Realtor handcuffed by Stoneham detectives can continue lawsuit

A lawsuit against the Town of Stoneham from a real estate agent who alleges his civil rights were violated in 2018 by detectives who handcuffed and aimed a gun at him can continue, a federal judge ruled last week. 

In his lawsuit, Mohamed Salem alleges that he suffered emotional distress and that his rights under the Fourth Amendment were violated during the encounter with two Stoneham police detectives on Dec. 21, 2018. He was preparing a home for a showing on Danby Road at the time of the incident.

Salem, an immigrant from Egypt, alleged that he already had post-traumatic stress disorder from negative encounters with police in his home country during the Arab Spring. 

Salem’s lawsuit, originally filed in Middlesex Superior Court, names the Town of Stoneham but not the two detectives involved in the incident.

In her ruling on Sept. 27, Judge Angel Kelley dismissed several of Salem’s claims — assault and battery, intentional infliction of emotional distress, false arrest, and false imprisonment. But, she ruled in Salem’s favor for a jury trial over claims that there was negligent training and/or supervision, negligent infliction of emotional distress, and discrimination and violation of his Fourth Amendment rights.

Kelley wrote that there appears to be a “custom” in the department that allows officers to disregard a policy requiring reports for all incidents during which their gun is drawn. No such required report was made for the incident involving Salem, Kelley notes.

“​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,” Kelley wrote. “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.’”  

According to the ruling, at the time of the 2018 incident, the home that Salem was showing on Danby Road had been vacant for two years and one of the responding police officers knew the home was unoccupied. Salem arrived at the house around noon on Dec. 21, 2018 for the showing, using a ride-sharing service because his own vehicle was being serviced. Using the key from the lockbox, he entered the house carrying a backpack. 

While he was waiting, he started turning on the lights in the house, according to the ruling.

About 15 minutes later, someone called 911 to report seeing someone going into the house with a backpack, with the caller saying there was no car out front. Kelley noted in her ruling that the caller made no mention of 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…”

The Stoneham police detectives were in the area for an unrelated call and were the first to respond to the scene, according to the ruling.

Salem alleges that he opened the front door for the detectives and did not recognize them as police until they took out handcuffs. He alleges that they shouted at him with expletives to put his hands up and get on his knees, ordering him to the ground and handcuffing him as one of the detectives pointed a gun at his chest or head. 

Salem’s client says that when he arrived, he saw the realtor on the ground while being handcuffed, with another officer holding a gun. 

“I’m a [r]ealtor, I can show my badge—I can show my ID; give me a chance to show my ID,” Salem allegedly said repeatedly, according to the ruling.

The detectives allege the incident unfolded when one of them went to the side of the house and the other went to the front door, taking out his gun at the “low ready” position upon seeing Salem through the window. The detective says he announced his presence and yelled at Salem to come out showing his hands.

“Both parties agree that Salem complied with all demands,” Kelley wrote in her ruling. “Salem believes he remained handcuffed on the ground for about 5 minutes while the police detectives maintain it was only a couple of minutes.”

Once Salem was uncuffed, the detectives were given a tour of the house, according to the ruling. 

According to court documents, the Stoneham Police Department conducted an internal staff investigation after receiving a letter from Salem’s attorney about 14 months after the incident and cleared the detectives of the allegations.

“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,” Kelley wrote. “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.”

Kelley wrote that “in conclusion, a reasonable jury might find” that the detectives violated Salem’s Fourth Amendment rights, which protects people from unreasonable searches and seizures by the government.

“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,” Kelley wrote. “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.”

Attorneys for the Town of Stoneham and Salem did not respond to requests for comment from Boston.com.