691 F.3d 72 (2nd Cir. 2012), 10-4731-cv (L), Jones v. Town of East Haven

Docket Nº:10-4731-cv (L), 10-4894-cv.
Citation:691 F.3d 72
Opinion Judge:LEVAL, Circuit Judge:
Party Name:Emma JONES, as Administratrix of the Estate of Malik Jones and as Guardian Ad Litem for Priya Jones, Plaintiff-Appellee-Cross-Appellant, v. TOWN OF EAST HAVEN, Defendant-Appellant-Cross-Appellee.
Attorney:Nancy Fitzpatrick Myers, (Steven J. Errante, on the brief), Lynch, Traub, Keefe & Errante, P.C., New Haven, CT, for Defendant-Appellant-Cross-Appellee. David N. Rosen, David Rosen & Associates, P.C., New Haven, CT, for Plaintiff-Appellee-Cross-Appellant.
Judge Panel:Before: JOHN M. WALKER, JR., LEVAL, POOLER, Circuit Judges.
Case Date:August 01, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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691 F.3d 72 (2nd Cir. 2012)

Emma JONES, as Administratrix of the Estate of Malik Jones and as Guardian Ad Litem for Priya Jones, Plaintiff-Appellee-Cross-Appellant,


TOWN OF EAST HAVEN, Defendant-Appellant-Cross-Appellee.

Nos. 10-4731-cv (L), 10-4894-cv.

United States Court of Appeals, Second Circuit.

August 1, 2012

Argued: Jan. 18, 2012.

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[Copyrighted Material Omitted]

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Nancy Fitzpatrick Myers, (Steven J. Errante, on the brief), Lynch, Traub, Keefe & Errante, P.C., New Haven, CT, for Defendant-Appellant-Cross-Appellee.

David N. Rosen, David Rosen & Associates, P.C., New Haven, CT, for Plaintiff-Appellee-Cross-Appellant.

Before: JOHN M. WALKER, JR., LEVAL, POOLER, Circuit Judges.

LEVAL, Circuit Judge:

Defendant, the Town of East Haven (hereinafter " Town" ), appeals from the judgment after a jury trial of the United States District Court for the District of Connecticut (Thompson, J. ), awarding damages to Plaintiff under 42 U.S.C. § 1983 for the killing of her son by an East Haven police officer. The Town contends it was entitled to judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure because Plaintiff's evidence failed to satisfy the standard of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for municipal liability. In 1997, Malik Jones, an African-American male, was shot and killed by Officer Robert Flodquist, a member of the East Haven Police Department (hereinafter " EHPD" or " Department" ). Plaintiff Emma Jones, who is the mother of Malik Jones, filed suit against the Town, Officer Flodquist, and Officer Gary DePalma, pursuant to Section 1983, alleging numerous claims, including that the Town's custom, policy, or usage of deliberate indifference to the rights of black people caused the killing of her son in violation of the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. At trial, the jury found in favor of the two police officers, but found the Town liable. The district court denied the Town's motion for judgment as a matter of law and entered judgment against it. On appeal, the Town contends that Plaintiff's evidence was legally insufficient to demonstrate a custom,

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policy, or usage of deliberate indifference which caused Jones's death. We agree that the evidence was insufficient.1 Accordingly, we reverse the judgment in Plaintiff's favor and direct the entry of judgment for the Defendant Town.


Plaintiff's evidence at trial was as follows:

A. Shooting of Malik Jones

On April 14, 1997, shortly after 6 p.m. in East Haven, Connecticut, Malik Jones was driving an Oldsmobile Cutlass with Samuel Cruz, also an African-American male, in the passenger seat. Jones was followed by Officer Flodquist, in a police department vehicle, who reported to his dispatcher that he was trying to catch up with the Oldsmobile. Jones then made a U-turn and began heading in the direction of neighboring New Haven. Flodquist informed the dispatcher that the driver of the Oldsmobile was " taking off" on him. Officer DePalma of the EHPD joined the pursuit in another vehicle. The officers followed the Oldsmobile on to, and off of, Interstate 95, and into New Haven.

After entering New Haven, Jones lost control of the Oldsmobile and veered into a vacant lot off Grand Avenue, made a semi-circle, and then exited the lot back onto Grand Avenue. The Oldsmobile came to a stop in the westbound lane of Grand Avenue when its path was blocked by Flodquist's and DePalma's police vehicles. Flodquist approached the driver's side of the vehicle with his weapon drawn and used the butt of his gun to break the driver's window.

The witnesses' testimony differed on exactly what happened between the time the Oldsmobile stopped on Grand Avenue and the shooting. They agreed on several facts but disagreed as to the sequence. The witnesses agreed that after Jones came to a stop, when his way was barred by the police vehicles, Jones shifted into reverse. The Oldsmobile moved backwards, in a circular path. At some point Flodquist was in danger of being hit by the front end of the retreating Oldsmobile, as it swerved out to the side. Forensic evidence demonstrated that Flodquist fired four shots after the Oldsmobile had started moving in reverse. Jones was pronounced dead at the scene. It was undisputed that neither Jones nor Cruz was

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armed. It is also undisputed that Flodquist's gun could hold twelve bullets, and after the shooting only seven bullets remained in the weapon. The witnesses did not agree on whether Flodquist fired four or five shots or exactly when he fired the first shot.

Flodquist testified that he was in the path of the moving car and would have been struck by it if he had not moved. He testified that he believed the driver of the car was trying to run him over, which is why he began shooting. He testified that he fired only four shots, all of which were fired after the Oldsmobile started moving on its backwards circular path.2

Plaintiff contended that Flodquist fired five shots, and that he fired the first shot immediately after breaking the driver's side window of the Oldsmobile, before the Oldsmobile began moving in reverse, and before any issue arose of Flodquist's ability to get out of the retreating car's path. The passenger Cruz testified, with support from other witnesses, that the car began moving in reverse only after Jones had been shot.

A witness testified that after the shooting, DePalma and another EHPD Officer, Ranfone, left Jones face down on the ground with his feet inside the car and his hands cuffed behind his back. Another witness testified that Ranfone approached a dark-skinned Hispanic man who had witnessed the shooting and told him " You didn't see nothing. Now get out of here."

B. Evidence Relating to Liability of the Town

To establish liability of the Town, Plaintiff contended that the Town had a custom, policy, or usage of deliberate indifference to the rights of black people. The evidence on that question was as follows.

1. East Haven

James Criscuolo, who was the Department's Chief of Police from May 1993 until he retired in July 1998, testified about the policies and practices of the EHPD. Criscuolo testified that in 2000 East Haven's population was approximately 1.4% African-American and that during his time as Chief, the Department was all-white. Criscuolo testified that the Department was covered by the Town's policy prohibiting discrimination on the basis of race or color. He also testified that during his tenure as Chief, there had never been a formal complaint alleging that the Department's officers engaged in racial profiling.

2. Shane Gray

Evidence was received relating to Officer Flodquist's apprehension of Shane Gray, an African-American male, on September 15, 1991. That evening an East Haven resident was robbed at gunpoint on Eastern Circle in New Haven. The New Haven Police Department sent out a bulletin to surrounding departments that three unknown black males in their twenties were wanted for robbery with a firearm. The bulletin also stated the perpetrators had fled the scene in a light blue Oldsmobile Sierra and provided the vehicle's license plate number.

Gray testified that he exited his residence in New Haven that evening and saw two of his neighbors taking joyrides in a car on Eastern Circle. They allowed Gray to take the car for a ride. As Gray approached an intersection in the car (which matched the description given in the police bulletin), he saw two EHPD cruisers in front of him blocking the road. Gray panicked

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and jumped out of the car while it was still moving and ran into a nearby field. Flodquist pursued Gray across the field in his police cruiser. Gray testified that, as he ran across the field, Flodquist's cruiser caught up to him and hit him. Once he was hit, Gray rolled up onto the hood of the cruiser. The cruiser then slid into a ditch. Gray rolled off the hood of the cruiser, jumped up, and ran out of the ditch. Gray looked back and saw that Flodquist had remained in the vehicle. Gray testified that Flodquist then shot at him, without saying " freeze" or providing any other kind of warning. Gray ran to a nearby building, knocked on the door, and laid down on the porch. Officers arrived at the porch, placed Gray in handcuffs, and placed him in an EHPD cruiser. Gray was charged with larceny, carrying a pistol without a permit, interfering with police, and reckless endangerment and was released on bond.

An internal investigation was conducted into whether Flodquist's discharge of his weapon was justified. The investigation was conducted by then-Captain Criscuolo. Flodquist testified that, after the investigation, it was determined that his actions were justified. Gray testified that he was never contacted by the EHPD about the incident. A report of the investigation was destroyed by the EHPD's keeper of records in accordance with state regulations.

3. Donald Jackman

Donald R. Jackman, a Caucasian male, testified about the events surrounding his arrest by EHPD officers in the early morning hours of January 8, 1996. That morning four members of the EHPD— Sergeant Daniel Gilhully, and Officers Robert Nappe, Joseph Peterson, and Ed Vecellio— arrived at Jackman's home after Jackman had made a series of phone calls to the EHPD in which he used profanity and called police officers offensive names. When the officers entered Jackman's home, there was a struggle. While the officers were attempting to handcuff Jackman, they discovered he had a gun. Jackman testified that during the struggle he bit one of the officers on the hand, causing serious injury. Jackman testified that he was then beaten severely about the face and head by the officers, and had several teeth knocked out. At the end of the struggle, when Jackman was facedown on his bed, according to...

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