MLODZINSKI v. LEWIS

tion of a detention may be coextensive with the period of a search" under Muehler, the police do not have "unfettered authority to detain a building's occupants in any way they see fit").

As Muehler explained, "[t]he imposition of correctly applied hancuffs" on a person "already being lawfully detained during [a] search" amounts to "a separate intrusion," i.e., beyond that imposed by the detention itself. 544 U.S. at 99. There, the Court went on to weigh the degree of that intrusion against the governmental interest it served, concluding that the plaintiff's "2- to 3-hour detention in handcuffs in this case does not outweigh the government's continuing safety interests. . . .[T]his case involved the detention of four detainees by two officers during a search of a gang house for dangerous weapons." Id. at 99-100 (emphases added); see also id. at 102-03 ("The use of handcuffs is the use of force, and such force must be objectively reasonable under the circumstances") (Kennedy, J., concurring). But this case does not involve most, if any, of those factors, and therefore does not implicate the same "safety interests" as Muehler.

Similarly, in a passage emphasized by the Bristol defendants, the Court observed that "this safety risk inherent in executing a search warrant for weapons was sufficient to justify the use of handcuffs." 544 U.S. at 100 (emphasis added). "This safety risk," as described in the preceding two sentences, was that presented when "a warrant authorizes a search for weapons and a wanted gang member resides on the premises." Id. (emphasis added). Furthermore, the Court made this statement in analyzing the initial use of handcuffs to detain the plaintiff, then went on to address her argument that "the duration of the use of handcuffs made the detention unreasonable." Id. So, again, Muehler does not categorically authorize handcuffing the occupants of a home during the entirety of a search for weapons there. See id. at 102 (Kennedy, J., concurring) (agreeing that the use of handcuffs was reasonable there, but "add[ing] [a] brief statement to help ensure that police handcuffing during searches becomes neither routine nor unduly prolonged").

First, the detainees did not outnumber the officers: by the time the Mlodzinskis were brought into the living room, there were between seven and ten CNHSOU officers, in addition to the four Bristol officers, still in the apartment, compared to only four detainees (not counting the 2-week old baby). Even according to the defendants' version of events, at least two CNHSOU officers, in addition to all four Bristol officers, remained throughout the entirety of the search. This is in contrast toMuehler, where "the detainees outnumber[ed] those supervising them, and this situation could not be remedied without diverting officers" from the search itself. 544 U.S. at 103 (Kennedy, J., concurring).

According to Lewis, he and Woodward conducted the search, which would have freed the four remaining officers to supervise the four remaining detainees.

Second, the home was not a "gang house" or, so far as the record indicates, the location of any potentially criminal activity whatsoever (save for the possession of a small amount of marijuana and a pipe, which has not been invoked as necessitating the continued use of handcuffs). Bristol officers, in fact, had the home under surveillance for nearly five hours prior to the search, but did not observe anything suspicious. Similarly, Sergeant Lewis testified that, before the search, he knew Tom and Tina Mlodzinski lived there, but has not suggested he was aware of anything that would potentially make them — let alone their 15-year old daughter — dangerous. "While the existence of a search warrant may, in some circumstances, support a reasonable belief that anyone present at the premises to be searched is engaged in criminal activity, that justification is significantly weakened when, as here, police know the occupant's identity and yet have no articulable reason for suspecting that person of criminal activity." Heitschmidt v. City of Houston, 161 F.3d 834, 838-39 (5th Cir. 1998) (citation omitted).

Lewis did have reason to believe, of course, that Rothman was dangerous. Yet Rothman had been removed from the home immediately after the CNHSOU officers had entered it, so even his demonstrated potential for violence could not have justified leaving the rest of his family in handcuffs for almost another hour beyond that. And the Mlodzinskis did not resist arrest or attempt to flee at any point; to the contrary, they obeyed all of the officers' orders from the minute they were told to get down on the floor when the CNHSOU team entered the apartment.

Third, like in Muehler, the object of the search was a "dangerous weapon" — unlike in Muehler, though, it was a nightstick used when two teenagers attacked another one over a girl, not a gun possessed by a gang member who had "recently been involved in [a] driveby shooting." 544 U.S. at 95. Sergeant Lewis had been told by Stachulski, the victim of the assault, that Rothman was "known to carry a firearm," but, again, Rothman had been removed from the apartment nearly an hour before the Mlodzinskis were released from their handcuffs, and there is nothing to suggest that the officers were otherwise concerned about the presence of a gun in the home. It does not appear that the officers ever asked any of the Mlodzinskis (or even Rothman, for that matter) about a gun, despite the repeated questioning about the location of the nightstick.

The "safety interests" that justified the continued handcuffing of the detainees in Muehler, then, were largely absent here. And, as mentioned at the outset of this discussion, the Bristol defendants do not point to anything else about this particular case that supports keeping the Mlodzinskis handcuffed. Even after Muehler, a number of courts have ruled, under circumstances similar (if not identical) to those here, that the continued handcuffing of detainees while executing a search warrant could constitute excessive force. See, e.g., Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010) (though the warrant was for drug trafficking, the detainees "had no criminal record, cooperated throughout the ordeal, posed no immediate threat to the officers, and did not resist arrest or attempt to flee"); Tekle v. United States, 511 F.3d 839, 845-47 (9th Cir. 2006) (though the warrants were for drug trafficking, there was no "suspicion that there were deadly weapons and a gang member thought to be armed and dangerous on the premises" as in Muehler, yet a minor remained in handcuffs for 15 to 20 minutes after search of his person that "uncovered no weapons or anything else to warrant further concern for [officer] safety") (quotation marks omitted); Hepner v. Balaam, No. 03-681, 2007 WL 2033367, at *3 (D. Nev. July 10, 2007) (though the warrants authorized the search of a Hells Angels clubhouse and a nearby residence, "many law enforcement personnel were present" and plaintiffs "were patted down and found to have no weapons"); Schafer v. Ashworth, No. 06-cv-1259, 2008 WL 4736353, at *3 (E.D. Cal. Oct. 16, 2008) (though the warrant was for narcotics, and the teenaged plaintiff possessed "a small, inexpensive plastic knife in his pocket," he was "at all times submissive and cooperative," yet remained in handcuffs for three hours); Elliot v. Lator, No. 04-cv-74817, 2006 WL 1806475, at *12 (E.D. Mich. June 28, 2006) (though the warrant was for the weapons used in a robbery, "the suspected armed robber was already in custody" so there was "no reason to believe that anyone on the premises posed a particular threat to the safety of the officers" and no "evidence that any Plaintiff behaved in a way that would have triggered any [such] concerns").

There is similar caselaw predating Muehler as well. See, e.g.,Baker v. Monroe Twp., 50 F.3d 1186, 1193 (3d Cir. 1995) (though the warrant was executed as part of a "drug raid," the police had no reason to feel threatened by a family, including two teenaged girls, "paying a social visit" to the premises, yet they were left handcuffed for as long as 25 minutes); Ingram v. City of Columbus, 185 F.3d 579, 592 (6th Cir. 1999) (though the officers chased a drug dealer into a home, they had no "general right" to handcuff the occupants); Heitschmidt, 161 F.3d at 839 ("Once the premises was secure and police were proceeding with their work without interference, there was no justification for prolonging the physically intrusive aspect of [plaintiff's] detention" in handcuffs, particularly where "there were between ten and twelve police officers in the home during the search"); United States v. Greathouse, 297 F. Supp. 2d 1264, 1276 (D. Or. 2003) ("no reason to believe that any of the residents posed a particular threat of harm or danger of flight . . . there were at least 10 and perhaps 11 officers and agents on the scene . . . there was no . . . evidence offered to suggest that [plaintiff] (or anyone else in the residence) resisted arrest in any way");United States v. Rodriguez, 68 F. Supp. 2d 104, 110 (D.P.R. 1999) (though the warrant was for "firearms, narcotics, and ammunition," a protective sweep did not turn up weapons, and "there were about ten to fifteen agents in the house").

The Bristol defendants provide no authority to the contrary. A rational jury could conclude that keeping the Mlodzinskis in handcuffs amounted to "force that was unreasonable under the circumstances" in violation of the Fourth Amendment. Jennings v. Jones, 499 F.3d 2, 11 (1st Cir. 2007).

The Bristol defendants rely on United States v. Timpani, 665 F.2d 1 (1st Cir. 1981), which concluded that detaining the occupant of a house for 45 minutes during the execution of a search warrant was reasonable. That case is inapposite to the Mlodzinskis' excessive force claim, though, because the defendant there was not handcuffed; the police merely "insisted that [he] remain with them while they searched." Id. at 2.

ii. Qualified immunity

The Bristol officers also argue that, even if a jury could rationally find that they used excessive force in keeping the Mlodzinskis handcuffed, summary judgment should nevertheless enter in their favor by virtue of qualified immunity. They bear the burden of proving qualified immunity, an affirmative defense protecting government officials from liability if they can show that their conduct, while illegal, did not violate "clearly established" constitutional rights. See, e.g., DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 35 (1st Cir. 2001). In analyzing the defense, the court considers "(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the 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 v. Callahan, 129 S.ct 808, 815-16 (2009)). The second step of the test "in turn, has two aspects. One aspect of the analysis focuses on the clarity of the law at the time of the alleged civil rights violation. . . . 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.

As just discussed, this court concludes that, taking the facts in the light most favorable to the Mlodzinskis, they can show a violation of their constitutional right to freedom from excessive force under the Fourth Amendment, so they survive the first step of the test. See, e.g., Jennings, 499 F.3d at 11. Furthermore, the court of appeals has held that its "case law supplies a crystal clear articulation of the right, grounded in the Fourth Amendment, to be free from the use of excessive force by an arresting officer," so the Mlodzinskis' excessive force claim survives the first "aspect" of the second step of the test as well. Morelli v. Webster, 552 F.3d 12, 23 (1st Cir. 2009).

The Bristol officers' qualified immunity defense, then, turns on the second aspect of the second step of the test: whether their alleged "use of excessive force constituted the kind of erroneous judgment that a reasonable police officer under the same or similar circumstances might have made," such that "qualified immunity gives an officer the benefit of a margin of error." Id. at 24. The Mlodzinskis' excessive force claim survives this final part of the test as well.

As already noted, the Bristol officers — who, again, bear the burden of proving the defense — have pointed to no circumstances that could justify, to a reasonable officer, the Mlodzinskis' continued handcuffing. They did not outnumber the officers; they had not resisted arrest, attempted to flee, or taken any action at all to threaten the safety of the officers, who were not aware of any other reason to believe they might be dangerous; and the only potentially dangerous person in the apartment, Rothman, had been removed from there immediately. The absence of any of these factors places the Bristol officers' alleged "actions outside the universe of protected mistakes." Morelli, 552 F.3d at 24 (denying qualified immunity from excessive force claim based on physically restraining the plaintiff, given the lack of any "evidence of either dangerousness or attempted flight, and the presence of a cadre of other officers at the scene").

Relying on Muehler, the Bristol defendants argue that "officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search in executing a search warrant" and that "[s]uch reasonable action includes the use of handcuffs in detaining occupants." It is true that, "[i]f the officer's mistake as to what the law requires is reasonable, . . . the officer is entitled to the immunity defense." Saucier v. Katz, 533 U.S. 194, 204-05 (2001). But, as discussed at length above, Muehler did not lay down a per se rule authorizing the use of handcuffs to detain the occupants of a home while executing a warrant regardless of whether using that force is reasonable — nor could a reasonable officer understand such a rule to have been adopted. The Bristol defendants have not identified any case law at all supporting their contrary view.

Yet, as just discussed, there are numerous decisions predatingMuehler — and therefore the events at issue here, which occurred just months after that decision issued — that recognize excessive force claims based on handcuffing occupants while carrying out a warrant under circumstances closely analogous to the ones that confronted the Bristol officers here. This case law therefore served to give them "reasonable notice that the conduct [they are] alleged to have committed in this litigation is unlawful." Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 66 (1st Cir. 2004). Indeed, as the Sixth Circuit Court of Appeals has held, "the law is clearly established that the authority of police officers to detain the occupants of the premises during a proper search for contraband is `limited' and that officers are only entitled to use `reasonable force' to effectuate such a detention.'" Binay, 601 F.3d at 652 (citing Summers, 452 U.S. at 705, and Muehler, 544 U.S. at 98) (denying qualified immunity to officers who unreasonably kept the occupants of a home handcuffed while executing a search warrant there); see also Tekle, 511 F.3d at 850 (same); Schafer, 2008 WL 4736353, at *5-*6 (same). The Bristol defendants are not entitled to qualified immunity from the excessive force claim, at least when the facts are taken in the light most favorable to the Mlodzinskis.

As discussed in Part II, supra, Lewis says that the Mlodzinskis' handcuffs were removed shortly after they were brought into the living room, just before he began interacting with them. The court has not considered whether, on this version of events, the Mlodzinskis could make out a successful excessive force claim against the Bristol officers or, if so, whether qualified immunity would apply.

B. Excessive force and assault and battery by CNHSOU officers

Tina and Jessica claim that they were subjected to excessive force in violation of the Fourth Amendment, as well as assault and battery at common law, by the CNHSOU officers who allegedly kept their rifles pointed at them for several minutes after they had been handcuffed. Like their Bristol counterparts, these CNHSOU officers argue that even this alleged use of force was reasonable as a matter of law (and therefore privileged under state law) but that, even if not, reasonable officers in their position would have believed that it was, entitling the CNHSOU officers to qualified immunity (or official immunity, in the case of the state law claim). The CNHSOU officers also argue that, because the Mlodzinskis did not "identify which CNHSOU member, if any, used the alleged excessive force" against them, any claims arising out of it fail for that reason as well.

1. Identity of the officers

Taking the CNHSOU officers' last argument first, it is inconsistent with the record. There is evidence that either Officer Richard Tyler or Officer Arell handcuffed Jessica, and that Arell proceeded to hold his gun to her head. See note 6,supra, and accompanying text. While Arell denies touching Jessica, she identified him as the one who shoved her to the floor and handcuffed her, and this dispute presents a factual question to be resolved by the jury.

Similarly, there is evidence that, even if it does not permit the inference that Officer Christopher Tyler was the man who handcuffed and held Tina at gunpoint, at least places him in the room while another officer did so. That could make Christopher Tyler responsible for the allegedly excessive force, even if he did not personally apply it, see note 10, supra, and the CNHSOU officers have not argued that this theory would not apply here. They are not entitled to summary judgment based on the claimed lack of evidence identifying the officers responsible for the allegedly excessive force against Jessica and Tina. 2. The Fourth Amendment claim

The Mlodzinskis concede that they cannot identify the officer who allegedly handcuffed Tom by placing a knee in his back, and that Tom has no excessive force claim as a result. See note 7,supra.

a. Liability

In arguing that the force they used was reasonable as a matter of law, the CNHSOU officers, like their Bristol counterparts, rely principally on the fact that they were executing a search warrant for a weapon, which, they say, "alone was sufficient to justify the use of handcuffs on all present" under Muehler. As already discussed in detail, however, Muehler did not hold that handcuffing the occupants of a home while executing a warrant to search for a weapon can never amount to excessive force, only that it did not under the circumstances presented there. And, as also already discussed in detail, the circumstances in Muehler differed from the circumstances here in a number of important ways: there were more than twice as many officers as there were occupants, the apartment was not the suspected site of gang-related or any other criminal activity, and the object of the search was a nightstick, not a gun used in a drive-by shooting by a wanted gang member.

Furthermore, all of the home's occupants readily complied with the CNHSOU officers' orders to get down on the ground (or, in Tina's case, to lay face down in her bed) with their palms up. They did not attempt to flee or resist. The officers did not find a weapon on anyone's person — not surprisingly, since the Mlodzinskis were wearing little more than their underwear — nor did they have any other reason to suspect that Tina, a woman in her 40s, or Jessica, a 15 year-old girl, was the suspect, or was otherwise dangerous. Indeed, defendant Stephen Adams, one of the CNHSOU officers who participated in executing the warrants here, and who is now an assistant commander, testified that there would "be no need to" handcuff a 15 year-old girl while executing a warrant unless she was violent or was herself a suspect. Jessica was neither. As noted in Part III.A.3. i, supra, a number of courts have ruled that a triable excessive force claim arose out of handcuffing the occupants of a home while carrying out a search under similar circumstances.

In any event, the responsible CNHSOU officers allegedly did more than just handcuff Jessica and Tina: one held his assault rifle to Jessica's head for what she says was between seven and ten minutes, while another held his assault rifle to Tina's head for what she says seemed like half an hour. The CNHSOU officers have not come forward with any justification for holding weapons to the heads of Jessica and Tina, particularly after they had already been handcuffed. "Where a person has submitted to the officers' show of force without resistance, and where an officer has no reasonable cause to believe that person poses a danger to the officer or to others, it may be excessive and unreasonable to continue to aim a loaded firearm directly at that person." Holland, 268 F.3d at 1193; see also Baird v. Renbarger, 576 F.3d 340, 346 (7th Cir. 2009) ("pointing guns at persons who are compliant and present no danger is a constitutional violation").

Officers Arell and Richard Tyler have testified that, in accordance with standard CNHSOU procedures, they in fact held their weapons at the ready, at a 45-degree angle to the ground. They do not deny, however, pointing their rifles at the heads of Jessica and Tina. In any event, both women testified unequivocally that the guns were pointed at their heads, and it is their version of the facts that controls at this stage.

A number of courts have found triable excessive force claims to arise from the continued pointing of weapons at detainees under circumstances similar (if not identical) to those here. See,e.g., Baldwin v. Placer County, 418 F.3d 966, 970 (9th Cir. 2005) (there was no evidence that plaintiffs would resist or flee, or to justify believing they would be armed); Jacobs v. City of Chi., 215 F.3d 758, 773-74 (7th Cir. 2000) (an "officer kept [his] gun pointed at [plaintiff] for over ten minutes, even after ascertaining that [he] was not the person [the officer] was looking for, and during which time [plaintiff] did nothing . . . threatening"); Baker, 50 F.3d at 1193 (police handcuffed plaintiffs at gunpoint with no "reason to feel threatened by [them], or to fear [they] would escape"); Ingram, 185 F.3d at 592 (though the officers chased a drug dealer into a home, they had no "general right to handcuff and detain at gunpoint the occupants . . . in order to apprehend" the suspect).

In addition, as the Mlodzinskis emphasize, a number of courts have found triable excessive force claims to arise from pointing guns at children while executing a search warrant, reasoning that they generally pose less of a safety risk than adults. See, e.g.,Tekle, 511 F.3d at 845-46 (officers held the 11 year-old plaintiff "handcuffed, with their guns pointed at him, for ten to fifteen minutes"); Holland, 268 F.3d at 1192 (pointing guns at children, ages 18, 14, and 8, for "nearly 10 minutes" after they complied with orders to lie face-down on the ground); McDonald ex rel. McDonald v. Haskins, 966 F.2d 292, 294 (7th Cir. 1992) ("holding a gun at the head of a 9 year-old" despite "the alleged absence of any danger to [the officer] or other officers at the scene and the fact that the victim, a child, was neither a suspect nor attempting to evade the officers or posing any other threat"); Lucas v. City of Boston, No. 07-cv-10979, 2009 WL 1844288, at *22 (D. Mass. June 19, 2009) (pointing "weapons directly at the heads of two young children");Schaefer, 2008 WL 4736353, at *3 (pointing guns at the head of a 14 year-old boy, even though he possessed "a small, inexpensive plastic knife," when he "was at all times submissive and cooperative").

Los Angeles County v. Rettele, 550 U.S. 609 (2007), on which the CNHSOU defendants rely heavily, is not to the contrary. There, the defendant deputies obtained a warrant to search a house where they believed they could find the suspects in "a fraud and identity-theft crime ring," one of whom held a registration for a handgun. Id. at 610. In executing the warrant at 7 a.m., the deputies entered the plaintiffs' "bedroom with guns drawn and ordered them to get out of their bed and to

show their hands," despite their protests that they were not dressed — and despite the fact that they did not fit the physical description of the suspects. Id. at 611. Nevertheless, the plaintiffs remained "at gunpoint for one to two minutes" before they were permitted to dress, and under arrest for "three to four minutes" more, before the deputies realized their mistake, apologized, and left the house. Id.

Rejecting the plaintiffs' claim that this amounted to an unreasonable seizure in violation of the Fourth Amendment, the Court ruled that the deputies, "who were searching a house where they believed a suspect might be armed, possessed authority to secure the premises before deciding whether to continue with the search." Id. at 613. The Court explained that ordering the plaintiffs from bed was "permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm." Id. at 614. The Court further recognized that the "deputies needed a moment to secure the room and ensure that other persons were not close by or did not present a danger." Id. at 615. Yet the Court cautioned that "[t]his is not to say, of course, that the deputies were free to force [the plaintiffs] to remain motionless . . . for any longer than necessary . . . to protect their safety." Id.

Here, however, a rational jury could find that the responsible CNHSOU officers forced Tina and Jessica to remain motionless for longer than necessary through the use of handcuffs and, allegedly, loaded weapons pointed at their heads. According to the Mlodzinskis, the use of that force continued for much longer than the "one or two minutes" the plaintiffs were held at gunpoint in Rettele, or, more importantly, the time the officers needed to "secure the room" by ensuring that Tina and Jessica were unarmed, did not otherwise pose a threat, and were unaccompanied by others who might. It bears repeating here that Rothman, the only person in the apartment whom the officers believed to be dangerous or to possibly have a gun, had been arrested and removed immediately after the officers entered. Moreover, in contrast with Rettele, the officers were not carrying out a warrant against a suspected "crime ring," but against a suspect in an assault, so, unlike the officers there, they had no reason to fear that Tina and Jessica were "engage[d] in joint criminal activity" with Rothman. 550 U.S. at 613.

Under these circumstances, a jury could rationally find that the responsible CNHSOU officers subjected Tina and Jessica to excessive force by holding them handcuffed and with guns to their heads for the extended periods they recall. See Lucas, 2009 WL 1844288, at *20 (distinguishing Rettele as a case of "officers pointing guns at adults who the officers had some reason to suspect were cooperating with dangerous suspect," and denying summary judgment to officers who pointed guns at two children).

The other cases cited by the CNHSOU defendants are similarly inapposite because the force allegedly used there was considerably less than the force allegedly used against Tina and Jessica here. In both Johnson v. Deep E. Tex. Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 305 (5th Cir. 2004) andSolis-Alarcon v. United States, 514 F. Supp. 2d 185, 199 (D.P.R. 2007), the officers executing the warrant merely had their guns drawn. They were not holding them to the heads of handcuffed detainees, as the Mlodzinskis allege here. And Isom v. Town of Warren, 360 F.3d 7, 11 (1st Cir. 2004) — where the police used pepper spray against "a distraught, seemingly suicidal man, who had briefly held two hostages and was refusing to comply with continuous officer requests that he put down an axe" — could hardly be more different from this case.

b. Qualified immunity

The CNHSOU officers also seek summary judgment on qualified immunity grounds, arguing that, even if a jury could find that their actions amounted to excessive force, they were nevertheless "objectively reasonable." The court disagrees, for much the same reasons it disagrees that the Bristol officers are entitled to qualified immunity. See Part III.A.3. b, supra. While, as the CNHSOU officers emphasize, they had been told "that the suspect to be apprehended had recently committed a violent assault with a deadly weapon and was known to have a gun," they do not explain how a reasonable officer would have understood that information to justify the force they allegedly used against Tina and Jessica — as opposed to Rothman, who was the violent suspect in question. Cf. Ingram, 185 F.3d at 597-98 (explaining that, if officers reasonably but mistakenly believed one of the occupants of the home was the fleeing suspect, they could have used appropriate force in handcuffing him face-down on the floor at gunpoint). Nor, as already discussed at length, does the record disclose any such justification; to the contrary, one of the CNHSOU's assistant commanders has testified, in essence, that there was "no need" even to handcuff Jessica.

And the mere fact that the search warrant had issued during the investigation of a violent crime would not, in and of itself, lead a reasonable officer to believe he could legally handcuff and hold Tina and Jessica at gunpoint for several minutes. That much is clear from Muehler itself which, again, authorizes only "reasonable force to effectuate the detention" of a home's occupants while executing a search warrant. 544 U.S. at 98-99.See also Baird, 576 F.3d at 345 (noting that, while the defendants in Muehler "pointed their guns at people during the execution of a search warrant," the facts there "revealed a serious potential danger to the police").

It is also clear from the numerous cases, preceding the events at issue here, that recognized excessive force claims for handcuffing or holding the occupants of a home at gunpoint, even while executing a search warrant for potentially violent criminal activity. See Baker, 50 F.3d at 1193 (warrant for drug trafficking); Holland, 268 F.3d at 1193 (warrant for assault by throwing victims "to the ground where they were kicked and beaten, often by several men at once"); Jacobs, 215 F.3d at 773-74 (warrant for drug trafficking); cf. Ingram, 185 F.3d at 592 (pursuit of fleeing drug dealer). Based on this body of law, a number of courts have denied qualified immunity to officers for handcuffing or pointing weapons at the occupants of a home under similar circumstances. See, e.g., Binay, 601 F.3d at 652; Baird, 576 F.3d at 347; Tekle, 511 F.3d at 850; Holland, 268 F.3d at 1197; Jacobs, 215 F.3d at 774. The CNHSOU officers provide no authority to the contrary. Their motion for summary judgment on the Mlodzinskis' Fourth Amendment claim is denied.

Indeed, the CNHSOU officers' summary judgment brief does not even address the evidence that they pointed guns at Tina and Jessica, but instead relies on the officers' version of events, i.e., that they held their weapons toward the floor, to claim that no reasonable officer would have thought that excessive. Again, that is not the version of events that controls at the summary judgment stage.

3. The state-law assault and battery claim

Finally, the CNHSOU officers argue that they cannot be liable on the Mlodzinskis' state-law claims for assault and battery because they acted reasonably in using the alleged force against the Tina and Jessica. In New Hampshire, "[a] law enforcement officer is justified in using non-deadly force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest or detention." N.H. Rev. Stat. Ann. § 627:5. Under this statute, though, "[w]hether the defendant's beliefs were `reasonable' is determined by an objective standard. A belief that is unreasonable, even though honest, will not support the defense." New Hampshire v. Cunningham, 159 N.H. 103, 107 (2009) (citation omitted).

As just discussed, the CNHSOU officers have not shown an objectively reasonable belief that, to effect the detention of Tina and Jessica while executing the warrant, they needed to handcuff them and hold them at gunpoint for as long as they allegedly did. So, just as the CNHSOU officers are not entitled to summary judgment on the Fourth Amendment excessive force claim against them on this basis, they are not entitled to summary judgment on the state-law assault and battery claim against them either. Cf. Statchen v. Palmer, 2009 DNH 137, 25-26 (noting that the standards for the claims are essentially the same).

The CNHSOU officers also argue that they cannot be liable for assault and battery because they did not intend to cause any injury to Tina or Jessica. That reflects a fundamental misunderstanding of tort law. The "intent" required for a battery claim is not "a desire to injure" the plaintiff, but the intent "to cause a harmful or offensive contact" with the plaintiff.Restatement (Second) of Torts § 13 cmt. c (1965).

The CNHSOU officers also argue that, even if a jury could rationally find that they assaulted and battered Tina and Jessica by using unreasonable force to detain them, that claim would be barred by the state-law doctrine of official immunity. Under that doctrine, "municipal police officers are immune from personal liability for decisions that are: (1) within the scope of their official duties while in the course of their employment; (2) discretionary, rather than ministerial; and (3) not made in a wanton or reckless manner." Everitt v. Gen. Elec. Co., 156 N.H. 202, 219 (2007). The defendant bears the burden of proving that official immunity shields the acts in question. See Belcher v. Paine, 136 N.H. 137, 145 (1992).

Assuming, without deciding, that the CNHSOU officers were carrying out their official duties while in the course of their employment, and undertaking discretionary acts, while detaining Tina and Jessica, the CNHSOU officers have failed to establish that they were not acting in a wanton or reckless matter while doing so. This follows from the fact that, as just discussed above, they have failed to establish that a reasonable officer in their position would have believed his conduct was consistent with the Mlodzinskis' Fourth Amendment rights. See Binay, 601 F.3d at 653 (upholding denial of official immunity from assault and battery claim arising out of excessive force during arrests for the same reasons for upholding denial of qualified immunity from overlapping Fourth Amendment claim). The CNHSOU defendants' motion for summary judgment on the assault and battery claim by Tina and Jessica is denied.

IV. Conclusion

For the foregoing reasons, the Bristol defendants' motion for summary judgment is GRANTED as to count 1, insofar as it arises out of the lack of probable cause or the alleged interrogation of the Mlodzinskis, but otherwise DENIED as to that count; and GRANTED as to counts 2, 3, and 4. The CNHSOU defendants' motion for summary judgment is GRANTED as to count 6 as to all defendants but Cormier, Arell, Richard Tyler, and

Document no. 37.

Document no. 36.

Christopher Tyler, as to whom it is DENIED; GRANTED as to count 7 (which alleges Cormier's liability for common-law false arrest and imprisonment); and GRANTED as to count 8 insofar as it alleges the CNHSOU's vicarious liability for the false arrest and imprisonment, but DENIED as to count 8 insofar as it alleges the CNHSOU's vicarious liability for the assault and battery.

As a result, the following defendants are terminated from the case: the Town of Bristol, Steven Henry, Bill Jolly, Matt Culver, Rick Paulsen, Brad Sargent, Stephen Adams, Scott Thompson, Todd Eck, and Shawn O'Keefe.

SO ORDERED.