Bombard v. Volp et al

Filing 43

OPINION AND ORDER granting 35 Second Motion for Extension of Time to File Response/Reply as to 25 MOTION for Summary Judgment ; granting 38 Motion for Protective Order; granting in part and denying in part 25 Motion for Summary Judgment; granting 27 Motion to Bifurcate; denying 27 Motion to Stay. A stipulated revised discovery schedule for this now-bifurcated case is due by 10/6/2014. Signed by Judge William K. Sessions III on 9/8/2014. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MARTIN BOMBARD,
Plaintiff,
v.
RICHARD VOLP, BURLINGTON
POLICE DEPARTMENT, AND CITY
OF BURLINGTON,
Defendants.

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Case No. 2:13-cv-58

OPINION AND ORDER
Plaintiff Martin Bombard brings this action claiming that
Burlington Police Officer Richard Volp’s use of a Taser1
constituted excessive force.

Defendants Volp, the Burlington

Police Department (“BPD”), and the City of Burlington have moved
for summary judgment and, in the event summary judgment is not
granted, to bifurcate the trial.

For the reasons set forth

below, the motion for summary judgment (ECF No. 25) is GRANTED in
part and DENIED in part, the motion to bifurcate (ECF No. 27) is
GRANTED, and the motion to stay discovery (ECF No. 27) is DENIED.
Defendants’ pending motion for a protective order (ECF No. 38)
and Bombard’s motion for an extension of time (ECF No. 35) are
GRANTED.

1

A Taser is an electronic weapon capable of firing wires
tipped with a pair of barbed darts to deliver a paralyzing
electric charge. See Bryan v. MacPherson, 630 F.3d 805, 824 (9th
Cir. 2010).

Factual Background
On the evening of July 29, 2011, plaintiff Martin Bombard
went out for drinks with a friend at Rasputin’s bar in
Burlington, Vermont.

While at Rasputin’s, Bombard encountered

his sister, Cathleen.

Bombard consumed between three and five

alcoholic beverages at the bar, and it is undisputed that he
became intoxicated.
Daniel Soons was also at Rasputin’s that evening with a
group of friends.

At one point, Cathleen asked Soons to move

away from the bar so that she could buy a drink.
profanely.

Soons responded

Bombard overheard Soons speaking to Cathleen, moved

toward him and told him he was out of line.

Bombard and Soons

continued to exchange words until a bouncer asked Bombard to
leave.
Bombard left Rasputin’s voluntarily, but remained outside on
Main Street for ten to fifteen minutes while waiting for Cathleen
and his friend to exit.

Soons subsequently exited the bar with a

group of friends and challenged Bombard to a fight.

Bombard

responded, “Yes, let’s go.

Bombard and

Let’s do it right now.”

Soons then walked to City Hall Park, accompanied by Soons’s
friends.
Once at the park, Bombard punched Soons in the face and
Soons fell to the ground.

Bombard has testified that, fearing

retaliation from Soons’s friends, he immediately fled through an

2

alleyway and onto Church Street, a pedestrian street in downtown
Burlington.

Bombard believed at the time that he was being

chased, but did not know the identity of the chaser.
Burlington Police Officers Richard Volp and Leanne Werner
were on the opposite side of Main Street from City Hall Park when
Bombard hit Soons in the face.

Officer Volp witnessed the punch,

and claims that he called to Bombard to “come here.”
at 41-42.

Volp Dep.

Contrary to Bombard’s testimony, Officer Volp contends

that Bombard did not flee the scene immediately, but instead
walked fifteen or twenty feet toward him in an aggressive manner,
then fled when he realized that Volp was a police officer.
Officer Volp pursued Bombard and claims to have yelled several
times for him to stop.
footsteps behind him.

Bombard testified that he heard only
Bombard Dep. at 69-73.

After exiting the alleyway, Bombard ran north on Church
Street, which was crowded with bystanders.

Officer Volp, still

in pursuit, aimed his Taser’s laser site at the center of
Bombard’s back.

Bombard disputes whether Officer Volp also

yelled “Stop, or I’ll tase you.”

Because the street was crowded,

Officer Volp determined that it was unsafe to shoot his Taser at
that moment.
Officer Volp claims that at one point in the chase, Bombard
turned toward him in an aggressive manner.

This behavior caused

Officer Volp to be concerned that Bombard posed a threat of

3

violence.

Bombard disputes ever turning around, or that he was

even aware of Officer Volp’s presence behind him.

Officer Volp

also allegedly determined that given Bombard’s intoxication and
assault of Soons, any attempt to grab and subdue Bombard would
pose a risk of injury to himself, Bombard, and bystanders.
Bombard disputes whether Officer Volp made this precise
assessment, as Volp stated in his Incident Report that he did not
know whether Bombard was intoxicated.

ECF No. 28-4 at 2.

Officer Volp contends that he fired his Taser when Bombard
turned to run again.

It is undisputed that Bombard and Officer

Volp were approximately ten to fifteen feet away from each other
when the Taser was fired.
the head.

One of the Taser probes hit Bombard in

Bombard lost consciousness, fell to the ground, and

hit the pavement face first.

The fall resulted in four broken

teeth, multiple lacerations to his face, a concussion, and a
wrist injury.
Officer Volp asserts that although he aimed for the center
of Bombard’s back, the probe may have struck Bombard in the head
because as Bombard was turning to run, his body was in a semicrouched stance.

Because Bombard disputes ever stopping and

turning toward Officer Volp, he also disputes that he was in a
semi-crouched position.

Bombard further disputes whether Officer

Volp aimed for the center of his back.
During the time period relevant to this case, the Burlington

4

Police Department (“BPD”) maintained a Use of Force Policy
governing the use of Tasers and other police weapons.

The Use of

Force Policy states that:
A police officer is justified in using non-lethal force
upon another person when, and to the extent that,
he/she reasonably believes it necessary to arrest,
detain or effect custody, or to defend himself/herself
or a third person from what he/she reasonably believes
to be the imminent use of non-deadly force.
With specific regard to a Taser, also known as an Electronic
Control Device or ECD, the Policy provides that: “The ECD is
designed as a tool to respond to threat levels, which place the
Officer or other individuals in the threat of physical harm due
to the actions and behaviors of a suspect.

The suspect must be

actively aggressive and presenting a risk of injury to the
Officer(s), him/herself or others.”

Tasers are “not to be used

in a punitive or coercive manner, and shall not be used to . . .
gain compliance from passively resistant subjects.”

BPD officers

are required to obtain certification and training before they can
be armed with Tasers.
Officer Volp was trained and certified, and receives annual
Taser training.

The written certification test identifies the

head as a “sensitive ECD target area[] of the body to be
avoided.”

Volp. Dep. at 29.

The test also specifies that

running subjects are at “elevated risk.”

Id. at 30.

Volp

testified that he is familiar with these protocols, as well as
with the BPD’s Use of Force Policy.
5

The BPD reviewed Officer

Volp’s use of force and concluded that it was justified.
The Complaint alleges that Officer Volp used excessive force
in violation of the Fourth Amendment.

The constitutional claim

is brought against Officer Volp, the BPD, and the City of
Burlington.

The Complaint also brings state law claims of

battery, intentional infliction of emotional distress, and
negligence against Officer Volp.

For relief, Bombard seeks

compensatory and punitive damages.
Procedural Background
Defendants have moved for summary judgment on all claims.
Defendants followed their summary judgment motion with a motion
to bifurcate trial and stay discovery.

The latter motion argues

that Bombard’s municipal liability claims against the BPD and
City of Burlington should be tried separately from his claims
against Officer Volp.

Defendants have also moved to stay

discovery on the municipal liability claims, reasoning that such
discovery will be unnecessary if the claims against Officer Volp
are dismissed.
Bombard has opposed Officer Volp’s motion for summary
judgment.

As to the BPD and the City, Bombard claims that he has

not yet received sufficient discovery responses, and has
therefore moved for an extension of time in which to respond to
their portion of the summary judgment motion.

Since filing the

above-referenced motions, the parties have stipulated to stay

6

consideration of a portion of the summary judgment motion,
specifically, Defendants’ argument that any constitutional
violation was not the result of an official policy or custom.
The parties also agreed that Bombard would withdraw his motion to
compel the discovery of excessive force complaints brought
against the BPD or the City within the last five years.

The

Court has granted the stipulated motion to stay, and the motion
to compel has been withdrawn.
Also pending before the Court is Defendants’ motion for a
protective order in which they claim that Bombard may not obtain
police records from a particular deponent.
Discussion
I.

Defendants’ Motion for Summary Judgment
A.

Legal Standard

Defendants have moved for summary judgment on all counts.
Summary judgment must be granted when the record shows there is
no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.

Fed. R. Civ. P. 56.

“[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.”

7

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In deciding

the motion, the Court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party and deny
the motion if a rational juror could decide in favor of that
party under the applicable law.

Scott v. Harris, 550 U.S. 372,

378 (2007).
B.

Excessive Force

Bombard claims that Officer Volp’s use of a Taser
constituted excessive force in violation of the Fourth Amendment.
“The Fourth Amendment protects individuals from the government’s
use of excessive force when detaining or arresting individuals.”
Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006).

“Police

officers’ application of force is excessive . . . if it is
objectively unreasonable ‘in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.’”

Maxwell v. City of New York, 380 F.3d 106, 108 (2d

Cir. 2004) (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).
Determining whether a use of force was “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.”
omitted).

Graham, 490 U.S. at 396 (internal quotation marks
The Second Circuit has instructed district courts to

consider “at least three factors” when “conducting that

8

balancing”: “(1) the nature and severity of the crime leading to
the arrest, (2) whether the suspect pose[d] 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 v. Freshwater, 623 F.3d 90, 96 (2d Cir.

2010) (citing Graham, 490 U.S. at 396).
At the summary judgment stage, once the Court has determined
the relevant undisputed facts and drawn all inferences in favor
of the nonmoving party, the Court’s determination of
reasonableness is a pure question of law, and must be made from
the “perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.”

Graham, 490 U.S. at

396 (citing Terry v. Ohio, 392 U.S. 1, 20–22 (1968)).

The

“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.

“Given the fact-specific

nature of the inquiry, granting summary judgment against a
plaintiff on an excessive force claim is not appropriate unless
no reasonable factfinder could conclude that the officer’s
conduct was objectively unreasonable.”

Amnesty Am. v. Town of W.

Hartford, 361 F.3d 113, 123 (2d Cir. 2004).
In this case there are significant disputes of fact, as

9

Bombard’s version of events differs substantially from that of
Officer Volp.

For summary judgment purposes, the Court must

credit Bombard’s assertion that he fled City Hall Park to escape
from Soons’s friends and that he was not running to avoid arrest.
Viewing the facts in Bombard’s favor, the Court must also assume
that he ran continuously prior to being shot by the Taser, that
he did not turn around to aggressively face Officer Volp, and
correspondingly, that the shot to his head was not the result of
his being in a crouched position.
Viewing the facts from the perspective of a reasonable
officer on the scene, the Court also accepts Officer Volp’s
testimony that he saw Bombard strike Soons and then escape
through the alleyway toward Church Street.

It is undisputed that

Officer Volp chased Bombard, and that he shot the Taser from
approximately ten to fifteen feet away.

The record indicates

that Officer Volp was not aware that Bombard was intoxicated.
Bombard disputes whether Officer Volp ever yelled to him to stop,
or warned that he might be tased.
The factual disputes presented by these two versions of
events are material.

First, there is the matter of Bombard’s

flight from City Hall Park.

Officer Volp’s testimony has Bombard

spotting the police, then turning and fleeing as though to avoid
arrest.

Resisting or evading arrest is one of the factors a

court must consider when assessing reasonableness.

10

Graham, 490

U.S. at 396

In Bombard’s version, however, his flight occurred

immediately after he struck Soons, with no acknowledgment of
police presence.

Accepting Bombard’s factual representations at

this stage in the case, a question arises as to whether a
reasonable officer, upon watching Bombard run immediately after
hitting Soons, would have believed that Bombard was running away
in order to escape arrest.
The Court must also consider the severity of Bombard’s
crime.

See id.

No facts are in dispute here: Bombard struck

Soons in the face and knocked him to the ground.

The question

before the Court is whether, in light of such conduct, it was
reasonable to prevent Bombard’s escape by use of a Taser shot to
the head.
This Court has noted that a Taser is a “‘serious intrusion
into the core of the interests protected by the Fourth
Amendment.’”

Towsley v. Frank, 2010 WL 5394837, at *8 (D. Vt.

Dec. 28, 2010) (quoting Mattos v. Agarano, 590 F.3d 1082, 1087
(9th Cir. 2010)); see also Bryan, 630 F.3d at 810 (describing use
of a Taser as an “intermediate, significant level of force that
must be justified by the governmental interest involved”).

The

type of Taser used by Officer Volp emits an electrical impulse
which “instantly overrides the victim’s central nervous system,
paralyzing the muscles throughout the body, rending the target
limp and helpless.

The tasered person also experiences an

11

excruciating pain that radiates throughout the body.”

Bryan, 630

F.3d 805, 824 (9th Cir. 2010) (citations omitted).
Balanced against this bodily intrusion is the fact that
Bombard had just punched someone in the face.

Under Vermont law,

a person who enters into a “fight or scuffle . . . by mutual
consent” is guilty of a misdemeanor punishable by “not more than
60 days” in prison or a $500 fine.

13 V.S.A. § 1023(b).

A

conviction for simple assault is punishable by up to one year in
prison or a fine of not more than $1,000.

Id.

Accordingly, the

offense in this case, although violent, was moderate under local
law.
Defendants compare this case to Patrick v. Moorman, 855 F.
Supp. 2d 392 (E.D. Pa. 2012), in which the plaintiff was chased
by police and tased after robbing a bank.

When assessing the

seriousness of the criminal offense, the Patrick court
characterized bank robbery as “a serious crime.”
at 401.

855 F. Supp. 2d

The court also observed that “a reasonable officer could

legitimately assume that one who robbed a bank — a customarily
secure, usually well-populated institution — would have a greater
willingness to use force than the average purse-snatcher . . . .”
Id. at 402.

That same assumption would be inappropriate here,

where Bombard engaged in fisticuffs against a specific target; a
crime which, if prosecuted, would likely constitute a misdemeanor
with a relatively minimal punishment.

12

The Court next considers whether Bombard posed an “immediate
threat to the safety of the officers or others.”
at 96.

Tracy, 623 F.3d

From the officer’s perspective, Bombard had just

committed an assault and was fleeing the scene.

As noted above,

whether he was fleeing arrest is a disputed question.

A

reasonable factfinder could consider that Bombard did not engage
in any further violence prior to his tasing, and was in fact
fleeing in order to avoid such violence.

Although Officer Volp’s

version of events depicts Bombard as turning toward him in an
aggressive matter, that fact is also disputed as Bombard claims
to have been running continuously.

A reasonable factfinder could

therefore conclude that Bombard did not pose the required threat,
and that tasing him under those circumstances was unreasonable.
These facts stand in contrast to other recent Taser cases
wherein summary judgment was granted against the plaintiff.

For

example, in MacLeod v. Town of Brattleboro, 2012 WL 1928656 (D.
Vt. May 25, 2012), aff’d, 548 F. App’x 6 (2d Cir. 2013), the
suspect sped away from a traffic stop as police approached his
car, traveled in excess of the speed limit on wet roads through
several intersections including one with a red light, and came to
a stop in a parking lot.

Upon exiting his car the suspect

initially went to the ground, then stood up and defied repeated
police commands for him to return to the ground.

One officer

ultimately holstered his firearm, drew his Taser, yelled “Taser,

13

Taser, Taser,” and tased the suspect.

Based upon these facts,

the Second Circuit concluded that “[r]ising from the ground
rather than submitting to arrest exacerbated a ‘tense, uncertain,
and rapidly evolving’ situation that threatened the lives of
officers, bystanders, and MacLeod himself.”

MacLeod, 549 F.

App’x at 8 (quoting Graham, 490 U.S. at 397).
In Towsley v. Frank, 2010 WL 5394837 (D. Vt. Dec. 28, 2010),
this Court granted partial summary judgment to an officer who
fired a Taser twice to subdue an arrestee.

The Court granted

summary judgment based upon the circumstances of the first Taser
shot, finding the shot reasonable because the suspect, a
convicted felon under the influence of narcotics, was
belligerent, threatened to flee by jumping out of a window, and
failed to comply with twenty-six direct orders to submit to
arrest.

Towsley, 2010 WL 5394837 at *7.

The Court concluded

that “[g]iven these facts, including Mr. Towsley’s history of
violence, fleeing police, and resisting arrest, a reasonable
officer could have concluded that Mr. Towsley posed an imminent
risk of harm to the officers . . . .”

Id.

Summary judgment was

denied as to the second tasing, conducted after the suspect had
gone out the window and was lying injured on the concrete
sidewalk one story below.

Id. at *10.

Here, the undisputed facts present no direct confrontation
with police as found in MacLeod and Towsley.

14

Nor is there

undisputed evidence that Bombard was either belligerent or noncompliant with police orders.

Accepting Bombard’s account, he

was never even aware that Officer Volp was chasing him.

His

escape from City Hall Park, unlike the dangerous drive-away in
MacLeod, was not by itself dangerous, and there is no indication
of a known criminal history.

Indeed, viewing the facts in a

light most favorable to Bombard, a reasonable factfinder could
conclude that Bombard did not present a sufficient threat of harm
to the public, the officer, or himself such that the use of a
Taser was justified.
A remaining factor for consideration is whether Officer Volp
reasonably believed that Bombard was actively avoiding or
resisting arrest by flight.

Tracy, 623 F.3d at 96.

As discussed

above, Bombard’s initial exit from City Hall Park could
reasonably be viewed as an effort to avoid harm at the hands of
Soons’s friends.

Officer Volp claims, however, that soon

thereafter he shouted to Bombard to stop and warned him of a
possible tasing.

Bombard denies Officer Volp’s assertion,

claiming that he did not hear the warnings.
Defendants contend that a failure to hear a warning is
insufficient to create an issue of material fact as to whether
that warning was provided.

The Seventh Circuit has determined

that where a “plaintiff did not testify that warnings were not
given but only that he did not hear any warnings, [his] testimony

15

fails to contradict the officer’s positive testimony that he
warned [the plaintiff],” so that “the plaintiff’s testimony that
he did not hear any warnings fails to present a question of
material fact as to whether the giving of the warnings was
feasible and if in fact they were given.”

Ford v. Childers, 855

F.2d 1271, 1276 (7th Cir. 1988) (emphasis in original).

In Ford,

the court upheld a directed verdict in favor of a police officer
who had used deadly force to stop a bank robber.

The court found

the officer’s conduct “objectively reasonable” based upon the
threat of serious harm, and further noted that warnings were
issued before the officer fired his gun.

Id.

In this case, Bombard contends that the night in question
was a “busy and crowded summer evening in Downtown Burlington,
with approximately 150 people nearby and loud music playing.”
ECF No. 28-1 at 2 (Plaintiff’s Statement of Contested Material
Facts).

It is undisputed that he was ten to fifteen feet ahead

of Officer Volp at the time of the shooting, and he claims to
have been running.

Accordingly, even if the Court were to follow

the Seventh Circuit’s reasoning in Ford and accept that warnings
were provided, a question remains as to whether it was reasonable
for Officer Volp to believe that Bombard could hear the warnings.
If, as Bombard’s evidence suggests, such a belief was not
reasonable, a finding of non-compliance would be unwarranted.
The Court also considers that, viewing the facts in

16

Bombard’s favor, Officer Volp shot a non-aggressive, running
suspect in the back of the head.

Taser training materials

discouraged head shots and warned of an elevated risk of harm
when shooting a running suspect.

While Officer Volp contends

that the head shot was a result of Bombard’s crouched position,
Bombard counters that he was merely running away.

Accepting

Bombard’s version of the facts, a reasonable juror could conclude
that a shot to the head was not “objectively reasonable at the
time.”

Amnesty Am., 361 F.3d at 123.

The United States Supreme Court has emphasized that there is
no “easy-to-apply legal test in the Fourth Amendment context . .
. [and that] in the end we must still slosh our way through the
factbound morass of ‘reasonableness.’”

Scott, 550 U.S. at 383.

In this case, the evaluation of Officer Volp’s reasonableness
hinges upon material facts that are currently in dispute.

To

effectively determine the officer’s reasonableness, a factfinder
will thus be required to make credibility determinations, a task
in which this Court may not engage at summary judgment.
Scott v. Coughlin, 344 F.3d 282, 289 (2d Cir. 2003).

See

Viewing the

facts in a light most favorable to Bombard as the nonmoving
party, the Court cannot conclude that Defendants are entitled to
judgment as a matter of law on his Fourth Amendment excessive
force claim, and their motion for summary judgment on that claim
is DENIED.

17

C.

Qualified Immunity

Officer Volp has also moved for summary judgment on the
basis of qualified immunity.

Even if it is determined that

Officer Volp used excessive force, “government officials
performing discretionary functions generally are shielded 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.”
Fitzgerald, 457 U.S. 800, 818 (1982).

Harlow v.

An assertion of qualified

immunity requires a court to determine “(1) whether plaintiff has
shown facts making out [a] violation of a constitutional right;
(2) if so, whether that right was ‘clearly established’; and (3)
even if the right was clearly established, whether it was
‘objectively reasonable’ for the officer to believe the conduct
at issue was lawful.”

Gonzalez v. City of Schenectady, 728 F.3d

149, 154 (2d Cir. 2013) (quoting Taravella v. Town of Wolcott,
599 F.3d 129, 133–34 (2d Cir. 2010)).
In general, whether qualified immunity applies to the
conduct of a law enforcement officer is a question of law for the
court to decide.
2003).

Stephenson v. Doe, 332 F.3d 68, 80–81 (2d Cir.

The determination “must be undertaken in light of the

specific context of the case, not as a broad general
proposition.”

Saucier v. Katz, 533 U.S. 194, 201 (2001).

As the

Supreme Court explained in Saucier, “[t]he contours of the right

18

must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”

Id. at

201–02 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Courts in this circuit must determine clearly established
law based upon “Supreme Court and Second Circuit precedent
existing at the time of the alleged violation.”

Moore v. Vega,

371 F.3d 110, 114 (2d Cir. 2004) (citing Townes v. City of New
York, 176 F.3d 138, 144 (2d Cir. 1999)).

Nonetheless, police

officers can “be on notice that their conduct violates
established law even in novel factual circumstances.”
Pelzer, 536 U.S. 730, 741 (2002).

Hope v.

The Supreme Court recently

explained that “[w]e do not require a case directly on point, but
existing precedent must have placed the statutory or
constitutional question beyond debate.”
S. Ct. 2074, 2083 (2011).

Ashcroft v. Al–Kidd, 131

If the Supreme Court and the Second

Circuit have not determined the precise contours of a right under
a given set of facts, that right may be clearly established if
the law is established in other circuits and the Second Circuit’s
own decisions “foreshadowed the right.”
F.3d 391, 405 (2d Cir. 2013).

Bailey v. Pataki, 708

Qualified immunity is an

affirmative defense, and the burden is on the officer to
establish it at summary judgment.

Id. at 404.

The parties have not cited any cases with precisely the same
facts as those set forth here.

In a recent unpublished Sixth
19

Circuit opinion, the court noted that qualified immunity cases
involving Tasers generally fall into one of two categories:
The first involves plaintiffs tased while actively
resisting arrest by physically struggling with,
threatening, or disobeying officers. In the face of
such resistance, courts conclude either that no
constitutional violation occurred, or that the right
not to be tased while resisting arrest was not clearly
established at the time of the incident. . . .
In the second group of cases, a law-enforcement
official tases plaintiff who has done nothing to resist
arrest or is already detained. Courts faced with this
scenario hold that a § 1983 excessive-force claim is
available, since the right to be free from physical
force when one is not resisting the police is a clearly
established right.
Cockrell v. City of Cincinnati, 468 F. App’x 491, 495–96 (6th
Cir. 2012) (internal quotation marks and citations omitted).

The

Second Circuit has observed this dichotomy in excessive force
cases generally, and in at least one Taser case specifically.
Compare Tracy, 623 F.3d at 99 (noting clearly established law
that pepper spray should not be used “lightly . . . against an
arrestee who is complying with police commands or otherwise poses
no threat to the arresting officer”), with Crowell v.
Kirkpatrick, 400 F. App’x 592, 595 (2d Cir. 2010) (summary order)
(concluding that use of Taser was reasonable where plaintiffs
“were actively resisting their arrest” and that officers were
entitled to qualified immunity).
In this case, questions of fact remain as to whether Bombard
was fleeing arrest, whether he should have heard Officer Volp’s

20

warnings, or whether he ever acknowledged Officer Volp’s
presence.

As discussed previously, a reasonable factfinder could

also conclude that Bombard did not present a danger to himself or
others.

It is undisputed that Bombard was shot in the head.

If

it was not reasonable for Officer Volp to believe that Bombard
(1) presented a danger and (2) was resisting arrest, it is
clearly established that he should not have utilized a Taser shot
to the head to bring a running suspect into custody.

See Tracy,

623 F.3d at 98; Grawey v. Drury, 567 F.3d 302, 314 (6th Cir.
2009) (“a reasonable police officer would know that using pepper
spray on a suspect who has submitted, is not resisting, and is no
danger to anyone constitutes excessive force”); Hadley v.
Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (where plaintiff
did not resist arrest and posed no danger, officer “was not
entitled to use any force at that time”).

It was also

objectively unreasonable for Officer Volp to believe that his
conduct was lawful.
“Summary judgment on qualified immunity grounds is not
appropriate when there are facts in dispute that are material to
a determination of reasonableness.”
137, 143 (2d Cir. 1999).

Thomas v. Roach, 165 F.3d

Here, the same factual disputes with

regard to reasonableness on the constitutional claim bar summary
judgment on the basis of qualified immunity.

See Cowan ex rel.

Estate of Cooper v. Breen, 352 F.3d 756, 764 (2d Cir. 2003)

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(“Because in this case genuine, material, factual disputes
overlap both the excessive force and qualified immunity issues,
summary judgment must be denied.”); Breen v. Garrison, 169 F.3d
152, 153 (2d Cir. 1999) (holding that issues of fact on
reasonableness of force used preclude summary judgment on defense
of qualified immunity).

The Court therefore declines to grant

summary judgment on the basis of qualified immunity, and Officer
Volp’s motion for summary judgment is DENIED.
D.

State Law Claims

Officer Volp has also moved for summary judgment on
Bombard’s state law claims of battery, intentional infliction of
emotional distress, and negligence.

Under Vermont law, battery

is “an intentional act that results in harmful contact with
another.”

Christman v. Davis, 2005 VT 119, ¶ 6, 179 Vt. 99, 101,

889 A.2d 746, 749.

A “police officer is not liable for . . .

battery based upon the officer’s lawful arrest of a person, where
there was no use of excessive force, unreasonable contact, or the
threat of unreasonable contact by the officer.”

Crowell, 667 F.

Supp. 2d at 417 (quoting 6 Am. Jur. 2d Assault and Battery § 98
(2009).

Here, as in Crowell, the plaintiff’s battery claims

“essentially duplicate [his] excessive force claims.”

Id.

Because the questions of excessive force and reasonableness are
matters for the jury in this case, the Court cannot grant summary
judgment on the state law battery claim.

22

Intentional infliction of emotional distress “requires a
plaintiff to establish ‘outrageous conduct, done intentionally or
with reckless disregard of the probability of causing emotional
distress, resulting in the suffering of extreme emotional
distress, actually or proximately caused by the outrageous
conduct.”

Cook v. Arrowsmith Shelburne, 69 F.3d 1235, 1242 (2d

Cir. 1995) (quoting McHugh v. Univ. of Vermont, 758 F. Supp. 945,
949 (D. Vt. 1991)).

A claim of intentional infliction of

emotional distress must establish conduct that goes “beyond all
possible bounds of decent and tolerable conduct in a civilized
community.”

Fromson v. State, 2004 VT 29, ¶ 14, 176 Vt. 395,

399, 848 A.2d 344, 347 (citation omitted).
Once again, disputed issues of material fact bar a ruling on
this claim.

Viewing the facts in Bombard’s favor, Officer Volp

shot him in the head while the two were running through the
streets of Burlington.

A reasonable juror could find that

Officer Volp should have known his warnings were not being heard,
and that Bombard had no idea he was being chased by police.

If

that same juror concluded that Bombard was shot while running and
without warning, resulting in serious injuries, and that Bombard
presented no danger to himself or others, the juror could also
find that using an electrical charge to suddenly stop Bombard’s
forward progress was “outrageous.”
Finally, Bombard asserts a claim of negligence.

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“The

elements of common law negligence are: (1) defendants owed a
legal duty to protect plaintiff from an unreasonable risk of
harm; (2) defendants breached that duty; (3) defendants’ conduct
was the proximate cause of plaintiff[’s] injuries; and (4)
plaintiff[ ] suffered actual damage.”
1237, 1242 (Vt. 1999).

Knight v. Rower, 742 A.2d

In MacLeod, this Court concluded that a

Use of Force Policy may create a duty of care governing the use
of Taser.

2012 WL 5949787, at *10 (citing Kennery v. State, 2011

VT 121, ¶ 28, 191 Vt. 44, 58, 38 A.3d 35, 44; Sabia v. State, 669
A.2d 1187, 1192 (Vt. 1995)).
Here, the relevant Use of Force Policy states that an
officer may use force when he or she “reasonably believes” it
necessary to effect custody or to defend himself or a third
person from the imminent use of non-deadly force.

As discussed

above, the reasonableness inquiry in this case hinges upon
material facts that are currently in dispute, and are thus not
appropriate for a ruling at the summary judgment stage.
Furthermore, the BPD’s Taser policy requires that the suspect be
“actively aggressive and presenting a risk of injury to the
Officer(s), him/herself or others.”

Viewing the facts in a light

most favorable to Bombard, no such aggression or risk of injury
was present in this case.

Summary judgment on the negligence

claim is therefore unwarranted.
Defendants also urge the Court to apply qualified immunity

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to the state law claims.

Under Vermont law, “lower-level

government employees are immune from tort liability when they
perform discretionary acts in good faith during the course of
their employment and within the scope of their authority.”
Hudson v. Town of E. Montpelier, 638 A.2d 561, 564 (Vt. 1993).
In Crowell, this Court noted that “to determine whether a state
employee is acting in ‘good faith,’ Vermont law relies on the”
federal standard for qualified immunity “and asks whether the
Defendants’ conduct violated clearly established rights . . . of
which a reasonable person would have known.”

667 F. Supp. 2d at

417 (quoting Stevens v. Stearns, 2003 VT 74, ¶ 15, 175 Vt. 428,
434, 833 A.2d 835, 841 (citation omitted)).

Just as Officer Volp

is not entitled to qualified immunity on the constitutional
claim, questions of fact prevent application of qualified
immunity on the state law claims.

The motion for summary

judgment on Bombard’s state law claims is therefore DENIED.
E.

Claims Against the BPD

The BPD moves for summary judgment on the ground that it
cannot be sued as an independent entity.

Under Fed. R. Civ. P.

17(b)(3), the Court looks to Vermont law to determine whether a
governmental entity has the capacity to be sued.

The Court is

not aware of any statute or ordinance in Vermont that permits a
suit against a municipal police department, and has consistently
held that such departments do not have the capacity to be sued.

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See, e.g., Gorton v. Burlington Police Dep’t, 23 F. Supp. 2d 454,
456 (D. Vt. 1998); Hee v. Everlof, 812 F. Supp. 1350, 1351 (D.
Vt. 1993).

The BPD’s motion for summary judgment is therefore

GRANTED.
II.

Motion to Bifurcate and Stay Discovery on Monell Claims
Defendants also move to bifurcate the trial such that

Officer Volp would be tried first and the City of Burlington
second.

Federal Rule of Civil Procedure 42(b) permits the Court

to “order a separate trial of one or more separate issues” in the
interest of “convenience, to avoid prejudice, or to expedite and
economize.”

The trial judge has great discretion to determine

whether bifurcation is appropriate.

Simpson v. Pittsburgh

Corning Corp., 901 F.2d 277, 283 (2d Cir. 1990).

Bifurcation may

be appropriate where “the litigation of the first issue might
eliminate the need to litigate the second issue, or where one
party will be prejudiced by evidence presented against another
party.”

Amato v. City of Saratoga Springs, 170 F.3d 311, 316 (2d

Cir. 2000).
Officer Volp claims that a trial with the City would include
evidence of incidents involving other BPD officers, and that such
evidence would prejudice his own case.

Defendants also contend

that a verdict in favor of Officer Volp would resolve the claims
against the City, thus making a trial against those defendants
unnecessary.

Bombard counters that he should not be required to

26

introduce overlapping evidence in two separate trials.

In

addition, Bombard submits that prejudice is not an issue because
the Court can mitigate any risk of prejudice through jury
instructions.
In Amato, a plaintiff sued two police officers for excessive
force and also sued the municipality and several municipal
officials.

170 F.3d at 312.

The district court granted a motion

to bifurcate in the interest of efficiency and to avoid
prejudice, reasoning first that a trial against city officials
would prove unnecessary if the plaintiff did not prevail against
the individual officers, and second that the individual officers
would be prejudiced by evidence that the plaintiff planned to
introduce against the city.

Id. at 316.

That evidence included

personnel records and all claims of excessive force against the
police department.

Id.

This case is similar, since if Bombard’s

claims against Officer Volp fail, his case against the City of
Burlington will also fail.

See, e.g., City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986) (“If a person has suffered no
constitutional injury at the hands of the individual police
officer, the fact that the departmental regulations might have
authorized the use of constitutionally excessive force is quite
beside the point.”) (emphasis in the original); accord Lee v.
City of Syracuse, 446 F. App’x 319 (2d Cir. 2011).
Courts in the Second Circuit generally “favor bifurcating

27

Monell claims.”

Mineo v. City of New York, 2013 WL 1334322, at

*1 (E.D.N.Y. Mar. 29, 2013) (citations omitted)).

In this case,

if the jury decides that Officer Volp did use excessive force,
Bombard will indeed be required to litigate a second time, and
will likely repeat evidence.

However, given that the claims

against the City may be moot after the jury resolves the first
constitutional question, and that evidence of five years of
excessive force claims against Burlington police officers would
likely prejudice Officer Volp’s efforts to defend his specific
actions, the motion to bifurcate is GRANTED.
As to the motion to stay discovery, the procedural history
of the case suggests that Bombard is still pursuing documentation
pertaining to municipal liability.

Although the Court has

decided to bifurcate the trial in this case, it sees no need at
this time to delay discovery with regard to the City.

The motion

to stay discovery is therefore DENIED.
III. Motion for Protective Order
The final matter pending before the Court is Defendants’
motion for a protective order.

This motion arises out of a

subpoena duces tecum issued for Officer Jason Bellavance in which
Bombard requests reports and claims of excessive force, assault
and battery, and/or civil rights violations brought against BPD
officers within the last five years.

Defendants argue that

Officer Bellavance is not the custodian of such records, and that

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production under Fed. R. Civ. P. 45 is therefore unauthorized.
Defendants also note that although Bombard cites Fed. R. Civ. P.
30(b)(6), Rule 30(b)(6) requires the requesting party to name the
government agency itself, and allows the agency to then “identify
the person who is best suited to answer questions about the
matter.”

8A Charles Alan Wright, Arthur R. Miller & Richard L.

Marcus, Federal Practice and Procedure § 2103 (3d ed. 2010).
Bombard counters that Defendants failed to timely object to the
notice of deposition, and that they are not entitled to a
protective order under Fed. R. Civ. P. 26(c).
Rule 26(c) protects against “annoyance, embarrassment,
oppression, or undue burden or expense,” and requires a showing
of good cause for a protective order to be issued.
P. 26(c).

Fed. R. Civ.

A district court has discretion to decide when a

protective order is appropriate and what degree of protection is
required.
(1984).

See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36

“In deciding whether good cause exists, the district

court must balance the interests involved: the harm to the party
seeking the protective order and the importance of disclosure” to
the non-moving party.

Wiggins v. Burge, 173 F.R.D. 226, 229

(N.D. Ill. 1997) (citations omitted).
Here, the only objection is to the production of records
that are not in Officer Bellavance’s control.

As Bombard appears

to have other avenues for obtaining such records, such as a Rule

29

30(b)(6) notice or subpoena, imposition of a protective order
will merely redirect, rather than inhibit, his discovery efforts.
Moreover, Officer Bellavance’s legal objections to the subpoena
duces tecum are valid.

Accordingly, the Court finds that

Defendants have shown good cause and the motion for a protective
order is GRANTED.

Officer Bellavance will not be compelled to

produce documents that are not within his possession, custody, or
control.
Conclusion
For the reasons set forth above, Defendants’ motion for
summary judgment (ECF No. 25) is GRANTED with respect to the
Burlington Police Department and is otherwise DENIED.
Defendants’ motion to bifurcate (ECF No. 27) is GRANTED, and
their motion to stay discovery (ECF No. 27) is DENIED.
Defendants’ pending motion for a protective order (ECF No. 38)
and Bombard’s motion for an extension of time (ECF No. 35) are
GRANTED.
Defendants’ motion for summary judgment with respect to the
City of Burlington, previously stayed, is now DENIED without
prejudice to re-filing once discovery with respect to the City
has been completed.

The parties shall confer and file a

stipulated revised discovery schedule for this now-bifurcated
case on or before October 6, 2014.

30

Dated at Burlington, in the District of Vermont, this 8th
day of September, 2014.
/s/ William K. Sessions III
William K. Sessions III
United States District Judge

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