884 F.3d 351 (2nd Cir. 2018), 16-480(L), Outlaw v. City of Hartford

Docket Nº:16-480(L), 16-635(XAP)
Citation:884 F.3d 351
Opinion Judge:KEARSE, Circuit Judge:
Party Name:Tylon C. OUTLAW, Plaintiff-Appellant-Cross-Appellee, v. CITY OF HARTFORD, Defendant-Appellee, Officer Michael Allen, in his individual capacity, Defendant-Cross-Appellant, Detective Troy Gordon, in his individual capacity, Defendant.
Attorney:RAYMOND J. RIGAT, Clinton, Connecticut, for Plaintiff-Appellant-Cross-Appellee. NATHALIE FEOLA-GUERRIERI, Senior Assistant Corporation Counsel, Hartford, Connecticut, for Defendant-Appellee. WILLIAM J. MELLEY III, Hartford, Connecticut, for Defendant-Cross-Appellant.
Judge Panel:Before: KATZMANN, Chief Judge, KEARSE and LIVINGSTON, Circuit Judges.
Case Date:March 07, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 351

884 F.3d 351 (2nd Cir. 2018)

Tylon C. OUTLAW, Plaintiff-Appellant-Cross-Appellee,

v.

CITY OF HARTFORD, Defendant-Appellee,

Officer Michael Allen, in his individual capacity, Defendant-Cross-Appellant,

Detective Troy Gordon, in his individual capacity, Defendant.[*]

Nos. 16-480(L), 16-635(XAP)

United States Court of Appeals, Second Circuit

March 7, 2018

Argued: January 17, 2017

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Appeal by plaintiff from so much of a judgment of the United States District Court for the District of Connecticut, Geoffrey W. Crawford, Judge, as granted summary judgment dismissing his claims against defendant City of Hartford (the "City"), brought principally under 42 U.S.C. § 1983, for failing to supervise its police officers with respect to appropriate use of force; cross-appeal by defendant police officer Michael Allen from so much of the judgment as orders him to pay plaintiff $454, 197 in damages following (a) express jury findings that Allen injured plaintiff by intentionally or recklessly using excessive force, in violation of the United States Constitution and the Constitution of the State of Connecticut, and (b) the court's ruling that Allen is not entitled to qualified immunity. Plaintiff contends principally that the district court erred in granting summary judgment in favor of the City, given evidence he proffered to show deliberate indifference by the City to numerous civilian complaints of excessive force by its police officers. Defendant Allen contends principally that he is entitled to qualified immunity on the constitutional claims because of the jury's verdict in his favor on plaintiff's claim against him for assault and battery in violation of state law, and that factual findings by the district court--which the parties had agreed should resolve all aspects of his qualified immunity defense--should be set aside as inconsistent with factual findings he imputes to the jury.

On the appeal, we conclude that the district court did not err in granting summary judgment in favor of the City on plaintiff's municipal liability claims on the ground that the evidence proffered by plaintiff was insufficient to permit an inference of deliberate indifference. We conclude that the cross-appeal is without merit given that as to an affirmative defense of qualified immunity, the burden is on the defendant to prove the necessary factual predicates by a preponderance of the evidence; that in order to avoid having the court instruct the jury that he had that burden, Allen chose not to have submitted to the jury the fact questions as to which he now wants favorable answers presumed; and that the pertinent factual findings made by the district court are not inconsistent with the jury's answers to the questions that were posed.

RAYMOND J. RIGAT, Clinton, Connecticut, for Plaintiff-Appellant-Cross-Appellee.

NATHALIE FEOLA-GUERRIERI, Senior Assistant Corporation Counsel, Hartford, Connecticut, for Defendant-Appellee.

WILLIAM J. MELLEY III, Hartford, Connecticut, for Defendant-Cross-Appellant.

Before: KATZMANN, Chief Judge, KEARSE and LIVINGSTON, Circuit Judges.

OPINION

KEARSE, Circuit Judge:

Plaintiff Tylon C. Outlaw appeals from so much of a judgment of the United States District Court for the District of Connecticut, Geoffrey W. Crawford, Judge

[**], as summarily dismissed his claims against defendant City of Hartford (the " City" ), brought principally under 42 U.S.C. § 1983, alleging deliberate indifference in the supervision of police officers with respect to appropriate use of force, and seeking to hold the City responsible for the use by defendant Michael Allen, an

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officer in the Hartford Police Department (" HPD" ), of excessive force to arrest Outlaw, in violation of his rights under the Fourth Amendment to the United States Constitution and under the Constitution of the State of Connecticut. The district court granted summary judgment to the City, dismissing those claims on the ground that Outlaw proffered insufficient evidence to permit an inference that the City had a policy or custom of failing to supervise its police officers in the use of force or that the City’s customs or policies caused Outlaw’s injuries. See

Outlaw v. City of Hartford, No. 3:07-cv-01769, 2015 WL 1538230, at *6-*12 (D.Conn. Apr. 6, 2015) (" Outlaw I " ). Outlaw contends that summary judgment was inappropriate, given the evidence he proffered to show that the City had exhibited deliberate indifference to numerous civilian complaints of excessive force by its police officers.

Allen cross-appeals from so much of the district court’s judgment as orders him to pay Outlaw $454,197 in damages following express jury findings that Allen injured Outlaw by intentionally or recklessly using excessive force, in violation of the United States and Connecticut Constitutions. Allen contends that he is entitled to qualified immunity on those claims in light of the jury’s verdict against Outlaw on Outlaw’s claim for assault and battery in violation of state law, and that posttrial factual findings by the district court, made in ruling that Allen is not entitled to qualified immunity for the constitutional violations, see

Outlaw v. City of Hartford, No. 3:07-cv-01769, 2016 WL 591753 (D. Conn. Feb. 12, 2016) (" Outlaw II " ), should be set aside as inconsistent with findings that Allen imputes to the jury.

On the appeal, we conclude that the district court did not err in ruling that the evidence proffered by Outlaw in support of his municipal liability claims was insufficient to permit an inference of deliberate indifference on the part of the City to the use of excessive force by HPD officers. On the cross-appeal, we conclude that Allen’s contentions are without merit given that, as qualified immunity is an affirmative defense, the burden was on Allen to prove by a preponderance of the evidence any factual predicates necessary to establish that defense; that in order to avoid having the court instruct the jury that he had that burden, Allen chose not to have submitted to the jury the fact questions as to which he now wants favorable answers presumed; that the jury’s answers to the interrogatories accompanying its verdict did not imply the factual findings that Allen imputes to the jury; and that the pertinent factual findings by the district court are not inconsistent with the jury’s answers to questions that were posed.

I. BACKGROUND

On the night of December 17, 2004, Allen and HPD Detective Troy Gordon confronted and arrested 30-year-old Tylon Outlaw on a downtown street in Hartford, Connecticut. Outlaw was charged with breach of peace, being intoxicated in the roadway, threatening a police officer, and assault on a police officer. The charges were resolved in 2005 by Outlaw’s entry of an Alford plea to the offense of creating a public disturbance, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), which is " ‘simply a guilty plea, with evidence in the record of guilt, typically accompanied by the defendant’s protestation of innocence and his or her unequivocal desire to enter the plea,’ " Outlaw I, 2015 WL 1538230, at *2 n.1 (quoting Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (other internal quotation marks omitted) ). The arrest occurred after Allen had repeatedly struck Outlaw with a police baton, bloodying his

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head in several places and breaking his knee.

Outlaw brought the present § 1983 action in 2007 against Allen, Gordon, and the City, alleging principally that Allen and Gordon had caused his injuries by using excessive force in violation of the Fourth Amendment, and that the City was liable for their conduct because it had a policy or custom of deliberate indifference in failing to train and supervise its police officers as to appropriate use of force during an arrest. Outlaw also asserted claims under the Connecticut Constitution and Connecticut common law.

A. Pretrial Rulings

Following years of discovery, defendants moved for summary judgment dismissing the complaint. In Outlaw I, the district court granted the motion to dismiss the Fourth Amendment claim and similar state-law claims against the City, ruling, to the extent pertinent to Outlaw’s appeal, that the evidence Outlaw proffered was insufficient to establish that the City had a policy or custom of indifference that caused Outlaw’s injuries (see Part III below).

The district court denied the individual defendants motions for summary judgment dismissing the Fourth Amendment and Connecticut constitutional claims of excessive force and the state-law claims of intentional infliction of emotional distress, ruling that there were genuine issues of material fact to be tried. See Outlaw I, 2015 WL...

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