Muschette et al v. West Hartford et al
Filing
172
ORDER denying 163 Motion for Summary Judgment. Defendants' motion for summary judgment is denied without prejudice to renewal in state court consistent with the attached ruling and order. The Clerk may enter judgment dismissing the claims under § 1983 with prejudice and dismissing the state law claims without prejudice to refiling in state court. So ordered. Signed by Judge Robert N. Chatigny on 3/25/2020. (Rickevicius, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
AUDLEY and JUDITH MUSCHETTE
on behalf of A.M.,
Plaintiffs,
v.
TOWN OF WEST HARTFORD and
PAUL W. GIONFRIDDO,
Defendants.
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3:13-cv-1337(RNC)
RULING AND ORDER
This excessive force case brought against a Connecticut
police officer and his municipal employer under 42 U.S.C. § 1983
has been remanded following an interlocutory appeal from a
ruling by Judge Eginton denying the officer’s motion for summary
judgment based on qualified immunity.
Gionfriddo, 910 F.3d 65 (2d Cir. 2018).
See Muschette v.
In accordance with the
Second Circuit’s decision on the appeal, judgment will be
entered in favor of the officer on the § 1983 claim, the Court
of Appeals having determined that qualified immunity applies.
Dismissal of the § 1983 claim does not resolve the case,
however, because state law claims remain: specifically, claims
against the officer for assault and battery, intentional
infliction of emotional distress, and negligence; and a claim
against the officer’s municipal employer for indemnification.
Pending is a motion for summary judgment filed by the defendants
with regard to the state law claims.
1
Because only the state law claims remain to be adjudicated,
the question arises whether supplemental jurisdiction should be
exercised over these claims as permitted by 28 U.S.C. § 1367.
Whether to exercise supplemental jurisdiction over state law
claims is a discretionary decision informed by “the values of
judicial economy, convenience, fairness, and comity.”
Mellon Univ. v. Cahill, 484 U.S. 343, 350 (1988).
Carnegie-
When, as
here, only state law claims remain to be adjudicated, “the
balance of factors will ‘usually’ point toward a declination.”
Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F.3d
106, 118 (2d Cir. 2013) (quoting Carnegie-Mellon, 484 U.S. at
350 n.7); see also Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 3567.3 (“As a general matter, a
court will decline supplemental jurisdiction if the underlying
[federal] claims are dismissed before trial.”).
As the case comes to me, it includes a scheduling order
entered by Judge Eginton stating that “[f]or the sake of
efficiency, the court will exercise supplemental jurisdiction
over plaintiffs’ remaining claims.”
ECF No. 159.
Judge Eginton
entered his order prior to the defendants’ filing of the pending
motion for summary judgment.
Neither party has asked me to
reconsider whether exercising supplemental jurisdiction over the
state law claims continues to be appropriate.
However, after
considering the parties’ arguments in connection with the
2
pending motion, and the authorities cited in their respective
briefs, I think the motion requires resolution of unsettled
issues of state law, which tips the balance in favor of
declining to exercise supplemental jurisdiction.
See 28 U.S.C.
§ 1367(c)(1) (authorizing district courts to decline to exercise
supplemental jurisdiction where a claim “raises a novel or
complex issue of state law”); Dargis v. Sheahan, 526 F.3d 981,
990 (7th Cir. 2008) (federal district court should decline to
exercise supplemental jurisdiction after dismissal of federal
claims unless “it is clearly apparent how the state claims are
to be decided”).
Because of the length of time this case has
been pending, and in view of Judge Eginton’s previous order, I
set forth my reasons for declining to exercise supplemental
jurisdiction in more detail below.
Discussion
Plaintiffs Audley and Judith Muschette bring this action on
behalf of their son, A.M., who was a student at the American
School for the Deaf in West Hartford when this action was filed.
The case arises from an incident at the school in 2013, when
A.M. was twelve.
West Hartford Police Officer Paul Gionfriddo
went to the School in response to a call reporting that a
student was out of control.
On arriving at the scene, Officer
Gionfriddo approached A.M. and undertook to secure him with the
assistance of another officer.
Officer Gionfriddo has testified
3
that he believed A.M. was refusing to put down a large rock,
which could be used as a weapon against the officers and others,
despite the officers’ repeated warnings to A.M. that unless he
let go of the rock he would be tasered.
Officer Gionfriddo
relied on a staff member at the School to communicate his
warnings to A.M. using American Sign Language.
After A.M.
failed to put down the rock, he was tasered once.
According to
Officer Gionfriddo’s testimony, A.M. was still noncompliant, so
he tasered him once more, thereby enabling the other officer to
secure A.M. with handcuffs.
Plaintiffs contend that Officer
Gionfriddo’s use of the taser on their son, especially the
second time, provides a basis for compensatory and punitive
damages under state tort law.
In their motion for summary judgment, Officer Gionfriddo
and the Town argue that the Second Circuit’s decision granting
qualified immunity to the officer operates to preclude the state
law claims.
Plaintiffs correctly respond that the standard
applied by the Second Circuit in deciding the issue of qualified
immunity differs from the standard that applies to the issue of
the officer’s liability under state law.
The federal qualified
immunity standard applied by the Second Circuit in this case
asks whether an officer’s use of force was clearly prohibited by
the Fourth Amendment such that no competent officer could think
the challenged use of force was lawful.
4
See Malley v. Briggs, 475
U.S. 335, 341 (1986) (qualified immunity protects “all but the plainly
incompetent or those who knowingly violate the law”).
The standard
that applies to the issue of the officer’s liability under state
law is found in the state statute governing justification for an
officer’s use of force, Conn. Gen. Stat. § 53a-22(b). 1
Under
this statute, an officer is justified in using force only if he
(1) actually believes his use of force is reasonably necessary
[hereinafter “the subjective component”]; and (2) his subjective
belief is objectively reasonable [hereinafter “the objective
component”].
See State v. Smith, 73 Conn. App. 173, 807 A.2d
500, 515 (2002) (“We conclude that the test for evaluating selfdefense claims pursuant to § 53a-22 is a subjective-objective
test,” in which the jury is first required “to determine whether
the defendant honestly believed” his use of force was necessary
1
Section 53a-22(b) provides that a police officer
is justified in using physical force upon another person
when and to the extent that he or she reasonably believes
such to be necessary to: (1) Effect an arrest or prevent
the escape from custody of a person whom he or she
reasonably believes to have committed an offense, unless
he or she knows that the arrest or custody is
unauthorized; or (2) defend himself or herself or a third
person from the use or imminent use of physical force
while effecting or attempting to effect an arrest or
while preventing or attempting to prevent an escape.
Conn. Gen. Stat. § 53a-22(b). “Where the officer’s actions are
justified [under § 53a-22(b)], he is not liable in tort for
assault or battery.” Margolies v. Millington, No. 16-cv-1872
(JCH), 2019 WL 1110793, at *6 (D. Conn. Mar. 11, 2019).
5
before determining “whether that belief was reasonable, from the
perspective of a reasonable police officer in the defendant’s
circumstances”); see also Outlaw v. City of Hartford, 884 F.3d
351, 369 (2d Cir. 2018) (noting that an officer’s subjective
belief is “an element . . . in the state-law concept of
justification,” citing § 53a-22(b)); Huaman v. Tinsley, No.
3:13-cv-484 (MPS), 2017 WL 4365155, at *10 (D. Conn. Sept. 28,
2017) (noting that an officer’s use of force did not fall within
§ 53a-22(b) because the officer “had no intention of making an
arrest” when using force and therefore used “force he did not
reasonably believe was necessary to make an arrest”).
Given these diverging standards, I agree with plaintiffs
that the Second Circuit’s decision granting qualified immunity
to Officer Gionfriddo does not necessarily foreclose the state
law claims.
The Second Circuit determined that a reasonable
officer in Officer Gionfriddo’s position could believe both: (1)
that A.M. was ignoring the officer’s repeated warnings to put
down the rock; and (2) that in such a situation, use of the
taser to secure A.M. was permitted by the Fourth Amendment.
With regard to the second deployment of the taser, the Court
determined that a reasonable officer could believe both: (1)
that A.M. continued to pose a risk to the safety of the officers
who were attempting to secure him, and (2) that a second
deployment of the taser was therefore lawful.
6
But the Second
Circuit was not asked to decide, and did not decide, whether (1)
Officer Gionfriddo actually believed his use of the taser was
reasonably necessary to secure A.M. (either initially or when he
used it the second time), or (2) whether his belief was
reasonable under § 53a-22(b).
Accordingly, the legal
sufficiency of the state law claims remains to be determined.
Whether the state law claims are adequately supported to
defeat summary judgment turns out to be a matter of some
complexity.
Dealing first with the subjective component of
§ 53a-22(b), which gets the most attention in the parties’
briefs, the parties seem to agree that if an officer has a
subjective belief that her use of force is reasonably necessary,
but her belief is objectively unreasonable, she is potentially
liable for a negligent assault and battery.
The parties sharply
disagree, however, about what happens when the opposite is true
– if the officer uses what is later determined to be objectively
reasonable force, but does so without believing it to be
reasonably necessary.
Defendants seem to suggest that an
officer cannot be held liable for an objectively reasonable use
of force regardless of her motive or intent.
Plaintiffs argue
that even an objectively reasonable use of force is actionable
if the officer did not believe it was reasonably necessary in
the circumstances.
7
Plaintiffs’ argument comports with the ordinary meaning of
the words in § 53a-22(b), as well as the case law cited above
recognizing that the statute includes a subjective component, so
I think their argument is correct.
In this respect, Connecticut
law differs from the law of New York, which includes no
subjective component.
See Tompkins v. City of New York, 50 Fed.
Supp.3d 426, 440 (S.D.N.Y. 2014)(“New York courts analyze . . .
battery claims against police using the same [objective]
standard applicable to excessive force cases under Section
1983.”); see also Girbes-Pierce v. City of New York, 2019 WL
1522631, *7 (E.D.N.Y. April 9, 2019)(officer’s use of pepper
spray supported award of damages under both state law and
§ 1983).
Case law provides little guidance on the standard to be
used in deciding whether an officer’s objectively reasonable use
of force in a given case is nevertheless actionable under
Connecticut law.
The words of the § 53a-22(b), viewed in the
context of state law on governmental immunity, may be construed
to subject an officer to monetary liability for using force
later judged to be objectively reasonable only if the use of
force was willful and wanton, the standard used to determine
whether governmental immunity applies.
See Tryon v. Town of N.
Branford, 58 Conn. App. 702, 755 A.2d 317, 322 (2000)
(governmental immunity does not apply “where the alleged acts
8
involve malice, wantonness, or intent to injure, rather than
negligence”).
There may be other interpretations of the statute
that better reflect the intention of the legislature, however.
Because this issue of statutory interpretation implicates
important state interests, declining to exercise supplemental
jurisdiction in this instance is appropriate as a matter of
comity.
In addition, it is unclear how § 53a-22(b) should be
applied on a motion for summary judgment in an excessive force
case against a police officer when the officer’s subjective
motive or intent is in issue.
As the United States Supreme
Court has recognized, wrongful motive or intent on the part of a
state actor is easy to allege and can be difficult to disprove.
See Crawford-El v. Britton, 523 U.S. 574, 584-85 (1998).
Accordingly, in constitutional tort cases under § 1983 involving
an element of wrongful motive or intent, where qualified
immunity is available as a defense, merely asserting that a jury
could disbelieve the defendant’s explanation for the challenged
action is insufficient to defeat summary judgment.
See id.; see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
In such a case, to defeat a properly supported motion for
summary judgment based on qualified immunity, the plaintiff must
point to “affirmative evidence” from which a jury could
9
reasonably find the wrongful motive or intent.
Crawford-El, 523
U.S. at 600; Anderson, 477 U.S. at 256.
Whether the Connecticut Supreme Court would adopt the same
“affirmative evidence” standard to govern summary judgment in a
case against a police officer implicating the subjective
component of § 53a-22(b), or another more or less rigorous
standard, is unclear.
More rigorous standards have been
suggested for constitutional cases involving allegations of
wrongful motive.
See Crawford-El, 523 U.S. at 602 (Rehnquist,
C.J., dissenting)(arguing for a requirement of “objective
evidence” to support finding that defendant’s explanation is
pretextual); see also Sheppard v. Beerman, 94 F.3d 823, 828 (2d
Cir. 1996) (requiring plaintiff to present “particularized
evidence of direct or circumstantial facts . . . supporting the
claim of an improper motive in order to avoid summary
judgment”).
Even assuming the Connecticut Supreme Court would adopt the
“affirmative evidence” standard that applies in wrongful motive
cases under § 1983, it is unclear how this standard should be
applied when, as here, the officer’s use of force has been
determined to be objectively reasonable for the limited purpose
of federal qualified immunity.
For their affirmative evidence,
plaintiffs rely primarily on the applicable taser policy of the
West Hartford Police Department, which in their view did not
10
permit tasering a passively resisting, deaf, twelve-year old
within two or three minutes of the officers’ arrival on the
scene.
They also rely on expert testimony casting doubt on the
credibility of Officer Gionfriddo’s explanation that he thought
he had to taser A.M. in order to secure him with the assistance
of his fellow officer.
Does this evidence permit a jury to discredit the officer’s
testimony and find that he did not believe his use of the taser
was reasonably necessary for purposes of § 53a-22(b)? 2
Or must
summary judgment be granted in the absence of evidence that
bears more directly on the officer’s state of mind?
In
considering this question, it would be helpful to know which
side would have the burden of proof on the issue of the
officer’s subjective belief if this case were tried.
But even
that is unclear to me at the moment.
The closest precedent seems to be Gryca v. LaJeunesse, No.
84618, 2008 WL 4248993 (Conn. Super. Ct. Aug. 26, 2008).
In
that case, the defendants moved to set aside a jury verdict for
the plaintiff on a claim of assault and battery arguing that it
2
Cf. Walters v. Abouchacra, No. CV126028561S, 2014 WL 1876816,
at *5 (Conn. Super. Ct. Apr. 8, 2014) (noting that officer’s
apparent departure from police department’s use-of-force policy
regarding tasers “may be considered as a relevant factor in
determining the reasonableness of [the officer]’s use of force
in the present case, and is sufficient to create a genuine issue
of fact regarding his deployment of the taser”).
11
was inconsistent with the jury’s verdict for the defendants on
an excessive force claim under § 1983.
Denying the motion, the
Court stated:
The court agrees with the plaintiff’s argument that
there are scenarios under which the verdict for the
plaintiff on the count alleging assault and battery is
not inconsistent with the verdict for the defendants on
the excessive force count brought under 42 U.S.C. § 1983.
Moreover, General Statutes § 53a-22, which applied
solely to the assault and battery count, contains a
subjective aspect, and is not identical to the objective
standard that applies to a claim for excessive force
under 42 U.S.C. § 1983.
Id. at *1.
The quoted statement provides support for plaintiffs’ argument
in opposition to summary judgment.
But the Court’s opinion does
not describe the evidence that was deemed sufficient to support
the verdict on the assault and battery claim (or how the burden
of proof was allocated). 3
In addition, this case also raises a seemingly novel issue
regarding the objective component of the state statute. State
3
In Sampson v. Pia, No. 3:15-cv-359 (SRU), 2017 WL 1138127 (D.
Conn. March 27, 2017), summary judgment was granted on a claim
that an officer’s use of force during an arrest made him liable
to the plaintiff for assault and battery. The Court held that
the claim for assault and battery was barred by collateral
estoppel following a jury verdict in a related criminal case in
which the plaintiff had been convicted of interfering with the
arresting officer. To convict the plaintiff of that offense,
the jury had to determine that the officer’s use of force was
reasonable under the circumstances. There is no indication that
the pro se plaintiff relied on the subjective component of
§ 53a-22(b) to argue that collateral estoppel did not apply.
12
trial courts have often applied the federal standard of
objective reasonableness in determining whether an officer’s use
of force was lawful.
See Dodge v. Verillo, No. 166035336, 2018
WL 3731057, at *4 (Conn. Super. Ct. July 17, 2018) (applying the
objective reasonableness test set out in Graham v. Connor, 490
U.S. 386, 396-97 (1989), to determine whether an officer’s use
of force was justified under § 53a-22(b)); Walters, 2014 WL
1876816, at *3 (describing the question presented by § 53a-22(b)
as whether the officer’s use of force was reasonable under
Graham’s objective test).
And federal judges in Connecticut
have assumed that Fourth Amendment excessive force claims and
state law assault and battery claims are functionally identical
(as they are in New York).
See, e.g., Outlaw v. City of
Hartford, No. 07-cv-01769 (GWC), 2015 WL 13646918 (D. Conn. May
5, 2015), aff’d 884 F.3d 351 (2d Cir. 2018); Jackson v. Town of
Bloomfield, No. 12-cv-00924 (MPS), 2015 WL 1245850, at *17-18
(D. Conn. Mar. 18, 2015).
Cf. Posr v. Doherty, 944 F.2d 91, 95
(2d Cir. 1991) (noting that an excessive force claim was
“substantially identical” in its “essential elements” to a New
York state assault and battery claim).
The standard of objective reasonableness governing the
lawfulness of an officer’s use of force under both federal and
state law is less deferential to the officer than the qualified
immunity standard of objective reasonableness applied by the
13
Second Circuit on the interlocutory appeal.
See Saucier v.
Katz, 533 U.S. 194, 205-06 (2001)(inquiry as to whether officer
is entitled to qualified immunity for use of excessive force is
distinct from inquiry as to merits of excessive force claim; if
officer is mistaken regarding amount of force that is legal, but
mistake is reasonable, qualified immunity applies). 4
In effect,
the qualified immunity standard provides a second layer of
protection for an officer who “reasonably acts unreasonably.”
See Oliveira v. Mayer, 23 F.3d 642, 648-49 (2d Cir.
1994)(Newman, J.) (discussing this distinction); see also Westry
v. Leon, No. 3:17-cv-862 (VAB), 2019 WL 7037746, at *7 (D. Conn.
Dec. 27, 2019)(jury could find that use of taser violated Fourth
Amendment, but officer was protected by qualified immunity).
Here, the Second Circuit’s ruling extends this additional
protection to Officer Gionfriddo without deciding the underlying
issue whether his use of force was reasonable under the Fourth
Amendment.
Therefore, plaintiffs’ claim that his use of force
was unreasonable under the objective component of § 53a-22(b)
remains open for debate.
4
Like the qualified immunity standard, the standard governing
the lawfulness of an officer’s use of force under the Fourth
Amendment is also wholly objective. See Simms v. Village of
Albion, 115 F.3d 1098, 1110 (2d Cir. 1997) (describing the test
used to determine whether a Fourth Amendment violation has
occurred as “wholly objective,” rendering “the subjective intent
of the officers . . . irrelevant”).
14
No Connecticut case has been cited or found that presents
this scenario.
That is, there appears to be no Connecticut case
concerning the availability of a cause of action in tort for an
officer’s allegedly unreasonable use of force under the
objective component of § 53a-22(b) when the use of force has
been determined to be objectively reasonable for purposes of
federal qualified immunity.
handled?
How should this situation be
Assume a hypothetical case in which an officer’s
subjective belief concerning the need to use force is not in
issue, the plaintiff claims the officer’s use of force was not
objectively reasonable as required by § 53a-22(b), and the
officer has been granted qualified immunity under federal law.
In such a case, what showing is necessary to defeat summary
judgment?
Is the plaintiffs’ evidence in this case –
principally, the West Hartford policy governing the use of
tasers in 2013 and the testimony of their expert – sufficient?
In these circumstances, I conclude that the state law claims
should be adjudicated in state court.
Requiring the state law
claims to be refiled in state court will entail additional
expense and delay for the parties.
But the motion papers can be
refiled in state court with such changes as counsel may choose
to make in light of the foregoing discussion.
Moreover,
deferring to the state courts will serve the parties’ interests
by enabling them to obtain an authoritative ruling on the issues
15
presented by the motion.
The only other way to obtain an
authoritative ruling would be to attempt to certify the issues
to the Connecticut Supreme Court, which also would entail
additional expense and delay.
Conclusion
Accordingly, defendants’ motion for summary judgment is
denied without prejudice to renewal in state court consistent
with this ruling and order.
The Clerk may enter judgment
dismissing the claims under § 1983 with prejudice and dismissing
the state law claims without prejudice to refiling in state
court.
So ordered this 25th day of March 2020.
___
__/s/
__
Robert N. Chatigny
United States District Judge
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