Rogers v. Cofield (908 F. Supp. 2d 277, 2012)

MEMORANDUM AND ORDER RE: QUALIFIED IMMUNITY

MARIANNE B. BOWLER, United States Magistrate Judge.

Pending before this court are issues of qualified immunity in this civil rights action brought by plaintiff Lionel Rogers (“plaintiff’). Defendant Gerald L. Cofield, Jr., an officer of the Boston Police Department (“Officer Cofield”), raised this affirmative defense in his answer. He also raised it in a Rule 50(a), Fed.R.Civ.P., motion. (Docket Entry # 51).

As explained in far greater detail in a prior Memorandum and Order (Docket Entry # 80), 2011 WL 6140974, the verdict form set out a false arrest claim and an excessive force claim under 42 U.S.C. § 1983 (“section 1983”) as well as common law claims for false arrest, assault, battery and abuse of process. The verdict form did not distinguish between the false arrest and excessive force section 1983 claims in question one. (Docket Entry # 52, No. 1). The jury answered the section 1983 question in plaintiffs favor.

The verdict form also included a preliminary factual question to the jury regarding qualified immunity. (Docket Entry # 52, No. 11). The jury answered affirmatively the question of whether “a reasonable policeman would have understood that the conduct of [Officer Cofield] violated the plaintiffs right to be free from an unreasonable seizure of his person under the Fourth Amendment.” (Docket Entry # 52, No. 11). The jury charge phrased the first element of a section 1983 claim as the violation of the defendant’s “constitutional right under the Fourth Amendment to be free from an unreasonable seizure of his person.” (Docket Entry # 53, p. 83). Thus, like the section 1983 liability question, the qualified immunity question combined the excessive force and the false arrest section 1983 claims into a single question.

Because plaintiff did not address the qualified immunity issue in either of its post trial motions (Docket Entry ## 64 & 66), this court addressed the issue sua sponte in the Memorandum and Order (Docket Entry # 80, pp. 98-105). The Memorandum and Order denied immunity on the false arrest section 1983 claim; found in plaintiffs favor on the first prong of the immunity analysis on the excessive force section 1983 claim; and requested briefing on the second prong relative to the latter claim. After hearing oral argument, this court took the matter under advisement.

DISCUSSION

Officer Cofield’s brief initially discusses this court’s determination regarding the first prong of qualified immunity, i.e., the sufficiency of the evidence to support each of the two constitutional violations. He points out, correctly, that this court construed the evidence in favor of the section 1983 general verdict without limiting that review to those facts that would support the battery verdict. Because factual disputes are the province of the jury, Officer Cofield submits that this court should not overlook the jury’s finding that he did not commit a battery for both prongs. (Docket Entry # 82).

In ruling on the post trial motions and qualified immunity, the Memorandum and Order did not limit the facts to those consistent with the battery verdict because Officer Cofield failed to object to the verdict before this court discharged the jury thereby waiving an inconsistency challenge. (Docket Entry # 80, pp. 55-57) (collecting case law); see generally Rodriguez-Garcia v. Municipality of Caguas, 495 F.3d 1, 9 (1st Cir.2007) (First Circuit follows “ ‘iron-clad rule’ that a party that fails to raise an objection based on verdict inconsistency before the jury is dismissed waives the issue”). As to qualified immunity, the Memorandum and Order set out the two prongs of the analysis and explained that:

Where, as here, the qualified immunity analysis arises after a jury verdict, the first prong examining the existence of a constitutional violation involves considering “the sufficiency of the evidence supporting a finding of excessive force,” Raiche v. Pietroski, 623 F.3d at 36; Jennings v. Jones, 499 F.3d at 11 n. 12, or, as to the section 1983 false arrest claim, the sufficiency of the evidence that Officer Cofield had probable cause to make the arrest.

(Docket Entry # 80, pp. 100-101). The Raiche decision warrants further elaboration .in light of Officer Cofield’s argument.

The Raiche court addressed qualified immunity on appeal after a jury trial. Raiche v. Pietroski, 623 F.3d 30, 35 (1st Cir.2010). Pietroski prevailed on the claims asserting a false arrest section 1983 claim; a counterpart claim under the Massachusetts Civil Rights Act, Mass. Gen. L. ch. 12, §§ 11H and I (“MCRA”); and a common law false imprisonment claim. Id. Raiche prevailed on the section 1983 excessive force claim, the MCRA excessive force claim and the common law assault and battery claim. Id. at 34-35. The court addressed the first prong of the immunity analysis by examining both the excessive force and false arrest section claims. Id. at 38. Elsewhere, the Raiche court reiterated that, “because our analysis comes after a jury verdict in Raiche’s favor, we must consider the sufficiency of the evidence supporting a finding of excessive force.” Id. at 36 (citing Jennings v. Jones, 499 F.3d at 11 n. 12).

The Jennings case confirms the requirement that, “where the jury has issued a general verdict, as it did here, we