Outlaw v. City of Hartford

• Decision Date: 07 March 2018
• Docket Number: Docket No. 16-480(L), 16-635(XAP),August Term, 2016
• Citation: 884 F.3d 351
• Parties: 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.
• Court: U.S. Court of Appeals — Second Circuit

884 F.3d 351

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.^*

Docket No. 16-480(L), 16-635(XAP)

August Term, 2016

United States Court of Appeals, Second Circuit.

Argued: January 17, 2017

Decided: March 7, 2018

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.

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 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 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 1538230, at *3-*6, *12-*14. The court granted the motions to dismiss Outlaw's other constitutional and state-law claims; however, following a motion by Outlaw for reconsideration, it reinstated the state-law claims against Gordon and Allen for assault and battery.

B. The Trial

In 2016, Outlaw's surviving constitutional and common-law tort claims against Allen and Gordon were tried to a jury, which heard two versions of the December 2004 incident: one from Outlaw and several bystanders, the other from Allen and Gordon.

1. Outlaw's Testimony

Outlaw testified that on the night of December 17, 2004, he drove to downtown Hartford to meet his friend Nick Sackandy at a restaurant on Union Place (the "Restaurant") to discuss a proposed business venture. Outlaw arrived around 10 p.m., drank most of one beer, and left around 11:00 or 11:15. As he was returning to his car, walking south on Union Place toward its intersection with Allyn Street, Outlaw heard his name being called from a double-parked taxi; the driver was his high school friend Anthony Carroll. While Outlaw was crossing the street toward the taxi, a Ford Taurus was inching north on Union Place toward the taxi, and the Taurus's driver—who Outlaw later learned was Detective Gordon—shouted at Outlaw, "hey, mother fucker" (Trial Transcript January 4, 2016 ("Jan. 4 Tr."), at 27). Thinking the driver might be an acquaintance, Outlaw returned the greetings (characterized at trial as "inner city" "pleasantries" (Trial Transcript January 5, 2016 ("Jan. 5 Tr."), at 50; Jan. 4 Tr. 54) ), then walked around to the driver side of the taxi. As Outlaw was speaking with the rear-seat passengers, who were also friends of his, the Taurus, which bore no markings to indicate that it was a police vehicle, pulled up behind the taxi; Gordon, who had not identified himself as a police officer, summoned Outlaw to the Taurus. Outlaw waved him off. The Taurus then slowly moved past the taxi and stopped two or three car lengths ahead.

Gordon, dressed in plain clothes, jumped out of his car and approached Outlaw "aggressively" (Jan. 5. Tr. 59), carrying a black object that Outlaw thought was a gun. Gordon kicked Outlaw in the stomach, which did not hurt him but sent him stumbling backward. (See id . at 63; Jan. 4 Tr. 36-37.) Gordon kicked again toward Outlaw, but Outlaw blocked that kick with his hands; however, at almost the same instant Outlaw was struck on the back of his head with "a bat-like object" (Jan. 4 Tr. 37), which he eventually learned was a police baton wielded by Allen.

Outlaw fell to the ground, yelling for help. While on the ground on his back or curled into a fetal position, he was repeatedly struck in the head, arms, and legs with a baton and was kicked in the back and stomach. Outlaw had not said anything to Gordon after their initial exchange of "pleasantries" (Jan 5. Tr. 56-57); he had never moved in Gordon's direction, never raised his hand, and never attempted to punch or kick Gordon; Outlaw's only attempt to defend himself was to curl up and try to cover targeted areas of his body. He testified that while he was down, Gordon kicked him in the face; and when Outlaw tried to cover his face and head, Allen hit him in the right knee with the baton, breaking the kneecap, leaving Outlaw unable to move his leg, and causing him the most pain that he (a former high school, college, and professional football player) had ever experienced.

Outlaw testified that Gordon never displayed a badge; and during the incident, neither Gordon nor Allen ever identified himself as a police officer. Outlaw had the impression that there were people other than Allen and Gordon hitting and...