Roberts et al v. New Haven et al
Filing
64
ORDER: Defendants' motions for summary judgment (Docs. # 29 and # 32 ) are GRANTED with respect to Counts One, Two, Three, and Seven. Plaintiffs' remaining state law claims are otherwise DISMISSED without prejudice. The Clerk is directed to close this case. It is so ordered. Signed by Judge Jeffrey A. Meyer on 9/26/2016. (Levenson, C.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KAREN ROBERTS and FRANK ROBERTS,
Plaintiffs,
v.
No. 3:08-cv-00670 (JAM)
CITY OF NEW HAVEN et al.,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
During a “live-fire” police training exercise, plaintiff Karen Roberts was shot more than a
dozen times with simulated ammunition by her fellow police officers of the New Haven Police
Department. She and her spouse—plaintiff Frank Roberts—claim that her colleagues shot her
well beyond what was necessary for training purposes in order to retaliate for a controversial
letter-to-the-editor that Frank had recently published in the local newspaper. Karen otherwise
claims that—whatever their motive—her colleagues used excessive force on her and that her
supervisors did not do enough to protect her.
The principal question now before me is whether the United States Constitution affords a
remedy for the injuries to Karen that occurred during the training exercise. In light of the facts
presented on this record, I conclude that neither Karen nor Frank have established a genuine
issue of fact to sustain their constitutional claims. Accordingly, I will grant defendants’ motion
for summary judgment as to plaintiffs’ federal law claims and will otherwise dismiss the
remaining state law claims for lack of federal jurisdiction.
BACKGROUND
The following facts are based on the parties’ submissions and are viewed in the light
most favorable to plaintiffs.1 Plaintiffs Karen Roberts and her husband Frank Roberts were both
officers with the New Haven Police Department (NHPD). By 2006, Frank had retired from the
force, while Karen continued to serve. In February of 2006, the NHPD established a new “elite
crime interdiction unit” to help fight violent crime in the city. In mid-April, Frank wrote a letter
that was published in the New Haven Register criticizing this new unit.
Following the letter’s publication, Karen began to face hostility from her fellow officers.
Officers would be less friendly with her, or make negative comments to or about her. On at least
one occasion, Karen called for back-up when out on the beat, but did not receive support quickly
from her fellow officers. See Doc. #33-3 at 19-21. Karen did not make any formal complaints to
her supervisors about this treatment. See Doc. #47-6 at 13.
The crucial incident occurred on May 4, 2006. On that day, Karen participated in a police
training exercise conducted by the NHPD in which officers, armed with non-lethal marking
ammunition called “Simunition,” had to chase an “aggressor,” similarly armed with Simunition,
into a building. Karen and her partner were instructed for this training exercise to wear a fullface helmet, facemask, and protective chest armor, along with regular police uniform pants.2
Karen received two magazines of 9mm Simunition and a 9mm firearm that had been modified to
use Simunition in place of the standard ammunition. Simunition is commonly used for police
training, and it may be safely fired from distances greater than one foot. See Doc. #47-1 at 19;
1
Both the individual defendants and the City of New Haven have filed statements of material facts with
citations to supporting evidence (Docs. #30, #33). To the extent that plaintiffs’ own statements of material facts
(Docs. #46-1, #46-2, #63) simply deny factual allegations of defendants’ statements but without identifying contrary
admissible evidence, the Court credits defendants’ factual assertions. See D. Conn. L. Civ. R. 56(a)(3).
2
Karen stated in her deposition that although uniform pants were recommended, she was also told she
could wear jeans. Doc. #30 at 17.
2
see also Moore v. Guthrie, 438 F.3d 1036, 1038 (10th Cir. 2006) (describing common use of
Simunition for police “live fire” training exercises and noting that “because Simunition is
intended as a combat training tool, Simunition cartridges are specifically designed to be painful
to a person on impact; the Simunition manufacturer refers to this characteristic as ‘impact
penalty,’” and that “a Simunition projectile striking unprotected skin will leave bruises, welts,
and abrasions”).
Participants were briefed on safety and underwent a classroom instruction session on
using Simunition. The aggressors and participants were supposed to be unknown to each other,
with identities obscured by the protective gear, but all the officers and aggressors waited in one
hallway before beginning the exercise, and it was possible to identify officers even with the
protective gear on.
The training exercise began when pairs of officers pulled over a car and were fired upon
by the fleeing driver, who then entered a building. The officers were supposed to follow the
aggressor into the building and then to conduct a room-by-room search for the aggressor. After
pulling over the vehicle and chasing the aggressor into the building, Karen and her partner
conducted a search of the dark building. As indicated in a training video that was taken of the
exercise, when the officers entered the building, one officer was wearing a light sweatshirt and
the other (Karen) was wearing a dark sweatshirt, with long, dark hair visible from beneath the
protective gear. One officer was also visibly larger and taller than the other officer (Karen). The
two officers entered a dark locker room; then they turned a corner into an area with restroom
stalls. Both officers opened fire directed towards a corner, but the target could not be seen. The
other officer entered the shower area, which did not have a door but did have a doorway opening,
while Karen told the aggressor to “Put your hands up!”
3
Karen then entered the shower area. It appears in the video that both officers were in the
shower chamber at this point. It is not clear from the video if there were any aggressors in the
shower chamber, but officers continued to shoot out through the doorway of the shower chamber
at any aggressors who were presumably across the restroom. The video shows Karen extending
her gun out of the open shower and firing straight ahead; it does not appear that the other officer
was shooting out of the doorway.
An aggressor then ran from behind the videographer (who was standing in the doorway to
the restroom area) and shot through the doorway of the shower chamber. At that point there were
two aggressors in the restroom area. One of the aggressors moved towards the doorway opening
and stood off to the right side of the doorway. The aggressor shot through the doorway towards
the location where Karen was crouching. After a short period, Karen exited the shower chamber
to tackle the shooter. An airhorn sounded, and the exercise ended. Karen had been shot at least
fourteen times, mostly in the area of her legs which did not have armor protection. She was
clearly upset, and her hands and clothing had marks of bright color on them.3
Karen does not know which of the aggressors shot her. It is not disputed that
defendants Jamie Sanchez, Charles Tyson, and Robert Maturo were serving as the aggressors
that day for the training exercise. See Doc. #33-1 at 3. Defendant Sanchez discovered during the
exercise that her gun was jammed, and she fired no shots during the exercise; accordingly, only
Tyson and/or Maturo shot Karen that day. Defendants Thaddeus Reddish and Robert Strickland
3
Plaintiffs claim in the complaint that Karen was shot at least seventeen times in her legs and twice in her
left hand, at point blank range. See Doc. #1 at 5. I could find no admissible evidence, other than the video, submitted
about specifically what happened in the training exercise, including how close the aggressor was. Karen adduced
medical records that indicated she reported being hit between fourteen and fifteen times throughout the exercise.
Deposition testimony was submitted regarding the quality of safety instruction that Karen received, and Karen’s
belief that the training should have been changed to not permit firing with Simunition from within three feet, but
Karen did not state in her deposition (at least, not in the pages given to the Court) the distance from which she was
shot, nor the number of times she was shot. See Doc. #47-6 at 17.
4
were supervising the training and were present during the exercise. Defendants Francisco Ortiz
(who was then the police chief) and Kay Coddish were not present during the exercise. After the
exercise, Karen complained to Chief Ortiz, who indicated that he would investigate, but did not
investigate.
Counts One and Two of the complaint allege causes of action under 42 U.S.C. § 1983
and 42 U.S.C. § 1985 that defendants Sanchez, Maturo, Tyson, and Ortiz violated Karen’s and
Frank’s constitutional rights under the First, Fourth, and Fourteenth Amendments. Count Three
of the complaint alleges that defendants Coddish, Strickland, and Reddish violated Karen’s
constitutional rights by failing to train or supervise the officers or to properly equip her in
connection with the training exercise. The remaining counts of the complaint allege state law
claims as well as a § 1983 Monell claim of liability against the City of New Haven on alleged
grounds that the City was deliberately indifferent to plaintiffs’ constitutional rights. All
defendants now seek summary judgment as to all claims against them.
DISCUSSION
The principles governing a motion for summary judgment are well established. Summary
judgment may be granted only if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam). “A genuine dispute of
material fact exists for summary judgment purposes where the evidence, viewed in the light most
favorable to the nonmoving party, is such that a reasonable jury could decide in that party’s
favor.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013). The evidence
adduced at the summary judgment stage must be viewed in the light most favorable to the nonmoving party and with all ambiguities and reasonable inferences drawn against the moving party.
5
See, e.g., Tolan, 134 S. Ct. at 1866; Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 427 (2d
Cir. 2013). All in all, “a ‘judge’s function’ at summary judgment is not ‘to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.’”
Tolan, 134 S. Ct. at 1866 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
State Action
To the extent that plaintiffs premise their claims on conduct by the defendants during the
police training exercise, defendants contend that they “did not employ their police powers in the
context of the training exercise,” such that they were not “state actors” and acting “under color of
law” in their capacity as participants in the training. Doc. #32-1 at 8. I do not agree. As the
Supreme Court has made clear, “the traditional definition of acting under color of state law
requires that the defendant in a § 1983 action have exercised power possessed by virtue of state
law and made possible only because the wrongdoer is clothed with the authority of state
law.” West v. Atkins, 487 U.S. 42, 49 (1988). Thus, “state employment is generally sufficient to
render the defendant a state actor,” and “it is firmly established that a defendant in a § 1983 suit
acts under color of state law when he abuses the position given to him by the State.” Id. at 49–50.
Here, although it is true that defendants allegedly inflicted harm upon a co-worker rather
than upon an ordinary citizen and that they did so in the context of posing as non-police
“aggressors” for purposes of a training exercise rather than as ordinary patrol officers, they were
put in the position that they were in during the training exercise solely by virtue of their official
positions and employment with the city police department. Defendants’ argument that they were
not “state actors” in the context of the police training exercise is inconsistent with the recognized
scope of constitutional rights. The Fourth Amendment, for example, “guarantees the privacy,
dignity, and security of persons against certain arbitrary and invasive acts by officers of the
6
Government, without regard to whether the government actor is investigating crime or
performing another function,” including “when the Government acts in its capacity as an
employer.” City of Ontario, Cal. v. Quon, 560 U.S. 746, 755–56 (2010).
This is not a case about off-duty conduct or on-duty horseplay that was unrelated to the
defendants’ execution of their official duties. See, e.g., Patterson v. County of Oneida, 375 F.3d
206, 230-31 (2d Cir. 2004). Accordingly, I conclude that the defendant officers were state actors
and acting under color of law for purposes of any harm for which they would otherwise be liable
that occurred during the police training exercise. See Gray v. Kern, 2014 WL 1344275, at *2 (D.
Md. 2014) (police officers were state actors for purposes of shooting of co-officer during training
exercise).
Count One - § 1983 Claim for Retaliation and Excessive Force
Count One aggregately alleges violations under 42 U.S.C. § 1983 of multiple
constitutional rights. I understand these claims to include a claim of First Amendment retaliation
and a claim of an unconstitutional use of excessive force. I will address both these claims in
turn.4
First Amendment Retaliation
The First Amendment protects the right to free speech and to association as well as the
right not to be subject to retaliation for the exercise of one’s right to free speech or association.
In order to prove a claim of First Amendment retaliation, a plaintiff must show that: (1) he has
engaged in protected speech or association; (2) defendant took adverse action against him; and
(3) there was a causal connection between the protected speech or association and the adverse
Count One of the complaint (involving 42 U.S.C. § 1983) alleges a violation of only Karen’s
constitutional rights, while Count Two of the complaint (involving 42 U.S.C. § 1985) alleges a violation of both
Karen’s and Frank’s constitutional rights. For simplicity sake, I will address my discussion of the constitutional
claims below with respect to both Karen and Frank.
4
7
action. See Gonzalez v. Hasty, 802 F.3d 212, 222 (2d Cir. 2015); Dolan v. Connolly, 794 F.3d
290, 294 (2d Cir. 2015) (same).
Not every perceived slight constitutes “adverse action” subject to a First Amendment
retaliation claim; to the contrary, “in the context of a First Amendment retaliation claim, we have
held that only retaliatory conduct that would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights constitutes an adverse action.” Zelnik v.
Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006). For a claim—as here—involving
speech by a government employee, the speech is entitled to protection only if the employee
speaks as a citizen on a matter of public concern. See, e.g., Matthews v. City of New York, 779
F.3d 167, 172 (2d Cir. 2015).
Here, I will assume that Frank’s letter to the newspaper was protected speech by a
government employee. I will further assume that his right not to be subject to retaliation for his
exercise of free speech extends not only to retaliation by a state actor directly against him but
also to retaliation against his spouse or other family member to the extent that such retaliation
would deter Frank’s exercise of free speech. Likewise, although I doubt it to be so, I will assume
for present purposes that Karen’s association with Frank touched on a matter of public concern.
See Cobb v. Pozzi, 363 F.3d 89, 103 (2d Cir. 2004).
Even with all these assumptions, however, plaintiffs’ First Amendment claims fall short,
because there is no genuine issue of fact to show that any of the possibly culpable defendants
intended to retaliate against Karen or Frank. To begin with, the complaint identifies adverse
conduct by unnamed police officers in the days following publication of Frank’s letter in midApril. Except quite equivocally as to defendant Sanchez, there is no evidence that any of these
adverse actions involved any of the defendants named by plaintiffs in this lawsuit. See Plaintiffs’
8
Local Rule 56(a)(1) Statement, Docs. #46-1 and #46-2; Doc. #47-6 at 6 (deposition testimony of
Karen Roberts that she had “no issue” with Jamie Sanchez prior to the training exercise).5
As to the firing upon Karen with Simunition multiple times during the live-fire training
exercise, the evidence shows that it was only Maturo and/or Tyson who fired upon Karen in their
“aggressor” roles during the training exercise. Although Sanchez was also an assigned
“aggressor” during the exercise, it is undisputed that Sanchez’s training gun was inoperable
during the exercise. See Doc. #33-1 at ¶ 27-28; Doc. #55-9 at 28; Doc. #63 at 4. Plaintiffs have
not shown any genuine fact issue of ill-will by Maturo or Tyson against them, and they have not
shown any genuine fact issue that Sanchez caused any harm.
Likewise, it is undisputed that Ortiz—who was then the Chief of Police—was not
physically present during the exercise, and there is no evidence to show that he instructed any
officer to harm Karen during the training exercise. See Doc. #33 at 6; Doc. #63 at 5. Beyond the
sheerest of speculation, there is no individual-specific evidence to suggest that any of the named
defendants harbored some speech-related or association-related animosity against plaintiffs, such
that they decided to retaliate against Karen during the live-training exercise. Accordingly, I will
grant defendants’ motion for summary judgment with respect to plaintiffs’ First Amendment
claims.
Excessive Force
Karen contends that defendants violated her substantive due process rights by means of
their use of excessive force during the training exercise. The Fourteenth Amendment to the
United States Constitution provides that a State shall not “deprive any person of life, liberty, or
5
The time frame here covers an approximately three-week period from the April 15 letter until the May 6
training exercise. During her deposition, Karen stated that Sanchez “stopped talking” to her after the letter was
published. Doc. #33-3 at 11. She further stated that Sanchez and another member of the elite unit took a long time to
get to a call for which she called for backup, and then ignored Karen once they arrived. Id.at 18-19.
9
property, without due process of law.” U.S. Const., Amdt. 14, § 1. The Due Process Clause
protects both a right to “substantive” due process and “procedural” due process. A substantive
due process claim requires a plaintiff to show that a government official has deprived plaintiff of
a fundamental constitutional right and that he has done so under circumstances that are no less
than “arbitrary” and “outrageous,” typically as demonstrated by conduct that “shocks the
conscience.” See, e.g., United States v. Medunjanin, 752 F.3d 576, 590 (2d Cir. 2014)
(substantive due process has generally protected “matters relating to marriage, family,
procreation, and the right to bodily integrity”); Natale v. Town of Ridgefield, 170 F.3d 258, 262–
63 (2d Cir. 1999) (substantive due process standards violated “only by conduct that is so
outrageously arbitrary as to constitute a gross abuse of governmental authority”); Velez v.
Levy, 401 F.3d 75, 93–94 (2d Cir. 2005) (describing the “shocks the conscience” standard).
A claim against law enforcement authorities for the use of excessive force outside the
arrest/seizure or imprisonment context is properly considered under the Due Process Clause. See
Rodriguez v. Phillips, 66 F.3d 470, 477 (2d Cir. 1995).6 For such cases, the Second Circuit
instructs courts to consider the following factors: “[1] the need for the application of force, [2]
the relationship between the need and the amount of force that was used, [3] the extent of injury
inflicted, and [4] 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.” Johnson v. Newburgh
Enlarged Sch. Dist., 239 F.3d 246, 251–52 (2d Cir. 2001) (numerical brackets added).
6
Although plaintiffs alleged in the complaint a violation of the Fourth Amendment, defendants argue that
there is no evidence that Karen was “seized” or her freedom of movement terminated during her encounter with the
defendants. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 843-44 (1998) (noting that “a police pursuit in
attempting to seize a person does not amount to a ‘seizure’ within the meaning of the Fourth Amendment and that
“the Fourth Amendment covers only ‘searches and seizures,’ neither of which took place here”). Because plaintiffs’
opposition to defendants’ summary judgment motion fails to address this claim, I consider plaintiffs’ Fourth
Amendment claim to be abandoned in lieu of the substantive due process claim discussed above.
10
Here, as noted above with respect to my discussion of plaintiffs’ First Amendment claim,
there is no evidence that any of the defendants acted for malicious and sadistic reasons to shoot
excessively at Karen’s unprotected leg area. Although defendant Sanchez was a member of the
police unit that was subject to criticism in Frank’s letter, her firearm was not operable during the
training exercise. There is no genuine fact issue of malice on the part of Maturo or Tyson—the
only two officers who possibly shot Karen—or any of the other named defendants. Accordingly,
plaintiffs have not adduced evidence on the most important of the substantive due process
factors: whether the defendants acted maliciously and sadistically to cause her harm. See
Johnson, 239 F.3d at 252 (discussing how malicious and sadistic use of force is “presumptively
unconstitutional,” because “the substantive due process guarantee of the Fourteenth Amendment
protects individuals from ‘conscience-shocking’ exercises of power by government actors”).
Given the absence of evidence of malice, the defendant officers are entitled at the least to
qualified immunity, even if the force that Maturo and/or Tyson used in the heat of the moment of
a verisimilitudinous “live fire” training exercise was unfortunately and zealously
disproportionate to what they should have used with the benefit of hindsight. Indeed, the doctrine
of qualified immunity protects police officers “from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It
follows that a police officer is entitled to qualified immunity if “(1) his conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known, or (2) it was objectively reasonable for him to believe that his actions were lawful at the
time of the challenged act.” Simpson v. City of New York, 793 F.3d 259, 268 (2d Cir. 2015).
Given the context presented—and assuming that Tyson and/or Maturo fired more shots at Karen
11
than reasonably necessary—I cannot conclude that an objectively reasonable law enforcement
officer would have known that this conduct violated any clearly established constitutional rights.
Nor is there a genuine issue of fact to support Karen’s due process claim against Chief
Ortiz. There was no evidence presented for summary judgment purposes to show that he directed
or caused any officer to harm Karen during the training exercise. See Doc. #33 at 6; Doc. #63 at
5. The fact that Ortiz may not have investigated Karen’s complaints about the exercise as she
requested does not amount to a violation of her constitutional rights.
Count Two - § 1985 Claim for Civil Conspiracy
For the same reasons that I have concluded that summary judgment should be granted for
each of the named defendants Maturo, Tyson, Sanchez, and Ortiz as to the § 1983 claim alleged
in Count One, I reach the same conclusion for plaintiffs’ § 1985 claim for civil conspiracy. In
addition, plaintiffs’ claims are barred by the intracorporate conspiracy doctrine. See Hartline v.
Gallo, 546 F.3d 95, 99 n.3 (2d. Cir. 2008) (applying intracorporate conspiracy doctrine to
preclude § 1985 action against police department and its officers). Although the doctrine has an
exception for “individuals within a single entity when they are pursuing personal interests wholly
separate and apart from the entity,” Guichard v. Town of Brookhaven, 26 F. Supp. 3d 219, 228
(E.D.N.Y. 2014), there is no genuine fact issue to suggest that this exception applies here.
Count Three - § 1983 Claim for Failure to Train/Protect Liability
Count Three of the complaint alleges that defendants Coddish, Strickland, and Reddish
violated Karen’s constitutional rights because they “had an affirmative duty to train, properly
equip and adequately supervise all personnel involved in the exercise,” and they were “reckless
or deliberately indifferent to the consequences of failing to train or adequately supervise Maturo,
Tyson and Sanchez, or to properly equip the Plaintiff.” Doc. #1 at 10. According to the
12
complaint, “the actions of Coddish, Strickland and Reddish constituted a deprivation of the
Plaintiff’s constitutional right to be protected from intentionally or negligently caused harm
and/or excessive risk during a training exercise.” Ibid.
It is well established that “the Constitution does not guarantee due care on the part of
state officials; liability for negligently inflicted harm is categorically beneath the threshold of
constitutional due process.” County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). What is
more, the Due Process Clause does not impose a generalized duty on the government to furnish
its employees with a safe working environment. See Collins v. City of Harker Heights, 503 U.S.
115, 126 (1992). Thus, for example, the Tenth Circuit has declined to recognize a due process
claim against a police chief who allegedly failed to furnish adequate protective equipment for a
police officer who was participating in a Simunition live-fire training exercise. See Moore v.
Guthrie, 438 F.3d 1036, 1040–41 (10th Cir. 2006).
In addition, supervisors are not responsible under § 1983 via respondeat superior for a
subordinate’s negligence because “§ 1983 requires individual, personalized liability.” Raspardo
v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014). A supervisor may be held responsible for a
subordinate’s unconstitutional acts if the supervisor was deliberately indifferent to constitutional
violations or grossly negligent in his supervision. See ibid. Gross negligence is “the kind of
conduct where the defendant has reason to know of facts creating a high degree of risk of . . .
harm to another and deliberately acts or fails to act in conscious disregard or indifference to that
risk.” Ibid. Plaintiff must be able to “show an affirmative causal link between the supervisor’s
inaction and her injury.” Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002). Just like regular
police officers, supervisory police officers may be protected by qualified immunity “so long as
13
reasonable officials could disagree about whether the supervisor’s action was grossly negligent
in light of clearly established law.” Raspardo, 770 F.3d at 116–17.
Here, Karen has failed to establish a genuine issue of material fact that would indicate
deliberate indifference or gross negligence in supervision by Coddish, Strickland, or Reddish at
the time of the training exercise. The extent of her evidence comes from her deposition testimony
that she did not feel that she “learned what [she] was supposed to do in that incident” and that the
supervisors did not “show us what cover they thought we should use, what other kind of tactics
are available to us.” Doc. #47-6 at 16. These statements indicate at best a claim for failure to
train Karen, not a failure to train the aggressors who harmed her, and the claim is nonsensical
because the very purpose of the training exercise was to train Karen in a live-fire environment.7
Plaintiff further admitted that participants were instructed on safety and what equipment
to wear. Id. at 16-17. Moreover, the required equipment for the exercise matched the minimum,
mandatory equipment listed in the Simunition handbook.8 See Doc. #47-1 at 28 (stating that
“duty equipment and uniforms” should be worn and that “appropriate optional clothing for roleplayers should fully cover the arms and legs and hands”).
Defendants adduced evidence that officers were instructed on safe firing distances, and
that Coddish was not present. See Doc. #33-1 at 2. Plaintiffs presented no contrary evidence that
the supervisor defendants did not instruct the aggressors in the safe firing distance, nor evidence
7
This interpretation of the failure-to-train complaint is further supported by the deposition of plaintiffs’
expert Angelo Appi, who indicated that his opinion of the way the training was held was that it was not welldesigned to improve the officers’ performance in the field – not that the training of the aggressors in the use of
Simunition was inadequate. See Doc. #47 at 23-24. Appi did indicate that the exercise should have had a “two hit
central mass” limit – meaning two direct shots to an officer’s torso – before the instructor stopped the exercise to
correct the mistakes made. See id. at 14. But there is no evidence from Appi’s deposition that in his expert opinion,
the supervisors should have stopped any specific behavior in the video from occurring or that the shots in the video
were fired from an excessively close distance.
8
Karen stated in her deposition that although uniform pants were recommended, she was also told she
could wear jeans. Doc. #30 at 17. In view that there was no requirement for particular leg covering, I do not
conclude that it makes a difference what kind of pants Karen wore.
14
that defendant Coddish was even involved in instructing the aggressors.9 See Doc. #47-6 at 16.
In sum, it seems that the training exercise was run by defendants Reddish and Strickland with at
least an eye towards the safety requirements of the participants, acknowledging the risk involved
and taking action to prevent harm. Such action hardly establishes gross negligence on the part of
participating defendants, as gross negligence requires acting or failing to act in disregard of risk.
Nor have plaintiffs shown that the law regarding supervision to prevent excessive force
in police training exercises was clearly established such that a reasonable supervisor in the
position of these defendants would have known that a constitutional violation was likely to
occur. By requiring participants to wear safety equipment in accordance with the handbook,
defendants took steps to prevent harm to officers, and could therefore reasonably expect that
there would be no uses of force that would “shock the conscience.” Perhaps if some officers
were forced to participate without safety gear, or with malfunctioning safety gear, there might be
facts to suggest a material issue of fact of gross negligence. But I see no such facts here to
support a constitutional claim against the defendant training supervisors, much less a claim that
could possibly surmount the protections of qualified immunity. See, e.g., Moore, 438 F.3d at
1042–43 (affirming qualified immunity for police chief who allegedly failed to furnish plaintiff
police officer adequate protective gear for live-fire training exercise).
Remaining Claims
Count Seven of the complaint alleges a Monell claim of municipal liability under § 1983
against the City of New Haven. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). But
9
Plaintiffs’ response to defendants’ statement of material facts indicates that there is deposition testimony
regarding safe firing distances, see Doc. #63 at 2, but the cited pages of her deposition (74-77) present no affirmative
evidence that defendants Reddish and Strickland did not instruct the officers on safe firing distance – i.e., that Karen
was asked “Were you instructed on safe firing distance?” and that she replied “we were not.” Page 111 of the
deposition was not provided to the Court.
15
because I have concluded that there is no genuine issue of fact to support plaintiffs’
constitutional claims against any member of the New Haven police department, it is clear that the
City of New Haven is entitled to summary judgment as to plaintiffs’ Monell claim. See Askins v.
Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013) (noting that “unless a plaintiff shows that he has
been the victim of a federal law tort committed by persons for whose conduct the municipality
can be responsible, there is no basis for holding the municipality liable” and that “Monell does
not create a stand-alone cause of action under which a plaintiff may sue over a governmental
policy, regardless of whether he suffered the infliction of a tort resulting from the policy”).
Plaintiffs otherwise allege state law tort claims, including for assault and battery,
negligent and intentional infliction of emotional distress, and loss of consortium. In light of my
grant of summary judgment as to the federal claims in this case and the lack of the parties’
attention to the state law tort claims in their briefing, I will decline in my discretion to exercise
supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3); see,
e.g., Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 117–18 (2d Cir. 2013).
CONCLUSION
For the foregoing reasons, I GRANT defendants’ motions for summary judgment (Docs.
#29 and #32) with respect to Counts One, Two, Three, and Seven. I otherwise DISMISS without
prejudice plaintiffs’ remaining state law claims.
The Clerk is directed to close this case.
It is so ordered.
Dated at New Haven this 26th day of September 2016.
/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge
16
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