Goff et al v. Chivers et al

Filing 70

MEMORANDUM OF DECISION. The attached Memorandum of Decision constitutes the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. Signed by Judge Sarah A. L. Merriam on 5/15/2017. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
SHIRLEY R. GOFF and
:
GREGORY S. GIBSON
:
:
v.
:
:
JOSHUA CHIVERS, et al.
:
:
------------------------------x

Civ. No. 3:15CV00722(SALM)

May 17, 2017

MEMORANDUM OF DECISION
This is an action brought by plaintiffs Shirley E. Goff and
Gregory S. Gibson against defendants, Connecticut State Trooper
Joshua Chivers, Sergeant Ceruti, Sergeant Garcia, and Sergeant
Butters, pursuant to section 1983 of Title 42 of the United
States Code. [Doc. #1]. Plaintiff Goff (“Goff”) alleges that
defendants subjected her to excessive force during the course of
her arrest, in violation of her Fourth Amendment rights. See id.
Plaintiff Gibson (“Gibson”) alleges that defendants violated his
Fourth Amendment rights to be free from false arrest and
malicious prosecution. See id. Plaintiffs seek monetary damages.
A bench trial was held on December 12, 2016. [Doc. #60].1

At the close of plaintiff’s evidence, the Court granted
defendants Garcia, Ceruti and Butters’ motion to be dismissed
from the action. See Doc. #60; see also Transcript of the
December 12, 2016, Bench Trial (hereinafter “Tr.”) 95-6. From
this point forward, “defendant” will refer solely to Chivers.
The Court also reserved ruling on defendant’s oral motion
pursuant to Rule 50(a) of the Federal Rules of Civil Procedure.
The Court construes defendant’s motion as a motion for judgment
1

~ 1 ~

All parties presented testimony and evidence at trial. Four
witnesses testified: plaintiff Shirley Goff; plaintiff Gregory
Gibson; defendant State Trooper Joshua Chivers; and Sergeant
Mark Devine. See Doc. #61. All of plaintiffs’ and defendants’
exhibits were entered into evidence by agreement of the parties.
See Doc. #60; see also Tr. 5, lines 11-12.
Having considered the testimony of the witnesses and all of
the documentary evidence presented, the Court finds that
plaintiff Goff has failed to prove that she was subjected to
excessive force in violation of her Fourth Amendment rights. The
Court further finds that plaintiff Gibson has failed to prove
that he was maliciously prosecuted in violation of his Fourth
Amendment rights. The Court further finds that plaintiff Gibson
has proven by the preponderance of the evidence that he was
falsely arrested, in violation of his Fourth Amendment rights.
In support of these determinations, the following constitutes
the Court’s findings of fact and conclusions of law pursuant to
Rules 52(a) of the Federal Rules of Civil Procedure.

on partial findings under Rule 52(c), as this trial was before
the Court, not a jury. Defendant’s motion [Doc. # 59] is hereby
DENIED AS MOOT, in light of the Court’s ruling set forth below.
See Culhane v. Culhane, 969 F. Supp. 2d 210, 214 n.1 (D. Conn.
2013) (quotation marks and citations omitted).
~ 2 ~

FINDINGS OF FACT
Based on the entire record developed during trial,
comprised of the credible testimony and the admitted exhibits,
including the video recording of the incident, and the posttrial submissions, the Court finds the following facts to have
been established.
At approximately 10:35 p.m. on May 20, 2012, plaintiff Goff
was driving her vehicle in the southbound lane of Route 395 in
Waterford, Connecticut. Gibson was a passenger in the vehicle.
Gibson and Goff had spent several hours together at a casino and
were heading back home. Defendant Connecticut State Police
Trooper Joshua Chivers (“Chivers”) was traveling in his State
Police cruiser when he observed Goff’s vehicle driving
erratically. Chivers activated the lights on his cruiser. Upon
seeing the flashing lights, Goff pulled her vehicle over into
the breakdown lane and stopped.
Chivers, who was alone on patrol, exited the cruiser and
approached the driver’s side window of Goff’s vehicle. After
posing several questions to Goff through her open window,
Chivers asked Goff to exit the vehicle, and she complied. Goff
consented to attempting several sobriety tests. After several
unsuccessful attempts, Goff was unable complete the tests posed,
and became increasingly belligerent. Chivers made the decision
to place Goff under arrest for operating under the influence.
~ 3 ~

At this point, Chivers, who was standing on the shoulder of
the road facing Goff, asked Goff turn around. She complied. He
reached for her arms and placed them behind her. Goff
immediately started to struggle, attempting to free herself from
Chivers’ grasp. She started to step away from him and turned her
body, causing Chivers to lose his grip on her right arm. Chivers
then pushed Goff against the hood of the police cruiser,
attempting to regain control of her arms and to limit her
movement. Goff pushed herself up off the hood of the car and
twisted her right arm and body away from Chivers. Keeping one
hand on Goff’s left arm, and one hand on her back, Chivers again
pushed Goff against the hood of the police cruiser. Goff used
her right arm, which was still free, to brace herself against
the car, and then twisted her body and pulled her left arm away
from Chivers. Chivers pushed his right hand onto her back and
reached back for her left arm; Goff’s head and upper body then
came into contact with the hood of the car.2
Once Chivers regained control of Goff’s left arm, he
radioed for backup. Goff continued to resist, and did not comply
with Chivers’ five subsequent orders to put her right hand
behind her back, continuing to hold on to the front of the car
with her right hand. Chivers then successfully pried Goff’s

The video of the incident, admitted into evidence by
stipulation, captures this entire scene. [Exhibit 502].
2

~ 4 ~

right hand off the car and placed it behind her back, and held
Goff against the hood of the car. When she then complained that
the hood was hot against her face, Chivers immediately moved
Goff to the side of the cruiser. Chivers ordered Goff to stop
moving twenty-three times over the course of the next four
minutes; to stop resisting once; and to keep her hands still
twice; before back-up arrived and Goff was placed in handcuffs.
As Chivers was administering the sobriety tests to Goff,
Gibson remained seated in the passenger seat of Goff’s vehicle,
watching the events transpire through the vehicle’s side view
and rearview mirrors. As Chivers first attempted to place Goff
under arrest, Gibson stood up and stepped out of the car,
remaining next to the passenger’s side front door. Upon seeing
Chivers and Goff begin to struggle, Gibson yelled loudly at
Chivers, expressing his displeasure.3 Chivers directed him to get

There is conflicting evidence as to what, exactly, Gibson
yelled. The police Investigation Report, written by Chivers,
indicates that Gibson called Chivers a “State Pig” and that
Chivers “was beating up his girlfriend.” Exhibit 501. At trial,
Chivers testified that Gibson was yelling back and forth with
Goff, but did not testify as to any specific statement that
Gibson made that was directed towards Chivers. See Tr. 106,
lines 17-23; 133-34, lines 23-1. Chivers did testify that Gibson
did not use any fighting words, and that nothing he said was
threatening. See id. at 124-25, lines 22-7; 126, lines 15-18.
Gibson testified that he said: “What’s wrong with you? You don’t
treat a girl like that.” Id. at 55, lines 22-24; 69, lines 6-8;
82, lines 17-18. To the extent that Gibson made any statements
directed at Chivers, they are unintelligible in the video of the
incident.
3

~ 5 ~

back into the car, and continued to struggle with Goff. Gibson
complied with this order. He sat back down in the vehicle, with
the passenger side door open, his body facing outwards with his
feet outside the vehicle on the ground. Chivers, who was still
attempting to control Goff, yelled at Gibson to sit in the car
and to shut his mouth; Gibson then turned his body to face
forward so that his feet were no longer outside the vehicle, and
closed the car door. He continued to watch and listen to
Chivers’ interaction with Goff through his open window, and he
also lowered the convertible roof of Goff’s car so that he could
have a better view.
After Chivers had Goff under control, but not handcuffed,
Gibson and Goff communicated, with Goff yelling to Gibson from
where she stood with Chivers by the police cruiser, and Gibson
yelling back to Goff from his position in the passenger seat of
Goff’s car. Goff asked Gibson to contact various people by phone
and to call the media. Gibson used his cellphone to call a
friend. He did not get out of the vehicle again until the
officers placed him under arrest.
A sergeant arrived at the scene and assisted Chivers in
handcuffing Goff, who was then placed in the police cruiser.4

At trial, Chivers testified that Sergeant Devine was the
individual who arrived at the scene and assisted Chivers in
handcuffing Goff, and with whom he discussed Mr. Gibson’s
conduct. See Tr. 110, lines 2-5; 111, lines 9-13; 120-21, lines
4

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Chivers then relayed to the sergeant that Gibson had been “out
of control.” Exhibit 502 at 19:55. He told the sergeant that
Gibson had “stepped out of the car once, and he spent the whole
time looking out and screaming at me.” Id. at 21:33. The
sergeant asked: “Do you want to grab him for interference?” Id.
at 21:36. Chivers replied: “Yeah, that works.” Id. at 21:40.
Gibson was then arrested.
Both plaintiffs were transported to the State Police
barracks. Goff was charged with Operating Under the Influence,
in violation of section 14-227a of the Connecticut General
Statutes; Failure to Drive in Proper Lane, in violation of
section 14-236; and Interfering with an Officer, in violation of
section 53a-167a. Photographs were taken of Goff’s thumb, which
was bleeding, and she received medical attention before being
released on a non-surety bond. Goff was then transported by
ambulance from the barracks to the hospital, where a CAT scan
was performed, and a bandage was placed on her thumb. She
received no further treatment for any injuries she sustained in
connection with her arrest.
Gibson was also released on a non-surety bond, and was
given an appearance date to appear in court in connection with

25-21. Sergeant Devine, however, testified that Sergeant Garcia
discussed Mr. Gibson’s conduct with Chivers, and suggested a
charge of Interference. See id. at 166-67, lines 24-10. The
Court finds that this discrepancy is of no consequence.
~ 7 ~

the charge of Interfering with an Officer, in violation of
section 53a-167 of the Connecticut General Statutes. Gibson
hired an attorney to represent him in the criminal matter, and
appeared one time in court before the charge against him was
nolled.
CONCLUSIONS OF LAW
I.

Section 1983
Plaintiffs’ claims are brought pursuant to section 1983 of

Title 42 of the United States Code. “A §1983 claim has two
essential elements: (1) the defendant acted under color of state
law; and (2) as a result of the defendant’s actions, the
plaintiff suffered a denial of her federal statutory rights, or
her constitutional rights or privileges.” Annis v. Cty. of
Westchester, 136 F.3d 239, 245 (2d Cir. 1998). To prevail on a
section 1983 claim, plaintiffs must allege the personal
involvement of the individual defendant. See Costello v. City of
Burlington, 632 F.3d 41, 48–49 (2d Cir. 2011) (citing Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Here, each plaintiff
alleges a Fourth Amendment deprivation. The Court will address
each claim in turn.
II.

Due Process Claim
As an initial matter, plaintiffs’ Complaint contains an

allegation that plaintiffs were deprived of their property
without due process of law. See Doc. #1 at 4. This claim was
~ 8 ~

subject to a ruling on defendants’ motion in limine and was
excluded from trial, absent objection from plaintiffs. See Doc.
#42. At that time, the Court explicitly stated: “The Court also
notes that plaintiffs did not request any substantive jury
instructions related to the Due Process claim, see Doc. #30-3,
leading the Court to question whether this claim has been
abandoned.” Doc. #42.
Indeed, plaintiffs did not include any discussion of this
claim in their proposed Findings of Fact and Conclusions of Law.
See Doc. #48. During the December 5, 2016, Pretrial Conference
in this matter, counsel for plaintiffs confirmed that plaintiffs
were pursuing an excessive force claim as to plaintiff Goff, and
false arrest and malicious prosecution claims as to plaintiff
Gibson. See Transcript of the December 5, 2016, Pre-Trial
Conference at 8, lines 5-16 (“THE COURT: [W]e reviewed your
proposed findings of fact and conclusions of law, and I want to
make sure we are all on the same page about what the current
claims are by each plaintiff in this case. So my read, Mr.
Merly, was that Ms. Goff has only an excessive force case at
this point, and Mr. Gibson has a false arrest and [a] malicious
prosecution claim; is that right? MR. MERLY: That’s correct,
your Honor.”).
The Court views this statement as an explicit abandonment
of the Due Process claim. However, even “[w]here abandonment [of
~ 9 ~

a claim] ... is not explicit but such an inference may be fairly
drawn from the papers and circumstances viewed as a whole,
district courts may conclude that abandonment was intended.”
Jackson v. Fed. Exp., 766 F.3d 189, 196 (2d Cir. 2014).
Accordingly, based on the above, the Court deems plaintiffs’ due
process claim abandoned. See Bahrami v. Ketabchi, No.
05CV3829(RMB), 2009 WL 513790, at *10 (S.D.N.Y. Feb. 27, 2009)
(deeming defendant’s counterclaims abandoned because “because he
failed to provide testimony or propose findings of fact or
conclusions of law in support of his counterclaims”), aff’d, 365
F. App’x 266 (2d Cir. 2010); Abeles, Inc. v. Creekstone Farms
Premium Beef, LLC, No. 06CV3893(JFB)(AKT), 2010 WL 446042, at *1
n.5 (E.D.N.Y. Feb. 1, 2010) (same); Jett v. Ficara, No.
04CV9466(RMB) 2007 WL 2197834, at *2 n.1 (S.D.N.Y. July 31,
2007) (deeming plaintiffs’ claims for unfair competition
abandoned “since plaintiffs’ proposed findings of fact and
conclusions of law do not address these ... two claims in any
respect”).
III. Excessive Force, as to Plaintiff Goff
“The Fourth Amendment prohibits the use of unreasonable and
therefore excessive force by a police officer in the course of
effecting an arrest.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d
Cir. 2010) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)).
“It is well established that use of force is contrary to the
~ 10 ~

Fourth Amendment if it is excessive under objective standards of
reasonableness.” Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir.
2003) (quotation marks and citation omitted).
This
objective
standard
allows
for
split-second
judgments -- circumstances that are tense, uncertain,
and rapidly evolving -- about the amount of force that
is necessary in a given situation. It allows even for a
certain degree of mistake. If an officer reasonably, but
mistakenly, believed that a suspect was likely to fight
back, for instance, the officer would be justified in
using more force than in fact was needed.
Santana v. City of Hartford, 283 F. Supp. 2d 720, 727 (D. Conn.
2003) (quotation marks and citations omitted).
“Determining whether the force used to effect a particular
seizure is reasonable under the Fourth Amendment requires a
careful balancing of the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.” Graham, 490
U.S. at 396 (quotation marks and citation omitted). “In
conducting that balancing, [the Court is] guided by
consideration of at least three factors: (1) the nature and
severity of the crime leading to the arrest, (2) whether the
suspect poses an immediate threat to the safety of the officer
or others, and (3) whether the suspect was actively resisting
arrest or attempting to evade arrest by flight.” Tracy, 623 F.3d
at 96 (citing Graham, 490 U.S. at 396). “If the force used was
unreasonable and excessive, the plaintiff may recover even if

~ 11 ~

the injuries inflicted were not permanent or severe.” Robison v.
Via, 821 F.2d 913, 924 (2d Cir. 1987).
Plaintiff Goff claims that she was subjected to excessive
force during the course of her arrest. In determining whether
Chivers’ use of force was objectively reasonable, the Court
considers the factors set forth in Graham, 490 U.S. at 396.
First, the crime leading to Goff’s arrest was relatively
serious. Chivers reasonably believed that Goff was operating a
vehicle while under the influence of drugs or alcohol. This is
considered a “serious crime.” Harwe v. Floyd, No.
3:09CV1027(MRK), 2011 WL 674024, at *16 (D. Conn. Feb. 17, 2011)
(citing South Dakota v. Neville, 459 U.S. 553, 559 (1983)),
aff’d, 545 F. App’x 20 (2d Cir. 2013). The Court also notes that
no amount of force was employed by Chivers until after Goff
actively resisted arrest. See Tracy, 623 F.3d at 98 (in
analyzing whether use of force was reasonable under Graham,
finding that the crime in question became “arguably more
serious” when plaintiff resisted arrest).
Second, the threat posed to the safety of Chivers, and to
others, appeared immediate. See id. Chivers was alone, at night,
on the side of a busy highway, and Goff was fighting Chivers’
attempts to place her under arrest. See Tracy, 623 F.3d at 97
(“[T]he risk posed to officer safety appeared to be both real
and imminent. It is uncontested that [the officer] was operating
~ 12 ~

without back up on the side of a road at night and in bad
weather. Accordingly, what appeared to be [plaintiff’s] attempt
to flee or fight back posed a potentially serious and imminent
risk to [the officer’s] safety.”).
Third, Goff was “actively resisting arrest or attempting to
evade arrest by flight.” Graham, 490 U.S. at 396. Goff
consistently failed to comply with Chivers’ multiple orders. She
physically resisted arrest, wrenching her arms away from
Chivers’ grasp several times. At trial, Goff admitted that -despite Chivers’ orders -- she continued to move and did not
stop until she was handcuffed, and that she did not cooperate
with Chivers’ efforts to arrest her. See Tr. 39, lines 18-23;
40, lines 4-7; 46, lines 2-4; 47, lines 11-14.
On the night in question, Chivers found himself on the side
of a busy highway, at night, without backup, with an individual
whom he reasonably believed had committed a serious crime. That
individual did not comply with his orders, and physically
resisted his attempts to place her under arrest. It was
objectively reasonable for Chivers to feel threatened in that
situation, and to use force to gain control of Goff.
The Court is mindful that
[t]he fact that a person whom a police officer attempts
to arrest resists, threatens, or assaults the officer no
doubt justifies the officer’s use of some degree of
force, but it does not give the officer license to use
force without limit. The force used by the officer must
~ 13 ~

be reasonably related to the nature of the resistance
and the force used, threatened, or reasonably perceived
to be threatened, against the officer.
Sullivan v. Gagnier, 225 F.3d 161, 165–66 (2d Cir. 2000). Here,
after Goff’s several attempts to evade Chivers’ grasp, it was
reasonable for Chivers to push Goff against his vehicle to limit
her movement and to gain control of the situation. In making
this determination, the Court also considers what Chivers did
not do to Goff: he did not make use of pepper spray or any other
device to incapacitate her; he did not strike her or kick her;
and he chose not bring her to the ground, because he did not
want to put his weight on her and injure her. See Tr. 105, lines
1-6. Cf. Brown v. City of New York, 798 F.3d 94, 102-03 (2d Cir.
2015) (finding a question of fact as to whether force was
excessive where two police officers brought plaintiff, a 120pound woman, to the ground and twice sprayed her directly in the
face with pepper spray for refusing to “submit to the easy
application of handcuffs”).
Finally, while Goff apparently suffered injuries during the
course of her arrest, the Court finds that said injuries are
attributable to Goff’s resistance, rather than Chivers’ use of
force.5 Goff testified that her thumb was cut by Chivers’

The Court also recognizes that in determining a claim of
excessive force, “[t]he ‘core judicial inquiry’ is ‘not whether
a certain quantum of injury was sustained,’ but rather whether
unreasonable force was applied given the circumstances.” Barcomb
5

~ 14 ~

handcuffs; however, the Court credits the testimony of Chivers,
who indicated that Goff cut her thumb on the front “push bumper”
of the police cruiser in her attempt to evade Chivers. Goff also
testified that Chivers pushed her head against the hood of the
car, causing her to suffer a concussion, but the Court is
persuaded both by Chivers’ testimony and the video of the
incident that reveals that Goff’s head came into contact with
the car hood while she was attempting to break free from
Chivers’ hold.
Based on the foregoing, the Court concludes that plaintiff
Goff has not proven by a preponderance of the evidence that the
force used by defendant Chivers in effectuating her arrest was
excessive. Accordingly, the Clerk is directed to enter judgment
in favor of defendant Chivers with respect to plaintiff Goff’s
claim for the use of excessive force, in violation of 42 U.S.C.
§1983.
IV.

False Arrest, as to Plaintiff Gibson
A.

Elements, Generally

The elements of a claim for false arrest pursuant to
section 1983 are dictated by state law. See Jocks v. Tavernier,

v. Kraeger, No. 3:14CV1159(JBA), 2016 WL 2644885, at *4 (D.
Conn. May 5, 2016) (quoting Wilkins v. Gaddy, 559 U.S. 34, 37
(2010)). Indeed, “injury and force are only imperfectly
correlated, and it is the latter that ultimately counts.” Id. at
*5 (quotation marks and citation omitted).
~ 15 ~

316 F.3d 128, 134 (2d Cir. 2003); see also Davis v. Rodriguez,
364 F.3d 424, 433 (2d Cir. 2004) (“In analyzing §1983 claims for
unconstitutional false arrest, [the court] generally look[s] to
the law of the state in which the arrest occurred.”). “Under
Connecticut law, false 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) (quotation marks and citation omitted).
“In a false arrest action, Connecticut law places the
burden of proving an unlawful arrest on the plaintiff.” Russo,
479 F.3d at 203 (internal citations omitted); see also Davis,
364 F.3d at 433. “In order to establish a §1983 false arrest
claim based on the Fourth Amendment right to be free from
unreasonable seizures, a plaintiff must show: (1) the defendant
intentionally arrested him or had him arrested; (2) the
plaintiff was aware of the arrest; (3) there was no consent for
the arrest; and (4) the arrest was not supported by probable
cause.” Marchand v. Simonson, 16 F. Supp. 3d 97, 109 (D. Conn.
2014) (quotation marks and citation omitted). Further, in
Connecticut, “favorable termination is an element of a section
1983 claim sounding in false imprisonment or false arrest.”
Miles v. City of Hartford, 445 F. App’x 379, 383 (2d Cir. 2011);

~ 16 ~

see also Frey v. Maloney, 476 F. Supp. 2d 141, 147-48 (D. Conn.
2007).6
The first three elements of false arrest, above, are not
disputed. Plaintiff Gibson has established that defendant
Chivers intentionally arrested him; Gibson was aware of his
arrest; and Gibson did not consent to be arrested. Plaintiff has
also established that the charges against him terminated
favorably. Thus, the Court need only determine whether defendant
Chivers had probable cause to arrest plaintiff Gibson.
B.

Probable Cause

“In assessing whether an officer had probable cause for an
arrest, a court must look at the totality of the circumstances.”
Marchand, 16 F. Supp. 3d at 110 (quotation marks and citation

Plaintiff “may satisfy the favorable termination element by
showing that the charges against [him] were discharged without a
trial under circumstances amounting to the abandonment of the
prosecution without request by him or arrangement with him.”
Frey, 476 F. Supp. 2d at 148 (emphasis omitted) (quotation marks
and citation omitted). “A nolle prosequi ... can constitute a
favorable termination, so long as the plaintiff demonstrates
that it was entered under circumstances indicating that the
State has abandoned the prosecution without request by the
plaintiff or arrangement with him.” Id. at 148; see also Roberts
v. Babkiewicz, 582 F.3d 418, 421 (2d Cir. 2009) (“The majority
of cases from Connecticut courts interpret Connecticut law so
that a nolle prosequi satisfies the ‘favorable termination’
element as long as the abandonment of the prosecution was not
based on an arrangement with the defendant.”). Here, the
uncontested testimony establishes that the charges against
Gibson were nolled without an arrangement with the defendant.
See Tr. 59-60, lines 13-1.
6

~ 17 ~

omitted). Under federal law, “[p]robable cause to arrest exists
when the authorities 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.” Golino v. City of New Haven, 950 F.2d 864, 870
(2d Cir. 1991); see also Ricciuti v. N.Y.C. Transit Auth., 124
F.3d 123, 128 (2d Cir. 1997) (“An officer has probable cause to
arrest when in possession of facts sufficient to warrant a
prudent person to believe that the suspect had committed or was
committing an offense.”). “Likewise, under Connecticut law,
probable cause comprises such facts as would reasonably persuade
an impartial and reasonable mind not merely to suspect or
conjecture, but to believe that criminal activity has occurred.”
Weinstock v. Wilk, 296 F. Supp. 2d 241, 246 (D. Conn. 2003),
adhered to on reconsideration, No. 3:02CV1326(PCD), 2004 WL
367618 (D. Conn. Feb. 25, 2004). “In determining whether the
necessary quantum of evidence existed to support a finding of
probable cause, the Court is required to evaluate the totality
of the circumstances. In making this determination, the Court
must consider those facts available to the officer at the time
of the arrest.” Reese v. Garcia, 115 F. Supp. 2d 284, 290 (D.
Conn. 2000).
“The existence of probable cause to arrest constitutes
justification and is a complete defense to an action for false
~ 18 ~

arrest, whether that action is brought under state law or under
§1983.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)
(quotation marks and citations omitted). Thus, “in Connecticut,
a false arrest claim cannot lie when the challenged arrest was
supported by probable cause.” Russo, 479 F.3d at 203.
In the instant matter, plaintiff Gibson has proven that
defendant Chivers lacked probable cause to arrest plaintiff for
the charge of Interfering with an Officer pursuant to section
53a-167a of the Connecticut General Statutes. That section
provides, in relevant part:
A person is guilty of interfering with an officer when
such person obstructs, resists, hinders or endangers any
peace officer ... in the performance of such peace
officer’s ... duties.
Conn. Gen. Stat. §53a-167a.
“A violation of Section 53a–167a requires specific intent
to interfere with an officer.” Jackson v. Town of Bloomfield,
No. 3:12CV00924(MPS), 2015 WL 1245850, at *10 (D. Conn. Mar. 18,
2015) (quotation marks and citation omitted); see also State v.
Williams, 534 A.2d 230, 239 (Conn. 1987) (“[Section 53a-167a]
encompasses only interference that is intentional.”).
In interpreting the scope of section 53-167a, the
Connecticut Supreme Court, “[t]o avoid the risk of
constitutional infirmity,” has construed the statute “to
proscribe only physical conduct and fighting words that by their

~ 19 ~

very utterance inflict injury or tend to incite an immediate
breach of the peace.” Williams, 534 A.2d at 239 (quotation marks
and citation omitted). As the Connecticut Court noted in reading
the statute in this narrow manner, the United States Supreme
Court had previously struck down, as overbroad, an ordinance
making it “unlawful for any person to assault, strike or in any
manner oppose, molest, abuse or interrupt any policeman in the
execution of his duty[.]” City of Houston, Tex. v. Hill, 482
U.S. 451, 455 (1987). The Hill Court noted that “the First
Amendment protects a significant amount of verbal criticism and
challenge directed at police officers.” Id. at 461. Citing its
own earlier decision in Lewis v. City of New Orleans, 415 U.S.
130 (1974), the Court reaffirmed that a statute that punishes
“only spoken words” and is “not limited in scope to fighting
words that by their very utterance inflict injury or tend to
incite an immediate breach of the peace[]” cannot survive
constitutional scrutiny. Id. at 461-62. The ordinance at issue
in Hill was even “more sweeping” than the law challenged in
Lewis, the Court held, because it “prohibits speech that ‘in any
manner ... interrupt[s]’ an officer.” Id. at 462 (internal
citation omitted). In conclusion, the Court stated:
Today’s decision reflects the constitutional requirement
that, in the face of verbal challenges to police action,
officers and municipalities must respond with restraint.
We are mindful that the preservation of liberty depends
in part upon the maintenance of social order. But the
~ 20 ~

First Amendment recognizes, wisely we think, that a
certain amount of expressive disorder not only is
inevitable in a society committed to individual freedom,
but must itself be protected if that freedom would
survive.
Hill, 482 U.S. at 471–72 (internal citation omitted).
Thus, the Connecticut Supreme Court’s holding in Williams
was dictated by an established line of United States Supreme
Court precedent. Courts construing the Connecticut statute since
Williams have acknowledged the necessarily narrow reading. “This
unequivocal statement concerning the scope of the statute leaves
no room for an interpretation that would permit an arrest for
verbal interference involving something other than fighting
words.” Darbisi v. Town of Monroe, No. 3:00CV01446(RNC), 2002 WL
32348250, at *2 (D. Conn. Jan. 11, 2002), aff’d, 53 F. App’x 159
(2d Cir. 2002); see also Torlai v. LaChance, No.
3:14CV00185(JCH), 2015 WL 9047785, at *7 (D. Conn. Dec. 15,
2015) (“[V]arious Connecticut courts have explored the exact
contours of what constitutes physical conduct and fighting
words, but the basic proposition that only physical conduct and
fighting words give rise to a viable charge of interfering with
an officer has remained well-settled.” (quotation marks and
citation omitted)).
A third manner of violation of the statute has emerged in
the case law since Williams was decided; that is, failure to
comply with a direct order of a police officer under certain
~ 21 ~

circumstances. Cf. Acevedo v. Sklarz, 553 F. Supp. 2d 164, 168
(D. Conn. 2008) (“Connecticut courts most frequently find
illegal interference with a police officer where the officer
makes a direct request, which the defendant refuses to comply
with, and it is that refusal that hinders or impedes the course
of the investigation of the defendant or the performance of the
officer’s duties.” (citation omitted)). Thus, the Court will
consider whether the evidence adduced at trial establishes that
Chivers had probable cause to charge Gibson with Interfering on
any of the three possible theories: fighting words; physical
conduct; or refusal to obey a direct order.
Gibson testified that while Chivers was administering the
sobriety tests to Goff, he remained in the vehicle, watching
Chivers and Goff through the rearview and side view mirrors. See
Tr. 63, lines 19-23. When he heard Goff call out, he stood up
and stepped out of the vehicle, and shouted at Chivers. See id.
at 69, lines 2-8. He then immediately sat back down when Chivers
ordered him to get back in the vehicle. See id. at 56, lines 49. He did not exit the vehicle again; he never approached
Chivers; and he did not threaten Chivers in any manner. See id.
at 57, lines 4-13. He did not refuse any orders that Chivers
directed to him, nor did he attempt to prevent Chivers from
placing Goff under arrest. See id. at 57-8, lines 21-1. The

~ 22 ~

Court credits Gibson’s testimony, which is supported by the
video of the events.
At trial, Chivers testified that he felt that Gibson posed
a threat to him by his very presence, and that Gibson’s actions
and words caused a distraction, thereby delaying Chivers from
securing Goff’s arrest. See Tr. 114-15, lines 24-3; 118, lines
22-25; 125, lines 10-16; 126, lines 10-14. Chivers testified
that while he was occupied with Goff, Gibson shouted that
Chivers was beating up Goff; he slapped the side of the car once
or twice; he was on his cellphone; he communicated back and
forth with Goff; and he was sitting in the vehicle in such a way
that he could jump out, if he wanted to. See id. at 106-07,
lines 19-1. However, Chivers conceded that he had never ordered
Gibson to put his feet in the car, to stop looking backwards, or
to close the car door. See id. at 124, lines 2-17. Chivers also
testified that the words that Gibson used were not threatening;
that Gibson complied with his orders; and that at no time did
Gibson attempt to approach Chivers or prevent the arrest of
Goff. See id. at 122, lines 16-17, 22-24; 123-24, lines 24-1;
124-25, lines 22-7. Chivers asserted that the conduct supporting
the arrest of Gibson was that Gibson was attempting to distract
him.7 See id. at 123, lines 8-23; 126, lines 10-14.

On cross-examination, Chivers testified that he had probable
cause to charge Gibson with Interference because the statute
7

~ 23 ~

Under these circumstances, there was not probable cause to
arrest Gibson for a violation of section 53a-167a under any of
the three acknowledged theories of liability. First, plaintiff
Gibson’s limited verbal utterances were not fighting words.
“Fighting words portend imminent physical violence or are likely
to prompt imminent physical retaliation.” Ruttkamp v. De Los
Reyes, No. 3:10CV392(SRU), 2012 WL 3596064, at *6 (D. Conn. Aug.
20, 2012) (quotation marks and citation omitted). At no time did
Gibson’s words rise to this level. The utterances directed
towards Goff and Chivers were not likely to prompt any physical

“says to hinder, which means to delay. If I’m distracted by what
he’s doing, [he’s] delaying my ability to place her into
handcuffs.” Tr. 125, lines 13-16. The following exchange then
occurred with plaintiff’s counsel:
Q: So, by that logic, by that reason, if Mr. Gibson had
suddenly gotten out of the car and started singing, let’s
say, sounds bizarre, at the top of his lungs, and you
stopped what you were doing because you were distracted,
could
you
theoretically
charge
him
there
with
interfering?
A: Yes.
Q: If he started singing?
A: Yes, sir.
...
Q: [B]y your reasoning, anything Mr. Gibson does that
ends up distracting you is probable cause for
interfering, correct?
A: If you can articulate how he distracted you and caused
you not to be able to do your duty, yes.
Id. at 125-26, lines 17-14.
~ 24 ~

retaliation and certainly did not portend imminent physical
violence.8
Indeed, at most, Gibson’s statements were intended to
protest the actions of Chivers. This is insufficient to invoke
the application of section 53a-167a. See Williams, 534 A.3d at
238 (“The statute’s requirement of intent limits its application
to verbal conduct intended to interfere with a police officer
and excludes situations in which a defendant merely questions a
police officer’s authority or protests his or her action.”).
Second, Gibson did not interfere with an officer by his
physical conduct. The evidence reveals that Gibson never stepped
towards Chivers and Goff, and never attempted to physically
intervene in Goff’s arrest. After he initially stood up from his
seated position in the car, Gibson promptly complied with
Officer Chivers’ directive to get back into the car and sit
down. The video of the incident shows that once ordered to sit,
Gibson sank down from his standing position directly into the
seat. See Exhibit 502 at 13:01-13:06. He took no steps backwards

The Court notes that “the fighting words exception may require
a narrower application in cases involving words addressed to a
police officer, because a properly trained officer may
reasonably be expected to exercise a higher degree of restraint
than the average citizen, and thus be less likely to respond
belligerently to fighting words.” Williams, 534 A.2d at 239
(quotation marks omitted) (emphasis added) (citing Houston v.
Hill, 482 U.S. 451 (1987)); see also Ruttkamp, 2012 WL 3596064,
at *6.
8

~ 25 ~

before sitting, evidencing that he had taken no steps in
Chivers’ direction while standing. See id. He then complied with
the second order of Chivers to stay in the car. Thus, plaintiff
never physically interfered with Chivers.
Chivers, a trained State Trooper, stopped a vehicle and
administered sobriety tests to a suspected drunk driver, Goff,
on the side of a busy highway. When Goff failed the sobriety
tests and became belligerent and combative, he attempted to
place her under arrest. She resisted. Chivers was aware that
there was a passenger in the vehicle; presumably, car stops
often involve the presence of passengers, and this was not
Chivers’ first car stop.9 When the passenger, Gibson, stepped out
of the vehicle, Chivers immediately shouted, loudly, at him to
sit down, which Gibson did. No other vehicles stopped; no crowds
gathered. The one verbal protestation directed at Chivers, and
the communications with Goff, made from a distance, were not in
any way violent or incitant, and were not intended to prevent
the arrest of Goff. Thus, there was no probable cause to arrest
Gibson based on fighting words or physical conduct.
Third, there was no probable cause to arrest Gibson based
on any refusal to comply with a direct order. Defendant, in his

In fact, Chivers testified that this particular stop resulted
in his 186th arrest of an individual for driving under the
influence.
9

~ 26 ~

post-trial brief, cites to several cases finding probable cause
under this theory.10 The cited cases, however, are inapposite.
In Coffey v. Callaway, 86 F. Supp. 3d 111 (D. Conn. 2015),
the defendant police officer responded to a complaint about a
rowdy party. Upon his arrival, the officer directed those
present to disperse, and, specifically, directed plaintiff
Coffey to go into his home. See id. at 114-15. Plaintiff
refused. See id. The defendant argued that plaintiff’s direct
refusal to comply with the officer’s order constituted “passive
resistance” that was actionable under the Interfering statute.
Id. at 117-18. The Court considered plaintiff’s actions
“confrontational conduct” and found probable cause for the
arrest. Id. at 121.
Coffey relies heavily on an earlier case, also cited by
defendant here, Herpel v. Joyce, No. 89CV669(JAC), 1992 WL
336765 (D. Conn. Sept. 30, 1992). There, the undisputed facts
established that “plaintiff was asked three times to leave the
crosswalk, and each time he declined to do so -- insisting,
instead, on engaging the officers in a discussion about his

In addition to the cases analyzed herein, the defendant also
cites to State v. Aloi, 911 A.2d 1086, 1092 (Conn. 2007), and
State v. Ragin, 942 A.2d 489, 493 (Conn. App. 2008). These cases
are also inapposite. Aloi involves a refusal to provide
identification to a police officer, which is not an issue here,
and also constitutes a refusal to obey a direct order. Ragin
involves a refusal to disperse in response to police directives.
As noted, Gibson did not refuse any direct order given him.
10

~ 27 ~

reasons for remaining there.” Id. at *5. Again, the Court found
probable cause for an Interfering charge.
A third case cited by defendant is perhaps most
illuminating here. In Huertas v. Ivanko, No. 3:11CV00528(VLB),
2013 WL 1193187, at *12 (D. Conn. Mar. 25, 2013), the Court
found that when plaintiff had “attempted to intervene in [his
friend’s] arrest and refused to step back more than
approximately two feet despite repeated warnings to do so,” he
had been “guilty of obstructing or hindering” the defendant
officer in his duties.
In all three of these cases, the plaintiff intentionally
refused to comply with a direct order given by the defendant
officer, and that is the basis on which the Court found probable
cause for an Interfering charge. The circumstances of Huertas
are most comparable to the circumstances of this case; there,
the person ultimately arrested for Interfering was specifically
attempting to prevent the arrest of his friend.11 But the
plaintiff in Huertas was between “eight to ten inches” and “two
to three feet” away from the officer attempting to arrest his

Another case involving the alleged interference of one person
in the arrest of another is Acevedo, 553 F. Supp. 2d at 164.
There, the Court denied the defendant officer summary judgment
on the grounds that there was a material dispute regarding
whether the plaintiff’s yelling was intended to incite the crowd
present at the time. See id. at 168. This case, too, is
inapposite, as here no crowd was present to incite.
11

~ 28 ~

friend at various points. Huertas, 2013 WL 1193187 at *4. The
plaintiff acknowledged that he refused repeated, direct
instructions to step away from the officer, and “didn’t stop
talking[]” to the officer, demanding to know why his friend was
being arrested. Id. By contrast, in this case, it is undisputed
that Gibson was at least “a car length and a half” away from
Chivers while he was attempting to secure Goff. Tr. 132, line 4.
More importantly, though, in all three cited cases above,
and indeed, in all cases cited to the Court by defendant, the
person arrested for Interfering had refused to obey a direct
order of the officer. Here, the evidence at trial established
that Gibson obeyed all orders given by Chivers.
Accordingly, defendant Chivers lacked probable cause to
charge plaintiff Gibson with Interfering with an officer, in
violation of section 53-167a of the Connecticut General
Statutes. As noted above, the other elements of a false arrest
claim have been met: Chivers intentionally arrested Gibson;
Gibson was aware of the arrest; and Gibson did not consent to
the arrest. Accordingly, plaintiff Gibson has proven by a
preponderance of the evidence that he was falsely arrested, in
violation of his Fourth Amendment rights.
C.

Qualified Immunity

Having determined that Chivers did not have probable cause
to arrest Gibson, the Court must determine whether defendant has
~ 29 ~

established an entitlement to qualified immunity. “The doctrine
of qualified immunity protects government officials 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.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009) (quotation marks and citation
omitted).
An officer is entitled to qualified immunity against a
suit for false arrest if he can establish that he had
arguable probable cause to arrest the plaintiff.
Arguable probable cause exists 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.
Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (quotation marks
and citations omitted). See also Ricciuti, 124 F.3d at 128.
“Arguable” probable cause should not be misunderstood to
mean “almost” probable cause. ... There should be no
doubt that probable cause remains the relevant standard.
If officers of reasonable competence would have to agree
that the information possessed by the officer at the
time of arrest did not add up to probable cause, the
fact that it came close does not immunize the officer.
Jenkins v. City of N.Y., 478 F.3d 76, 87 (2d Cir. 2007)
(citations omitted). Thus, “[a]lthough a mere mistake in the
performance of an official duty may not deprive the officer of
qualified immunity, the doctrine does not shield performance
that either (a) was in violation of clearly established law, or

~ 30 ~

(b) was plainly incompetent.” Manganiello v. City of N.Y., 612
F.3d 149, 165 (2d Cir. 2010) (collecting cases).
It is well established that there is a clearly established
right to be free from arrest in the absence of probable cause.
See Shattuck v. Town of Stratford, 233 F. Supp. 2d 301, 308 (D.
Conn. 2002) (“[T]here is no question that the plaintiff had a
constitutional right to not be arrested without probable cause
and that the relevant case law is well established on this
point.” (collecting cases)); see also Cook v. Sheldon, 41 F.3d
73, 78 (2d Cir. 1994) (“It is now far too late in our
constitutional history to deny that a person has a clearly
established right not to be arrested without probable cause.”).
The scope of the Interfering statute under Connecticut law is
also clearly established, by the very cases cited in the
parties’ post-trial briefing. Thus, the inquiry for the Court is
whether, based on the facts known to the defendant at the time
of the arrest, reasonable officers could disagree as to whether
there was probable cause to arrest plaintiff Gibson for
Interfering with an Officer, in violation of section 53a-167a of
the Connecticut General Statutes.
The Court concludes that it was objectively unreasonable
for Chivers to construe Gibson’s words and actions as violative
of section 53a–167a. As discussed above, Gibson’s words were not
threatening, nor was his conduct disobedient. He did not refuse
~ 31 ~

to comply with Chivers’ orders. He never physically approached
Chivers or his cruiser. See Tr. 122-23, lines 25-2. He did not
use fighting words. See Tr. 126, lines 15-18. As Chivers himself
testified, it was not the content of Gibson’s speech but rather
the fact that he was speaking at all that Chivers felt gave him
cause to charge Gibson under the statute. See Tr. 134, lines 1319.
The scope Chivers attributes to the Interfering statute
would place that statute squarely within the holdings of
Williams, Hill and Lewis. Under Chivers’ understanding of the
law, mere speech, or, indeed, singing or laughing by a person
present during the arrest of a third party -- or anything else
that delays the arrest of the third party or “ends up
distracting” the officer -- would give rise to probable cause
for an Interfering charge. Tr. 125, line 11. This is a
completely unreasonable reading of the statute, as it has been
interpreted by many courts over many years.
The Court in Ruttkamp considered a similar argument by a
defendant seeking qualified immunity on a claim of false arrest
of plaintiff Shlomit under the Interfering statute:
As noted above, the Connecticut Supreme Court
specifically limited the scope of the interference
statute as follows: “To avoid the risk of constitutional
infirmity, we construe §53a-167a to proscribe only
physical conduct and fighting words that by their very
utterance inflict injury or tend to incite an immediate
breach of the peace.” Williams, 205 Conn. at 473
~ 32 ~

(internal quotation marks omitted). This unequivocal
statement from the state’s highest court “leaves no room
for an interpretation that would permit an arrest for
verbal interference involving something other than
fighting words.” Darbisi v. Town of Monroe, 2002 WL
32348250, at *2 (D. Conn. Jan. 11, 2002).
Here, there is no dispute that Shlomit’s verbal
interference never amounted to fighting words; nothing
she said tended “to incite an immediate breach of the
peace.” Williams, 205 Conn. at 473. Shlomit neither
threatened her daughter nor urged any violent or
physical response to the officer’s request. Thus, the
fact that Shlomit’s verbal pleadings and protestations
were directed at her daughter, instead of an officer, is
immaterial. No matter who she was talking to, Shlomit’s
speech, which “merely question[ed] a police officer’s
authority or protest[ed] his or her action,” was plainly
outside the reach of section 53a–167a as construed by
the Connecticut Supreme Court. Id. at 472.
Ruttkamp, 2012 WL 3596064, at *8 (footnote omitted). This
holding, not cited by defendant, is squarely on point.
The Court finds that reasonable officers could not disagree
that Gibson had not interfered with an officer, within the
meaning of the statute as interpreted by the courts.
Accordingly, Chivers is not entitled to qualified immunity for
plaintiff Gibson’s false arrest. The Clerk is therefore directed
to enter judgment in favor of plaintiff Gibson with respect to
his claim for false arrest in violation of 42 U.S.C. §1983.
V.

Malicious Prosecution, as to Plaintiff Gibson
A.

Elements, Generally

“To prevail on a Section 1983 claim of malicious
prosecution, the plaintiff must show a violation of his rights

~ 33 ~

under the Fourth Amendment, and must establish the elements of a
malicious prosecution claim under state law.” Turner v. Boyle,
116 F. Supp. 3d 58, 84 (D. Conn. 2015) (quotation marks and
citation omitted); see also Rutigliano v. City of N.Y., 326 F.
App’x 5, 8–9 (2d Cir. 2009) (“To sustain a §1983 malicious
prosecution claim, the state law elements must be met, and there
must also be a showing of a sufficient post-arraignment liberty
restraint to implicate the plaintiff’s Fourth Amendment
rights.”); Swartz v. Insogna, 704 F.3d 105, 112 (2d Cir. 2013)
(stating that for a malicious prosecution claim “to be
actionable under section 1983 there must be a post-arraignment
seizure, the claim being grounded ultimately on the Fourth
Amendment’s prohibition of unreasonable seizures”).
Under Connecticut law, to establish malicious prosecution,
the plaintiff must prove that: “(1) the defendant initiated or
procured the institution of criminal proceedings against the
plaintiff; (2) the criminal proceedings have terminated in favor
of the plaintiff; (3) the defendant acted without probable
cause; and (4) the defendant acted with malice, primarily for a
purpose other than that of bringing an offender to justice.”
Torlai, 2015 WL 9047785, at *5 (quoting Brooks v. Sweeney, 299
Conn. 196, 210-11 (2010)); see also Shattuck, 233 F. Supp. 2d at
306.

~ 34 ~

B.

Fourth Amendment Violation

The Court finds that plaintiff Gibson suffered a Fourth
Amendment deprivation of liberty. The Second Circuit has
“consistently held that a post-arraignment defendant who is
obligated to appear in court in connection with criminal charges
whenever his attendance is required suffers a Fourth Amendment
deprivation of liberty.” Swartz, 704 F.3d 105 at 112 (quotation
marks and citation omitted) (collecting cases).
Plaintiff Gibson was placed in police custody and was
transported to the police barracks before being released on
bond. He was required to appear in court once in connection with
the charge against him before the charge was nolled. Thus,
plaintiff Gibson has proven a Fourth Amendment deprivation of
liberty.
C.

Connecticut Malicious Prosecution Elements

The first two elements of malicious prosecution under
Connecticut law, described above, are not in dispute. Plaintiff
Gibson has established that criminal charges were initiated by
defendant against him, and that they terminated in his favor.12

Defendant Chivers, as the arresting officer, initiated the
criminal charges against plaintiff Gibson. Furthermore, Chivers
completed an Investigation Report that supplied information to
the prosecutor regarding the incident in question. At trial,
Chivers conceded that he did not include certain information
regarding the incident in the police report. “Where a party is
responsible for providing false information ... that influences
a decision whether to prosecute, he may be held liable for
12

~ 35 ~

Thus, to determine whether Gibson has proven that he was
maliciously prosecuted, the Court must determine whether there
was probable cause to prosecute plaintiff, and whether defendant
acted with malice in prosecuting plaintiff Gibson.
1.

Probable Cause

In Connecticut, “probable cause in the context of a
malicious prosecution claim is ‘the knowledge of facts
sufficient to justify a reasonable person in the belief that
there are reasonable grounds for prosecuting an action.’”
Torlai, 2015 WL 9047785, at *6 (quoting Falls Church Group, Ltd.
v. Tyler, Cooper and Alcorn, LLP, 912 A.2d 1019, 1027 (Conn.
2007)). “[I]t is error to conflate probable cause to arrest with
probable cause to believe that [plaintiff] could be successfully
prosecuted.” D’Angelo v. Kirschner, 288 F. App’x 724, 726 (2d
Cir. 2008) (quotation marks and citation omitted). Thus, “[i]n
the context of a malicious prosecution claim, a plaintiff must
show that the defendants lacked probable cause to prosecute, not
just to arrest.” Lombardi v. Myers, No. 3:14CV1687(VAB), 2016 WL
4445939, at *4 (D. Conn. Aug. 18, 2016) (citation omitted).
“Probable cause to prosecute is distinct from probable cause to

malicious prosecution.” Chimurenga v. City of N.Y., 45 F. Supp.
2d 337, 343 (S.D.N.Y. 1999). The Court need not determine
whether the omissions from Chivers’ report constitute “false
information,” because the Court finds that plaintiff’s claim
fails due to a lack of showing of malice.
~ 36 ~

arrest and is assessed in light of the facts known or reasonably
believed at the time the prosecution was initiated, as opposed
to at the time of the arrest.” Coll v. Boisvert, No.
3:12CV01202(JCH), 2014 WL 508694, at *8 (D. Conn. Feb. 5, 2014)
(quotation marks and citation omitted).
Here, the Court has already determined that Chivers did not
have probable cause to arrest plaintiff Gibson for Interfering
with an Officer. No additional evidence has been submitted that
would indicate that there was probable cause to prosecute
plaintiff Gibson. Defendant does not assert that he learned of
any new information between the time that Gibson was arrested
and the time the prosecution was instituted that would provide
probable cause for Gibson’s prosecution. Accordingly, the Court
concludes that there was no probable cause to prosecute
plaintiff Gibson for the crime for which he was charged.
2.

Malice

“A party may demonstrate malice by showing that a
prosecution was undertaken ‘from improper or wrongful motives,
or in reckless disregard of the rights of the plaintiff,’
including initiating proceedings without probable cause.”
Turner, 116 F. Supp. 3d at 85 (quoting Pinksy v. Duncan, 79 F.3d
306, 313 (2d Cir. 1996)); see also Torlai, 2015 WL 9047785, at
*9 (“The final element of a malicious prosecution claim in
Connecticut is that ‘the defendant acted with malice,’ which
~ 37 ~

means ‘primarily for a purpose other than that of bringing an
offender to justice.’” (quoting Brooks, 9 A.3d at 357)). While
“a lack of probable cause generally creates an inference of
malice,” Manganiello, 612 F.3d at 163 (quotation marks and
citation omitted), a “lack of probable cause does not
definitively establish that a defendant acted with malice.”
Torlai, 2015 WL 9047785, at *9 (emphasis added).
The Second Circuit has explained the limitations of the
inference of malice in a malicious prosecution case applying
Vermont law, which mirrors Connecticut law on this point:
Though a jury in a malicious prosecution suit may be
entitled to infer the existence of the requisite malice
from the same evidence used to establish probable cause
... the possibility of making such an inference does not
remove malice as an essential element of the claim. If
the [plaintiffs’] allegation that the [suit was
initiated without cause] were to be accepted as a
sufficient allegation of malice to state a claim, the
effect would be to eradicate this careful distinction
between malice and probable cause, and make the two
synonymous as a matter of law.
Brault v. Town of Milton, 527 F.2d 730, 740 (2d Cir. 1975).
Plaintiff argues that the evidence adduced at trial
establishes that Chivers acted with malice because (1) he
omitted information favorable to Gibson from the police report
he prepared, (2) he made misrepresentations about Gibson’s
behavior to the sergeant on the scene and in his report, and (3)
he was angry at Gibson. See Doc. #67 at 8-10. The Court
disagrees.
~ 38 ~

As to the first two arguments, the Court does not view the
omission of certain information from Chivers’ police report as
evidence of malice. Nor does the Court agree that Chivers’
statements to the sergeant on the scene, which arguably
overstate the nature of Gibson’s conduct during the incident,
were intentionally false or misleading. The Court also credits
Chivers’ testimony that he believed that because Gibson’s
conduct distracted him, delaying his ability to arrest Goff, he
had probable cause to arrest and prosecute Gibson for
Interfering –- whether or not Gibson disobeyed his orders to sit
down and to be quiet. Because these factors were irrelevant in
Chivers’ mind, there is no reason to believe he would have
intentionally altered his verbal report to the sergeant or the
written incident report to add or omit them. In Chivers’
erroneous view, Gibson’s compliance with his orders was
immaterial.
As to the plaintiff’s third argument, the Court does not
find that the evidence at trial established that Chivers was
particularly angry at Gibson. Chivers did raise his voice at
Gibson during the incident, but he does not appear to have
developed a personal animus against Gibson that would lead him
to arrest Gibson on trumped up charges.

~ 39 ~

In sum, the plaintiff has not met his burden of
establishing that Chivers was motivated by malice.13
Thus, Gibson’s claim under section 1983 for malicious
prosecution fails. Accordingly, the Clerk is directed to enter
judgment in favor of defendant Chivers with respect to plaintiff
Gibson’s claim for malicious prosecution, in violation of 42
U.S.C. §1983.
VI.

Damages
A.

Compensatory Damages

“The basic purpose of §1983 damages is to compensate
persons for injuries that are caused by the deprivation of
constitutional rights.” Memphis Cmty. Sch. Dist. v. Stachura,
477 U.S. 299, 307 (1986) (quotation marks and citation omitted)
(emphasis omitted). Thus, “[d]amages are properly awarded for
civil rights violations when the plaintiff has suffered an
actual loss as a result of a constitutional deprivation.” Henry
v. Gross, 803 F.2d 757, 768 (2d Cir. 1986). “To that end,
compensatory damages may include not only out-of-pocket loss and
other monetary harms, but also such injuries as impairment of
reputation, personal humiliation, and mental anguish and

Indeed, while Chivers testified that he planned to arrest
Gibson even before Sergeant Devine arrived, the video of the
incident establishes that it was actually the sergeant at the
scene who proposed the particular charge of Interfering. See Tr.
121, lines 12-21.
13

~ 40 ~

suffering.” Memphis Cmty. Sch. Dist, 477 U.S. at 307. However,
“[w]here no injury [is] present, no compensatory damages [can]
be awarded.” Id. at 308.
Emotional distress awards within the Second Circuit can
generally be grouped into three categories of claims:
garden-variety, significant, and egregious. In garden
variety emotional distress claims, the evidence of
mental suffering is generally limited to the testimony
of the plaintiff, who describes his or her injury in
vague or conclusory terms, without relating either the
severity or consequences of the injury. Such claims
typically lack extraordinary circumstances and are not
supported by any medical corroboration.
Vera v. Alstom Power, Inc., 189 F. Supp. 3d 360, 376 (D. Conn.
2016), appeal dismissed (Aug. 16, 2016) (quotation marks and
internal citations omitted).
“[C]onstitutional tort liability under §1983 is limited to
the kind of injury that the constitutional right at issue was
designed to prevent.” Townes v. City of N.Y., 176 F.3d 138, 148
(2d Cir. 1999) (quotation marks and citation omitted). “[T]he
common law tort of false arrest (or false imprisonment) allows
plaintiffs to seek damages from the time of detention up until
issuance of process or arraignment, but not more[.]” Id. at 149
(quotation mark and citation omitted). “The damages recoverable
for loss of liberty for the period spent in a wrongful
confinement are separable from damages recoverable for such
injuries as physical harm, embarrassment, or emotional
suffering; even absent such other injuries, an award of several

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thousand dollars may be appropriate simply for several hours’
loss of liberty.” Kerman v. City of N.Y., 374 F.3d 93, 125–26
(2d Cir. 2004) (applying New York law) (collecting cases).
At trial, plaintiff Gibson testified that he posted a
$1,000 bond which was returned to him after appearing in court
in connection with the instant charge.14 He was released upon
posting bond, having spent several hours in police custody.
Gibson testified that he appeared in court once, and was
represented by a private attorney whom he engaged for $13,500.
Gibson also testified at trial regarding the emotional
distress he suffered as a result of this incident:
Geez, that was a real nightmare. You know? I was up for
36 hours. I couldn’t think of nothing for at least three
to four weeks. It was just like turmoil for a whole
month. I couldn’t think straight. It just kept going on
and on and on. It made me very vicious, very mean. You
know, I just -- I hated the State Police for what they
had done, how they did it. They locked me up in a cell.
It was over 100 degrees. I had trouble breathing.
Tr. 60, lines 5-13.
Gibson did not support his testimony with medical records
or evidence, and no evidence was presented that the distress he
suffered was permanent or had any physical manifestations.
The Court finds that plaintiff Gibson is entitled to
compensatory damages in the amount of $13,500 for the costs he

Exhibit 108 reflects that the amount of the non-surety bond
that Gibson posted was $1,500.
14

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incurred defending himself in the underlying criminal action.
See Sabir v. Jowett, 214 F. Supp. 2d 226, 245 (D. Conn. 2002)
(upholding a jury’s compensatory damages award for false arrest
where, inter alia, the “plaintiff ... introduced evidence that
he had to hire, and pay for, an attorney as a result of the
defendants’ actions.”).
The Court also finds that that Gibson is entitled to
compensatory damages for the deprivation of liberty he suffered
as a result of the improper arrest in the amount of $15,000. In
arriving at this figure, the Court has considered the duration
of the deprivation of liberty, which is alleged to have been
only a few hours. The Court has also considered the lack of
evidence of any public reports of the incident, and the
accompanying embarrassment that would follow. See, e.g., Dancy
v. McGinley, 843 F.3d 93, 115 (2d Cir. 2016) (discussing
relevance of public humiliation to damages awards in false
arrest cases).
The Court further finds that plaintiff is entitled to
damages in the amount of $10,000 for emotional distress. The
Court notes that “expert witness evidence is not required to
sustain an award of emotional distress damages in §1983 cases.”
Sabir, 214 F. Supp. 2d at 245. In arriving at this figure, the
Court has considered the evidence at trial that Gibson suffered
the after-effects of the incident for approximately one month,
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and the lack of evidence that he sought any professional
treatment or that the effects persisted after that one month
period.
Thus, the Court finds that a total award of $38,500 in
compensatory damages is appropriate.
B.

Punitive Damages

Punitive damages may be awarded “in an action under §1983
when the defendant’s conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous
indifference to the federally protected rights of others.” Smith
v. Wade, 461 U.S. 30, 56 (1983). “[T]he purpose of punitive
damage awards is to punish the defendant and to deter him and
others from similar conduct in the future.” Vasbinder v. Scott,
976 F.2d 118, 121 (2d Cir. 1992) (citing Smith, 461 U.S. at 54);
see also BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 568 (1996)
(“Punitive damages may properly be imposed to further a State’s
legitimate interests in punishing unlawful conduct and deterring
its repetition.”).
There was no evidence presented in this case that would
justify an award of punitive damages. Chivers’ conduct did not
appear to be “motivated by evil motive or intent,” nor he
exhibit “reckless or callous indifference” to Gibson’s rights.
Smith, 461 U.S. at 56. As discussed above, the Court determined
that Chivers believed, albeit unreasonably, that Gibson had
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committed the offense for which he was charged.

Accordingly,

the Court declines to award punitive damages.
C.

Attorney’s Fees

Pursuant to 42 U.S.C. §1988, “a prevailing plaintiff [in an
action brought under section 1983] is entitled to an award of
attorneys’ fees unless ‘special circumstances would render such
an award unjust.’” Henry, 803 F.2d at 769 (quoting Newman v.
Piggie Park Enterprises, 390 U.S. 400, 402 (1968) (per curiam)).
For a plaintiff to be considered a “prevailing party,”
and thus eligible for an award of fees, he need not have
succeeded on the central issue in the case, and need not
have obtained the primary relief sought. It is
sufficient that the plaintiff succeeded on
any
significant issue in the litigation, regardless of the
magnitude of the relief obtained, if he received actual
relief on the merits of his claim that materially alters
the legal relationship between the parties by modifying
the defendant’s behavior in a way that directly benefits
the plaintiff.
LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir. 1998)
(internal quotation marks and citations omitted).
“The most useful starting point for determining the amount
of a reasonable fee is the number of hours reasonably expended
on the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Thus, “[t]he
party seeking an award of fees should submit evidence supporting
the hours worked and rates claimed.” Id. at 433.
Plaintiff Gibson is a prevailing plaintiff for the purposes
of 42 U.S.C. §1988, and is therefore entitled to collect the
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reasonable attorney’s fees and costs associated with the
litigation of Gibson’s claim of false arrest. Accordingly,
counsel for Gibson shall submit an accounting of fees sought in
connection with the litigation of plaintiff Gibson’s false
arrest claims, including the number of hours claimed; a
statement of whether the hours were incurred by an attorney, a
paralegal, or other employee; and the hourly rate sought.
CONCLUSION
As set forth above, the Court finds that plaintiff Gibson
has proven by the preponderance of the evidence that he was
falsely arrested, in violation of his Fourth Amendment rights
under 28 U.S.C. §1983. The Court further finds that plaintiff
Gibson has failed to prove that he was maliciously prosecuted,
in violation of his Fourth Amendment rights; and that plaintiff
Goff has failed to prove that she was subjected to excessive
force, in violation of her Fourth Amendment rights.
The Clerk shall enter judgment in favor of plaintiff Gibson
for his claim of false arrest for the amount of $38,500, plus
attorney’s fees and costs. The Clerk shall enter judgment in
favor of defendant Chivers on all other remaining claims.

This is not a Recommended Ruling. The parties consented to
proceed before a United States Magistrate Judge on January 15,

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2016 [Doc. #50], with any appeal to be made directly to the
Court of Appeals. See Fed. R. Civ. P. 73(b)-(c).
SO ORDERED at New Haven, Connecticut, this 17th day of May,
2017.
/s/
_____________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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