Hourihan v. Bitinas ( 2020 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 19-1708
HAROLD HOURIHAN,
Plaintiff, Appellant,
v.
ROBERT BITINAS; ANDREW MCKENNA,
Defendants, Appellees,
TOWN OF BARNSTABLE, MASSACHUSETTS; PAUL MACDONALD,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
[Hon. Indira Talwani, U.S. District Judge]
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Richard K. Latimer for appellant.
Stephen C. Pfaff, with whom Louison, Costello, Condon & Pfaff,
LLP was on brief, for appellees.
April 22, 2020

Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation
SOUTER, Associate Justice. Plaintiff Harold Hourihan
appeals from adverse judgments in his § 1983 and state law action
against appellees Robert Bitinas and Andrew McKenna, among other
defendants. He assigns error to the district court's award of
partial summary judgment to appellees and, following an adverse
jury verdict, the denial of his motion for judgment as a matter of
law or alternatively for a new trial. We affirm.
I
A reasonable jury could have credited the following
testimony presented at trial. On September 3, 2013, Officer
Bitinas of the Barnstable Police Department received a dispatch
from headquarters that a Reporting Party (R.P.) was "requesting a
wellness check" on her parents' neighbor, Harold Hourihan.
According to the R.P., Hourihan had called her making several
"bizarre statements [suggestive of] a mental breakdown," including
assertions that "people are shooting BB guns in his back yard" and
that "he believes the State Police are in his attic spying on him."
Trial Ex. 35. She believed Hourihan "to have accidentally
discharged firearms in his home in the past, but [did] not know if
he still possess[ed] weapons." Id. The dispatch further noted
that Hourihan had an unexpired license to carry a gun. Officer
Bitinas was concerned that the subject was having a mental
breakdown while in possession of firearms, and accordingly
proceeded to Hourihan's residence.
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Upon arrival, Officer Bitinas met Hourihan and a friend,
Daniel Parker, at the door. He asked them to step out to the deck,
which they did, and he observed that Hourihan was cooperative and
polite when speaking with him. He noticed, however, that Hourihan
was wearing a gun holster that appeared to be empty. When Officer
Bitinas enquired about the holster, Hourihan said that the gun
belonging in it was upstairs on his bed, and that he also had a
shotgun stored beneath the bed. Officer Bitinas asked whether he
could "go up and make those weapons safe," to which Hourihan
replied "Yes."
The officer conducted a protective sweep of the house
before going into Hourihan's bedroom, where he found a loaded
pistol on the bed and a loaded shotgun inside a latched gun case
beneath the bed. Though he noticed several other gun cases there,
he cleared the ammunition only from the pistol and the shotgun.
He then went downstairs to meet Sergeant McKenna, who had just
arrived, and told the Sergeant what he had found.
Hourihan began telling Sergeant McKenna about an ongoing
dispute he had with his neighbor, Robert Dawson. Hourihan said
that Dawson would walk around his own yard in camouflage, at times
lying in a prone, sniper-like position on his roof or under his
deck to shoot poison-laced pellets at Hourihan's house and vehicle.
Hourihan said that some of these bullets would ricochet off other
parked vehicles and go around his house to cause damage to items
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hidden behind it. He showed Sergeant McKenna certain marks on his
body that he attributed to Dawson's bullets. Sergeant McKenna
walked to the vicinity of Dawson's property, noting the substantial
distance between the two houses, the fence in front of Hourihan's
residence, and the particular shooting positions Hourihan had
described. Based on these observations, Sergeant McKenna found
aspects of Hourihan's story to be implausible.
Back at Hourihan's house, Sergeant McKenna conversed
again with Hourihan, whose mood began to fluctuate. Believing
Hourihan to be in "crisis," Sergeant McKenna encouraged him to
speak with someone at a hospital. Hourihan mulled this over and
agreed, whereupon Sergeant McKenna called the Hyannis Fire
Department to provide transportation. He then asked Hourihan
whether there were more firearms in his house, and whether the
officers could reenter it to make those weapons safe. Hourihan
gave the officers permission to go in, and indicated that there
were other guns under his bed and in one of the top two drawers in
his dresser. Because Barnstable Police Department policy
prohibited officers from leaving unsecured weapons at the home of
someone being transported for a mental health evaluation, Sergeant
McKenna told Hourihan that the officers would take charge of his
guns for safekeeping.
Upon hearing this, Hourihan's mood changed. He became
agitated and argumentative, moving around erratically without
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heeding the officers' requests to calm himself. Sergeant McKenna
told Hourihan that though he was not under arrest, they were going
to handcuff him for his own safety. Officer Bitinas handcuffed
Hourihan, and Sergeant McKenna guided him into the rear of the
police cruiser, where he sat until an ambulance arrived. He was
then strapped to a gurney in the back of the ambulance, had his
handcuffs removed, and was taken to the hospital (apparently
unaccompanied by any officer).
Officer Bitinas returned to Hourihan's bedroom and found
six firearms and four pellet guns, all in unlocked containers or
canvas bags. None had trigger locks. He removed and unloaded
each gun, took ammunition found beneath the bed, and held onto a
container of unlabeled pills found in the case of one of the seized
weapons. He was then joined by Sergeant McKenna and another
officer, who photographed the guns.
On August 25, 2016, Hourihan brought the present action
in federal district court against Officer Bitinas, Sergeant
McKenna, Chief Paul MacDonald of the Barnstable Police Department,
and the Town of Barnstable. He charged Bitinas, McKenna, and
MacDonald (in their individual capacities only) with committing
the torts of false arrest, false imprisonment, and intentional
infliction of emotional distress, and with liability under
provisions of state law (Mass. Gen. Laws ch.12, §§11H, 11I), and
42 U.S.C. § 1983, for violating Hourihan's state and federal
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constitutional rights. He also named the Town of Barnstable as
liable for negligent supervision and training.
On June 27, 2018, the district court (Burroughs, J.)
awarded partial summary judgment to the defendants. So far as
relevant here, the court concluded that Officer Bitinas and
Sergeant McKenna were entitled to qualified immunity with respect
to their warrantless entry into Hourihan's residence. The court
dismissed most of the claims against MacDonald and the sole claim
brought against the Town of Barnstable. Hourihan's remaining
claims, including those against the two officers for searching for
and/or seizing his guns following each entry, restraining him in
the cruiser, and transporting him to the hospital, proceeded to
trial.
At the close of evidence, Hourihan moved for judgment as
a matter of law under Federal Rule of Civil Procedure 50(a).1 The
trial judge (Talwani, J.) nonetheless submitted the case to the
jury subject to the court's later consideration of the legal
questions raised by the motion. The jury found in favor of Officer
Bitinas and Sergeant McKenna on all claims. Hourihan then filed
what the district court construed to be a renewed motion for
judgment as a matter of law under Federal Rule of Civil Procedure
1The trial judge had earlier granted Chief MacDonald's motion
for judgment as a matter of law after the plaintiff rested, a
decision that has not been appealed.
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50(b) and, alternatively, for a new trial under Federal Rule of
Civil Procedure 59.2 The court denied the motion, and this appeal
followed.
II
We review the district court's denial of the motion for
judgment as a matter of law de novo, and "examin[e] the evidence
and reasonable inferences therefrom in the light most favorable to
the nonmovant." Estate of Berganzo-Colón ex rel. Berganzo v.
Ambush, 704 F.3d 33, 38 (1st Cir. 2013). Thus, we "may only grant
a judgment contravening a jury's determination when the evidence
points so strongly and overwhelmingly in favor of the moving party
that no reasonable jury could have returned a verdict adverse to
that party." Marcano Rivera v. Turabo Med. Ctr. P'ship, 415 F.3d
162, 167 (1st Cir. 2005) (quoting Rivera Castillo v. Autokirey,
Inc., 379 F.3d 4, 9 (1st Cir. 2004)).
We review a district court's denial of a motion for a
new trial for abuse of discretion. Mejías-Aguayo v. Doreste-
Rodríguez, 863 F.3d 50, 54 (1st Cir. 2017). "A new trial may be
warranted if 'the verdict is against the weight of the evidence'
or if 'the action is required in order to prevent injustice.'"
Jones ex rel. U.S. v. Mass. Gen. Hosp., 780 F.3d 479, 492 (1st
2 "[A] renewed motion for judgment as a matter of law . . .
may include an alternative or joint request for a new trial under
Rule 59." Fed. R. Civ. P. 50(b).
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Cir. 2015) (quoting Jennings v. Jones, 587 F.3d 430, 436 (1st Cir.
2009)).
We consider first those claims raised in plaintiff's
unsuccessful pretrial motion under Rule 50(a) for judgment against
Bitinas and McKenna, which he renewed under Rule 50(b) after the
jury's verdict. The issues so raised turn on findings of fact
that were the subjects of special questions submitted to the jury,
upon which the trial judge relied in her carefully explained denial
of the post-trial motion.
The first of these claims of error challenges the
district court's conclusion that the jury could reasonably find on
the evidence that Officer Bitinas did not violate the Fourth and
Fourteenth Amendments (and the state constitutional analogue) when
he first proceeded to the plaintiff's bedroom to disarm the two
guns plaintiff had mentioned. The jury made a special finding
that the officer's search for the gun on top of Hourihan's bed was
justified either by plaintiff's consent or as a reasonable measure
to guard against a risk of imminent violence. The jury found that
the officer's search beneath plaintiff’s bed was likewise
justified by consent, risk of imminent harm, or, as a third
possibility, that the area searched was in plain view of a
permissible search.
We need not address each of these alternative bases,
however, as the record is so overwhelming on the fact of consent
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that it is "reasonably likely" the jury relied on this ground.
Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 772 n.17 (1st
Cir. 2010) (quoting Mass. Eye & Ear Infirmary v. QLT
Phototherapeutics, Inc., 552 F.3d 47, 73 (1st Cir. 2009)). Officer
Bitinas testified that the plaintiff gave his permission for the
police to enter his house in order to reach the handgun and shotgun
and "make those weapons safe." The officer then went to the
location of the guns described and made safe only those two guns
that were mentioned. Indeed, he could not have known that the
shotgun was in the case unless he had already been informed of its
location, and though he saw other encased guns in the room, he
chose not to search them. Such testimony strongly suggests that
the jury relied on consent, and that such reliance was justified.
The plaintiff makes no claim that he was not allowed to
introduce any evidence or make any argument he wished relating to
the fact or adequacy of consent, and we have heard no significant
argument here to the effect that the jury lacked a reasonable
evidentiary basis to accept Officer Bitinas's testimony. The
plaintiff says that he was entitled to judgment as a matter of law
on this issue of consent by asserting that Officer Bitinas could
not lawfully seek consent in the first place, see Brief of
Appellant 25, but no authority supports this proposition.3
3
He also argues that any apparent consent was inadequate
owing to Officer Bitinas's obscurity in describing the object of
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The next claim before us is one of error in denying a
Rule 50(b) judgment for the plaintiff on Fourth Amendment and state
law claims of unconstitutional search when Officer Bitinas, joined
by Sergeant McKenna, proceeded into the house a second time to
examine the guns that plaintiff had told them were under his bed
and in his dresser drawer. Here, too, the jury made special
findings in the alternative: consent, reasonable belief of
imminent harm, or plain view. The court found a sufficient
evidentiary basis for both consent and reasonable prudence in
acting. It is noteworthy, however, that three further
considerations pointed to the good judgment supporting the
officers' actions in making this second search. The first was the
sensible general rule of the Barnstable Police Department, that
when firearms are subject to the custody of a person being held
for a mental health evaluation, all of them should be secured from
him. Next, several of the gun cases in the bedroom had been in
plain view during the first search. Finally, the earlier evidence
of plaintiff's delusional mind had been significantly confirmed in
the conversation the plaintiff had with Sergeant McKenna shortly
after the first search occurred. Although the plaintiff said
nothing about the state police in the attic, he described in detail
his entry as making the guns "safe." But the jury heard the
testimony and had a clear basis to find the consent adequately
knowing.
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how a neighbor supposedly shot at him and his house with a pellet
gun, showed what he said were wounds so caused, explained how
pellets were supposedly deflected around the exterior of his house,
and described the places in the neighbor's property from which the
pellets were supposedly fired. Sergeant McKenna went over to the
neighbor's house, checked the shooting locations the plaintiff had
identified, and found it highly unlikely as a physical matter that
shots from those positions could have had the results plaintiff
had described. Hence, the known indications of paranoid delusions
were now greater, and police protective action even more obviously
called for than the police had realized at the end of the first
search.
As to the next claim, of unconstitutional seizure of the
guns and other property, the jury found as it had on the preceding
claim: consent, a reasonable belief of imminent harm, or plain
view. The trial court did not find the conclusion of consent
supportable by the record in this instance but denied the plaintiff
relief under Rule 50(b) on the evidence already mentioned providing
the jury with an objectively reasonable basis to sustain
precautionary seizure of the guns, some ammunition, and a bottle
of pills found with the guns. For the reasons also mentioned
before, we find the court's judgment sound. We add that support
for the seizures in the Police Department's prudent policy of
securing all guns when the owner is facing a mental health
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examination became all the stronger in light of the testimony that
as the proceedings wore on, the plaintiff became more upset.
Because the police could not be sure when he might be allowed home
again, it became more imperative to preclude (at least temporarily)
his access to firearms left in the house.
With respect to plaintiff's Rule 50(b) claims of
constitutional violations in being handcuffed in the police
cruiser and taken under restraint in the ambulance to the hospital
where he was examined, the jury's finding again was in favor of
the defendant officers. In addition to the support for these
conclusions in evidence already mentioned, there was testimony
from the officers that the plaintiff was by this point becoming
increasingly agitated. There was thus adequate support for
concluding that the defendant officers acted with reasonable
concern for safety in restraining his freedom of motion.
The same may be said of the evidence, and inferences
fairly drawn from it, considered in reviewing the jury's rejection
of the plaintiff's state law claims of false arrest, false
imprisonment, and intentional infliction of emotional distress.
In sum, there was no error in the district court's conclusion that
(with the one non-dispositive exception mentioned) the record
supports sufficient jury findings to justify denial of the
plaintiff's Rule 50(b) motion.
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Finally, we consider plaintiff's appeal of the court's
pretrial order granting summary judgment in favor of the defendant
officers on the issue of their warrantless entry into the house.
The court sustained claims of the officers' qualified immunity
under the then-unsettled scope of the community caretaking
doctrine validating a limited class of searches and seizures. See
MacDonald v. Town of Eastham, 745 F.3d 8, 13 (1st Cir. 2014) ("This
court has not decided whether the community caretaking exception
applies to police activities involving a person's home.").4 We
find no error in the summary judgment, and note, additionally,
that the lawfulness of Officer Bitinas's initial entry is confirmed
by the adequate trial evidence that plaintiff gave him consent to
enter in order to make safe the weapons described.5 Thus, even if
we assume for argument's sake that the summary judgment was for
some reason defective, any error was harmless.
We therefore affirm the summary judgment and denial of
the plaintiff's motion for judgment or new trial under Rule 50(b)
and Rule 59.
4
We note that this Court has now resolved the caretaking
question in favor of application to private residences. See
Caniglia v. Strom, 953 F.3d 112, 118 (1st Cir. 2020).
5
The district court's Rule 50(b) decision similarly concluded
that "the facts presented at trial undermined rather than
strengthened Plaintiff's unlawful entry claim." App. to Brief of
Appellant A-65.
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