Taylor v. Town of Falmouth

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

CARLI A. TAYLOR, )

)

Plaintiff, )

)

v. ) Civil Action

) No. 17-11443-PBS

PATROL OFFICER RYAN MOORE )

and TOWN OF FALMOUTH, )

)

Defendants. )

___________________________________)

MEMORANDUM AND ORDER

June 6, 2019

Saris, C.J.

INTRODUCTION

Plaintiff Carli A. Taylor asserts that Patrol Officer Ryan

Moore violated her civil rights under 42 U.S.C. § 1983 and the

Massachusetts Civil Rights Act during a traffic stop in

Falmouth, Massachusetts. She alleges that Moore used excessive

force when, after stopping her for suspected drunk driving, he

grabbed her arm, pulled her out of the car, put her on the

ground, placed his knee on her back, and tased her. She also

asserts a claim against the Town of Falmouth for its failure to

discipline, train, or supervise its officers. Defendants move

for summary judgment, arguing that Moore is protected by

qualified immunity and that Taylor presents no evidence to

support an allegation that the Town was deliberately indifferent

to the rights of its citizens. After hearing, the Court ALLOWS

IN PART and DENIES IN PART Defendants’ motion for summary

judgment (Docket No. 56).

BACKGROUND

The parties heavily dispute the facts concerning the night

in question, but at this stage of the litigation, the Court

reviews the record in the light most favorable to the nonmoving

party. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217

F.3d 46, 52 (1st Cir. 2000).

I. Drunk Driving

On the night of Tuesday, September 9, 2014, Carli A. Taylor

met a friend for dinner at Bobby Byrne’s Restaurant and Pub in

Mashpee on Cape Cod. She had a beer and ordered dinner.

Afterwards, Taylor drove to two other bars. Taylor does not

remember the name of the second bar, or how long she stayed

there. She does remember driving to the third location, the

Añejo Mexican Bistro & Tequila Bar in Falmouth, Massachusetts.

At Añejo, Taylor had a margarita. When Taylor left Añejo to

drive home, bar employees took down her license plate number and

called the police to report suspected drunk driving. Falmouth

patrol officers were subsequently dispatched to find her.

Taylor was driving herself home along Route 28 in Falmouth

when she observed two bicyclists on her right and had to

“swerve” to go around them. Almost immediately afterwards,

Taylor saw blue police lights go on behind her. Docket No. 58-1

at 53:12-18. She pulled over, turned her car off, and produced

her license and registration when the officer approached her

driver-side window. Patrol Officer Ryan Moore of the Falmouth

Police Department asked Taylor if she knew why he had pulled her

over, and she said she did not. She lied and said that she was

coming from work. After further conversation, Taylor eventually

admitted that she had been at Añejo. Taylor knew she was in

trouble at the time because she had consumed too much alcohol to

drive.

Moore asked Taylor to “step out of the car,” at which point

Taylor said that she “would like to wait for backup.” Id. at

56:4-13. Moore then went back to his cruiser. When Moore

returned to Taylor’s car, he again requested that she step out

of the vehicle and asked Taylor to perform a field sobriety

test. At this point Moore’s demeanor was “forceful” but he was

not “yelling.” Id. at 57:3-6. Taylor stated again that she

“would wait for backup” before getting out of the car. Id. at

56:4-13; Docket No. 64-1 at 68:22. Moore continued to tell

Taylor that she needed to take a field sobriety test, or she

would be arrested based on his observations. Taylor continued to

refuse to get out of the car without back-up present. Moore went

back to the rear of the vehicle and called dispatch to send

another police unit. Moore returned to Taylor’s driver-side

window and again asked her to get out of the car. And again,

Taylor refused. She does not know exactly how many times Moore

told her to get out the car during their conversation.

II. Use of Force

Without warning, Moore proceeded to reach in through

Taylor’s open driver-side window, open the car door, grab

Taylor’s arm, and pull her out of the car. Once Taylor was out

of the car, Moore dragged Taylor to the rear of the vehicle,

away from the road. Taylor was not resisting at this point and

her feet barely hit the ground. Moore then put Taylor on the

ground, face first. Taylor describes being “slammed” into the

ground causing her eye to hit a rock. Docket No. 34 ¶ 191.

With Taylor prone on the ground, Moore pressed his knee

into her back, a position he characterizes as a “full body

mount.” Docket No. 34 ¶ 19; Docket No. 64 ¶ 101. Moore attempted

to get control of Taylor’s hands in order to handcuff her.

Taylor was screaming for help at this point. Moore ordered her

to stop resisting and put her hands behind her back for cuffing.

Whenever she attempted to lift her head off the ground, Moore

1 During her deposition, Taylor was asked to confirm whether paragraphs 9

through 46 of her complaint were “true and accurate.” Docket No. 72-4 at

155:3-4. She replied that they were “[t]o the best of [her] knowledge” and

made one modification to paragraph 14. Id. at 155:5-13. At the hearing,

Plaintiff’s counsel agreed that the complaint was “verified” with respect to

these paragraphs. See also Docket No. 72 at 3.

pushed it back down. Taylor pleaded for Moore to release her,

stating that she would do whatever he wanted her to do.

With his knee still on top of Taylor’s back, Moore

unholstered his taser and threatened to deploy it. Taylor

asserts that the “full body mount” position made it impossible

for her to comply with Moore’s orders. The only thing she could

move was her head and hear hands were beside her. Moore told

Taylor that if she “didn’t shut up he was going to taze [her].”

Docket No. 58-1 at 75:22-24; Docket No. 64-1 at 81:8-11. Taylor

tried to look back at Moore, but he proceeded to lift her shirt

and place the taser’s electrodes directly on her back. Moore

then deployed his taser in “drive-stun” mode. The parties

dispute how many times Moore tased Taylor, with Taylor asserting

that she was tased at least two times. Taylor screamed out in

pain and then went motionless.

Moore stayed with his knee on Taylor’s back, using his body

weight to control her until a second officer arrived. At the

time of the incident, Taylor was five feet, five inches tall and

weighed 125 pounds. Officer Walker arrived at the scene, and the

two officers placed Taylor in handcuffs. The officers lifted

Taylor off the ground and placed her in the back of a police

cruiser, with one officer having to fold her legs into the car

in order to close the door because she was unable to do so at

that point due to the taser.

The officers transported Taylor back to the police station

where she was booked and charged with several offenses. Sergeant

Cummings made notes regarding Taylor’s injuries. Photographs of

her injuries were also taken, which show cuts, scratches, and

abrasions on Taylor’s arms, shoulders, and right hand. Photos

also appear to show four marks on Taylor’s back. Taylor refused

to take a breathalyzer test and was ultimately released to her

mother and sister at 2:00 AM on September 10, 2014.

III. Aftermath

Later on September 10, Taylor appeared in court and then

went to Falmouth Hospital for emergency medical care. Taylor was

diagnosed with facial trauma, with additional diagnoses of

concussion and headache. Since the incident, Taylor has

experienced frequent migraines, headaches, nausea, sound and

light sensitivity. In November of 2016, Dr. Deborah Tepper

diagnosed Taylor with chronic post-traumatic headaches, which

started immediately after her concussion. In March of 2018,

Taylor sought evaluation for what she described as near daily

headaches and was diagnosed by Dr. John Pettinato with chronic

migraines. With respect to the charges against her, Taylor

eventually admitted to facts sufficient to make out the charge

of driving under the influence, which was continued without a

finding.

IV. Experts

A. Plaintiff’s Medical Expert

Dr. Gary Stanton conducted a physical examination of Taylor

on December 13, 2018 and reviewed her prior medical records,

including notes from Drs. Tepper and Pettinato. After his

physical examination of the Plaintiff, Dr. Stanton diagnosed her

with postconcussion syndrome, migraines, cough/sneeze-induced

headaches, and Chiari I malformation. As to the causal

relationship for Taylor’s headaches, Dr. Station opined: “In my

opinion, the incident of 9/09/2014 was causally related to Ms.

Taylor’s ongoing complaints of posttraumatic headaches, which in

her case is a symptom of a postconcussion syndrome.” Docket No.

75-5 at 7. He went on to state that Taylor’s “postconcussion

syndrome [was] unlikely to substantially change in the next

year,” and that while she complained of “mild memory

difficulties,” it “does not interfere with activities of daily

living.” Id.

B. Plaintiff’s Use of Force Expert

David W. O’Laughlin, Taylor’s use-of-force consultant, has

more than 43 years of experience in law enforcement, is a

certified master instructor in the use of force, and holds more

than 30 additional federal, state, and industry certifications

in law enforcement force-related disciplines. After reviewing

Falmouth Police Department policies, and reports from the night

of the incident, O’Laughlin stated that “[i]n [his] many years

as a defensive tactics instructor[,] [he had] not heard of [a

full body mount] and [does] not recognize it as one being taught

by the Massachusetts Police Training Committee.” Docket No. 64-

3 at 4. He opined that “Moore had no legitimate reason to remove

[Taylor] from the vehicle, as the vehicle was pulled to the side

of the road, was not running and was not creating a

hazard. . . . [H]er forceful removal from her vehicle was both

unreasonable and unnecessary.” Id. As to the tasing, O’Laughlin

stated Moore’s use of an electronic control device was “both

extreme and unnecessary.” Id. at 5. However, he conceded that

she was only tased once. Id. He explained that “[p]art of

defensive tactics training incorporates the practice of de-

escalation, using time and distance and the avoidance of

physical force.” Id. “Officer Moore,” O’Laughlin observed, “had

called for back-up assistance and yet decided not to wait for

that assistance, but instead became involved in actions using a

significant amount of force on an unarmed female who at best was

offering passive resistance.” Id. He continued that tasing “is

usually reserved for use on a person who has committed a crime

of violence and is presenting a danger or high risk of harm to

the officer,” and that “committing traffic violations, and being

suspected of driving under the influence does not rise to . . .

a level of danger to the officer that would result in the use of

such a high level of force.” Id. Finally, O’Laughlin concluded

that Moore did not act in accordance with the Falmouth police

Department’s policy on electronic control devices because “[i]t

is the policy of [the FPD] to use only that level of force

reasonable to control or otherwise subdue violent or potentially

violent individuals,” and “Taylor could not have posed a threat

to Officer Moore or any others, as she was down, on the ground,

in a so-called ‘full body mount’ at the point of being tasered.”

Id. at 6.

C. Defendants’ Taser Expert

Defendants initially submitted an affidavit from Bryan

Chiles, the product compliance manager and former validation

test manager of Axon Enterprise, Inc. (formerly TASER

International, Inc.), and then submitted a second affidavit

after the motion hearing. Chiles is currently responsible for

coordinating the testing and certification of Axon’s products,

and for conducting forensic investigations of Axon’s Conducted

Energy Weapons (CEW) products. The TASER X2 CEW has two

cartridge bays which allow two taser cartridges to be installed

at the same time. In his second affidavit, Chiles explained that

each cartridge has two electrodes, so that when both cartridges

are installed in the taser, the taser has four total electrodes

– two in the first cartridge bay and two in the second cartridge

bay.

There are two main ways to use a CEW – deploy a cartridge,

in which probes are fired at the subject, or drive-stun

application, in which the CEW is applied directly to the skin of

the subject without deploying the probes. Cartridge deployment

is designed to cause neuromuscular incapacitation, where as

drive-stun application only affects the sensory nerves of a

subject and does not cause a subject to lose voluntary muscle

movement. When the front of the X2 CEW is pressed against a

subject’s skin for a drive-stun application, “four burn marks in

the pattern of the four X2 CEW cartridge electrodes may be

visible on the skin from a single application.” Docket No. 78-4

¶ 15, at 6.

Chiles assertion that the X2 has four electrodes

contradicts the testimony of Detective Christopher Bartolomei,

submitted by Defendants prior to the motion hearing. Bartolomei,

the certified TASER and defensive tactics instructor for the

Falmouth Police Department, stated that the “Arc discharge also

allows for an officer to use the X2 in the ‘drive-stun’

(touch/contact) mode in which electrical impulses are

transmitted to an individual superficially through two fixed

electrodes on the front of the Taser.” Docket No. 58-6 ¶ 13, at

2 (emphasis added).

Turning to the taser log submitted by Defendants, Chiles

explains that the X2 CEW automatically records the date, time,

and details of each event in its event log (also known as a

download report or TASER report). The X2 CEW records “every time

the weapon is armed, the trigger is pulled, either ARC switch is

pressed to activate the high voltage, the menu is accessed, the

time is changed, the safety switch is placed in the safe

position,” etc. Docket No. 58-6 ¶ 13, at 9. A duration listed in

the event log is rounded up to the nearest second, so a duration

of 1 second can be anything from less than 0.05 seconds to 1.49

seconds. An “arc” event in the log means one of the X2 CEW’s arc

switches was pressed for more than 0.25 seconds in which high

voltage was activated for both cartridge bays, but neither

cartridge was deployed. Id. ¶ 29, at 12. Chiles’s analysis of

Moore’s X2 CEW event log reveals that the arc button activating

high voltage was pressed twice during the night, once at

10:54:25 p.m. at the beginning of Moore’s shift and again at

11:35:04 p.m. for a recorded duration of one second each. Chiles

concludes that “[i]n total, from September 9, 2014 11:00 p.m. to

September 10, 2014, 12:00 a.m., this CEW activated to deliver

electricity in ‘drive stun’ (arc) mode for a duration of one (1)

second.” Id. ¶ 34, at 14.

LEGAL STANDARD

Summary judgment is appropriate when there is “no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue is

“genuine if the evidence about the fact is such that a

reasonable jury could resolve the point in the favor of the non-

moving party,” and “[a] fact is material if it has the potential

of determining the outcome of the litigation.” Farmers Ins.

Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quotation

omitted). The moving party is responsible for “identifying those

portions of [the record] which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). It can meet this burden

either by “offering evidence to disprove an element of the

plaintiff's case or by demonstrating an ‘absence of evidence to

support the non-moving party's case.’” Rakes v. United States,

352 F. Supp. 2d 47, 52 (D. Mass. 2005) (quoting Celotex, 477

U.S. at 325). If the moving party shows the absence of a

disputed material fact, the burden shifts to the non-moving

party to “set forth specific facts showing that there is a

genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 256 (1986) (quotation omitted). “[C]onclusory

allegations, improbable inferences, and unsupported speculation”

are insufficient to create a genuine issue of material fact to

survive summary judgment. Sullivan v. City of Springfield, 561

F.3d 7, 14 (1st Cir. 2009) (quotation omitted). When ruling on a

motion for summary judgment, the court “view[s] the facts in the

light most favorable to the party opposing summary judgment.”

Rivera–Colón v. Mills, 635 F.3d 9, 10 (1st Cir. 2011).

DISCUSSION

I. Civil Rights Claims Against Moore (Counts I and II)

Moore argues that Taylor’s excessive force claims under 42

U.S.C. § 1983 and the Massachusetts Civil Rights Act fail as a

matter of law because he is entitled to qualified immunity.

“Qualified immunity affords limited protection to public

officials faced with liability under 42 U.S.C. § 1983, ‘insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.’” Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir. 2010)

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The

qualified immunity analysis has two prongs: (1) whether the

facts that plaintiff has shown make out a violation of a

constitutional right, and (2) whether the right at issue was

“clearly established” at the time of defendant’s alleged

misconduct. Pearson, 555 U.S. at 232. These two prongs do not

need to be considered in a particular order, see id. at 236, but

“both prongs must be satisfied for a plaintiff to overcome a

qualified immunity defense,” Raiche, 623 F.3d at 35.

A. Constitutional Violation

“Excessive force claims are founded on the Fourth Amendment

right to be free from unreasonable seizures of the person.”

Raiche, 623 F.3d at 36. “The Fourth Amendment is implicated

where an officer exceeds the bounds of reasonable force in

effecting an arrest or investigatory stop.” Id. Whether the

force employed was reasonable under the circumstances is an

objective inquiry that is determined “in light of the facts and

circumstances confronting [the officers], without regard to

their underlying intent or motivation.” Graham, 490 U.S. at 397.

Factors to be considered include “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.”

Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007) (quoting

Graham, 490 U.S. at 396).

The question is whether a reasonable jury could find that

Moore violated Taylor's Fourth Amendment rights through the use

of excessive force. See Gray v. Cummings, 917 F.3d 1, 8 (1st

Cir. 2019). Viewing the record in the light most favorable to

Taylor, and drawing all reasonable inferences in her favor, a

reasonable jury could find that the force employed by Moore was

constitutionally excessive.

As a threshold matter, Moore had the right to require

Taylor to step out of the car. See United States v. Ruidiaz, 529

F.3d 25, 32 (1st Cir. 2008) (holding it is within an officer’s

authority to order the driver and any passengers out of the car

during a Terry stop, and that the officer can do so “as a matter

of course” without an “independent fear for his safety”); United

States v. Coplin, 463 F.3d 96, 102 (1st Cir. 2006) (noting that

“a police officer may, as a matter of course, require the driver

of a car lawfully stopped for a suspected traffic violation to

step out of his vehicle”). When Taylor refused to leave the car,

Moore had the right to use reasonable physical force to remove

her. “[T]he right to make an arrest or investigatory stop

necessarily carries with it the right to use some degree of

physical coercion or threat thereof to effect it.” Graham, 490

U.S. at 396. By her own account, Taylor was given multiple

chances to comply with Moore’s commands, and the amount of force

used was proportionate. See Boude v. City of Raymore, 855 F.3d

930, 934 (8th Cir. 2017) (“Officers are justified in using force

to remove a driver, whom they believed to be impaired, from his

vehicle after he refused to comply with their order to exit.”

(quotation omitted)). To this point, Moore’s actions were not

objectively unreasonable in light of the circumstances.

Taylor also alleges Moore used excessive force in taking

her to the ground, placing her in a “full body mount,” and

tasing her. The Graham factors cut both ways. With respect to

the first factor - the severity of the crime - drunk driving is

a serious offense, but once Moore pulled Taylor out of the car,

she was no longer able to drive away while intoxicated.

Moreover, it is not a violent crime like an assault or robbery.

See Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir. 2008) (“Though

driving while intoxicated is a serious offense, it does not

present a risk of danger to the arresting officer that is

presented when an officer confronts a suspect engaged in an

offense like robbery or assault.”). This factor weighs slightly

in Defendants’ favor. As to the second Graham factor - whether

the suspect poses an immediate threat to the safety of the

officers or others – Taylor was not an immediate threat to other

motorists, bicyclists, or Moore once she was out of the car.

There is no evidence that Taylor was threatening Moore once she

was out of the car, and a “jury could supportably find that, at

the time of the tasing, [Taylor] had been subdued [via a “full

body mount”] to a point at which she no longer posed a threat.”

Gray, 917 F.3d at 9. This factor weighs in favor of Taylor.

With respect to the third Graham factor – whether she was

actually resisting arrest - the parties heavily dispute whether

Taylor actually resisted arrest while on the ground. Viewing the

facts in the light most favorable to Taylor, a reasonable jury

could find she was not resisting when Moore dragged her to the

rear of the vehicle and slammed her to the ground before Moore

tased her. Instead, in her version, Taylor was not physically

able to comply with any order to put her hands behind her back

because of the way in which Moore was kneeling on her back in a

“full body mount.” Taylor pleaded with Moore that she would do

anything he wanted at that point, and yet when Taylor looked

back at Moore, he proceeded to deploy a pain compliance tool in

“drive-stun” mode. Crediting her account, the Court concludes

this Graham factor weighs in Taylor’s favor. Accordingly, the

Graham factors point in conflicting directions.

The parties dispute whether Moore tased Taylor once or

twice. In her deposition, Taylor testified that she remembered

being tased “[a]t least twice.” Docket No. 64-1 at 83:16-17. She

has also provided a photo distinctly showing four prong marks on

her upper right back. The record has been confusing on this

point. Initially, Defendants put forward evidence that the

device only had two electrodes. After the hearing on the motion

for summary judgment, Defendants submit that the taser Moore

used on the night of the incident contained four flat

electrodes, not two like some common taser models. Defendants

also submit a taser log, downloaded from the internal computer

of the taser Moore used, indicating that the taser “arc[ed]” –

or was only deployed - once during Moore’s encounter with

Taylor. See Docket No. 78-2 at 3. And Plaintiff’s expert seems

to concede that the log shows Taylor was only tased once.

Defendants argue that based on the record, the court must find

that Taylor was only tased once. See Scott v. Harris, 550 U.S.

372, 380 (2007) (“When opposing parties tell two different

stories, one of which is blatantly contradicted by the record,

so that no reasonable jury could believe it, a court should not

adopt that version of the facts for purposes of ruling on a

motion for summary judgment.”). The record, as stated, is still

unsettled because the Defendants submitted new evidence post-

hearing to which Plaintiff has not had time to reply.

Regardless, even if Taylor was only tased once by a four-

pronged taser, based on Plaintiff’s testimony, photos, and

medical evidence, a jury could supportably find that Moore’s

decision to take Taylor to the ground, put her in a “full body

mount,” slam her head into the ground, and tase her was

constitutionally excessive. See Gray, 917 F.3d at 9 (holding

that a reasonable jury could find that a single use of a taser

in drive-stun mode to quell a nonviolent, mentally ill

individual who was taken to the ground but refused to comply

with order to put her hands behind her back, was excessive

force); Parker, 547 F.3d at 9 (finding an intoxicated driver’s

de minimis resistance to arrest insufficient to justify

deploying a taser in order to handcuff him); see also Ciolino v.

Gikas, 861 F.3d 296, 298, 304 (1st Cir. 2017) (holding that

although the plaintiff had “disobeyed a police order,” he “was

not given a chance to submit peacefully to arrest before

significant force was used to subdue him” and, therefore, “an

‘objectively reasonable police officer’ would have taken a more

measured approach” before forcing plaintiff to the ground

without warning); McCue v. City of Bangor, 838 F.3d 55, 64 (1st

Cir. 2016) (“[E]xerting significant, continued force on a

person's back while that [person] is in a face-down prone

position after being subdued and/or incapacitated constitutes

excessive force.” (alteration in original) (quotation omitted)).

While the calculus of reasonableness must embody allowance for

the fact that police officers are often forced to make split-

second judgments, Moore’s use of his taser in this case was not

done in a split-second but was a deliberate choice, as evidenced

by his threatening her to be quiet and lifting her shirt to

apply the taser electrodes. Additionally, Plaintiff’s expert

opines that Moore’s use of the taser under these circumstances

was “both extreme and unnecessary” because Moore “had called for

back-up assistance and yet decided not to wait for that

assistance, but instead became involved in actions using a

significant amount of force on an unarmed female who at best was

offering passive resistance.” Docket No. 64-3 at 5.2

2 Cf. Parker, 547 F.3d at 9 (“The use of expert testimony is permissible in

assisting the jury in evaluating claims of excessive force.”).

B. “Clearly Established”

Having sufficiently shown a constitutional violation,

Taylor must next show that the right was “clearly established”

at the time of the violation. This prong has two parts: “(a) the

clarity of the law in general at the time of the alleged

violation; and (b) the clarity of the law as applied to the

case—in other words, whether a reasonable person in the

defendant's shoes ‘would have understood that his conduct

violated the plaintiff['s] constitutional rights.’” Raiche, 623

F.3d at 38 (alteration in original) (quoting Maldonado v.

Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)). Together, “these

steps normally require that, to defeat a police officer's

qualified immunity defense, a plaintiff must ‘identify a case

where an officer acting under similar circumstances was held to

have violated the Fourth Amendment.’” Gray, 917 F.3d at 10

(quoting City of Escondido v. Emmons, 139 S. Ct. 500, 504 (2019)

(per curiam)). The case “need not arise on identical facts,” so

long as it is sufficiently analogous. Id.

The parties provide dueling First Circuit cases as to

whether it was clearly established at the time of the incident,

in 2014, that Moore’s single use of a taser when a subject

refused to be handcuffed violated Taylor’s constitutional

rights. Taylor relies primarily on Parker v. Gerrish, which the

First Circuit decided in 2008. In Parker:

[T]he plaintiff had been stopped on suspicion of

driving while intoxicated. After the plaintiff failed

several sobriety tests, the officer tried to arrest

him. When the plaintiff resisted, the officer drew his

Taser and ordered the plaintiff to turn around and

place his hands behind his back. The plaintiff

complied but clasped his right wrist with his left

hand. Another officer approached and cuffed the

plaintiff's left wrist. There was substantial dispute

about what happened next, but according to the

plaintiff's account (to which the court was required

to defer in the posture of the case), he released his

right wrist, yet was tased anyway.

Gray, 917 F.3d at 12 (citations omitted). The First Circuit held

then “that the police officer could be found to have violated

the Fourth Amendment by tasing an unarmed suspect who, in the

course of an arrest, ‘present[ed] no significant active

resistance or threat’ at the time of the tasing.” Id.

(alteration in original) (footnote omitted) (quoting Parker, 547

F.3d at 10-11).

Defendants argue that Parker is inapplicable to the present

case, and that the First Circuit’s recent decision in Gray v.

Cummings should guide the Court. In Gray, a police officer was

dispatched to locate and return a patient who was experiencing a

manic episode and had absconded from a local hospital on foot.

917 F.3d at 6. When the officer located the patient, she swore

at him, refused to return to the hospital, and continued to walk

away. Id. The officer radioed for back-up and continued to

follow the plaintiff on foot, closing the distance between him

and the patient. Id. When the officer was within five feet of

the patient, the patient stopped, turned, clenched her fists,

and swore at the officer. Id. The officer grabbed the patient’s

shirt and took her to the ground. Id. Once on the ground, the

officer repeatedly instructed the patient to place her hands

behind her back, but the patient did not comply and instead

tucked her arms underneath her chest. Id. The officer warned the

patient that he would tase her if she did not place her hands

behind her back. Id. The patient did not comply, but instead

swore at the officer and told him to “do it”. Id. The officer

tased the patient in drive-stun mode for four to six seconds, at

which point the officer successfully handcuffed the patient. Id.

at 6-7.

On these facts, the First Circuit held that a reasonable

jury could find it was an excessive use of force for an officer

to use a taser once, in drive-stun mode, to quell a nonviolent,

mentally ill individual who was resisting arrest. Id. at 9, 12.

However, the court granted the officer qualified immunity,

reasoning that “[b]ased on the body of available case law, . . .

an objectively reasonable police officer in May of 2013 could

have concluded that [his actions], did not violate the Fourth

Amendment.” Id. at 12. In distinguishing Parker, the court

stated that Gray was “a horse of quite a different hue” because

there was “no indication [in Gray] that [the patient], despite

ample opportunity to do so, ever complied with [the officer’s]

command to put her hands behind her back.” Id. Whereas in

Parker, it appeared as if the plaintiff was in the process of

complying by releasing his wrist to be cuffed, in Gray, “[e]ven

when [the officer] warned [the patient] that she would be tased,

she did not comply but, rather, continued cursing and told him

to ‘do it.’” Id.

Defendants argue Gray indicates Moore would have not known

in 2014 that his use of a taser on Taylor violated her Fourth

Amendment rights. Docket No. 57 at 13-15. But in so arguing,

Defendants fail to view the totality of the facts in the light

most favorable to Taylor. Defendants assert that even on the

ground, Taylor was resisting arrest and refused to put her

flailing hands behind her back, while Taylor states that she

could not comply because she was unable to move while prone, on

the street, with Moore’s knee pinned on her back in a full body

mount. Moreover, she claims Moore used excessive force when he

“slammed” her body to the ground and then repeatedly pushed her

head into the ground, causing a concussion, even after she

agreed to do whatever Moore wanted. These are exactly the kind

of fact disputes meant for trial. Additionally, the record

indicates that Moore simply told Taylor to “shut up” or be

tased, but tasing someone for “insolence” qualifies as a clearly

established constitutional violation under Parker, while tasing

someone for failing to comply with a direct order to put her

hands behind her back shields Moore from liability under Gray.

Finally, it was clearly established in 2010 that “slamming”

a slightly built, non-violent drunk driver into the ground when

she was not given an opportunity to submit is a constitutional

violation. See Raiche, 623 F.3d at 36-38 (holding defendant

police officer used excessive force when he tackled a stationary

individual who was pulled over for a minor infraction and posed

no threat to officer safety).

Because of the unresolved factual disputes regarding

Moore’s use of force, the claim of qualified immunity is denied

without prejudice to its being reasserted at trial after

resolution of factual questions.3 The Court denies Defendants’

motion for summary judgment on Count I.

C. Massachusetts Civil Rights Act (Count II)

Taylor also asserts a claim against Moore under the

Massachusetts Civil Rights Act (“MCRA”), Mass. Gen. Laws ch. 12,

§ 11I. To establish an MCRA claim, a plaintiff “must prove that

(1) [her] exercise or enjoyment of rights secured by the

Constitution or laws of either the United States or of the

3 The ultimate question of whether an officer is entitled to qualified

immunity is “a question of law, subject to resolution by the judge not jury.”

St. Hilaire v. City of Laconia, 71 F.3d 20, 24 n.1 (1st Cir. 1995) (quoting

Prokey v. Watkins, 942 F.2d 67, 72 (1st Cir. 1991)). However, “[g]enuine

disputes concerning material facts must be resolved by the jury, perhaps by

special verdict form.” Wilson v. City of Bos., 421 F.3d 45, 53 n.10 (1st Cir.

2005) (citation omitted).

Commonwealth (2) has been interfered with, or attempted to be

interfered with, and (3) that the interference or attempted

interference was by ‘threats, intimidation or coercion.’” Bally

v. Ne. Univ., 532 N.E.2d 49, 51–52 (Mass. 1989) (quoting Mass.

Gen. Laws ch. 12, § 11H). So, while the MCRA is the state

analogue to 42 U.S.C. § 1983, it is “narrower” than the federal

cause of action. Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011).

Where the plaintiff asserts an MCRA claim some courts have

held that the plaintiff must establish threats, coercion, or

intimidation “in addition” to a constitutional violation.

Santiago v. Keyes, 890 F. Supp. 2d 149, 155 (D. Mass. 2012)

(emphasis in original); see also Longval v. Comm’r of

Correction, 535 N.E.2d 588, 593 (Mass. 1989) (“A direct

violation of a person’s rights does not by itself involve

threats, intimidation, or coercion and thus does not implicate

the Act.”). “The majority of courts [in this district] have held

that in cases involving wrongful arrests or excessive force, the

fact of a Fourth Amendment violation, standing alone, does not

give rise to a claim under the MCRA.” Ciolino v. Eastman, 128 F.

Supp. 3d 366, 380 (D. Mass. 2015) (collecting cases); see also

Mercurio v. Town of Sherborn, 287 F. Supp. 3d 109, 123 (D. Mass.

2017).

Defendants argue that they are entitled to summary judgment

on Taylor’s MCRA claim because she has not shown that Moore’s

use of force “was accompanied by a secondary motive or arose

from an ‘intent to achieve some further purpose of violating one

or more of Plaintiff[’s] rights, beyond [the] Fourth Amendment

right to be free from unlawful searches or seizures.’” Docket

No. 57 at 16-17 (alterations in original) (quoting Ciolino, 128

F. Supp. at 381).

Plaintiff responds that Moore threatened, intimidated, and

coerced her into giving up her Fifth Amendment right against

self-incrimination by ordering her to get out of the car to take

a field sobriety test and then forcefully grabbing her and

arresting her when she failed to do so. See Docket No. 63 at 20.

However, “field sobriety tests do not elicit testimonial or

communicative evidence and therefore do not trigger the

protections afforded by the Fifth Amendment” or art. 12 of the

Massachusetts Declaration of Rights. Commonwealth v. Brennan,

438 N.E.2d 60, 65, 67 (Mass. 1982). Moreover, a driver lawfully

stopped does not have the right, under federal or state law, to

refuse to perform field sobriety tests. See Commonwealth v.

Blais, 701 N.E.2d 314, 318-19 (Mass. 1998). So, as discussed

above, there is neither an underlying constitutional violation

for excessive force in removing Taylor from the car nor evidence

that Moore was threatening, intimidating, or coercing her in

order to achieve an additional constitutional violation.

Therefore, the Court allows Defendants’ motion for summary

judgment on Count II.

II. Civil Rights Claim Against the Town (Count III)

Taylor asserts that the Town of Falmouth’s failure to

train, supervise, and discipline its officers created an

atmosphere in which use of excessive force was tolerated, and

that such a de facto policy was the moving force behind the

violation of her rights. Prior to the September 2014 incident,

Moore received use of force training in 2013. In the spring of

2014, a citizen complaint was reported against Moore for

discourtesy and racial bias. An internal affairs investigation

exonerated Moore on the racial bias claim but sustained the

claim for discourtesy and Moore was provided with verbal

counseling. Between January 2010 and March 2018, Moore did not

receive a citizen complaint against him alleging excessive

force. Over this same time period, there were nine complaints

made to the Falmouth Police Department regarding excessive

force, assault and battery, or use or force. Each was

investigated by internal affairs, which sustained one of the

complaints resulting in verbal counseling. From 2011 to 2014,

there were nine complaints of harassment made against the

Falmouth Police Department, twenty-three complaints of

discourtesy, and sixteen complaints of conduct unbecoming an

officer.

A plaintiff may bring a § 1983 claim against a municipal

entity “when execution of a government’s policy or custom,

whether made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, inflicts the

injury” on the plaintiff. Monell v. Dep't of Soc. Servs., 436

U.S. 658, 694 (1978). To succeed, the plaintiff must show that

“there is a direct causal link between a municipal policy or

custom and the alleged constitutional deprivation.” City of

Canton v. Harris, 489 U.S. 378, 385 (1989).

A claim for failure to train “can be actionable where ‘the

failure to train amounts to deliberate indifference to the

rights of persons with whom the police come into contact’ and

where ‘the identified deficiency in a city's training program

[is] closely related to the ultimate injury.’” Young v. City of

Providence ex rel. Napolitano, 404 F.3d 4, 26 (1st Cir. 2005)

(alteration in original) (quoting City of Canton, 489 U.S. at

388, 391). Plaintiff does not identify a deficiency in the

Town’s training program. Moore was given use of force training

in 2013, and Taylor has not shown that the training was lacking.

See City of Canton, 489 U.S. at 391 (“[F]or liability to attach

. . . the identified deficiency in a city's training program

must be closely related to the ultimate injury. . . . Would the

injury have been avoided had the employee been trained under a

program that was not deficient in the identified respect?”); see

also Young, 404 F.3d at 27 (“[A] training program must be quite

deficient in order for the deliberate indifference standard to

be met . . . .”). And the citizen complaints would not have

reasonably put Falmouth on notice that its use of force training

was subpar. There is no evidence that the Town was deliberately

indifferent to the rights of its citizens.

As to the allegation that Falmouth failed to properly

discipline its officers, Taylor has not shown that the Town was

deliberately indifferent to the rights of citizens. For eight

years, between January 2010 and March 2018, Moore did not

receive one citizen complaint alleging excessive force. And over

that same time period, there were only nine complaints made to

the Falmouth Police Department regarding excessive force,

assault and battery, or use of force. Each was investigated with

one being sustained, and the Court cannot, from these complaints

alone, draw an inference that Falmouth was indifferent to the

behavior of its officers. Taylor provides a compilation of

citizen complaints between 2011 and 2014, and while it shows

that some officers have been accused of harassment quite

frequently, it also shows Falmouth’s internal affairs officers

actually sustained a fair number of claims against officers in

2013 and 2014 leading up to the incident, resulting in various

disciplinary actions. Additionally, when complaints were lodged

against Moore in the spring of 2014, internal affairs sustained

one claim of discourtesy and provided verbal counseling. On

these facts, Taylor has not shown that Falmouth was deliberately

indifferent to its officers’ behavior with respect to use of

force. Therefore, the Court grants Defendants’ motion for

summary judgment with respect to Count III.

ORDER

For the reasons stated, the Court ALLOWS IN PART and DENIES

IN PART Defendants’ motion for summary judgment (Docket No. 56).

SO ORDERED.

/s/ PATTI B. SARIS

Hon. Patti B. Saris

Chief United States District Judge