Even busy lawyers on their way to court have to stay out of crime scenes wrapped in police warning tape, judge rules

A federal judge today tossed a lawsuit by a lawyer who claimed BPD officers violated his Constitutional rights when he made his way around police tape surrounding a Roxbury Crossing crash scene and then refused to back up because he had an important appointment to get to and they stopped him and only sent him on his away after he flashed his lawyer credentials.

Winston Kendall sued the city and the officers involved in the 2018 incident, charging violations of his Fourth and Fourteenth Amendment rights.

In a ruling today, US District Court Judge Allison Burroughs said that police had a legitimate reason to ask Kendall why he was ignoring police tape around a crash at Tremont Street and Columbus Avenue that sent a driver and the two teenage pedestrians the driver hit to the hospital, especially after one officer first told him to stop and go back, rather than continuing across Columbus, right through the taped-off area.

Kendall, who insists he did not hear the admonition to turn around, was not cuffed nor formally charged with anything, but he had to explain to officers who he was and what he was doing - he was hurrying from the Orange Line to Roxbury Municipal Court, where he was late for an appointment.

This "stop," Kendall charged, in the suit he originally filed in 2021 in Suffolk Superior Court, was blatant racial animus - he is Black and Trinidadian - and a violation of his constitutional rights because the cops had no probable cause to stop him - they had no proof he might have just committed or was about to commit a crime and should have just let him continue on his way. He added the city - which had the suit "removed" to federal court - was also to blame because BPD was well known for its proclivities for stopping Black men in the street.

Nope, Burroughs wrote.

Plaintiff's investigatory stop was justified at its inception. Although Plaintiff argues that the officers did not know any facts "that would have led a reasonable person to believe that the plaintiff had committed or was about to commit, any crime,", the record establishes that, at the moment he was stopped and asked for his identification, Plaintiff had entered a taped-off scene where police were still investigating a serious car accident that left three people hospitalized (one in critical condition), had been ordered by officers to leave the scene, and, despite that order, was continuing to move through the restricted area. At that time, under the totality of the circumstances, the officers had reasonable suspicion to believe that Plaintiff was or about to commit a crime such as interfering with ongoing police activity. ... The officers also were responsible for maintaining the scene and therefore had a more generalized but reasonable concern for the integrity of the crime scene.

The stop was also reasonable in scope and fell well short of an arrest despite Plaintiff's contention that "[t]he seizure ripened into an arrest when the officers demanded 'identification.'" "There is no scientifically precise formula that enables courts to distinguish between investigatory stops . . . [and] 'de facto arrests.'" United States v. Zapata, 18 F.3d 971, 975 (1st Cir. 1994). Relevant factors include "the location and duration of the stop, the number of police officers present at the scene, the degree of physical restraint placed upon the suspect, and the information conveyed to the suspect." United States v. Rabbia, 699 F.3d 85, 91 (1st Cir. 2012). Here, the detention lasted, at most, only "a few minutes," and only as long as necessary for officers to examine Plaintiff's identification, which was a reasonable request given that the officers were trying to determine Plaintiff's business, if any, within the crime scene.

In sum, after Plaintiff (knowingly or not) entered a secured crime scene without permission, officers required him to produce identification before he could exit, and, once he produced some form of identification, the officers allowed him to leave. This conduct does not establish that the officers violated Plaintiff's Fourth Amendment rights.

Similarly, she continued, Kendall failed to prove what happened that day could be blamed on city or BPD policies.

Plaintiff has not provided any facts to support the commission of any specific tort claims traceable to City's alleged supervisory negligence. The Officer Defendants did not violate Plaintiff’s Fourth or Fourteenth Amendment rights, and the undisputed facts do not establish that any other tortious conduct occurred that could support a finding of supervisory liability.