Harper v. Massachusetts State Police

United States District Court

District of Massachusetts

)

Mark Harper, )

)

Plaintiff, )

)

v. )

) Civil Action No.

Christopher Booth, ) 17-cv-10252-NMG

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

This suit arises out of claim that a police officer

violated plaintiff’s constitutional rights by unlawfully

stopping the driver and towing his car, all while plaintiff was

suffering from a serious medical condition.

I. Background

Mark Harper (“Harper” or “plaintiff”), who is African

American, was driving in Attleboro, Massachusetts when he was

pulled over by Officer Christopher Booth (“Booth” or

“defendant”). Booth, who was driving a marked police car, had

conducted a random query of plaintiff’s license plate which

reported that the vehicle’s license plate was cancelled and last

registered to a different vehicle. The attached license plate

was also issued to a person with a suspended license.

During the stop, Booth notified plaintiff that the

vehicle’s license plate was cancelled and registered to another

vehicle, which plaintiff did not dispute. Plaintiff did,

however, have a valid license at that time. Following this

colloquy, Booth ordered Harper out of the vehicle and informed

him that he would be towing it. At some point during this

interaction, Harper allegedly told Booth that he was on the way

to the hospital because he was having a heart attack. Although

it is unclear if Booth indicated that he or the tow truck driver

would transport plaintiff to the hospital, the tow truck driver,

who eventually towed the vehicle, dropped Harper off at a nearby

gas station. From there, plaintiff called 911 and an ambulance

transported him to an emergency medical center.

Subsequently, plaintiff filed suit, pursuant to 42 U.S.C. §

1983, alleging that Officer Booth committed constitutional

violations by interfering with his right to travel, racially

profiling him and denying him of his property and medical care.

The defendant has filed a motion for summary judgment in

response to which plaintiff has filed a hand-written opposition

pro se. A hearing on the motion for summary judgment was held

on April 22, 2019.

II. Legal Analysis

A. Legal Standard

The role of summary judgment is to assess the proof in

order to see whether there is a genuine need for trial. Mesnick

v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). The

burden is on the moving party to show, through the pleadings,

discovery and affidavits, that there is “no genuine dispute as

to any material fact and that the movant is entitled to judgment

as a matter of law”. Fed. R. Civ. P. 56(a). A fact is material

if it “might affect the outcome of the suit under the governing

law”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A genuine issue of material fact exists where the evidence with

respect to the material fact in dispute “is such that a

reasonable jury could return a verdict for the nonmoving party”.

Id.

If the moving party has satisfied its burden, the burden

shifts to the nonmoving party to set forth specific facts

showing that there is a genuine, triable issue. Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). The Court must view the

entire record in the light most favorable to the nonmoving party

and indulge all reasonable inferences in that party’s favor.

O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary

judgment is appropriate if, after viewing the record in the

nonmoving party’s favor, the Court determines that no genuine

issue of material fact exists and that the moving party is

entitled to judgment as a matter of law. Celotex Corp., 477 U.S.

at 322–23.

B. Defendant’s Motion for Summary Judgment

1. Freedom to Travel

Plaintiff argues that the vehicle stop violated his

fundamental right to travel, which defendant does not address.

The constitutional right to travel refers to interstate travel,

as opposed to intrastate travel, and thus is not applicable

here. Nevertheless, the Court will briefly address the issue.

The “right to travel” under federal law protects the right

of 1) a citizen of one State to enter and to leave another

State, 2) a citizen to be treated as a welcome visitor when

temporarily present in the second State and 3) permanent

residents to be treated like other citizens of that State. Saenz

v. Roe, 526 U.S. 489, 500 (1999). The fundamental right to

travel is not, however, an absolute privilege and citizens are,

in any event, required to comply with federal and state laws.

Thus, plaintiff cannot claim that his right to travel was

violated because 1) he was traveling within the state and 2)

that right does not preclude him from being stopped by a police

officer for cause. The Court now turns to plaintiff’s argument

that he was unlawfully stopped.

2. Equal Protection

Plaintiff argues that there were other Caucasian drivers

who were speeding excessively but that Booth pulled him over

because he was African American.

Under the Equal Protection Clause of the Fourteenth

Amendment, persons similarly situated must be accorded similar

governmental treatment. Marrero-Gutierrez v. Molina, 491 F.3d 1,

9 (1st Cir. 2007) (internal citations omitted). Absent direct

evidence of discriminatory motive, plaintiff must, in the face

of a facially neutral decision, establish both disproportionate

impact and purposeful discrimination. Hayden v. Grayson, 134

F.3d 449, 453 (1st Cir. 1998). “Purposeful discrimination”

implies that the decisionmaker

selected or reaffirmed a course of action at least in part

“because of” not merely “in spite of” its adverse effects

upon an identifiable group”.

Id. (internal citations and quotations omitted).

Viewing the record in favor of the nonmoving party, this

Court presumes disparate impact, based on the allegation that

Booth pulled over Harper while there were other drivers, of a

different race, who were committing traffic-related offenses.

Plaintiff has provided no evidence, however, that Booth had the

requisite discriminatory purpose for pulling him over. In fact,

defendant has proffered evidence that he stopped Harper because

Harper was driving a vehicle with an expired license plate that

was registered to another vehicle. Thus, there is no evidence

that Harper was stopped “because of” his race. Accordingly, as

a matter of law, Booth is entitled to summary judgment with

respect to plaintiff’s claim that he was racially profiled in

violation of the Equal Protection Clause.

3. Procedural Due Process (Property)

Construing plaintiff’s complaint liberally, the Court

concludes that he has sufficiently alleged a procedural due

process violation with respect to the towing of his vehicle.

Booth does not address that argument but generally rejoins that

plaintiff was driving an unregistered and unlicensed vehicle (in

violation of M.G.L. c. 90, §§ 9, 23 and 34J) that could not

lawfully be operated on the roadways of the Commonwealth. At

oral argument, defense counsel represented that Booth issued

Harper a ticket, although the timing of when that ticket was

issued remains in dispute.

The First Circuit Court of Appeals has not addressed

potential Due Process violations in the car-towing context and

defendant does not cite any Massachusetts statute or caselaw

that authorizes an officer to have a vehicle towed or impounded

without issuing the requisite ticket. Several courts have,

however, held that

when a car is towed or impounded, some form of fair and

impartial hearing at which an owner is provided an

opportunity to challenge the lawfulness of removing his car

and assessing charges against him must be provided within a

reasonable time period.

Breath v. Cronvich, 729 F.2d 1006, 1011 (5th Cir. 1984); see

also Huemmer v. Mayor & City Council of Ocean City, 632 F.2d

371, 372 (4th Cir. 1980); Stypmann v. City and County of San

Francisco, 557 F.2d 1338, 1343-44 (9th Cir. 1977).

Because the timing of the issuance of the ticket remains in

dispute, plaintiff has stated a claim for denial of due process

with respect to the towing. Thus, the Court will deny

defendant’s motion for summary judgment on that claim.

In the absence of argument on the subject, it is worth

noting that Massachusetts courts have held that where a vehicle

is “unregistered, uninsured, and had attached plates belonging

to another vehicle”, officers may impound and inventory the

vehicle if there were “no practical available alternative[s]”.

Com. v. Daley, 672 N.E.2d 101, 103 (Mass. 1996). The Court

finds, however, that Daley and its progeny of cases are

unpersuasive here. First, those cases arose out of Fourth

Amendment claims and thus the opinions never considered whether

the Due Process rights of the subject criminal defendants were

violated. Moreover, in many of those cases, the drivers were

either arrested or found to be without a valid license, thus

leaving the officer with no practical alternative to towing. Cf.

Com v. Figueroa, 592 N.E.2d 1309 (Mass. 1992) (driver was

arrested and had no valid license); Daley, 672 N.E.2d at 103

(both the driver and passenger lacked valid driver’s licenses).

Because plaintiff had a valid license at the time of the stop,

there was an alternative to towing and thus, the cited

Massachusetts cases are inapposite.

4. Substantive Due Process (Medical Care)

Plaintiff argues that Booth failed to provide medical care

while he was having a heart attack to which defendant responds

that, absent being in custody or incarcerated, a constitutional

claim for failure to provide medical treatment does not exist.

The Eighth Amendment, which proscribes cruel and unusual

punishment (such as the failure to provide medical care),

applies after a formal adjudication of guilt and is thus not

applicable here, where plaintiff was not imprisoned or even

detained. City of Revere v. Massachusetts Gen. Hosp., 463 U.S.

239, 243–44 (1983).

The Due Process Clause does, however, require the

responsible government or governmental agency to

provide medical care to persons . . . who have been injured

while being apprehended by the police.

Id. While the Supreme Court has declined to define the contours

of that due process right, it held that 1) officers have a due

process obligation to “other persons in [their] care who

require medical attention” and 2) the constitutional obligation

is satisfied if the injured individual is taken “promptly to a

hospital” that ultimately provides the necessary treatment. Id.

at 244–45.

Here, plaintiff has alleged that prior to the vehicle stop,

he was on his way to the hospital and that during the encounter,

he was short of breath and having a heart attack. Despite

plaintiff’s purported medical condition, Booth impounded the

vehicle and did not transport plaintiff to the hospital. In

fact, contrary to plaintiff’s request to be taken to the

hospital, the tow truck driver dropped him off at a nearby gas

station where plaintiff called an ambulance. Viewing the record

in favor of the nonmoving party, the Court will deny Booth’s

motion for summary judgment with respect to the medical care

claim because, in seizing plaintiff and his property, Booth is

alleged to have failed to provide medical attention to an

individual who was “in [his] care” during the stop.

5. Qualified Immunity

Defendant contends that he is entitled to

qualified immunity, which protects government officials from

trial and monetary liability unless the pleaded facts establish

that 1) the official violated a statutory or constitutional

right and 2) the right was “clearly established” at the time of

the challenged conduct. Ashcroft v. al–Kidd, 563 U.S. 731, 735

(2011). If the facts do not show a constitutional violation or

that the right in question was not clearly established, the

officer is immune. Marrero-Mendez v. Calixto-Rodriguez, 830 F.3d

38, 43 (1st Cir. 2016).

The Court concludes that plaintiff has alleged facts

sufficient to support a Due Process claim with respect to the

lack of medical care and the towing of the vehicle. Under the

second prong of the analysis, the rights in question are

“clearly established” when

[t]he contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.

Id. at 45.

Here, the United States Supreme Court has made clear that

individuals have fundamental Due Process rights with respect to

their property and medical care. Thus, it was unreasonable for

Booth to leave Harper without an option to get to the hospital

after Harper told him he was suffering from a serious medical

condition. With respect to the towing, the facts as to notice

are not evident in the record and thus the Court reserves its

finding on qualified immunity as applied to that claim.

ORDER

For the foregoing reasons, defendant’s motion for summary

judgment (Docket No. 56) is DENIED.

So ordered.

_/s/ Nathaniel M. Gorton_____

Nathaniel M. Gorton

United States District Judge

Dated May 23, 2019