Two Stoneham detectives ordered a real-estate broker to his knees at gunpoint at a house he was about to show a client; jury will decide whether town violated his civil rights

A real-estate broker already suffering PTSD from police violence during the "Arab Spring" in his native Egypt can continue his civil-rights suit against Stoneham over the way two police detectives detained him at gunpoint - and then kept him cuffed, on his knees, until his client arrived for his house tour and vouched that the man was a broker, not a burglar, a federal judge ruled last week.

In her ruling, US District Court Judge Angel Kelley said Mohamed Salem had presented enough facts to warrant going to trial on his charges the town and its police department violated his civil rights and caused negligent infliction of emotional distress because they had created a "custom" in which officers were free to disregard a written policy requiring them to report all incidents in which they drew their guns.

Salem's suit names only the town of Stoneham, not the two detectives who detained him on Dec. 21, 2018. Kelley wrote:

During oral arguments, the Town's counsel commented that the events of December 21 simply amounted to a "bad day," minimizing the police conduct and the foreseeable harm to Salem. Here, a jury could reasonably conclude that, by implementing a reporting policy then subsequently disregarding it, the Town was sticking its head in the sand and not "taking steps to ensure that it was informed of problems as they arose, and thus could not implement appropriate training and discipline in response."

In his lawsuit, originally filed in Middlesex Superior Court, Salem charges the officers and the town violated his due-process and equal-protection rights because the two detectives continued to detain him even as he offered to show them his broker's license - and pleaded with them not to kill him. He alleged the stress from the incident aggravated two preexisting conditions: trigeminal neuralgia and PTSD, which he says he got when he was still living in Egypt and, according to Kelley's summary of the case, he suffered mistreatment that included "being stopped and detained by the police, witnessing the killing of people by the police and military, and carrying the dead bodies of his friends. "

Kelley did narrow the scope of Salem's suit. She dismissed several of his charges under Massachusetts law - assault and battery, intentional infliction of emotional distress, false arrest and false imprisonment - because the Massachusetts Tort Claims Act specifically bars suing municipalities, rather than individual employees, for them. And she said he not provide enough evidence he was discriminated against because of his skin color to warrant making a case of racial discrimination to a jury. She acknowledged Salem raised the issue of a Stoneham sergeant who regularly threw around "the N-word", but that:

While the repeated use of racial slurs by a senior officer is not completely irrelevant to an Equal Protection claim, the relevancy of this information to this incident is limited, if relevant at all. It does not involve either of the police detectives who detained Salem and the senior officer subsequently resigned after the Town corroborated the allegations through its internal investigation. Salem has failed to show that the Town treated similarly situated people differently than it treated him.

In her ruling, Kelley summarized what happened at 19 Danby Rd.: The house had been vacant for two years, and on the market for 81 days when Salem arrived in a ride-share car in advance of a client - because his own car was in the shop. He used a key in a front-porch lockbox and went inside with his backpack and turned on the lights. About 15 minutes later, somebody called 911 to report what her mother told her she saw:

The house is up for sale but there's somebody that went into the house, there's no car around and they have a backpack on their back . . . I don't know if it's someone looking for a house.

Detectives Paul Norton and Patrick Carroll, in the area on an unrelated matter, went to check out what they thought could be a "possible active breaking and entering." One detective approached the front door, while the other went toward the back.

Norton claims that, once he saw someone through the window, he took out his gun at the "low ready" position, announced his presence, and yelled at Salem to come out showing his hands. Salem disputes that the firearm was at "low-ready," but was rather pointed at his chest or head. Salem stated that the police detectives shouted, "put your fuckin' hands up" and "get on your fuckin' knees" and ordered him to get on the ground before handcuffing him. Mr. Abbas [the client, who showed up in the middle of it all] said he saw Salem on his knees while being handcuffed next to another officer holding a gun. Mr. Abbas heard Salem repeatedly state, "I'm a [r]ealtor, I can show my badge - I can show my ID; give me a chance to show my ID."

Both parties agree that Salem complied with all demands. Salem believes he remained handcuffed on the ground for about 5 minutes while the police detectives maintain it was only a couple of minutes. At 12:23 p.m., Officer Thomas Day arrived. Norton stated that after uncuffing him, Salem laughed and said the incident will make for a good story for his friends later. Salem disputes that he ever laughed. The parties agree that everyone entered the house after the police detectives uncuffed Salem, and the police detectives were given a tour of the house.

Despite department policy requiring reports on incidents involving even just the unholstering of guns, the detectives did not file reports.

Kelley's summary continues that in February, 2020, Salem's lawyer wrote Police Chief James McIntyre to demand an investigation. A lieutenant reviewed call logs and the 911 call, asked the detectives to write down what happened and interviewed the 911 caller and her neighbor - but not the two detectives - before recommending the chief clear the detectives, which he did.

Salem sued in 2022, initially in Middlesex Superior Court. The town then had the case moved to federal court.

Kelley's analysis of whether Salem should be allowed to make his case to the jury started with the basics of what happened that day. She acknowledged federal case law gives police the right to detain somebody, even to the point of handcuffing them, if they believe there's an imminent threat to them, the public or the person involved, but:

This is a burden which the Town has not clearly met as they have not pointed to any facts indicating that handcuffs and a firearm were required to carry out the stop without exposing the police detectives, the public, or Salem himself to harm. The Town argues that its police detectives had a reasonable suspicion of a possible breaking and entering based on the 911 call, their training and experience, and the fact that there was no car parked in front of the house. However, the message conveyed by the dispatcher made no mention of a breaking and entering or any criminal activity and stated only that an unknown man with a backpack had entered the house. Moreover, the lack of a car does not obviously signal a breaking and entering, and Salem's behavior in approaching the door and following the police detectives' orders to come outside does not provide any evidence of risk of harm to the detectives or the public.

Similarly, she ruled in favor of Salem's argument that he could make a case the detectives used excessive force:

Norton and Carroll were not directed to respond to a crime, let alone a severe crime. A jury could reasonably find that the police detectives utilized excessive force when they detained and restrained Salem. The dispatcher did not communicate any information that a crime was in progress or that Salem presented a threat to anyone. As indicated in the incident report, the incident is characterized as a "check person."

And, she continued, Salem never resisted the officers or attempted to flee from what was not a crime scene.

There was no crime, no signs of aggression, and no fight. ... Salem allegedly opened the door, followed Norton and Carroll's orders, and pleaded for his life. His actions demonstrate the very opposite of resistance.

However, Salem did not sue the individual detectives, but the town. Did he make a convincing enough argument to warrant a jury trial that the town was somehow to blame for their actions, that Salem could make the case to a jury that the town had a "policy or custom" that led the detectives to act as they did? Kelley concluded he did.

Key for Kelley was the fact that despite printed requirements that Stoneham officers write reports on any incident in which they merely "brandished" a gun, neither detective did, nor did any of their supervisors ask them to.

Chief McIntyre, the author of the staff investigation report, and Lieutenant Stefanelli, the Stoneham detective who initiated the investigation report upon receipt of a letter from Salem's attorney, did not require the police detectives to submit a report after being made aware that a firearm was drawn during the encounter with Salem. Sergeant Christopher Apalakis, the highest-ranking officer on scene, spoke with Officer Day about the incident and left without speaking to Norton or Carroll. Officer Day said he saw the police detectives walking Salem out of the house and saw Salem in handcuffs, but he does not recall whether any firearms were drawn.

At his deposition, Norton admits that he would customarily draw his firearm "any time" he responded to a "felony stop," although this was not a felony stop nor was it described as such in the dispatch. He also stated that his actions at Danby Road mirrored what he was taught at the police academy, and he described his actions as "textbook how you would respond to a call like that." The Town appears to agree, as it states that the police detectives acted "in accordance with their training." Neither Norton nor the Town believe a report was required, despite there being a clear policy mandating one. The decision by several individuals in the Stoneham Police Department to disregard reporting policies demonstrates that this was "the way things were done and had been done." Bordanaro, 871 F.2d at 1156. The Town and police supervisors' attitude and response illustrate this custom is sufficiently "settled and widespread."

Caselaw in [the federal court district that includes Massachusetts] supports the contention that a failure to supervise properly or investigate incidents supports a finding of deliberate indifference on the part of a municipality.

She continued:

For the Town, the investigation and reporting system was not just defective – it was nonexistent, and it is that crucial fact that can support a finding of liability by a reasonable jury. ... The Town makes it difficult to determine whether the police detectives had a history of using force in unwarranted situations because it has conflicting policies that directly affect the existence of records.

It is unclear to the Court whether the supervisors even knew a firearm was allegedly pointed at Salem since the investigation report (conducted two years later) only mentions that it was unholstered. This is precisely why reporting is important. This is not just the opinion of the Court, but also of the Department of Justice, the Massachusetts Municipal Police Training Committee, the Commission on Accreditation for Law Enforcement Agencies, and the Town itself. With the lax enforcement of the reporting policies, Salem would have had to rely solely on civilian complaints. Given the difficulty of accessing these complaints and, as the court found in Cox, the paucity of these complaints filed by members of under-represented communities, "there is reason to believe that the use of excessive force is [likely] underreported."

As the court in Cox said, "experience and common sense suggest that the paper record may not tell the entire story." What does tell a pretty full story here, however, is what the Town asserts: that a report is not required after a Stoneham police detective aims a firearm at someone. Not only does this infringe upon the Town's ability at improving their trainings, but it also "sends a message to [their] officers that rules will not be strictly enforced" and "violations will not be disciplined."

In conclusion, a reasonable jury might find that Carroll and Norton violated Salem's Fourth Amendment rights. It might also find that the Town's police department had a custom or unofficial policy of responding to all possible felonies with drawn firearms and handcuffs in disregard of its reporting requirements. It is not difficult to see how a reasonable fact-finder might determine that such a policy created a plainly obvious and unjustifiable risk of constitutional violations and was the "moving force" behind the actions of the police detectives on Danby Road.