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Robert Jude Wilber v. Robert Curtis; Brian Kinsella; Michael Rogers
Federal Courthouse - Boston, Massachusetts
Case Number: 16-2250
Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)
Plaintiff's Attorney: Richard Latimer
Defendant's Attorney: Thomas R. Donahue and Deidre Breman Regan
Description: This appeal concerns a challenge
to a summary judgment ruling that dismissed a lawsuit that a
Massachusetts property owner brought against three police
officers. The suit addressed the owner's arrest for actions that
he took in connection with his objection to the clearing of
vegetation on his property by the work crew for an electrical
utility, which held an easement to the property. We affirm the
grant of summary judgment in part and vacate in part.
We first recount the following undisputed facts. We
take them from the unchallenged findings that are set forth in the
Order on the Parties' Motions for Summary Judgment issued by the
Magistrate Judge assigned to the case.
The plaintiff is Robert Wilber. He resides and owns
property in Falmouth, Massachusetts. NStar Corporation ("NStar"),
which is an electrical company, possesses a deeded easement over
a part of Wilber's property. The deed grants NStar an "easement
to erect, operate, maintain and remove a line . . . for the
transmission of electricity. . . . [t]ogether with the right to
trim, cut and remove such trees and underbrush as in the judgment
of [NStar] may interfere with or endanger said line and equipment
and to enter upon said land for any of the aforesaid purposes."
(last modification added).
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NStar employs Vegetation Control Services ("VCS") "to
clear vegetation on its easements in order to provide for the
maintenance of power lines and structures." The District Court
recognized that Wilber describes himself as "a vocal opponent of
NStar's program of spraying herbicides on its utility easements,"
and that he is of the view that "NStar's program of clear-cutting"
on those easements "was overly aggressive."
In early November, 2011, Wilber saw two VCS employees at
a worksite near his property. Wilber approached the VCS employees
and "hassled" them. As a result of this confrontation, VCS
requested a police presence at future worksites on Wilber's
On November 21, 2011, a week after that earlier encounter
between Wilber and VCS employees, VCS crew members came onto the
easement on Wilber's property in order to begin their work in
clearing vegetation from the site. As a result of VCS's request
for a police presence, the crew members were accompanied by two
Barnstable Police Officers, Officer Robert Curtis and Officer
Brian Kinsella, each of whom is a defendant in this case.
Two VCS employees "measured the clearing distance from
the center of the power lines toward the abutting properties and
marked the clearing area with red tape tied off to tree limbs."
Upon seeing the crew at work, Wilber went into "a high state of
agitation." And, after observing "chainsaws and heavy-duty
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machinery in action within the clearing area; Wilber vocally
protested and strung yellow caution tape and plastic rope across
A VCS employee observed Wilber's actions and informed
the two officers. "Curtis observed the tape 'zig-zagged' across
the easement and saw Wilber, who was standing in the easement,
taking pictures." The officers, together with two VCS crewmembers,
attempted to remove the yellow caution tape, which "caused an
interruption to the work of the VCS crew." Kinsella then told
Wilber that Wilber would be arrested if he "interfered with the
removal of the vegetation within the easement."
Wilber responded that VCS's clear-cutting work on his
property must stop. Kinsella, in turn, "informed Wilber that the
work would not stop absent a court order" and instructed Wilber
"to stand outside the marked area easement area while the crew was
working." Wilber, however, "disregard[ed]" these instructions.
"[W]hen [Wilber] reentered the worksite, a large machine was in
use eighty to one hundred feet away, a chainsaw was in use fifty
feet away, and another chainsaw was being sharpened twelve to
fifteen feet away."
Kinsella again asked Wilber "to stay outside the red
tape markers" set out by VCS. Wilber refused and sat down on a
freshly cut tree stump. While Wilber was sitting on the stump,
the VCS crew stopped working. Wilber shouted to the workers that
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they "didn't have to do this." Curtis and Kinsella then approached
Wilber, and Curtis asked Wilber once more to leave the work area.
The officers warned Wilber to leave the worksite at least three
more times and notified Wilber that noncompliance could result in
his arrest. Rather than complying, "Wilber [then] stood up, placed
his hands behind his back, and did not resist arrest."
The officers first took Wilber to the police station for
booking, where he was booked by Curtis and a third Barnstable
Police Officer, Michael Rogers, who is the other defendant in this
case. Wilber was then brought to Falmouth District Court, where
he was held pending arraignment. That same day, the Commonwealth
filed in that court a criminal complaint for one count of
disorderly conduct against Wilber. The Commonwealth dismissed the
complaint on October 15, 2012.
This lawsuit followed. On November 20, 2014, Wilber
filed suit in Barnstable County Superior Court against Curtis,
Kinsella, and Rogers. Wilber's complaint contained one claim
arising under federal law: an allegation that the officers violated
Wilber's civil rights under 42 U.S.C. § 1983. The complaint also
contained five claims under Massachusetts law: violation of civil
rights under the Massachusetts Civil Rights Act ("MCRA"), Mass.
Gen. Laws ch. 12, § 11H, the state analogue to § 1983; malicious
prosecution; intentional infliction of emotional distress; false
arrest; and false imprisonment.
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On January 22, 2015, the defendants removed the case to
the United States District Court for the District of Massachusetts.
On February 3 and 4, 2016, the parties filed cross-motions for
summary judgment, with the defendants moving for summary judgment
as to all claims and Wilber moving for summary judgment as to four
of the claims. The District Court initially assigned a magistrate
judge to the case to consider the cross-motions. On the consent
of both parties, the case proceeded before the Magistrate Judge
for all purposes. See LimoLiner, Inc. v. Dattco, Inc., 809 F.3d
33, 35 n.1 (1st Cir. 2015). The Magistrate Judge granted the
defendants' summary judgment motion as to all of the claims.
The Magistrate Judge first considered Wilber's § 1983
claim. With respect to that claim, the Magistrate Judge -- relying
on Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997) -- noted
that a plaintiff must show "two essential elements." Id. First,
"the challenged conduct must be attributable to a person acting
under color of state law." Second, "the conduct must have worked
a denial of rights secured by the Constitution or by federal law."
The Magistrate Judge found that the defendants did not
contest that they were acting under color of state law. The
Magistrate Judge then turned to the question whether the officers
had violated Wilber's constitutional rights -- and specifically
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whether his Fourth Amendment right against unreasonable seizure
had been violated by his arrest.
The defendants contended that Wilber's Fourth Amendment
right had not been violated because they had probable cause to
arrest Wilber for having committed any of four separate state law
offenses -- disorderly conduct, Mass. Gen. Laws ch. 272 § 53
(2015); disturbing the peace, id.; trespass, Mass. Gen. Laws ch.
266 § 120 (2001); and interfering with a police officer in the
performance of his duties, see Commonwealth v. Shave, 965 N.E.2d
227 (Mass. App. Ct. 2012) (affirming the validity of this common
law crime); Mass. Gen. Laws ch. 279 § 5 (2017) (providing for the
existence of common law crimes). They further contended that they
were entitled to summary judgment because the record showed that
no reasonable jury could find that the officers lacked probable
cause to conclude that Wilber had committed at least one of these
In considering the defendants' summary judgment motion
on the § 1983 claim, the Magistrate Judge addressed only whether
there was probable cause to arrest Wilber for disturbing the peace,
Mass. Gen. Laws ch. 272, § 53, and for disorderly conduct, id.
The Magistrate Judge determined that, although genuine issues of
material fact existed as to whether probable cause existed with
regard to whether the officers lacked probable cause to arrest
Wilber for disorderly conduct, Wilber's § 1983 claim failed because
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no reasonable jury could find that the officers lacked probable
cause to arrest Wilber for disturbing the peace.
The Magistrate Judge then turned to Wilber's claim under
Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 12,
§ 11H, which is Massachusetts' analogue to § 1983. The Magistrate
Judge explained that because it had "found for the defendants on
the Section 1983 claims, Wilber’s claims necessarily fail to pass
the narrower MCRA test." The Magistrate Judge also noted that, in
light of its ruling that there was no genuine issue of material
fact as to whether the officers lacked probable cause to arrest
Wilber for disturbing the peace, there was no need to "address the
parties' qualified immunity arguments."
The Magistrate Judge then turned to a consideration of
Wilber's remaining state law claims: false arrest, false
imprisonment, malicious prosecution, and intentional infliction of
emotional distress. The Magistrate Judge noted that Wilber's false
arrest, false imprisonment, and malicious prosecution claims could
survive summary judgment only if there was a genuine dispute of
material fact as to whether the officers lacked probable cause to
arrest Wilber. The Magistrate Judge then entered summary judgment
for defendants on those three state claims.
As to the fourth state claim, intentional infliction of
emotional distress, the Magistrate Judge entered summary judgment
as well. The Magistrate Judge found that there was no genuine
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issue of material fact in dispute as to whether the officers were
"carrying out their obligations as law enforcement officials."
Thus, the Magistrate Judge concluded that there was no genuine
issue of disputed fact concerning whether the officers' conduct
could be "deemed extreme and dangerous," as, in light of Lund v.
Henderson, 22 F. Supp. 3d 94, 106 (D. Mass. 2014), and Godette v.
Stanley, 490 F. Supp. 2d 72, 81 (D. Mass. 2007), the officers'
conduct would have to have been deemed in order for the officers
to be liable for the intentional infliction of emotional distress.
Finally, the Magistrate Judge separately considered
whether summary judgment should be granted to the third defendant,
Rogers, as to all of Wilber's claims, state and federal. The
Magistrate Judge determined that the record clearly showed that
Rogers was not involved in Wilber's arrest and that he did not
even read the police report on the day of the arrest. The
Magistrate Judge thus determined that a reasonable jury could not
find Rogers to have had a sufficient "personal connection" with
the underlying arrest to be subject to liability on any of Wilber's
claims in light of Eason v. Alexis, 824 F. Supp. 2d 236 (D. Mass.
2011), which holds that, under Massachusetts law, a "police officer
does not 'arrest' a suspect unless he physically seizes the suspect
or the suspect submits to his authority and control," id. at 242.
With the summary judgment ruling in place, Wilber then
filed this timely appeal in which he seeks to have that ruling
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overturned as to each claim and as to each defendant. Our review
of the District Court's grant of summary judgment to the defendants
is de novo. Braga v. Hodgson, 605 F.3d 58, 60 (1st Cir. 2010).
We must "affirm if the evidence, viewed in the light most favorable
to [the] plaintiff, shows that there is no genuine issue as to
any material fact and that the [officers are] entitled to summary
judgment as a matter of law." Abreu-Guzmán v. Ford, 241 F.3d 69,
73 (1st Cir. 2001).
We begin our consideration of the challenge to the ruling
below by addressing the portion of that ruling that addresses
Wilber's only federal law claim, which Wilber brings pursuant to
42 U.S.C. § 1983. The District Court based its ruling on this
claim on its determination that the record clearly showed that
there was probable cause to arrest Wilber for disturbing the peace,
see Mass. Gen. Laws ch. 272, § 53, and that no reasonable jury
could find otherwise. Wilber contends on appeal, as he did below,
that this conclusion is wrong. And he also challenges the
defendants' arguments regarding the other state law offenses that
the defendants identify as ones for which no reasonable jury could
find the officers lacked probable cause to arrest Wilber.1 But,
1 Wilber does not dispute the defendants' contention
that, notwithstanding that Wilber was ultimately charged only with
disorderly conduct, the grant of summary judgment on his § 1983
claim must be affirmed so long as there was probable cause to
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we need not address the merits of Wilber's various arguments on
this score because, as the defendants contend, we may affirm the
grant of summary judgment on qualified immunity grounds. See Sands
v. Ridefilm Corp., 212 F.3d 657, 662 (1st Cir. 2000) ("There can
be no question of our power to rely on a different ground than the
district court did in affirming its judgment[.]").
In determining whether a government official is entitled
to qualified immunity under § 1983, we must determine not only
whether the official violated a federal statutory or
constitutional right, Ciolino v. Gikas, 861 F.3d 296, 302 (1st
Cir. 2017), but also "whether the right was 'clearly established'
at the time of" the challenged governmental conduct, id. at 303.
A clearly established right is one that is "sufficiently clear
that every reasonable official would have understood that what he
is doing violates that right." Reichle v. Howards, 566 U.S. 658,
664 (2012) (citations and alterations omitted). And, a government
official, in consequence of qualified immunity, may not be held
liable under § 1983 unless the official is found to have violated
a federal law right that is clearly established. Id.
We have explained that, with respect to 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
arrest Wilber for any of the state law offenses that the defendants
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is arguable or subject to legitimate question, qualified immunity
will attach." Cox v. Hainey, 391 F.3d 25, 31 (1st Cir. 2004). We
also have made clear that police officers are, in determining
whether probable cause exists to make a state law arrest, entitled
to qualified immunity for their reasonable but mistaken
assessments of the bounds of state law. Cortés-Reyes v. Salas-
Quintana, 608 F.3d 41, 51–52 (1st Cir. 2010) (holding that
defendants were protected by qualified immunity because the
underlying state law was uncertain, and "any conclusions we might
draw about the relevant Commonwealth law would be uncertain at
Here, as we have noted, the defendants identify two state
law offenses for which an officer reasonably could have determined
that there was probable cause to arrest Wilber beyond the two state
law offenses (disorderly conduct and disturbing the peace) that
the Magistrate Judge considered. In affirming the grant of summary
judgment on qualified immunity grounds, we focus on only one of
these two other state law offenses: interfering with the duties
of a police officer, which is a common law crime in Massachusetts.
See Shave, 965 N.E.2d at 227 (affirming the validity of this common
law crime); Mass. Gen. Laws 279 § 5 (2017) (providing for the
existence of common law crimes); see also Commonwealth v. Tobin,
108 Mass. 426, 426 (1871) (affirming a conviction for a defendant
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who had "knowingly and designedly . . . hinder[ed], resist[ed] and
oppose[d] a police officer").
The defendants contend that the record shows that there
was probable cause to arrest Wilber for this offense for the
following reasons. They argue that the record shows that, at the
time of the arrest, Kinsella and Curtis "were engaged in the lawful
performance of their duties to keep citizens out of the easement
area and worksite for the safety of the public and the VCS
crewmembers." And, the defendants further argue, Wilber "refused
numerous requests to leave the worksite." Thus, they contend that
the officers had probable cause to arrest Wilber for this offense,
given that state law supports the conclusion that an individual
commits this offense by "knowingly and
designedly . . . hinder[ing], resist[ing], and oppos[ing], against
the peace of the Commonwealth." See Tobin, 108 Mass. at 426; see
also Docket No. 1557 CR 000243 (Wrentham Dist. Ct. 2015) (charging
a defendant with the crime of interference with a police officer
for "intimidat[ing], hinder[ing] or interrupt[ing] a police
officer in the lawful course of his or her duty."). The defendants
go on to assert that, at the least, the record indisputably shows
that they acted reasonably in so concluding. As a result, they
contend that, at a minimum, the record shows that they are entitled
to summary judgment on qualified immunity grounds and thus that
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the ruling below granting them summary judgment on this claim must
In response, Wilber chiefly trains his focus on whether
there was probable cause to arrest him for disturbing the peace or
for disorderly conduct, and he gives only scant attention to this
independent ground for effecting his arrest, in which interfering
with the duties of a police office is the relevant offense. Wilber
does assert that his actions challenging the clearing of the
vegetation are protected by the First Amendment and that the cases
that the defendants cite to show that his conduct at the worksite
suffices to support an arrest for the crime of interfering with
the duties of a police officer each involved the use of physical
force against the officer, which did not occur here.
But, for purposes of qualified immunity, it is not enough
to show that the officers may have made a mistaken determination
about whether Wilber's conduct provided probable cause to conclude
that he had committed the offense for which he was arrested.
Wilber must show that it was clear under state law that there was
not probable cause to arrest him for this crime. See Cox, 391
F.3d at 31. And, with respect to that question, Wilber cites no
authority -- and we are aware of none -- that would suggest that
it was clear at the time of his arrest that this offense does not
encompass the particular circumstances that the officers
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After all, Wilber does not dispute that Kinsella and
Curtis were present at the worksite for a legitimate law
enforcement reason, that he placed yellow tape across the worksite
which the officers had to take down, or that he then remained on
the site after those officers repeatedly requested that he leave
in consequence of his actions and even after the officers had
informed him that he would be arrested if he failed to comply with
their request that he leave. To be sure, Wilber is right that
there is nothing in the record to suggest that he had any physical
contact with the officers. But Wilber cites to no Massachusetts
authority that would indicate such contact is a requirement of the
crime, nor does he make any argument as to why it would be
unreasonable to conclude that no such requirement exists. Rather,
the cases he does cite for the proposition that physical contact
is required merely show that one can commit the crime by engaging
in such conduct, see Shave, 81 Mass. App. Ct. 1131; Tobin, 108
Mass. at 429 (describing this crime to include an "affray or
assault," but failing to say that such physical contact is a
requirement of the offense), and not that this offense imposes any
requirement that such conduct must have occurred. See Tobin, 108
Mass. at 426.
Thus, while the defendants bear the burden of proving
that they are entitled to summary judgment on qualified immunity
grounds, we conclude that that they have met that burden here.
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Accordingly, we affirm the grant of summary judgment on this
We turn next to the portions of the summary judgment
order that concerns Wilber's five state law claims. Those claims
are, to recap, for deprivation of civil rights under the
Massachusetts Civil Rights Act (MCRA), intentional infliction of
emotional distress, malicious prosecution, false arrest, and false
The District Court granted the defendants' motion for
summary judgment to all three defendants on all five state law
claims. On appeal, Wilber asks us to reverse the summary judgment
ruling as to each of these state law claims as to each defendant.
He does so on the ground that there is a genuine issue of material
fact as to each claim that precludes the grant of summary judgment.
We begin by noting that each of the state law claims at
issue is in federal court solely as a result of an exercise of
supplemental jurisdiction. See 28 U.S.C. § 1367. Given our
decision to affirm the grant of summary judgment as to the § 1983
claim, however, there is no longer any federal claim in this case.
And the Supreme Court has instructed that "in the usual case in
which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction
doctrine -- judicial economy, convenience, fairness, and
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comity -- will point toward declining to exercise jurisdiction
over the remaining state-law claims." Carnegie–Mellon Univ. v.
Cohill, 484 U.S. 343, 350 n.7 (1988); see also 28 U.S.C. §
In accord with that guidance, moreover, we have held
that, when all federal claims have been dismissed, it is an abuse
of discretion for a district court to retain jurisdiction over the
remaining pendent state law claims unless doing so would serve
“the interests of fairness, judicial economy, convenience, and
comity.” See Desjardins v. Willard, 777 F.3d 43, 45-46 (1st Cir.
2015) (citation omitted); Rivera-Díaz v. Humana Ins. of Puerto
Rico, Inc., 748 F.3d 387, 392 (1st Cir. 2014). We have also held
that, under this standard, it can be an abuse of discretion -- if
no federal claim remains -- for a district court to retain
jurisdiction over a pendent state law claim when that state law
claim presents a substantial question of state law that is better
addressed by the state courts. Desjardins, 777 F.3d at 45-46.
Nevertheless, as just noted, Wilber does not argue on
appeal that, once the federal claim was dismissed on summary
judgment (as we have determined that the District Court rightly
held), it was an abuse of discretion for the District Court to
retain jurisdiction over the pendent state law claims and thus
that the grant of summary judgment as to the pendent state law
claims must be vacated per Desjardins. Wilber instead asks us to
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overturn the summary judgment ruling as to all of the pendent state
law claims solely on the ground that the Magistrate Judge erred,
as to each of those claims, in concluding that there was no genuine
issue of material fact that would preclude granting summary
judgment to the defendants. Thus, as we are confronted with only
this limited challenge to the ruling below as to the five pendent
state law claims, we see no reason not to affirm at least those
portions of the ruling granting summary judgment that are so
plainly correct that no substantial question of state law is
presented. See Disher v. Info. Res., Inc., 873 F.2d 136, 141 (7th
Cir. 1989) (affirming as "sensibl[e]" a district court's decision
to "take a quick look" to determine whether remaining state law
claims "could perhaps be wound up then and there").
Against this background, we affirm the grant of summary
judgment as to Wilber's MCRA claim as to all three defendants, as
our reason for affirming the grant of summary judgment to the
defendants on Wilber's § 1983 claim necessarily compels that
result. See Kelley v. LaForce, 288 F.3d 1, 10 (1st Cir. 2002)
(citing Duarte v. Healy, 537 N.E.2d 1230, 1232 (Mass. 1989) ("The
same qualified immunity standard that applies under § 1983 has
also been held to apply to claims under the MCRA[.]")). We
likewise affirm the District Court's grant of summary judgment to
all defendants on Wilber's claim for intentional infliction of
emotional distress. Even if Wilber's cursory treatment on appeal
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of the Magistrate Judge's grant of summary judgment on the
intentional infliction of emotional distress claim as to each
defendant does not amount to a waiver of his challenge to that
ruling, see United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived."), Wilber identifies nothing in the record that
could support a conclusion that the officers "intended to inflict
emotional distress or . . . knew or should have known that
emotional distress was the likely result of [their] conduct[,]"
Limone v. United States, 579 F.3d 79, 94 (1st Cir. 2009) (quoting
Agis v. Howard Johnson Co., 355 N.E.2d 315, 318 (Mass. 1976)).
That still leaves, though, the portion of the District
Court's order that grants summary judgment to each of the
defendants on Wilber's three remaining pendent state law claims,
which are for malicious prosecution, false arrest, and false
imprisonment. Here, things are a bit more complicated.
With respect to Rogers, we have no trouble affirming the
grant of summary judgment as to the malicious prosecution claim
because Wilber makes no argument as to how Rogers -- who, by
Wilber's own account, was involved only in booking Wilber -- could
be liable for malicious prosecution. In particular, Wilber has
not identified any evidence in the record that could support a
finding that Rogers had an "improper purpose" in taking the action
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that he did, notwithstanding that proof of such a purpose is an
essential "element of malicious prosecution." See Chervin v.
Travelers Ins. Co., 858 N.E.2d 746, 756, 758 (Mass. 2006)
("We . . . adopt the 'improper purpose' formulation . . . [for]
the element of 'malice.'").
Similarly, we have no trouble affirming the grant of
summary judgment as to Rogers on the false arrest claim. As Wilber
acknowledges, Massachusetts law precludes liability for false
arrest for an officer who does not "participate in the arrest"
and acts "in good faith and in the performance of his duties."
See Mass. Gen. Laws Ann. ch. 263, § 3. But, Wilber argues only
that Kinsella and Curtis directly participated in the arrest, not
that Rogers did as well. Nor does Wilber argue that Rogers'
involvement in the booking constituted participation in Wilber's
arrest or, for that matter, that Rogers failed to act "in good
faith and in the performance of his duties" in undertaking the
booking. Id. Thus, as to this claim against Rogers, we see no
basis for overturning the grant of summary judgment.
With respect to the grant of summary judgment to Rogers
on the claim of false imprisonment, though, we do not affirm, just
as we do not affirm the grant of summary judgment to Kinsella and
Curtis with respect to the claims of false imprisonment, false
arrest, or malicious prosecution. Unlike the MCRA and intentional
infliction of emotional distress claims just addressed, the merits
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of the summary judgment ruling as to these claims -- for false
imprisonment as to Rogers and for false arrest, false imprisonment,
and malicious prosecution as to Kinsella and Curtis -- necessarily
turn on issues that are "best resolved in state court," Desjardins,
777 F.3d at 46 (quoting Camelio v. Am. Fed'n, 137 F.3d 666, 672
(1st Cir. 1998)).
As to the claims of false arrest and false imprisonment
against Kinsella and Curtis, the merits of the summary judgment
ruling depend on whether a jury could reasonably find that the
officers lacked probable cause to arrest Wilber. That question,
however, necessarily turns in part on a judgment about an issue
that the parties sharply disagree about and that our resolution of
the one federal claim did not require us to address -- the right
definition of the scope of each of the state law offenses that the
defendants have identified as providing a basis for the arrest.
And, with respect to the claim of false imprisonment against
Rogers, yet another contested point of state law presents itself
-- namely, whether, as Wilber contends, Rogers' role in "booking"
Wilber precludes Rogers from claiming the protection conferred by
Mass. Gen. Laws. ch. 272 § 53.
Finally, as to the claims of malicious prosecution
lodged against Kinsella and Curtis, contested state law issues
arise once again. For, even if we could bypass the probable cause
inquiry, we still would then have to decide whether a jury
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reasonably could find that the officers had the improper purpose
required to trigger liability for that tort.
Thus, rather than attempt, with respect to these issues,
to resolve the parties' disagreements about how best to construe
state law in light of the record, we follow our approach in
Desjardins. We thus vacate the grant of summary judgment to all
three officers as to Wilber's claim for false imprisonment, as
well as to Wilber's claims for false arrest and malicious
prosecution to Kinsella and Curtis, and remand these claims to
Outcome: We affirm the entry of summary judgment as to Officers
Kinsella, Curtis, and Rogers on the intentional infliction of
emotional distress claim and the claims under 42 U.S.C. § 1983 and
Mass. Gen. Laws ch. 12, § 11I, and as to Officer Rogers on the
malicious prosecution and false arrest claims. We vacate the entry
of summary judgment as to Officers Kinsella and Curtis on the
malicious prosecution, false arrest, and false imprisonment
claims, and as to Officer Rogers on the false imprisonment claim,
and we remand with instructions that the District Court remand
those claims to state court. Each party shall bear their own