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Johnson v. Weare Police Department

United States District Court, First Circuit

October 23, 2013

David Johnson, Plaintiff,
Weare Police Department; Town of Weare, New Hampshire; and Officer Frank Jones, Defendants. No. 2013 DNH 140


STEVEN J. McAULIFFE, District Judge.

On September 22, 2011, members of the Weare Police Department arrested the plaintiff, David Johnson, and charged him with driving after his license had been revoked and operating a motor vehicle with a suspended registration. Following a trial, Johnson was convicted of both charges. He did not appeal that conviction, which is now final. He brings this action seeking $5 Million in damages, asserting that the defendants violated his constitutionally protected rights and committed various common law torts.

The only individually named defendant in Johnson's complaint - Officer Frank Jones - moves for summary judgment, asserting that he is entitled to judgment as a matter of law with regard to each of Johnson's claims. The municipal defendants - the Town and its police department - have filed a separate motion for summary judgment. For the reasons stated, defendants' motions are granted.

Standard of Review

When ruling on a motion for summary judgment, the court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith , 904 F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate when the record reveals "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). In this context, "a fact is material' if it potentially affects the outcome of the suit and a dispute over it is genuine' if the parties' positions on the issue are supported by conflicting evidence." Int'l Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr. , 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).

This case is somewhat atypical in that Johnson has failed to object to either of the pending motions for summary judgment. Accordingly, the court accepts as admitted the factual statements recited in those motions, as supported by the attached exhibits. See Local Rule 7.2(b)(2) ("All properly supported material facts set forth in the moving party's factual statement shall be deemed admitted unless properly opposed by the adverse party."). See also Puerto Rico Am. Ins. Co. v. Rivera-Vazquez , 603 F.3d 125, 131 (1st Cir. 2010) (discussing Puerto Rico's analog to Local Rule 7.2(b)(2), also known as the "anti-ferret rule, " and holding that, "This type of rule is aimed at enabling a district court to adjudicate a summary judgment motion without endless rummaging through a plethoric record. Given this root purpose, we have held with a regularity bordering on the monotonous that parties ignore the strictures of an anti-ferret' rule at their peril.") (citations omitted).

Importantly, however, Johnson's failure to object does not automatically entitle defendants to judgment in their favor. The court must still determine whether the uncontested facts presented by defendants, when viewed in the light most favorable to Johnson, entitle defendants to judgment as a matter of law. See, e.g., Stonkus v. City of Brockton Sch. Dep't , 322 F.3d 97, 102 (1st Cir. 2003).


On September 22, 2011, two officers from the Weare Police Department drove to a home on Dustin Tavern Road to execute a warrant authorizing the arrest of the owner of that property. They placed the homeowner under arrest and took him into custody without incident. During the course of the arrest, the officers learned that, although the homeowner was not carrying (or concealing) any weapons, he did have firearms in his home.

Once they returned to the police station, the officers discovered that there was an active domestic violence restraining order in place against the homeowner - an order that prohibited him from possessing any firearms. They discussed the matter with the homeowner and he agreed to allow the officers to return to his home, conduct a search for the weapons, and take them into police custody. During the course of his conversation with the officers, the homeowner stated that no one else was living at his home and no one had permission to be on his property.

At approximately 9:00 PM, a small group of Weare police officers - including the defendant, Officer Frank Jones - drove to the property to retrieve the weapons. As they approached the house, the officers saw a black Ford Ranger pickup truck that had not been on the property earlier. As they got closer to the vehicle, the officers saw the truck's occupant pop his head up and then drop back down out of sight. The officers suspected that the individual in the truck might be engaged in illegal activity, given his apparent attempt to conceal his presence. Additionally, the homeowner had told the officers that no one was authorized to be on the property and the officers knew that there had been a string of burglaries in the area recently. The officers also knew that the homeowner was associated with members of "sovereign citizen" and "free state" groups and, of course, they were well aware of the fact that there were firearms on the property - all of which, say the officers, raised safety concerns.[1]

Accordingly, the officers decided to approach the vehicle, remove the occupant, and determine what he was doing on the property. They moved toward the vehicle with their service weapons drawn and in a "low ready" position. The truck's occupant, the plaintiff, Mr. Johnson, was ordered to get out of the truck and lay on the ground. Johnson complied; no physical force was necessary, nor was any applied, to obtain his cooperation. After patting Johnson down to ensure that he was not carrying any weapons, the officers allowed him to stand up and they asked him who he was and what he was doing on the property. Johnson told the officers that he was a friend of the homeowner and that he had been sleeping in the truck when they arrived. The officers ran a check on Johnson's personal information and determined that both his driver's license and automobile registration were suspended. Although Johnson asserted that he did not need a driver's license or vehicle registration to drive on public roads, the officers were (understandably) unpersuaded.[2]

Given the likelihood that Johnson would simply drive away if he were not taken into custody, the lieutenant (and highest ranking officer) on the scene decided to place him under arrest. Because Johnson is a large man, one of the other officers handcuffed him using two sets of handcuffs linked together. Officer Jones then escorted Johnson to one of the police cruisers. Because of his size, Johnson had difficulty getting into the vehicle. So, Officer Jones allowed him to sit in the back seat with his legs outside the vehicle, while the remaining officers searched the home and retrieved the owner's firearms. According to the officers, no force (excessive or otherwise) was ever used against Johnson. In his affidavit, Officer Jones testified that:

At no point during the detention or arrest process did I apply any force, excessive or otherwise, against Johnson. I did not handcuff Johnson. I did not use any of the various physical restraints or maneuvers normally utilized by the police (e.g., take downs, armbars, hand strikes, etc.) on Johnson. I did not strike Johnson, or apply any level of force to him, beyond ...

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