Waterman v. City of Taunton

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

)

BRAD WATERMAN, )

)

Plaintiff, )

)

v. )

) No. 1:22-cv-10381-JEK

CITY OF TAUNTON , JOSHUA )

DEOLIVEIRA, and ANDREW PACINO, )

)

Defendants. )

)

MEMORANDUM AND ORDER ON

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

KOBICK, J.

This case involves a series of encounters between plaintiff Brad Waterman and officers in

the Taunton Police Department. Defendant Joshua DeOliveira, a Taunton police officer, responded

to a call about a disturbance at a bar in Taunton, Massachusetts called Smitty’s Pub. Although the

parties’ accounts of what happened at the pub diverge, all agree that DeOliveira placed Waterman

in protective custody and drove him home. Once there, Waterman asserts, DeOliveira used

excessive force in removing his handcuffs before leaving. Waterman called 911 to report an assault

by DeOliveira, prompting DeOliveira and defendant Andrew Pacino, another Taunton police

officer, to return to Waterman’s house. After verbal sparring, the officers arrested Waterman for

disorderly conduct and took him to the police station. That charge was later dropped, but by the

end of the evening, Waterman had suffered a fractured shoulder and torn rotator cuff, injuries he

attributes to DeOliveira.

Waterman’s complaint alleges that the officers committed a series of constitutional and

state law violations over the course of the evening. The defendants have moved for summary

judgment on all counts. That motion will be granted in part and denied in part. While DeOliveira

is entitled to judgment on the claims arising out of his placement of Waterman in protective

custody, material disputes of fact remain regarding Waterman’s claims challenging DeOliveira’s

use of force and Waterman’s subsequent arrest for disorderly conduct. On those matters, it will be

for the jury to determine whether the defendants are liable.

BACKGROUND

The parties present conflicting narratives of the events that led to this lawsuit. Because this

matter is before the Court on the defendants’ motion for summary judgment, the following facts

are either undisputed or recounted in the light most favorable to Waterman, the non-moving party,

where supported by record evidence. See Dixon-Tribou v. McDonough, 86 F.4th 453, 458 (1st Cir.

2023).

I. Events at Smitty’s Pub.

Brad Waterman is a resident of Taunton, Massachusetts. ECF 45, ¶ 1. At all relevant times,

defendants Joshua DeOliveira and Andrew Pacino were police officers with the Taunton Police

Department. Id. ¶¶ 3-4. Before the events described below, DeOliveira had not met or known of

Waterman. Id. ¶ 21.

Waterman visited Smitty’s Pub in Taunton, Massachusetts on the evening of March 15,

2019, continuing into the early morning hours of March 16, 2019. Id. ¶¶ 5, 26a. His truck broke

down as he pulled into the parking lot sometime after 9:00 p.m. on March 15, so he planned to rely

on his friend, John Silvia, who was with him at Smitty’s, to be the designated driver. Id. ¶¶ 13a-

13b, 25b, 26a. At Smitty’s, Waterman drank four or five beers and ate a plate of chicken wings.

Id. ¶¶ 6, 6a, 26a. He considered himself too “buzzed” from the alcohol to drive safely by the end

of the night. Id. ¶¶ 13, 26a.

Waterman was involved in a verbal and physical altercation while he was at the pub,

between 12:20 a.m. and 12:40 a.m. on March 16. Id. ¶¶ 7-9. Several other bar patrons had

approached Waterman concerning a dispute over a necklace. Id. ¶¶ 7a, 9a. The conflict turned

physical, and Waterman was involved in two rounds of pushing and grappling, with several

individuals grabbing Waterman’s arms and body. Id. ¶ 9; see ECF 29-10, Video No. 23-20.

Minutes later, after the fighting parties had been separated, a man approached Waterman and

punched him in the mouth. ECF 45, ¶¶ 7b, 10-11; ECF 29-10, Video No. 36-42. Waterman called

911 to report the assault and asked others to do the same. ECF 45, ¶¶ 14, 14b, 16a; ECF 29-10,

Video No. 36-42. According to his deposition testimony, he did not suffer any injuries to his

shoulder or upper torso from these altercations at Smitty’s. ECF 45, ¶ 12b; ECF 29-2, at 49:9-15.

Defendant DeOliveira and another Taunton police officer, Arsenio Chaves, who is not

named as a defendant, were dispatched to Smitty’s after a call came in reporting a disturbance or

commotion at the pub. ECF 45, ¶¶ 16, 16a; ECF 29-4, at 18:14-18. They arrived around 12:40

a.m., while Waterman was on the phone with the 911 operators, and spoke with bar patrons outside

before entering. ECF 45, ¶¶ 15a, 17a; ECF 46, ¶ 2(i); ECF 29-10, Video No. 35-58. When the

officers entered the pub, Waterman approached them to report that he had been the victim of an

assault. ECF 45, ¶¶ 17, 17b. Waterman started to explain that other bar patrons had falsely accused

him of stealing a necklace, but DeOliveira responded, “because you did . . . five people outside

just told me so.” Id. ¶¶ 18b-18c. At that point, Waterman raised his hands behind his head and kept

them clasped there. Id. ¶ 18d; ECF 29-10, Video No. 35-58. He asked DeOliveira if he was going

to frisk him. ECF 45, ¶ 18d. The officers ordered Waterman out of the bar, gesturing in the

direction of the front door, and Waterman complied. Id. ¶¶ 20a-20d.

Once outside the pub, DeOliveira frisked Waterman and took his wallet. Id. ¶ 22a.

DeOliveira asked Waterman how he had gotten to the bar and Waterman responded, “my truck.”

Id. ¶¶ 22b-22c. At that point, Waterman had blood coming from his nose, and DeOliveira believed

that Waterman had been the victim of an assault. Id. ¶¶ 7c, 22; ECF 29-4, at 33:7-10. DeOliveira

then ordered Waterman to turn around and put his hands behind his back, and Waterman complied.

ECF 45, ¶ 22d. DeOliveira handcuffed Waterman and placed him in the back seat of the police

cruiser. Id. ¶¶ 22e, 23a. Because Waterman believed that he was under arrest, he stopped speaking

to the officers. Id. ¶¶ 23b, 23c. Waterman testified that, during his interactions with the officers,

neither officer told him that they were taking him home, and Waterman “didn’t say another word,

not a single word,” while he was in the police cruiser. ECF 29-2, at 46:12-47:17.

DeOliveira took Waterman to his home in Taunton. ECF 45, ¶ 32a. Waterman believes that

DeOliveira knew where to take him because his residential address was listed on the driver’s

license in his wallet. Id. ¶ 32b. The ride from Smitty’s to Waterman’s home took between seven

and ten minutes. Id. ¶ 34. Although DeOliveira was alone in the police cruiser with Waterman,

another officer, whose identity is not clear from the record, appears to have followed DeOliveira

to Waterman’s residence in a separate cruiser. ECF 29-2, at 48:22-24; ECF 46-1.

II. Events at Waterman’s House.

Upon arrival, DeOliveira exited his cruiser and went to the rear door to let Waterman out.

ECF 45, ¶ 35. DeOliveira asked Waterman to step out, and Waterman did, hands still cuffed behind

his back. Id. ¶ 36. At this point, Waterman expressed his displeasure and asked for his wallet back.

Id. ¶¶ 36, 37a. Standing behind Waterman’s back, DeOliveira removed the handcuff from

Waterman’s right hand and, using it like a handle, yanked Waterman’s left arm upwards while

slamming Waterman’s head onto the police cruiser. Id. ¶¶ 37b, 37c, 37d; ECF 29-2, at 48:10-24,

49:16-50:18. While removing the handcuff from Waterman’s left arm, DeOliveira bent down and

said, “I gave you a ride home.” ECF 45, ¶ 37e.

After DeOliveira pulled Waterman’s arm above his head, Waterman cried out in pain and

then started screaming that DeOliveira had hurt him and that he was injured. Id. ¶¶ 41b, 41c.

DeOliveira got in his cruiser and drove away, reporting to dispatch that he had cleared the incident.

Id. ¶ 43. After DeOliveira left, Waterman’s tenant, Thomas Bassett, heard Waterman’s cries and

came out to help him. Id. ¶ 42a.

Waterman went into his own home and, at 12:59 a.m., called 911, saying repeatedly that

he had been assaulted by Taunton police officers. See id. ¶ 45b (“Hi my emergency is with Taunton

Police—I’m not sure I should be speaking with you, but two Taunton police officers just assaulted

me.”); ECF 46, ¶ 2(ii); ECF 46-1 (“They battered me, they pounded my head . . . they beat me in

my driveway.”). The State 911 operator transferred Waterman to the Taunton 911 operator, who

in turn transferred Waterman to the Taunton Police Department. ECF 45, ¶¶ 45c, 45d; ECF 46-1.

Once connected to the Taunton Police Department, Waterman again reported that two officers had

assaulted him on his property. ECF 45, ¶¶ 45e, 45f; ECF 46-1. The call then cut off, and the

dispatcher contacted DeOliveira, informing him that Waterman had called 911 and was looking to

speak with police officers. ECF 45, ¶¶ 45a, 45g; ECF 46-1.

DeOliveira returned to Waterman’s house five to ten minutes after he had left, which was

sometime after 1:00 a.m. ECF 45, ¶¶ 44a, 47. He was followed shortly thereafter by defendant

Andrew Pacino in his own marked police cruiser, with other officers arriving after parking at the

top of the street. Id. ¶ 46. Bassett was on the porch when the officers arrived. ECF 45, ¶¶ 53, 53a;

ECF 29-9, at 5. Before the officers approached Waterman, he called 911 a third time, at 1:07 a.m.,

and remained on the line through the encounter. ECF 29-2, at 57:9-19; ECF 46, ¶ 2(iii); ECF 46-

1.

Exiting their cruisers, DeOliveira and Pacino approached Waterman while he was standing

on his porch and on the phone with 911. ECF 45, ¶¶ 48a, 48b, 49. DeOliveira ordered Waterman

to get back in his house. Id. ¶¶ 48, 48d. Waterman reported to the 911 operator that the officers

were laughing at him. Id. ¶ 48c; ECF 46-1. As the officers approached, Waterman pointed and

yelled at them and, using profanities, screamed that they had pounded his head against the

windshield and taken his license. ECF 45, ¶¶ 49, 49a, 55, 55a; ECF 46-1. The 911 call recorded

the interaction, during which Waterman cursed repeatedly at the officers with a raised voice, but

also responded in a measured tone to the 911 operator’s questions and prompts. ECF 45, ¶ 50a;

ECF 46-1. At some point, the officers went up Waterman’s porch stairs and instructed him to go

back inside. ECF 45, ¶¶ 52, 56c. Pacino attempted to enlist Bassett’s help in getting Waterman to

go inside, but Bassett could not help. Id. ¶ 53. DeOliveira threatened to arrest Waterman if he did

not go back inside. Id. ¶ 56d.

Waterman then started walking to the door to go inside his house. Id. ¶ 56f. At that moment,

DeOliveira and Pacino put their hands on him and arrested him for disorderly conduct. Id. ¶¶ 57,

60, 60a. They handcuffed Waterman’s hands behind his back. Id. ¶ 61. He asked, “for cursing?”

and DeOliveira answered, “yep.” Id. ¶ 60d. The parties dispute whether the entire interaction

between Waterman and the officers was captured on the 911 call and how long the interaction

lasted. Id. ¶¶ 56a, 56b, 57. In Waterman’s telling, he was arrested within 90 seconds of the officers’

arrival, but in the officers’ telling, they arrested him after approximately five minutes. Id.

According to DeOliveira’s subsequent incident report, the officers placed Waterman under arrest

because he was yelling at the officers, cursing, and refusing to go inside his house. ECF 29-9, at

5; ECF 45, ¶ 58d.

III. Events Following the Arrest.

DeOliveira put Waterman back in his cruiser and took him to the Taunton police station.

ECF 45, ¶ 63. During the ride, which lasted only a few minutes, Waterman complained that the

officers had hurt him. Id. ¶¶ 62b, 64. Waterman also reported pain in his shoulder while he was

being booked. Id. ¶ 65. An ambulance was called, and Waterman was transported to Morton

Hospital for medical treatment, where he was diagnosed with a fractured shoulder and a torn rotator

cuff. Id. ¶¶ 65, 68; ECF 29-2, at 65:2-66:12. His condition required surgery, and he remained at

the hospital for two or three days. ECF 29-2, at 66:13-67:3. The disorderly conduct charge against

him was subsequently dismissed. ECF 45, ¶ 57b.

IV. Procedural Background.

Waterman brought this lawsuit in March 2022 against DeOliveira, Pacino, and the City of

Taunton. Against DeOliveira, Waterman asserts a Fourth Amendment claim for excessive force

under 42 U.S.C. § 1983 (Count I); a Fourth Amendment wrongful arrest claim under § 1983

challenging his placement in protective custody at Smitty’s Pub and his arrest at his house (Count

II); a claim under § 1983 alleging retaliation for exercising First Amendment speech rights (Count

III); a claim under the Massachusetts Civil Rights Act (“MCRA”), M.G.L. c. 12, §§ 11H, 11I

(Count IV); an assault and battery claim (Count V); an Eighth Amendment claim under § 1983

(Count VI); a false imprisonment claim for placing him in protective custody at Smitty’s Pub

(Count VII); and a false imprisonment claim for arresting him at his home (Count VIII). See ECF

1, ¶¶ 34-64. Against Pacino, Waterman asserts a Fourth Amendment wrongful arrest claim under

§ 1983 (Count IX); a claim under § 1983 alleging retaliation for exercising his First Amendment

speech rights (Count X); an Eighth Amendment claim under § 1983 (Count XI); and a false

imprisonment claim for arresting him at his home (Count XII). See id. ¶¶ 65-80. Against the City

of Taunton, Waterman asserts a claim of negligence (Count XIII). See id. ¶¶ 81-88.

After a period of discovery, the defendants moved for summary judgment on all counts. At

the motion hearing, Waterman confirmed that he is no longer pursuing the Eighth Amendment

claims (Counts VI and XI) and the negligence claim (Count XIII). Judgment will accordingly enter

for the defendants on those claims.

STANDARD OF REVIEW

Summary judgment is appropriate when, based upon the record, “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). A genuine dispute is “one that must be decided at trial because the evidence, viewed

in the light most flattering to the nonmovant, would permit a rational factfinder to resolve the issue

in favor of either party.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.

1990) (citation omitted). To prevail, the moving party must show that “there is no factual

determination which a ‘rational factfinder’ could make as to the ‘existence or nonexistence’ of a

fact that ‘has the potential to change the outcome of the suit.’” Gibson Found., Inc. v. Norris, 88

F.4th 1, 5 (1st Cir. 2023) (quoting Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4-5 (1st

Cir. 2010)). Courts “must consider the record and the reasonable inferences drawn therefrom in

the light most favorable to the nonmovant,” but “need not credit ‘conclusory allegations,

improbable inferences, and unsupported speculation.’” Dixon-Tribou, 86 F.4th at 458 (quoting

Lahens v. AT&T Mobility Puerto Rico, Inc., 28 F.4th 325, 333 (1st Cir. 2022)). The non-moving

party may not simply “rest upon mere allegation or denials,” but instead must “present affirmative

evidence.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986).

DISCUSSION

I. Wrongful Arrest and False Imprisonment Claims.

Waterman asserts that DeOliveira wrongfully arrested him, in violation of the Fourth

Amendment, and committed the common law tort of false imprisonment, when DeOliveira took

him into protective custody at Smitty’s Pub. He also asserts that DeOliveira and Pacino committed

the same violations when they later arrested him for disorderly conduct at his house. The

defendants contend that they committed no constitutional or common law violations and, in any

event, are entitled to qualified immunity on the constitutional claims. Drawing all factual

inferences in favor of Waterman, the Court agrees that DeOliveira is entitled to judgment on the

claims involving Waterman’s protective custody confinement, but concludes that judgment for

DeOliveira and Pacino on the claims involving the disorderly conduct arrest is not warranted.

A. The Probable Cause and Qualified Immunity Standards.

The Fourth Amendment’s protections against “unreasonable searches and seizures” require

warrantless arrests to be supported by probable cause. U.S. Const. amend. IV; see Karamanoglu

v. Town of Yarmouth, 15 F.4th 82, 87 (1st Cir. 2021) (“A federal constitutional tort of false arrest—

and thus an unlawful arrest under § 1983—occurs when there is detention without probable cause

and without legal process (i.e., without a valid warrant).”) The probable cause requirement also

“extends to certain types of custody that, though short of an arrest, possess attributes that are

characteristic of an arrest.” Alfano v. Lynch, 847 F.3d 71, 76 (1st Cir. 2017). Thus, to take someone

into protective custody under Massachusetts law, officers must have probable cause to believe the

person is “incapacitated.” Commonwealth v. O’Brien, 434 Mass. 615, 622 (2001).1

1 DeOliveira does not dispute that, in the circumstances of this case, taking Waterman into

protective custody—by placing him in handcuffs and driving him to his house—sufficiently

resembled an arrest such that the probable cause standard applies. Cf. Alfano, 847 F.3d at 78 n.4

The common law tort of false imprisonment is “joined at the hip” with the constitutional

claim of wrongful arrest. Finamore v. Miglionico, 15 F.4th 52, 61 (1st Cir. 2021). It requires a

plaintiff to show, among other things, that they were unlawfully confined, directly or indirectly,

by a law enforcement officer. See id. (citing Walker v. Femino, 311 F. Supp. 3d 441, 455 (D. Mass.

2018)). A police officer who lacks probable cause for an arrest may be held liable for false

imprisonment. Id. False imprisonment claims against police officers, therefore, rise and fall with

the constitutional wrongful arrest analysis, at least insofar as both require probable cause.

“[P]robable cause to perform a warrantless arrest turns on ‘whether at that moment the

facts and circumstances within [the officers’] knowledge and of which they had reasonably

trustworthy information were sufficient to warrant a prudent man in believing that the petitioner

had committed or was committing an offense’” or was incapacitated. Vargas-Badillo v. Diaz-

Torres, 114 F.3d 3, 6 (1st Cir. 1997) (alteration in original) (quoting Beck v. Ohio, 379 U.S. 89,

91 (1964)). The probable cause inquiry calls for “‘an objective assessment of the officer’s actions

in light of the facts and circumstances confronting him at the time,’” and “not on the officer’s

actual state of mind at the time the challenged action was taken.” Maryland v. Macon, 472 U.S.

463, 470-71 (1985) (quoting Scott v. United States, 436 U.S. 128, 136 (1978)).

Even when an individual has been subject to an unlawful arrest, the police officer may

nevertheless be entitled to qualified immunity on constitutional claims for damages arising out of

that arrest. The doctrine “seeks to balance two opposing interests: ‘the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.’” Berge v. Sch.

(noting that “something less than probable cause might justify a briefer, less intrusive detention

under the Massachusetts protective custody statute”).

Comm. of Gloucester, __ F.4th __, No. 22-1954, 2024 WL 3408206, at *4 (1st Cir. July 15, 2024)

(quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). As developed, the doctrine “gives

government officials breathing room to make reasonable but mistaken judgments about open legal

questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

The qualified immunity inquiry “proceeds with a now-familiar two-part test: ‘(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.”

Penate v. Hanchett, 944 F.3d 358, 366 (1st Cir. 2019) (quoting Rocket Learning, Inc. v. Rivera-

Sánchez, 715 F.3d 1, 8 (1st Cir. 2013)). “The ‘clearly established’ inquiry itself has two elements.”

Id. (citing MacDonald v. Town of Eastham, 745 F.3d 8, 12 (1st Cir. 2014)). The first element

requires courts to consider “the clarity of the law at the time of the violation.” Id. (quoting

Drumgold v. Callahan, 707 F.3d 28, 42 (1st Cir. 2013)). That can be satisfied by finding binding

or persuasive case law addressing similar facts, or a more general accepted proposition that applies

with obviousness to the facts in question. Berge, 2024 WL 3408206, at *4. The second element

requires courts to consider “the facts of the particular case and whether a reasonable defendant

would have understood that his conduct violated the plaintiff’s constitutional rights.” Penate, 944

F.3d at 366 (quoting Drumgold, 707 F.3d at 42).

When a defendant asserts a qualified immunity defense on summary judgment, a court

must “first identif[y] the version of events that best comports with the summary judgment standard

and then as[k] whether, given that set of facts, a reasonable officer should have known that his

actions were unlawful.” Morelli v. Webster, 552 F.3d 12, 19 (1st Cir. 2009); see also Alfano, 847

F.3d at 79-80 (in conducting a qualified immunity analysis, the court must take as true the

plaintiff’s “supportable version of the facts” even if the officer presents a competing narrative).

B. Placement in Protective Custody at Smitty’s Pub.

The parties agree that when DeOliveira put Waterman in handcuffs and drove him home

from Smitty’s, Waterman had not been arrested for a crime, but rather had been placed in protective

custody under M.G.L. c. 111B, § 8. See Commonwealth v. O’Brien, 434 Mass. 615, 621 (2001)

(people under protective custody “are not under arrest, but are merely in need of treatment and

temporary protection”). That statute authorizes police officers to take “[a]ny person who is

incapacitated” to their residence, a police station, or a detoxification treatment facility, “with or

without [the person’s] consent.” M.G.L. c. 111B, § 8. “[I]ncapacitated” is defined as “the condition

of an intoxicated person who, by reason of the consumption of intoxicating liquor is

(1) unconscious, (2) in need of medical attention, (3) likely to suffer or cause physical harm or

damage property, or (4) disorderly.” Id. § 3. Thus, the statute requires probable cause that the

individual is “both intoxicated and either unconscious, in need of medical attention, likely to suffer

or cause physical harm or damage, or disorderly.” Veiga v. McGee, 26 F.3d 1206, 1210 (1st Cir.

1994) (emphases in original).

DeOliveira contends that he had probable cause to believe that Waterman was intoxicated

and likely to suffer or cause physical harm. Precedent supplies guideposts for the application of

these elements of the test. On the one hand, an officer does not have probable cause to take

someone into protective custody based on evidence of intoxication alone, when there is no basis

to believe that the person is likely to injure themselves or another person or damage property. See

Alfano, 847 F.3d at 79-80. On the other hand, probable cause exists under the protective custody

statute when an intoxicated individual is immediately about to drive. See Commonwealth v. Tomeo,

400 Mass. 23, 24-25 (1987). And under certain circumstances, probable cause exists to take into

custody a person who is highly intoxicated and has no means of reaching a safe place. See O’Brien,

434 Mass. at 616 n.2, 616-17, 622-23 (officers had probable cause to place a defendant in

protective custody where he had been arrested for drunk driving and was still intoxicated hours

later and had no safe means of returning home); Commonwealth v. O’Connor, 406 Mass. 112, 114-

15, 120 (1989) (officer had probable cause to place a defendant in protective custody where he

was found near a crashed truck on the side of the road, was unsteady on his feet, denied being in

the truck, and had difficulty communicating).

On Waterman’s supported version of the facts, DeOliveira had probable cause to believe

Waterman was intoxicated within the meaning of M.G.L. c. 111B, § 3. While Waterman denies

DeOliveira’s account that he appeared to be “heavily intoxicated,” he acknowledges that he drank

four or five beers over the evening and was too intoxicated to drive when he was taken into

custody. ECF 45, ¶¶ 26, 26a, 26e. DeOliveira also had probable cause to believe that Waterman

was likely to suffer or cause physical harm. DeOliveira was dispatched to Smitty’s Pub in response

to a commotion. When he arrived, he was told by multiple patrons outside the bar that Waterman

had stolen a necklace. Proceeding into the bar, he met Waterman, who appeared to have consumed

alcohol, had blood coming from his nose, and reported that he had been the victim of an assault.

Waterman also denied stealing the necklace. Thus, as DeOliveira arrived at the scene, he learned

that there had recently been a bar fight leading to an assault; that Waterman, a victim, had an

ongoing disagreement with other bar patrons about whether he had stolen a necklace; and that

Waterman could not safely drive himself away from the pub due to his level of intoxication.

The facts known to DeOliveira would lead a prudent officer to conclude that Waterman

faced a risk of ongoing harm from other bar patrons and posed a risk of harm to himself or others.

Waterman disagrees, contending that because his truck had broken down and he had arranged for

a designated driver to take him home, he posed no risk of harm due to his level of intoxication.

But the “relevant inquiry is whether . . . the facts known to the officer at the time of the arrest

support probable cause.” Karamanoglu, 15 F.4th at 88 (emphasis in original). And on Waterman’s

telling of the facts, he did not say to DeOliveira, and DeOliveira did not know, that he had a ride

home with a designated driver. In other circumstances, an officer might not have probable cause

to determine that an intoxicated individual poses a risk of harm absent an inquiry into whether that

individual has another means of transport. Cf. Alfano, 847 F.3d at 80 (no risk of harm where the

officer knew that the intoxicated individual would be travelling by bus, and thus had no reason to

think he was planning to drive himself home). Here, however, Waterman not only posed a risk of

harm to himself or others if he attempted to drive home, but also faced a risk of physical harm

from the other patrons outside the bar, who had just assaulted him and continued to assert that he

had stolen a necklace, and, for the same reasons, posed a risk of harm to his antagonists.

Viewing the totality of the facts in the light most favorable to Waterman, a jury could not

reasonably conclude that DeOliveira lacked probable cause to believe Waterman was

incapacitated. Because DeOliveira had probable cause to take Waterman into protective custody,

the motion for summary judgment will be granted on Waterman’s claims of wrongful arrest and

false imprisonment in connection with the protective custody confinement.

C. Arrest for Disorderly Conduct.

When Waterman was taken into custody the second time that evening at his home, he was

arrested on a charge of disorderly conduct. The disorderly conduct statute, M.G.L. c. 272, § 53(b),

sets the punishment for “disorderly persons,” but does not define that term. As construed by the

Supreme Judicial Court, the statute looks to subsections (a) and (c) of § 250.2(1) of the Model

Penal Code to define “disorderly.” See Commonwealth v. Accime, 476 Mass. 469, 472-73 (2017);

Commonwealth v. Sholley, 432 Mass. 721, 728 (2000). Those sections provide that a “person is

guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm,

or recklessly creating a risk thereof, he: (a) engages in fighting or threatening, or in violent or

tumultuous behavior; or . . . (c) creates a hazardous or physically offensive condition by any act

which serves no legitimate purpose of the actor.” Model Penal Code § 250.2(1).2 The term “public”

means “affecting or likely to affect persons in a place to which the public or a substantial group

has access,” including “any neighborhood.” Id.

DeOliveira and Pacino contend that they had probable cause to believe that Waterman’s

conduct on his front porch constituted “tumultuous” behavior under subsection (a). “Tumultuous”

conduct, “while perhaps not physically violent, may nevertheless be characterized as involving

riotous commotion and excessively unreasonable noise so as to constitute a public nuisance.”

Commonwealth v. A Juvenile, 368 Mass. 580, 597 (1975); accord Sholley, 432 Mass. at 729. The

First Circuit has explained that “excessively unreasonable noise late at night in a residential

neighborhood so that people in the privacy of their homes are unable to avoid that noise” is not

conduct, without more, that ranks as “tumultuous” under the statute. Veiga, 26 F.3d at 1213. That

is because speech and expressive conduct alone cannot constitute disorderly conduct. Id. at 1213-

14; see A Juvenile, 368 Mass. at 593-94. Furthermore, refusing an order of a police officer is not

per se disorderly conduct. See, e.g., Sheehy v. Town of Plymouth, 191 F.3d 15, 22-23 (1st Cir.

1999), abrogated on other grounds by Devenpeck v. Alford, 543 U.S. 146 (2004) (a defendant who

refused to give an officer his name when he had given his name to another officer was not engaged

in disorderly conduct). Applying these principles in a case with nearly identical facts, another

session of this Court has held that yelling, screaming, and cursing at a police officer in a residential

2 To avoid First Amendment concerns, subsection (c) is “restricted to cases not involving

protest or other expressive activities.” Sholley, 432 Mass. at 728 (citing Commonwealth v.

Feigenbaum, 404 Mass. 471 (1989)).

neighborhood late at night is not, without more, tumultuous behavior under the statute. Nuon v.

City of Lowell, 768 F. Supp. 2d 323, 327-28, 332-33 (D. Mass. 2011); see also United States v.

Pasqualino, 768 F. Supp. 13, 15 (D. Mass. 1991), cited with approval in Viega, 26 F.3d at 1213

(yelling, screaming, and cursing at police officer in hotel parking lot, loudly enough to “attract the

attention of other guests in the hotel,” does not constitute disorderly conduct).

Drawing factual inferences in favor of Waterman, a reasonable jury could readily conclude

that the officers lacked probable cause to arrest him for disorderly conduct. When the officers

arrived at Waterman’s house, he was standing on his front porch, on the phone with the 911

operator. He yelled at the officers, pointed at them, swore at them, and did not immediately follow

their instructions to go inside his house. There is no evidence—on either Waterman’s or the

officers’ versions of the facts—that any physical contact took place between Waterman and the

officers, that Waterman threatened harm to the officers, or that Waterman was boisterous enough

to attract a crowd of onlookers. See Accime, 476 Mass. at 475 n.9, 476 (behavior that constitutes

disorderly conduct typically “attract[s] [a] crowd of onlookers”). Indeed, DeOliveira testified in

his deposition that Waterman was not acting in a way that caused him concern for his own safety

or for the safety of other officers. ECF 29-4, at 69:6-24. And when Waterman asked DeOliveira

whether he had been arrested for cursing, DeOliveira answered, “yep.” ECF 45, ¶ 60d.

DeOliveira’s incident report largely corroborates Waterman’s account of the facts; it describes

Waterman yelling and using profanity at the officers, and refusing two orders to go inside his

house, but does not describe threats, physical contact, or aggressive gestures. See ECF 29-9, at 5.3

3 Pacino testified at his deposition that Waterman raised his middle finger at the officers. ECF

29-6, at 12:16-23, 14:22-15:25. DeOliveira testified that Waterman “was doing a lot of pointing,”

but he did not report that Waterman extended his middle finger. ECF 29-4, at 70:1-13. DeOliveira’s

incident report does not mention any such gesture. See ECF 29-9, at 5. Waterman denies raising

his middle finger and agrees with DeOliveira’s recollection that he pointed at the officers. ECF 45,

On these facts, Waterman’s conduct does not constitute “riotous commotion and

excessively unreasonable noise,” so as to fall within the “tumultuous” behavior component of the

disorderly conduct statute. A Juvenile, 368 Mass. at 597. No evidence exists that Waterman did

anything other than loudly and profanely express his views about police officers from the front

porch of his own home. See Nuon, 768 F. Supp. 2d at 333 (the plaintiff “was lawfully on private

property expressing his opinion regarding the actions of a public official and there was no probable

cause that he was committing the offense of disorderly conduct”). Offensive and abusive speech

does not, without more, give an officer probable cause to arrest someone for disorderly conduct.

See Veiga, 26 F.3d at 1213; Glik v. Cunniffe, 655 F.3d 78, 84 (1st Cir. 2011) (“In our society,

police officers are expected to endure significant burdens caused by citizens’ exercise of their First

Amendment rights.”). Indeed, “[t]he freedom of individuals verbally to oppose or challenge police

action without thereby risking arrest is one of the principal characteristics by which we distinguish

a free nation from a police state.” Houston v. Hill, 482 U.S. 451, 462-63 (1987).

Resisting this conclusion, the defendants highlight the additional undisputed fact that

Waterman’s tenant, Bassett, was on the porch during the encounter. And they point out that the

officers had no basis for knowing that Bassett was Waterman’s tenant or that he had previously

come out of the house to assist Waterman after he cried out in pain. But the presence of one third

party observing an individual’s noisy criticism of police officers does not, without more, give rise

to probable cause for a disorderly conduct arrest. This case is not remotely comparable to Sholley,

in which the defendant engendered an “extreme level of noise and commotion” in the hallways of

a courthouse that attracted a “number of persons who abandoned their ordinary duties to respond.”

¶ 49a. Because the Court must draw factual inferences in favor of Waterman on summary

judgment, it accepts Waterman and DeOliveira’s account.

432 Mass. at 729. The defendant’s outburst—including threatening remarks and loud screaming—

“gave rise to [such] a sense of emergency on the part of those who heard it” that a court officer

abandoned a sitting judge to assist, an assistant district attorney came out of concern for the

wellbeing of her staff, and three police officers abandoned their activities in response to the

commotion. See id. at 729-30. Others responded, too, and onlookers left offices and courtrooms to

see what was happening. Id. at 730. Under those circumstances, the presence of third parties

supported the determination that the defendant’s conduct was tumultuous. Id. Here, in contrast, the

presence of a single third party on the porch when the officers arrived would not indicate to a

prudent officer that Waterman’s behavior constituted a “riotous commotion.” A Juvenile, 368

Mass. at 597; see Pasqualino, 768 F. Supp. at 15 (“Though Mr. Pasqualino’s yelling was

undoubtedly loud enough to attract the attention of other guests in the hotel, it does not appear to

this Court to have risen to the level of ‘riotous commotion’ or ‘public nuisance.’”). A reasonable

officer would not conclude, on these facts, that they had probable cause to arrest Waterman for

disorderly conduct.

The defendants contend that they are nevertheless entitled to qualified immunity on the

wrongful arrest claim. When a plaintiff asserts “a § 1983 claim that seeks to hold a police officer

liable for making a warrantless arrest without probable cause, ‘if the presence of probable cause is

arguable or subject to legitimate question, qualified immunity will attach.’” Wilber v. Curtis, 872

F.3d 15, 21 (1st Cir. 2017) (quoting Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004)). The absence

of probable cause is not here arguable or subject to legitimate question. The law at the time of

Waterman’s arrest clearly established that noisy and profane speech, in a neighborhood in the

middle of the night, does not, without more, give rise to probable cause for a disorderly conduct

arrest. The First Circuit explained as much in 1994, rejecting a jury instruction that disorderly

conduct could include “excessively unreasonable noise late at night in a residential neighborhood

so that people in the privacy of their homes are unable to avoid that noise.” Veiga, 26 F.3d at 1213.

And this Court had likewise held as much on virtually identical facts. See Nuon, 768 F. Supp. 2d

at 327-28, 332-34; Pasqualino, 768 F. Supp. at 15. Furthermore, the Supreme Judicial Court has

long made clear that an individual may not be arrested on a disorderly conduct charge based on

speech or expressive conduct alone. See, e.g., A Juvenile, 368 Mass. at 597-99. In light of these

settled principles, no objectively reasonable police officer could have concluded—even on

DeOliveira and Pacino’s versions of the facts—that probable cause existed to arrest Waterman.

Put otherwise, an objectively reasonable officer in their shoes “would have understood that his

conduct violated the plaintiff’s constitutional rights.” Penate, 944 F.3d at 366.

The defendants have no answer to the weight of this precedent. The Supreme Judicial

Court, First Circuit, and this Court have, for decades, construed the disorderly conduct statute to

prevent the arrest of those who exercise their First Amendment rights by voicing criticism of law

enforcement officers or other public officials. Qualified immunity does not shield the officers from

liability under these circumstances.

The motion for summary judgment will, accordingly, be denied as to the wrongful arrest

and false imprisonment claims arising out of Waterman’s disorderly conduct arrest.

II. Excessive Force and Assault and Battery Claims.

Waterman claims that DeOliveira used excessive force against him, in violation of the

Fourth Amendment, when DeOliveira used one handcuff as a handle to yank Waterman’s left arm

above his head, resulting in a fractured shoulder and torn rotator cuff, and smashed his head into

the police cruiser. Waterman similarly claims that this conduct amounted to an assault and battery.

Relying principally on his gentler rendition of the facts, DeOliveira contends that no reasonable

jury could find his use of force after taking Waterman into protective custody excessive, and that

Waterman’s claim fails as a matter of law for want of expert testimony regarding the cause of his

injuries.

A. Unreasonable Use of Force.

The Fourth Amendment “guarantees citizens the right ‘to be secure in their persons . . .

against unreasonable . . . seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 394 (1989)

(quoting U.S. Const. amend. IV). This includes a right against the use of excessive force “in the

context o[f] arrest[s] and investigatory stop[s].” Id. To prevail on a claim of excessive force, “a

plaintiff must show that the defendant employed force that was unreasonable under all the

circumstances.” Morelli, 552 F.3d at 23. In determining whether an application of force is

reasonable, a Court must consider “the severity of the crime at issue, whether the suspect pose[d]

an immediate threat to the safety of the officers or others, and whether [the suspect was] actively

resisting arrest or attempting to evade arrest by flight.” Gray v. Cummings, 917 F.3d 1, 8 (1st Cir.

2019) (quoting Graham, 490 U.S. at 396). Those factors are analyzed objectively and considered

from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 396-97. Under Massachusetts law, assault and battery claims

against police officers rise and fall with the excessive force analysis. Raiche v. Pietroski, 623 F.3d

30, 40 (1st Cir. 2010).

On Waterman’s well supported version of the facts, from the time he was handcuffed and

taken into protective custody at Smitty’s until the arrival at his house, he did not speak with

DeOliveira. He sat quietly in the police cruiser because he believed he was under arrest. When

DeOliveira let him out of the car, he expressed his displeasure and asked for his wallet back.

DeOliveira then pinned Waterman to the cruiser from behind, uncuffed his right wrist, smashed

his head against the cruiser, and used the open cuff as a handle to wrench his cuffed arm above his

head with such force that it tore his rotator cuff and broke his shoulder. Waterman testified that, at

that moment, his “eyes rolled into [his] head” and he “went black,” in shock, then immediately

started screaming. ECF 29-2, at 48:16-21, 50:20-23.

Should a jury accept Waterman’s version of the encounter, it could plainly find

DeOliveira’s use of force objectively unreasonable. At the time the force was applied, Waterman

had not committed any crime, but rather had been taken into protective custody. See Estate of

Armstrong ex rel. Armstrong v. Village of Pinehurst, 810 F.3d 892, 899 (4th Cir. 2016) (“When

the subject of a seizure ha[s] not committed any crime, [the severity of the crime] factor weighs

heavily in [the subject’s] favor.” (quotation marks omitted)). Waterman verbally expressed his

displeasure, but there is no evidence that he posed a threat to DeOliveira, that he was resisting

arrest, or that he was attempting to flee. He remained restrained by handcuffs. Even accepting

DeOliveira’s disputed testimony that Waterman was yelling and unintentionally spitting in

DeOliveira’s face as DeOliveira sought to uncuff him, see ECF 29-4, at 41:21-42:3, there is no

evidence that Waterman was violent or a danger to himself or others. Indeed, DeOliveira testified

that Waterman did not “struggle at all or put up any resistance” during the uncuffing, and that he

“wasn’t being violent.” Id. at 48:9-19. Thus, the second and third factors also weigh strongly in

favor of Waterman. See Morelli, 552 F.3d at 23 (reversing summary judgment for officer on

excessive force claim where there was “no evidence cognizable under the summary judgment

standard indicating that the plaintiff posed a threat to the safety of the officers or others” or

evidence “of any meaningful degree of resistance”).

To the extent DeOliveira has preserved a qualified immunity defense, he is not entitled, on

this record, to qualified immunity on the excessive force claim.4 The First Circuit’s 2009 decision

in Morelli held, on highly analogous facts, that its case law “supplies a crystal clear articulation of

the right, grounded in the Fourth Amendment, to be free from the use of excessive force by an

arresting officer.” 552 F.3d at 23. Having deemed the right clearly established in precedent, the

First Circuit considered whether, on the facts of the case, a reasonable officer would have

understood that his conduct violated that right. Id. at 24. And it held that no reasonable officer

could think it constitutional to “yan[k] the arm of an unarmed and non-violent person, suspected

only of the theft of $20, and pi[n] her against a wall for three to four minutes with sufficient force

to tear her rotator cuff.” Id. Again, so too here: no reasonable officer could think it constitutional

to yank the arm of a handcuffed and unarmed person, not suspected of having committed a crime

and putting up no resistance, with enough force to break his shoulder and tear his rotator cuff.

B. Whether Expert Testimony is Needed to Prove Causation.

DeOliveira raises a final argument: that Waterman cannot, as a matter of law, substantiate

his excessive force claim without expert testimony about the cause of his injuries. It is undisputed

that Waterman’s rotator cuff was torn and shoulder fractured in the early morning hours of March

16, 2019. But DeOliveira contends, correctly, that the parties dispute whether he inflicted those

injuries while removing the handcuffs, or whether Waterman instead suffered the injuries during

the earlier bar fight at Smitty’s. Absent medical testimony about the cause of Waterman’s injuries,

DeOliveira insists, a jury would be left only to speculate.

4 The defendants mention the excessive force claim at the beginning of the qualified immunity

section of their brief, ECF 28, at 10, but their qualified immunity argument itself is exclusively

concerned with the wrongful arrest claims, id. at 10-13. Qualified immunity is an affirmative

defense that is forfeited if not raised. Lawless v. Town of Freetown, 63 F.4th 61, 65 (1st Cir. 2023).

The First Circuit has resisted adopting categorical rules for when expert testimony is

required in excessive force cases. “‘The facts of every case will determine whether expert

testimony would assist the jury,’” the First Circuit has explained, and “‘a blanket rule that expert

testimony is generally admissible in excessive force cases would be just as wrong as a blanket rule

that it is not.’” Jennings v. Jones, 499 F.3d 2, 15 (1st Cir. 2007) (quoting Kopf v. Skyrm, 993 F.2d

374, 379 (4th Cir. 1993)). Generally, when questions about causation in excessive force cases are

within the range of the common experience of jurors, expert testimony is not necessary. See id.

(“cases may be susceptible to a common sense determination by the jury” when there is “some

basis in the evidence on which to ground a finding of excessive force” (quotation marks omitted));

Ziesmer v. Hagen, 785 F.3d 1233, 1239 (8th Cir. 2015) (“‘expert testimony is not necessary’ to

prove causation when the ‘inferences to be drawn from the facts are within the range of common

experience’ of the jury members” (quoting Hill v. Gonzalez, 454 F.2d 1201, 1203 (8th Cir. 1972))).

But when an injury is sophisticated or unusual, it falls outside the ordinary experience of jurors,

and expert testimony about its cause is likely needed. See Awnings v. Fullerton, 912 F.3d 1089,

1098-99 (8th Cir. 2019) (fractured ribs and collapsed lung were internal, sophisticated injuries that

require expert testimony to corroborate, at least where they were not discovered by medical

professionals immediately after the use of force); Ziesmer, 785 F.3d at 1239 (“It is true that ‘[w]hen

an injury is sophisticated, proof of causation generally must be established by expert testimony’”

(quoting Robinson v. Hager, 292 F.3d 560, 564 (8th Cir. 2002))).

Waterman’s lack of expert medical testimony does not preclude a jury from making an

informed determination about the cause of his injuries. The Court reaches this conclusion for two

reasons. First, the dispute over causation here is not whether, from a medical perspective,

Waterman’s injuries could have been caused by DeOliveira’s use of force. Rather, it involves a

basic credibility assessment. Waterman testified in his deposition that he was not injured following

the bar fight at Smitty’s, but that after DeOliveira wrenched his arm above his head with the

handcuff handle, he immediately started screaming, “you hurt me,” and his arm “wasn’t working

right.” ECF 29-2, at 48:15-51:9. DeOliveira’s narrative of the uncuffing does not include yanking

Waterman’s arm above his head with force. See ECF 29-4, at 40-50. The jurors, experts at making

credibility determinations, can listen to the parties’ testimony, considered in light of the other

evidence introduced at trial, and decide whether or not to believe it. Second, and although the

question is closer, Waterman’s injuries are not the kind of sophisticated and unusual injuries that

require a medical expert to opine on causation. Instead, a broken bone and torn rotator cuff, like

the neck and back injuries at issue in Ziesmer, are within the range of jurors’ ordinary experience.

See 785 F.3d at 1239 (“Given that Ziesmer claims he began experiencing neck pain shortly after

the alleged altercation with Trooper Hagen, and given that there is no evidence suggesting he

experienced any such pain before August 2010, a layperson could conclude that Ziesmer’s

symptoms were caused by the trauma to his neck and back.”). Laypersons would be able to listen

to Waterman’s account and decide whether to credit his testimony that those particular injuries

were caused by DeOliveira’s use of force.

This conclusion is fortified by the First Circuit’s decision in Jennings. Although that case

concerned the need for expert testimony regarding the reasonableness of the use of force, rather

than the cause of the injuries, the First Circuit cited with approval Adewale v. Whalen, 21 F. Supp.

2d 1006 (D. Minn. 1998), which was a causation case. See Jennings, 499 F.3d at 15. In Adewale,

the plaintiff had suffered a fractured forearm after an encounter with a police officer resulting in

arrest. See 21 F. Supp. 2d at 1010-11. The parties offered conflicting narratives about the officer’s

actions during the arrest. Id. at 1014. The officer argued that he was entitled to summary judgment

because the plaintiff did not proffer expert medical testimony on the cause of her broken arm. Id.

The court rejected that argument, reasoning that “[i]f plaintiff’s version of the facts is believed, the

jury could conclude without expert testimony that defendant Whelan used excessive force, and

that his actions caused plaintiff’s broken arm.” Id. Here, the jury can likewise listen to Waterman’s

and DeOliveira’s recollections of their encounter, determine who to believe, and decide whether

DeOliveira’s actions caused Waterman’s broken shoulder and torn rotator cuff.

DeOliveira’s motion for summary judgment is, accordingly, denied as to the excessive

force and assault and battery claims.

III. First Amendment and Massachusetts Civil Rights Act Claims.

Waterman separately brings a First Amendment retaliatory arrest claim against DeOliveira

and Pacino and a related claim under the MCRA, M.G.L. c. 12, §§ 11H, 11I, against DeOliveira.

He argues that the officers arrested him in retaliation for his protected speech—namely, his 911

call reporting that he had been assaulted by Taunton police officers and his vocal criticism of the

police when they returned to his house after the 911 call.

“In a section 1983 claim of retaliatory prosecution for First Amendment activity, a plaintiff

must prove that [his] conduct was constitutionally protected and was a ‘substantial or motivating’

factor for the retaliatory decision, and that there was no probable cause for the criminal charge.”

Gericke v. Begin, 753 F.3d 1, 6 (1st Cir. 2014) (quoting Powell v. Alexander, 391 F.3d 1, 17 (1st

Cir. 2004)). Alternatively, if there was probable cause, the plaintiff may “presen[t] objective

evidence that he was arrested when otherwise similarly situated individuals not engaged in the

same sort of protected speech had not been.” Nieves v. Bartlett, 587 U.S. 391, 407 (2019).

In seeking summary judgment on the First Amendment claims, DeOliveira and Pacino do

not contend that Waterman’s speech immediately before the disorderly conduct arrest was not

protected. Nor do they argue that there was no causal link between the speech and the arrest.

Instead, their sole argument is that there was probable cause for Waterman’s arrest. But as

discussed, a genuine dispute of fact exists as to whether they had probable cause to arrest

Waterman for disorderly conduct. Their motion for summary judgment therefore fails as to the

First Amendment claim.5

“To establish a claim under the [MCRA], a plaintiff must prove that (1) the exercise or

enjoyment of some constitutional or statutory right; (2) has been interfered with, or attempted to

be interfered with; and (3) such interference was by threats, intimidation, or coercion.” Barron v.

Kolenda, 491 Mass. 408, 423 (2023) (quoting Glovsky v. Roche Bros. Supermkts., Inc., 469 Mass.

752, 762 (2014)). DeOliveira contends that he is entitled to judgment on the MCRA claim because

a constitutional violation itself cannot be coercive under the statute. The Supreme Judicial Court

held in Longval v. Commissioner of Correction that “[s]hackling and handcuffing [the plaintiff]

and taking him to Concord was not by itself coercive under the” MCRA, but if “the officials had

some further purpose in treating [him] as they did, threats, intimidation, or coercion might be

involved.” 404 Mass. 325, 333 (1989) (emphasis added). Here, Waterman has identified that

further purpose: he argues that DeOliveira violated the MCRA by arresting him for disorderly

conduct without probable cause and by arresting him to prevent his exercise of free speech rights.

A reasonable jury could find, given the lack of probable cause, that DeOliveira and Pacino

could hear Waterman complaining to the 911 operator about DeOliveira’s prior alleged conduct,

and that they arrested Waterman for that call or for using profane language to criticize them—

speech protected under the First Amendment. See Houston, 482 U.S. at 462-63; M.G.L. c. 12,

5 The defendants do not argue that they are entitled to qualified immunity on Waterman’s First

Amendment retaliatory arrest claims. The defense is, accordingly, forfeited as to those claims. See

Lawless, 63 F.4th at 65.

§ 11H. Arresting someone to prevent them from taking a constitutionally protected action—here,

speech—is coercive under Massachusetts law. See Barron, 491 Mass. at 424; Tortora v. Inspector

of Bldgs. of Tewksbury, 41 Mass. App. Ct. 120, 123-24 (1996).6

The defendants’ motion will, accordingly, be denied on the First Amendment and MCRA

claims.

CONCLUSION

For the foregoing reasons, the defendants’ motion for summary judgment is GRANTED

on Counts VI, VII, XI, and XIII. The motion is GRANTED on Count II, to the extent it alleges

wrongful arrest with respect to Waterman’s placement in protective custody, but DENIED to the

extent it alleges wrongful arrest with respect to Waterman’s arrest for disorderly conduct. The

motion is DENIED as to all other counts.

SO ORDERED.

/s/ Julia E. Kobick

Julia E. Kobick

United States District Judge

Dated: July 30, 2024

6 DeOliveira argues in passing that qualified immunity applies to the MCRA claim. See Duarte

v. Healy, 405 Mass. 43, 46-47 (1989) (recognizing qualified immunity as a defense to MCRA

claims). But he develops no specific qualified immunity argument concerning the MCRA claim,

nor have the defendants advanced a qualified immunity argument at all as to the First Amendment

claim, the closest analogous federal claim. Notwithstanding the forfeiture, it is clearly established

that it is unconstitutional to arrest someone because of criticism directed at an officer such that

qualified immunity would not apply. Cf. Barron, 491 Mass. at 424-25.