Esposito v. Buonome

• Decision Date: 09 October 1986
• Docket Number: Civ. No. N-82-93(MJB).
• Citation: 647 F. Supp. 580
• Parties: Joseph ESPOSITO v. Joseph BUONOME et al.
• Court: U.S. District Court — District of Connecticut

647 F. Supp. 580

Joseph ESPOSITO v. Joseph BUONOME et al.

Civ. No. N-82-93(MJB).

United States District Court, D. Connecticut.

October 9, 1986.

John R. Williams, Williams & Wise, New Haven, Conn., for plaintiff.

Hugh Keefe, New Haven, Conn., for defendants.

RULING ON MOTION TO DISMISS PENDENT STATE CLAIMS

BLUMENFELD, Senior District Judge.

Plaintiff, Joseph Esposito, brought this action under 42 U.S.C. § 1983 and state tort law for an alleged excessive use of force by various individual members of the East Haven police force during his arrest on July 26, 1979. The defendants filed a motion to dismiss plaintiff's pendent state claims on the grounds of possible jury confusion. Neither party has requested a hearing on this motion, so it has been resolved on the basis of the papers.

Discussion

In United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Supreme Court indicated that "pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." Id. at 726, 86 S.Ct. at 1139. It is justified by "considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims...." Id. A court should exercise its discretion so as to avoid "needless decisions of state law." Id. In addition, "there may be reasons independent of jurisdictional considerations, such as the likelihood of jury confusion in treating divergent legal theories of relief, that would justify separating state and federal claims for trial" and refusing pendent jurisdiction. Id. at 727, 86 S.Ct. at 1139. See also Moor v. County of Alameda, 411 U.S. 693, 712 (1973).

There is a likelihood of jury confusion in this case because of differences between state and federal law as to liability, as to the availability and calculation of punitive damages, and as to the award of attorney's fees. Each of these will be considered separately.

I. Standards for Liability

Under the Connecticut law of torts, a police officer may be liable for use of excessive force in the course of an arrest if the amount of force used was in excess of that which the officer reasonably believes to be necessary. See Restatement (Second) of Torts § 132 (1965); see also Martyn v. Donlin, 151 Conn. 402, 411 (1964) (officer not liable for death of a suspect if force used was amount he reasonably believed necessary under the circumstances); cf. Conn.Gen.Stat.Ann. § 53a-22 (1985) (use of force reasonably believed to be necessary to effect an arrest is a defense to criminal liability). Thus, the officer may be liable if he did not believe the amount of force was necessary, or if his belief was unreasonable under the circumstances.

The federal civil rights law provides for a different standard of liability. A police officer's use of force only deprives an individual of liberty without due process if the conduct is so excessive that it "shocks the conscience." Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973). To meet this standard, the offending conduct "must do more than `offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically'; it must be such as `to offend even hardened sensibilities,' or constitute force that is `brutal' and `offensive to human dignity.'" Id. at 1033 n. 6 (citations omitted). In deciding whether conduct "shocks the conscience," one should consider "the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Id. at 1033.

Thus, even though federal law looks to the same factors as the common law in deciding whether police conduct was excessive, liability under federal law requires more than mere common law battery or a "push or shove, even if it may later seem unnecessary." Id. at 1033. See Brudney v. Ematrudo, 414 F.Supp. 1187, 1191 (D.Conn.1976) (Connecticut tort law provides for a greater duty of care by police officers than does federal constitutional law); Travers v. Paton, 261 F.Supp. 110, 112 (D.Conn.1966) (constitutional violation requires more than proof of a tort by a state actor); see also McClary v. O'Hare, 786 F.2d 83, 88 (2d Cir.1986) (misuse of governmental authority must transcend bounds of ordinary tort law to establish deprivation of constitutional rights); Shillingford v. Holmes, 634 F.2d 263 (5th Cir. 1981) (some police misuse of force may amount to a tort without rising to the level of a constitutional violation); Williams v. Kelley, 624 F.2d 695 (5th Cir.1980) (protection of federal rights is "far less extensive than that afforded by the common law of battery and negligence"), cert. denied, 451 U.S. 1019, 101 S.Ct. 3009, 69 L.Ed.2d 391 (1981).

II. Punitive Damages

Connecticut and federal law also differ on the availability and measurement of punitive damages. Under Connecticut law, so-called "punitive damages" may be awarded if the conduct showed "reckless indifference to rights of others or an intentional and wanton violation of those rights." Vandersluis v. Weil, 176 Conn. 353, 358 (1978); Collens v. New Canaan Water Co., 155 Conn. 477, 489 (1967). These damages are limited to the "costs of litigation, less taxable costs," Vandersluis, 176 Conn. at 358, and must be determined by the trier of fact on proof of litigation expenses, id. at 359; see also Gagne v. Town of Enfield, 734 F.2d 902, 904-05 (2d Cir.1984). The purpose of such damages is "not to punish the defendant for his offense, but to compensate plaintiff for his injury." Tedesco v. Maryland Casualty Co., 127 Conn. 533, 538 (1941).

Federal law is similar to Connecticut law in that punitive damages are available on proof of "evil motive or intent" or "reckless or callous indifference" to another's rights, but federal law requires that the right violated be one "federally protected." Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1982) (emphasis supplied). Thus, for an award of federal punitive damages there must be a predicate finding that a federal right was violated, and a finding of evil intent or callous disregard in the violation of that right. Though intentional battery may justify the award of punitive damages under state law, federal law requires more; the defendant must intentionally take action which shocks the conscience. In other words, to justify federal punitive damages the conduct must be intentionally brutal, not just intentionally excessive. If such proof is provided, punitive damages may be awarded "in the jury's discretion `to punish the defendant for his outrageous conduct and to deter him and others like him from similar conduct in the future.'" Id. at 54 (quoting Restatement (Second) of Torts § 908(1)); see also Newport v. Fact Concerts, Inc., 453 U.S. 247, 269 (1980) (punitive damages against officials advance the public's interest in preventing repeated constitutional violations).

III. Attorney's Fees

Connecticut and federal law additionally differ with respect to the award of attorney's fees. Connecticut law generally does not allow the award of attorney's fees absent a statutory or contractual provision for their award, State v. Bloomfield Construction Co., 126 Conn. 349, 359 (1940), or without proof necessary for so-called punitive damages, Vandersluis, 176 Conn. at 358-59. Federal law, through 42 U.S.C. § 1988, generally provides for the award of attorney's fees to plaintiffs who are successful in actions brought under section 1983. Gagne v. Town of Enfield, 734 F.2d 902, 904 (2d Cir.1984); Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982). The determination of the proper amount of such an award under section 1988 is for the court, not the jury. 42 U.S.C. § 1988; see also Gagne, 734 F.2d at 904.

IV. Effect of the Differences

The effect of these differences between federal and Connecticut law is to confuse the jury at several stages of their deliberations. Initially, there is a risk that the jury will be confused by the different standards of liability. Though both Connecticut and federal law look to similar factors, liability under section 1983 requires a finding that the use of force be more than what the officer reasonably believes necessary; it must be so excessive that it "shocks the conscience." This difference, as presently articulated, has been difficult even for courts and commentators to spell out. See Wells & Eaton, Substantive Due Process and the Scope of Constitutional Torts, 18 Ga.L.Rev. 201, 234-36 (1984) (hard to distinguish constitutional torts from common law torts under the "shocks the conscience" test). It is a subtle difference of degree which is "more easily stated than applied." Martin v. Covington, 541 F.Supp. 803, 804 (E.D.Ky.1982) (finding allegations that police forced plaintiff to engage in homosexual solicitation stated a cause of action under § 1983). Therefore, it is likely that a jury of ordinary citizens would find it difficult to distinguish instructions on the common law and federal claims and would be confused.

This probable confusion as to liability is further complicated by the differences between Connecticut and federal law on punitive damages and attorney's fees. Federal law is more generous, but first requires that a federal right be violated. Connecticut law is more restrictive, allowing punitive damages only to the extent of attorney's fees upon proof of the requisite intent. It would be difficult for a jury to keep these different standards separate and distinct, and instructing a jury on both probably would be confusing.

Because these pendent state claims would seriously complicate this case and would probably confuse the jury, it is appropriate to dismiss the state claims. Cf. Moor v....