FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. Jennifer C. Boal, Magistrate Judge
Richard K. Latimer for appellant.
R. Donahue, with whom Leonard H. Kesten, Deidre Brennan
Regan, and Brody, Hardoon, Perkins and Kesten, LLP were on
brief, for appellees.
Lynch, Kayatta, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
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.
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.
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).
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
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 property.
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.
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 machinery in action within the
clearing area; Wilber vocally protested and strung yellow
caution tape and plastic rope across the easement."
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."
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."
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 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
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