United States Court of Appeals For the First Circuit
No. 22-1427
ISAURA PENATE,
Plaintiff, Appellant,
v.
DANIEL F. SULLIVAN; GARY J. GEMME, Chief of Police; GEORGE ADAMS; DONNA BRISSETTE; CITY OF WORCESTER,
Defendants, Appellees,
JOSEPH SCAMPINI, JOHN DOES 1 THROUGH 8,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Kayatta, Howard, and Montecalvo, Circuit Judges.
Robert A. Scott, with whom Héctor E. Piñeiro and Lizabel M. Negrón-Vargas were on brief, for appellant. Wendy L. Quinn, with whom Michael E. Traynor, City Solicitor, and Hassett & Donnelly, P.C., were on brief, for appellees.
July 11, 2023 KAYATTA, Circuit Judge. On April 12, 2016, the
Worcester police used a SWAT team to execute a warrant at a
residential apartment. They were looking for evidence of a violent
crime but instead found Isaura Penate, a pregnant nineteen-year-
old who spoke no English. Shortly after the SWAT team entry,
Penate started experiencing contractions, and she gave birth the
next day although her due date was not for another two weeks. She
was later diagnosed with post-traumatic stress disorder.
Penate sued the City of Worcester and several officers
involved in the entry, claiming that the officers violated her
constitutional rights and committed several torts, for which the
City was also liable. The district court granted summary judgment
for the City and the individual defendants, reasoning that none of
the officers violated Penate's constitutional rights and that even
if they did, they are entitled to qualified immunity. As we will
explain, we agree that the individual defendants are entitled to
qualified immunity and that neither they nor the City are liable
for the other torts alleged. Our reasoning follows.
I.
A.
A woman appeared at a rooming house on Main Street in
Worcester around 2:30 a.m. on April 12, 2016, wearing only a t-
shirt and asking for help because she had been raped. Police were
called, and the woman was taken to the hospital. Detective Donna
- 2 - Brissette spoke with the victim around 4:00 a.m. The victim
recounted that she had left a club with two men who told her they
knew her brother. The men initially took her to her brother's
apartment. Then one of the men, who went by the name "Chino,"
said he was having a party at his place, and the woman agreed to
accompany him there. The two men and the woman drove there in a
silver SUV. Once they arrived at the third-floor apartment, the
men sexually assaulted the woman. One man showed the woman a
handgun in the waistband of his jeans during the assault. When
the men left to get their friends, the victim fled, leaving behind
her clothes, a wallet, and her phone.
Around 10:30 a.m. later that day, Detective Brissette
drove the woman to the approximate area she had described as the
location of the assault. The woman directed the officer to turn
onto Preston Street and then identified a building, 22 Preston
Street, as the location at which she had been assaulted. The woman
also said that the gray SUV parked in an adjacent lot looked
familiar and could have been the car in which she rode with the
assailants. Shortly thereafter, by using Facebook, the victim's
sister located a picture of Chino, and the victim identified him
as one of her assailants. The officers at that point did not
attempt to determine whether Chino or the other assailant resided
at 22 Preston Street. In Detective Brissette's view, because the
- 3 - police had reason to believe that the crime had occurred at that
address, it did not matter who lived there.
Detective George Adams applied that afternoon for a
warrant to search 22 Preston Street, Apartment 3. The warrant
application was granted at 1:55 p.m. and permitted officers to
enter during the day and with announcement. Police officers
requested SWAT team assistance because the victim had seen a gun
during the assault. Detective Daniel Sullivan led the team
executing the warrant.
The officers' story about what happened when they
arrived at the apartment differs from Penate's. Defendants assert
that officers knocked and announced their presence multiple times,
in English and Spanish, while they waited to retrieve the proper
tool to enter the apartment. Penate says that the officers did
not knock or announce their presence. Because this appeal arises
from a grant of summary judgment, and because Penate's version is
supported by evidence in the record (namely, her testimony), we
assume that the entry occurred without any announcement sufficient
to alert Penate. See Justiniano v. Walker, 986 F.3d 11, 27 (1st
Cir. 2021) (noting that when deciding a question of qualified
immunity at summary judgment stage, the court "fram[es] the factual
events according to summary judgment's traditional leeway to the
nonmoving party's version of events"); Moses v. Mele, 711 F.3d
213, 216–17 (1st Cir. 2013) (finding that where the "court assumed
- 4 - for argument's sake that all disputes about material facts should
be resolved in the plaintiff's favor," and "the record, so viewed,
nevertheless supports a grant of qualified immunity, summary
judgment is appropriate").
Upon breaching the door of the apartment with firearms
drawn, the officers encountered a hanging sheet behind which Penate
-- nineteen years old, not conversant in English, and thirty-
eight weeks pregnant -- was napping. Penate testified at her
deposition that the men were "dressed as soldiers" in combat gear
("with helmets, glasses and everything"), and that they did not
identify themselves as police.
The officer in front, pointing a gun at Penate, asked
her to come out from behind the sheet and raise her hands.1 Once
she did so, the officer, within "several seconds," lowered his
weapon. Penate was then passed off to other officers and taken
outside the apartment.
Officers asked Penate questions about Chino, the name by
which the victim knew the assailant. Penate did not know anyone
who went by that name. The officers eventually showed Penate the
picture they had received from the victim's sister that identified
Chino; Penate said she did not know and had never seen that person.
1 Although Detective Sullivan was in charge of the entry team, a different officer (who is not a defendant in this case) made the initial contact with Penate and pointed his weapon at her.
- 5 - The police eventually left Penate's apartment after finding no
evidence of the sexual assault and noting that the premises did
not match the description given by the victim.
As the officers were searching, Penate said that she was
not feeling well, and an officer took her into the apartment to
sit down. Penate then started experiencing contractions, and her
water broke. She went to the hospital after the police left and
gave birth the following morning, two weeks before her due date.
Penate testified that after this experience she had anxiety,
depression, nightmares, and insomnia. She was also diagnosed with
post-traumatic stress disorder.
B.
Penate filed this lawsuit in federal district court in
the district of Massachusetts, alleging claims for damages for
violation of her constitutional rights pursuant to 42 U.S.C. § 1983
for unreasonable search and seizure, as well as unlawful entry,
against several of the officers involved in the investigation and
execution of the warrant at 22 Preston Street. She also brought
state law tort claims for assault and battery and intentional
infliction of emotional distress against several officers, and
- 6 - negligence claims against the City of Worcester.2 Defendants moved
for summary judgment after discovery.
The district court granted summary judgment for all
defendants. It began by accepting Penate's version of events for
summary judgment purposes -- i.e., assuming that officers did not
knock and announce and that they kept a weapon pointed at Penate
for some time3 after she came out from behind the sheet. But even
so, the district court determined that the officers did not violate
Penate's right to be free from unreasonable searches and seizures.
The district court found that the officers' no-knock entry and
their brief pointing of weapons at Penate was reasonable because
they were investigating a violent crime involving the presence of
a gun. In the alternative, the district court found that Detective
Sullivan was entitled to qualified immunity, because it was not
clearly established that officers were required to either knock
and announce in this situation or drop their weapons in fewer than
several seconds. Detectives Adams and Brissette were not involved
in the initial entry, so the district court granted summary
judgment to them on that basis. The district court further found
that the individual defendants were entitled to summary judgment
2 Additionally, Penate brought claims for supervisory liability and violation of public records laws against the City of Worcester. Those claims were dismissed, and their dismissal is not at issue on appeal. 3 Penate's counsel clarified at oral argument that she was covered at gunpoint for "several seconds."
- 7 - on the tort claims. Finally, the court found that the City was
not liable to Penate under the Massachusetts Tort Claims Act
(MTCA), because the officers had probable cause to search Penate's
apartment and were therefore not negligent.4 This timely appeal
followed.
II.
We review a grant of summary judgment de novo. Alston
v. Town of Brookline, 997 F.3d 23, 35 (1st Cir. 2021). Summary
judgment is warranted "when the record reflects no genuine issue
as to any material fact and indicates that the moving party is
entitled to judgment as a matter of law." Morelli v. Webster, 552
F.3d 12, 18 (1st Cir. 2009). In determining whether this is the
case, a court is required to view the facts in the light most
favorable to the nonmoving party and draw all reasonable inferences
in that party's favor. Alston, 997 F.3d at 35. Where there is a
question as to qualified immunity, the court must "identify[] the
version of events that best comports with the summary judgment
standard and then ask[] whether, given that set of facts, a
reasonable officer should have known that his actions were
unlawful." Morelli, 552 F.3d at 19. Here, we will follow the
4 The district court also found in the alternative that the negligence claim was barred by the exemption from liability under the MTCA for discretionary actions.
- 8 - district court and assume that all facts are as Penate testified
to -- namely, that officers did not knock or announce their
presence and that one of them briefly continued to point a weapon
at her even after they could see her. See Moses, 711 F.3d at 216–
17 (noting that the court could "assume[] for argument's sake that
all disputes about material facts should be resolved in the
plaintiff's favor"); Morelli, 552 F.3d at 18–19 (noting that
summary judgment requires "deference to the nonmovant's factual
assertions (as long as those assertions are put forward on personal
knowledge or otherwise documented by materials of evidentiary
quality)").
Qualified immunity shields government officials from
civil damages "unless their conduct violated 'clearly established
statutory or constitutional rights of which a reasonable person
would have known.'" Lawless v. Town of Freetown, 63 F.4th 61, 67
(1st Cir. 2023) (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)). Whether an official is entitled to qualified immunity is
governed by a two-prong analysis, which a court may resolve on
either prong. The first prong asks "whether the facts alleged or
shown by the plaintiff make out a violation of a constitutional
right"; the second prong asks whether that right "was 'clearly
established' at the time of the defendant's alleged violation."
Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009) (quoting
Pearson, 555 U.S. at 232). "[T]he second step, in turn, has two
- 9 - aspects. One aspect of the analysis focuses on the clarity of the
law . . . . The other aspect focuses more concretely on the facts
of the particular case and whether a reasonable defendant would
have understood that his conduct violated the plaintiffs'
constitutional rights." Id.
A plaintiff need not find an identical case concluding
that a constitutional violation occurred. Begin v. Drouin, 908
F.3d 829, 836 (1st Cir. 2018). But in order to show that the law
was clearly established, a plaintiff has the burden to identify
"controlling authority or a robust consensus of persuasive
authority such that any reasonable official in the defendant's
position would have known that the challenged conduct is illegal
in the particular circumstances that he or she faced." Escalera-
Salgado v. United States, 911 F.3d 38, 41 (1st Cir. 2018) (quoting
Rivera-Corraliza v. Morales, 794 F.3d 208, 214–15 (1st Cir. 2015)).
We begin with Penate's claim under section 1983 that
several of the officers violated her constitutional rights to be
free from excessive force, unreasonable searches and seizures, and
unlawful entry into her home. Penate makes three arguments in
this regard. First, she argues that officers violated her right
to be free from unreasonable searches by failing to knock and
announce their presence before entering her apartment, and by
failing to investigate sufficiently before conducting a no-knock
- 10 - entry. Second, she asserts that officers violated her right to be
free from excessive force by continuing to point a weapon at her
for several seconds after realizing she was not a threat. Third,
she argues that the officers' conduct as a whole, including their
failure to further investigate before choosing to conduct a SWAT
team entry, rendered the entry and seizure unreasonable. As we
will explain, as to all of these theories, the law did not clearly
establish that any of the officers' actions would have constituted
a violation of Penate's Fourth Amendment rights. The officers are
therefore entitled to qualified immunity.5
1.
We consider first Penate's challenge to the manner in
which the officers entered her home.6 Generally, the Fourth
Amendment requires that police officers seeking to enter a dwelling
must announce their identity and purpose before entry. Wilson v.
Arkansas, 514 U.S. 927, 934 (1995). Nevertheless, there are
exceptions to this general rule, and some "circumstances under
5 The district court considered only Detective Sullivan's liability, because he was the only defendant who participated in the initial entry. Because Penate's Fourth Amendment claims appear to be aimed at the investigation as well, we consider the actions of all officers. 6 The district court construed Penate's claim as alleging excessive force only. Based on Penate's complaint and briefing, we assume favorably to her that she has alleged a separate Fourth Amendment violation for the entry and search. The district court, in any event, ruled that the officers did not violate the law in entering Penate's home.
- 11 - which an unannounced entry is reasonable under the Fourth
Amendment." Id. at 936. One such circumstance is that presenting
a threat of violence. Id.
In Richards v. Wisconsin, 520 U.S. 385 (1997), the
Supreme Court restated the standard for determining when the
circumstances justify a no-knock entry: "In order to justify a
'no-knock' entry, the police must have a reasonable suspicion that
knocking and announcing their presence . . . would be dangerous or
futile, or that it would inhibit the effective investigation of
the crime by, for example, allowing the destruction of evidence."
Id. at 394. This reasonable suspicion showing "is not high, but
the police should be required to make it whenever the
reasonableness of a no-knock entry is challenged." Id. at 394–
95. Police need not, however, obtain advance permission from a
judicial officer to conduct a no-knock entry. United States v.
Boulanger, 444 F.3d 76, 83–84 (1st Cir. 2006) ("We see no reason
why a no-knock entry that is reasonable at the time it is conducted
would suddenly become unreasonable because the officers . . . did
not inform the issuing judge of their intention.").
Our court has subsequently fleshed out the reasonable-
suspicion standard where police suspect that an announced entry
would be dangerous. Sitting en banc in 2002, we considered a
district court ruling that the reasonably suspected presence of
drugs and a weapon supported a no-knock entry even without any
- 12 - evidence shedding more light on the likelihood that the weapon
would be used. United States v. Brown, 276 F.3d 14 (1st Cir. 2002)
(Mem.). In splitting 3–3, the en banc court affirmed the district
court ruling. Notably, one of the three judges who would have
reversed or vacated the district court ruling found the court's
reasonable suspicion analysis insufficient only because the
evidence that a gun might be present was too stale. Id. at 17
(Lipez, J.). One year later, our court held that evidence of drug
sales, the presence of "bizarre[ly]" dispersed knives throughout
a small apartment, and the possible presence of a firearm provided
sufficient justification for what was essentially a no-knock entry
(officers waited only five seconds before breaking down the door).
United States v. Sargent, 319 F.3d 4, 11–12 (1st Cir. 2003). We
also held a few years later that a no-knock entry was justified
where the target was a suspect in an armed robbery and had prior
firearms convictions, and where an informant reported seeing a
fake gun at the target's residence. Boulanger, 444 F.3d at 82–
83.
All that being said, we have never suggested that no-
knock entries are to be undertaken in the ordinary course. The
knock-and-announce requirement protects "human life and limb,
because an unannounced entry may provoke violence in supposed self-
defense." Hudson v. Michigan, 547 U.S. 586, 594 (2006); see also
Miller v. United States, 357 U.S. 301, 313 n.12 (1958) ("Compliance
- 13 - [with a statutory knock-and-announce requirement] is also a
safeguard for the police themselves who might be mistaken for
prowlers and be shot down by a fearful householder."). Experience
over the past two decades makes clear that no-knock entries pose
serious risks both to occupants and to the entering police. See,
e.g., Kevin Sack, Door-Busting Drug Raids Leave a Trail of Blood,
N.Y. Times, https://www.nytimes.com/interactive/2017/03/18/us/
forced-entry-warrant-drug-raid.html (Mar. 18, 2017) (reporting
that based on a Times investigation, at least 81 civilians and 13
law enforcement officers died from 2010 to 2016 in "dynamic entry"
raids executed by SWAT teams, and "[s]cores of others were maimed
or wounded"); see also Solis v. City of Columbus, 319 F. Supp. 2d
797, 807–08 (S.D. Ohio 2004) (collecting examples of "no-knock
horror stories" and police errors in executing no-knock warrants).
So perhaps the assessment of whether such an entry is reasonable
should more strongly weigh the potential downsides and the need to
consider alternatives and a more thorough investigation. See Milan
v. Bolin, 795 F.3d 726, 730 (7th Cir. 2015) (finding that a violent
unannounced entry was unreasonable due in part to its "prematurity"
and the "failure to conduct a more extensive investigation"); Lucas
v. City of Boston, No. 07-cv-10979-DPW, 2009 WL 1844288, at *18
(D. Mass. June 19, 2009) (finding "the officers' apparent lack of
full preparation to be relevant in evaluating the reasonableness
of the force they used inside the apartment"); cf. Ferreira v.
- 14 - City of Binghamton, 975 F.3d 255, 274 (2d Cir. 2020) (finding that
evidence supported plaintiff's negligence claim against the city
based on insufficient planning of a dynamic entry where police had
"no idea" how many people were inside the residence).
But here, the officers had a firsthand credible report
that one of the suspects had on his person a gun. Nor is this a
scenario where the police relied on the presence of a gun alone;
they also had a credible report that the suspect had committed a
violent crime -- just over twelve hours earlier -- serious enough
to incentivize resistance to being captured, and that the suspect
had carried the gun on him.7 While Penate argues that any threat
of danger was insufficient to justify the officers' actions, she
points us to no First Circuit case or consensus of authority
"materially similar enough to have provided reasonable officers
under the circumstances with fair warning that they would violate
[Penate's] rights" by entering in the manner that they did, given
7 Penate argues that the police had no reason to believe the suspects lived in the unit or would still be there, and thus that any belief of danger was unjustified. But the police had a warrant that listed a handgun as an item to be seized. That, coupled with the report of a violent crime the night before and the presence of a car like that driven by the suspect, likely provided enough of a basis to at least create a reasonable suspicion that the suspect would be found in the unit. Cf. Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (noting that where officers execute a search pursuant to a warrant, unless the warrant is defective on its face, "the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner").
- 15 - the information they had at the time. Lachance v. Town of
Charlton, 990 F.3d 14, 27 (1st Cir. 2021). So even if the decision
to execute a no-knock entry violated the Fourth Amendment (an issue
we do not decide), Penate's attempt to hold the officers personally
liable for damages caused by an unlawful no-knock execution of the
warrant must fail. See Punsky v. City of Portland, 54 F.4th 62,
66–67 (1st Cir. 2022) (concluding that "under the particular
circumstances that [the officers] found themselves in," it would
not have been clear that their conduct was unlawful; thus, the
officers were entitled to qualified immunity).
2.
We consider next Penate's claim that the officers used
excessive force by pointing a firearm at her. Excessive force
claims are premised on the Fourth Amendment right to be free from
unreasonable seizures.8 Graham v. Connor, 490 U.S. 386, 395–96
(1989). When officers execute a search warrant, they may seize
people they find on the premises, but must "use reasonable force
to effectuate the detention." Muehler v. Mena, 544 U.S. 93, 98–
99 (2005). The reasonableness of force used in a given situation
depends on "the severity of the crime at issue, whether the suspect
8 "To make out a Fourth Amendment excessive force claim, a plaintiff must show, as an initial matter, that there was a seizure within the meaning of the Fourth Amendment . . . ." Stamps v. Town of Framingham, 813 F.3d 27, 35 (1st Cir. 2016). Both parties agree that Penate was seized.
- 16 - poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade
arrest by flight." Graham, 490 U.S. at 396.
Pointing a weapon at a nonthreatening, compliant
individual, even while executing a warrant, can constitute
excessive force. In Stamps v. Town of Framingham, 813 F.3d 27, 35
(1st Cir. 2016), we held that pointing a loaded gun, with the
safety off, at a compliant bystander who was lying on the floor
constituted excessive force. Even earlier, in Mlodzinski v. Lewis,
648 F.3d 24, 38–39 (1st Cir. 2011), we concluded that holding a
nonresistant, handcuffed fifteen-year-old at gunpoint for seven to
ten minutes constituted excessive force, as did holding a "nearly
naked" nonresistant woman at gunpoint for half an hour, including
after the suspect had already been removed from the scene.
However, holding bystanders at gunpoint does not always
constitute an excessive use of force. In Los Angeles County v.
Rettele, 550 U.S. 609 (2007) (per curiam), the Supreme Court found
no constitutional violation where officers executing a search
warrant entered a bedroom with guns drawn, ordered the residents
out of bed, and then held them naked at gunpoint for one to two
minutes before realizing they had the wrong house. Id. at 614.
The Court concluded that the officers' actions were "permissible,
and perhaps necessary, to protect the safety of the deputies," and
because there was no allegation that the detention was "prolonged"
- 17 - or "longer than necessary to protect [the officers'] safety," the
plaintiffs' Fourth Amendment rights were not violated. Id. at
614–16. It follows that if the pointing of weapons is both
reasonably necessary to secure the officers' safety and
sufficiently short in duration, there will likely be no Fourth
Amendment problem. Id. Mlodzinski also focused on the length of
the detention, cautioning that although the facts of that case
gave rise to a constitutional violation, "the situation would be
very different if, given the execution of these warrants, [the
bystander] had been detained with a weapon pointed at her for only
a very short period needed while she was being cuffed . . . and
[the suspect] was being apprehended." 648 F.3d at 40.
Penate's counsel confirmed at oral argument that under
Penate's version of facts, she was held at gunpoint for only
"several seconds." She asserts that the absolute length of the
detention does not control the Fourth Amendment analysis; what
matters is that she was held at gunpoint longer than necessary,
because it was immediately apparent that she was not a threat to
officers. We need not decide whether she is correct because we
conclude that the officers are entitled to qualified immunity. In
2016, "in the particular factual context of [this] case," it would
not have been clear to a reasonable officer that a several second
delay in lowering his gun upon seeing Penate violated Penate's
right to be free from excessive force. See Mlodzinski, 648 F.3d
- 18 - at 32–33. "In assessing whether an official's conduct violated
clearly established law, we typically reason by analogy, asking
whether there is any prior case in which the use of force was
deemed unlawful under circumstances reasonably similar to those
present in the case at hand." Escalera-Salgado 911 F.3d at 41.
To be sure, Penate's situation does have some similarities to
Mlodzinski and Stamps. Like the bystanders in those cases, Penate
was not thought to be dangerous, she submitted to the officers'
authority immediately, and according to her testimony officers
pointed guns at her even after they determined she was not a
threat. But those cases differ from Penate's case in an important
respect: they involved periods of time longer than the "several
seconds" of gunpoint coverage that Penate experienced. Indeed,
Mlodzinski contains language indicating that it might have come
out differently had the detention been shorter. 648 F.3d at 40.
And Rettele, another factually similar precedent, found no
violation where plaintiffs were held at gunpoint for a few minutes.
550 U.S. at 616. Given this precedent, it would not have been
clear to a reasonable officer in 2016 that pointing a gun for
"several seconds" upon warranted entry to an apartment suspected
of containing a firearm (and possibly an armed suspect) constituted
excessive force, or at least not so clear that "no competent
officer could have thought that [it] was permissible." Mlodzinski,
648 F.3d at 36–37 (concluding that officers were entitled to
- 19 - qualified immunity for placing occupants of premises to be searched
in handcuffs because, in light of a recent Supreme Court case
presenting a somewhat analogous situation, appropriateness of
detention would have been "fairly debatable among reasonable
officers").
3.
Finally, Penate argues that the officers' actions as a
whole were unreasonable considering what they knew (and, more
importantly, didn't know) about who they would encounter at
22 Preston Street. She points out that the police did not
investigate who lived at the apartment, and that, having failed to
do so, they used a SWAT team to force the door and enter without
knocking and with guns drawn. This entire course of conduct, she
claims, means that she was seized with force that was unreasonable
under the circumstances.
Even considering the entire course of conduct together,9
the officers are entitled to qualified immunity because it would
9 We recently held that a "segmented approach" to excessive force claims -- analyzing each use of force separately -- is consistent with other circuits and with Supreme Court precedent, "at least when circumstances relevant to the reasonableness inquiry changed between one use of force and another." Lachance, 990 F.3d at 25. But we noted that this ruling did not mean that "after segmenting the uses of force and assessing each as reasonable, a court could not thereafter look at the totality of the uses of force and determine that there was a constitutional violation." Id. at 25 n.10 (citations omitted). It is not immediately obvious how this standard applies to Penate's claims, because she alleges multiple types of Fourth Amendment violations.
- 20 - not have been clear to a reasonable officer that the combination
of those actions violated established law. Simply put, for the
same reasons that rendered the no-knock entry not clearly
unreasonable, so too no sufficiently established case law made it
reasonably clear that the no-knock entry could not be effected
with raised guns that were lowered within a few seconds of
realizing that a person was not a danger. And Penate points us to
no case clearly establishing that it was clearly unreasonable to
use a SWAT team under the circumstances.
We do not minimize Penate's experience, and we
acknowledge her pain and fear. But we nonetheless conclude that
it would not have been clear to a reasonable officer that the
officers' conduct violated established law, and the officers are
thus entitled to qualified immunity on Penate's section 1983
claims.
C.
We turn now to Penate's tort claims against the
individual defendants. One of these claims is dispatched easily:
Penate makes no mention of her assault and battery claim in her
appellate briefing. This claim is therefore waived. See, e.g.,
Landrau-Romero v. Banco Popular De P.R., 212 F.3d 607, 616 (1st
Cir. 2000).
Penate's claim for intentional infliction of emotional
distress ("IIED") need not detain us long either. To make out a
- 21 - claim for IIED under Massachusetts law, a plaintiff must show
"(1) that [defendant] intended, knew, or should have known that
his conduct would cause emotional distress; (2) that the conduct
was extreme and outrageous; (3) that the conduct caused emotional
distress; and (4) that the emotional distress was severe." Polay
v. McMahon, 10 N.E.3d 1122, 1128 (Mass. 2014). The standard for
IIED claims "is very high." Doyle v. Hasbro, Inc., 103 F.3d 186,
195 (1st Cir. 1996). "Conduct qualifies as extreme and outrageous
only if it 'go[es] beyond all possible bounds of decency, and [is]
regarded as atrocious, and utterly intolerable in a civilized
community.'" Polay, 10 N.E.3d at 1128 (alterations in original)
(quoting Roman v. Trs. of Tufts Coll., 964 N.E.2d 331, 341 (Mass.
2012)).
The officers' actions here cannot be classified as
extreme and outrageous. The SJC has found that "[n]either applying
for an arrest warrant, nor making an arrest pursuant to an issued
warrant can be considered 'utterly intolerable in a civilized
community.'" Sena v. Commonwealth, 629 N.E.2d 986, 994 (Mass.
1994) (quoting Agis v. Howard Johnson Co., 355 N.E.2d 315, 319
(Mass. 1976)). Accordingly, we believe that entering a home
thought to contain an armed and violent suspect to execute a search
warrant issued by a neutral magistrate -- even if the entry was
conducted without knocking and with weapons raised -- cannot be
classified as "beyond all possible bounds of decency." Agis, 355
- 22 - N.E.2d at 319 (quoting Restatement (Second) of Torts § 46 cmt. d
(Am. L. Inst. 1965)). Even without affirmatively concluding that
the officers' actions were reasonable (which we do not decide), we
conclude that their conduct did not reach the requisite level
needed for IIED liability. Cf. Dean v. City of Worcester, 924
F.2d 364, 368–69 (1st Cir. 1991) (concluding that officers were
not liable for IIED where they used force that would have been
lawful to arrest suspect based on reasonable mistake of identity);
McDonald v. City of Boston, 334 F. Supp. 3d 429, 441–42 (D. Mass.
2018) (finding that defendant who had applied for an arrest warrant
without probable cause was not liable for IIED because officer had
not engaged in "extreme and outrageous conduct" toward the
plaintiff). Because this conduct cannot be classified as extreme
and outrageous, Penate cannot succeed on her IIED claim, and
summary judgment is warranted for defendants.
D.
That leaves only Penate's negligence claim against the
City of Worcester. Penate argues that under the MTCA, the City is
liable "for her injuries, which were proximately caused by the
raid into her home without probable cause," because "the Appellees
were grossly negligent in how they conducted their investigation."
The district court concluded that "a jury would be hard pressed to
- 23 - find that the City was negligent," finding that probable cause had
"plainly" been established. We agree.
To establish probable cause for a search warrant, "[a]n
affidavit must contain enough information for an issuing
magistrate to determine that the items sought are related to the
criminal activity under investigation, and that they reasonably
may be expected to be located in the place to be searched at the
time the search warrant issues." Commonwealth v. Donahue, 723
N.E.2d 25, 28 (Mass. 2000) (alteration in original) (quoting
Commonwealth v. Cinelli, 449 N.E.2d 1207, 1216 (Mass. 1983)); see
United States v. Rivera, 825 F.3d 59, 63 (1st Cir. 2016) ("[A]
search-warrant application must reveal probable cause to believe
two things: one, that a crime has occurred . . . and two, that
specified evidence of the crime will be at the search
location . . . ."). "The affidavit need not convince the
magistrate beyond a reasonable doubt, but must provide a
substantial basis for concluding that evidence connected to the
crime will be found on the specified premises." Donahue, 723
N.E.2d at 28; see Rivera, 825 F.3d at 63 (explaining that probable
cause "demands only 'a fair probability that contraband or evidence
of a crime will be found in a particular place.'" (quoting Illinois
v. Gates, 462 U.S. 213, 238 (1983)).
Here, the affidavit supporting the search warrant
recounted that a woman said she had been raped just hours before,
- 24 - and had identified 22 Preston Street, Apartment 3, as the location
of her assault. The affidavit also stated that the victim said
she had left her clothes, wallet, and phone behind, all of which
were listed in the warrant as items to be seized. Under these
circumstances, the victim's affirmative identification of the
building provided a "substantial basis for concluding" that the
assault took place there and that evidence of the crime would be
found there. See Donahue, 723 N.E.2d at 28. Thus, we agree with
the district court that the warrant was plainly supported by
probable cause. Accordingly, Penate's negligence claim -- that
the police raided her home without probable cause as a result of
a negligent investigation -- must fail.10 We therefore affirm the
district court's dismissal of the MTCA claim.
III.
For the foregoing reasons, the judgment of the district
court is affirmed.
10 The district court also concluded that Penate did not assert a negligence claim with respect to the manner in which the officers executed the warrant. Penate does not challenge that conclusion on appeal.
- 25 -