                 Not for Publication in West’s Federal Reporter

           United States Court of Appeals
                        For the First Circuit
No. 19-1708

                             HAROLD HOURIHAN,

                         Plaintiff, Appellant,

                                      v.

                  ROBERT BITINAS; ANDREW MCKENNA,

                        Defendants, Appellees,

         TOWN OF BARNSTABLE, MASSACHUSETTS; PAUL MACDONALD,

                                Defendants.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Allison D. Burroughs, U.S. District Judge]
             [Hon. Indira Talwani, U.S. District Judge]


                                Before
                       Kayatta, Circuit Judge,
                     Souter, Associate Justice,
                      and Selya, Circuit Judge.


     Richard K. Latimer for appellant.
     Stephen C. Pfaff, with whom Louison, Costello, Condon & Pfaff,
LLP was on brief, for appellees.


                              April 22, 2020



     
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation
              SOUTER, Associate Justice.             Plaintiff Harold Hourihan

appeals from adverse judgments in his § 1983 and state law action

against appellees Robert Bitinas and Andrew McKenna, among other

defendants.      He assigns error to the district court's award of

partial summary judgment to appellees and, following an adverse

jury verdict, the denial of his motion for judgment as a matter of

law or alternatively for a new trial.               We affirm.

                                          I

              A reasonable jury could have credited the following

testimony presented at trial.                 On September 3, 2013, Officer

Bitinas of the Barnstable Police Department received a dispatch

from headquarters that a Reporting Party (R.P.) was "requesting a

wellness      check"   on    her   parents'        neighbor,    Harold    Hourihan.

According to the R.P., Hourihan had called her making several

"bizarre statements [suggestive of] a mental breakdown," including

assertions that "people are shooting BB guns in his back yard" and

that "he believes the State Police are in his attic spying on him."

Trial   Ex.    35.     She   believed     Hourihan       "to    have   accidentally

discharged firearms in his home in the past, but [did] not know if

he still possess[ed] weapons."            Id.       The dispatch further noted

that Hourihan had an unexpired license to carry a gun.                        Officer

Bitinas    was   concerned     that   the      subject    was    having   a   mental

breakdown     while    in    possession       of   firearms,     and   accordingly

proceeded to Hourihan's residence.


                                      - 2 -
          Upon arrival, Officer Bitinas met Hourihan and a friend,

Daniel Parker, at the door.   He asked them to step out to the deck,

which they did, and he observed that Hourihan was cooperative and

polite when speaking with him.    He noticed, however, that Hourihan

was wearing a gun holster that appeared to be empty.    When Officer

Bitinas enquired about the holster, Hourihan said that the gun

belonging in it was upstairs on his bed, and that he also had a

shotgun stored beneath the bed.    Officer Bitinas asked whether he

could "go up and make those weapons safe," to which Hourihan

replied "Yes."

          The officer conducted a protective sweep of the house

before going into Hourihan's bedroom, where he found a loaded

pistol on the bed and a loaded shotgun inside a latched gun case

beneath the bed.   Though he noticed several other gun cases there,

he cleared the ammunition only from the pistol and the shotgun.

He then went downstairs to meet Sergeant McKenna, who had just

arrived, and told the Sergeant what he had found.

          Hourihan began telling Sergeant McKenna about an ongoing

dispute he had with his neighbor, Robert Dawson.       Hourihan said

that Dawson would walk around his own yard in camouflage, at times

lying in a prone, sniper-like position on his roof or under his

deck to shoot poison-laced pellets at Hourihan's house and vehicle.

Hourihan said that some of these bullets would ricochet off other

parked vehicles and go around his house to cause damage to items


                                 - 3 -
hidden behind it.     He showed Sergeant McKenna certain marks on his

body that he attributed to Dawson's bullets.           Sergeant McKenna

walked to the vicinity of Dawson's property, noting the substantial

distance between the two houses, the fence in front of Hourihan's

residence, and the particular shooting positions Hourihan had

described.     Based on these observations, Sergeant McKenna found

aspects of Hourihan's story to be implausible.

             Back at Hourihan's house, Sergeant McKenna conversed

again with Hourihan, whose mood began to fluctuate.            Believing

Hourihan to be in "crisis," Sergeant McKenna encouraged him to

speak with someone at a hospital.         Hourihan mulled this over and

agreed,   whereupon    Sergeant   McKenna    called   the   Hyannis    Fire

Department to provide transportation.          He then asked Hourihan

whether there were more firearms in his house, and whether the

officers could reenter it to make those weapons safe.              Hourihan

gave the officers permission to go in, and indicated that there

were other guns under his bed and in one of the top two drawers in

his   dresser.      Because   Barnstable     Police   Department    policy

prohibited officers from leaving unsecured weapons at the home of

someone being transported for a mental health evaluation, Sergeant

McKenna told Hourihan that the officers would take charge of his

guns for safekeeping.

             Upon hearing this, Hourihan's mood changed.       He became

agitated and argumentative, moving around erratically without


                                  - 4 -
heeding the officers' requests to calm himself.             Sergeant McKenna

told Hourihan that though he was not under arrest, they were going

to handcuff him for his own safety.          Officer Bitinas handcuffed

Hourihan, and Sergeant McKenna guided him into the rear of the

police cruiser, where he sat until an ambulance arrived.                He was

then strapped to a gurney in the back of the ambulance, had his

handcuffs removed, and was taken to the hospital (apparently

unaccompanied by any officer).

             Officer Bitinas returned to Hourihan's bedroom and found

six firearms and four pellet guns, all in unlocked containers or

canvas bags.        None had trigger locks.        He removed and unloaded

each gun, took ammunition found beneath the bed, and held onto a

container of unlabeled pills found in the case of one of the seized

weapons.       He was then joined by Sergeant McKenna and another

officer, who photographed the guns.

             On August 25, 2016, Hourihan brought the present action

in   federal    district   court   against   Officer       Bitinas,   Sergeant

McKenna, Chief Paul MacDonald of the Barnstable Police Department,

and the Town of Barnstable.          He charged Bitinas, McKenna, and

MacDonald (in their individual capacities only) with committing

the torts of false arrest, false imprisonment, and intentional

infliction     of    emotional   distress,   and    with    liability    under

provisions of state law (Mass. Gen. Laws ch.12, §§11H, 11I), and

42 U.S.C. § 1983, for violating Hourihan's state and federal


                                    - 5 -
constitutional rights.      He also named the Town of Barnstable as

liable for negligent supervision and training.

           On June 27, 2018, the district court (Burroughs, J.)

awarded partial summary judgment to the defendants.             So far as

relevant   here,   the   court   concluded   that   Officer   Bitinas   and

Sergeant McKenna were entitled to qualified immunity with respect

to their warrantless entry into Hourihan's residence.           The court

dismissed most of the claims against MacDonald and the sole claim

brought against the Town of Barnstable.             Hourihan's remaining

claims, including those against the two officers for searching for

and/or seizing his guns following each entry, restraining him in

the cruiser, and transporting him to the hospital, proceeded to

trial.

           At the close of evidence, Hourihan moved for judgment as

a matter of law under Federal Rule of Civil Procedure 50(a).1           The

trial judge (Talwani, J.) nonetheless submitted the case to the

jury subject to the court's later consideration of the legal

questions raised by the motion. The jury found in favor of Officer

Bitinas and Sergeant McKenna on all claims.          Hourihan then filed

what the district court construed to be a renewed motion for

judgment as a matter of law under Federal Rule of Civil Procedure



     1The trial judge had earlier granted Chief MacDonald's motion
for judgment as a matter of law after the plaintiff rested, a
decision that has not been appealed.


                                   - 6 -
50(b) and, alternatively, for a new trial under Federal Rule of

Civil Procedure 59.2   The court denied the motion, and this appeal

followed.

                                 II

            We review the district court's denial of the motion for

judgment as a matter of law de novo, and "examin[e] the evidence

and reasonable inferences therefrom in the light most favorable to

the nonmovant."     Estate of Berganzo-Colón ex rel. Berganzo v.

Ambush, 704 F.3d 33, 38 (1st Cir. 2013).   Thus, we "may only grant

a judgment contravening a jury's determination when the evidence

points so strongly and overwhelmingly in favor of the moving party

that no reasonable jury could have returned a verdict adverse to

that party."   Marcano Rivera v. Turabo Med. Ctr. P'ship, 415 F.3d

162, 167 (1st Cir. 2005) (quoting Rivera Castillo v. Autokirey,

Inc., 379 F.3d 4, 9 (1st Cir. 2004)).

            We review a district court's denial of a motion for a

new trial for abuse of discretion.       Mejías-Aguayo v. Doreste-

Rodríguez, 863 F.3d 50, 54 (1st Cir. 2017). "A new trial may be

warranted if 'the verdict is against the weight of the evidence'

or if 'the action is required in order to prevent injustice.'"

Jones ex rel. U.S. v. Mass. Gen. Hosp., 780 F.3d 479, 492 (1st



     2 "[A] renewed motion for judgment as a matter of law . . .
may include an alternative or joint request for a new trial under
Rule 59." Fed. R. Civ. P. 50(b).


                                - 7 -
Cir. 2015) (quoting Jennings v. Jones, 587 F.3d 430, 436 (1st Cir.

2009)).

          We consider first those claims raised in plaintiff's

unsuccessful pretrial motion under Rule 50(a) for judgment against

Bitinas and McKenna, which he renewed under Rule 50(b) after the

jury's verdict.        The issues so raised turn on findings of fact

that were the subjects of special questions submitted to the jury,

upon which the trial judge relied in her carefully explained denial

of the post-trial motion.

          The     first   of    these    claims   of    error      challenges    the

district court's conclusion that the jury could reasonably find on

the evidence that Officer Bitinas did not violate the Fourth and

Fourteenth Amendments (and the state constitutional analogue) when

he first proceeded to the plaintiff's bedroom to disarm the two

guns plaintiff had mentioned.            The jury made a special finding

that the officer's search for the gun on top of Hourihan's bed was

justified either by plaintiff's consent or as a reasonable measure

to guard against a risk of imminent violence.                The jury found that

the   officer's    search      beneath    plaintiff’s        bed    was   likewise

justified by consent, risk of imminent harm, or, as a third

possibility,    that    the    area   searched    was   in    plain    view     of   a

permissible search.

          We need not address each of these alternative bases,

however, as the record is so overwhelming on the fact of consent


                                      - 8 -
that it is "reasonably likely" the jury relied on this ground.

Rodríguez-García v. Miranda-Marín, 610 F.3d 756, 772 n.17 (1st

Cir.       2010)   (quoting    Mass.      Eye    &   Ear     Infirmary     v.     QLT

Phototherapeutics, Inc., 552 F.3d 47, 73 (1st Cir. 2009)). Officer

Bitinas testified that the plaintiff gave his permission for the

police to enter his house in order to reach the handgun and shotgun

and "make those weapons safe."                  The officer then went to the

location of the guns described and made safe only those two guns

that were mentioned.          Indeed, he could not have known that the

shotgun was in the case unless he had already been informed of its

location, and though he saw other encased guns in the room, he

chose not to search them.           Such testimony strongly suggests that

the jury relied on consent, and that such reliance was justified.

              The plaintiff makes no claim that he was not allowed to

introduce any evidence or make any argument he wished relating to

the fact or adequacy of consent, and we have heard no significant

argument here to the effect that the jury lacked a reasonable

evidentiary basis to accept Officer Bitinas's testimony.                          The

plaintiff says that he was entitled to judgment as a matter of law

on this issue of consent by asserting that Officer Bitinas could

not    lawfully    seek   consent    in   the    first     place,   see   Brief    of

Appellant 25, but no authority supports this proposition.3


       3
       He also argues that any apparent consent was inadequate
owing to Officer Bitinas's obscurity in describing the object of


                                       - 9 -
           The next claim before us is one of error in denying a

Rule 50(b) judgment for the plaintiff on Fourth Amendment and state

law claims of unconstitutional search when Officer Bitinas, joined

by Sergeant McKenna, proceeded into the house a second time to

examine the guns that plaintiff had told them were under his bed

and in his dresser drawer.         Here, too, the jury made special

findings   in    the    alternative:    consent,   reasonable    belief   of

imminent harm, or plain view.            The court found a sufficient

evidentiary basis for both consent and reasonable prudence in

acting.     It     is    noteworthy,    however,    that     three   further

considerations    pointed    to   the   good   judgment     supporting    the

officers' actions in making this second search.            The first was the

sensible general rule of the Barnstable Police Department, that

when firearms are subject to the custody of a person being held

for a mental health evaluation, all of them should be secured from

him.   Next, several of the gun cases in the bedroom had been in

plain view during the first search.        Finally, the earlier evidence

of plaintiff's delusional mind had been significantly confirmed in

the conversation the plaintiff had with Sergeant McKenna shortly

after the first search occurred.           Although the plaintiff said

nothing about the state police in the attic, he described in detail



his entry as making the guns "safe."   But the jury heard the
testimony and had a clear basis to find the consent adequately
knowing.


                                  - 10 -
how a neighbor supposedly shot at him and his house with a pellet

gun, showed what he said were wounds so caused, explained how

pellets were supposedly deflected around the exterior of his house,

and described the places in the neighbor's property from which the

pellets were supposedly fired. Sergeant McKenna went over to the

neighbor's house, checked the shooting locations the plaintiff had

identified, and found it highly unlikely as a physical matter that

shots from those positions could have had the results plaintiff

had described.         Hence, the known indications of paranoid delusions

were now greater, and police protective action even more obviously

called for than the police had realized at the end of the first

search.

               As to the next claim, of unconstitutional seizure of the

guns and other property, the jury found as it had on the preceding

claim: consent, a reasonable belief of imminent harm, or plain

view.     The trial court did not find the conclusion of consent

supportable by the record in this instance but denied the plaintiff

relief under Rule 50(b) on the evidence already mentioned providing

the     jury    with    an    objectively      reasonable    basis     to     sustain

precautionary seizure of the guns, some ammunition, and a bottle

of pills found with the guns.                 For the reasons also mentioned

before, we find the court's judgment sound.                 We add that support

for the seizures in the Police Department's prudent policy of

securing       all   guns    when   the   owner    is   facing   a   mental   health


                                          - 11 -
examination became all the stronger in light of the testimony that

as the proceedings wore on, the plaintiff became more upset.

Because the police could not be sure when he might be allowed home

again, it became more imperative to preclude (at least temporarily)

his access to firearms left in the house.

             With    respect   to     plaintiff's         Rule    50(b)    claims     of

constitutional       violations      in    being   handcuffed        in   the   police

cruiser and taken under restraint in the ambulance to the hospital

where he was examined, the jury's finding again was in favor of

the defendant officers.             In addition to the support for these

conclusions in evidence already mentioned, there was testimony

from the officers that the plaintiff was by this point becoming

increasingly    agitated.          There    was    thus      adequate     support    for

concluding    that    the   defendant       officers      acted    with    reasonable

concern for safety in restraining his freedom of motion.

             The same may be said of the evidence, and inferences

fairly drawn from it, considered in reviewing the jury's rejection

of   the   plaintiff's      state    law    claims      of   false   arrest,     false

imprisonment, and intentional infliction of emotional distress.

In sum, there was no error in the district court's conclusion that

(with the one non-dispositive exception mentioned) the record

supports    sufficient      jury    findings       to   justify      denial     of   the

plaintiff's Rule 50(b) motion.




                                      - 12 -
                  Finally, we consider plaintiff's appeal of the court's

pretrial order granting summary judgment in favor of the defendant

officers on the issue of their warrantless entry into the house.

The court sustained claims of the officers' qualified immunity

under       the    then-unsettled   scope   of   the   community   caretaking

doctrine validating a limited class of searches and seizures.            See

MacDonald v. Town of Eastham, 745 F.3d 8, 13 (1st Cir. 2014) ("This

court has not decided whether the community caretaking exception

applies to police activities involving a person's home.").4                We

find no error in the summary judgment, and note, additionally,

that the lawfulness of Officer Bitinas's initial entry is confirmed

by the adequate trial evidence that plaintiff gave him consent to

enter in order to make safe the weapons described.5            Thus, even if

we assume for argument's sake that the summary judgment was for

some reason defective, any error was harmless.

                  We therefore affirm the summary judgment and denial of

the plaintiff's motion for judgment or new trial under Rule 50(b)

and Rule 59.



        4
       We note that this Court has now resolved the caretaking
question in favor of application to private residences. See
Caniglia v. Strom, 953 F.3d 112, 118 (1st Cir. 2020).
        5
      The district court's Rule 50(b) decision similarly concluded
that "the facts presented at trial undermined rather than
strengthened Plaintiff's unlawful entry claim." App. to Brief of
Appellant A-65.




                                     - 13 -
