Robert F. Robinson v. Timothy J. Cook, Sr.

United States Court of Appeals
For the First Circuit
No. 12-1722
ROBERT F. ROBINSON ET AL.,
Plaintiffs, Appellants,
v.
TIMOTHY J. COOK, SR. ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Judith G. Dein, U.S. Magistrate Judge]
Before
Thompson, Stahl, and Lipez,
Circuit Judges.
Brendan C. Selby, with whom Valeriano Diviacchi was on brief,
for appellants.
Joseph A. Padolsky, with whom Douglas I. Louison and Louison,
Costello, Condon & Pfaff LLP were on brief, for appellees.
January 23, 2013

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STAHL, Circuit Judge. This appeal stems from a police
investigation of a 2007 hit-and-run that culminated in the arrests
of father and son Robert and Mario Robinson and the seizure of
Robert's car. After the resulting criminal charges against the
Robinsons were dismissed, they filed state and federal claims
against the City of Attleboro, Massachusetts and several Attleboro
police officers. The district court granted summary judgment for
the defendants, and the Robinsons now appeal. After careful
consideration, we affirm.
I. Facts & Background
On July 12, 2007, two thirteen-year-old boys, Christopher
Redlund and Nathan Chou, were riding their bicycles along Wilmarth
Street in Attleboro when a car pulled up alongside them. The car's
passenger (unknown to the boys) engaged Redlund in a verbal
exchange, which may have involved shouting and swearing, an inquiry
about whether the boys were involved in a recent incident in which
a classmate had been beaten up, or both. (Redlund's descriptions
of this altercation have varied somewhat.) After Redlund told the
passenger to leave him and Chou alone, the car drove at Redlund and
struck him, flipping him over his handlebars and onto the road,
scraping his back, arms, and legs. The car then drove away.
Redlund called his father, Attleboro Detective Alex
Aponte (who is not a defendant here), to report the incident.
Aponte and two other police officers arrived at the scene. The
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boys described the car, which Redlund believed he had seen in the
area before, as a silver or tan two-door compact in poor shape with
a rubber strip hanging from the passenger side. Redlund suggested
that the car might be Japanese in origin, and Chou apparently
mentioned that it could be a Nissan, although he later said that he
thought it was a Honda. The boys said that the car's occupants
were three or four dark-skinned young men.
The officers soon located a 1989 Honda Accord coupe that
apparently matched the boys' description in the Robinsons'
driveway, about a mile from the hit-and-run location. The exterior
of the car was in poor condition, and a strip of rubber molding was
hanging from the side. The passenger door was ajar, and the
seatbelt was hanging out the door opening. The engine was warm.
When Robert emerged from the house, the officers told him
they were investigating a hit-and-run and inquired as to the
whereabouts of Robert's nineteen-year-old son Mario (whom they knew
from his previous encounters with police). Robert explained that
Mario was getting a haircut. The parties dispute what Robert told
the officers about the car: Robert claims that he told the officers
that the car had been sitting in the driveway for ten or twenty
minutes, whereas the officers claim that Robert initially denied
that anyone had used the car for months, and then said that he and
Mario had used the car to drive home from work earlier. The
officers then asked Robert for the car keys, which he provided, and
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had the car towed to the police station. They asked Robert to come
to the station with Mario for interviews.
Redlund and Chou were also summoned to the police
station, where Redlund provided a written statement about the
incident and described it to Attleboro Detective Timothy Cook, Sr.
Aponte took Redlund and Chou (separately) to see a row of cars in
the station parking lot, and asked each boy if he could identify
the car that had struck Redlund. Both boys identified Robert's
Honda. Chou was then shown a picture of Robert, but could not
identify him.
When the Robinsons arrived at the station (whether this
was before or after the boys arrived is unclear), they agreed to be
interviewed. Mario was taken to an interrogation room, read his
Miranda rights, and interviewed by Detective Cook. Redlund watched
on closed-circuit video with his father and other officers.
Redlund was initially unable to identify Mario, but recognized him
as the car's passenger once he removed the hat he was wearing.
Mario denied that he or his father had been involved in the
hit-and-run, and said that his father had been the only person to
drive the car that day. Detective Cook nevertheless arrested him
for assault and battery with a dangerous weapon.
Robert was then taken to the interrogation room and read
his Miranda rights. Redlund, watching on the monitor, could not
identify Robert. Like Mario, Robert denied that he or Mario had
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been involved and said that only he had driven the car that day (to
and from work in Boston). Detective Cook arrested Robert for
leaving the scene of an accident, negligent operation of a motor
vehicle, and assault and battery with a dangerous weapon.
What happened next is sharply disputed. The Robinsons
contend that Detective Cook and Patrolman Timothy Cook, Jr.
(Detective Cook's son) assaulted Mario during the booking process,
whereas the defendants contend that Mario refused to obey their
orders and made as if to strike Detective Cook. The details of
this altercation are not relevant to this appeal; by either
account, Mario was not injured during the struggle. Prosecutors
later added charges against Mario stemming from this incident, but
all of the charges against both Mario and Robert were eventually
dismissed by the state trial court.
The Robinsons subsequently filed suit against the City of
Attleboro, Detective Cook, Patrolman Cook, and six other police
officers who were present for or involved in various phases of the
investigation, arrest, and detention. They raised state and 1
federal constitutional claims under 42 U.S.C. § 1983 and the
Massachusetts Civil Rights Act (MCRA), Mass. Gen. Laws ch. 12,
§ 11I, based on allegations of unlawful arrest, the use of
excessive force, and the unreasonable seizure of the car. They
The other named defendants were Danish Malhotra, Kevin 1
Fuoco, James MacDonald, Barry Brewer, Jeffrey Pierce, and Richard
Woodhead.
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also asserted state law claims for false imprisonment, assault and
battery, intentional infliction of emotional distress, aiding and
abetting, and civil conspiracy.
After discovery, the district court granted summary
judgment to the defendants on most of the Robinsons' claims.
Robinson v. Cook, 863 F. Supp. 2d 49 (D. Mass. 2012). The district
court found that the arrests were supported by probable cause (and
thus that the claim for false imprisonment must fail), id. at 64-
69, 72, and that the warrantless seizure of the car was lawful, id.
at 69-70. The court also found no evidence that could establish
municipal liability, id. at 70-72, or support a claim for
intentional infliction of emotional distress, id. at 73-74. The
court did, however, find that the disputed facts regarding the
scuffle in the police station between Mario and the Cooks precluded
summary judgment on the claims of excessive force, assault and
battery, aiding and abetting, and civil conspiracy. See id. at
62–64, 74. And the court further concluded that qualified immunity
could not shield the defendants from liability on the excessive
force claim because "the unwarranted use of excessive force against
an individual who was posing no threat and making no attempt to
evade or resist arrest" would be clearly unlawful to a reasonable
police officer. Id. at 64.
In a subsequent order clarifying its decision, the
district court also granted summary judgment for three of the
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police officer defendants (Malhotra, MacDonald, and Fuoco) as to
the civil conspiracy and aiding and abetting claims, leaving those
claims alive only as to Detective Cook and Patrolman Cook. The
parties then agreed that the court should enter judgment dismissing
the remaining claims, with the Robinsons' right to appeal that
dismissal waived, but "with the understanding that the Plaintiffs
are preserving all rights of appeal from the summary judgment."
As framed by the parties, the net result of this
procedural muddle is that four issues remain: whether the seizure
of the car was constitutional; whether the arrests were
constitutional; whether these actions can give rise to municipal
liability under Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978); and whether there is evidence to
support a claim of intentional infliction of emotional distress.2
II. Analysis
We review a grant of summary judgment de novo, Manganella
v. Evanston Ins. Co., 700 F.3d 585, 590 (1st Cir. 2012), and will
affirm if there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law, see Fed. R.
Civ. P. 56(a). We consider cross-motions for summary judgment
separately, drawing all reasonable inferences in the nonmovant's
Although the defendants argued below that they are 2
entitled to qualified immunity on the § 1983 and MCRA claims, see
863 F. Supp. 2d at 61, they have not renewed that argument here.
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favor. OneBeacon Am. Ins. Co. v. Commercial Union Assur. Co. of
Can., 684 F.3d 237, 241 (1st Cir. 2012).
A. The Seizure of Robert's Car
We begin with the Robinsons' contention that the
defendants' seizure of Robert's Honda, from his own driveway and
without a warrant, violated the Fourth Amendment's prohibition of
unreasonable searches and seizures, U.S. Const., amend IV, and the
Massachusetts Constitution's parallel guarantee, Mass. Const., pt.
1, art. XIV. This argument calls for us to apply the automobile 3
exception to the Fourth Amendment's warrant requirement, under
which police may conduct a warrantless search or seizure of a car
if they have probable cause to do so. See Maryland v. Dyson, 527
U.S. 465, 466–67 (1999) (per curiam); Pennsylvania v. Labron, 518
U.S. 938, 940 (1996) (per curiam).
The Robinsons argue that the police lacked probable cause
to seize the car. They also contend that an additional requirement
applies here: because Robert's car was parked not on a public road,
where probable cause alone would suffice, United States v. McCoy,
977 F.2d 706, 710 (1st Cir. 1992), but rather in his own driveway,
We analyze these claims together because we have found no 3
support for the Robinsons' suggestion that Article XIV would be
more protective than the Fourth Amendment on these facts. See
Massachusetts v. Eggleston, 903 N.E.2d 1087, 1090 (Mass. 2009)
("[W]hile art. 14 at times provides more protection than the Fourth
Amendment, we ha[ve] followed the Supreme Court in the area of the
automobile exception on other occasions, and no compelling reason
ha[s] been advanced to cause art. 14 and the Fourth Amendment to
diverge in this area.").
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the Robinsons say that the police also needed exigent circumstances
to justify the seizure. The district court said the same thing,
863 F. Supp. 2d at 69 (citing United States v. Swanson, 341 F.3d
524, 531 (6th Cir. 2003)), and the defendants neither disputed the
point below nor do so now. Given that the Supreme Court has
repeatedly emphasized that "the automobile exception does not have
a separate exigency requirement," Dyson, 527 U.S. at 467; see
Labron, 518 U.S. at 940, we are less certain. Nevertheless, 4
because the issue is neither disputed nor dispositive here, we will
assume for the sake of argument that both probable cause and
exigent circumstances were necessary.
Probable cause exists where the facts and circumstances
as to which the police have reasonably trustworthy information are
Without venturing too far into this thicket, we note that 4
the parties' understanding may stem from cases that predate the
Supreme Court's clarification that the automobile exception has no
exigency element. See United States v. Panitz, 907 F.2d 1267, 1271
(1st Cir. 1990) (noting that "exigent circumstances may at one time
. . . have . . . been required to ground a vehicle search");
Eggleston, 903 N.E.2d at 1090 (stating that the U.S. Supreme Court
has "eliminated any requirement that exigent circumstances exist,"
and that the Supreme Judicial Court has followed suit); 3 Wayne R.
LaFave, Search & Seizure § 7.2(b), at 557 & n.79 (4th ed. 2004)
(collecting cases finding that exigency is now "irrelevant" to the
automobile exception). Most circuits that have recently considered
the propriety of warrantless vehicle searches or seizures on
private property have found probable cause alone to be sufficient.
E.g., United States v. Blaylock, 535 F.3d 922, 926 (8th Cir. 2008);
United States v. Hines, 449 F.3d 808, 814 (7th Cir. 2006); United
States v. Brookins, 345 F.3d 231, 237–38 & 237 n.8 (4th Cir. 2003);
United States v. Fladten, 230 F.3d 1083, 1085–86 (8th Cir. 2000).
But see United States v. Fields, 456 F.3d 519, 524–25 (5th Cir.
2006).
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sufficient to warrant a person of reasonable caution in the belief
that evidence of a crime will be found. Safford Unified Sch. Dist.
No. 1 v. Redding, 557 U.S. 364, 370 (2009); see also United States
v. Grubbs, 547 U.S. 90, 95 (2006) (probable cause is present when
there is a fair probability that contraband or evidence of a crime
will be found). The Robinsons argue that this standard was not met
here because the boys' description of the car that hit Redlund was
too "commonplace" to create a sufficient likelihood that Robert's
Honda was that car. We disagree.
Redlund and Chou described the car that hit Redlund as a
silver or tan two-door Japanese compact in poor shape with a rubber
strip hanging from the side. This description, which closely
matches Robert's Honda, is fairly precise, especially insofar as it
encompasses the car's condition and includes a peculiar physical
feature (the rubber strip). Further, the car was found within a
mile of the hit-and-run site, which, together with Redlund's memory
of having seen the car in the area before, bolstered the officers'
conclusion that it was the car they were looking for. And the
warmth of the engine showed that the Honda had been driven
recently, further distinguishing it from similar cars parked in the
vicinity. The totality of these circumstances was sufficient to
create a fair probability that Robert's Honda contained (or was)
evidence related to the hit-and-run. See Chambers v. Maroney, 399
U.S. 42, 44, 46-47 (1970) (finding probable cause for stop and
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arrest where witnesses described a "light blue compact station
wagon," which was spotted two miles from crime scene, less than an
hour after the crime occurred); Capraro v. Bunt, 44 F.3d 690, 691
(8th Cir. 1995) (finding probable cause to seize a truck from the
owner's driveway because it matched a kidnapping victim's
description of the vehicle used in the kidnapping); United States
v. Breedlove, 444 F.2d 422, 424 (5th Cir. 1971) (an "accurate,
albeit general, description" of a car and its occupants created
probable cause, where the car was spotted "at a time and distance
from the [crime scene] consistent with its being the get away
car"). Thus, the police had probable cause to seize the car.5
Exigent circumstances -- if actually necessary -- were
also present. As the district court noted, neither Robert nor
Mario was under arrest when the officers left their house; thus,
they would have "had an opportunity to abscond with the vehicle" if
it had not been towed. 863 F. Supp. 2d at 70; see also Swanson,
341 F.3d at 533 (exigent circumstances justified seizure of a car
where, because officers did not arrest the owner, he "would have
been free to drive the car away, and perhaps destroy or dispose of
evidence, or even the car itself"); 3 Wayne R. LaFave, Search &
Seizure § 7.2(b), at 559-60 & nn.88-92 (4th ed. 2004) (collecting
Because these facts created probable cause, we do not 5
address the Robinsons' argument that the district court's probable
cause determination erroneously relied on the officers' disputed
account of their first interaction with Robert (in which he
supposedly denied having driven the car and then recanted).
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cases emphasizing the ability of defendants or third parties to
move or tamper with cars not yet searched or seized). The
Robinsons protest that upholding the seizure on this basis would
allow the police to "create exigent circumstances by failing to
arrest someone[, thereby] creating the risk that evidence will be
destroyed." But even if the officers had probable cause to arrest
Robert at this point (which the Robinsons do not accept), and had
actually done so, Mario would have remained at large; he was not at
home when the police were there, and could have returned to move or
meddle with the car. Thus, assuming that exigent circumstances 6
were required here, see supra note 4, they were present.
Consequently, the seizure did not offend either the Fourth
Amendment or Article XIV.
B. The Arrests
We turn next to the Robinsons' arrests. A warrantless
arrest is permissible under the Fourth Amendment where there is
probable cause, i.e., where reasonably trustworthy facts and
Also unpersuasive is the Robinsons' suggestion that there 6
was no exigency because the police could have "guarded" the car
until a warrant was obtained; "that is no less of an intrusion than
the seizure . . . of the car." Swanson, 341 F.3d at 533 (citing
Chambers, 399 U.S. at 51–52); see LaFave, supra, § 7.2(b), at 559-
60 (courts have generally not required law enforcement to mitigate
the risk of lost evidence by guarding a vehicle while obtaining a
warrant); cf. Massachusetts v. Bakoian, 588 N.E.2d 667, 672 (Mass.
1992) (explaining, before the elimination of the exigency
requirement in Massachusetts, that the feasibility of posting a
police guard while a warrant was obtained did not weigh heavily
against a finding of exigent circumstances).
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circumstances would enable a reasonably prudent person to believe
that the arrestee has committed a crime (even if it differs from
the one named by police during the arrest or booking). Devenpeck
v. Alford, 543 U.S. 146, 152-54 (2004); United States v. Jones, 432
F.3d 34, 41 (1st Cir. 2005). The same standard governs warrantless
arrests under Article XIV. See Massachusetts v. Hernandez, 863
N.E.2d 930, 934 (Mass. 2007); Massachusetts v. Santaliz, 596 N.E.2d
337, 339 (Mass. 1992). Here, the Robinsons argue that the police
lacked probable cause to arrest Robert or Mario for any crime.
1. Mario's Arrest
Detective Cook arrested Mario for assault and battery by
means of a dangerous weapon under Mass. Gen. Laws ch. 265,
§ 15A(b). That offense requires an intentional and unjustified use
of force upon the person of another with a dangerous weapon (which
can include a car). See Massachusetts v. Appleby, 402 N.E.2d 1051,
1057, 1058 (Mass. 1980). No specific intent to injure is required;
the intent element is satisfied if the defendant had a "general
intent to do the act causing injury." Id. at 1059. The Robinsons
challenge Mario's arrest on three grounds.
a. The boys' identification of the Honda
The Robinsons first contend that the process by which
Redlund and Chou identified the Honda at the police station was so
suggestive that it could not contribute to a finding of probable
cause. Both parties frame their arguments on this issue (and on
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the reliability of Redlund's identification of Mario, discussed
below) using the standard developed by the Supreme Court to govern
the admissibility of witness identifications at criminal trials.
See Perry v. New Hampshire, 132 S. Ct. 716, 724-25 (2012)
(describing the line of cases leading from Stovall v. Denno, 388
U.S. 293 (1967), to Manson v. Brathwaite, 432 U.S. 98 (1977)).
Under this two-part test, courts first ask whether the police have
"use[d] an identification procedure that is both suggestive and
unnecessary." Id. at 724. If so, and if the totality of the
circumstances (considered in light of various factors) reveals a
substantial likelihood of misidentification, the identification
will be excluded. Id. at 724-25; see United States v.
García-Álvarez, 541 F.3d 8, 13 (1st Cir. 2008).
Without questioning its application in the criminal
context, we think it unwise to expand the Brathwaite framework from
"a rule of evidence to a rule of damages" by applying it in an
arrestee's civil suit alleging that probable cause was undermined
by an unreliable identification. See Phillips v. Allen, 668 F.3d
912, 915 (7th Cir. 2012) (declining to apply Brathwaite in a § 1983
case alleging unlawful arrest); see Good v. Curtis, 601 F.3d 393,
398 (5th Cir. 2010) (similar); Mundy v. Georgia, 586 F.2d 507, 508
(5th Cir. 1978) (similar); cf. Abreu-Guzman v. Ford, 241 F.3d 69,
74 (1st Cir. 2001) (discussing whether photographic identification
supported probable cause, for purposes of arrestee's Bivens claim,
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without reference to the Brathwaite framework); Lallemand v. Univ.
of R.I., 9 F.3d 214, 216 (1st Cir. 1993) (similar, in § 1983
case). Rather, we think the best course is to continue to weigh 7
probable cause in these civil cases by asking whether a given piece
of information -- including an allegedly unreliable identification
-- is trustworthy enough that a reasonably prudent person would
rely on it in forming a belief about the suspect's conduct. Jones,
432 F.3d at 41; see Roche v. John Hancock Mut. Life Ins. Co., 81
F.3d 249, 255 (1st Cir. 1996) ("[F]or the purpose of determining
probable cause, courts must ask whether a reasonable person would
rely on a particular piece of information, not whether that
information was unquestionably accurate."). Of course, when courts
apply that standard to a particular eyewitness identification that
a plaintiff alleges is unreliable (whether as a result of
suggestive police procedures or otherwise), the factors identified
in the Stovall-Brathwaite cases will be "relevant considerations in
the totality-of-the-circumstances analysis that traditionally has
guided probable cause determinations." Illinois v. Gates, 462 U.S.
213, 233 (1983).8
Some courts have used the Brathwaite rubric in civil 7
cases like this one, e.g., Grant v. City of Long Beach, 315 F.3d
1081, 1086 (9th Cir. 2002); Brodnicki v. City of Omaha, 75 F.3d
1261, 1265 (8th Cir. 1996), albeit without expressly considering
its appropriateness in this context. The parties relied on these
cases in framing their arguments.
The basic test for probable cause under the Massachusetts 8
Constitution is the same as under the Fourth Amendment, see
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Applying this test to the facts at hand, we find that a
reasonable person would rely on the boys' identification of
Robert's Honda. Redlund testified at his deposition that his
father, Detective Aponte, took him into the police station's
parking lot, where there was a row of cars, and asked him to point
out the car that had hit him. Redlund recognized the car, noting
specifically the dangling rubber trim piece and a red warning
sticker he had noticed on the center console during the incident.
Similarly, Chou testified that the officers took him to the parking
lot to identify the car; he recognized the color, noted the hanging
weather strip, and saw that the car was a Honda.9
The Robinsons' challenge to this process is essentially
that, as impressionable youths, the boys would have been so
inclined to believe that the police (including Redlund's father)
had identified the correct car and driver that their identification
of the car was valueless. But the Robinsons offer no support for
the proposition that an identification is unreliable simply because
an eyewitness is young or inclined to trust the police. Indeed, as
Hernandez, 863 N.E.2d at 934; Santaliz, 596 N.E.2d at 339, and we
have found no indication that the Massachusetts courts would apply
their (stricter) analogue to the Brathwaite rule, see Massachusetts
v. Johnson, 650 N.E.2d 1257, 1260 (Mass. 1995), in this context.
Neither boy's testimony is pellucid as to when exactly he 9
identified the car, but the parties appear to agree that the
identifications took place before the arrests, and Detective Cook
cited the boys' identification of the car as a partial basis for
his decision to arrest Robert and Mario.
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the district court observed, 863 F. Supp. 2d at 65-66, the fact
that Redlund and Chou declined to identify Robert himself in more
suggestive circumstances cuts sharply against the Robinsons'
argument that the boys were simply overawed by the police officers.
Further, the Honda was apparently situated in a "row of cars"; the
record does not reflect how similar the other cars were to the
Honda, but there is no indication that the officers directed the
boys to the Honda. Rather, Redlund recounted that Aponte asked him
"can you tell me which car hit you?" and that Redlund then "found"
the Honda. And, of course, the Honda closely matched the boys'
prior description of the car that hit Redlund. On this record, the
boys' identification of the car was reliable enough to help
establish probable cause. See Roche, 81 F.3d at 255.
b. Redlund's identification of Mario
The Robinsons next challenge Redlund's identification of
Mario himself, on much the same grounds. They also point out that 10
"show up" identifications like this one are generally disfavored.
See Stovall, 388 U.S. at 302 (describing the use of single-suspect
identifications instead of line-ups as "widely condemned"). We
take no issue with that point. Nevertheless, we conclude that this
identification was sufficiently reliable to contribute to a finding
of probable cause.
Contrary to the Robinsons' assertion, Chou was never 10
asked to, and did not, identify Mario.
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Redlund was asked to identify Mario via closed-circuit
television during Mario's interview with Detective Cook. Redlund
was initially unable to identify Mario, but recognized him once he
removed his hat, revealing a distinctive hairstyle. The fact that
Redlund could not identify Mario until he removed his hat (and that
neither boy could identify Robert at all) belies the Robinsons'
assertion that the boys were blindly following the assurances of
trusted authority figures. Further, this identification took place
mere hours after the hit-and-run, and there is no suggestion that
Redlund did not get a decent look at the passenger during the
incident. Cf. García-Álvarez, 541 F.3d at 14 (discussing factors
probative of identification reliability). Finally, as the district
court found, Redlund's identification of Mario was consistent with
other show-ups that have been held to support a finding of probable
cause, right down to the young age of the witness. See Brodnicki
v. City of Omaha, 75 F.3d 1261, 1265–66 (8th Cir. 1996) (applying
the Brathwaite framework to find it reasonable for police officers
to rely on a show-up to support probable cause, where the nine-
year-old witness provided a detailed description of the suspect and
his car and was confident in her identification of the suspect,
which took place on the same day as the alleged crime).
c. Evidence of culpability
The Robinsons' final challenge to Mario's arrest takes a
different tack. They contend that, even if Mario was the passenger
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in the car that hit Redlund, there is no evidence that he actually
did anything other than shout and swear at the boys; thus, he
cannot have had the requisite "general intent to do the act causing
injury." Appleby, 402 N.E.2d at 1059. The district court agreed
in part, seeing no probable cause to believe that Mario had
committed the assault-and-battery offense himself, but finding
probable cause to arrest him for aiding and abetting or conspiring
to commit that offense, because there was evidence -- the shouting
and swearing -- that Mario's "role in the alleged incident was not 11
merely that of a passive observer." 863 F. Supp. 2d at 67-68; see
also Massachusetts v. Zanetti, 910 N.E.2d 869, 884 (Mass. 2009) (a
defendant is guilty of aiding and abetting if he "knowingly
participated in the commission of the crime charged . . . with the
intent required for that offense").12
Although Redlund's descriptions of the incident have 11
varied somewhat, it is undisputed that the information known to the
police at the time of the arrests indicated that the passenger of
the car had shouted, cursed, and acted belligerently toward Redlund
and Chou immediately before the car hit Redlund.
On appeal, the defendants adopt the district court's 12
conspiracy and aiding-and-abetting conclusions. They also contend
that probable cause supported Mario's arrest under a joint-venture
theory, but it is not clear that this theory is distinct from the
aiding-and-abetting rubric under which the district court found
probable cause. See Marshall v. Massachusetts, 463 Mass. 529, 536
n.12 (2012) (explaining that the aiding-and-abetting statute "had
long been viewed as a unified theory of joint venture liability");
Zanetti, 910 N.E.2d at 884 (adopting aiding-and-abetting language
in place of joint-venture language for future prosecutions).
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Whether probable cause justified Mario's arrest is a
close question. Mere proximity to a criminal act does not
establish probable cause; the police must show some additional
circumstances from which it is reasonable to infer participation in
criminal activity. United States v. Martínez-Molina, 64 F.3d 719,
726 (1st Cir. 1995). And, as the Robinsons point out, another
circuit has declined to find probable cause as a matter of law on
similar facts. In Torres v. City of Los Angeles, 548 F.3d 1197
(9th Cir. 2008), a § 1983 case, the police had arrested the
plaintiff and charged him with murder and attempted murder, based
on evidence that, while riding in a car, he "had flashed gang signs
and shouted challenges" shortly before another passenger shot two
people (one fatally). Id. at 1209. The Ninth Circuit reversed a
judgment as a matter of law for the defendants, explaining that a
reasonable juror could find that the police lacked probable cause
to arrest the plaintiff because their evidence of the passenger's
conduct did not establish that he "had acted in concert with" the
shooter and with the requisite mental state. Id.
The Robinsons argue that the same reasoning applies here,
but we think Torres is distinguishable. The Ninth Circuit's
conclusion that the police lacked evidence of culpable conduct by
the passenger was only part of its probable cause holding, which
also turned on the fact that the police lacked sufficient evidence
to believe that Torres actually was the passenger in the first
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place. See id. at 1208. There is also a material difference in
the underlying facts: in Torres, the passenger's conduct apparently
precipitated a car chase that culminated in the shooting, whereas
here, the hit-and-run came immediately after the passenger's
confrontation with the boys. Thus, the inference that the car's
occupants were acting in concert is more plausible here than it was
in Torres, where the shooter was apparently responding to the
intervening event of the car chase. See id. at 1207 n.8.
In sum, we think the district court did not err by
finding probable cause here. The facts known to the police -- in
particular, the immediacy with which the hit-and-run followed the
passenger's verbal abuse -- were sufficient to enable a reasonable
person to conclude that the passenger intended the driver to hit
Redlund. See Appleby, 402 N.E.2d at 1059 (section 15A "requires
only general intent"). Coupled with the adequately reliable
identifications of the Honda and of Mario himself, this information
was sufficient to create probable cause for Mario's arrest under an
aiding-and-abetting theory. As we said, the question is close, but
"[t]he threshold for probable cause in a criminal case is low,"
Suboh v. Dist. Attorney's Office of Suffolk Dist., 298 F.3d 81, 96
(1st Cir. 2002), and the evidence here just clears that bar.
2. Robert's Arrest
We reach the same conclusion as to Robert's arrest, which
was also based on assault and battery, as well as negligence and
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leaving the scene of an accident. The Robinsons challenge Robert's
arrest on two bases. The first -- that the identification of the
car was unreliable -- we have already rejected. The second is that
the police concluded that Robert was driving the car during the
incident by selectively and unreasonably crediting only some of his
statements. We find this argument, too, unavailing.
Robert told the police, both at his house and at the
station, that he had driven the car earlier in the day, but had
merely driven it home from work and was not involved in the
incident. The Robinsons argue that it was contradictory for the
police to credit Robert's acknowledgment that he (and no one else)
had driven the car that day, but not also his statement that he had
been at work and did not hit Redlund. But a reasonable police
officer need not credit a suspect's self-serving statements. Cox
v. Hainey, 391 F.3d 25, 32 n.2 (1st Cir. 2004). And we are aware
of no authority standing for the dubious proposition that if a
person tells the truth about one thing, he cannot be lying about
something else. In any event, this is not a situation where the
police relied solely and selectively on parts of a suspect's
statement to incriminate him; Detective Cook was also aware that
the boys had identified Robert's car as the one that hit Redlund,
that the car had been found near the scene of the incident with a
warm engine, that Redlund had identified Mario as the passenger,
and that there was no other plausible candidate for the driver.
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Given these facts, it was not unreasonable for Detective Cook to
conclude that Robert was telling the truth about having driven the
car, but not about when and where. In sum, the totality of these
circumstances was sufficient to create probable cause for Robert's
arrest.13
C. Remaining Issues
The foregoing analysis truncates our consideration of the
remaining issues. Because the Robinsons acknowledge that their
false imprisonment claims stand or fall with the unlawful arrest
claims discussed above, see Santiago v. Fenton, 891 F.2d 373, 383
(1st Cir. 1989), we need not address those claims further.
Similarly, policy or practice aside, a municipality cannot be
liable for the actions of its officials under Monell if those
actions "inflicted no constitutional harm." City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986). Finally, an intentional-
infliction-of-emotional-distress claim requires "extreme and
outrageous" behavior, Sena v. Massachusetts, 629 N.E.2d 986, 994
(Mass. 1994), and the legitimate police conduct disclosed by this
It is irrelevant that, as the Robinsons emphasize, 13
Detective Cook told Robert that he thought "somebody else might've
been driving that car." Even if Detective Cook genuinely believed
that Robert was not driving the car (and was not simply employing
an interrogation tactic), that fact would not vitiate probable
cause, which is evaluated objectively. See Jones, 432 F.3d at 41.
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record does not qualify, see id.; Vasquez v. Cmty. Sav. Bank, No.
931814D, 1995 WL 808709, at *2 (Mass. Super. Apr. 11, 1995).14
III. Conclusion
Precisely what transpired on Wilmarth Street on July 12,
2007 may never be established. Certainly, if Robert and Mario's
account is accurate, their dudgeon at being arrested and haled into
court is understandable. But on the facts disclosed by this record
-- even when viewed in the light most favorable to the Robinsons,
see Redondo Const. Corp. v. Izquierdo, 662 F.3d 42, 47 (1st Cir.
2011) -- the defendants acted lawfully. Accordingly, we affirm.
We have no occasion to consider whether the ostensible 14
assault on Mario during the booking process could be "extreme and
outrageous," because the Robinsons have voluntarily dismissed (and
waived any appellate rights as to) their claims regarding that
incident.
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