Nuzzo v. Devine et al

Filing 52

MEMORANDUM OF DECISION. As set forth in the attached ruling, the Court concludes that plaintiff Jeffrey Nuzzo has failed to prove by a preponderance of the evidence that defendants Sergeant Mark Devine and Trooper Matthew Warren should be liable to h im for the use of excessive force in violation of the Fourth Amendment. Pending motions (Docs. # 36 and # 49 are DENIED as moot. The Clerk of Court shall enter judgment in defendants' favor and close this case. It is so ordered. Signed by Judge Jeffrey A. Meyer on 10/14/2020. (Johnson, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JEFFREY NUZZO
Plaintiff,
v.

No. 3:18-cv-00516 (JAM)

MARK DEVINE and MATTHEW
WARREN,
Defendants.
MEMORANDUM OF DECISION
Plaintiff Jeffrey Nuzzo filed this civil rights action against defendants Sergeant Mark
Devine and Trooper Matthew Warren of the Connecticut State Police. He seeks to hold them
liable for the use of police dogs to attack him when he was arrested in October 2015. The matter
proceeded to a bench trial before me, and I now issue this ruling concluding that Nuzzo has
fallen short of proving his claim for excessive force against either defendant. Accordingly, I will
grant judgment to the defendants.
BACKGROUND
The trial of this matter included testimony from the plaintiff and both defendants. The
defendants also called as witnesses four state troopers: Robert Lanteri, Nicholas Leary, Donald
Dunning, and Jonathan Naples. Trial exhibits included numerous photographs and hospital
records reflecting the treatment of and statements by Nuzzo following the incident at issue. Doc.
#39. 1

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Because the parties have not ordered trial transcripts, I set forth the following version of events on the basis of my
recollection and trial notes. The parties should timely file a motion for reconsideration if they believe I have erred in
my recitation and findings of fact.

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At the time of the incident, Nuzzo was a self-employed construction worker who
primarily worked for music festivals. He was married and lived with his spouse and two young
children in Durham, Connecticut. Shortly before the incident at issue, Nuzzo suffered a serious
professional setback when a music festival for which he was working lost a considerable sum of
money. This development exacerbated Nuzzo’s fragile mental health condition, and it led him to
believe that his life was in danger at his home from unnamed “mob” persons connected with the
festival.
By late afternoon on October 13, 2015, Nuzzo’s mental health condition had deteriorated
to the point that—after drinking a few glasses of wine—he shaved his beard, dressed all in black,
and took out a range bag of weapons. One of Nuzzo’s family members called the police for a
“welfare check.” The police duly arrived, found Nuzzo lucid and nonthreatening, cautioned him
not to drive while intoxicated, and then departed.
But events soon took a turn for the worse. Nuzzo believed that he was in imminent
danger, and he threatened suicide, cutting his wrist with a large knife, and leaving blood spatters
on the floor. This prompted a second call to the police from Nuzzo’s parents, who had overheard
a substantial part of Nuzzo’s exchange with his wife, including a threat by Nuzzo to burn down
the home.
Two state troopers arrived shortly before midnight. In the meantime, Nuzzo decided to
hide from the police by crawling out an upper floor window onto the roof of the house. The
troopers searched the house and surrounding area, but they did not know where Nuzzo was. They
saw the bloodied knife, and found a trail of blood that led into the back yard to a sword sticking
into the ground.

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The troopers summoned backup, including among others the two defendants whom
Nuzzo has sued in this action—Sergeant Mark Devine and Trooper Matthew Warren of the
Connecticut State Police. They and the other responding officers learned that Nuzzo had
threatened to harm himself and others. The responding officers concluded that Nuzzo must be at
large in and around the woods surrounding the relatively rural setting of the Nuzzo house.
Sergeant Devine called in a search-and-rescue unit. Testimony from troopers at trial
reflected concern at the time that Nuzzo was mentally unstable, that he had access to a
diversified array of weapons (from guns to swords), and that there was a local school within a
short distance of his house where children would arrive for the school day come daybreak in a
few hours.
Teams of troopers with canine assistance searched the surrounding area for hours through
the night. Sergeant Devine eventually enlisted the assistance of a state police helicopter for aerial
reconnaissance.
All this time Nuzzo watched the escalating police activity from the roof. He sent text
messages to his wife informing her that, if the police did not leave, he would blow up the house,
or walk outside and attempt so-called “suicide by cop.” Nuzzo’s wife immediately forwarded the
texts to the police, who circulated each message to all of the officers involved in the Nuzzo
search.
Several hours passed before Nuzzo finally re-entered the house from the roof. Outside the
house Trooper Lanteri saw Nuzzo inside and promptly radioed the search and rescue units to
converge on the house. Nuzzo called the police barracks to report that he wished to surrender. He
was told to leave the house without weapons or anything that could be seen as a weapon, and that
he should slowly exit the house while staying on the phone with the officer.

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The police did not know just where or how Nuzzo would leave the house. As can be seen
from the photograph below, the evening was pitch-black; the photograph below is illuminated by
the camera flash, but the house itself was almost totally dark and shed little light on the yard.

Nuzzo left the house through the front door. The troopers were deployed on all sides of
the house. Two of the troopers were trained canine handlers and had their dogs with them outside
the house. Trooper Leary had his dog “Elvis,” and Trooper Naples had his dog “Ido.”
The parties dispute what happened next, and I will start with describing Nuzzo’s version
before describing the defendants’ version. According to Nuzzo, he left the house while holding
his phone to his ear. When he saw that the troopers at the front of the house had their guns
drawn, he dropped the phone and put his hands as instructed where the troopers could see them.

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The police—including the two defendants—ran up the steps toward him on the small porch
where he stood, and they grabbed him by his arms and legs. They carried him down the steps and
into the yard, all the while Nuzzo was prone, unresisting, and calmly telling the police to relax.
While Nuzzo lay on the ground with his hands above his head, he heard the troopers order the
dogs to attack him. The dogs allegedly savaged Nuzzo as the police held him down, and only
then were the dogs withdrawn, and Nuzzo was handcuffed.
According to Nuzzo, Sergeant Devine and Trooper Warren took part in holding him
down while the dogs attacked. He did not testify that they were the dogs’ handlers or that they
commanded the dogs to attack him. Nuzzo faults Sergeant Devine and Trooper Warren for
failing to intervene to prevent the dogs from attacking him.
The testimony of the defense witnesses told a very different story: Nuzzo left the house
and then came down the front steps, walking down and to the left to approximately the location
of the exhibit sticker in the photograph above. As Nuzzo descended to the yard, the troopers
around the back of the house, including Sergeant Devine, rapidly moved from the back and sides
of the house to the front lawn. Nuzzo failed to drop down as commanded by the troopers to do.
From his vantage point just behind the bushes on the right front of the house, Trooper
Leary saw that Nuzzo was not obeying the commands to get down and appeared to be holding an
object in his right hand. Trooper Leary decided to take advantage of the element of surprise,
rapidly closing in on Nuzzo and deploying his dog Elvis to secure him. Elvis leaped and bit
Nuzzo in his upper pectoral muscle. Almost simultaneously, Trooper Naples—who was on the
other side of Nuzzo—decided to deploy his dog Ido, and Ido bit into Nuzzo’s lower left side.
According to the defense testimony, Nuzzo fell to the ground in a struggle with the two
dogs. As the dogs deployed, Sergeant Devine and Trooper Warren closed in on Nuzzo to secure

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him. After Trooper Leary saw that Nuzzo was prone, he disengaged Elvis and attempted to hold
Elvis to heel. But Trooper Naples did not disengage Ido, because he believed Nuzzo had a
weapon of some sort. Ido continued to bite into Nuzzo’s lower back area.
By this time, Nuzzo had fallen on his front, tightly tucking his arms underneath him with
his fists balled, rocking from side to side. Because Ido continued to maintain his hold on Nuzzo,
his rocking resulted in tearing wounds on his lower back. Trooper Naples testified that police
dogs are trained to bite and hold, and therefore to re-bite if the suspect moves in order to
maintain a hold.
Only after the officers were able to secure Nuzzo’s arms and hands for cuffing did
Trooper Naples direct Ido to disengage from Nuzzo’s body. During the fracas, Elvis bit one of
the other police troopers who was trying to secure Nuzzo. According to the defense testimony,
Nuzzo did not stop resisting until his wrists were handcuffed.
The parties broadly agree about what happened next. Nuzzo was taken by ambulance to
Middlesex Hospital, where he remained for 12 days for treatment of his dog bites and his mental
condition including bipolar disorder. Nuzzo told the officers that he intended to file a lawsuit for
their use of the dogs against him.
FINDINGS OF FACT
Because this is a civil lawsuit, my role is to decide if Nuzzo has carried his burden to
prove the facts of his case by a preponderance of the evidence. Having considered in full all of
the testimony and exhibits, I adopt as findings of fact those events recounted above upon which
the parties agree and—as to the disputed facts—those facts as adduced by the testimony of the
defendants and their witnesses. In light of Nuzzo’s bizarre conduct and state of mind on the night
in question, I do not have confidence in his account relating to what happened when he left his

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house and was allegedly subject to a gratuitous use of canine violence by the police. I conclude
that Nuzzo did not immediately surrender to and follow the commands of the police officers after
he left the house.
I credit the testimony of Troopers Leary and Naples that they instructed their dogs to
secure Nuzzo only after Nuzzo did not respond to police commands. Although Nuzzo contends
that a photograph (Exh. 5) showing a dog bite in his armpit supports his claim that he was prone
with his arms above his head when attacked, a bite in the armpit is equally consistent with the
defense account that one of the dogs (Elvis) attacked him while he was still standing and before
he was brought to the ground and his arms tucked underneath him. Contrast Rinaldi v. Laird,
2016 WL 4179837, at *5 (D. Conn. 2016) (finding defendant liable for excessive force where
photographic evidence contradicted the defendant’s testimony). I likewise credit the testimony of
Sergeant Devine and Trooper Warren that they did not instruct the dogs to attack Nuzzo and that
they were not aware of facts to suggest that the use of the dogs to secure Nuzzo was unnecessary.
CONCLUSIONS OF LAW
The Fourth Amendment protects the rights of the people “to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const., amend. IV.
Because the Fourth Amendment protects against unreasonable seizures, it has long been
recognized that the Fourth Amendment is violated if the police use excessive force against a free
person for the purpose of arresting or restraining his or her freedom of movement. See, e.g.,
Graham v. Connor, 490 U.S. 386 (1989).
As the Supreme Court has explained, whether police officers’ use of force is “excessive”
must be judged by “whether the officers’ actions are objectively reasonable in light of the facts
and circumstances confronting them, without regard to their underlying intent or motivation.” Id.
at 397. A court must give “careful attention to the facts and circumstances of each particular
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case,” including (1) “the severity of the crime at issue,” (2) “whether the suspect poses an
immediate threat to the safety of the officers or others,” and (3) “whether [the suspect] is actively
resisting arrest or attempting to evade arrest by flight.” Id. at 396.
Moreover, “[t]he ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Ibid. Thus, “[t]he calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that is necessary in a particular
situation.” Id. at 396–97; see also Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019)
(same).
In light of this framework, I conclude that the facts as proven do not establish that the
police used excessive force. In light of what the police knew about Nuzzo, the fast-moving
sequence of events, and what Troopers Leary and Naples reasonably believed when they
instructed their dogs to secure Nuzzo, it was not objectively unreasonable for them to believe
that the deployment of the dogs was appropriate to ensure the apprehension of Nuzzo and
without increasing a risk of injury to police officers. Nor was the length of time that the dogs
were deployed on Nuzzo objectively unreasonable. One of the dogs (Elvis) was very promptly
disengaged from Nuzzo. The other dog (Ido) remained with a bite hold for a longer time but not
an unreasonably long time in light of what Trooper Naples perceived to be ongoing resistance by
Nuzzo.
In any event, even if I were to conclude that either Trooper Leary or Trooper Naples
engaged in an excessive use of force by means of their deployments of the dogs, Nuzzo has not
named them as defendants in this action. Nuzzo instead has only named Sergeant Devine and

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Trooper Warren as defendants despite the absence of any evidence that either one of them
instructed the dogs to attack Nuzzo or that either one of them knew in advance that another
trooper would deploy their dogs against Nuzzo as they did.
Because Sergeant Devine and Trooper Warren had nothing to do with instructing the
dogs to secure Nuzzo, they may be liable only if they failed in their constitutional duty to
intervene to prevent the use of excessive force. In other words, Nuzzo must show not only that
he was subject to the use of excessive force but also that Sergeant Devine and/or Trooper Warren
failed to intervene despite being on notice that the force being used was excessive and having a
“realistic opportunity” to intervene. See Sloley v. VanBramer, 945 F.3d 30, 46-47 (2d Cir. 2019).
In view of what was known about Nuzzo’s unbalanced, evasive, and threatening conduct,
as well as the rapid course of events once Nuzzo left the house in very dark lighting conditions, I
am not convinced that Sergeant Devine or Trooper Warren knew or should have reasonably been
aware that it was excessive for the dogs to be deployed on Nuzzo or to hold their positions on
Nuzzo as long as they did. Accordingly, even assuming the use of excessive force by other
officers, the evidence does not show that the failure of Sergeant Devine and Trooper Warren to
intervene amounted to a violation of the constitutional right of Nuzzo to be free from the use of
excesive force.
The facts here are distinguishable from other cases that allow liability against a police
officer who fails to intervene to prevent another officer from using a dog to engage in excessive
force. For example, in Priester v. City of Riviera Beach, Fla., 208 F.3d 919 (11th Cir. 2000), the
Eleventh Circuit held that a police officer should have intervened when he was standing nearby
and watched a junior officer’s threat to deploy his dog on the plaintiff and his actual deployment
of the dog on the plaintiff for an excruciating two minutes. Id. at 924-25; see also Mendoza v.

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Mclean, 2016 WL 3542465, at *5 (S.D.N.Y. 2016) (denying summary judgment where evidence
suggested officer “should have perceived the use of force” involving police dog was “excessive”
and where officer “had the opportunity and sufficient time to stop it, yet he allowed it to
continue”).
One last point. Defendants have argued that Sergeant Devine and Trooper Warren had no
legal authority to second-guess the dog handlers’ decisions about when and how to deploy their
dogs. I reject this argument. There is no “act of dog” exception to a police officer’s constitutional
duty to refrain from the use of excessive force and to intervene if others do so. The rules are no
different because the police decide to use a dog rather than another means of force. Nevertheless,
for the reasons explained above, I conclude under the particular circumstances here that it was
not unreasonable for Sergeant Devine and Trooper Warren to refrain from intervening in the use
of the dogs against Nuzzo.
CONCLUSION
On the basis of all of the evidence and arguments, I conclude that plaintiff Jeffrey Nuzzo
has failed to prove by a preponderance of the evidence that defendants Sergeant Mark Devine
and Trooper Matthew Warren should be liable to him for the use of excessive force in violation
of the Fourth Amendment. Pending motions (Docs. #36 and #49) are DENIED as moot. The
Clerk of Court shall enter judgment in defendants’ favor and close this case. It is so ordered.
Dated at New Haven, Connecticut, this 14th day of October 2020.

/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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