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Outlaw v. City of Hartford

United States Court of Appeals, Second Circuit

March 7, 2018

TYLON C. OUTLAW, Plaintiff-Appellant-Cross-Appellee,
v.
CITY OF HARTFORD, Defendant-Appellee, OFFICER MICHAEL ALLEN, in his individual capacity, Defendant-Cross-Appellant, DETECTIVE TROY GORDON, in his individual capacity, Defendant.

          Argued: January 17, 2017

         Appeal by plaintiff from so much of a judgment of the United States District Court for the District of Connecticut, Geoffrey W. Crawford, Judge, as granted summary judgment dismissing his claims against defendant City of Hartford (the "City"), brought principally under 42 U.S.C. § 1983, for failing to supervise its police officers with respect to appropriate use of force; cross-appeal by defendant police officer Michael Allen from so much of the judgment as orders him to pay plaintiff $454, 197 in damages following (a) express jury findings that Allen injured plaintiff by intentionally or recklessly using excessive force, in violation of the United States Constitution and the Constitution of the State of Connecticut, and (b) the court's ruling that Allen is not entitled to qualified immunity. Plaintiff contends principally that the district court erred in granting summary judgment in favor of the City, given evidence he proffered to show deliberate indifference by the City to numerous civilian complaints of excessive force by its police officers. Defendant Allen contends principally that he is entitled to qualified immunity on the constitutional claims because of the jury's verdict in his favor on plaintiff's claim against him for assault and battery in violation of state law, and that factual findings by the district court--which the parties had agreed should resolve all aspects of his qualified immunity defense--should be set aside as inconsistent with factual findings he imputes to the jury.

         On the appeal, we conclude that the district court did not err in granting summary judgment in favor of the City on plaintiff's municipal liability claims on the ground that the evidence proffered by plaintiff was insufficient to permit an inference of deliberate indifference. We conclude that the cross-appeal is without merit given that as to an affirmative defense of qualified immunity, the burden is on the defendant to prove the necessary factual predicates by a preponderance of the evidence; that in order to avoid having the court instruct the jury that he had that burden, Allen chose not to have submitted to the jury the fact questions as to which he now wants favorable answers presumed; and that the pertinent factual findings made by the district court are not inconsistent with the jury's answers to the questions that were posed.

         Affirmed.

          RAYMOND J. RIGAT, Clinton, Connecticut, for Plaintiff-Appellant-Cross-Appellee.

          NATHALIE FEOLA-GUERRIERI, Senior Assistant Corporation Counsel, Hartford, Connecticut, for Defendant-Appellee.

          WILLIAM J. MELLEY III, Hartford, Connecticut, for Defendant-Cross-Appellant.

          Before: KATZMANN, Chief Judge, KEARSE and LIVINGSTON, Circuit Judges.

          KEARSE, Circuit Judge

         Plaintiff Tylon C. Outlaw appeals from so much of a judgment of the United States District Court for the District of Connecticut, Geoffrey W. Crawford, Judge[**], as summarily dismissed his claims against defendant City of Hartford (the "City"), brought principally under 42 U.S.C. § 1983, alleging deliberate indifference in the supervision of police officers with respect to appropriate use of force, and seeking to hold the City responsible for the use by defendant Michael Allen, an officer in the Hartford Police Department ("HPD"), of excessive force to arrest Outlaw, in violation of his rights under the Fourth Amendment to the United States Constitution and under the Constitution of the State of Connecticut. The district court granted summary judgment to the City, dismissing those claims on the ground that Outlaw proffered insufficient evidence to permit an inference that the City had a policy or custom of failing to supervise its police officers in the use of force or that the City's customs or policies caused Outlaw's injuries. See Outlaw v. City of Hartford, No. 3:07-cv-01769, 2015 WL 1538230, at *6-*12 (D. Conn. Apr. 6, 2015) ("Outlaw I"). Outlaw contends that summary judgment was inappropriate, given the evidence he proffered to show that the City had exhibited deliberate indifference to numerous civilian complaints of excessive force by its police officers.

         Allen cross-appeals from so much of the district court's judgment as orders him to pay Outlaw $454, 197 in damages following express jury findings that Allen injured Outlaw by intentionally or recklessly using excessive force, in violation of the United States and Connecticut Constitutions. Allen contends that he is entitled to qualified immunity on those claims in light of the jury's verdict against Outlaw on Outlaw's claim for assault and battery in violation of state law, and that posttrial factual findings by the district court, made in ruling that Allen is not entitled to qualified immunity for the constitutional violations, see Outlaw v. City of Hartford, No. 3:07-cv-01769, 2016 WL 591753 (D. Conn. Feb. 12, 2016) ("Outlaw II"), should be set aside as inconsistent with findings that Allen imputes to the jury.

         On the appeal, we conclude that the district court did not err in ruling that the evidence proffered by Outlaw in support of his municipal liability claims was insufficient to permit an inference of deliberate indifference on the part of the City to the use of excessive force by HPD officers. On the cross-appeal, we conclude that Allen's contentions are without merit given that, as qualified immunity is an affirmative defense, the burden was on Allen to prove by a preponderance of the evidence any factual predicates necessary to establish that defense; that in order to avoid having the court instruct the jury that he had that burden, Allen chose not to have submitted to the jury the fact questions as to which he now wants favorable answers presumed; that the jury's answers to the interrogatories accompanying its verdict did not imply the factual findings that Allen imputes to the jury; and that the pertinent factual findings by the district court are not inconsistent with the jury's answers to questions that were posed.

         I. BACKGROUND

         On the night of December 17, 2004, Allen and HPD Detective Troy Gordon confronted and arrested 30-year-old Tylon Outlaw on a downtown street in Hartford, Connecticut. Outlaw was charged with breach of peace, being intoxicated in the roadway, threatening a police officer, and assault on a police officer. The charges were resolved in 2005 by Outlaw's entry of an Alford plea to the offense of creating a public disturbance, see North Carolina v. Alford, 400 U.S. 25 (1970), which is "'simply a guilty plea, with evidence in the record of guilt, typically accompanied by the defendant's protestation of innocence and his or her unequivocal desire to enter the plea, '" Outlaw I, 2015 WL 1538230, at *2 n.1 (quoting Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (other internal quotation marks omitted)). The arrest occurred after Allen had repeatedly struck Outlaw with a police baton, bloodying his head in several places and breaking his knee.

         Outlaw brought the present § 1983 action in 2007 against Allen, Gordon, and the City, alleging principally that Allen and Gordon had caused his injuries by using excessive force in violation of the Fourth Amendment, and that the City was liable for their conduct because it had a policy or custom of deliberate indifference in failing to train and supervise its police officers as to appropriate use of force during an arrest. Outlaw also asserted claims under the Connecticut Constitution and Connecticut common law.

         A. Pretrial Rulings

         Following years of discovery, defendants moved for summary judgment dismissing the complaint. In Outlaw I, the district court granted the motion to dismiss the Fourth Amendment claim and similar state-law claims against the City, ruling, to the extent pertinent to Outlaw's appeal, that the evidence Outlaw proffered was insufficient to establish that the City had a policy or custom of indifference that caused Outlaw's injuries (see Part III below).

         The district court denied the individual defendants' motions for summary judgment dismissing the Fourth Amendment and Connecticut constitutional claims of excessive force and the state-law claims of intentional infliction of emotional distress, ruling that there were genuine issues of material fact to be tried. See Outlaw I, 2015 WL 1538230, at *3-*6, *12-*14. The court granted the motions to dismiss Outlaw's other constitutional and state-law claims; however, following a motion by Outlaw for reconsideration, it reinstated the state-law claims against Gordon and Allen for assault and battery.

         B. The Trial

         In 2016, Outlaw's surviving constitutional and common-law tort claims against Allen and Gordon were tried to a jury, which heard two versions of the December 2004 incident: one from Outlaw and several bystanders, the other from Allen and Gordon.

         1. Outlaw's Testimony

         Outlaw testified that on the night of December 17, 2004, he drove to downtown Hartford to meet his friend Nick Sackandy at a restaurant on Union Place (the "Restaurant") to discuss a proposed business venture. Outlaw arrived around 10 p.m., drank most of one beer, and left around 11:00 or 11:15. As he was returning to his car, walking south on Union Place toward its intersection with Allyn Street, Outlaw heard his name being called from a double-parked taxi; the driver was his high school friend Anthony Carroll. While Outlaw was crossing the street toward the taxi, a Ford Taurus was inching north on Union Place toward the taxi, and the Taurus's driver--who Outlaw later learned was Detective Gordon--shouted at Outlaw, "hey, mother fucker" (Trial Transcript January 4, 2016 ("Jan. 4 Tr."), at 27). Thinking the driver might be an acquaintance, Outlaw returned the greetings (characterized at trial as "inner city" "pleasantries" (Trial Transcript January 5, 2016 ("Jan. 5 Tr."), at 50; Jan. 4 Tr. 54)), then walked around to the driver side of the taxi. As Outlaw was speaking with the rear-seat passengers, who were also friends of his, the Taurus, which bore no markings to indicate that it was a police vehicle, pulled up behind the taxi; Gordon, who had not identified himself as a police officer, summoned Outlaw to the Taurus. Outlaw waved him off. The Taurus then slowly moved past the taxi and stopped two or three car lengths ahead.

         Gordon, dressed in plain clothes, jumped out of his car and approached Outlaw "aggressively" (Jan. 5. Tr. 59), carrying a black object that Outlaw thought was a gun. Gordon kicked Outlaw in the stomach, which did not hurt him but sent him stumbling backward. (See id. at 63; Jan. 4 Tr. 36-37.) Gordon kicked again toward Outlaw, but Outlaw blocked that kick with his hands; however, at almost the same instant Outlaw was struck on the back of his head with "a bat-like object" (Jan. 4 Tr. 37), which he eventually learned was a police baton wielded by Allen.

         Outlaw fell to the ground, yelling for help. While on the ground on his back or curled into a fetal position, he was repeatedly struck in the head, arms, and legs with a baton and was kicked in the back and stomach. Outlaw had not said anything to Gordon after their initial exchange of "pleasantries" (Jan 5. Tr. 56-57); he had never moved in Gordon's direction, never raised his hand, and never attempted to punch or kick Gordon; Outlaw's only attempt to defend himself was to curl up and try to cover targeted areas of his body. He testified that while he was down, Gordon kicked him in the face; and when Outlaw tried to cover his face and head, Allen hit him in the right knee with the baton, breaking the kneecap, leaving Outlaw unable to move his leg, and causing him the most pain that he (a former high school, college, and professional football player) had ever experienced.

         Outlaw testified that Gordon never displayed a badge; and during the incident, neither Gordon nor Allen ever identified himself as a police officer. Outlaw had the impression that there were people other than Allen and Gordon hitting and kicking him while he was on the ground (in his deposition, Outlaw had said that Gordon, after initially kicking him in the stomach, had not kicked or punched him again (see Jan. 5 Tr. 69)). Outlaw testified that none of the people hitting or kicking him identified themselves as police officers.

         Eventually Allen placed Outlaw face down on the pavement and cuffed his hands behind his back. He then grabbed Outlaw by the collar, dragged him for 60-odd feet, and threw him to the pavement between parked cars, where Outlaw landed on his face. While they awaited the arrival of an ambulance, blood was dripping from Outlaw's head and face.

         At the hospital, Outlaw received stitches to his eyebrow and staples in three other places on his head. Surgery was performed on his broken kneecap; a metal strip was installed in the knee to cover the kneecap, held in place with metal screws. After the knee surgery, the police shackled Outlaw's legs to his bed. Outlaw endured a lengthy convalescence. He needed crutches or a cane for six months and had two additional operations on his knee.

         2. Testimony by Onlookers

         Rachel Killian-Lallier ("Killian") was a passenger in Carroll's taxi on the night in question. She testified that she and her then-boyfriend, in the back seats, and Carroll and his uncle, in the front seats, were chatting with Outlaw, who was standing on the driver side of the taxi, when a car came along and parked about a car length away. A man--undisputedly Gordon--got out of the car; he was not wearing any kind of police uniform, and Killian never saw a badge on him or heard him indicate to anyone that he was a police officer. Gordon appeared to be "very angry" and "walk[ed] very aggressively towards" Outlaw, as if he were on a mission (Jan 5. Tr. 103, 113); he kicked Outlaw, apparently in the abdomen. Soon a number of other people, including police officers, arrived and piled onto Outlaw, who was on the ground, and began punching him.

         Killian testified that Outlaw had never moved toward Gordon, and that she never heard Gordon or the others who piled onto Outlaw identify themselves as police officers.

         Carroll, the taxi's driver, similarly described Gordon as "angry" and "raged." (Jan 5. Tr. 142.) He testified that he saw Gordon rush from his vehicle and kick Outlaw and that he saw several other people, some in police uniforms, rush in to punch Outlaw and pile on him on the ground. Carroll never heard Gordon identify himself as a police officer; it was only when Carroll left his taxi to check on Outlaw at the bottom of the pile of people hitting him that Carroll saw Gordon remove a badge from under his shirt.

         Sackandy testified that in the meeting at the Restaurant, Outlaw had drunk one beer and no other alcohol. Outlaw had left after about an hour. Sackandy testified that not long after Outlaw left, John Stengel, a friend of Sackandy, arrived, excitedly saying that Hartford policemen were "beating the shit out of some guy outside." (Jan. 5 Tr. 126, 129.)

         Stengel, who on December 17, 2004, had never met Outlaw and had not socialized with him since, testified that he had been walking north on Union Place that night toward the Restaurant when he saw a "pretty brutal" interaction involving five or six people, some in police uniform, "beating somebody up pretty badly, kicking, throwing punches." (Id. at 170, 172.) Stengel saw no resistance by the person who was on the ground being beaten.

         3. The Testimony of Gordon

         Gordon testified that on the night of December 17, 2004, before his encounter with Outlaw, he had responded to a reported assault on Allyn Street. At Allyn Street, he did not see a fight, and it was decided that there was nothing for the police to do. Gordon then drove to the end of Allyn and turned right onto Union Place, a one-way street. Gordon saw cars parked along both sides of Union Place and saw a double-parked vehicle on the left, with a man--Outlaw, whom Gordon did not know--standing at the front passenger-side window.

         Gordon testified that he asked Outlaw to please move out of the roadway. Gordon was driving a Ford Taurus with no visible police indicia, was dressed in plain clothes, and did not identify himself as a police officer. Gordon testified that Outlaw responded, "why don't you shut the F[uck] up." (Trial Transcript January 6, 2016 ("Jan. 6 Tr."), at 87). Gordon repeated his request, to which Outlaw responded, "why don't you get out of the car and see what happens." (Id. at 89.) Gordon began driving away; but when he heard Outlaw say, "if you get out of that car I'm going to kick your A[ss]" (id.), he interpreted that as a threat and decided to arrest Outlaw. He parked his car some two car lengths ahead of the double-parked car--where Outlaw, Gordon testified, was still on the passenger side--and moved his badge from under his shirt to the surface of his clothing to make it visible.

         With his radio in hand, Gordon exited his car and approached Outlaw. He testified that Outlaw moved toward him and threw a punch, striking him in the upper chest; Gordon leaned back and defensively kicked Outlaw in the shin. After that kick, he never touched Outlaw again. Gordon testified that he never announced that he was a police officer "because [he] did not have time." (Jan. 6 Tr. 137.) Other officers appeared suddenly and subdued Outlaw, taking him to the ground. Gordon never heard anyone identify himself as a police officer.

         4. The Testimony of Allen

         Allen testified that on the night of December 17, 2004, he was on patrol in uniform and driving a police cruiser; he was dispatched to Allyn Street to deal with a report of a serious assault. Gordon also arrived at the scene in response to the report. When the officers did not find there either a suspect or a victim, they left Allyn Street. Gordon, in his unmarked car, turned right onto Union Place; Allen, in his cruiser, followed.

         Allen testified that on Union Place, he saw an individual--eventually identified as Outlaw--standing at the passenger side of a taxi and that Outlaw was "block[ing] the flow of the northbound traffic that could have gone around the taxicab" (Jan. 6 Tr. 160). Allen stopped his cruiser after Gordon had stopped his unmarked car and exited, blocking traffic.

         Allen had not seen or heard any conversation between Gordon and Outlaw. He testified that he saw Gordon approach Outlaw and then saw Outlaw "lunge" toward Gordon and throw "several punches to [Gordon's] face and chest area." (Id. at 163.) Allen testified that he exited his cruiser, "hollered, " and "identified" himself as a police officer. (Id. at 165.) He testified that Outlaw had grabbed Gordon's clothing, and as Outlaw cocked his right arm to deliver another blow, Allen struck Outlaw's right biceps with his baton. Outlaw did not react, but cocked his arm to hit Gordon again. Allen, attempting to protect Gordon from serious injury, swung at Outlaw's arm a second time.

         Allen described Outlaw as dropping to the ground "on his butt and elbows" and assaulting Allen with his legs, "violently struggling with [Allen] resisting arrest." (Id. at 166-67.) Other officers came to Allen's assistance in making the arrest. Allen testified that he had used only necessary force, that there were no unnecessary blows. Allen swung his baton at Outlaw's thigh and calf; he testified that he did not hit Outlaw's knee.

         Allen testified that when he "was escorting Mr. Outlaw to the cruiser, " he "noticed there was some blood on [Outlaw's] scalp." (Jan. 6 Tr. 166.) He said he "assumed" that he had hit Outlaw's head with his nightstick. (Id.) He acknowledged that he had testified in deposition that his second swing had struck Outlaw in the head.

         5. The Verdicts

         After being instructed as to the law governing Outlaw's claims of excessive force in violation of the United States Constitution and the Connecticut Constitution (see Part II.B. below) and his state-law claims of assault and battery (see Part II.C. below) and intentional infliction of emotional distress (or "IIED"), the jury was given a Verdict Form containing interrogatories asking whether Outlaw had proven those claims and had proven that either defendant's conduct caused him injury. Each set of questions dealt separately with Allen or Gordon.

         The jury found that Outlaw had not proven any of his claims against Gordon. It answered "No" to the questions whether Gordon had used excessive force, or had applied force or violence in an unlawful manner, or had acted in a manner intended to subject Outlaw to emotional distress. (See Verdict Form questions 1, 7, 13, 17.)

         As to Allen, the jury found that Outlaw had proven that Allen used excessive force, had done so intentionally or recklessly, and had thereby caused Outlaw injury. The questions and answers were:

         II. FEDERAL CIVIL RIGHTS CLAIM AGAINST DEFENDANT ALLEN

4. Did defendant Michael Allen employ excessive force against plaintiff on December 17, 2004? YES.
5. Did defendant Michael Allen act intentionally or recklessly in employing excessive force against plaintiff on December 17, 2004? YES.
6. Did the use of excessive force by defendant Michael Allen cause plaintiff to suffer injury? YES.

(Verdict Form questions 4-6.)

         IV. CONNECTICUT CONSTITUTIONAL CLAIMS AGAINST DEFENDANT ALLEN

10. Did defendant Michael Allen violate the plaintiff's civil rights under the Connecticut Constitution by employing excessive force against plaintiff [o]n December 17, 2004? YES.
11. Did defendant Michael Allen act intentionally or recklessly in employing excessive force against plaintiff on December 17, 2004? YES.
12. Did the use of excessive force by defendant Michael
Allen cause plaintiff to suffer injury? YES.

(Verdict Form questions 10-12.) The jury found, however, that Outlaw had not proven his state-law claims against Allen for assault and battery or IIED:

         VI. ASSAULT and BATTERY CLAIM AGAINST DEFENDANT ALLEN

15. Do you find that defendant Michael Allen applied force or violence to plaintiff's body in an unlawful manner? NO.
. . . .

         VIII. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CLAIM AGAINST DEFENDANT ALLEN

20. Did defendant Michael Allen act towards plaintiff in a manner intended to inflict emotional distress or which he should have known would ...

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