Court upholds verdict against cop sued by Allston man who was arrested after waking up to find officers in his house

An Allston man arrested after he yelled at cops when he found them in his house in pursuit of a burglary suspect had his Fourth Amendment rights violated and deserves the damages a jury awarded him, a federal appeals court ruled today.

Scott Matalon was initially charged with disturbing the peace and resisting arrest when he used some choice words to question officers he found in his house without his permission on Sept. 29, 2010, after their clamor - and K9 barking - woke him up.

After he spent $56,000 successfully fighting those charges, he sued BPD Sgt. Mary Ann O'Neill and Officer Joseph Hynnes, charging O'Neill violated his right against an unreasonable search and that Hynnes used excessive force in arresting him.

The two were among BPD officers in pursuit of a man wanted for burglary at a Harvard Avenue restaurant when an eyewitness sort of pointed at Matalon's home on Farrington Avenue. According to today's ruling by the US Court of Appeals for the First Circuit:

O'Neill tried the knob of the exterior door and found it unlocked. She then rang the bell, knocked on the door, and called into the house, all to no avail. Hynnes told O'Neill that he thought that he heard footsteps emanating from the second floor of the dwelling.

O'Neill called for a canine unit. After a wait of at least ten minutes, the canine unit arrived and a search of the residence ensued. The only person inside was the owner, plaintiff appellee Scott Matalon, who had been sleeping in an upstairs bedroom. Displeased by the intrusion, the plaintiff had words with the officers and was eventually arrested by Hynnes.

A jury agreed with Matalon that the officers lacked probable cause to enter his house without a warrant and awarded him $50,000 in damages against O'Neill. She appealed, saying, in part, she enjoyed "qualified immunity" because she was doing her job as a government employee.

Because the jury had found police had no "exigent" reasons to enter Matalon's house - such as an immediate threat to their lives or to protect somebody else's life - O'Neill's lawyer argued she deserved "qualified immunity" under another, relatively rare exception to the Fourth Amendment known as "community caretaking." Under this doctrine, officers are allowed to take actions that are not necessarily related to immediate criminal investigations, such as, the court said, "removing a car from the highway
when no occupant of the vehicle had a valid driver's license."

But that argument fails in Matalon's case because police were clearly involved in a manhunt related to a criminal case - the burglary at the restaurant - the court ruled.

[A] reasonable officer standing in O'Neill's shoes should have known that her warrantless entry was not within the compass of the community caretaking exception and, thus, that her intrusion into the plaintiff's home abridged his constitutional rights.

The justices also upheld the lower court's decision to award Matalon's attorneys roughly $135,000 in legal fees.

Walsh looks to raise age for buying tobacco products to 21

That includes the new vaping stuff, Walsh said today:

We know the consequences of tobacco use are real and can be devastating. These proposed changes send a strong message that Boston takes the issue of preventing tobacco addiction seriously, and I hope that message is heard throughout Boston and across the entire country.

The Boston Public Health Commission will hold a public hearing on Dec. 3 and then vote on Dec. 17.

Man out on bail on Hyde Park burglary charge arrested on even more Hyde Park burglary charges

A Jamaica Plain man who prefers breaking into Hyde Park businesses and homes faces 20 years in prison after his arrest earlier this month following a string of break-ins between August and October, the Suffolk County District Attorney's office reports.

Christopher Fisher, 49, with a 14-page criminal record, was arraigned last week on the formal charge of being a common and notorious thief in West Roxbury Municipal Court, the DA's office says - adding a break in the case came when a Suffolk County corrections officer recognized him on a photo Boston Police had distributed.

Fisher was arraigned back in February for a housebreak on West Street in Hyde Park; the DA's office says he used his release on bail in that case to pick up where he'd left off:

Fisher is accused of breaking into a Hyde Park Avenue residence on August 18 while the victim was at work and stealing a laptop and other items. A security camera inside the building where the break-in occurred captured a man later identified as Fisher wearing a maroon t-shirt bearing a Florida State Football logo that had been stolen from the victim’s residence, prosecutors said. Boston Police criminalists later matched fingerprints at the scene to those on file for Fisher.

On Sept. 8, Boston Police responded to the scene of an overnight break-in at a Fairmont Avenue hair salon where electronics and hair extensions were taken. The incident was captured by a security camera inside the business; that footage captured the suspect wearing the same maroon shirt taken during the August home break-in.

Also on Sept. 8, officers responded to the scene of another overnight break-in at a Truman Parkway business. Security cameras at the location captured that incident, as well.

In the fourth incident, Fisher is accused of breaking into a Dana Avenue home on Oct. 17 and taking cash and a U.S. savings bond - a crime he was linked to through fingerprint evidence, prosecutors said.

A West Roxbury judge set his bail at $5,000 on the latest charges.

Innocent, etc.

Commuter rail reports best on-time performance in 9 years, despite dreaded slippery rail

This just in from Keolis:

Keolis Commuter Services, which operates the Massachusetts Bay Transportation Authority (MBTA) commuter rail system, finished out the month of October with an unadjusted on-time weekday performance rate of 90.44 percent, the best performance for that month in nearly a decade.

A significant number of delays for the month were caused by trains that had to be operated at lower speeds for safety reasons because of slippery rail conditions. When adjusted for slippery rail and other conditions or incidents not under the control of Keolis, on-time performance was 94.44 percent.

Licensing head faces tough grind in deciding whether stripper went too far with lap dance

The woman, Sgt. Det. Robert Mulvey testified this morning, was "substantially unclothed," she was straddling the man's waist and she was in motion.

Now Christine Pulgini, acting director of licensing and consumer affairs for the city of Boston, has to decide whether the stripper at the Glass Slipper on Lagrange Street was merely engaged in exotic dancing, which is permitted under the First Amendment, or whether she was participating in the sort of "intimate physical contact" prohibited under Section F 1(c) of the Rules and Regulations of the Mayor's Licensing Division.

Pulgini held the hearing on a citation issued by Mulvey and another licensing detective after they entered the Glass Slipper, one of one of two Combat Zone remnants left, for a routine inspection shortly before midnight on Sept. 24.

The detectives testified that despite the efforts of a doorman to warn employees the cops were in the house - itself a potential violation - they found a private entertainment room on the first floor where, right under a sign warning "No contact - No touching" an ecdysiast with almost nothing on was straddling a male customer in "face to face contact" - as a male floor manager looked on.

Pulgini asked whether either the man or the woman were fondling the other. "There wasn't what we would say is fondling," Mulvey acknowledged.

Section F 1(c) says "it is forbidden to encourage or permit any person in or on the licensed premises to touch, caress, or fondle the breasts, buttocks, or genitals of any other persons."

Mulvey acknowledged the fine line between the First Amendment and improper touching: "At what point does the dance begin and end" and when does it become impermissible touching? He said at some point, "it becomes you know it when you see it" and asked "should the dancer be on top of the patron?"

Mulvey added that what concerned him just as much, if not more, was the fact that the club manager was standing there, doing nothing to end what might have - and did - end up in a police citation. "He wasn't doing his job to discourage it," he said.

The club's attorney said his reading of city rule would indicate that there was no violation, because no hands were grasping body parts. Still, he said, the club has since added a bar between the seats in private areas and where the dancers gyrate, to ensure nothing that would raise the ire of Bostonians can happen. Pulgini did not indicate which way she would rule.

The club's attorney pleaded for leniency, saying that while he's not convinced there was a Section F 1(c) violation, something did happen, that club employees were disciplined after the incident and that club owners Nicholas Romano and Michael Bennett have long done their darndest to keep things clean and on the up and up in the 35 years the Glass Slipper has been open.

He pointed to the owners' backgrounds as evidence they are really good community members who are providing a service that, despite what "certain segments of our population" might think, is meeting a need. Romano, 78, he said, is a veteran, an accomplished florist who ran a flower shop on Hanover Street, and has been married for 55 years. Bennett, who took over his father's share in the business, is 47, has a psychology degree from BU and has been married for 17 years.

He added they are still paying off the mortgage they had to take out after their earlier location - across Lagrange - was taken by eminent domain for construction of the Kensington luxury tower and that they want to work with Boston Police and the city to further reduce the odds of such incidents in the future.

License swap could lead to new restaurant in Seaport hotel and revamp of long-running Dorchester restaurant

The Boston Licensing Board tomorrow considers approving a proposal to transfer the beer and wine license held by Gerard's on Adams Street in Dorchester to the soon-to-open Aloft Hotel on D Street - and to grant a new full-service liquor license to Gerard's purchasers, who are planning on renovating the Dorchester institution.

At a hearing today, a lawyer for Russell DeMariano and Edward Brooks, who would operate both establishments, said the Aloft restaurant would cater to hotel guests. DeMarino and Brooks, both Dorchester natives, said they want to upgrade Gerard's for the new century. They are seeking one of the new neighborhood-specific licenses approved by the state legislature, which means they could not resell it.

Attorney Karen Simao said this alone shows their committment to upgrading Gerard's - they couldn't buy the restaurant and then flip it, even if they wanted to, she said, adding that DeMarino literally grew up a block away from Gerard's, as did his parents.

Simao added that with the renovations, Gerard's would get a new name. She said the current working name is Landmark Public House, but added that could change.

City officials enthusiastically supported the Gerard's proposal, but differed on the closing time that should be allowed. The mayor's office and Councilor Frank Baker (Dorchester) said the restaurant should, at least initially, only be allowed to stay open until midnight. They pointed to the Erie Pub and Sam Maverick's as places that close then and said the proposed owners could come back in a year or two for a later closing if they have not problems.

An aided to City Councilor Michael Flaherty (at large), however, said the two are not only Dorchester natives, they have a "stellar reputation" and should be given a 1 a.m. closing time right off the bat.

At-large councilors Steve Murphy and Michelle Wu both support the proposed Dorchester license, but their aides took no stand on the closing time at today's hearing.

Ink Block could get Italian restaurant thanks to impending death of Medieval Manor

The Boston Licensing Board decides tomorrow whether to approve the sale of the soon-to-be-gone Middle-Ages dinner theater to the proposed operators of a new Italian restaurant in the Ink Block complex at 360 Harrison Ave.

Co-owners Colin Lynch, Heather Lynch and Jefferson Macklin, all alumni of Barabara Lynch's Gruppo restaurants, are seeking permission to keep Bar Mezzana open until 2 a.m.

The proposal won the support of the mayor's office and city councilors Bill Linehan, Michael Flaherty and Steve Murphy.