Brunette v. City of Burlington

• Decision Date: 30 August 2018
• Docket Number: Case No. 2:15-cv-00061
• Parties: BARBARA BRUNETTE and ESTATE OF WAYNE BRUNETTE, Plaintiffs, v. CITY OF BURLINGTON, VERMONT, CHIEF MICHAEL SCHIRLING, CORPORAL ETHAN THIBAULT, and CORPORAL BRENT NAVARI in their individual capacities, Defendants.
• Court: U.S. District Court — District of Vermont

BARBARA BRUNETTE and ESTATE OF WAYNE BRUNETTE, Plaintiffs, v. CITY OF BURLINGTON, VERMONT, CHIEF MICHAEL SCHIRLING,CORPORAL ETHAN THIBAULT, and CORPORAL BRENT NAVARIin their individual capacities, Defendants.

Case No. 2:15-cv-00061

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

August 30, 2018

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

(Doc. 95)

This case arises out of an incident on November 6, 2013, during which two Burlington Police Department ("BPD") officers, Corporal Ethan Thibault and Corporal Brent Navari, responded to the residence of Wayne Brunette and his family based on a report that Wayne Brunette was experiencing a mental health episode. After Wayne Brunette approached Corporal Navari with a shovel, Corporal Thibault shot him four times, causing his death. Wayne Brunette's wife and surviving heir, Barbara Brunette, brings this lawsuit individually and on behalf of the Estate of Wayne Brunette (collectively, "Plaintiffs") asserting claims under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-34, state law claims of assault, battery, negligence, intentional infliction of emotional distress, and damages under Vermont's wrongful death and survival statutes, 14 V.S.A. §§ 1451-55, 1491-92, respectively.

Pending before the court is a motion for summary judgment filed by Defendants City of Burlington, Vermont (the "City"), former BPD Chief Michael Schirling, Corporal Thibault, and Corporal Navari (collectively, "Defendants"). On March 6, 2018, the court heard oral argument. In the course of the hearing, the court granted Defendants leave to file a response to Plaintiffs' statement of undisputed material facts and denied Defendants' motion to strike as moot. On March 22, 2018, Defendants filed their response to Plaintiffs' statement of undisputed material facts. After Defendants filed a notice of supplemental authority, to which Plaintiffs responded, the court took the pending motion for summary judgment under advisement on April 12, 2018.

Plaintiffs are represented by Richard R. Goldsborough, Esq., Steven A. Adler, Esq., and Jennifer E. Agnew, Esq. Tristram J. Coffin, Esq. and Jennifer E. McDonald, Esq. represent Defendants.

I. Procedural History.

On July 27, 2015, Plaintiffs filed their First Amended Complaint, alleging nine causes of action. Counts I and II alleged claims pursuant to 42 U.S.C. § 1983 that Corporal Thibault violated Chapter 1, Article 11 of the Vermont Constitution and the Fourth Amendment of the United States Constitution through the use of excessive force. Count III asserted a claim under Section 1983 that the City and former Chief Schirling failed to train, supervise, and institute policies regarding individuals with mental health issues. Count IV alleged that Defendants violated Title II of the ADA.

In Counts V through IX, Plaintiffs asserted state common law claims for assault and battery against Corporal Thibault (Count V); negligence against Corporal Thibault and Corporal Navari (Count VI); negligent training, hiring, and retention against BPD, former Chief Schirling, and the City (Count VI); loss of consortium against Defendants (Count VII); intentional infliction of emotional distress against Corporal Thibault and Corporal Navari (Count VIII); and a statutory wrongful death and survival action against Defendants (Count IX).

On September 4, 2015, the court granted in part and denied in part Defendants' motion to dismiss the First Amended Complaint. The court dismissed: (1) all claims against the individual defendants in their official capacity; (2) all claims against BPD; (3) all claims against the individual defendants in their individual and official capacitiesunder the ADA; and (4) Plaintiffs' loss of consortium claim set forth in Count VII. The court declined to rule on the issue of qualified immunity, determining that this issue was "best decided on a motion for summary judgment when the facts are more fully developed[.]" (Doc. 33 at 9) (internal quotation marks omitted) (citing Walker v. Schult, 717 F.3d 119, 130 (2d Cir. 2013)).

II. The Undisputed Facts.

A. The Events of November 6, 2013.

On November 6, 2013, at approximately 3:30 p.m., Lawrence Brunette and his wife, Ruthine Brunette, observed their adult son, Wayne Brunette, cutting down a portion of an apple tree with a reciprocating saw in the front yard of their home at 85 Randy Lane, Burlington, Vermont. Wayne Brunette had a history of mental illness, including diagnoses of paranoid schizophrenia and delusional disorder, grandiose type. After he was arrested in 2001, Wayne Brunette spent an unidentified amount of time at Vermont State Hospital due to his mental health. As of November 6, 2013, however, he had not sought treatment for his mental health in almost ten years.

While watching his son cut down the apple tree, Lawrence Brunette believed that Wayne Brunette was out of his mind and "out of control[]" (Doc. 99-5 at 3), although he testified that he "wasn't afraid for [his] life or [his] wife's [life][.]" (Doc. 99-5 at 4.) Lawrence Brunette told his son that he was not allowed to cut down the tree and unplugged the saw. Wayne Brunette then entered the house and went upstairs to have a soda.

At approximately 3:30 p.m., Ruthine Brunette telephoned Wayne Brunette's wife, who was at work, and advised her of what had taken place. Barbara Brunette responded that her husband "ha[d] been acting terribl[y][,]" (Doc. 95-2 at 4), and "if they needed help, . . . call the police" because "[t]he police were there to help." (Doc. 99-6 at 5.) At 4:18 p.m., Ruthine Brunette called BPD's non-emergency number and requested assistance.

Mrs. Brunette: [T]his is Mrs. Brunette on 85 Randy Lane. I've got a problem here with my son that's upstairs. He's gone berserk, I think, and Imean I've got to do something. He's cut my apple tree down out front just now. He's violent and he's just mean. We live downstairs. Him and his wife live upstairs over us. And now he says he owns this whole house and this whole property and everything, which he doesn't. And he's really bad.

Dispatcher: Ok, what is he doing right now m'am?

Mrs. Brunette: Right now I chased him upstairs. He's upstairs in the apartment right now[.]

Dispatcher: Does he have mental health issues?

Mrs. Brunette: Yes he does[.]

Dispatcher: Keep your door locked and I'll send somebody over there.

(Doc. 95-1 at 2-3, ¶ 6.)

At 4:19 p.m., Corporal Thibault and Corporal Navari received a radio call from dispatch while they were parked in separate police cruisers in a parking lot at Ethan Allen Homestead Park. The dispatch call directed the officers to respond to a mental health issue at 85 Randy Lane, informing them that: "(a) the caller lives downstairs and owns the property; (b) the caller's son lives upstairs; (c) the caller's son has been threatening, out-of-control, and destroying property; (d) the caller's son is now in the apartment upstairs; and (e) the caller is downstairs and was advised to stay inside with the door locked." (Doc. 95-1 at 3, ¶ 8.)

Because he was assigned to the New North End, the area in which the incident took place, Corporal Thibault was the primary officer to respond to the call. After receiving it, Corporal Navari testified that he "said something to [Corporal Thibault] probably to the effect of, [s]hit, can't even talk for four or five minutes, and then [Corporal Thibault] said, [y]up." (Doc. 99-11 at 4.) Corporal Navari further recalled that Corporal Thibault stated that he would "talk to the Complain[ant] and you can do what you do best and talk to the other person, [the] other party." Id. When asked in his deposition if that was the extent of the plan, Corporal Navari responded "[p]retty much, if that was a plan." Id. at 5. Similarly, Corporal Thibault acknowledged that "[t]here was no specific -- like an operational plan." (Doc. 99-7 at 22.) He recalled that:

There was nothing formalized. I guess I would describe it as [Corporal Navari] and I had been on calls together for years. I knew his style. He knew mine. We heard the call. I was comfortable going there with him. I think he was comfortable going there with me. There's plans that are already laid into a dispatch that kind of go unspoken. For example, [the primary officer is] . . . the person whose radio number is called first.

Id.

Corporal Thibault estimated that he had responded to twenty or thirty "mental health calls" with Corporal Navari, but that he had also responded to "hundreds of calls" with Corporal Navari that had a "mental health component to it." (Doc. 95-9 at 13, 14.) Prior to this call, neither officer had previously responded to a call or complaint from 85 Randy Lane, and neither officer was familiar with Wayne Brunette. BPD had not interacted with Wayne Brunette since 2003.

On the day of the incident, Corporal Thibault was equipped with a pistol, a baton, pepper spray, a flashlight, and two sets of handcuffs. Neither Corporal Thibault nor Corporal Navari had been issued a Taser. Although BPD had Tasers at the time, it had not fully deployed them "primarily due to cost[.]" (Doc. 116-2 at 3.)

As the officers approached 85 Randy Lane in their cruisers, they did not activate their lights and sirens.¹ Corporal Thibault arrived at the property first. He described the scene as "calm," although he noticed the "destroyed trees" on the front lawn. (Doc. 99-7 at 32.) Ruthine and Lawrence Brunette came out of the house to speak with him. Corporal Thibault described their demeanor as "remotely calm[.]" Id. Corporal Navari arrived moments later and approached the house by way of the driveway.

Corporal Thibault asked Lawrence Brunette if his son was under the care of a particular doctor; if he was on any medications; if he was seeing anyone from theHoward Center for Human Services (the "Howard Center"); and if Wayne Brunette had any weapons or firearms. Lawrence Brunette responded that his son was...