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Wilber v. Curtis

United States Court of Appeals, First Circuit

September 20, 2017

ROBERT JUDE WILBER, Plaintiff, Appellant,
v.
ROBERT CURTIS; BRIAN KINSELLA; MICHAEL ROGERS, Defendants, Appellees, MICHAEL SIMONEAU, Defendant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Jennifer C. Boal, Magistrate Judge

          Richard K. Latimer for appellant.

          Thomas R. Donahue, with whom Leonard H. Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins and Kesten, LLP were on brief, for appellees.

          Before 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.

         I.

         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).

         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 property.

         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 machinery in action within the clearing area; Wilber vocally protested and strung yellow caution tape and plastic rope across the easement."

         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 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 ...


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