Demers et al v. Enfield et al

Filing 43

ORDER: For the reasons set forth in the attached Order, Defendants' Motion for Summary Judgment 32 is GRANTED IN PART and DENIED IN PART. Defendants' Motion for Summary Judgment is granted as to Counts Four, Five, Six, and Nine, denied as to Counts One, Two, Three, and Eight, and denied without prejudice as to Count Seven. The parties are directed to file a joint status report within seven days providing a proposed scheduling order for remaining Monell discovery and summary judgment briefing on the Monell claim. The Court will conduct a telephonic status conference on Tuesday, 8/21/18 at 10:00 A.M. Defendants shall initiate the call to chambers' conference line: 203-773-2737. Signed by Judge Janet Bond Arterton on 8/10/2018. (Kolker, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANIEL DEMERS, and
EDITH MANDUJANO-DEMERS;

Plaintiffs,

Civil No. 3: 16-cv-1354 (JBA)

August 10, 2018

v.
TOWN OF ENFIELD,
CHIEF CARL SFERRAZZA,
OFFICER KEVIN RAGION,
SERGEANT JAMES LAURINO,
OFFICER VANESSA MAGAGNOLI,
OFFICER JOHN DOE, and
OFFICER JANE DOE;

Defendants.

RULING ON MOTION FOR SUMMARY JUDGMENT

Plaintiffs Daniel Demers and Edith Mandujano-Demers were arrested for loitering on
middle school grounds in Enfield, Connecticut, after driving around school grounds, stopping to
take photographs at the school, knocking on a door that was not the main entrance, and then
leaving. Plaintiffs contend that they were arrested in violation of their Fourth Amendment right to
be free from unreasonable seizures in violation of state statutory and common law. Defendants
move [Doc.# 32] for summary judgment on all counts. For the reasons set forth below, the Court
GRANTS IN PART and DENIES IN PART Defendants' Motion for Summary Judgment.

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(Am. Compl. [Doc. # 14].) The Amended Complaint names as Defendants the Town of Enfield,
Chief Carl Sferrazza, Officer Kevin Ragion, Sergeant James Laurino, Officer Vanessa Magagnoli,
Office John Doe, and Officer Jane Doe.2 (Id.)
On October 18, 2017, Defendants moved to bifurcate the action against the individual
Defendants from the Monell claim against the Town of Enfield, requesting that discovery on the
municipal liability claim be stayed until resolution of the claim against the individual Defendants.
(Defs' Mot. Bifurcate [Doc.# 28].) On December 21, 2017, the Court granted Defendants' Motion
to Bifurcate, absent any objection from Plaintiffs. ([Doc.# 29].)
Defendants moved for summary judgment on all claims on January 15,2018. (Mot. Summ.
J.) Four days before Plaintiffs' extended deadline to oppose the Motion for Summary Judgment,
Plaintiffs moved [Doc. # 36] for leave to file a second amended complaint. Defendants objected
[Doc.# 38], and the Court denied Plaintiffs leave to amend. ([Doc.# 41].)

Factual Background and Summary Judgment Record
On Wednesday, March 23, 2016, Plaintiffs, who were residents of Summerville, South
Carolina, were visiting the town of Enfield, which is the hometown of Plaintiff Daniel Demers.
(Defs.' L.R. Stmt

~

1 [Doc. # 32-2]; Pls.' L.R. Stmt

~

1 [Doc. # 37-1] (hereinafter collectively,

"Parties' L.R. Stmts").) During this visit, Plaintiffs drove to JFK Middle School, which Plaintiff
Daniel Demers had attended in his youth. (Parties' L.R. Stmts

~

2.) Plaintiffs did not make any

contact with anyone at JFK Middle School prior to arriving and did not know anyone at the school.

2

The Amended Complaint names all individual Defendants in both their individual and
official capacities, but Plaintiffs do not seek injunctive or declaratory relief, only compensatory and
punitive damages and attorneys' fees. (See Am. Compl. at 17.) At oral argument, Plaintiffs clarified
that the Amended Complaint should be construed as only naming the individual Defendants in
their individual capacity.
3

(Id. ~ 3.) The Plaintiffs did not have any relationship involving the custody of or responsibility for

any pupil at the school, or any related reason to be there. (Id.

~

4.) The Plaintiffs, with Daniel

Demers driving, drove into the middle school property while school was in session, and drove
around the entire school. (Id. ,- 5.) During this time, Mrs. Demers was taking photographs of the
school out of the passenger seat window. (Id.)
Plaintiffs' vehicle exited but then re-entered the middle school property. (Id.~ 6.) This time,
the vehicle stopped in front of the school, Mrs. Demers got out, Mr. Demers parked, and Mrs.
Demers walked to the entrance of the Red House wing of the middle school and attempted to open
the doors, but they were locked. 3 (Id.

~~

7-8.) Thereafter, she pressed her face to the glass doors

and looked inside. (Id.) She also placed her camera to the glass and took photos of the interior of
the building. (Id.)
At approximately 12:55 p.m., Pamela Estes, an employee of the middle school, was in the
Red House hallway and observed Mrs. Demers' actions, including her camera pressed to the glass. 4
(Id. ~ 9.) Ms. Estes approached the Demers at the door and inquired, "can I help you, what are you

Plaintiffs object to Defendants' statements in Defendants' L.R. Stmt. ~ 8 (and several later
paragraphs) on the grounds that the actions by Plaintiffs described therein were unknown to
Defendants at the time of the arrest and are therefore irrelevant to establishing probable cause for
the arrest ofloitering. While Plaintiffs' objection is noted, because Plaintiffs do not attempt to deny
or refute this statement by directing the Court to opposing record evidence, as required by D.
Conn. L.R. 56(a)(3) and Fed. R. Civ. P. 56(c)(l)(A), the Court treats these statements by
Defendants as admitted.
3

4

See note 3, supra. Plaintiffs object to but do not deny or rebut the facts in Defendants' L.R.
Stmt. ~ 9.
4

doing here?" with a look of terror on her face. 5 (Id.

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10.) She appeared "very afraid" and

"paranoid." (Id.)
The Demers informed Ms. Estes that Mr. Demers had attended the middle school and that
he was showing his wife around. (Id. ,- 11.) Estes told them that they could not be on school
grounds milling around and that if they had business at the school they would have to check in
with the main office.6 (Id.) The Demers then left, getting back into their blue Cadillac sedan, which
had an out-of-state license plate. (Id.

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12.) As they drove away, they circled the entire school one

more time. 7 (Id. ,- 13.)
The sworn statement of Pamela Estes, ([Doc.# 32-3] at 72), states that she "felt very uneasy
about their presence at the school as their behavior was odd[,]" and the principal "happened to be
behind me as they drove off' and he "then said he'd report the incident." (Id.) Next, Defendants
represent that "[a]s a result of the incidents and concerns it brought, the school was placed in
lockdown[,] other Enfield schools were notified to keep a lookout for the blue [Cadillac], and the
police were called." (Defs.' L.R. Stmt ~ 15.)
At approximately 1:15 p.m., Officer Kevin Ragion of the Enfield Police Department was
dispatched to JFK Middle School for a suspicious motor vehicle complaint. (Parties' L.R. Stmts '
16.) Upon arrival, school staff told him that the occupants of a blue Cadillac with out-of-state plates

5

See note 3, supra.

6

Plaintiffs deny that they were, in fact, milling around but do not deny or identify evidence
refuting Defendants' evidence that Ms. Estes told Plaintiffs that they could not mill around, which
is a different statement. Accordingly, this paragraph is considered for the limited purpose of
establishing what Ms. Estes told Plaintiffs.
7

See note 3, supra.
5

from South Carolina or Georgia were taking pictures of the school, and that they were knocking
on the windows of the Red Wing of the school. (Id.

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17.) They informed Officer Ragion that the

vehicle left prior to the police arriving and had last been seen traveling southbound on Raffia Road.
(Id.)

School administrators, including Gary Harrison, the School Security Consultant for the
Town of Enfield, were concerned over what they observed on video surveillance footage. (Id.

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18.)

They informed Officer Ragion that the camera that the Demers used had a zoom lens and that they
were taking photos both of the outside of the school and of the inside, through the glass. (Id.)
Officer Ragion viewed the school surveillance video with school personnel. (Id.

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19.) It

appeared from the zoomed-in but pixelated video surveillance that the passenger was wearing a
mask, and the passenger's hands were held in a manner that appeared to be holding binoculars. 8
(Id.) Additionally, the video showed that from the time the vehicle arrived to the time it left, the

vehicle drove around the building twice. (Id.)
Video surveillance still images showed at 12:57:43 p.m. a blue Cadillac with the passenger's
side window down and a white female with cupped hands around her face, in a position commonly
used when holding binoculars. 9 (Id.

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20.) Another image from 20 seconds earlier showed "what

[unspecified] individuals (at the time) felt was the passenger wearing a mask." (Id.)

8

Plaintiffs' denial of this statement is based on Ragion's deposition testimony that he knew
prior to the arrest that Mrs. Demers was not surveilling the school with binoculars. This statement
about what Ragion saw on the surveillance video does not speak to what Officer Ragion may have
later learned.
9

See note 8, supra. Plaintiffs argue that whatever the photos and video appeared to show is

irrelevant and should not be considered. However, Plaintiffs acknowledge that Officer Ragion
viewed the video prior to the arrest taking place, and these materials are properly a part of the
summary judgment record.
6

At approximately 1:30 p.m., Officer Ragion, via radio, requested that his supervisor,
Sergeant James Laurino, meet him at JFK Middle School so that he could brief him on the details
of a suspicious vehicle that had been on the school grounds. (Id.

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21.) When Sgt. Laurino arrived,

he was briefed on the incident and the concerns of the school administrators. (Id.

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22.) After

hearing of the circumstances and viewing the still images from the surveillance video, he became
more concerned about the safety of school occupants. 10 (Id.)
~

During this time, the Demers continued to travel throughout Enfield. (Id.

23.)

Approximately one hour later, they drove onto the premises of Enfield High School and parked in
front of the school, got out of the car, and began to take photographs of the school. (Id.

~~

23-24).

School officials at the high school, who were alerted to be on the lookout for the Demers'
vehicle, approached them and called the police. (Id.

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25.) At approximately 2:10p.m., the police

received a report that a car fitting this description had been seen at Enfield High School. (Id.

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26.)

Sgt. Laurino was aware that there was no School Resource Officer on duty at the school at that
time, so several officers were dispatched to the high school. (Id.) Sgt. Laurino then went to the high
school while Officer Ragion stayed at the middle school for a short time before also traveling to the
high school. (Id.

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27.)

At the high school, the police questioned the Demers about their actions and the
circumstances of their presence at JFK Middle School. (I d.

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28.) Mr. Demers testified that when

he drove up to the high school, he "could see a number of people descending upon us." (Ex. 1
(Demers Dep. [Doc.# 37-2]) to Pls.' Opp'n to Mot. Summ. ]. at 64.) Demers "saw these people and

10

Plaintiffs purport to rebut part of this statement by citing to evidence that Ragion (not
Laurino) knew that Mrs. Demers was not using binoculars prior to the arrest. This evidence does
not rebut the statement that Defendants made here, so Defendants' statement is deemed admitted.
7

they looked like they wanted to talk[,]" so he brought his vehicle to a stop and they approached
him. (Id.)
A woman photographed the Demers' license plate, and he got out of the car to see why,
when some men approached him. (Ex. A (Demers Dep. [Doc.# 32-3] to Mot. Summ.

J. at 66.)

Demers spoke with "a school administrator of some sort" and Demers told him "why we were there
and basically the whole story." (Id. at 65.)
Demers "asked them why they were photographing [his] license plate" was told that "they
were on the lookout for [his] car." (Id. at 67.) Demers asked why, and he was told "because ...
there was an incident at the junior high school .... " (Id.) Demers explained " [s] orry, I didn't realize
there was an incident." (Id.) Demers explained why he was in town and what he was doing. (Id.)
The administrator he was speaking with "nodded and seemed comfortable with what [Demers]
was saying." (Id.)
Demers told the administrator that he was sorry and that he would be on his way, but when
he got back into the car, the administrator asked Demers if he would mind waiting just a moment
because the police wanted to file a report. (Id. at 67-68.) Demers said sure, shut offthe car, and
waited for the police to arrive. (Id. at 68.)
After the police officers arrived, one of the police officers asked Mr. Demers to approach
him, which Demers did, and asked him for his story. (Demers Dep. [Doc.# 37-2] at 72.) Demers
explained to the officer that he and Mrs. Demers were visiting the town after many years away, that
he had been a student at these schools and stopped to show his wife around the town and to see
what his old high school looked like. (Id.) The officer asked for Mr. Demers' identification, which
he provided, and then asked him to stand in the center of the perimeter created by the Demers'

8

and the police cars on the scene until the patrol sergeant's arrival. {Id. at 72-73.) Mrs. Demers was
instructed to stand by the front of the female officer's police cruiser. {Id. at 73.)
Demers "was looking forward to [Sergeant Laurino's] arrival because the officers around
were very young, inexperienced, and they didn't seem to be making any decisions[,] so [he] was
looking forward to a mature officer who [he] could tell [his] story to and tell him who [Demers]
[was], what [his] reputation is and [his] credentials and even provide him with phone numbers of
police departments that know [him] and" that would be able to confirm his identity. (Id. at 74.)
Demers testified: "I was disappointed to find somebody with a very aggressive stance, kind of
charging to us." (Id.) "He wasn't in any way trying to defuse the situation." (Id.) "The situation
became much more tense upon his arrival because he had a very stern look in his face, what I would
call an aggressive look and an aggressive posture and he got up pretty close to me and said,
[']What's going on here?[']" (Id. at 74-75.)
Demers told Laurino that he had no idea and began to explain to him again what he had
already told the other officer. (Id. at 75.) Demers testified that based on him having been told by
the school administrator that the police wanted to file a report, he "was expecting a single patrol
car to file a report, hear us out and that would be the end of it" and that he "was not expecting a
SWAT team approach on myself and my wife." {Id. at 75-76.)
Demers testified that Laurino "seem[ed] totally uninterested in my story" and brusquely
ordered him to move over to one of the cars, grabbing Demers by the bicep in an aggressive
manner. (Id. at 76.) Demers testified that he gently asked why he needed to move, and Laurino
responded by telling Demers "Shut up and get over to the car." (Id.) Demers complied. (Id.)
Laurino conducted a pat-down search and according to Demers also "grabbed me by the
scrotum, firmly, very firmly, and not just a pat-down." (Id. at 77.) Demers testified that "[t]his was
9

just a long momentary pause where he grabbed and held on firmly[,]" and that Demers did not
"know what the purpose of that is[,]" and had "never heard of that occurring." (Id.)
After what "seemed like an eternity[,]" Demers heard over the police radio that "it is all
clear on Edith and Daniel Demers across the board." (Id. at 80.) After this, the police searched the
Demers' car two times, then placed the Demers under arrest for loitering, and searched the car a
third time. (Id. at 80-81.)
For her part, Mrs. Demers testified that a female police officer frisked her "very
aggressively, especially [her] breasts[,]" which the officer frisked twice. (Ex. 2 (Edith Demers Dep.
[Doc.# 37-3] to Pls.' Opp'n to Mot. Summ. J. at 42.)
Mr. and Mrs. Demers were arrested and charged with violating Con. Gen. Stat. § 53a-185,
Loitering on School Grounds. (Parties' L.R. Stmts

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30.) Officer Ragion handcuffed Mr. Demers

and transported him to the police department, where he was processed in accordance with
department protocol; Officer Magagnoli did the same with Mrs. Demers. (Id.) They were released
from custody that evening. (Id.

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32.)

The arrest reports for both of the Demers make clear that they were arrested at the high
school for allegedly violating the loitering statute at the middle school, and Defendants do not
contend that they had probable cause to arrest the Demers for loitering at the high school. (Arrest
Reports [Doc.# 32-3] at 80, 84.)
The record contains audio dispatch recordings from March 23, 2016. (Ex. 9 to Defs' Mot.
Summ. J.) In the first call to police, a caller who identifies herself as Sarah Brown from JFK Middle
School reports that "we just had a couple come up to the door" of the Red Wing who were taking
pictures and "banging on the door, trying to get in." (Id.) Ms. Brown reported that "we got their
license plate, and they kind of drove off but we have a kid who has a protective order out and the
10

parent has South Carolina plates, so ...." (Id.) The assistant principal who was also on the call said
he thought that the plates were either from Georgia or South Carolina but that he wasn't sure. (Id.)
II.

Discussion

Legal Standard

Summary judgment is appropriate where, "resolv[ing] all ambiguities and draw[ing] all
permissible factual inferences in favor of the party against whom summary judgment is sought,"
Holcomb v. I ana Call., 521 F.3d 130, 137 (2d Cir. 2008), "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). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Williams v. Utica Call. of Syracuse Univ., 453
F.3d 112, 116 (2d Cir. 2006) (quotation marks omitted). "The substantive law governing the case
will identify those facts that are material, and '[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment."' Bouboulis v. Transp. Workers Union of Am., 442 F.3d 55, 59 (2d Cir. 2006) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering a motion for

summary judgment, the Court may consider depositions, documents, affidavits, interrogatory
answers, and other exhibits in the record. Fed. R. Civ. P. 56( c).
1. Probable Cause

Defendants argue that summary judgment must be granted as to Plaintiffs' § 1983 claim
for unreasonable seizure in violation of the Fourth Amendment and state law claim for false arrest,
and that these claims fail as a matter of law because Defendants had probable cause to arrest
Plaintiffs for violation of the school loitering statute.

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Plaintiffs were arrested for violation of Conn. Gen. Stat. § 53a-185, Loitering on School
Grounds, which provides that "a person is guilty ofloitering on school grounds when he loiters or
remains in or about a school building or grounds, not having any reason or relationship involving
custody of or responsibility for a pupil or any other license or privilege to be there."
Plaintiffs effectively concede that they had no relationship involving the custody of or
responsibility for a pupil, no reason to be at the school involving the custody of or responsibility
for a pupil, and no other license or privilege to be there.u They contend, however, that they did
have a reason to be there-just not one involving having a child at the school-and read the statute
as establishing three exceptions to the anti-loitering rule: having any legitimate reason to be on
school grounds, having a relationship involving the custody of or responsibility for a pupil, and
having any other license or privilege to be there.
The statute is not crystal clear whether the phrase "any reason" is modified by "involving
the custody of or responsibility for a pupil" or not, and the parties have identified no other state or
federal authority construing the statute that would answer this question. The Connecticut
Criminal Jury Instructions, 8.9-4, lend support to Plaintiffs' reading, because they define the
exceptions as follows: "The second element is that the defendant had no reason, no relationship
involving custody of or responsibility for a pupil, nor any other license or privilege to be there." In
these instructions, unlike in the text of the statute, there is a comma between "no reason" and "no
relationship" that suggests that the phrase that follows "no relationship" ("involving custody of or

u At oral argument, Plaintiffs argued, for the first time, that they had a "sentimental
privilege" to be on school grounds. In addition to failing to raise this argument in their Opposition
to Defendants' Motion for Summary Judgment, Plaintiffs provided no authority suggesting that
such a privilege existed or could have defeated probable cause under the circumstances of this case.
12

responsibility for a pupil") modifies only "no relationship" and not "no reason." However, the
Court does not parse the text of pattern jury instructions as if they were themselves a statute in
order to construe the statute at issue, particularly if the instruction is not squarely supported by
the text of the statute itself. Here, the very part of the pattern jury instructions that supports
Plaintiffs' reading-the comma after "no reason" -is conspicuously absent from the actual
statutory text. Accordingly, the Court rejects Plaintiffs' attempt to show that Defendants lacked
probable cause on this basis.
Plaintiffs also contend that Defendants lacked probable cause to arrest them because they
were not actually loitering. The statute defines loitering broadly: "a person is guilty of loitering on
school grounds when he loiters or remains in or about a school building or grounds[.]" The police
report (Ex. D to Defs' Mot. Summ. J.) and attached witness statements, together with the 911 call
made from the middle school, establish that the officers responding to the scene and making the
arrest collectively knew that Plaintiffs had (1) come onto the grounds ofJFK Middle School, (2)
taken photographs, (3) knocked or banged on one of the doors and looked in/taken at least one
photograph through the glass, and (4) that when a teacher responded to the door and told them
that they needed to go check in at the main office, they said they were leaving instead, which they
did.
Defendants contend that probable cause supporting the "loitering" element was met here
because loitering can be accomplished by standing around or moving slowly about (citing to the
Connecticut Criminal Jury Instructions 8.9-4), but they do not identify any record evidence that
would definitively establish that Defendants had a basis for believing that Plaintiffs were in fact
"standing around" or "moving slowly about" as opposed to what Plaintiffs testified they were
doing, and what the record reflects Defendants were aware of their doing-Plaintiffs entered the
13

property without student-related reasons, took photographs, tried to enter the building, and then
left.
Mr. Demers testified the time between when they entered the school property and when
they left "seemed like two minutes"-"[i]t was a very short time." (Demers Dep. [37-2] at 44.) Of
course, the mere fact that Demers testified they were only on the property for approximately that
short time would be of no moment if the arresting police officers had a basis for believing that
Plaintiffs had been on the property long enough to constitute loitering, or otherwise sufficient to
establish that they had been "standing around" or "moving slowly about." Defendants
acknowledge that as part of the decision to make the arrest here, Officer Ragion viewed the school
surveillance video with school personnel. (Mem. Law. Supp. Defs.' Mot. Summ. J. [Doc.# 32-1] at
7.) Defendants direct the Court to no deposition testimony from Officer Ragion and no part of the

surveillance video that would (1) rebut Demers' testimony that they were only on the property for
a very short time or (2) establish that the video that Ragion viewed or the interviews that Ragion
conducted led him to believe that the Demers had been on the property for a long enough time to
constitute "loitering." Similarly, Defendants direct the Court to no record evidence indicating that
Plaintiffs were "standing around," "moving slowly about," spending time idly, remaining in the
same place on school property, or to any evidence that would establish that Defendants had reason
to believe Plaintiffs were engaged in any such activity. While the parties agree that Ms. Estes, a
teacher at JFK Middle School, told Plaintiffs that they could not be on school grounds milling
around, there is no evidence in the record that Estes told Officer Ragion or any other officer that
she believed that Plaintiffs were "milling around" before the Demers' arrests.
Accordingly, and drawing all reasonable inferences in favor of the non-moving party, the
Court concludes that a reasonable jury could find that Defendants lacked probable cause to arrest
14

Plaintiffs for loitering, given (1) Mr. Demers' unrebutted testimony that they were only on the
property for a very short amount of time, combined with the fact that (2) Officer Ragion watched
video surveillance of this and did not claim, in the police report or at his deposition that the Demers
had remained on the property for any extended period of time, (3) the absence of any record
evidence suggesting that Plaintiffs were in fact standing around or moving slowly about the school
grounds, and (4) the absence of any record evidence suggesting that Defendants had reason to
believe that Plaintiffs were standing around or moving slowly about the school grounds.
2. Qualified Immunity

In the alternative, Defendants argue that even if they lacked probable cause to arrest
Plaintiffs, they are entitled to qualified immunity on the § 1983 unreasonable seizure claim,
contending that their conduct does not violate any clearly established constitutional rights and that
it was objectively reasonable for Defendants to believe their acts did not violate those rights. (Mem.
Supp. Defs.' Mot. Summ. J. at 15.)
"Qualified immunity protects public officials from liability for civil damages when one of
two conditions is satisfied: (a) the defendant's action did not violate clearly established law, or (b)
it was objectively reasonable for the defendant to believe that his action did not violate such law.''

Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (citing Russo v. City of Bridgeport, 479 F.3d 196, 211
(2d Cir. 2007) (other citations omitted)). Defendants bear the burden of establishing qualified
immunity. Id. (citing Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013)).
"The right not to be arrested or prosecuted without probable cause has ... long been a
clearly established constitutional right." Kafafian v. Young, No. 3:10-CV-1657 JCH, 2011 WL
1134251, at *2 (D. Conn. Mar. 25, 2011) (citing Golino v. City ofNew Haven, 950 F.2d 864, 870 (2d
Cir. 1991)). "When considering a question of qualified immunity, however, a district court must
15

determine whether, given the 'specific context of the case,' the right was clearly established."
Christman v. Kick, 342 F. Supp. 2d 82, 89-90 (D. Conn. 2004) (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)). "That is to say, '[t]he contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.' " Id. (citing
Anderson v. Creighton, 483 U.S. 635,640 (1987)) (other citations omitted). Officers "can still be on

notice that their conduct violates established law even in novel factual circumstances[,]" and the
"salient question" is "whether the state of the law" at the time of the challenged conduct gave
officers "fair warning" that their alleged conduct was unconstitutional. Hope v. Pelzer, 536 U.S.
730, 741 (2002).
Defendants correctly cite Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004), for the
proposition that "[e]ven if probable cause to arrest is ultimately found not to have existed, an
arresting officer will still be entitled to qualified immunity from a suit for damages if he can
establish that there was 'arguable probable cause' to arrest." Id. "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.' "
Id. (citations omitted). But Defendants make no argument as to why, on the record of what the

Defendants knew at the time of the arrest, they had even arguable probable cause to arrest Plaintiffs
for violation of the loitering statute, given the apparently extremely short duration of Plaintiffs'
visit to the school, the lack of any suggestion that Plaintiffs were standing idly around, and
Plaintiffs' hasty departure from the school upon being told that they could not enter through the
door that they were knocking on.
Defendants also cite Saucier v. Katz, 533 U.S. 194, 206 (2001) , for the proposition that
"[ o ]fficers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of
16

probable cause or exigent circumstances, for example, and in those situations courts will not hold
that they have violated the Constitution." Defendants do not, however, explain what "reasonable,
but mistaken" factual beliefs they claim entitle them to qualified immunity.
Moreover, a reasonable officer in 2013 would have understood that they lacked probable
cause to arrest someone for loitering who was in fact moving around. See City of Chicago v.

Morales, 527 U.S. 41, 61-62 (1999) (identifying "moving" as "activity that would not constitute
loitering under any possible definition of the term"). Similarly, insofar as Plaintiffs attempted to
enter the school and then left immediately after being told that they could not use their choice of
entrance, a reasonable officer would understand that they lacked probable cause to arrest Plaintiffs,
whether because this type of activity cannot be defined as loitering, or because Plaintiffs may have
had a limited license to knock on the door, in the absence of any signs or fences explicitly or
implicitly forbidding entry. Cf Fla. v. ]ardines, 569 U.S. 1, 8 (2013) (describing the "implicit license
[that] typically permits the visitor to approach the home by the front path, knock promptly, wait
briefly to be received, and then (absent invitation to linger longer) leave.")
Because Defendants have failed to establish any theory on which they had arguable
probable cause to arrest Plaintiffs or to identify any reasonable but mistaken facts upon which they
relied that would establish probable cause, Defendants' Motion for Summary Judgment based on
qualified immunity must be denied.
3. Failure to Intervene

Count Two of Plaintiffs' Amended Complaint claims failure to intervene to protect
Plaintiffs' constitutional rights, brought under 42 U.S.C. § 1983. As to this claim, Defendants argue
only that a claim for failure to intervene in the deprivation of constitutional rights is contingent
upon a favorable disposition of the underlying claim-here, unreasonable seizure in violation of
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the Fourth Amendment-and that because Defendants had probable cause to arrest Plaintiffs, this
claim must fail. But for the reasons discussed above, a reasonable jury could conclude that
Defendants lacked probable cause to make this arrest. Defendants advance no other arguments for
granting summary judgment on this claim, so Defendants' Motion for Summary Judgment must
be denied as to Count Two.
4. Recklessness

Count Four of Plaintiffs' Amended Complaint alleges "recklessness" by Defendants for
failing or refusing to properly investigate the situation before effectuating the arrests. Defendants
argue that because they had probable cause to arrest Plaintiffs, their conduct, as a matter of law
cannot be deemed reckless. For the reasons discussed above, this argument is unavailing. Second,
Defendants argue that the Connecticut common law claim of recklessness requires a risk of bodily
harm, an argument that Plaintiffs fail to rebut.
"Recklessness requires a conscious choice of a course of action either with knowledge of
the serious danger to others involved in it or with knowledge of facts which would disclose this
danger to any reasonable man, and the actor must recognize that his conduct involves a risk
substantially greater ... than that which is necessary to make his conduct negligent." Matthiessen

v. Vanech, 266 Conn. 822, 832 (2003) (internal quotation marks and citations omitted). "One is
guilty of reckless misconduct when knowing or having reason to know of facts which would lead
a reasonable [person] to realize that the actor's conduct not only creates an unreasonable risk of
bodily harm to the other but also involves a high degree of probability that substantial harm will
result to him." Craig v. Driscoll, 64 Conn. App. 699, 721 (2001) (internal quotation marks and
citations omitted).

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The only types of bodily harm claimed by Plaintiffs involve the alleged intrusive searches
about which both Plaintiffs testified, but which were not permitted to be claimed separately in the
operative Amended Complaint. Plaintiffs seek to portray their Fourth Amendment claim as one
for excessive force in addition to false arrest, but these allegations are absent from their original
Complaint and their Amended Complaint, despite presumably being aware of the factual basis for
these claims at the time suit was filed. (See Order Denying Motion for Leave to Amend Complaint
(declining to permit amendment to include these allegations and claims because Plaintiffs failed to
make this amendment until after discovery was closed and Defendants had moved for summary
judgment, without good cause justifying the prejudice to Defendants and their undue delay).)
Because the operative Amended Complaint contains no allegations of bodily harm, Defendants'
Motion for Summary Judgment must be granted as to Count Four, for recklessness.
5. Negligence Claims

Plaintiffs bring Count Five for Negligence and Count Six for Negligent Infliction of
Emotional Distress. Defendants argue first that because they had probable cause to arrest Plaintiffs,
their conduct cannot, as a matter of law, be unreasonable. For the reasons discussed above,
summary judgment will not be granted on this ground.
Second, Defendants argue that with respect to these two claims, they are entitled to
governmental immunity pursuant to Conn. Gen. Stat. § 52-557n:
Connecticut municipalities "shall be liable for damages to person or property caused by ..
. [t]he negligent acts or omissions of [the municipality] or any employee, officer or agent thereof
acting within the scope of his employment or official duties" except where the damages were
caused by "negligent acts or omissions which require the exercise of judgment or discretion as an

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official function of the authority expressly or impliedly granted by law." Conn. Gen. Stat. § 52557n(a)(l)(A); § 52-557n(a)(2)(B).
Plaintiffs appear to concede that the arrest here was, for the purpose of these counts, an act
requiring the exercise of judgment or discretion. (See Pls.' Opp'n to Mot. Summ. J. at 19.) They
contend, however, that their claims are not barred, because they fall into the imminent harm
exception to the immunity.
"Discretionary act immunity is abrogated when the circumstances make it apparent to the
public officer that his or her failure to act would be likely to subject an identifiable person to
imminent harm ... ."Doe v. Petersen, 279 Conn. 607, 616 (2006) (internal quotation marks and
citation omitted). "By its own terms, this test requires three things: (I) an imminent harm; (2) an
identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely
to subject that victim to that harm." I d.
Defendants direct the Court to authority suggesting that the imminent harm exception
comes into play only in cases of physical harm or personal danger, (see Mem. Supp. Mot. Summ.
J. at 26),1 2 and Plaintiffs claim that they fit into this exception because of their claims for excessive
force. Leave to amend to add excessive force claims was denied and Plaintiffs never pled their
excessive force claims in their original or Amended Complaint. Thus, Plaintiffs have no extant
claims for excessive force, notwithstanding their deposition testimony regarding groping.

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See, e.g., Milardo v. City of Middletown, No. 3:06CV01071(DJS), 2009 WL 801614, at *9
(D. Conn. Mar. 25, 2009) (finding that plaintiffs' claim does not fall within the imminent harm
exception because it does not involve physical harm or personal danger (citing Chipperini v.
Crandall, 253 F. Supp. 2d 301, 312 (D. Conn. 2003))).
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Accordingly, they do not fit within this exception and Defendants are entitled to discretionary act
immunity on Counts Five and Six.
6. Indemnification Claims

Finally, Plaintiffs claim in Count Eight that they are entitled to indemnification pursuant
to Conn. Gen. Stat. § 7-465 and in Count Nine that they are entitled to indemnification pursuant
to Conn. Gen. Stat. § 52-557n.
Plaintiffs argue that Count Nine's claim for indemnification pursuant to Conn. Gen. Stat.
§

52-557n should survive to the extent that their claims for negligence and negligent infliction of

emotional distress survive. Because the Court grants summary judgment on those claims,
Defendants' Motion for Summary Judgment will be granted as to Count Nine as well.
Plaintiffs argue that Count Eight's claim for indemnification pursuant to Conn. Gen. Stat.
7-465 survives to the extent that Defendants may be held liable for the underlying § 1983
constitutional violations for unreasonable seizure (Count One) and failure to intervene (Count
Two). Plaintiffs note that the only argument Defendants raise on Count Eight is that it fails because
Plaintiffs cannot show that there is any underlying constitutional violation. Because the Court
disagrees with Defendants' contention that a reasonable jury could not conclude that Plaintiffs'
Fourth Amendment rights were violated, Defendants' Motion for Summary Judgment will be
denied as to Count Eight.
7. Monell Claim

Finally, Defendants contend that summary judgment must be granted as to Plaintiffs' claim
for municipal liability under§ 1983 because the individual Defendants' actions do not amount to
a constitutional violation, an argument that is unavailing. In light of the Court's denial of
Defendants' Motion for Summary Judgment on Plaintiffs' constitutional claim, and since the
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Court granted Defendants' Motion to Bifurcate and Stay Discovery as to Plaintiffs' Monell claim,
consideration of summary judgment on any other grounds would be premature.
III.

Conclusion

For the reasons set forth above, the Court grants Defendants' Motion for Summary
Judgment as to Count Four (Recklessness), Count Five (Negligence), Count Six (Negligent
Infliction of Emotional Distress), and Count Nine (Statutory Indemnification pursuant to Conn.
Gen. Stat. § 52-557n), denies Defendants' Motion for Summary Judgment as to Count One
(Unreasonable Seizure in Violation of the Fourth Amendment, brought under 42 U.S.C. § 1983),
Count Two (Failure to Intervene, brought under 42 U.S.C. § 1983), Count Three (False Arrest),
and Count Eight (Statutory Indemnification Pursuant to Conn. Gen. Stat. § 7-465), and denies
without prejudice Defendants' Motion for Summary Judgment as to Count Seven (Municipal
Liability).
The parties are directed to file a joint status report within seven days providing a proposed
scheduling order for remaining Monell discovery and summary judgment briefing on the Monell
claim.
IT IS SO ORDERED.
s
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this lOth day of August 2018.

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