NUON v. City of Lowell
768 F. Supp. 2d 323
D. Mass.2011Background
- Nuon was arrested by Kinney on March 21-22, 2008 at 174 Hale Street, Lowell for disorderly conduct.
- Nuon challenges the arrest as unsupported by probable cause and retaliatory for protected speech.
- Nuon sues Kinney under 42 U.S.C. § 1983, MCRA, false imprisonment, and malicious prosecution; city is sued for negligence.
- Kinney's account describes Nuon as confrontational, yelling, waving arms, and refusing to stay inside; Kinney suspected intoxication.
- Warrants and criminal record checks were negative; Nuon was booked and later dismissed at arraignment.
- Cross-motions for summary judgment: Nuon seeks partial judgment on I–IV; Kinney seeks judgment on all counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Probable cause for arrest | Nuon argues no probable cause existed to arrest for disorderly conduct. | Kinney contends there was probable cause given Nuon's conduct and intoxication. | Kinney lacked probable cause; judgment for Nuon on I and III liability. |
| Qualified immunity | Nuon contends Kinney violated clearly established rights; immunity not applicable. | Kinney argues qualified immunity if probable cause arguable. | Kinney not entitled to qualified immunity; liability for I and III found. |
| First Amendment retaliation (Count II) | Arrest was retaliatory for Nuon's protected speech. | Arrest could be justified absent evidence of retaliatory motive. | No summary judgment on Count II; factual issues remain; retaliation possible. |
| Mass. Civil Rights Act claim (Count III) | Arrest violated MCRA due to lack of probable cause and retaliation. | MCRA analysis mirrors § 1983; coercion required but disputed. | Nuon entitled to liability on I and III as to lack of probable cause; some aspects rely on speech/retaliation. |
| False imprisonment (Count IV) | Arrest constituted unlawful confinement without justification. | Arrest was justified if probable cause existed. | Nuon awarded liability on Count IV; false imprisonment established. |
Key Cases Cited
- Beck v. Ohio, 379 U.S. 89 (U.S. 1964) (probable cause standard for arrests under Fourth Amendment)
- United States v. Figueroa, 818 F.2d 1020 (1st Cir. 1987) (probable cause defined by facts known to officer)
- Hill v. California, 482 U.S. 451 (U.S. 1987) (speech against police action protected; cannot arrest for mere words)
- Veiga v. McGee, 26 F.3d 1206 (1st Cir. 1994) (protects expressive conduct; loud speech alone not disorderly conduct)
- Commonwealth v. Sholley, 432 Mass. 721 (Mass. 2000) (tumultuous behavior and disorderly conduct scope; excludes protected speech)
- A Juvenile, 368 Mass. 580 (Mass. 1975) (subsection (b) rejected; speech-focused limitations on disorderly conduct)
- Commonwealth v. Mulero, 38 Mass. App. Ct. 963 (Mass. App. Ct. 1995) (counterpoints on disorderly conduct and officer discretion)
- Commonwealth v. Hyatt, 67 Mass. App. Ct. 1114 (Mass. App. Ct. 2006) (conduct and perceived threat informing disorderly conduct convictions)
- Commonwealth v. LePore, 40 Mass. App. Ct. 543 (Mass. App. Ct. 1996) (expressive conduct not punishable as disorderly conduct)