BOSTON -- Jury deliberations will resume today in the latest federal court battle in the ongoing legal tug-of-war between Billerica police and the family of Brian and Michelle Kennedy.
In their federal lawsuit in U.S. District Court, Mitchell and Dylan Kennedy, the sons of Michelle and Brian Kennedy, Sr., sued the town of Billerica and Billerica police, alleging their civil rights were violated during a Sept. 7, 2007, incident at a Wendy's restaurant in Billerica.
Attorneys Andrew Fischer and Frederick Gilgun, representing the Kennedy sons, claim Billerica police violated their clients' state and federal rights by arresting them without probable cause, fabricating evidence and then using fabricated evidence to "maliciously'' prosecute them in retaliation for winning a civil-rights lawsuit against the police in April 2007.
In April 2007, the Kennedys won a $600,000 civil-rights award, which was later cut in half, against two of the 28 officers initially named in the Kennedy's $10 million 2004 lawsuit. The Kennedys, through their attorneys, argued the Billerica police operated under a "blue code" of silence when it came to the harassment and intimidation of the Kennedy family.
But in a July 2010 decision, the U.S. First Circuit Court of Appeals ruled that due to errors at trial and violations of state law, the civil-rights awards issued to Brian and Michelle Kennedy and their three sons during two trials in federal court in 2007 must be vacated.
The justices did uphold the $2,000 in damages against Billerica police Officer Scott Parker after he admitted that he verbally assaulted Michelle Kennedy, swearing at her during a March 31, 2002, incident over skateboarding ramps.
The latest lawsuit focuses on a Sept. 7, 2007, incident at a Wendy's in Billerica.
In a Sun article on the incident, Billerica police reported they were trying to disperse a large crowd loitering outside the restaurant on Boston Road, when there was a scuffle that sent one officer to the hospital and led to three arrests.
Billerica police said two officers were trying to break up the crowd at Wendy's following a Friday night Billerica-Burlington football game at nearby Calabrese Field. A fight broke out about 10:02 p.m., and the officers called for backup. Before other officers arrived, Officer Robert Moran tried to end the fight and was knocked down, police said. Moran was then punched and kicked in the head, police said.
He was transported to Lowell General Hospital, where he was treated for his injuries and released, police said.
In the lawsuit, Fischer alleges Mitchell Kennedy, then 17, and his younger brother, Dylan, were two of 100 students gathering outside Wendy's after a high-school football game.
A fight broke out between people not associated with the Kennedys. Police chased after the two combatants, but at least one escaped. When Moran returned to the crowd, he allegedly confronted Mitchell Kennedy and asked him if he had anything to say. Moran and other officers allegedly assaulted Mitchell and Dylan Kennedy, according to the lawsuit.
Ultimately the charges against Mitchell Kennedy were dismissed, but Dylan Kennedy was found guilty of assault and resisting arrest. His lawyers have a pending motion for a new trial and an appeal of the verdict.
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