Abdul-Hasib v. National Railroad Passenger Corporation

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION No. 18-10933-RGS

HASAN ABDUL-HASIB

v.

NATIONAL RAILROAD PASSENGER

CORPORATION and COLIN SMITH

MEMORANDUM AND ORDER ON

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

May 28, 2019

STEARNS, D.J.

This case is before the court on the motion of defendants National

Railroad Passenger Corporation (Amtrak) and Amtrak police officer Colin

Smith for summary judgment. Viewed in the light most favorable to Hasan

Abdul-Hasib, the nonmoving party, the facts are as follows. The dispute has

its origins on May 12, 2016, in an invitation given by Officer Smith to a

woman passenger and her two children to pre-board an Amtrak train before

the conductor had given the all-clear signal. Abdul-Hasib, an Amtrak

gateman, deemed the gesture unsafe and sought to intercede. A heated

exchange ensued with Abdul-Hasib insisting that he would not give Smith

permission to board anyone at that time. Smith ordered Abdul-Hasib to

return to his post. Abdul-Hasib responded by threatening to have Smith

fired. A shoving match followed, although Smith and Abdul-Hasib disagree

about who first touched the other. Abdul-Hasib admits that during the

shoving match he “contacted Smith in self-defense.” Pl.’s Statement of

Disputed Facts (SODF), Dkt # 24, ¶ 6. When Smith again ordered Abdul-

Hasib onto the train, matters escalated. Smith then decided to arrest Abdul-

Hasib for disorderly conduct. He took Abdul-Hasib to the ground and got on

top of him, informing him that he was under arrest. Abdul-Hasib complained

loudly of pain to his hand and knee resisted being placed in handcuffs.

Abdul-Hasib submitted to the arrest only after a female Amtrak officer came

on the scene to assist. In response to Abdul-Hasib’s complaints, Smith called

emergency personnel who took Abdul-Hasib to Massachusetts General

Hospital for evaluation. The treating physician observed no serious injuries

but noted Abdul-Hasib’s subjective complaints of pain. After a disciplinary

hearing, Amtrak later terminated Abdul-Hasib.

Abdul-Hasib was criminally charged by Officer Smith with disorderly

conduct, resisting arrest, and assault and battery on a police officer. At a

hearing on February 24, 2017, a Boston Municipal Court (BMC) judge placed

Abdul-Hasib on six months pretrial probation, nunc pro tunc to May 12,

2016 (the date of the altercation and arraignment). Given the passage of

time, the charges were dismissed that same day. The BMC docket states “[a]s

to all counts: Deft placed on Pre-Trial Probation under the Provisions of ch.

276 s. 87 . . . 6 months . . . nunc pro tunc 5/12/16.” Ex. 13 (Dkt # 17-13) at 1.

Abdul-Hasib subsequently brought this lawsuit against Amtrak and

Officer Smith in the Suffolk Superior Court. Defendants removed the case to

the federal district court pursuant to 28 U.S.C. § 1349 (Amtrak is

incorporated under an Act of Congress “and more than one half of its capital

stock is owned by the United States”) and 28 U.S.C. § 1443 (federal question

grounds).

The Amended Complaint sets out seven counts against Officer Smith:

“unreasonable seizure” (Count V), malicious prosecution (Count VI), and

excessive force (Count VII) under the Federal Civil Rights Act (§ 1983);

assault and battery (Count I), false imprisonment (Count II), and malicious

prosecution (Count III) under Massachusetts common law; and violations of

the Massachusetts Civil Rights Act (MCRA) (Count IV). The Amended

Complaint further alleges that Amtrak is “vicariously liable” for the tortious

conduct alleged against Officer Smith in Counts I-IV and was independently

negligent in hiring and retaining Smith (Count VIII). Defendants seek

summary judgment on three grounds: (1) probable cause to arrest; (2)

qualified immunity; and (3) insufficient evidence to support the negligent

hiring claim against Amtrak. Defendants also object to most of the common-

law counts, arguing failures of law or evidence.

“When the constitutional validity of an arrest is challenged, it is the

function of a court to determine whether the facts available to the officers at

the moment of the arrest would ‘warrant a man of reasonable caution in the

belief’ that an offense has been committed.” Beck v. Ohio, 379 U.S. 89, 96

(1964), quoting Carroll v. United States, 267 U.S. 132, 162 (1925). “The only

relevant facts are those known [or imputed] to the officer. When these facts

are in reasonable dispute, the fact-finder must resolve the dispute. . . .

However, when the underlying facts claimed to support probable cause are

not in dispute, whether those ‘raw facts’ constitute probable cause is an issue

of law . . . .” Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009)

(citation omitted).

Here, on the “raw facts” admitted by Abdul-Hasib (that he physically

“contacted” Officer Smith before any formal arrest could be effected), there

is no doubt that Smith had probable cause to arrest him for assault and

battery on a police officer. Abdul-Hasib’s argument that his use of force

against Officer Smith was a justifiable exercise of self-defense has no legal

significance. Massachusetts has abandoned the common-law rule that

permitted forcible resistance to an arrest that a defendant sincerely believed

to be unlawful. See Commonwealth v. Moreira, 388 Mass. 596, 601 (1983)

(“[I]n the absence of excessive or unnecessary force by an arresting officer, a

person may not use force to resist an arrest by one he knows or has good

reason to believe is an authorized police officer, engaged in the performance

of his duties, regardless of whether the arrest was unlawful in the

circumstances.”). In a similar vein, the Supreme Court has emphatically

rejected the so-called “provocation rule” under which an officer’s reasonable

use of force may nonetheless be deemed unreasonable where the

confrontation is brought on by the officer’s preceding unconstitutional

conduct. See County of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546-1548

(2017), abrogating Billington v. Smith, 292 F.3d 1777 (9th Cir. 2002).

While the finding of probable cause to arrest disposes of the false arrest

and unlawful seizure claims, that does not conclude the issue. Under both

the federal and state Civil Rights Acts and at common law, probable cause

does not license the use of excessive, or more accurately in this case,

disproportionate force in effecting an arrest. An officer, of course, as Smith

argues, is entitled to use whatever reasonable amount of force is necessary to

compel a defendant to submit to an arrest. The critical dispute here,

however, is whether, after taking control of the situation (by forcing Abdul-

Hasib to the ground), Smith used more force than necessary to subdue

Abdul-Hasib; and whether his actions in continuing to pin Abdul-Hasib to

the ground after he began complaining of pain to his hand and to his knee,

were reasonable.

“[A]ll claims that law enforcement officers have used excessive force —

deadly or not — in the course of an arrest” are decided under a Fourth

Amendment standard of reasonableness, the proper application of which

“requires careful attention to the facts and circumstances of each particular

case, including the severity of the crime at issue, whether the suspect poses

an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Graham v.

Connor, 490 U.S. 386, 395-396 (1989) (emphasis in original). Ultimately,

the issue is one of proportionality. See Dean v. City of Worcester, 924 F.2d

364, 369 (1st Cir. 1991) (noting that greater force may be justified by

extenuating circumstances facing officers such as “the reasonably perceived

need to subdue an armed felon on a busy city street”); Connor, 490 U.S. at

396-397 (“The calculus of reasonableness must embody allowance for the

fact that police officers are often forced to make split-second judgments – in

circumstances that are tense, uncertain, and rapidly evolving – about the

amount of force that is necessary in a particular situation.”).

Here, however, the Connor factors have no special bite. Officer Smith

was aware that Abdul-Hasib was a fellow Amtrak employee and did not pose

a risk of flight, nor were the crimes for which he was arrested (misdemeanors

under state law) particularly severe. While it appears true that Abdul-Hasib

was actively resisting arrest, a reasonable finder of fact might conclude that

his resistance was a reaction to being placed in a physically painful position,

rather than an attempt to escape from the arrest.

There is a caveat. As the Supreme Court has reminded us, because of

the fact-intensive nature of the inquiry, when it comes to excessive force

claims, the qualified immunity doctrine does have special bite. See Kisela v.

Hughes, 138 S. Ct. 1148, 1152-1153, 1154 (2018) (per curiam) (cautioning

courts of appeals against undue generality in their approach and noting that,

under Supreme Court precedent, officers are entitled to qualified immunity

unless a prior case “squarely governs” – “a reasonable officer is not required

to foresee judicial decisions that do not yet exist in instances where the

requirements of the Fourth Amendment are far from obvious”). Seizing on

this caution, defendants, citing Kisela, argue that Officer Smith is entitled to

qualified immunity. However, Kisela and Mullenix v. Luna, 136 S. Ct. 305,

311 (2015) (per curiam) (cited in Kisela), are cases involving the use of deadly

force and have little relevance to this garden variety excessive force claim.

It is true that to defeat a claim of qualified immunity, the precedent

invoked “must be clear enough that every reasonable official would interpret

it to establish the particular rule the plaintiff seeks to apply.” District of

Columbia v. Wesby, 138 S. Ct. 577, 590 (2018). The case that comes the

closest to providing support for Officer Smith is City of Escondido v.

Emmons, 139 S. Ct. 500, 503 (2019) (per curiam) (finding no clearly

established rule prohibiting the “takedown” of a person engaged in the

misdemeanor offense of resisting a police officer). However, the issue here

is not the takedown of Abdul-Hasib, but what happened next. In the context

of this case, it has long been clear that there is no justification for the use of

disproportionate force by police in the course of making a routine arrest.

That a genuine dispute of fact exists over the amount of force used by Officer

Smith to restrain Abdul-Hasib once he was pinned to the ground is enough

to preserve the excessive force claims under § 1983 and the MCRA.

As previously noted, the existence of probable cause (later ratified by

the BMC) disposes of most of the remaining civil rights and common-law

claims against Smith, namely unreasonable seizure, false arrest, and false

imprisonment. See Street v. Surdyka, 492 F.2d 368, 372-373 (4th Cir. 1974)

(“[T]here is no cause of action for false arrest under § 1983 unless the

arresting officer lacked probable cause.”); Devenpeck v. Alford, 543 U.S. 146,

153 (2004) (holding that so long as probable cause exists justifying an arrest

for some offense, it is of no consequence that the basis stated by the arresting

officer is legally invalid). The malicious prosecution claim fails for the same

reason. See Hernandez-Cuevas v. Taylor, 723 F.3d 91, 99-101 (1st Cir. 2013)

(while under the First Circuit’s “purely constitutional” approach a plaintiff

may bring a malicious prosecution claim the Fourth Amendment, he must

first show that he was unreasonably seized); see also Broussard v. Great Atl.

& Pac. Tea Co., 324 Mass. 323, 326 (1949) (under Massachusetts law, a

conviction, even one later reversed on appeal, conclusively establishes

probable cause).1 The remaining common-law claim, assault and battery, is

subsumed in the civil rights damages claims and may best be waived by

plaintiff to avoid jury confusion (and the potential of forfeiting an award of

attorney’s fees).

Of the claims against Amtrak, the generic “vicarious liability” theory

appears to be more like an insurance policy for any payment of damages

should they be awarded against Officer Smith (something that Amtrak is

likely obligated to do in any event) than an actual cause of action. To the

1 Contrary to Abdul-Hasib’s belief, he was convicted in the BMC. While

Mass. Gen. Laws ch. 276, § 87 permits an order of pretrial probation in

contemplation of dismissal (with the Commonwealth’s assent), it is not a

dispositional statute. Commonwealth v. Tim T., a juvenile, 437 Mass. 592,

597 (2002).

extent the theory depends on claims against Officer Smith that the court has

dismissed, the theory has no applicability. Finally, I agree with Amtrak that

there is no evidence of improper hiring or training of Officer Smith, as

plaintiff concedes in his SODF.

ORDER

For the foregoing reasons, the motion for summary judgment is

ALLOWED as to Counts II, III, V, VI, and VIII of the Amended Complaint.

The remaining claims Counts IV and VII for excessive force (and Count I

should plaintiff elect to proceed on the assault and battery claim) will be set

for trial.

SO ORDERED.

/s/ Richard G. Stearns__________

UNITED STATES DISTRICT JUDGE