City of Lawrence Pays Man $5,000 for Illegal Arrest Under Restraining Order

Police Must Investigate Charges Before Arrest is Made

December 2001

Fathers Picket Jailing of John Flaherty

Fathers from across the state arrived at the Cambridge Courthouse last month to picket the sudden jailing of John Flaherty for his inability to pay a lump sum of $10,000 (which he contends is a phony arrearage) suddenly imposed upon him after many years of paying his required child support without complaint from anyone.

The City of Lawrence paid $5,000 last month to settle a lawsuit in Boston’s federal court with a man who had been arrested by police for violating a restraining order after a complaint by the man’s ex-wife – even though there was no “probable cause” to arrest him.

The suit is important, according to lawyers, because it holds that a policeman must carefully investigate before arresting a man and must determine whether there is probable cause to arrest a man who has been accused by his wife of violating a restraining order.

It seems as though this case would also apply to the recent arrest of Ken Newell by police in Brockton and Holbrook where the arrest appears to be much more shocking than in the Lawrence case.

A request by the policeman and the city to dismiss the Lawrence case was rejected by Judge Edward F. Harrington in U.S. District Court a year ago because it was clear that the police did not determine they had “probable cause” to make an arrest. As a result, the case was settled last month.

Lawyers point out, however, that Judge Harrington is unusual because he is respected as a judge who listens to both sides and does not fit into any category. Because he is a trial judge, his decision is not binding upon any other judge. However, lawyers say that even though other judges might not follow his ruling, it sends a strong message to the police of Massachusetts that they should stop arresting men without cause, or at the very least, they may end up in a U.S. courtroom.

City Attempted to Have Case Dismissed

The city of Lawrence attempted last year to have the case thrown out before a trial was held. But Harrington refused to do so, holding that if the plaintiff could prove what he alleged in his Complaint, he would be entitled to cash damages.

The policeman argued to Judge Harrington that he had followed Massachusetts law. He claimed he had investigated the case thoroughly and had good reason to arrest the plaintiff because he had obtained a copy of the restraining order, researched the law, consulted with both his supervisor, Sgt. Robert Nochnuck, and the clerk magistrate of the Lawrence District Court, Keith E. McDonough, before obtaining a warrant for the arrest of the plaintiff.

However, the plaintiff, James Nollet, told Harrington that under a 1991 opinion, Lewis v. Kendrick, from the U.S. Court of Appeals in Boston, the policeman should have realized that the accusation by the ex-wife was totally unsupported and unverifiable and therefore did not constitute probable cause. He argued that the police can not arrest as soon as they hear an accusation from a woman without determining that there was probable cause to arrest.

He also argued to the judge that the policeman made no attempt to talk to him and hear his side of the case before issuing the warrant for his arrest.

Cited U.S. Court of Appeals

In the case from the U.S. Court of Appeals which was cited by Judge Harrington, the court wrote that “an asserted victim of a crime is a reliable informant even though his or her reliability has not theretofore been proven or tested,” but, if possible to do so, the officer must verify the facts and cannot take the word of just the alleged victim.

Nollet sought damages for “false arrest” and “false imprisonment.” He told the court in his original Complaint, “[T]his is urgent because [plaintiff] believes Defendant’s illegal warrant and arrest was not an isolated incident, but rather is something that happens frequently and routinely in the Commonwealth of Massachusetts, in that men are always arrested, even without Probable Cause, as soon as police officers understand that it is an accusation of Domestic Violence or violation of a Restraining Order that has been made. It is Plaintiff’s belief that police officers everywhere must be sent a message that constitutionally sub-standard arrest cannot and will not be tolerated, even if such arrests are performed to attempt to alleviate the serious problem of Domestic Violence.”

The policeman, John S. Dushame, had asked the judge to dismiss the case because he said that the plaintiff, James A. Nollet, Woburn, had failed to state a cause of action under the facts he alleged. But the judge refused to dismiss the suit. There was no oral or written opinion.

The plaintiff told MassNews that Judge Harrington suggested to the policeman before he filed his motion to have the case dismissed, that he try to settle the case for $5,000 to $10,000 in damages. Because he tried the case himself without a lawyer, Nollet chose to accept the lower offer and settle the matter.

Because the attorney for the defendant made some procedural errors which were helpful to the plaintiff and there was no oral or written finding by the judge, it is difficult to know exactly how far this decision will go in helping men who have been unjustly arrested, but no one doubts that it is an important case.

The charge for which Nollet was arrested was that his present wife had written a letter in Polish to his ex-wife, who is Polish. The ex-wife told the policeman that the letter was in violation of a restraining order against her ex-husband which ordered that he not contact her. She said the letter was threatening in tone and that the present wife had demanded that she be contacted for the purpose of resolving legal matters between the ex-wife and the husband and that the husband was in “100% agreement” with the demand for contact.

The policeman was unable to verify those facts because he could not read Polish and he did not contact the accused.

All of the charges for which the plaintiff was arrested were later dismissed by a Massachusetts judge.

Placed in Jail

As a result of the warrant issued by the defendant, Nollet was arrested inside the Woburn District Court when he appeared for another matter concerning his wife. He was handcuffed and taken to the basement holding area of the court and several hours later was shackled and transported via Sheriff’s van to the Essex County Jail in Middleton. He spent the night in jail and was shackled again and taken by van to the Lawrence District Court where he was released on his own recognizance at 3 p.m. the next day.

(When the original charges were made against Nollet by his wife in 1993, he was held for 3 days on the 18th floor of the Middlesex County Courthouse, Cambridge, before being released on $10,000 bail.)

Nollet served as his own lawyer in the case and worked entirely on his own. He says that he plans to help other men do the same. He says, “John Flaherty and the Liberty Bell Union have, for a long time, offered basic courses on how to be one’s own attorney. I expect to participate in these courses as a specialist in false arrest cases, instructing anyone who has been falsely arrested as to how they can file their own lawsuits against police officers.”

Anyone who wishes a copy of Nollet’s pleadings in the case may contact him at jnollet@worldnet.att.net.