In July, 2022, an infant was seen at a hospital for respiratory issues. In the course of evaluating the infant, it was discovered that the child suffered from rib fractures that could have occurred some days or weeks earlier. Hospital staff alerted the Department of Children and Families (“DCF”), which began an investigation into potential abuse or neglect. Medical personnel determined that the fractures could not have been caused accidentally and instead more likely were the result of trauma from squeezing of the infant. With that, the accounts offered by the parents as to how the injuries could have happened did not explain, according to the doctors, that form of trauma. After some days of investigation, senior-level DCF officials made the determination going into a weekend that there needed to be an emergency removal of both the injured child and the child’s sibling. DCF did not seek or receive a judicial order to cause the removal, instead relying upon a statutory authority that permits DCF officials to perform an emergency removal without court approval followed by a judicial process on the next court day.
After midnight on a Friday night into Saturday morning, the two DCF workers who were going to perform the removal arrived at the Waltham Police Department to seek police assistance in the process. Accompanied by the two DCF workers, two Waltham police officers went to the family’s residence, which was in a multifamily dwelling that featured upstairs and downstairs apartments. The officers and DCF workers entered an unlocked exterior door to the building, then walking into an area that the family later claimed was a breezeway, and began interacting with the children’s parents and grandmother. Over the course of an extended period of time, the parents refused to turn over the children and told the officers and DCF workers to leave as they had no warrant and the family believed such paperwork was necessary to justify the officials’ presence and any removal attempt. In time, a police supervisor arrived on scene and another supervisor, commanding the shift from the station, was engaged on the telephone. To hear the parents tell it, the officers and DCF workers on scene refused to leave despite being told to do so and threats were made that force would be used to take down the door if the children were not produced. Under what the parents say was duress and unlawful coercion, the children ultimately were given to the DCF workers and, after a number of hearings and some time, the children eventually were returned to the full custody of the parents.
The parents, for themselves and their minor children, sued various DCF and police officials in federal court in Boston. The parents alleged that their federal and state constitutional rights had been violated by illegal entry into the protected curtilage of their residence, by the unlawful seizure of the children and by a violation of the parents’ due process rights concerning their children. The parents also advanced a state statutory invasion of privacy claim.
VGA Attorney Andy Gambaccini represented the two police officers who were on scene as well as the police supervisor who arrived on scene and the shift commander who was involved in the situation by phone. Other defendants were represented by separate counsel. After a lengthy period of discovery, a motion for summary judgment was filed on behalf of the police officers and police supervisors by Gambaccini. The motion was argued and, after several months under advisement, the federal judge presiding over the case issued a forty-eight page decision. The decision granted VGA’s request for summary judgment in favor of the officers on all claims made against them.
With respect to the curtilage issue, the Court concluded that neither the United States Supreme Court nor the First Circuit Court of Appeals has answered the question, at least in the modern legal landscape, as to whether a tenant’s dwelling can extend beyond an apartment or any other areas of exclusive control by the tenant. In a recent Fourth Circuit decision cited by VGA, that Court determined that a common area in a multifamily dwelling rarely, if ever, can be characterized as constitutionally-protected curtilage. Noting that at least one other federal circuit court of appeal considered the situation differently, that perceived divide led the Court in this situation to conclude that, at the least, the law on the point was not clearly established, a determination that entitled the Waltham police defendants, as argued by VGA, to the protection of qualified immunity.
As to the seizure claims, the Court noted, similarly based upon VGA’s arguments, that there is no existing precedent suggesting that, in circumstances such as these, police officials act unreasonably when they rely upon a DCF determination, adequately explained even if absent paperwork, that an emergency removal was appropriate. Further, the Court concluded that, based upon the developed summary judgment record, the officers and police supervisors reasonably believed that there was an exigency and that exigency justified their actions throughout the encounter.
While claims against some DCF officials survived summary judgment remain for trial, the police officers and supervisors represented by VGA received summary judgment in their favor as to each and every one of the federal and state civil rights theories of liability brought against them. The case is Sabey, et al. v. Butterfield, et al., ___F.Supp.3d ___, 2026 WL 706134 (D.Mass. March 13, 2026).