A lower court decision against the Town of Billerica originally granting a family $600,000 was overturned recently by the 1st U.S. Circuit Court of Appeals. The case is not the end of the almost two-decade-long saga involving the Kennedy family and the Billerica Police Department, but it is an important victory for the town.
The court also vacated several rulings made against the defendant police officers, most notably a jury instruction error in an Assault and Battery on a Police Officer charge that “undercut the basis for a defendant police officer’s defense to a federal claim of false arrest for that crime.” The lower court judge instructed the jury that an officer had to be injured in order for a defendant to be convicted of ABPO. The following is from the decision and describes the jury instructions for ABPO:
“The court then instructed the jury that under Massachusetts law, the elements of assault and battery on a police officer included “two types of batteries”: either “a touching by an individual of the person of another with such violence that harm is likely to result, regardless of whether the person so touched consented thereto,” or “a touching, which is not physically harmful, but offensive as an affront to the police officer’s personal integrity,” requiring “proof of nonconsent by the police officer.” The latter type of battery, the court elaborated, required proof “that [Mitchell] touched the police officer,” that “the police officer did not consent to the touching,” and “that the conduct constituting the act of touching was an intended act and not an accidental one.” The difficulty came in the court’s next statement, that Officer Tsoukalas “also has to establish that [Mitchell’s] act which resulted in the touching was both intentional and wanton and reckless, that is to say, more than negligent, and that it caused bodily injury to the victim; in other words, the police officer [Tsoukalas].”
In April 2007, in the first round of their federal lawsuit, the Kennedys won a $600,000 civil-rights award, which was later cut in half, against two of the 28 officers initially named in the Kennedy’s $10 million 2004 lawsuit.
The jury found that the town of Billerica, through its police department, was “negligent in disciplining or supervising its police officers which proximately caused harm to the Kennedy family.”
With this decision, the appeals court exonerates 27 of the 28 officers involved in the suit. The justices did uphold $2,000 in damages against Billerica Police Officer Scott Parker after he admitted that he verbally assaulted Michelle Kennedy by swearing at her during in an argument over skateboarding ramps.
During Parker’s testimony in federal court, he admitted “I lost my cool” and swore at Kennedy after she repeatedly cursed at him. He admitted his behavior was against the department’s rules and regulations.
Click here for the entire text of Kennedy et. al. v. Town of Billerica et. al.
The following article is from Massachusetts Lawyers Weekly. It was written by David E. Frank:
The 1st U.S. Circuit Court of Appeals has ruled in an issue of first impression that a family who accused the Billerica police of civil rights violations cannot recover against the town for negligent supervision absent a finding of liability against any individual employee.
The defendant town and police officers argued that a $600,000 jury verdict in the case – described by the lower court judge as “an intense, nasty, awful” trial could not stand because supervisory negligence requires a showing that a municipality knew or should have known about an underlying, identifiable tort.
The 1st Circuit agreed, reversing a post-trial ruling by U.S. District Court Judge Patti B. Saris.
“No Massachusetts case has been cited to us that has ever recognized a supervisory negligence claim against municipalities for generalized, free-standing, and unspecified wrongs when no individual employee or group of employees committed an underlying tort,” Chief Justice Sandra L. Lynch wrote on behalf of the court. “We decline to extend the doctrine of municipal supervisory liability that far, especially in light of the policy and economic concerns for municipalities.”
‘Boggles the mind’
Although the 1st Circuit never addressed the question before, Boston defense counsel Leonard H. Kesten of Brody, Hardoon, Perkins & Kesten said practitioners have long operated under the belief that a plaintiff must prove an underlying tort before recovering for negligent supervision.
Kesten, who tried the case with Jeremy I. Silverfine, said he was not even aware of Saris’ unprecedented negligent supervision theory until she articulated it in a post-verdict order denying his motion for judgment as a matter of law.
“My mind was boggled when I read [Saris’] opinion announcing this doctrine,” Kesten said. “I’m grateful to the 1st Circuit for ending this nightmare for my clients and myself. If this legal theory was allowed to stay on the books, and people could recover without proving a tort, it would have made it simply impossible to defend cases.”
Addressing the plaintiffs’ contention that the defendants had harassed them and violated their civil rights, Kesten said the police had been keeping tabs on the family because its members were “career” criminals regularly in trouble with the law. He noted that both adult plaintiffs are currently behind bars.
“This has always been a case of the criminals versus the cops,” he said. “The criminal activity of this family, which spans 20 years, boggles the mind.”
If the court had affirmed the verdict, Kesten said, with interest and attorneys’ fees, his clients would have been liable for more than $1 million.
“This is an important case to make it crystal clear that you can only recover for negligent supervision if you first prove that an individual police officer did something wrong,” he said. “The notion that you could sue a police department and collect money without proving conduct that rose to the level of a tort was horrifying.”
Howard Friedman of Boston, a plaintiffs’ civil rights lawyer who was not involved in the case, said the standard of proof in supervisory negligence claims is higher than for ordinary torts.
It requires a showing of deliberate indifference to a constitutional right, which requires a showing of at least gross negligence, Friedman said.
“I always like to see plaintiffs win, but I wasn’t surprised by the 1st Circuit’s decision, because trying to figure out what the legal basis was for this large verdict has always been difficult,” he said.
Andrew M. Fischer of Boston’s Jason & Fischer represented the plaintiffs with Lexington co-counsel Frederick V. Gilgun.
Notwithstanding the 1st Circuit’s decision, Fischer said, the jury’s finding that the town was deliberately indifferent to the civil rights of his clients still stands.
“What the court held is that we did not prove any specific injury resulting from that deliberate indifference,” he said. “The defendants kind of had a perfect storm that allows them to walk unscathed for the grievous wrongs that they did.”
Fischer said his clients have not yet decided their next step. The minor plaintiffs, he said, plan to file an additional complaint in federal court.
In 2004, plaintiffs Michelle and Brian Kennedy Sr. and their three minor children sued the town of Billerica and more than two dozen police officers. They claimed that, over a 13-year period, the police conspired to deprive them of their civil rights and committed several state torts aimed at driving them out of town.
The plaintiffs alleged the harassment began when Michelle spurned a defendant police officer’s advances in the early 1990s.
Based on the case’s complexity, Saris bifurcated the matter into two trials. Though most of the claims had a three-year statute of limitations, Saris allowed testimony about incidents as far back as 1991 to provide context for the civil rights claims.
In the first trial, which involved the town and seven officers, the jury rejected nearly all of the plaintiffs’ case, including the civil rights conspiracy. The lone federal claim on which the jury found against the officers was a false arrest allegation stemming from a 2004 incident involving one of the minors.
On the state claims, the jury found for the minor on the same 2004 incident and awarded him $15,000. The town was also held liable and assessed $10,000 in damages for a state claim involving another minor in a 1997 incident.
The jury further found against the town on a federal false arrest claim on grounds that its failure to properly supervise or discipline the involved officer amounted to deliberate indifference to the plaintiffs’ civil rights.
The jury also concluded the town was liable on a state negligent supervision claim. The plaintiffs obtained nearly $380,000 in total damages at the first trial, mostly from the supervisory negligence claims.
Saris denied the defendants’ post-trial motion for judgment notwithstanding the verdict on the supervisory negligence claims.
In vacating the negligent supervision judgment, Lynch wrote that the jury entered its verdict by relying on a legal theory never before recognized in Massachusetts.
Under state law, the judge said, a town can be liable for supervisory negligence only if it fails to prevent a tort committed by an employee.
A verdict cannot stand for unattributed, general practices that do not rise to the level of tortious conduct, Lynch said.
“Defendants are correct that thus far, Massachusetts cases have only allowed supervisory negligence claims against municipalities where the municipality knew or should have known about an underlying, identifiable tort which was committed by named or unnamed public employees,” she said.
The judge added that a federal court interpreting state law is not the place to adopt a novel and expansive view of municipal liability. The Federal Tort Claims Act has never been interpreted to impose free-standing liability on the government for unspecified conduct that does not fall under recognized categories of torts, she said.
“Plaintiffs failed at trial and on appeal to identify any cognizable tort committed against [them], outside of the specific torts that either were rejected by the jury or were directed out by the district court, which the jury could have connected to the Town’s negligent supervision,” she said. “Plaintiffs cannot collect on this claim by simply asserting that the Town created unspecified harms.”