Beyond The Horizon
Sandra Birchmore's Story: A Decade Of Abuse And A Quest for Accountability (Part 3) (7/2/24)
Sandra Birchmore was a young woman from Stoughton, Massachusetts, who was reportedly groomed and sexually abused by three former police officers from her teenage years until her death in 2021. The alleged abuse began when she was 15 and continued for nearly a decade. Birchmore's family has filed a wrongful death lawsuit against these officers, the Stoughton Police Department, and the town, accusing them of a scheme of grooming and repeated sexual assaults. The lawsuit claims that one of the officers, Matthew Farwell, was the last person to see her alive and is believed to be the father of her unborn child.
In this episode, we begin our deep dive into her tragic story.
(commercial at 15:13)
to contact me:
bobbycapucci@protonmail.com
source:
Massachusetts Superior Courts Judge Brian A. Davis' Amended Decision and Order Regarding Defendants' Motion to Dismiss (Norfolk County, 2282CV01197) - DocumentCloud
- Duration:
- 23m
- Broadcast on:
- 02 Jul 2024
- Audio Format:
- mp3
American giant makes great clothing, t-shirts, jeans, and more right here in the U.S. Creating jobs in towns and cities across the country. Support America's workers and get 20% off your first order at american-giant.com with code staple20. It is Ryan Seacrest here. Everybody needs some variety in life. That's what I love about Chumba Casino. They know how to keep things fresh and exciting. All their games are free to play. At Spin Slots, Bingo, and Solitaire, you can claim free daily login bonuses too. And they release new games every week. So spice things up with ChumbaCocino.com now for your chance to redeem some serious prizes. Sponsored by Chumba Casino. No purchase necessary. VGW Group. Void where prohibited by law. 18 plus terms and conditions apply. What's up everyone and welcome back to the program. In this episode we're picking right back up where we left off with the Sandra Birchmore order. 7. Count 6. Alleging assault and battery of Ms. Birchmore by defendants, W. Farwell, Divine, and Heal. Count 6 of plaintiff's amended complaint alleges an irrelevant part that defendants W. Farwell, Divine, and Heal, along with defendant M. Farwell, by their previously referenced conduct, committed sexual assault and battery on Ms. Birchmore. A claim for civil assault lies where the defendant commits an act done with the intention of causing a harmful or offensive contact with the person of the other or in imminent apprehension of such a contact. The other is thereby put in such imminent apprehension. Guzman v. Pring Wilson 81. Mass Appeals Court 430-434-2012. Quoting restatement 2nd of Torts, section 21-1, 1965. A claim of civil battery exists where the defendant engages in an intentional touching that was offensive to the victim, meaning without consent. Gallagher v. Southshore Hospital, Inc. 101. Mass Appeals Court 807-834-2022. Quoting Commonwealth v. Cohen 55 Mass Appeals Court 358-359-2002. W. Farwell argues that Count 6 must be dismissed as against him because the amended complaint does not allege anything more than a sexual relationship between consenting adults and because the complaint contains no specific allegations regarding Ms. Birchmore's state of mind. Divine, likewise, argues that Count 6 must be dismissed as against him because the amended complaint does not allege facts sufficient to establish that he ever committed an assault and/or battery on Ms. Birchmore. Neither defendant's arguments regarding Count 6 are persuasive. The allegations of plaintiffs amended complaint combine with the contents of the incorporated I.A. report provide substantial and oftentimes graphic factual support for the proposition that W. Farwell and the Vine, along with defendant M. Farwell, engaged in a continuous pattern of grooming and abusive behavior directed towards Ms. Birchmore, beginning when she was a minor and eventually becoming overtly sexual in nature. Whether Ms. Birchmore, who purportedly suffered from significant mental and emotional problems throughout her life, amended complaint 10, had the capacity to consent to any of defendant's conduct presents an issue of fact that cannot be resolved at the motion to dismiss stage. C. Commonwealth v. Burke 390 Mass 480-482-1983. The capacity to consent to sexual touching is an issue of fact. C. Freilick v. Perkett PR Inc., 83. Mass Appeals Court 698-708-2008, 2013. Tort claim that requires an assessment of defendant's state of mind, not properly resolved on a motion to dismiss, but rather should be evaluated on the basis of factual record. For these reasons, the court will deny W. Farwell and the Vine's motions to dismiss, count #6. Once again, the outcome is different with respect to plaintiff's assault and battery claim against defendant Heel. As previously noted, Heel's only alleged Ms. Deed was having consensual sex with Ms. Birchmore on a single occasion when she was an adult. Mass law holds that consensual contact between adults does not constitute either an assault or a battery. C. Commonwealth v. Askins 18 Mass Appeals Court 927-929-1 1984. The words "assault and battery" have a well-understood common law signification that precludes consensual acts. Accordingly, Heel's motion to dismiss count #6 as it pertains to him must be allowed. 8. Count 7. Alleging negligent infliction of emotional distress on Ms. Birchmore's family, by all defendants. Count 7 of plaintiff's amended complaint sees compensation for the emotional distress that all of the defendants allegedly inflicted on the family Ms. Birchmore through their purported negligence. Amended complaint 54-56. This claim cannot succeed as a matter of law, only a bystander plaintiff who is closely related to a third person directly injured by a defendant's tortious conduct and suffers emotional injuries as a result of witnessing the accident or coming upon the third person soon after the accident states a claim. For negligent infliction of emotional distress, for which relief may be granted. McLaurie vs. Airborne Freight Corporation 426 Mass 629-632 1998. In this case, it's undisputed that Ms. Birchmore died alone by an apparent suicide in her apartment in Canton on or after February 1st, 2021, and that her death subsequently was discovered by members of the Canton PD. Not by any members of her immediate family, I.A. report exhibit 1. Because the undisputed facts do not support a claim for negligent infliction of emotional distress on Ms. Birchmore's family, count 7 will be dismissed against all defendants. Number 9. Count 8. Alleging negligent infliction of emotional distress on Ms. Birchmore, by all defendants. Count 8 of plaintiff's amended complaint seeks compensation for the emotional distress that all of the defendants allegedly inflicted on Ms. Birchmore herself through their purported negligence, amended complaint 58-62. To recover for negligent affliction of emotional distress, a plaintiff must demonstrate 1, negligence, 2, emotional distress, 3, causation, 4, physical harm manifested by objective, symptomology, and 5 that a reasonable person would have suffered emotional distress under the circumstances of the case. Peyton vs. Abbott Labs, 386 Mass, 540-557, 1982. Peyton. Each of the defendants has moved to dismiss his claim. The court addresses each defendant's motion in turn. First, defendant W. Farwell contends that plaintiffs' negligent infliction of emotional distress claim must be dismissed as it pertains to him because the amended complaint purportedly does not allege that Ms. Birchmore suffered any physical harm manifested by objective symptomology. The argument is unpersuasive. The purpose of the physical harm requirement is to ensure that plaintiffs can corroborate their mental distress claims with enough objective evidence to harm, to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial, Sullivan vs. Boston Gas Company 414 Mass 129, 137-138, 1993. The court believes that, in this case, Ms. Birchmore's apparent suicide provides sufficient objective evidence of harm and demonstrates a sufficient likelihood of genuineness to permit plaintiffs' claim for negligent infliction of emotional distress on Ms. Birchmore to go to trial. Accordingly, W. Farwell's motion to dismiss count eight will be denied. Second, defendant Divine contends that plaintiffs' negligent infliction of emotional distress claim must be dismissed as it pertains to him because the amended complaint purportedly is devoid of any specific facts, which demonstrate that he actually engaged in any grooming or abuse of Ms. Birchmore. This argument conveniently ignores the contents of the I.A. report, which is incorporated in the amended complaint by reference. As the court has already explained, the I.A. report provides substantial and frequently detailed factual support for the proposition that Divine, along with defendants, M. Farwell and W. Farwell engaged in a continuous pattern of grooming and sexually abusive behavior directed towards Ms. Birchmore, beginning when she was a minor. The evidence provided viewed in the light most favorable to plaintiff is more than sufficient to sustain her claim against Divine for negligently inflicting emotional distress on Ms. Birchmore, C. Payton 386 Mass at 557. Accordingly, Divine's motions to dismiss count eight also will be denied. Third, the town contends that it's immune from plaintiffs' negligent infliction of emotional distress claim under Section 10(j) of the M.T.C.A. because its alleged negligence was not the original cause of Ms. Birchmore's suicide. The court previously considered and rejected this argument in deciding the town's motion to dismiss plaintiff's negligent supervision claim. See discussion, recount, supra, the same reasoning, and the same result applied a plaintiff's claim against the town for negligent infliction of emotional distress on Ms. Birchmore. Accordingly, the town's motion to dismiss count eight also will be denied. Lastly, defendant heals motion to dismiss count eight as it pertains to him will be allowed because the court already has determined that heal has no legal duty to protect Ms. Birchmore from foreseeable harm and therefore cannot be deemed to have acted negligently as a matter of law. See Coughlin, 54 Mass Appeals Court at 651. 10. Count nine, alleging civil rights violations by all defendants pursuant to U.S. Code 42, Section 1983. Count nine, a plaintiff's amended complaint alleges, pursuant to U.S. Code 42, Section 1983, that all defendants violated Ms. Birchmore's civil rights by grooming and/or sexually abusing Ms. Birchmore over the period of years or by permitting such conduct to occur under the color of law, amended complaint 64 through 73. Each of the defendants has moved to dismiss this claim and as before the court addresses each defendant's motion in turn. First defendant W. Farwell contends that plaintiff's Section 1983 claim must be dismissed as it pertains to him because he did not act under the color of law and no constitutional violations occurred. The court disagrees. A defendant acts under color of law if he exercises power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. West vs. Atkins 487, U.S. 42, and 49, 1988. Here the amended complaint alleges that W. Farwell began his inappropriate conduct towards Ms. Birchmore while he was an officer and educator and she was a youthful participant in the Stoughton PD Explorer's program. A amended complaint 11, 14, and 20. If proven these allegations are sufficient to establish that W. Farwell acted under color of law, West 487, U.S. at 49. Furthermore, sexual assault is a sufficient violation of an individual's federal and constitutional rights to support a claim under Section 1983. C. Bennett vs. Pippin 74, F.3D 578, 586, Fifth Circuit, 1996. Sheriff's use of authority over murder investigation to core sex with female suspect violated Section 1983. For these reasons, W. Farwell's motion to dismiss count number nine will be denied. Second defendant divine contends, much as he has done previously, that plaintiff's Section 1983 claim must be dismissed as it pertains to him because her amended complaint purportedly lacks sufficient factual allegations to support the claim. The court again rejects this all-purpose argument for the reasons previously stated. C.E.G. discussion count eight. Accordingly, divine's motion to dismiss count number nine will be denied. Third, the town contends that the plaintiff's Section 1983 claim must be dismissed as it pertains to the town because the three-year statute of limitations purportedly has expired. Plaintiff purportedly has not alleged any constitutional violation and there purportedly is no evidence that the town was deliberately indifferent to Ms. Burchmore's rights. None of these arguments, however, provide grounds to dismiss plaintiff's Section 1983 claim at this time. For example, the court cannot presently determine whether plaintiff's Section 1983 claim has time barred because the claim potentially is subject to the federal discovery rule. Under the federal discovery rule, a cruel of a tort claim is delayed until the plaintiff knows or should know of the acts comprising the violation. Specifically, a plaintiff must or should be aware of both the fact of his or her injury and the injury is likely caused connection with the putative defendant. Oollette versus Boo Pray, 977, F.3D 127/136 for a circuit 2020. Whether Ms. Burchmore knew or should have known about her injuries and their causal connection to defendants allegedly wrongful conduct is a factual question that is not appropriate for resolution on a motion to dismiss. See, Patzos versus 1st Albany Corp. 433 Mass, 323, 329, 2001. Factual disputes concerning when a plaintiff knew or should have known of his cause of action are to be resolved by the jury. Similarly, it's not possible to determine at this early stage of the case whether the town was deliberately indifferent to Ms. Burchmore's rights. Deliberate indifference can manifest itself in an unofficial custom as evidenced by widespread action or inaction, McElroy for a city of Lowell, 741 F.SUPP 2D 349, 353, Mass 2010. And once again, there is evidence in the I.A. report that other stouton P.D. personnel were aware, well prior to Ms. Burchmore's death, that she was involved in an on-again, off-again sexual relationship with at least them far well. I.A. report at 41. Whether the town's in action, in the face of this information, or any other relevant information it may have possessed, constitutes deliberate indifference is another question that the court cannot resolve on a motion to dismiss. C.E.G. Watkins v. Gosh, 2011 W.L. 598-1006 at 5. Generally, the affining of deliberate indifference is a fact-intensive assessment that cannot be resolved on a motion to dismiss. For these reasons, the town's motion to dismiss, count #9 will be denied. Lastly, the defendant heals motion to dismiss count #9, as it pertains to him, will be allowed because his single, consensual, sexual encounter with Ms. Burchmore, when she was an adult, cannot be said to have occurred under color of law, and therefore, cannot serve as the basis for imposing liability on heel under section 1983. C. West 487 U.S. at 49. Hello, it is Ryan, and we could all use an extra bright spot in our day, couldn't we? Just to make up for things like sitting in traffic, doing the dishes, counting your steps, you know, all the mundane stuff. That is why I'm such a big fan of Chumba Casino. Chumba Casino has all your favorite social casino style games that you can play for free anytime, anywhere with daily bonuses. So sign up now at Chumba Casino dot com. That's Chumba Casino dot com sponsored by Chumba Casino. No purchase necessary. VGW group for prohibited by law 18 plus terms and conditions apply. 11. Count 10. Alleging civil conspiracy on the part of defendants, W. Farwell, divine, and heel. Count 10 of plaintiffs amended complaint alleges and relevant part that defendants W. Farwell, divine and heel, along with defendant M. Farwell, unlawfully conspired and worked in concert with each other to coerce and manipulate Ms. Burchmore into engaging in illicit sexual activities, amended complaint at 76. It further alleges that the actions of the defendants were particularly coercive due to their position as officers. The Supreme Judicial Court recently stated that mass law recognizes two distinct theories of liability under the umbrella term of civil conspiracy, concerted action conspiracy, and true conspiracy based on co-conspirators exerting some peculiar power of coercion. Green vs. Philip Morris, USA, incorporated 491, mass 866, 871, 2023. The former theory applies to a common plan to commit a tortious act where the participants know of the plan and its purpose and take affirmative steps to encourage the achievement of the result. The latter theory requires proof that the alleged conspirators agreed to accomplish an unlawful purpose or a lawful purpose by unlawful means and then caused harm to plaintiff via some peculiar power of coercion that they would not have had had they been acting independently. And Farwell argues that Count 10 must be dismissed as against him because the amended complaint does not allege that there was a common plan among the defendants to commit a tort or to coerce Ms. Burchmore. The vine similarly contends that plaintiffs' allegations are insufficient to support a claim for civil conspiracy. These arguments, however, ignore the plain language of the amended complaint, which is previously noted clearly states that W Farwell and Farwell and the vine worked in concert with each other to coerce and manipulate Ms. Burchmore into engaging in illicit sexual activities and that these defendants held particular sway over Ms. Burchmore due to their positions as officers, amended complaint 76 and 77. Defendants arguments also ignore evidence in the I.A. report that M. Farwell actively solicited Ms. Burchmore to have sex with some people at the department, from which a jury reasonably could infer that M. Farwell, W. Farwell and the vine coordinated their alleged sexual encounters with Ms. Burchmore. I.A. report at 25. Taken together, the allegations and information cited, viewed in the light most favorable to plaintiff are sufficient to sustain her claim against W. Farwell and the vine for a civil conspiracy. C. Green, 491, mass at 871, 875 and 10. Accordingly, W. Farwell and the vine's motions to dismiss Count 10 will be denied. Defendant Heel, on the other hand, cannot be held liable for civil conspiracy as a matter of law because plaintiffs own admission at oral argument. Heel did not work in concert with or by agreement with any other defendant in arranging his single consensual sexual encounter with Ms. Burchmore when she was an adult. Accordingly, Heel's motion to dismiss Count 10 as it pertains to him must be allowed. 12. Other pending motions. The court will allow W. Farwell's motion to dismiss Heel's cross claims against him for contribution and identification. Heel only could obtain contribution from W. Farwell if he was found to be jointly liable in tort with W. Farwell for Ms. Burchmore's injuries. C. G. L. C. 231 B. Section 1A, which no longer can occur because the court is dismissing all of the plaintiff's claims against Heel. Similarly, Heel only could obtain identification from W. Farwell if he were found to be "part or liable for W. Farwell's alleged wrongful acts." C. E. G. Ferreira vs. Chrysler Group. 468, Mass. 336, 334, 2014. The right to identity is limited to those cases where the person seeking identification is blameless, but is held "derivatively or vicariously liable for the wrongful act of another." But plaintiff's claims against Heel are based on Heel's own physical interactions with Burchmore, not Farwell's. Thus Heel has no right to be identified by W. Farwell as a matter of law. C. Decker vs. Black and Decker, manufacturing company, 389, Mass. 3541, 1983. The court takes no action on defendant Heel's motion to sever claims and his motion for separate trial as his decision and order, which dismisses, all of plaintiff's claims against Heel renders those motions moot order. For the foregoing reasons, defendant Joshua Heel's motion to dismiss is allowed as to all counts of plaintiff's amended complaint. Defendant William Farwell's motion to dismiss is allowed as to count. Seven of plaintiff's amended complaint and as to Heel's cross claims for identification and contribution. W. Farwell's motion to dismiss is denied as to all remaining counts of the amended complaint. Defendant Robert Levine's motion to dismiss is allowed as to the count. Seven of plaintiff's amended complaint. His motion to dismiss is denied as to all remaining counts of the amended complaint. Defendant Town of Stoutons motion to dismiss is allowed as to count. End count. Six of plaintiff's amended complaint. The town's motion to dismiss is denied as to the remaining counts of the amended complaint. As allowed to a sponty by the court, count seven also will be dismissed as to defendant M. Farwell. So ordered this 16th day of February 2024. Alright, so that document has set the table for us as we move forward talking about what happened to Sandra Birchmore, because I think it's pretty relevant considering what's going on with Karen Reed and how bad that investigation was. So I think this is one of those stories that's on its way to blowing up, and rightfully so, because if these allegations are true against these officers, and it looks like the internal affairs report is backing these allegations up, then all of them need to be in prison. And anyone that was involved in the investigation that might have helped them? Well, you know, they belong in prison too. So we're going to continue to follow along with this one. And now that we have the context about what's going on, we're going to dive into some articles to add even more context and some more meat to the bone. But that's going to do it for this one. All of the information that goes with this episode can be found in the description box. Hey, it is Ryan Seacrest. There's something so thrilling about playing Chumba Casino. Maybe it's the simple reminder that with a little luck, anything is possible. Chumba Casino.com has hundreds of social casino style games to choose from with new game releases each week. Play for free anytime, anywhere for your chance to redeem some serious prizes. Join me in the fun. Sign up now at Chumba Casino.com sponsored by Chumba Casino. No purchase necessary. VGW Group void where prohibited by law, 18 plus terms and conditions apply.