s]

by threats, intimidation or coercion, or attempt[s] to interfere by threats, intimidation or coercion,

with the exercise or enjoyment by any other person or persons of rights secured by the constitution

or laws of the United States, or of rights secured by the constitution or laws of the commonwealth”

may be held liable. Mass. Gen. L. c. 12, §§ 11H, 11I. “The MCRA contemplates a two-part

sequence: liability may be found where (1) the defendant threatens, intimidates, or coerces the

plaintiff in order to (2) cause the plaintiff to give up something that he has the constitutional right

to do.” Morrissey v. Town of Agawam, 883 F. Supp. 2d 300, 314 (D. Mass. 2012). The

Defendants contend they are entitled to qualified immunity on this count because the record does

not show that the Defendants acted to cause Freedman to give up something that he had the

constitutional right to do. D. 48 at 22. In support of this argument, the Defendants cite to Lund v.

Henderson, 22 F. Supp. 3d 94, 106 (D. Mass. 2014). In that case, the court explained that the

plaintiff’s arrest without probable cause and the use of excessive force could not be both the threat,

intimidation, or coercion and the constitutional right at issue, because it would not make sense to

say that the unlawful arrest and excessive force were used to cause the plaintiff to surrender his

right to be free from an unlawful arrest and excessive force. Id. at 106.

In this case, however, Freedman contends that the unlawful arrest and excessive force were

a form of threat, intimidation, or coercion to cause Freedman to surrender his constitutional right

to picket or criticize the police. D. 51 at 20-21. Freedman contends that the allegedly unlawful

arrest of Freedman “was coercion that deprived [Freedman] of his First Amendment right to

engage in expressive activity,” namely, the picket and criticism of the police. D. 51 at 23. For the

same reasons that a reasonable jury could conclude that Freedman’s protected conduct was a

“motivating factor” in the Defendants’ decision to arrest him, as discussed above with respect to

Count II, a reasonable jury could conclude that the allegedly unlawful arrest and excessive force

were motivated by a desire to intimidate or coerce Freedman into surrendering his First

Amendment right to engage in picketing or criticism of the police. This case is, therefore, distinct

from Lund, because unlike the plaintiff in that case, Freedman alleges an interference with a right

– the First Amendment right to engage in expressive activity – separate from the right to be free

from unlawful arrest and excessive force. Thus, the Court DENIES the Defendants’ motion for

summary judgment with respect to Count VII.

VI. Conclusion

For the foregoing reasons, the Defendants’ motion for summary judgment, D. 46, is

ALLOWED with respect to Count IV (malicious prosecution under federal law) as to all the

Defendants and Count VI (malicious prosecution under state law) with respect to Burke, Mochi

and Sullivan, and is DENIED in all other respects.

So Ordered.

/s/ Denise J. Casper

United States District Judge