Greenwald v. Rocky Hill et al

Filing 60

ORDER granting 47 Motion for Summary Judgment. See attached Memorandum of Decision. The Clerk is directed to enter Judgment for the Defendants, and to close this case. Signed by Judge Vanessa L. Bryant on 10/17/2011. (Fernandez, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DEREK K. GREENWALD,
PLAINTIFF,

v.
TOWN OF ROCKY HILL ET AL.,
DEFENDANTS.

:
:
: CIVIL ACTION NO. 3:09cv211(VLB)
:
: OCTOBER 17, 2011
:
:
:

MEMORANDUM OF DECISION GRANTING DEFENDANTS’ [DKT. #47] MOTION
FOR SUMMARY JUDGMENT
Before the Court is a motion for summary judgment filed by the Defendants
Town of Rocky Hill (“Rocky Hill”), Michael D. Custer, Chief of Police (“Custer”),
Lieutenant Cantania, Sergeant Leonard A. Kulas, Detective O’Brien (“O’Brien”),
Detective Roy Bombaci, Officer Joseph Phelps, Officer Jon P. Lammers, Officer
Vanessa J. Bilotto, Officer Frank J. Nevico. The Plaintiff, Derek K. Greenwald,
(“Greenwald”) brought this suit pursuant to 42 U.S.C. § 1983 alleging violations of
his right to be free from unreasonable search and seizure under the Fourth
Amendment as well as for false arrest. In particular, Greenwald alleges the
Defendant Officers used excessive force in arresting him. Greenwald also alleges
that Rocky Hill and Custer failed to supervise and train the Defendant Officers.
Greenwald makes the same substantive allegations against Defendants under
Article One, §§7, 8, 9 of the Connecticut Constitution. In addition, Greenwald
asserts state law causes of action for reckless and negligent conduct as well as
negligent infliction of emotional distress against the Defendant Police Officers.
Lastly, Greenwald asserts that Rocky Hill is liable for the injuries and losses
caused by the negligent acts or omissions of the Defendant Police Officers and
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Custer under Conn. Gen. Stat. § 52-557n and for indemnification for the acts of
the Defendant Officers and Custer under Conn. Gen. Stat. §7-465. Defendants
assert that they are entitled to both qualified immunity as well as governmental
immunity under state law. Defendants also argue that Greenwald’s claim for
indemnification fails for lack of proper notice and that Greenwald’s excessive
force claim is barred by the Supreme Court’s decision in Heck v. Humphrey, 512
U.S. 477 (1994). Lastly, Defendants argue that there is no private cause of action
for money damages under the Connecticut Constitution under the circumstances
of this case. For the reasons stated hereafter, Defendant’s motion for summary
judgment is granted in favor of all Defendants as to Greenwald’s federal law
claims and the Court declines to exercise its supplemental jurisdiction over
Greenwald’s state law claims.
Facts and Procedural Background
The following facts relevant to Defendants’ motion for summary judgment
are undisputed unless otherwise noted. On November 9, 2007 at 5:41pm,
Kimberly Riedel, Greenwald’s girlfriend, reported to the Rocky Hill Police that
Greenwald had told her over the telephone that he was going to commit suicide
with a gun. [Dkt. #49, Defs. Local Rule 56(a)1 Statement of Material Facts at ¶¶1-6
and Dkt. #49, Defs. Ex. A, Police Incident Report]. Officers Phelps, Lammers and
Bilotto responded to Greenwald’s residence at 304 Farmstead Road and upon
arrival found Greenwald in his backyard holding a loaded rifle. [Id.]. Greenwald
had started a fire in his backyard fire pit before the police arrived. [Dkt. #49, Def.
Ex. G, Greenwald Statement]. The gun Greenwald was carrying was identified as
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a loaded 16-gauge bolt action shotgun. [Dkt. #49, Defs. Local Rule 56(a)1
Statement of Material Facts at ¶30].
Defendants allege that when the Officers attempted to talk with Greenwald
he pointed the rifle at Officers Phelps and Lammers, ran farther into the backyard,
then in a northeast direction towards the Double A Transportation property which
contained two large parking lots which abutted Greenwald’s property and
Farmstead Road. [Dkt. #49, Defs. Local Rule 56(a)1 Statement of Material Facts at
¶8]. Defendants also allege that Greenwald was told to drop the gun but did not.
[Id.]. Greenwald disputes Defendants’ account and alleges that no officer
declared their purpose for entering his property at night and approaching him.
[Dkt. #55, Pl. Local Rule 56(a)2 Statement and Dkt. #55, Pl. Ex. B, Greenwald
Affidavit at ¶¶8-13]. Greenwald also alleges that the officers unreasonably failed
to communicate that they were police officers responding to a call to check on
his welfare. [Id.]. In addition, Greenwald alleges that the Officers shone bright
lights in his face which prevented him from seeing any uniform or other indicia of
authority worn by the officers. Greenwald further alleges that the officers
shouted at the same time and in a chaotic manner making it impossible for him to
understand what any one officer was saying. [Id.]. Further, Greenwald asserts
that he did not raise his weapon toward any officer and had no intention to fire
his weapon at anyone. [Id.].
Greenwald then ran into a wooded area between the houses north of 302
Farmstead Road and the Double A Transportation property. [Dkt. #49, Defs. Local
Rule 56(a)1 Statement of Material Facts at ¶¶8-14]. Officers Kulas, Bombaci,
3 

Nevico and O’Brien then arrived on the scene. When Officer Kulas arrived on
Farmstead Road, Phelps called a 10-0 which was code for officer in trouble over
the radio. [Id.]. Phelps reported to Kulas over the radio that he, Officer Lammers,
and Officer Bilotto were fine, however they could not see Greenwald and believed
that he may be trying to backtrack and come up from behind them. Phelps said
they would need to back out of the far end of the backyard to prevent the male
with the rifle from coming up from behind them. [Dkt. #49, Defs. Ex. A, Kulas
Statement and Dkt. # 49, Defs. Ex. D, Phelps Statement].
Officer Kulas directed Officers Bombaci and Nevico take a position at
France Street and Farmstead Road in order to have a view of France Street and
304 Farmstead Road in the event that Greenwald returned to the street or the
house. [Dkt. #49, Defs. Local Rule 56(a)1 Statement of Material Facts at ¶¶8-14].
Officers Kulas and O’Brien then took a position on the Double A Transportation
property and checked the northwest parking lot since that was the direction that
Officer Phelps had said Greenwald had gone. [Id.]. Officer O’Brien saw
Greenwald running south along the west side of the Double A Transportation
property back towards Farmstead Road. [Id. at ¶18]. Officers Phelps and Bilotto
then observed Greenwald running south down Farmstead Road towards them
with the rifle in both his hands. [Dkt. #49, Defs.’s Ex. D, Phelps Statement].
Phelps stated that he told Greenwald to drop the gun and then afterward
Greenwald turned around and began to run north up Farmstead Road. [Id.].
O’Brien and Kulas then proceeded towards Farmstead Road from the Double A
Transportation property in the direction of where Greenwald had run. [Dkt. #49,
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Defs. Local Rule 56(a)1 Statement of Material Facts at ¶¶18-21]. Defendants
allege that when O’Brien and Kulas reached the top ridge of a small hill between
the Double A Transportation property and the north end of the Farmstead Road
cul de sac, they observed Greenwald approximately 30 to 40 feet away
approaching north up the hill towards them with a rifle in his hands, holding it
straight out in front of him. [Dkt. #49, Defs. Local Rule 56(a)1 Statement of
Material Facts at ¶¶21-25 and Dkt. #49, Defs. Ex. J, O’Brien Statement].
Defendants further allege that as Greenwald continued to approach O’Brien
and Kulas as he ran uphill, he began to raise the muzzle end of the gun higher
towards O’Brien and Kulas. Defendants allege that O’Brien and Kulas pointed
their duty weapons at Greenwald and ordered him to put down the rifle. When
Greenwald continued to raise the muzzle of the rifle, O’Brien fired two shots at
Greenwald. [Id.]. Greenwald then dropped to the ground instantly. After
securing the rifle and handcuffing Greenwald, who had a strong odor of alcohol
on his breath and his speech slurred, he was found not to have any gunshot
wounds. [Dkt. #49, Defs. Local Rule 56(a)1 Statement of Material Facts at ¶26].
Two holes in the front area of Greenwald’s shirt were observed. It appeared as if
one of O’Brien’s shots entered through the right front of Greenwald’s jacket,
entered the right front of his shirt, exited the left front of his shirt and then exited
through the left front of his jacket. [Id. at ¶34]. Several rounds of ammunition
were found in Greenwald’s jacket pockets. [Id. at ¶31].
Greenwald disputes Defendants’ account and denies that he held his rifle
straight out in front of him or that the Officers ordered him to drop his weapon.
5 

Greenwald states in an affidavit filed in support of his opposition to Defendants’
motion for summary judgment that “I did not raise the weapon I was carrying
toward any officer or any other person, and I had no intention to fire my weapon
at anyone.” [Dkt. #55, Pl. Ex. B, Greenwald Affidavit at ¶15]. Greenwald also
testified in deposition that he did not point the gun he was holding at any police
officer. [Dkt. #55, Pl. Ex. A, Greenwald Dep. at 133]. Lastly, Greenwald testified
that that he heard a lot of yelling but was unable to tell “any of those words that
were being yelled.” [Id. at 121].
Greenwald also alleges that Defendants’ accounts regarding the shooting
are inconsistent. Officer Kulas testified in his deposition that “[Greenwald is]
coming up the hill. The gun is, like, partially angled down. And as he is coming
up the hill, he starts turning the gun towards us. And Detective O’Brien yelled to
put down the gun…he was wielding around towards us with the gun.” [Dkt. #55,
Pl. Ex. F, Kulas Dep. at 51-52]. Kulas further testified that Greenwald did not have
the gun pointed with the stock at his shoulder aiming down the barrel at someone
but “saw the gun sort of moving in [their] direction.” [Id. at 52]. Kulas also
testified that “we both had our guns on him. I was about to fire but [O’Brien] fired
first.” [Id.]. Officer O’Brien testified that Greenwald was “running in my
direction, he takes a belated stance … he stands sideways, as any marksman
would do, and he raises his gun at me… I informed him to drop the weapon. He
doesn’t, and he continues on in our direction with the gun pointed directly at me
and Sergeant Kulas … I fired two shots to him and he fell to the ground.” [Dkt.
#55, Pl. Ex. D, O’Brien Dep. at 37-38].
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Defendants allege that Greenwald admitted that when he was carrying his
gun that it looked like he was aiming it at the officers. In support of this
allegation, Defendants point to a sworn statement Greenwald made shortly after
his arrest in which he stated “I ran back towards the top of the street not even
realizing that I was carrying the gun which looked to the officer’s like I was aiming
at them. I had no intention to hurt anyone but myself.” [Dkt. #49, Defs. Ex. G,
Greenwald Statement]. In addition, Greenwald in his deposition was asked “if
someone was ahead of you, it would look to them like you were coming at them
with a gun aimed at them; am I correct?” to which Greenwald replied “I don’t
know if I would say it was aimed at them, but the barrel of the gun would be in
their general direction.” [Dkt. #49, Def. Ex. L, Greenwald Dep. at 78].
Greenwald was charged with four counts of Criminal attempt – murder, in
violation of Conn. Gen. Stat. §53a-49 (§53a-54a); four counts of Criminal attempt –
assault of public safety personnel, in violation of Conn. Gen. Stat. §53a-49 (§53a167c); four counts of reckless endangerment in the first degree, in violation of
Conn. Gen. Stat. §53a-63; interfering with an officer in violation of Conn. Gen.
Stat. §53a-167a; breach of peace in the second degree, in violation of Conn. Gen.
Stat. §53a-181 and he was held on a one million dollar bond. [Dkt. #49, Defs. Local
Rule 56(a)1 Statement of Material Facts at ¶33]. Greenwald pled guilty under an
Alford plea to the charge of attempted assault of police officers in the first degree
in violation of Conn. Gen. Stat. §53a-167c, three years probation and six months
electronic monitoring. [Id. at ¶52].

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The Town of Rocky Hill requires all officers to adhere to the training
protocol established by state standards and all of the Defendant Officers had
successfully completed the municipal police officer training academy program or
a state-accepted equivalent. [Dkt. #49, Defs. Local Rule 56(a)1 Statement of
Material Facts at ¶¶53-56]. All of the Defendant Officers were required to
complete state-mandated re-certification training every three years to continue as
a municipal police officer, which covers all aspects of law enforcement, including,
but not limited to training in use of force, weapons training, rape crisis,
individuals in crisis, domestic violence, bias, gang violence, laws of arrest and
search and seizure, patrol procedures, making arrests, scene investigation, and
firearms training. [Id.]. At time of the incidents alleged in the complaint, the
named Defendants had attended supplemental training courses as part of their
re-certification requirements and were in full compliance with the re-certification
requirements in place at that time. [Id.].
Defendants allege that as of November 9, 2007, Chief Custer was not aware
of the existence of any prior complaints, reports or observations, whether internal
or external, that called into question or challenged the conduct of the Defendant
officers with respect to their detaining emotionally and/or mentally disturbed
individuals or with respect to their prior knowledge of proper police procedures.
[Id. at ¶58]. Chief Custer does not directly supervise the Defendant Officers in the
performance of their regular and usual police duties. [Id. at ¶63].
The Rocky Hill Police Department received approximately 50 suicide
intervention calls each year. [Dkt. #55, Pl. Ex. C, Custer Dep. at 47-48]. Custer
8 

testified that in his tenure as chief none of the prior suicide intervention calls
involved the use of deadly force. [Id. at 49].
Greenwald points out that Conn. Gen. Stat. §7-294g(b) provides that “[e]ach
police basic training program conducted or administered by the Division of State
Police within the Department of Public Safety, by the Police Officer Standards and
Training Council established under section 7-294b or by a municipal police
department in the state shall include a course on the recognition and
management of child abuse and suicide intervention procedures.” Greenwald
also relies on the testimony of his expert Geoffrey Alpert, PhD in which Alpert
concluded that based on the “conduct of the Defendants and the training
provided deviated materially from the standards as described above in every
material aspect of their encounter with the Plaintiff.” [Dkt. #55, Pl. Ex. H, Alpert
Letter].
Standard
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir. 2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.,
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita

9 

Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If there is any
evidence in the record that could reasonably support a jury's verdict for the nonmoving party, summary judgment must be denied.” Am. Home Assurance Co. v.
Hapag Lloyd Container Linie, GmbH, 446 F.3d 313, 315-16 (2d Cir. 2006) (internal
quotation marks and citation omitted).
Analysis of Evidentiary Objections
In his Local Rule 56(a)2 statement, Greenwald makes a blanket objection to
Defendants’

reliance

on

several

police

incident

reports

as

containing

inadmissible hearsay. See [Dkt. #55, Pl. Local Rule 56(a)2 Statement]. However,
the police incident reports to which Greenwald objects contain the sworn
statements of the individual officers recounting their personal acts and
observations. See [Dkt. #49, Defs. Exs. A-F]. Therefore these statements consist
of facts within the Officer’s personal knowledge, are in essence affidavits, and are
therefore appropriate to support a motion for summary judgment under Fed. R.
Civ. P. 56(c)(4). The police incidents reports themselves would be admissible as
a business record under Fed. R. Evid. 803(6) or a public record under Fed. R.
Evid. 803(8). Tokio Marine Management, Inc., v. M/V Zim Tokyo, Nos.91CIV.0063,
1993 WL 322869, at *9 (S.D.N.Y. Aug. 17 1993) (citing Parsons v. Honeywell, Inc.,
929 F.2d 901, 907 (2d Cir. 1991)).

The entries in the police reports “which result

from the officer’s own observations and knowledge may be admitted but []
statements made by third persons under no business duty to report may not.” Id.
(internal quotation marks and citation omitted).

Statements by third persons

recorded within the police incident reports should be considered hearsay within
10 

hearsay and therefore must also be subject to an independent hearsay exception
to be admissible under Fed. R. Evid. 805.

Therefore the officer to officer

statements included in the incident reports would have to be subject to a hearsay
exception to be admissible.

Here, the officer to officer statements recorded in

the individual incident reports reflect the declarant Officer’s impressions and
statements made during the encounter with Greenwald and would be admissible
under the hearsay exceptions of present sense impression, excited utterance, or
then existing mental, emotional or physical condition under Fed. R. Evid. 803(1)(3). For example, in one police report, Officer Kulas states that Officer Phelps
told him that he believed that Greenwald was trying to backtrack and come up
from behind them. Officer Phelps’s statement to Kulas would qualify as a present
sense impression as it is a statement describing or explaining an event made
immediately after the declarant perceived the event. See [Dkt. #49, Ex. A].
Accordingly, the Court denies Plaintiff’s blanket objection to Defendants’ reliance
on the individual incident reports.
Analysis of Warrantless Entry Claim
While Greenwald does not outright allege in his complaint that the
Defendant Officers made a warrantless entry onto his property in violation of the
Fourth Amendment, Greenwald does allege in count one that the “Defendant
Police Officers did not have a warrant for Plaintiff’s arrest” and that the Defendant
Police Officers “did not have third party information that Plaintiff had committed,
or was in the process of committing, a crime.”

[Dkt. #1, Complaint at ¶¶43-53].

Defendants in their motion for summary judgment argue that the Defendants had
11 

a reasonable belief that an emergency existed which justified their entry onto
Greenwald’s property.

The Court therefore construes Plaintiff’s allegations to

include a claim that Defendants’ conduct was a warrantless illegal entry into a
private dwelling. “The Fourth Amendment's warrant requirement protects one's
privacy interest in home or property.

Absent exigent circumstances or some

other exception, the police must obtain a warrant before they enter the home to
conduct a search or otherwise intrude on an individual's legitimate expectation of
privacy.” U.S. v. Gori, 230 F.3d 44, 50 (2d Cir. 2000) (citing Maryland v. Dyson, 527
U.S. 465, 544 (1999)).

Defendants argue that their entry into Greenwald’s

backyard was lawful as it fell within the emergency exception to the warrant
requirement.   “Police officers may enter a dwelling without a warrant to render
emergency aid and assistance to a person whom they reasonably believe to be in
distress and in need of that assistance.” Tierney v. Davidson, 133 F.3d 189, 196
(2d Cir. 1998) (internal quotation marks and citation omitted). “Courts must apply
an objective standard to determine the reasonableness of the officer’s belief …
However, this probable cause requirement must be applied by reference to the
circumstances then confronting the officer, including the need for a prompt
assessment of sometimes ambiguous information concerning potentially serious
consequences.” Id. at 196-197 (internal quotation marks and citation omitted); see
also United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc) (“The
essential question in determining whether exigent circumstances justified a
warrantless entry is whether law enforcement agents were confronted by an
‘urgent need’ to render aid or take action.”).

12 

Moreover, Defendants are entitled to “qualified immunity as a matter of law
with respect to a situation where exigent circumstances, probable cause or
reasonable suspicion were needed if the undisputed facts and all permissible
inferences favorable to the plaintiff show that (a) it was objectively reasonable for
the officer to believe that exigent circumstances, probable cause or reasonable
suspicion existed, respectively or (b) officers of reasonable competence could
disagree on whether exigent circumstances, probable cause or reasonable
suspicion, respectively, were present.” Signorile By and Through Signorile v.
City of New York, 887 F. Supp. 403, 413 (E.D.N.Y. 1995).
Here, a reasonable officer could conclude that it was objectively
reasonable for Defendants to believe that Greenwald was in distress and in need
of their assistance and therefore there were exigent circumstances that justified
the warrantless entry. See Bringham City, Utah v. Stuart, 547 U.S. 398, 403 (2006)
(finding that police may enter a home without a warrant when they have an
objectively reasonable basis for believing that an occupant is seriously injured or
imminently threatened with such injury).

The Defendant Officers were

responding to a report by Greenwald’s girlfriend that he had earlier informed her
that he intended to commit suicide with a gun. Moreover, when the Defendant
Officers arrived at Greenwald’s residence, they observed Greenwald in his
backyard by a firepit holding a shotgun. It was therefore objectively reasonable
for the Defendant Officers to believe that exigent circumstances were present
based on these observations coupled with the report by Greenwald’s girlfriend
that he had threatened to commit suicide with a gun.

See Russo v. City of
13 

Cincinnati, 953 F.2d 1036, 1043-44 (6th Cir. 1992) (warrantless entry was justified
by officer’s reasonable belief that resident was in danger of committing suicide
and noting the court's inability to find “a single case indicating that an officer's
attempt to rescue what that officer believes to be a suicidal person does not
constitute exigent circumstances”). Accordingly, the Court finds there was no
Fourth Amendment violation when the Defendant Officers entered Greenwald’s
property without a warrant.
Analysis of Fourth Amendment Excessive Force Claim and Qualified
Immunity
Greenwald alleges that the Defendants’ conduct in arresting him and in
particular Defendant O’Brien’s conduct in firing two shots at him violated the
Fourth Amendment’s mandate against unreasonable searches and seizures.
Claims that a law enforcement official used excessive force during a seizure are
analyzed under the Fourth Amendment’s “objective reasonableness” standard.
Accordingly, a court must balance “the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the countervailing governmental
interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citation and
internal quotation marks omitted).

A court must examine: “the facts and

circumstances of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight.” Id. (citation omitted).

Further, reasonableness must be judged

objectively under the circumstances, “from the perspective of a reasonable
officer on the scene,” and allow for the fact “that police officers are often forced
14 

to make split-second judgments-in circumstances that are tense, uncertain, and
rapidly evolving-about the amount of force that is necessary in a particular
situation.” Id. at 396-97. “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers ... violates the Fourth
Amendment.”

Id. (internal quotation marks and

citation

omitted).

“The

‘reasonableness' of a particular use of force must be judged from the perspective
of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Id. (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)).
In addition, Defendants are entitled to qualified immunity with respect to
Plaintiff’s excessive force claim unless “the official violated clearly established
rights of which an objectively reasonable official would have known.” Blouin ex
rel. Estate of Pouliot v. Spitzer, 356 F.3d 348, 358 (2d Cir. 2004); see also Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194, 201 (2001),
the Supreme Court mandated that first, a court must decide whether the facts that
a plaintiff has shown make out a violation of a constitutional right, and then
second, the court must decide whether the right at issue was “clearly
established” at the time of the defendant’s alleged misconduct. Subsequently, in
Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court ruled that courts are
permitted to exercise their discretion in determining which of the two prongs
should be addressed first.
Here, the right to be free from the use of excessive force under the Fourth
Amendment has long been clearly established. Green v. Montgomery, 219 F.3d
52, 59 (2d Cir. 2000); Carey v. Maloney, 480 F. Supp. 2d 548, 556 (D. Conn. 2007).
15 

However, “the objective reasonableness [Graham] test is met-and the defendant
is entitled to immunity-if officers of reasonable competence could disagree on the
legality of the defendant's actions.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir.
1995).

“[T]he question for the purposes of qualified immunity is whether a

reasonable officer could have believed that the use of force alleged was
objectively reasonable in light of the circumstances.” Id. at 425. In addition where
deadly force has been used, “deadly force is reasonable only if the officer has
probable cause to believe that the suspect poses a significant threat of death or
serious injury to the officer and others.

The threat must be immediate.”

Woodward v. Town of Brattleboro, 148 Fed. Appx. 13, 14 (2d Cir. 2005) (citation
omitted).
Greenwald argues that there is a genuine dispute as to the material fact
regarding whether he aimed his rifle at the Defendant Officers which precludes
summary judgment. Greenwald reasons that since he was not aiming his rifle at
the Defendant Officers then the Officers could not have a reasonable belief that
he was posing a significant threat of death or serious injury. However, even if
Defendants applied more force than was actually required by the situation, a
government official is protected from liability as “the protection of qualified
immunity applies regardless of whether the government official's error is ‘a
mistake of law, a mistake of fact, or a mistake based on mixed questions of law
and fact.’” Pearson, 55 U.S. at 231 (citation omitted). Even when viewing the
facts in the light most favorable to the non-moving party, a reasonable officer
could conclude that Greenwald posed a significant and immediate threat of death
16 

or serious injury under the circumstances presented at the time. After crediting
Greenwald’s version of the facts which assumes that Greenwald was not actively
aiming his rifle at the Officers, the Court finds that Defendant O’Brien made a
reasonable mistake of fact when he concluded that Greenwald was aiming his
shotgun at him and Kulas which justified his decision to use deadly force.
Greenwald also argues that O’Brien and Kulas’s accounts of the minutes
leading up to the shooting differ and therefore cannot be true. O’Brien testified
that Greenwald took a belated stance while Kulas testified that Greenwald was
wielding the gun towards them. See [Dkt. #55, Pl. Ex. F, Kulas Dep. at 51-52 and
Dkt. #55, Pl. Ex. D, O’Brien Dep. at 37-38]. While the Court agrees that the
accounts differ, the Court does not find this to be fatal to a conclusion that the
Defendants made a reasonable mistake of fact. If the Court credits Defendant
Kulas’s account, a reasonable officer would still conclude that at the time
Greenwald was posing a significant and immediate threat of death or serious
injury. Moreover, Kulas’s account is consistent with Greenwald’s own testimony
regarding the minutes leading up to the shooting. Greenwald testified that while
he would not say that he was aiming his rifle at O’Brien and Kulas “the barrel of
the gun would be in their general direction.” [Dkt. #49, Def. Ex. L, Greenwald Dep.
at 78]. Therefore crediting Plaintiff’s own account, it is undisputed that
Greenwald was proceeding uphill directly towards O’Brien and Kulas while
holding his shotgun with the barrel “in their general direction.” [Id.].
In addition, “[w]here officers attempting to make an arrest used deadly
force, the objective reasonableness inquiry, for purposes of either Fourth
17 

Amendment liability or qualified immunity, depends only upon the officer's
knowledge of circumstances immediately prior to and at the moment that he
made the split-second decision to employ deadly force.” O’Bert ex rel. Estate of
O’Bert v. Vargo, 331 F.3d 29, 36-37 (2d Cir. 2003). Further, the Court “must be
cognizant of the fact that the officers are often making split-second judgments in
tense, uncertain, and rapidly evolving circumstances.” Graham, 490 U.S. at 39697. Here, it is undisputed that when O’Brien and Kulas encountered Greenwald at
the cul de sac on Farmstead Road they had been informed that a code 10-0,
which is the code for officer in trouble, had been called by Officer Phelps. [Dkt.
#49, Defs. Local Rule 56(a)1 Statement of Material Facts at ¶¶8-14]. They had also
been informed that their fellow Officers had encountered an individual who had
been reported as suicidal, was carrying a large shotgun, had fled into the woods
north of Farmstead Road and that their fellow officers feared that this individual
was backtracking and trying to come up behind them. See [Dkt. #49, Defs. Ex. A,
Kulas Statement and Dkt. # 49, Defs. Ex. D, Phelps Statement].
Moreover, it is undisputed that Greenwald heard the Defendant Officers
shouting at him and did not respond to their shouts. Greenwald admits that he
was unable to tell “any of those words that were being yelled.” [Dkt. #55, Pl. Ex.
A Greenwald Dep. at 121]. In addition, Greenwald admits that he is not positive
that the Officers did not instruct him to drop his weapon. In his affidavit
submitted in support of his opposition to Defendants’ motion for summary
judgment Greenwald states “I could not see the defendant officer’s uniforms and
could not hear any words of identification or instructions to drop my weapon
18 

(even if there were such words).” [Dkt. #55, Pl. Ex. B, Greenwald Affidavit at ¶13].
Therefore, Greenwald admits that he was not responding to the shouts and
instructions of the Officers, which may or may not have included an instruction to
drop his weapon. In addition, O’Brien and Kulas could not have known that
Greenwald did not realize or recognize that he was being pursued by uniformed
police officers nor could they have known that Greenwald did not intend to aim
his rifle at them or hurt anyone. It was therefore objectively reasonable for
O’Brien and Kulas to conclude that Greenwald was aware that he was being
pursued by uniformed police officers.
Here, when viewing the sum total of the “officer’s knowledge of the
circumstances immediately prior to and at the moment he made the split-second
decision to employ deadly force,” a reasonable officer could conclude that it was
objectively reasonable for O’Brien to determine there was probable cause to
believe that Greenwald posed a significant and immediate threat of death or
serious injury to the officer and others. Vargo, 331 F.3d at 36-37. When O’Brien
made the split-second decision to fire two shots at Greenwald, he was confronted
with an individual who he reasonably believed was emotionally distressed, had
intentionally fled from his fellow police officers who felt they were endangered by
his actions, was not responding to his or the other Officer’s instructions, and was
proceeding uphill directly towards him, holding a shotgun with its barrel in his
direction. A reasonable officer upon confronting the same circumstances would
objectively conclude there was probable cause to believe that Greenwald posed a
significant and immediate threat of death or serious injury. While Greenwald
19 

himself may have been in a panic and was frightened, did not realize that he was
being pursued by police, did not intend to harm anyone, and was not intentionally
aiming his rifle at O’Brien and Kulas that was not readily apparent or knowable to
O’Brien during the moment he made the split-second decision to employ deadly
force. Accordingly, it was a reasonable mistake of fact for O’Brien to conclude
that Greenwald posed a significant and immediate threat of death or serious
injury.
Further, the Court finds the Tenth Circuit’s reasoning in Wilson v. Meeks to
be persuasive and instructive. Wilson v. Meeks, 52 F.3d 1547, 1549-54 (10th Cir.
1995), abrogated on other grounds by Saucier v. Katz, 533 U.S. 194 (2001). In
Meeks, the defendant officer, Meeks, suspected that the deceased, Wilson, was
holding a weapon but could not see what was hidden behind Wilson’s leg.
Officer Meeks instructed Wilson that he wanted to see his hand to which Wilson
responded no. It was undisputed that when Wilson brought his hand forward
holding a gun that Meeks shot and killed Wilson. Plaintiffs argued that Wilson
was holding the gun in a “surrender position,” and since he was not aiming the
gun at Meeks, Wilson was subjected to excessive force when he was shot.
However, the Tenth Circuit concluded that “any police officer in Officer Meek’s
position would reasonably assume his life to be in danger when confronted with a
man whose finger was on the trigger of a .357 magnum revolver pointed in his
general direction. The exact manner in which Mr. Wilson held out the gun is not
dispositive.” Id. at 1554. The Tenth Circuit further explained that the “inquiry
here is not into Mr. Wilson’s state of mind or intentions, but whether, from an
20 

objective viewpoint and taking all factors into consideration, Officer Meeks
reasonably feared for his life. Qualified immunity does not require that the police
officer know what is in the heart or mind of his assailant. It requires that he react
reasonably to a threat. Officer Meeks did so.” Id. at 1553-54.
The Tenth Circuit’s reasoning in Meeks is entirely consistent with the
Second Circuit’s formulation of the objective reasonableness inquiry which
“depends only upon the officer's knowledge of circumstances immediately prior
to and at the moment that he made the split-second decision to employ deadly
force.” Vargo, 331 F.3d at 36-37. In the present case, Defendant O’Brien could
not have known what was in the heart and mind of Greenwald and likewise
encountered a situation in which he reasonably assumed his life to be in danger
when confronted with a man holding a shotgun in his general direction. See also
Woodward v. Town of Battleboro, No.CIV.1:02CV35, 2006 WL 36906, at *8 (D.Vt.
Jan. 5, 2006) (Plaintiff “may have, in fact, not intended harm to anyone in the
room. Nevertheless, the onus is not on the police to discern that intent. They
must deal with the objective facts before them.

Prior to the shooting, Mr.

Woodward had been incoherent and anxious, uncooperative and armed, and
within a zone where he could inflict damage on someone ... Under these
circumstances, the defendants are entitled to qualified immunity.”); Estate of
Chipwata v. Rovinetti, No.302CV858, 2004 WL 722166, at *6 (D. Conn. March 31,
2004) (finding that officer had reasonable belief that he faced a significant threat
of death or bodily harm when the deceased was “known to officer as the suspect
in an alleged violent assault, was advancing on the officer, knife in hand, ignoring
21 

instruction to drop the weapon,” while shouting “take the knife” even though
Plaintiff argued that the deceased was only attempting to surrender the knife).
Accordingly, reasonable officers would agree that Defendant O’Brien had an
objectively reasonable belief that Greenwald was an immediate threat to his own
life and the lives of others and that he reacted reasonably to that threat.
Accordingly, Defendants’ motion for summary judgment as to Greenwald’s
excessive force claim is granted.
Defendants argue that Greenwald’s excessive force claim should also be
barred by the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477
(1994).

In particular, Defendants argue that by pleading guilty to assault,

Greenwald has implicitly acknowledged that the officers did not use excessive
force. However, the Second Circuit has held that “Heck acts only to bar § 1983
suits when the plaintiff has a habeas corpus remedy available to him (i.e., when
he is in a state of custody).” Green v. Montgomery, 219 F.3d 52, 60 n.3 (2d Cir.
2000). Because Greenwald is not presently in state custody, his § 1983 remedy is
not barred by Heck.
Analysis of False Arrest Claim
Defendant moves for summary judgment as to Greenwald’s false arrest
claim arguing that the Defendant Officers had probable cause to arrest Greenwald
and that Greenwald pled guilty under the Alford doctrine to attempted assault of
police officers under Conn. Gen. Stat. §53a-49 and §53a-167c.

In analyzing a

Section 1983 claim of false arrest or imprisonment, federal courts generally look

22 

to the law of the state where the arrest occurred. Davis v. Rodriguez, 364 F.3d
424, 433 (2d Cir. 2004).
Under Connecticut law, “‘[f]alse imprisonment, or false arrest, is the
unlawful restraint by one person of the physical liberty of another,’” Russo v. City
of Bridgeport, 479 F.3d 196, 204 (2d Cir. 2007) (quoting Outlaw v. City of Meriden,
43 Conn. App. 387, 392 (1996)). In order to succeed on a false arrest claim, a
plaintiff must establish that “(1) the defendant intentionally arrested him or had
him arrested; (2) the plaintiff was aware of the arrest; (3) there was no consent to
the arrest; and (4) the arrest was not supported by probable cause.” Shattuck v.
Town of Stratford, 233 F. Supp. 2d 301, 306 (D. Conn. 2002). “The existence of
probable cause to arrest constitutes justification and is a complete defense to an
action for false arrest, whether that action is brought under state law or under §
1983.” Walczyk v. Rio, 496 F.3d 139, 152 n.14 (2d Cir. 2007) (internal quotation
marks and citation omitted).
Probable cause to arrest exists where an Officer has “knowledge or
reasonably trustworthy information sufficient to warrant a person of reasonable
caution in the belief that an offense has been committed by the person to be
arrested.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal quotation
marks and citations omitted). Moreover, “a claim for false arrest turns only on
whether probable case existed to arrest a defendant, and ... it is not relevant
whether probable cause existed with respect to each individual charge, or,
indeed, any charge actually invoked by the arresting officer at the time of arrest.”
Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006).

“Probable cause is to be
23 

assessed on an objective basis.” Zellner v. Summerlin, 494 F.3d 344, 369 (2d Cir.
2007). “Whether probable cause exists depends upon the reasonable conclusion
to be drawn from the facts known to the arresting officer at the time of the arrest.”
Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (citation omitted).

“Whether

probable cause existed is a question that may be resolved as a matter of law on a
motion for summary judgment if there is no dispute with regard to the pertinent
events and knowledge of the officer.” Weinstock v. Wilk, 296 F. Supp.2d 241, 256
(D. Conn. 2003) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 2003)).
“With respect to qualified immunity, the Supreme Court has recently
reminded us that ‘the appropriate question is the objective inquiry of whether a
reasonable officer could have believed that [his actions were] lawful, in light of
clearly established law and the information the officer [ ] possessed.’” Martinez
v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000) (quoting Wilson v. Layne, 526 U.S.
603 (1999)). “Lawful arrest, i.e., arrest pursuant to probable cause, requires the
arresting officer to have “knowledge or reasonably trustworthy information
sufficient to warrant a person of reasonable caution in the belief that an offense
has been committed by the person to be arrested.” Id. (internal quotation marks
and citation omitted). “[I]n the context of a qualified immunity defense to an
allegation of false arrest, the defending officer need only show ‘arguable’
probable cause.” Id. “Arguable probable cause exists when a reasonable police
officer in the same circumstances and possessing the same knowledge as the
officer in question could have reasonably believed that probable cause existed in
the light of well established law.” Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir. 1997)
24 

(internal quotation marks and citation omitted). Arguable probable cause exists
then “‘if either (a) it was objectively reasonable for the officer to believe that
probable cause existed, or (b) officers of reasonable competence could disagree
on whether the probable cause test was met.’” Escalera v. Lunn, 361 F.3d 737,
743 (2d Cir. 2004) (internal quotation marks and citation omitted). 
“Although the tests for probable cause and arguable probable cause are
thus not congruent, the concept of probable cause is the same in both inquiries.
Probable cause existed if at the moment the arrest was made ... the facts and
circumstances within the [officers'] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in believing’
that [the suspect] had violated the law, and an officer sued under the Fourth
Amendment for false arrest is entitled to immunity if a reasonable officer could
have believed that probable cause existed.”

Zellner, 494 at 370 (internal

quotation marks and citations omitted) (emphasis in the original). “Accordingly,
like the probable cause analysis, the analysis of a qualified immunity defense to
claims that official actions were taken without probable cause entails an inquiry
into the facts known to the officer at the time of the arrest a court must evaluate
the objective reasonableness of the [Officer's] conduct in light of ... the
information the ... officers possessed.” Id. (internal quotation marks and citations
omitted). 
 As discussed above, there is no dispute with regard to the Defendant

Officers’ knowledge nor is there a genuine issue of material fact in dispute as to
the pertinent events that transpired. Here when viewing the facts in the light
25 

most favorable to Greenwald, there was probable cause for Greenwald’s arrest
for attempted assault of a police officer.

It is undisputed that Greenwald’s

girlfriend reported to the police that Greenwald was suicidal and in possession of
a firearm. As discussed above, it is also undisputed that the Defendant Officers
observed Greenwald with his firearm in his backyard.

When the Officers

approached him Greenwald behaved in what the Officers reasonably believed
was an evasive and aggressive manner. Greenwald admittedly did not respond to
the Officers’ shouts and instructions and had fled from the police into the woods
while carrying his firearm in a manner that reasonably appeared to the Officers as
if he was aiming his shotgun at them. It is undisputed that the Officers called a
code 10-0 for officer in trouble indicating their belief that Greenwald was posing a
threat to the Officers’ safety. As discussed above, it was objectively reasonable
for the Officers to assume that Greenwald was aware that he was being pursued
by police officers when he fled. Moreover, the Defendant Officers can be said to
have reasonably trustworthy information as the basis for their conclusion that
Greenwald had violated the law was their own interactions and personal
observations of Greenwald’s behavior. See Johnson v. Police Officer #17969,
No.99CIV3964, 2000 WL 1877090, at *3 (S.D.N.Y. Dec. 27, 2000) (“Based on the
direct observations of Officer Fernandez, it is apparent that probable cause
supported plaintiff's arrest.”). Therefore the facts and circumstances within the
Defendant Officers’ knowledge and of which they undoubtedly had reasonably
trustworthy information were sufficient to warrant a prudent man in believing that
Greenwald had violated the law.

26 

Even assuming arguendo that Greenwald’s arrest was not supported by
probable cause, the Defendant Officers would be entitled to qualified immunity as
it was objectively reasonable for the Officers to believe probable cause existed.
As discussed above, it was not readily apparent or knowable to the Officers that
Greenwald was in a panic, did not realize he was being chased by police, was not
intentionally aiming his firearm at the Officers, and did not intend to harm
anyone. It was therefore objectively reasonable for the Officers to conclude that
probable cause for arrest existed when confronted with an individual who they
reasonably believed was fleeing from the police, taking aim with his firearm at the
officers while being non-responsive to the officers’ instructions. Accordingly, it
was objectively reasonable for the Officers to conclude that Greenwald was
behaving in an aggressive and evasive manner such that he was attempting to
assault a police officer in violation of the law.
Since the Court has concluded that probable cause supported Greenwald’s
arrest and probable cause is a complete defense to a false arrest claim, the Court
need not address whether Greenwald’s Aflord plea precludes his false arrest
claim.
Analysis of Supervisory Liability of Defendant Chief Custer
Defendants also argue that Plaintiffs have failed to allege the personal
involvement of Defendant Chief Custer in the alleged fourth amendment
violations. “An individual cannot be held liable for damages under § 1983 merely
because he held a high position of authority,” but can be held liable if he was

27 

personally involved in the alleged deprivation” Back v. Hastings On Hudson
Union Free School Dist., 365 F.3d 107, 127 (2d Cir. 2004) (internal quotation marks
and citations omitted). In the Second Circuit, personal involvement has
traditionally been shown by the following factors articulated in Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995):
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation through a
report or appeal, failed to remedy the wrong, (3) the defendant created a
policy or custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who committed the wrongful
acts, or (5) the defendant exhibited deliberate indifference ... by failing to
act on information indicating that unconstitutional acts were occurring.
Id.
The Court notes that the recent Supreme Court decision in Ashcroft v. Iqbal
129 S. Ct. 1937 (2009) has recently called into question whether all of the Colon
factors remain a basis for establishing supervisory liability and “no clear
consensus has emerged among the district courts within this circuit.” Aguilar v.
Immigration and Customs Enforcement Div. of the United States, No.07CIV8224,
2011 WL 3273160, at *10 (S.D.N.Y. August 1, 2011) (collecting cases). However,
for purposes of deciding the present motion, it is not necessary for the Court to
determine the standard for supervisory liability in connection with Fourth
Amendment violations as Plaintiffs have failed to establish facts that would
satisfy any of the Colon factors.
It is undisputed that Custer did not directly supervise the Defendant
Officers in the performance of their regular and usual police duties and therefore
Custer could have not directly participated in the alleged constitutional violation.

28 

[Dkt. #49, Defs. Local Rule 56(a)1 Statement of Material Facts at ¶63]. Moreover,
Greenwald has failed to present any facts indicating that Custer was aware that
his subordinate officers had previously engaged in the unlawful application of
excessive force in responding to calls regarding suicidal individuals. In addition,
Greenwald has presented no facts indicating how Custer was grossly negligent in
supervising the Defendant Officers or that Custer created a policy or custom
under which unconstitutional practices occurred.
Deliberate indifference “requires a showing that the official [knew] of and
disregard[ed] an excessive risk to inmate safety; the official must both [have
been] aware of facts from which the inference could be drawn and that a
substantial risk of serious harm exist[ed], and he must also [have] draw[n] the
inference.” Coronado v. Goord, No.99CIV.1674, 2000 WL 1372834, at *4 (S.D.N.Y.
Sept. 25, 2000) (internal quotation marks and citation omitted). Here, Greenwald
has also failed to present any evidence that Custer had notice that the Defendant
Officers would likely respond to a suicide intervention call with unlawful
excessive force. In fact, Custer testified that the Rocky Hill Police Department
received approximately 50 suicide intervention calls each year and that during his
tenure as chief none of the prior suicide intervention calls involved the use of
deadly force. [Dkt. #55, Pl. Ex. C, Custer Dep. at 47-49]. Accordingly, Defendants
have failed to raise any genuine issue of material fact regarding Custer’s personal
involvement in the alleged constitutional violations and accordingly a reasonable
jury could not conclude that Custer was personally involved in the alleged

29 

unconstitutional conduct. Moreover, Defendant Custer would also be protected
from suit by qualified immunity as discussed above.
Analysis of Municipal Liability
Greenwald argues that Rocky Hill failed to provide the Defendant Officers
with training in suicide intervention procedures.

Plaintiffs can only sue a

municipality under 42 U.S.C. § 1983 for constitutional violations of its employees
occurring pursuant to an official policy or custom. Monell v. Dep’t of Soc. Servs.,
436 U.S. 658, 694 (1978). “Specifically, Monell’s policy or custom requirement is
satisfied where a local government is faced with a pattern of misconduct and
does nothing, compelling the conclusion that the local government has
acquiesced in or tacitly authorized its subordinates' unlawful actions ... Such a
pattern, if sufficiently persistent or widespread as to acquire the force of law, may
constitute a policy or custom within the meaning of Monell.” Reynolds v. Guiliani,
506 F.3d 183, 192 (2d Cir. 2007) (citations omitted).

In addition, “[i]n limited

circumstances, a [municipal entity's] decision not to train certain employees
about their legal duty to avoid violating citizens' rights may rise to the level of an
official government policy for purposes of Section 1983.

A municipality's

culpability for a deprivation of rights is at its most tenuous where a claim turns
on a failure to train.” Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011). In
addition, a “failure to train will trigger municipal liability only where the failure to
train amounts to deliberate indifference to the rights of members of the public
with whom the employees will interact.” Green v. City of New York, 465 F.3d 65,
80 (2d Cir. 2006) (internal quotation marks and citation omitted).
30 

The Second Circuit has established three requirements for showing that a
lack of training results in deliberate indifference. Walker v. City of New York, 974
F.2d 293, 297-98 (2d Cir. 1992).

Plaintiffs must submit evidence demonstrating

“that a policy-maker knows ‘to a moral certainty’ that her employees will confront
a given situation.” Id. at 297. Second, “the plaintiff must show that the situation
either presents the employee with a difficult choice of the sort that training or
supervision will make less difficult or that there is a history of employees
mishandling the situation.” Id. “Finally, the plaintiff must show that the wrong
choice by the city employee will frequently cause the deprivation of a citizen's
constitutional rights.” Id. at 298. At the summary judgment stage, an additional
requirement exists: a plaintiff must “identify a specific deficiency in the city's
training program and establish that the deficiency is closely related to the
ultimate injury, such that it actually caused the constitutional deprivation.”
Amnesty Am. v. Town of Hartford, 361 F.3d 113, 129 (2d Cir. 2004). The first and
second requirements may be established through “proof of repeated complaints
of civil rights violations ... followed by no meaningful attempt on the part of the
municipality to investigate or to forestall further incidents.” Vann v. City of New
York, 72 F.3d 1040, 1049 (2d Cir.1995). The causation requirement may be
satisfied by proof that the municipality's inaction “actually caused or was the
moving force behind the alleged violations.” Reynolds, 506 F.3d at 193.
First, Greenwald has failed to present any facts demonstrating a
widespread pattern of misconduct to demonstrate a policy or custom within the
meaning of Monell. Greenwald has failed to present any facts indicating that
31 

Rocky Hill had notice that its course of training regarding individuals in crisis
was deficient. Further, Greenwald has also failed to present evidence that the
Rocky Hill Police Department mishandled similar situations in which officers
responded to suicide intervention calls with excessive force.

As discussed

above, the Rocky Hill Police Department responded to approximately 50 suicide
intervention calls a year and that during Custer’s tenure as chief none of the prior
suicide intervention calls involved the use of deadly force. [Dkt. #55, Pl. Ex. C,
Custer Dep. at 47-49]. See Tyrrell v. Seaford Union Free School Dist., No.CV-084811, 2011 WL 2410722, at *25 (E.D.N.Y. June 1, 2011) (“plaintiff has not
established that the Seaford UFSD had notice that its training of its employees
with respect to their general supervision of students was deficient in any way, or
that there had been a pattern of similar constitutional violations by Seaford UFSD
employees. ‘Without notice that a course of training is deficient in a particular
respect, decision makers can hardly be said to have deliberately chosen a
training program that will cause violations of constitutional rights.’”) (quoting
Connick, 131 S. Ct. at 1360); Scruggs v. Meriden Bd. of Educ., No.3:03-cv-2224,
2007 WL 2318851, at *15 (D. Conn. Aug. 10, 2007) (“Although there is evidence of
Defendants' mishandling Daniel's case, there is no evidence that the Board
should have been on notice that training and supervision of its employees should
be better implemented. Plaintiff has presented no evidence regarding school
administrators' mishandling similar situations in which students with special
education needs were bullied or harassed by their classmates … Plaintiff has
failed to raise any genuine issue of material fact as to the Defendant Board's

32 

failure to train or supervise its employees”). Accordingly, the town of Rocky Hill
could not have been deliberately indifferent if it was not aware that its training
program was deficient and the cause of unconstitutional conduct.
The Court notes that a plaintiff may successfully allege a failure-to-train
claim without showing a pattern of constitutional violations “in a narrow range of
circumstances.” Board of County Com’rs of Bryan County, Okl. v. Brown, 520
U.S. 397, 409 (1997). Under such circumstances, “a violation of federal rights
may be a highly predictable consequence of a failure to equip law enforcement
officers with specific tools to handle recurring situations.

Where there is no

evidence of other similar occurrences, a plaintiff must show that the alleged
constitutional violation was so highly predictable that it reflected a conscious
disregard of the municipality to this deprivation. Sayers v. City of New York,
No.CV-04-3907, 2007 WL 914581, at *6 (E.D.N.Y. March 23, 2007) (internal
quotation marks and citations omitted).

Here, Greenwald has failed to

demonstrate that the application of excessive force when responding to suicide
intervention calls was a highly predictable consequence of failure to train suicide
intervention procedures. Moreover, the fact that the Police Department had for
years responded to numerous suicide intervention calls without a single incident
of excessive force further undermines a conclusion that excessive force is the
highly predictable consequence of such a failure to train.
Second, while Greenwald argues in his opposition to the motion for
summary judgment that he intends to call an expert, Geoffrey P. Alpert, Ph.D. to
testify that the Defendant Officers actions deviated materially from national
33 

standards in suicide intervention procedures, Greenwald has failed to present
any evidence demonstrating that the failure to train suicide intervention
procedures caused the Defendant Officers to apply excessive force against him.
[Dkt. #55, Pl. Mem. in opposition to Summary Judgment at 31]. Greenwald has
therefore failed to demonstrate a direct causal link between the municipal action
and the alleged deprivation of his federal rights.

The goal of a suicide

intervention course would presumably be to teach officers techniques that would
help the officers prevent suicides from occurring. It is unclear to the Court how
such techniques would have prevented the officers from applying excessive force
when faced with the situation where an individual is advancing while holding a
loaded gun in the direction of the officer.

In fact, as Defendants argue

Greenwald’s expert “admitted that the defendant officers’ conduct was in
compliance with the standards expected of reasonable police officers that are
faced with an individual pointing a loaded shot gun at them.” [Dkt. #56, Defs.
Reply Mem. in support of Summary Judgment at 6]. There is simply no evidence
in the record demonstrating that the failure to train was the cause of the alleged
constitutional violation or that the Rocky Hill was aware that such a failure to
train would result in such unconstitutional conduct. See Carr v, Castle, 337 F.3d
1221, 1230 (10th Cir. 2003) (“the fact that someone with the opportunity to prepare
an expert report at leisure opines that well-trained officers would have performed
differently under pressure does not rise to the legal standard of deliberate
indifference on the part of the City, for Carr fails to point to any evidence placing
the City on actual or constructive notice that the asserted failures to train were

34 

substantially certain to result in a constitutional violation.”).

Accordingly,

Defendant Town of Rocky Hill is entitled to summary judgment.
Remaining State Law Claims
Having granted summary judgment as to the federal law claims against
Defendants, the Court declines to exercise its supplemental jurisdiction over
Greenwald’s state law claims. “Supplemental or pendent jurisdiction is a matter
of discretion, not of right.

Thus, the court need not exercise supplemental

jurisdiction in every case.” Nicholson v. Lenczewski, 356 F.Supp.2d 157, 165-66
(D. Conn. 2005) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 715-26 (1966)).
“The federal court should exercise supplemental jurisdiction and hear a state
claim when doing so would promote judicial economy, convenience and fairness
to the litigants. The court should decline to exercise supplemental jurisdiction,
however, when state law issues would predominate the litigation or the federal
court would be required to interpret state law in the absence of state precedent.
In addition, the court may decline to exercise supplemental jurisdiction where the
court has dismissed all claims over which it has original jurisdiction.” Id. (citing
28 U.S.C. § 1367(c)(3)); Carnegie Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988) (“in the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction
doctrine-judicial economy, convenience, fairness, and comity-will point toward
declining to exercise jurisdiction over the remaining state-law claims”).

35 

Here, while this case is several years old and nearly ready for trial, the
Court has not ruled on any prior substantive motions and therefore has not
developed familiarity with any of the state law issues in this case. Moreover,
several of the remaining claims involve state constitutional law questions which
are best resolved by state courts.

See Horton v. Town of Brookfield,

No.CIV.A.3:98CV01834, 2001 WL 263299, *9 (D. Conn. March 15, 2001) (“In
balancing the factors in this case, the court declines to exercise supplemental
jurisdiction over the remaining claims. The case is two years old and nearly
ready for trial. In addition, the court has ruled on various dispositive motions and
developed familiarity with the issues in the case. However, none of the court's
rulings have specifically addressed the remaining state law claims, and the court
is not familiar with those claims … The claims are purely state law claims and,
particularly since some of them involve issues of state constitutional law, are
better decided by the state courts.”). Since the remaining claims are purely state
law claims, the Court declines to exercise jurisdiction over those claims. Those
claims are dismissed without prejudice to refilling in state court.
Conclusion
Based upon the above reasoning, the Defendants’ [Dkt. #47] motion for
summary judgment is GRANTED.
IT IS SO ORDERED.

_____/s/___________
Hon. Vanessa L. Bryant
36 

United States District Judge

Dated at Hartford, Connecticut: October 17, 2011

37