United States Court of Appeals

For the First Circuit

Nos. 08-2221, 08-2222

BRIAN J. KENNEDY; MICHELLE KENNEDY, individually and as mother

and next friend of B.D.K.; M.K.; D.K.,

Plaintiffs, Appellees/Cross-Appellants,

v.

TOWN OF BILLERICA; DANIEL C. ROSA, individually and as Chief of

the Billerica Police Department; MARK TSOUKALAS; RICHARD NESTOR;

SCOTT PARKER,

Defendants, Appellants/Cross-Appellees,

THOMAS CONNERS; FRANK A. MACKENZIE; RICHARD RHONSTOCK; MARTIN E.

CONWAY; ANDREW DEVITO; RICHARD HOWE; STEVEN ELMORE; MICHAEL A.

CASEY; WILLIAM MACDONALD; ALAN MUNN,

Defendants, Appellees,

JOHN BARRETTO, individually and as former Chief of the Billerica

Police Department, et al.,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Lynch, Chief Judge,

Boudin and Lipez, Circuit Judges. 

Leonard H. Kesten with whom Deidre Brennan Regan, Jeremy I.

Silverfine, and Brody, Hardoon, Perkins & Kesten, LLP were on brief
for the appellants/cross-appellees and appellees.

Andrew M. Fischer with whom Jason & Fischer, Frederick V.

Gilgun, Jr., and Nicholson, Sreter & Gilgun, P.C. were on brief for

the appellees/cross-appellants.

July 13, 2010
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LYNCH, Chief Judge. We affirm in part and reverse in

part in this contentious civil rights case brought by a family of

plaintiffs, the Kennedys, against the Town of Billerica,

Massachusetts, and numerous individual police officers. Before us

are cross-appeals from jury verdicts and court rulings in the two

trials in this bifurcated case. 

Specifically, we hold that error in instructing the jury

in the first trial on the state law crime of assault and battery on

a police officer requires that there be a new trial on the only

successful federal civil rights claim against a police officer in

that trial. The error undercut the basis for a defendant police

officer's defense to a federal claim of false arrest for that

crime. The federal civil rights award against the Town and the

award of attorney's fees under 42 U.S.C. § 1988 must, as well, be

vacated.

As to the state law verdicts in the first trial against

two individual police officers based on intentional infliction of

emotional distress (IIED), we vacate and direct entry of judgment

for defendants. A minor's fear of going to court and a fear of the

police, nightmares, and the loss of sleep, after arrest or after

the filing of an application for a complaint against a minor, do

not meet the severity of harm requirements under state law to find

liability on IIED claims. We also vacate the state law verdict

against the Town, which rested on a theory not recognized under
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Massachusetts law, that the Town may be liable for supervisory

negligence even in the absence of cognizable underlying torts

attributable to individual municipal employees or the Town. We

order entry of judgment for the Town on this claim. We further

reject plaintiffs' cross-appealed claims from the first trial,

which were waived and also lack merit.

The verdict for plaintiffs in the second trial solely

involved state law claims against two individual officers. We

vacate and enter judgment for defendants on a state intentional

infliction of emotional distress claim against an individual

officer, because there was no evidence at trial supporting a

finding that the officer intended to inflict emotional distress or

that his conduct caused the emotional harms asserted by one of the

minor plaintiffs. The verdict for plaintiffs against the other

individual officer on an assault charge stands; the evidence

presented on this claim was not so insufficient that no reasonable

jury could have found for plaintiffs. We also affirm the district

court's grant to defendants of judgment as a matter of law on

plaintiffs' cross-appealed claims against the two officers. 

I. Background

In 2004, plaintiffs, Michelle and Brian Kennedy, Sr., and

their three children, Brian Jr., Mitchell, and Dylan, all minors,

brought suit under 42 U.S.C. § 1983 and state law against the Town

of Billerica, Massachusetts, and more than two dozen individual
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police officers in their official and personal capacities.

Plaintiffs claimed that for thirteen years and in approximately

sixty-five different incidents, from 1991 through the filing of

their suit in 2004, the Billerica police conspired to and did

deprive family members of their constitutionally protected civil

rights and committed state law torts in order to drive the Kennedys

out of town. 

In light of the number and complexity of these claims,

the district court bifurcated the case into two trials held in

April and October 2007. The Kennedys introduced numerous witnesses

and detailed dozens of events to try to show that defendants were

involved in a department-wide campaign to harass them and violate

their civil rights. They say the harassment began when Michelle

Kennedy allegedly spurned defendant Officer Frank MacKenzie's

advances in 1991. 

Defendants denied all allegations and contested

plaintiffs' account of the events, countering that the Billerica

Police, like the police in nearby Tewksbury, investigated members

of the Kennedy family because of their suspected involvement in

drug crimes during this period. In both trials, juries rejected

nearly all of the Kennedys' federal and state claims, including the

Kennedys' central civil rights conspiracy claim in the first trial.

The first trial concerned the Kennedys' claims against

the Town and seven named police officers: Chief Daniel Rosa and
The district court dismissed a number of plaintiffs' 1

claims against defendants in the first trial on summary judgment,

ruling that these claims were either outside the November 5, 2001

statute of limitations or supported by insufficient evidence to

state a claim. Among those claims the court ruled as outside the

statute of limitations were plaintiffs' loss of consortium claims,

including those made by the Kennedy children. See Kennedy v. Town

of Billerica (Kennedy I), 502 F. Supp. 2d 150, 160 (D. Mass. 2007).

The court also granted defendants' motion for a directed

verdict following the close of evidence on all claims against

Officer Conway, virtually all claims against Officer Casey, and

almost all claims Michelle, Brian Sr., and Mitchell made arising

from a November 9, 2001 incident (the "Masone incident").

The jury also found for Dylan on one IIED claim but 2

awarded no damages; the district court granted defendants judgment

on this claim. See Kennedy v. Town of Billerica (Kennedy IV), No.

04-cv-12357, slip op. at 2 (D. Mass. Dec. 10, 2007). 

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Officers Frank MacKenzie, Steven Elmore, Michael Casey, Thomas

Conners, Martin Conway, and Mark Tsoukalas. The lone federal 1

claim on which the jury found against the individual defendants and

awarded damages was Mitchell Kennedy's § 1983 false arrest claim

against Officer Tsoukalas, a claim arising from an incident in

2004, when Mitchell was fourteen years old. On the state IIED

claims, the jury found for Mitchell on the same incident involving

Officer Tsoukalas, and awarded Mitchell $15,000 in total damages

for the two claims. The jury also found for Brian Jr. on a claim 2

against Chief Rosa arising from a 1997 incident that occurred when

Brian Jr. was nine years old, awarding $10,000 in damages.

As to the Town, there were two verdicts for plaintiffs,

one each under federal and state law. The jury found the Town

liable under Monell v. Department of Social Services, 436 U.S. 658
On May 10, 2007, defendants filed a post-verdict motion 3

for judgment as a matter of law or a new trial, and on August 21,

2007, the district court rejected all of defendants' arguments on

the merits. See Kennedy III, No. 04-cv-12357, slip op. at 1-7

(Aug. 21, 2007). Plaintiffs did not file any post-verdict motions

for reconsideration of any issues from the first trial, including

the claims they now assert are a basis for a new trial. 

Plaintiffs initially proceeded against an additional 4

fourteen officers in the second trial but later agreed to dismissal

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(1978), only for Mitchell's § 1983 false arrest claim, on the

ground that the Town's failure to properly supervise or discipline

Officer Tsoukalas amounted to deliberate indifference to Mitchell's

civil rights. The jury further found against the Town, and for

Michelle, Brian Jr., Dylan, and Mitchell Kennedy, on a state law

supervisory negligence claim, on the theory that the Town's

practices were responsible for free-standing harms independent of

identifiable torts committed by individual officers. Plaintiffs

obtained nearly $380,000 in total damages at the first trial,

mostly from the latter claim against the Town. See Kennedy v. 3

Town of Billerica (Kennedy IV), No. 04-cv-12357, slip op. at 1-4

(D. Mass. Dec. 10, 2007) (judgment on damages); Kennedy v. Town of

Billerica (Kennedy III), No. 04-cv-12357, slip op. at 1-3, 7-10 (D.

Mass. Aug. 21, 2007) (ruling on defendants' post-verdict motion for

judgment as a matter of law in the first trial). 

The second trial concerned the Kennedys' federal

constitutional and state law tort claims against six other

individual officers: Officers Alan Munn, Richard Howe, Richard

Rhonstock, Andrew Devito, Richard Nestor, and Scott Parker. Only 4
with prejudice of all claims against these officers. See Kennedy

v. Town of Billerica (Kennedy II), No. 04-cv-12357, slip op. at 1

& n.1 (D. Mass. Aug. 15, 2007) (order granting in part and denying

in part defendants' motion for summary judgment). The district

court also granted summary judgment to defendants Officers Howe,

Munn, Rhonstock, and Devito on all claims, and on certain claims

against Officers Parker and Nestor. See id. at 1-15. Plaintiffs

do not appeal any of these claims. 

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claims against Officers Nestor and Parker, involving two discrete

incidents in 1993 and 2002 respectively, went to the jury. The

jury found for Brian Jr. on an IIED claim against Officer Nestor

arising from the emotional trauma Brian Jr. said he suffered when

his mother was arrested in front of him in 1993, when Brian Jr. was

five years old, and awarded $2,500 in compensatory damages. The

jury also found that in 2002, Officer Parker engaged in conscienceshocking conduct against Michelle Kennedy, assaulted her, and

intentionally inflicted emotional distress on her, for which the

jury awarded compensatory and punitive damages. 

The district court granted defendants' post-verdict

motion for judgment as a matter of law on Michelle's federal claim

of conscience-shocking conduct and state IIED claim against Officer

Parker, but left the verdicts against Officer Parker on Michelle's

assault claim and against Officer Nestor on Brian Jr.'s IIED claim

intact. See Kennedy v. Town of Billerica (Kennedy V), No. 04-cv12357, slip op. at 2-12 (D. Mass. Jul. 24, 2008) (ruling on

defendants' motion for judgment as a matter of law on claims in the

first and second trials). The district court also vacated the
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punitive damages award against Officer Parker, id. at 16, and

Officer Parker was ultimately deemed liable for $2,000 in

compensatory damages only. 

II. Issues Arising from the First Trial

The first trial, against the Town and seven individual

officers, lasted seventeen days and involved testimony from nearly

fifty witnesses. Though most of the Kennedys' claims had a threeyear (November 5, 2001) statute of limitations, the district court

allowed testimony about incidents stretching back to 1991 to

provide context for the alleged civil rights conspiracy. It also

allowed certain pre-2001 claims involving the Kennedy children,

since the statute of limitations was tolled on some of those claims

while they were minors. 

The district judge described the trial as "an intense,

nasty, awful case" and "the least civil trial I have presided over

. . . within the last five years, maybe the last ten" due to

incessant "uncivil and unprofessional" and even "unethical[]"

behavior by both parties' counsel. The record fully supports this

assessment. We commend the district court's handling of this

extremely difficult case.

Eventually, twenty federal and state law claims against

the Town, Chief Rosa, and Officers MacKenzie, Elmore, Conners, and

Tsoukalas went to the jury, which rejected most, but not all, of

plaintiffs' claims. Defendants now appeal the denial of their
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motion for judgment as a matter of law, or in the alternative for

a new trial, on all claims on which the jury found for plaintiffs.

They also claim prejudicial errors. Because we grant defendants a

new trial on some claims and judgment as a matter of law on all

others, we need not reach those issues. We also reject all the

claims raised on plaintiffs' cross-appeal. 

We review the district court's denial of a post-verdict

motion for judgment as a matter of law under Rule 50 de novo,

viewing the evidence in the light most favorable to the verdict.

See Jennings v. Jones, 587 F.3d 430, 438 (1st Cir. 2009); Visible

Sys. Corp. v. Unisys Corp., 551 F.3d 65, 71 (1st Cir. 2008). We

reverse the district court's denial of such motions if "the jury

'would not have a legally sufficient evidentiary basis' for its

verdict." Jennings, 587 F.3d at 436 (quoting Fed. R. Civ. P.

50(a)). We review the denial of a motion for a new trial for abuse

of discretion. See id. at 436-37. "Any error of law, if

prejudicial, is a good ground for a new trial," among other

grounds. 11 Charles A. Wright, Arthur R. Miller, & Mary Kay Kane,

Federal Practice and Procedure § 2805, at 55 (2d ed. 1995). We

describe the facts, framed in light of the applicable standard of

review, as relevant.

A. Federal and State Law Liability of Officer Tsoukalas

Mitchell Kennedy's false arrest and IIED claims against

Officer Tsoukalas arose from a contested incident after dark on the
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evening of February 20, 2004, when Mitchell was fourteen years old.

That night, Officer Tsoukalas, in uniform, and another officer went

to the trailer park where the Kennedys lived to respond to police

reports that children were running across the top of a vacant

trailer. The officers looked for signs of break-ins or vandalism

but saw none, and told the children they initially encountered that

they were free to leave. 

Mitchell alleged at trial that at this point, Officer

Tsoukalas stopped him on the Kennedys' property, shined a

flashlight in his face, scratched his face when putting the

flashlight down, and then arrested him without probable cause and

threw him into a police car. Officer Tsoukalas pressed charges for

assault and battery of a police officer against Mitchell. A jury

acquitted Mitchell on these charges. A friend of the Kennedy

family who said he saw the incident thirty feet away testified that

he saw Officer Tsoukalas shine a flashlight in Mitchell's face,

"belly-bump" him, and arrest him, and that Mitchell never touched

Officer Tsoukalas.

Mitchell testified that he was "scared" of Officer

Tsoukalas when he was arrested in front of his home. His mother

was not home at the time but his older brother came by and spoke to

the officer. Mitchell also testified he was "wicked scared" when

he was photographed at the police station after his arrest and

started crying; the police then called his mother and took him
Mitchell also testified on cross-examination that he had 5

been to court in an earlier case in which he had been criminally

charged, but not arrested, and then acquitted of beating a car

windshield. Plaintiffs claimed that this incident was malicious

prosecution, but the district court directed a verdict for

defendants on this claim. For the reasons we discuss below, there

was no error in this ruling.

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home. He was at the police station for half an hour or so. He

testified that he was "nervous" when he went to court to face

charges and "really scared" when the jury came out because he

"didn't know what was going to happen." He also testified that as 5

a result of this incident and other run-ins he had with the police

(including when he was videotaping the police and later incidents

in which he was questioned by the police), he suffered nightmares

about being taken away from his family and was afraid whenever he

heard police sirens. This was the only evidence plaintiffs

introduced regarding the emotional harms Mitchell suffered from the

February 20, 2004 arrest.

Officer Tsoukalas testified that, after he completed his

initial investigation of the incident, he "saw another kid come

walking around the corner from one of the trailers," shined a

flashlight to illuminate him because it was dark, and asked the

child to come toward him, again illuminating him to identify who it

was. At this point, Tsoukalas identified the child as Mitchell

Kennedy. Mitchell approached, swore at Officer Tsoukalas and told

him to get the flashlight out of his face, and shoved Officer

Tsoukalas, thus providing Officer Tsoukalas with probable cause to
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arrest Mitchell for assault and battery of a police officer.

Officer Tsoukalas denied scratching or otherwise hitting Mitchell.

Pertinent to the issue of whether Officer Tsoukalas had

probable cause to arrest Mitchell for shoving a police officer,

defendants requested an instruction on the elements of the crime of

assault and battery on a police officer. The district court

declined the request and said the jury could be instructed if it

asked. After it was charged, the jury then returned with a

question: "Does light contact initiated, whether intentional or

not, by a suspect on an officer constitute probable cause for

arrest? For example, if a baseball player so much as touches an

umpire, is it grounds for expulsion?"

The court then instructed the jury that under

Massachusetts law, the elements of assault and battery on a police

officer included "two types of batteries": either "a touching by an

individual of the person of another with such violence that harm is

likely to result, regardless of whether the person so touched

consented thereto," or "a touching, which is not physically

harmful, but offensive as an affront to the police officer's

personal integrity," requiring "proof of nonconsent by the police

officer." The latter type of battery, the court elaborated,

required proof "that [Mitchell] touched the police officer," that

"the police officer did not consent to the touching," and "that the

conduct constituting the act of touching was an intended act and
We accordingly do not examine the "wanton and reckless" 6

portion of the instruction.

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not an accidental one." The difficulty came in the court's next

statement, that Officer Tsoukalas "also has to establish that

[Mitchell's] act which resulted in the touching was both

intentional and wanton and reckless, that is to say, more than

negligent, and that it caused bodily injury to the victim; in other

words, the police officer [Tsoukalas]." 

Defense counsel objected to the last part of this

instruction, focusing on the argument that the "bodily injury

requirement" was not necessary to show offensive battery. The 6

district court said it would consider the objection over the

weekend, review cases, "and, if necessary, change [the instruction]

on Monday." Later in the discussion, the district court stated

that although "the last paragraph" of the battery instruction was

not wrong, it was "not well crafted" and "just a little confusing,"

and the court invited both parties "to try your hand at doing

something cleaner." Defense counsel reiterated his objection. 

The following Monday, defense counsel submitted a

proposed supplemental jury charge to clarify that the state crime

of offensive battery did not require proof of bodily injury. The

district court rejected the instruction and decided that the

original instruction had been clear enough. Defense counsel again

objected. The jury ultimately found for Mitchell on the § 1983

false arrest claim, which required finding that Officer Tsoukalas
Plaintiffs claim defendants' objections to the 7

instruction were waived because defendants failed to offer a jury

instruction before deliberations began. But the claimed error here

is not that the district court failed to provide the jury with an

essential instruction; it is that when the jury asked for further

instructions, the district court provided an erroneous instruction

on the law. Defense counsel timely objected to that instruction.

See 9C Charles A. Wright & Arthur R. Miller, Federal Practice and

Procedure § 2553, at 72-73 & n.39 (3d ed. 2008). Counsel also

timely provided a supplemental instruction at the court's

invitation; the district court rejected it. 

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had arrested Mitchell for assault and battery on a police officer

without probable cause. The jury also found for Mitchell on the

state law IIED claim derived from that arrest. 

1. Mitchell's § 1983 False Arrest Claim

Defendants say the assault and battery jury instruction

created prejudicial error because it wrongly conveyed to the jury

that offensive battery--the type of battery defendants alleged

Mitchell committed on Officer Tsoukalas--required proof that

Officer Tsoukalas suffered a bodily injury. Officer Tsoukalas

never claimed bodily injury resulted when Mitchell shoved him;

defendants say the instruction precluded the jury from finding that

Mitchell committed battery on a police officer, and therefore that

Officer Tsoukalas had probable cause to arrest Mitchell. In 7

effect, defendants argue, the court instructed a verdict in

Mitchell's favor.

Where, as here, defendants have a preserved objection

that the jury instructions were so inaccurate that they are

entitled to a new trial, our review of the instructions is de novo.
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Goodman v. Bowdoin Coll., 380 F.3d 33, 47 (1st Cir. 2004). We look

to the challenged instructions in relation to the charge as a

whole, "asking whether the charge in its entirety--and in the

context of the evidence--presented the relevant issues to the jury

fairly and adequately." Id. Even if the instructions were

erroneous, we find that the district court abused its discretion in

denying a motion for new trial on this basis only if "the preserved

error, based on a review of the entire record, can fairly be said

to have prejudiced the objecting party." Id. (quoting Levinsky's,

Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 135 (1st Cir. 1997))

(internal quotation marks omitted). That threshold is satisfied

here, and we hold that defendants are entitled to a new trial on

Mitchell's § 1983 false arrest claim.

The instructions at issue prevented the jury from fairly

and adequately understanding the elements of offensive battery

essential to Officer Tsoukalas's defense. Massachusetts law, as

defendants point out, does not require proof of physical injury as

an element of offensive battery. See Commonwealth v. Hartnett, 892

N.E.2d 805, 814 & n.4 (Mass. App. Ct. 2008); see also Commonwealth

v. Cohen, 771 N.E.2d 176, 177-78 (Mass. App. Ct. 2002). The sample

Massachusetts jury instruction from which the district court

instructed the jury correctly identified the three elements of

offensive battery in the initial portions of its instructions. The

final part of the court's instructions to the jury nonetheless
Our conclusion on this state law claim is independent of 8

our holding that Officer Tsoukalas is entitled to a new trial on

Mitchell's § 1983 false arrest claim. Even assuming arguendo that

a properly instructed jury could find that Officer Tsoukalas

arrested Mitchell without probable cause, and even viewing the

evidence in Mitchell's favor, Mitchell's asserted emotional harms

do not make out an IIED claim.

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conveyed a contradictory and confusing statement of the law to the

jury and effectively identified bodily injury as a required element

of offensive battery.

This instruction materially prejudiced defendants on

Mitchell's false arrest claim against Officer Tsoukalas, whose

primary defense was that he had probable cause to arrest Mitchell

because Mitchell had committed an offensive battery against him.

The jury clearly considered this issue essential to its

deliberations and indicated that neither the evidence nor other

instructions had given it a clear sense of the issue, prompting it

to specifically ask for further instructions. Cf. Susan Wakeen

Doll Co., Inc. v. Ashton Drake Galleries, 272 F.3d 441, 452 (7th

Cir. 2001). The instructions given prevented the jury from fairly

evaluating Officer Tsoukalas's defense and arguably precluded a

finding for Officer Tsoukalas entirely. Defendants are entitled to

a new trial on this claim.

2. Mitchell's State Law IIED Claim

Defendants argue, and we agree, that they were also

entitled to judgment on Mitchell's IIED claim against Officer

Tsoukalas.8
The other elements are "(1) that the actor intended to 9

inflict emotional distress or that he knew or should have known

that emotional distress was the likely result of his conduct ...;

(2) that the conduct was extreme and outrageous, was beyond all

possible bounds of decency and was utterly intolerable in a

civilized community," and "(3) that the actions of the defendant

were the cause of the plaintiff's distress." Howell v. Enter.

Publ'g Co., LLC, 920 N.E.2d 1, 28 (Mass. 2010) (quoting Agis v.

Howard Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976)) (internal

quotation marks omitted).

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Under Massachusetts law, a plaintiff must show he

suffered "severe" emotional distress as one of the four elements of

an IIED claim. This means the kind of distress "that no 9

reasonable man could be expected to endure," Agis v. Howard Johnson

Co., 355 N.E.2d 315, 319 (Mass. 1976) (quoting Restatement (Second)

of Torts § 46 cmt. j (1965)) (internal quotation marks omitted), as

opposed to mere "emotional responses including anger, sadness,

anxiety, and distress," which, though "blameworthy," are "often not

legally compensable." Quinn v. Walsh, 732 N.E.2d 330, 338 (Mass.

App. Ct. 2000).

We do not downplay the possible emotional effect of an

allegedly wrongful arrest on a fourteen-year-old. However, though

Massachusetts recognizes that children and other particularly

susceptible persons are likely to be more vulnerable to emotional

harm, see Boyle v. Wenk, 392 N.E.2d 1053, 1056 (Mass. 1979), the

generalized harms Mitchell alleged were too transient, too vague,

and insufficiently severe to satisfy this standard. 

The strength of a standard is always a matter of degree,

but the Massachusetts cases are demanding. See Bailey v. Shriberg,
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576 N.E.2d 1377, 1379 (Mass. App. Ct. 1991) (finding no "severe"

emotional distress, even for susceptible plaintiffs, where the

allegations merely involved being upset as a result of defendants'

conduct); cf. Homesavers Council of Greenfield Gardens, Inc. v.

Sanchez, 874 N.E.2d 497, 504 (Mass. App. Ct. 2007) (finding

"severe" emotional distress where the plaintiff presented evidence

of severe depression, suicidal thoughts, and loss of sleep for more

than a month). The harms Mitchell alleged in his testimony--that

he feared Officer Tsoukalas at the time of arrest and feared going

to court, and that this arrest, as well as other incidents, had

made him generally "nervous," afraid of police sirens, and had

sometimes given him "nightmares" that produced sweating and a

racing pulse--are little different from the harms Massachusetts

courts have deemed insufficiently severe.

We do not reach the question of whether Mitchell could

have made out an IIED claim on different facts, for instance if he

had offered detailed testimony that established that he had

suffered serious emotional injury or anguish, exhibited psychiatric

or physical symptoms of severity, or that Mitchell's life was

otherwise materially disrupted by his reaction to this arrest. No

such evidence was offered in this case. On the facts developed at

trial--and we do not go beyond them--plaintiffs have not made the

requisite showing that Mitchell suffered "severe" emotional

distress.
We bypass whether Chief Rosa's alleged conduct was 10

"extreme and outrageous" and "beyond all possible bounds of

decency," Howell, 920 N.E.2d at 28, another required element of an

IIED claim that defendants say was not satisfied here. 

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B. State Law Liability of Chief Rosa

The sole ground on which the jury found against Chief

Rosa was on a state law IIED claim by Brian Jr. The factual

predicate for this claim, viewed in the light most favorable to the

verdict, was that in 1997, when Brian Jr. was nine years old, Chief

Rosa deliberately filed a baseless complaint application against

him for malicious destruction of property, using a report from

another officer stating that Brian Jr. had thrown rocks at his

neighbor's trailer. As a result of the complaint application,

Brian Jr. said that he was "scared" and "didn't sleep much" when he

learned he would have to appear in court because he had "never been

in court before."

We agree with defendants that Chief Rosa was entitled to

judgment on this IIED claim. Even when viewing the evidence in

plaintiffs' favor, Brian Jr., like Mitchell, clearly did not allege

emotional harm of a requisite severity to make out an IIED claim,

for the reasons discussed above with respect to Mitchell's claim.10

Brian Jr.'s alleged loss of sleep for an unspecified period before

his court appearance, and his generalized fear of going to court,

do not rise to the level of emotional suffering that "no reasonable

man should be expected to endure," Agis, 355 N.E.2d at 319 (quoting

Restatement (Second) of Torts § 46 cmt. j (1965)) (internal
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quotation marks omitted), even considering Brian Jr.'s susceptible

emotional state as a nine-year-old.

C. Federal and State Law Liability of the Town of Billerica

1. Monell Liability on Mitchell's § 1983 False Arrest Claim

against Officer Tsoukalas

Mitchell's false arrest claim against Officer Tsoukalas

was the only constitutional violation to which the jury attributed

the Town's negligent failure to train and supervise under Monell.

Because we have granted a new trial on the false arrest claim, we

also vacate the jury's verdict on the Monell claim and remand for

a new trial with the false arrest claim. 

Monell can impose municipal liability only for

underlying, identifiable constitutional violations attributable to

official municipal policy; the municipality's failure to train or

supervise its police officers only becomes a basis for liability

when "action pursuant to official municipal policy of some nature

caused a constitutional tort." Monell, 436 U.S. at 691 (emphasis

added); see also City of Los Angeles v. Heller, 475 U.S. 796, 799

(1986) (per curiam) ("If a person has suffered no constitutional

injury at the hands of the individual police officer, the fact that

the departmental regulations might have authorized the use of

constitutionally excessive force is quite beside the point.");

McSherry v. City of Long Beach, 584 F.3d 1129, 1147 (9th Cir.

2009); Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006);

Wilson v. Town of Mendon, 294 F.3d 1, 6-7 (1st Cir. 2002). Other
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than Mitchell's § 1983 false arrest claim, the district court

either entered judgment for defendants or the jury rejected all

other remaining constitutional torts that could have formed a basis

for municipal liability. Plaintiffs did not allege, nor did the

evidence suggest, any other possible underlying constitutional

torts that the jury could have attributed to the municipality.

2. The Town's State Law Liability for Supervisory Negligence

Claims

We also hold that the defendants were entitled to

judgment on the state law supervisory negligence claim against the

Town, and we vacate the award for plaintiffs. 

The jury found that the Town was liable under state law

for supervisory negligence because the Town "commit[ted] negligence

in disciplining or supervising its police officers which

proximately caused harm" to Michelle, Brian Jr., Mitchell, and

Dylan Kennedy. Plaintiffs were awarded more than $300,000 in total

damages against the Town, beyond the Town's joint and several

liability for individual torts the jury found were committed by

individual officers. The district court held that this claim could

be made under Mass. Gen. Laws ch. 258, § 2, and that it could be

sustained based on general evidence that the Billerica police

engaged in a pattern of harassment over the course of a decade, see

Kennedy III, slip op. at 7, not on the basis of individual torts

committed by individual officers. 
The district court concluded that the Town could be held 11

liable for free-standing incidents only in a post-verdict motion

denying defendants judgment as a matter of law, and even then it

recognized that "neither side thoroughly discussed this claim

during closing arguments." See Kennedy III, slip op. at 4-7.

Articulation of this issue in a post-verdict ruling is too late for

defendants to have had an adequate chance to counter the claim at

trial. 

-23-

Defendants start by objecting that they were unfairly

caught by surprise by the district court's ruling. The plaintiffs

never framed the state negligent supervision claim as a freestanding claim against the Town in the absence of a finding that

particular torts were committed by Town employees and these were

caused by the Town's negligent supervision, much less that

liability could be predicated on a pattern of events including

events outside the three-year statute of limitations. They protest

that this theory of liability was first articulated by the district

court in its order denying defendants judgment as a matter of law.11

We pretermit analysis of that question in favor of

addressing defendants' more substantive objections. Defendants

argue that the verdict against the Town must be vacated, and

judgment granted to defendants, in the absence of a finding that

individual officers committed any specific torts which in turn were

traceable to the Town's supervisory negligence. They say that

under Massachusetts law, the Town is only liable for supervisory

negligence for failing to prevent torts committed by individual

employees, not for unattributed, general practices that do not rise
It merely held that defendants were not entitled to 12

judgment because the Massachusetts Tort Claims Act (MTCA) generally

recognizes the tort of supervisory negligence and that the evidence

that various unspecified Billerica officers harassed plaintiffs as

a general practice over the course of a decade was sufficient to

support the claim. See Kennedy III, slip op. at 3-7. 

-24-

to the level of tortious conduct. Defendants have preserved this

issue for appeal. 

The district court did not address this argument in

denying defendants judgment as a matter of law. Defendants are 12

correct that thus far, Massachusetts cases have only allowed

supervisory negligence claims against municipalities where the

municipality knew or should have known about an underlying,

identifiable tort which was committed by named or unnamed public

employees. See Mass. Gen. Laws ch. 258, § 2, 10(c); Dobos v.

Driscoll, 537 N.E.2d 558, 569 (Mass. 1989) (explaining that

municipalities can be sued under the MTCA for supervisory

negligence "where the supervisory officials allegedly had, or

should have had, knowledge of a public employee's assaultive

behavior"); Doe v. Blandford, 525 N.E.2d 403, 408 (Mass. 1988)

(same). No Massachusetts case has been cited to us that has ever

recognized a supervisory negligence claim against municipalities

for generalized, free-standing, and unspecified wrongs when no

individual employee or group of employees committed an underlying

tort. 
-25-

We decline to extend the doctrine of municipal

supervisory liability that far, especially in light of the policy

and economic concerns for municipalities. A federal court,

interpreting state law, is not the appropriate place to adopt a

novel and expansive view of municipal liability under state law.

See Warren v. United Parcel Serv., Inc., 518 F.3d 93, 100-01 (1st

Cir. 2008). Plaintiffs failed at trial and on appeal to identify

any cognizable tort committed against Michelle, Brian Jr.,

Mitchell, or Dylan, outside of the specific torts that either were

rejected by the jury or were directed out by the district court,

which the jury could have connected to the Town's negligent

supervision. Plaintiffs cannot collect on this claim by simply

asserting that the Town created unspecified harms. 

Second, there is reason to doubt the SJC would adopt such

a view. Under 28 U.S.C. § 2680(h) of the Federal Tort Claims Act,

which Massachusetts considers a "nearly identical provision" to

§ 10(c) of the Massachusetts Tort Claims Act, Doe, 525 N.E.2d at

407, the United States can be held liable for certain identifiable

torts committed by its agents. But the FTCA has never been

interpreted to impose free-standing liability on the federal

government for unspecified and unattributed conduct that do not

fall under recognized categories of torts. See 28 U.S.C.

§ 2680(h); see also Santoni v. Potter, 369 F.3d 594, 603 (1st Cir.

2004). This suggests a further reason not to extend the doctrine.
Our conclusion is further supported by the fact that, as 13

defendants argue, plaintiffs never framed negligent supervision as

a free-standing claim that could confer independent liability on

the Town based on events that occurred well outside the three-year

statute of limitations. In their presentment letter, their

complaint, their arguments and submissions at trial, and in their

proposed jury instructions, plaintiffs never argued that the Town

could be held liable for supervisory negligence in the absence of

specified individual torts committed by named or unnamed individual

officers. Indeed, plaintiffs suggested the opposite. Defense

counsel's colloquy with the district court regarding jury

instructions appeared to confirm defendants' position that the Town

had to be linked to individual constitutional or state law torts to

be liable on either Monell or supervisory negligence claims. And

the jury instructions were ambiguous.

Moreover, plaintiffs did not point to any incidents within the

three-year statute of limitations that were not attributable to

individual defendants and could have provided a viable basis for

supervisory liability. 

-26-

We vacate the jury's award of damages to Michelle, Brian

Jr., Dylan, and Mitchell Kennedy on this basis and hold that the

Town was entitled to judgment on this claim.13

D. Plaintiffs' Cross-Appeal

Plaintiffs also cross-appeal issues from the first trial.

They argue that they are entitled to a new trial because the

district court erred in (1) granting summary judgment to defendants

on the Kennedy children's loss of consortium claims; (2) entering

judgment for the defendants on plaintiffs' false arrest, malicious

prosecution, unlawful imprisonment, and related claims arising from

the so-called November 9, 2001 "Masone incident"; (3) admitting

"bad character" hearsay evidence as to the Kennedy parents'

involvement in drugs; (4) bifurcating the two trials into an

initial trial against the Town and seven individual officers, and
-27-

a second trial against remaining individual officers; and (5) not

submitting a federal constitutional substantive due process claim

to the jury. They also claim that the district court erred in

reducing the damages award to Mitchell and Brian Jr. on the

negligent supervision claim against the Town and to Mitchell on the

Monell claim.

We have reviewed all of these claims and reject them.

Plaintiffs have waived most of these arguments by failing to timely

make them before the district court. See States Res. Corp. v. The

Architectural Team, Inc., 433 F.3d 73, 85 (1st Cir. 2005). They

are in any event meritless for reasons we briefly discuss. 

The district court properly granted summary judgment on

the Kennedy children's loss of consortium claims because they are

plainly barred by the November 5, 2001 statute of limitations,

notwithstanding the rule preserving claims of minors. The

underlying injuries that caused the Kennedy children to allegedly

suffer a loss of consortium involved time-barred claims of injuries

to the Kennedy parents. Under Massachusetts law, "loss-ofconsortium claims that do not accrue until after the statute of

limitations has run on the underlying injury may not be enforced."

Lareau v. Page, 39 F.3d 384, 391 (1st Cir. 1994). 

Likewise, the district court properly granted judgment

for defendants on claims arising from the so-called "Masone

incident," in which Brian Sr., Michelle, and Mitchell were
-28-

arrested, prosecuted, and eventually acquitted for their alleged

involvement in breaking car windows and fighting with various

acquaintances who showed up by the Kennedy's trailer in the middle

of the night on November 5, 2001. The district court properly

directed a verdict on the claims made by Michelle and Brian Sr.,

since a grand jury found there was probable cause to arrest them in

connection with this incident, disposing of their false arrest,

malicious prosecution, and other derivative claims. See Gonzalez

Rucci v. I.N.S., 405 F.3d 45, 49 (1st Cir. 2005). Plaintiffs'

attempts to impugn the grand jury testimony are not only belated

and unpreserved but also insufficient to upset the district court's

conclusion.

The district court also properly directed a verdict on

Mitchell's malicious prosecution claims against all officers but

Chief Rosa. All of plaintiffs' arguments on these claims were not

made to the district court and cannot be raised now. Plaintiffs

could not, in any event, have submitted Mitchell's claims against

non-defendant officers in the first trial to the jury, as they now

request, and there was insufficient evidence connecting the other

defendant officers to the incident.

Plaintiffs' assertion that they are entitled to a new

trial because the district court committed prejudicial error by

admitting hearsay evidence is meritless. We review the specific

evidentiary objections presented. On appeal, plaintiffs claim there
-29-

was error in the admission of a police chart and a related 1991

police report regarding a drug investigation, testimony about

Michelle and Brian Sr.'s involvement in a drug ring, testimony

about drug buys, questioning about a drug conviction, plaintiffs'

drug treatment records, testimony regarding plaintiffs' eviction

from their trailer park, and defense counsel's opening and closing

arguments. The district court did not err in admitting this

evidence.

Defendants introduced assorted evidence regarding the

Kennedys' involvement in drug dealing to rebut plaintiffs' central

theory, that the police were targeting the Kennedys for no reason,

by showing that the Kennedys' involvement in drugs gave the police

ample grounds to investigate them. Defendants were entitled to do

so. Indeed, the district court explicitly warned plaintiffs'

counsel that plaintiffs were "open[ing] the world" to testimony

regarding the Kennedys' suspected involvement in drug dealing by

suggesting that the police began investigating the Kennedys for

drugs only in retaliation for Michelle spurning Officer MacKenzie's

advances. Plaintiffs' counsel at that point agreed to the risk and

even conceded that it was "fine" to allow in the 1991 police report

that plaintiffs now challenge on appeal. The district court also

reminded the jury that the 1991 report, like other documents

regarding drug investigations of the Kennedys, was "hearsay from an

informant," and explained that such documents were "relevant only
-30-

as to what was in the mind of the police when they were

investigating the Kennedys in 1991." The court repeated this

instruction before the jury went to deliberate. Plaintiffs fail to

acknowledge these curative instructions and have not, in any event,

established prejudice. For the same reasons, even if plaintiffs

had timely objected to defense counsel's statements in opening and

closing arguments about the Kennedy's involvement in drugs, these

claims fail.

As for defense counsel's questions regarding Brian Sr.'s

1988 drug conviction, the district court repeatedly sustained

plaintiffs' objections, and the conviction was never admitted.

Plaintiffs have not shown that defense counsel's repeated

references to this incident caused prejudice, not least in light of

the district court's instructions. Moreover, both sides repeatedly

flouted the court's various rulings; plaintiffs' request for a

mistrial on this basis is misplaced.

Similarly, the district court restricted the scope of

testimony regarding the plaintiffs' eviction but allowed limited

testimony to rebut plaintiffs' central claim, that they were forced

out of Billerica and evicted from the trailer park because of

constant police harassment. Plaintiffs' objections to questions

beyond the scope of this testimony were consistently sustained, and

plaintiffs' assertions that the jury was nonetheless exposed to

prejudicial hearsay misrepresents the record. 
-31-

Plaintiffs' objections to the admission of Michelle

Kennedy's drug treatment records are also meritless. Plaintiffs

not only asked Michelle about her counseling at the Seven Hills

treatment center and about her addiction to various pills but

admitted her medical records into evidence themselves. At no point

did plaintiffs object to the admission of records concerning

methadone use. Plaintiffs also failed to object when defense

counsel questioned Michelle Kennedy regarding her treatment for

heroin and cocaine use. 

We also reject plaintiffs' cross-appeal of the district

court's bifurcation of their claims into the two trials. This

claim is in any event waived, since plaintiffs failed to timely

object to the bifurcation during the two trials. Plaintiffs

inaccurately argue that they were unable to present the "full scope

of harassment and misconduct" at both trials. The district court

in fact gave plaintiffs great leeway, allowing them in both trials

to introduce extensive evidence about incidents occurring well

before the statute of limitations bar date, and to present, in the

first trial, evidence of conduct by defendants who were involved

only in the second trial. Plaintiffs' other, cursory objections

were not preserved and also fail to show prejudice. 

We further reject plaintiffs' argument that they should

have been able to submit a federal constitutional "substantive due

process" claim to the jury asserting that the Kennedys were singled
-32-

out for disparate treatment and deprived of their liberty.

Plaintiffs have repeatedly waived this claim. To the extent this

is a substantive due process claim, it is waived because plaintiffs

specifically told the district court they did not want to submit

such a claim to the jury. To the extent this may be characterized

as an equal protection claim, it is equally waived and meritless.

The district court properly found that plaintiffs never gave

defendants fair notice of such a claim in any relevant pleadings,

and plaintiffs did not timely object to that ruling. 

Finally, the district court did not erroneously reduce

damages awards to plaintiffs. Plaintiffs say that the court erred

in reducing the Monell award to Mitchell because they say the jury

could have held (and should have been instructed) that the Town was

liable for cumulative constitutional violations even if no

individual officer was found liable. Plaintiffs' objections to the

jury instructions are waived. Even assuming dubitante that the

jury could have considered uncharged, accumulated instances of

harassment in addition to the specific constitutional violations

plaintiffs asserted (all but one of which the jury rejected),

plaintiffs never argued, nor is it apparent, that the uncharged

harassment could have amounted to a constitutional violation.

Their argument also incorrectly states the law; the Town may be

liable even if individual officers are ultimately exonerated, for

instance because the officers are granted qualified immunity or for
Defendants' motion before the district court requested 14

judgment as a matter of law or, in the alternative, a new trial,

and the district court denied both remedies on these claims in its

opinion. See Kennedy V, slip op. at 1-2, 10. On appeal,

defendants only request judgment in their favor on these claims;

they have waived their appeal of the district court's denial of a

new trial. 

-33-

failure of proof, but plaintiffs must still show some underlying

constitutional tort attributable to the Town. See Wilson, 294 F.3d

at 6-7. And we have directed entry of judgment to defendants on

the supervisory negligence claim against the Town, making

plaintiffs' objections to the reduction of that award moot. 

III. Issues Arising from the Second Trial

The second trial lasted six days and involved testimony

from eleven witnesses. Only claims against Officers Nestor and

Parker went to the jury. See Kennedy II, slip op. at 14 (granting

summary judgment on claims against all other defendants). After

the district court granted in part defendants' post-verdict motion

for judgment as a matter of law, the only claims on which

plaintiffs prevailed were Brian Jr.'s IIED claim against Officer

Nestor for events in 1993 and Michelle's assault claim against

Officer Parker for events in 2002. See Kennedy V, slip op. at 16.

Defendants now argue that the district court erred in not

granting them judgment on these claims as well. They also say the 14

district court erred in denying their motion for a mistrial because

of allegedly prejudicial comments admitted into evidence.

Plaintiffs cross-appeal the district court's grant of judgment to
We do not decide whether Brian Jr.'s asserted emotional 15

harms of not being able to sleep alone and being afraid for a

period of months that his mother would be taken away were "severe"

given the emotional susceptibility of a five-year-old. Other

required IIED elements are plainly absent. 

-34-

defendants on Michelle's substantive due process and IIED claims

and say the jury verdicts on those claims should not have been

vacated. 

We review the district court's grant or denial of

judgment as a matter of law de novo, Visible Sys. Corp., 551 F.3d

at 71, viewing the evidence in the light most favorable to the

verdict-winner, and vacating the jury verdict only if it lacks a

sufficient evidentiary basis, Jennings, 587 F.3d at 438. We review

the district court's denial of a motion for a mistrial for manifest

abuse of discretion. See United States v. DeCologero, 530 F.3d 36,

52 (1st Cir. 2008). We again describe the facts as necessary and

in light of the relevant standards of review. 

A. State Law Liability of Officer Nestor

The jury returned a verdict for Brian Jr., and against

Officer Nestor, on an IIED claim that arose from a 1993 incident in

which Brian Jr. allegedly suffered emotional harms from watching

his mother being arrested and taken by police in their trailer home

when he was five years old. Plaintiffs asserted that Officer 15

Nestor was responsible for Brian Jr.'s emotional distress, even

though Officer Nestor was not present at the arrest, because they

claim he had no basis for filling out a criminal complaint against
-35-

Michelle after an earlier incident in which she allegedly

confronted Nestor for driving dangerously close to the Kennedys'

car. Officer Nestor testified that in that incident, Michelle

swore and spat at him. He considered this an assault and filled

out a complaint application, but he decided not to apply for a

warrant. He further stated that the charges against Michelle were

enhanced while he was away, without his knowledge. Even assuming

arguendo that Officer Nestor had no basis for filing this complaint

application, there was no evidence that he was involved in or

intended for the charge to be enhanced to have Michelle arrested.

We hold that defendants were entitled to judgment on this

claim. Even when viewing the record most favorably to plaintiffs,

no evidence at trial established, and considerable evidence

rebutted, two of the essential elements of an IIED claim: "that the

actor intended to inflict emotional distress or that he knew or

should have known that emotional distress was the likely result of

his conduct" and that "the actions of the defendant were the cause

of the plaintiff's distress." Agis, 355 N.E.2d at 18-19.

Uncontroverted testimony from Officer Nestor and other

witnesses confirmed that he explicitly and deliberately requested

only a complaint application, which results in a mere summons, not

an arrest. He was on vacation when the application was enhanced

(either by another officer or the magistrate clerk at the local

court) to request an arrest warrant, and he was still away when
Plaintiffs assert on appeal that Officers Nestor and 16

Conners lied about altering the complaint application and both

intended to have Michelle arrested. No evidence at trial supports

these assertions.

-36-

Michelle was arrested. Officer Nestor testified that on his 16

return, he was "upset to learn" that the charge had been enhanced

without consulting him. He cannot be held liable for the harms

Brian Jr. alleged as a result of that arrest, which Officer Nestor

did not seek and which was sought without his knowledge or input.

B. State Law Liability of Officer Parker

The only verdict the district court left in place against

Officer Parker was a state law assault claim brought by Michelle

for events in 2002. See Kennedy V, slip op. at 11. Defendants say

the district court erred by not granting them judgment as a matter

of law on this claim because the evidence was insufficient to

support the verdict. We disagree.

Viewing the evidence in the light most favorable to

plaintiffs, the verdict-winners, we cannot find that "the evidence

was so strongly and overwhelmingly inconsistent with the verdict

that no reasonable jury could have returned it." See Crowe v.

Bolduc, 334 F.3d 124, 134 (1st Cir. 2003). Assault, under

Massachusetts tort law, requires that the defendant "act[ed]

intending to cause a harmful or offensive contact" with plaintiff,

"or an imminent apprehension of such a contact," and that plaintiff

was "thereby put in such imminent apprehension." Restatement

(Second) of Torts § 21(1) (1965); see also Conley v. Romeri, 806
The incident began when Michelle, her husband Brian Sr., 17

and two friends began loading skateboard ramps--which they said

they had permission to take--in a wooded area behind the local

Boys' Club. Officer Parker said he received a call reporting a

suspected drug deal at the location, identified the skateboard

ramps as those used in a police recreational league, and asked that

the ramps be put back. 

As Brian Sr. and the other friends left, Michelle was swearing

at Officer Parker. The assault allegedly occurred when no one else

was around. Michelle called then-Officer Dean Royston from her car

during the alleged assault, and exited her car when Royston

arrived. The incident ended when Royston told Michelle to leave.

-37-

N.E.2d 933, 939 n.6 (Mass. App. Ct. 2004). "'Words do not make the

actor liable for assault unless together with other acts or

circumstances they put the other in reasonable apprehension of an

imminent harmful or offensive contact with his person.'"

Commonwealth v. Delgado, 326 N.E.2d 716, 719 n.3 (Mass. 1975)

(quoting Restatement (Second) of Torts § 31 (1965)).

The assault claim here arose from a 2002 incident in

which Michelle testified that Officer Parker "shoved [her] really

hard" when she was walking to her car, "tr[ied] to get in" her car

after she locked herself in, and was "kicking it and calling [her]

really bad names" and continually swearing at her. Dean Royston, 17

a (now-former) police officer who appeared on the scene, testified

that he saw Officer Parker standing at the driver's door of

Michelle's car yelling and swearing, and that Michelle left her car

and swore back at him in a "screaming match." Officer Parker

denied shoving Michelle, kicking her car, or attempting to break

into her car to get to her. Parker conceded that "unfortunately,

I lost my cool and started giving it back to her, cursing at her,
There may be relevant defenses or privileges available to 18

police officers under other provisions of Massachusetts law, for

-38-

swearing at her" after she "had gotten back in the car and locked

the door" and that he cursed at her "through the open sunroof" of

her car for several minutes. 

The jury rejected Michelle's claims that Officer Parker

used excessive force, had battered her, or had unreasonably

detained her. It could nonetheless have found Officer Parker

liable for assault on the basis of Michelle's testimony that

Officer Parker repeatedly kicked her car while swearing at her and

attempting to get inside her car. 

Defendants' argument to the contrary rests on an overly

narrow view of the state law tort of assault. Under Massachusetts

tort law, a defendant need not "be able instantly to carry out the

physical violence threatened by his conduct," Ginsberg v. Blacker,

852 N.E.2d 679, 684 n.8 (Mass. App. Ct. 2006); rather, "'[i]t is

enough that one is so close to striking distance that he can reach

[plaintiff] almost at once." Id. (quoting Restatement (Second) of

Torts § 29 cmt. b (1965)). On this basis, Massachusetts has

suggested--and other state courts have held--that "shouting angrily

at a person and raising a hand (or shaking a fist) in that person's

face" constitutes assault. Id. On these facts, Officer Parker's

shouting and swearing, combined with his proximity to Michelle

while he was kicking her car and allegedly trying to get into her

car, qualifies as an assault.18
instance to use reasonable force to effect an arrest. Defendants,

however, solely argued that Officer Parker could not be liable for

the tort of assault because shouting and kicking a car generally do

not rise to the level of assault. We reject that position in

relation to the facts of this particular case, viewed in the light

most favorable to the jury verdict.

-39-

C. Defendants' Motion for a Mistrial

Defendants cursorily appeal the district court's denial

of their motion for a mistrial, arguing that the district court

abused its discretion by admitting improper and prejudicial

evidence. Specifically, defendants object to the admission of

evidence regarding another officer's arrest of Michelle months

after the 1993 incident involving Officer Nestor and "inflammatory

suggestions" regarding a non-defendant witness, retired Deputy

Chief Conners, who allegedly "gave the 'finger' to Brian Jr." in

the courthouse after Conners's testimony at the second trial. 

Neither of these incidents rise to the exceedingly high

level of prejudice required for us to find a manifest abuse of

discretion. See DeCologero, 530 F.3d at 52. The admission of

evidence regarding another officer's arrests of Michelle later in

1993 was hardly prejudicial; indeed, the officer's testimony

suggested that Officer Nestor had little to do with these later

arrests and that the officer had probable cause to arrest Michelle.

In any event, any prejudice would have only affected the jury

verdict against Officer Nestor, which we already vacated. 

The admission of evidence concerning Deputy Chief

Conners's conduct at the federal courthouse was admitted as
-40-

relevant to Conners's credibility. Any prejudice from the

admission of this testimony would again have been limited to the

incident involving Officer Nestor, in which Conners had been

involved. Neither side alleged that Deputy Chief Conners had

anything to do with the 2002 incident involving Officer Parker, and

Conners' testimony was limited to the 1993 incident. We therefore

hold that there was also no prejudice in admitting this testimony.

D. Plaintiffs' Cross-Appeal

We reject plaintiffs' cross-appeal of the district

court's grant of judgment to defendants on Michelle's substantive

due process and IIED claims against Officer Parker, arising out of

this same 2002 incident. The district court was correct. Even

taken in the light most favorable to the verdict, the evidence fell

far short of showing conscience-shocking conduct, a sine qua non

for the claim. Martinez v. Cui, No. 09-1471, 2010 WL 2404390, at

*8-9 (1st Cir. June 17, 2010).

The jury rejected plaintiffs' claims that Officer Parker

used excessive force against Michelle or unreasonably detained her;

the only remaining bases for finding Officer Parker engaged in

conscience-shocking conduct were Michelle's allegations that

Officer Parker kicked her car repeatedly and swore and screamed at

her for several minutes. This conduct may have been reprehensible,

but it falls short of conduct that is "so brutal and so offensive

to human dignity" that it gives rise to a substantive due process
This court has left open the possibility that severe 19

"verbal harassment and intimidation could violate due process."

Cruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 623 (1st Cir. 2000).

Engaging in a mutual shouting match in which both parties hurled

profanities at the other would simply not meet this standard even

if we were to assume arguendo that the theory was viable. Id. at

623-24 (holding that even more severe verbal harassment, including

alleged death threats by police officers, did not shock the

conscience); see also McConkie v. Nichols, 446 F.3d 258, 261-62

(1st Cir. 2006) (surveying cases).

-41-

violation. Chavez v. Martinez, 538 U.S. 760, 774 (2003) (quoting

Rochin v. California, 342 U.S. 165, 172 (1952)); see also Cummings

v. McIntire, 271 F.3d 341, 344 (1st Cir. 2001). That is so even

assuming arguendo that, as plaintiffs assert, Officer Parker's

actions were the product of a decade-long campaign of harassment.

That fact goes to the intentionality of Officer Parker's conduct on

that day in 2002, not its severity. "[T]he due process guarantee

does not entail a body of constitutional law imposing liability

whenever someone cloaked with state authority causes harm." County

of Sacramento v. Lewis, 523 U.S. 833, 848 (1998).19

The district court also properly held that defendants

were entitled to a verdict on the state IIED claim. The emotional

harms Michelle asserted as a result of the 2002 incident involving

Officer Parker were feeling "always nervous that I'm going to get

arrested," not being able to sleep, and thinking about the incident

"all the time" for several months. As we have discussed with

respect to the IIED claims in the first trial, these are not the

kind of "severe" emotional harms required to make out an IIED claim

under Massachusetts law. See Bailey, 576 N.E.2d at 1379. 
-42-

IV.

Plaintiffs were awarded attorney's fees under 42 U.S.C.

§ 1988, solely for civil rights claims on which they prevailed in

the first trial, namely Mitchell's § 1983 false arrest claim

against Officer Tsoukalas and the related Monell liability for the

Town on this claim. See Kennedy v. Town of Billerica (Kennedy VI),

No. 04-cv-12357, slip op. at 6-7 (D. Mass. Jul. 24, 2008) (order

granting attorney's fees). Because we vacate and remand the jury

verdict on these claims and order a new trial, we also vacate the

district court's award of attorney's fees. 

V.

We remand and direct the grant of a new trial to

defendants on Mitchell's § 1983 false arrest claim against Officer

Tsoukalas for the 2004 incident from the first trial and on the

accompanying Monell claim against the Town on the question of its

liability for this incident only. We order entry of judgment for

the defendants on the IIED claims by Mitchell against Officer

Tsoukalas and by Brian Jr. against Chief Rosa from the first trial,

as well as the state supervisory negligence claim against the Town.

We also order entry of judgment for defendants on Brian

Jr.'s IIED claim against Officer Nestor on the 1993 incident in the

second trial. We affirm judgment for Michelle Kennedy on her

assault claim against Officer Parker. We vacate the award of
-43-

attorney's fees under 42 U.S.C. § 1988. No costs are awarded.

So ordered.