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
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.

-7-
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

-10-
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).

-11-
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,

-14-
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 nineyear-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 intentionalinfliction-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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