Norton v. City of S. Portland

• Decision Date: 09 December 2011
• Docket Number: No. 2:10–cv–287–GZS.,2:10–cv–287–GZS.
• Citation: 831 F.Supp.2d 340
• Parties: Terrence M. NORTON, in his capacity as Personal Representative of the Estate of Michael Sean Norton, Plaintiff, v. CITY OF SOUTH PORTLAND, et al., Defendants.
• Court: U.S. District Court — District of Maine

831 F.Supp.2d 340

Terrence M. NORTON, in his capacity as Personal Representative of the Estate of Michael Sean Norton, Plaintiff,

v.CITY OF SOUTH PORTLAND, et al., Defendants.

No. 2:10–cv–287–GZS.

United States District Court,

D. Maine.

Dec. 9, 2011.

Elliott L. Epstein, Pickus & Epstein, Mark L. Randall, Randall Law Office, P.A., Portland, ME, for Plaintiff.

Edward R. Benjamin, Jr., Rosie M. Williams, Thompson & Bowie, LLP, Portland, ME, for Defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

GEORGE Z. SINGAL, District Judge.

Before the Court is Defendants' Motion for Summary Judgment (Docket # 12). For reasons explained herein, the Court GRANTS the Motion.

I. LEGAL STANDARD

Generally, a party is entitled to summary judgment if, on the record before the Court, it appears “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S.Ct. 2505. A “material fact” is one that has “the potential to affect the outcome of the suit under the applicable law.” Nereida–Gonzalez v. Tirado–Delgado, 990 F.2d 701, 703 (1st Cir.1993) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505) (additional citation omitted).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004).

Once the moving party has made this preliminary showing, the nonmoving party must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); see alsoFed.R.Civ.P. 56(e). “Mere allegations, or conjecture unsupported in the record, are insufficient.” Barros–Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir.2011) (quoting Rivera–Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir.1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir.2011) (“A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation.”) (citations omitted). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (quoting In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir.1993)).

II. FACTUAL BACKGROUND

Plaintiff Terrence Norton brings this case on behalf of the estate of this son, Michael Norton (“Norton”). Michael Norton died on August 25, 2008 as a result of a gunshot wound received during a standoff with the South Portland Police Department at his residence (hereinafter, the “Norton standoff”). At the time of his death, Michael Norton was a 29–year–old man suffering from a mental illness. He was not a criminal suspect or subject to arrest for any crime.

A. The South Portland Police Department, Its Policies, Practices & Personnel

Defendant City of South Portland operates a police department known under the acronym SPPD. During the relevant time period, the City of South Portland and its employees were provided limited coverage by virtue of the City's membership in the Maine Municipal Association Property & Casualty Pool, a self-funded municipal risk pool.¹

The South Portland Police Department responded to an average of thirty three thousand eight hundred fifty-one (33,851) calls for service per year from 2003 through 2007. South Portland police officers effected nine thousand two hundred sixty-seven (9,267) physical arrests during that same time period, an average of approximately seven hundred ninety-three (793) physical arrests per year. Between 2005 through 2007, South Portland police officers reported using force a total of three hundred and fifty-eight (358) times, or an average of approximately one hundred-nineteen (119) times per year.²

In the five years prior to 2008, the South Portland Police Department investigated ten complaints essentially alleging excessive force by South Portland police officers. None of the ten complaints of excessive force involved the SPPD's Special Response Team. One of the ten complaints was initiated internally by the SPPD's Administrative Review Board, during the department's systematic review of every use of force incident. Three other complaints were initiated by the SPPD's Administration, and two of those were based upon department policy that requires administrative investigation upon the receipt of any Notice of Claim. The other six complaints were based upon external citizen complaints. After investigation and review, three cases resulted in supervisory or disciplinary action, including suspensions. In the other seven complaints, the officers were exonerated.

1. SPPD Personnel Involved in the Norton Standoff

At all times relevant to the Plaintiff's claim, Defendant Edward Googins was employed as Chief of Police for the SPPD, a position he has held for approximately 16 years. As Chief of Police, Chief Googins has ultimate responsibility for approving the standard operating procedures that are used to guide SPPD officers in various circumstances they may face as police officers, as well as implementing the policies via training and supervision of the officers. On the night of August 24, 2008, Googins was at the Norton residence and acted as scene commander.

Likewise, Defendant Todd Bernard was employed as a police officer by the City of South Portland at all times relevant to this case. Todd Bernard began working with the South Portland Police Department in 1990. In August, 2008, he held the rank of Lieutenant and was also the Commander of the SPPD's Special Response Team (SRT), which was a team utilized when special weapons or tactics might be needed. On the night of August 24, 2008, Bernard acted as tactical commander at the Norton residence with responsibility for scene tactics and plans.

Defendant Benjamin J. Macisso was also employed as a police officer by the City of South Portland during the relevant time period, having joined the SPPD in 2003. In April 2005, Officer Macisso joined the SPPD SRT. On the night of August 24, 2008, Officer Macisso was at the Norton residence as a member of the SRT. He ultimately fired the shot that killed Michael Norton.

Officer Macisso made 140 physical arrests between 2005 and 2007. Officer Macisso reported using some level of force on twenty-one (21) occasions during these arrests. Officer Macisso had one excessive force complaint during this time; that complaint was internally generated by the Administrative Review Board and not by an external citizen complaint. Officer Macisso was ultimately disciplined for excessiveuse of force in connection with that complaint.

Scott Corbett was employed as a SPPD Patrol Officer and was also a member of the SRT. As of August 2008, Corbett had worked for SPPD approximately nine years and had been a SRT member for approximately five years.

John Sutton was employed as a SPPD Patrol Officer and was also a member of the SRT. Patricia Maynard was employed as a SPPD Patrol Officer and was on regular patrol on the night in question.

The SPPD maintains a crisis negotiation team that includes Lieutenant Frank Clark, Detective Eric Jesseman and Bob Libby. Libby and Jesseman are both trained crisis negotiators.

2. SPPD Policies & Procedures

The South Portland Police Department has promulgated Standard Operating Procedures to serve as guidelines for its police officers in many areas, including specifically, arrests, protective custody, handling hostage and barricade incidents, and the lawful use of force in such situations. These standard operating procedures were in effect prior to August 25, 2008. In addition, a police officer's lawful use of force is regulated by state statute. The SPPD Policies regarding use of force were fully compliant with state law on August 25, 2008. A number of SPPD policies were applicable to the situation giving rise to Norton's claim, including the Use of Force Policy, the Firearms Policy, the Exercising Protective Custody/Mental Health Crisis Intervention Policy, the Hostage/Barricaded Subject Incident Policy, and the Special Response Team Policy.

3. Training Provided to SPPD Officers

All SPPD officers receive training on state and federal laws that govern their conduct, including the lawful use of non-deadly and deadly force; they also receive training regarding all SPPD policies and standard operating procedures. All officers must also meet annual training requirements of the Maine Criminal Justice Academy in order to maintain their certification as police officers.

Officers assigned to the Special Response Team (SRT) receive additional training regarding special weapons and tactics that may be used by members of the SRT. Training of SRT Members includes in-house training, involving both classroom training and scenario-based training in the field, as well as training provided by outside agencies such as the National Tactical Officers Association (NTOA). SRT members receive eight hours of specialized...