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Brunette v. City of Burlington, Vermont

United States District Court, D. Vermont

August 30, 2018

BARBARA BRUNETTE and ESTATE OF WAYNE BRUNETTE, Plaintiffs,
v.
CITY OF BURLINGTON, VERMONT, CHIEF MICHAEL SCHIRLING, CORPORAL ETHAN THIBAULT, and CORPORAL BRENT NAVARI in their individual capacities, Defendants.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 95)

          Christina Reiss, United States District Court District Judge

         This case arises out of an incident on November 6, 2013, during which two Burlington Police Department ("BPD") officers, Corporal Ethan Thibault and Corporal Brent Navari, responded to the residence of Wayne Brunette and his family based on a report that Wayne Brunette was experiencing a mental health episode. After Wayne Brunette approached Corporal Navari with a shovel, Corporal Thibault shot him four times, causing his death. Wayne Brunette's wife and surviving heir, Barbara Brunette, brings this lawsuit individually and on behalf of the Estate of Wayne Brunette (collectively, "Plaintiffs") asserting claims under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131-34, state law claims of assault, battery, negligence, intentional infliction of emotional distress, and damages under Vermont's wrongful death and survival statutes, 14 V.S.A. §§ 1451-55, 1491-92, respectively.

         Pending before the court is a motion for summary judgment filed by Defendants City of Burlington, Vermont (the "City"), former BPD Chief Michael Schirling, Corporal Thibault, and Corporal Navari (collectively, "Defendants"). On March 6, 2018, the court heard oral argument. In the course of the hearing, the court granted Defendants leave to file a response to Plaintiffs' statement of undisputed material facts and denied Defendants' motion to strike as moot. On March 22, 2018, Defendants filed their response to Plaintiffs' statement of undisputed material facts. After Defendants filed a notice of supplemental authority, to which Plaintiffs responded, the court took the pending motion for summary judgment under advisement on April 12, 2018.

         Plaintiffs are represented by Richard R. Goldsborough, Esq., Steven A. Adler, Esq., and Jennifer E. Agnew, Esq. Tristram J. Coffin, Esq. and Jennifer E. McDonald, Esq. represent Defendants.

         I. Procedural History.

         On July 27, 2015, Plaintiffs filed their First Amended Complaint, alleging nine causes of action. Counts I and II alleged claims pursuant to 42 U.S.C. § 1983 that Corporal Thibault violated Chapter 1, Article 11 of the Vermont Constitution and the Fourth Amendment of the United States Constitution through the use of excessive force. Count III asserted a claim under Section 1983 that the City and former Chief Schirling failed to train, supervise, and institute policies regarding individuals with mental health issues. Count IV alleged that Defendants violated Title II of the ADA.

         In Counts V through IX, Plaintiffs asserted state common law claims for assault and battery against Corporal Thibault (Count V); negligence against Corporal Thibault and Corporal Navari (Count VI); negligent training, hiring, and retention against BPD, former Chief Schirling, and the City (Count VI); loss of consortium against Defendants (Count VII); intentional infliction of emotional distress against Corporal Thibault and Corporal Navari (Count VIII); and a statutory wrongful death and survival action against Defendants (Count IX).

         On September 4, 2015, the court granted in part and denied in part Defendants' motion to dismiss the First Amended Complaint. The court dismissed: (1) all claims against the individual defendants in their official capacity; (2) all claims against BPD; (3) all claims against the individual defendants in their individual and official capacities under the ADA; and (4) Plaintiffs' loss of consortium claim set forth in Count VII. The court declined to rule on the issue of qualified immunity, determining that this issue was "best decided on a motion for summary judgment when the facts are more fully developed[.]" (Doc. 33 at 9) (internal quotation marks omitted) (citing Walker v. Schult, 717 F.3d 119, 130 (2d Cir. 2013)).

         II. The Undisputed Facts.

         A. The Events of November 6, 2013.

         On November 6, 2013, at approximately 3:30 p.m., Lawrence Brunette and his wife, Ruthine Brunette, observed their adult son, Wayne Brunette, cutting down a portion of an apple tree with a reciprocating saw in the front yard of their home at 85 Randy Lane, Burlington, Vermont. Wayne Brunette had a history of mental illness, including diagnoses of paranoid schizophrenia and delusional disorder, grandiose type. After he was arrested in 2001, Wayne Brunette spent an unidentified amount of time at Vermont State Hospital due to his mental health. As of November 6, 2013, however, he had not sought treatment for his mental health in almost ten years.

         While watching his son cut down the apple tree, Lawrence Brunette believed that Wayne Brunette was out of his mind and "out of control[]" (Doc. 99-5 at 3), although he testified that he "wasn't afraid for [his] life or [his] wife's [life][.]" (Doc. 99-5 at 4.) Lawrence Brunette told his son that he was not allowed to cut down the tree and unplugged the saw. Wayne Brunette then entered the house and went upstairs to have a soda.

         At approximately 3:30 p.m., Ruthine Brunette telephoned Wayne Brunette's wife, who was at work, and advised her of what had taken place. Barbara Brunette responded that her husband "ha[d] been acting terribl[y][, ]" (Doc. 95-2 at 4), and "if they needed help, . . . call the police" because "[t]he police were there to help." (Doc. 99-6 at 5.) At 4:18 p.m., Ruthine Brunette called BPD's non-emergency number and requested assistance.

Mrs. Brunette: [T]his is Mrs. Brunette on 85 Randy Lane. I've got a problem here with my son that's upstairs. He's gone berserk, I think, and I mean I've got to do something. He's cut my apple tree down out front just now. He's violent and he's just mean. We live downstairs. Him and his wife live upstairs over us. And now he says he owns this whole house and this whole property and everything, which he doesn't. And he's really bad.
Dispatcher: Ok, what is he doing right now m'am?
Mrs. Brunette: Right now I chased him upstairs. He's upstairs in the apartment right now[.]
Dispatcher: Does he have mental health issues?
Mrs. Brunette: Yes he does[.]
Dispatcher: Keep your door locked and I'll send somebody over there.

(Doc. 95-1 at 2-3, ¶ 6.)

         At 4:19 p.m., Corporal Thibault and Corporal Navari received a radio call from dispatch while they were parked in separate police cruisers in a parking lot at Ethan Allen Homestead Park. The dispatch call directed the officers to respond to a mental health issue at 85 Randy Lane, informing them that: "(a) the caller lives downstairs and owns the property; (b) the caller's son lives upstairs; (c) the caller's son has been threatening, out-of-control, and destroying property; (d) the caller's son is now in the apartment upstairs; and (e) the caller is downstairs and was advised to stay inside with the door locked." (Doc. 95-1 at 3, ¶ 8.)

         Because he was assigned to the New North End, the area in which the incident took place, Corporal Thibault was the primary officer to respond to the call. After receiving it, Corporal Navari testified that he "said something to [Corporal Thibault] probably to the effect of, [s]hit, can't even talk for four or five minutes, and then [Corporal Thibault] said, [y]up." (Doc. 99-11 at 4.) Corporal Navari further recalled that Corporal Thibault stated that he would "talk to the Complain[ant] and you can do what you do best and talk to the other person, [the] other party." Id. When asked in his deposition if that was the extent of the plan, Corporal Navari responded "[p]retty much, if that was a plan." Id. at 5. Similarly, Corporal Thibault acknowledged that "[t]here was no specific -- like an operational plan." (Doc. 99-7 at 22.) He recalled that:

There was nothing formalized. I guess I would describe it as [Corporal Navari] and I had been on calls together for years. I knew his style. He knew mine. We heard the call. I was comfortable going there with him. I think he was comfortable going there with me. There's plans that are already laid into a dispatch that kind of go unspoken. For example, [the primary officer is] . . . the person whose radio number is called first.

Id.

         Corporal Thibault estimated that he had responded to twenty or thirty "mental health calls" with Corporal Navari, but that he had also responded to "hundreds of calls" with Corporal Navari that had a "mental health component to it." (Doc. 95-9 at 13, 14.) Prior to this call, neither officer had previously responded to a call or complaint from 85 Randy Lane, and neither officer was familiar with Wayne Brunette. BPD had not interacted with Wayne Brunette since 2003.

         On the day of the incident, Corporal Thibault was equipped with a pistol, a baton, pepper spray, a flashlight, and two sets of handcuffs. Neither Corporal Thibault nor Corporal Navari had been issued a Taser. Although BPD had Tasers at the time, it had not fully deployed them "primarily due to cost[.]" (Doc. 116-2 at 3.)

         As the officers approached 85 Randy Lane in their cruisers, they did not activate their lights and sirens.[1] Corporal Thibault arrived at the property first. He described the scene as "calm," although he noticed the "destroyed trees" on the front lawn. (Doc. 99-7 at 32.) Ruthine and Lawrence Brunette came out of the house to speak with him. Corporal Thibault described their demeanor as "remotely calm[.]" Id. Corporal Navari arrived moments later and approached the house by way of the driveway.

         Corporal Thibault asked Lawrence Brunette if his son was under the care of a particular doctor; if he was on any medications; if he was seeing anyone from the Howard Center for Human Services (the "Howard Center"); and if Wayne Brunette had any weapons or firearms. Lawrence Brunette responded that his son was not on any medications and was not receiving any medical care.

         Shortly after his arrival at 85 Randy Lane, Corporal Navari observed an individual, who he later determined was Wayne Brunette, standing just inside the open garage. Wayne Brunette then disappeared from view and reappeared on the landing above the garage on the upper floor of the house. Corporal Navari asked Wayne Brunette to come down from the landing to talk to him. Wayne Brunette slammed the metal screen door on the landing, but did not appear to go inside.

         Corporal Thibault did not know in advance that Corporal Navari planned to call out to Wayne Brunette and ask him to come downstairs. If he had known that Corporal Navari intended to interact with Wayne Brunette in this manner, he would have asked Corporal Navari to "hold off." (Doc. 99-7 at 34.) Corporal Thibault, however, did not "think [it was] inappropriate[]" for Corporal Navari to ask Wayne Brunette to come down because the decision to engage him was "a matter of style." Id. While Corporal Thibault stated that it would have "been [his] style to leave [Wayne Brunette] up there[, ]" he noted that Corporal Navari had "always been very successful at talking to people[, ]" and that "maybe [Corporal Navari was] overly confident, because there is a chance every once in a while things don't go well." Id. at 37-38.

         After Wayne Brunette left the landing, he reappeared in the garage, holding a shovel. The shovel was a four-foot, ten-inch long garden spade with a wooden handle and a pointed metal head. Plaintiffs concede that the shovel could be used as a dangerous weapon and was capable of inflicting serious bodily injury or death. Corporal Navari immediately felt threatened by the manner in which Wayne Brunette was holding the shovel and asked him to put it down twice.[2]

         When Wayne Brunette exited the garage, Corporal Thibault was standing by the house's front steps, speaking with Ruthine and Lawrence Brunette. Observing the incident at 86 Randy Lane from across the street, Mary Little described Corporal Navari's position at the time as in front of the sidewalk and "further up the grass area[, ]" closer to the garage. (Doc. 99-10 at 9.)

         Although the record is unclear with regard to how Wayne Brunette exited the garage, at some point, he began to quickly advance towards Corporal Navari, who began to back up the driveway towards the sidewalk and the street. As he was retreating, Corporal Navari drew his firearm and yelled "drop it[]" at least six or seven times. (Doc. 95-11 at 21.) Wayne Brunette pointed the head of the shovel at Corporal Navari and "charged" (Doc. 95-7 at 4) and "lunged" (Doc. 95-15 at 6) at him while making "swinging[, ]" (Doc. 95-21 at 3) "poking[, ]"and "jousting" (Doc. 108 at 3) motions with the shovel.[3]

         Despite "backing up as fast as [he]" could, Corporal Navari recalled Wayne Brunette "gaining on [him]." (Doc. 95-11 at 21-22.) Using a tree on the grassy median between the sidewalk and street "to create some type of distance[, ]" he placed his finger on the trigger of his gun. Id. at 21. Corporal Navari described the tree as "small[, ]" but sufficient to "create something between" them, so that Wayne Brunette "would have to come on one side or the other[.]" (Doc. 99-11 at 7.) He determined that if Wayne Brunette "comes [around] one side of the tree or the other" he was "going to be the one shooting." (Doc. 95-11 at 21.) When the shooting occurred, Corporal Navari recalled Wayne Brunette standing on the sidewalk, while he stood just off the curb on the street.

         Almost as soon as Wayne Brunette began advancing on Corporal Navari, Corporal Thibault ran from his position at the front steps, around a felled tree limb, down the walkway, and towards the sidewalk. He drew his firearm to provide assistance and told Wayne Brunette multiple times to drop the shovel out of fear that Wayne Brunette would strike him or Corporal Navari.

         Although the parties dispute whether Wayne Brunette redirected his attention to Corporal Thibault and advanced towards him, it is undisputed that Corporal Thibault fired two shots that struck Wayne Brunette. Seconds later, he fired two more shots in quick succession that also struck him. Wayne Brunette fell to the ground with his feet lying on the sidewalk near the driveway and with the handle of the shovel by his head. When he fell, he was alive and moving. Corporal Thibault tried to calm him, but neither officer administered first aid.[4] At 4:26 p.m., Corporal Thibault radioed that shots had been fired and requested an ambulance. The duration of the incident, beginning with the radio dispatch call and ending with Corporal Thibault radioing that shots had been fired, was just over seven minutes.

         According to Corporal Navari, Wayne Brunette advanced to within eight to ten feet of him.[5] Based on Corporal Navari's estimate and because Wayne Brunette pointed the four-foot, ten-inch shovel at Corporal Navari, Plaintiffs' expert, Ken Katsaris, opined that the tip of the shovel was "maybe four to . . . six feet[]" from the officer. (Doc. 95-13 at 12.)

         Several of the eyewitnesses similarly reported that Wayne Brunette advanced to within several feet of Corporal Navari. Ruthine Brunette testified that the sidewalk divided Wayne Brunette from Corporal Navari. She did not "know if [Wayne Brunette] would have hit [Corporal Navari] [with the shovel][, ]" but "[h]e probably would have." (Doc. 95-2 at 7.) Lawrence Brunette estimated that, at some point, the blade of Wayne Brunette's shovel was approximately a foot-and-a-half away from Corporal Navari. Agreeing that it was reasonable for the officers to defend themselves, Lawrence Brunette further opined that "[t]hey could have done what they did; whatever they had to do. He is a big man, with a spade like that, coming at you, or poking at you, or whatever. One swipe, it could have been bad news." (Doc. 95-5 at 6.)

         Mary Little stated that Wayne Brunette was close enough to Corporal Navari that he "could have hit [him] with the shovel, if he really wanted to." (Doc. 108-12 at 6.) She expressed "surprise[]" that Wayne Brunette "didn't hit the cop. It was that close." (Doc. 95-15 at 8.) Ray Little testified that Wayne Brunette was approximately two feet from Corporal Navari when Corporal Thibault fired his weapon. The Littles' children, Jl and J2, also witnessed the incident. Jl estimated that the end of the shovel was "[p]robably like half a foot, 12 inches[]" from Corporal Navari. (Doc. 95-20 at 5.) J2 indicated that if Wayne Brunette "had gotten a couple inches more of reach then" he could have "hit [Corporal Navari] in the face." (Doc. 95-19 at 4.)

         Witnessing the incident from 71 Randy Lane, Kelly Medlar stated that after Wayne Brunette was shot, he "drop[ped] to a knee on the sidewalk." (Doc. 95-21 at 7.) She averred that Corporal Navari had retreated from the sidewalk onto the grassy median and ultimately ended up on the street. At their closest point, she believed Wayne Brunette "was within one or two feet of [Corporal Navari]." (Doc. 95-22 at 3.) Her father, Marcus Medlar, believed that Wayne Brunette "damn near got [Corporal Navari][]" and was within "the vicinity of about 3 feet" of the officer. (Doc. 95-25 at 3.)

         B. Post-Incident Autopsy and Investigation.

         Wayne Brunette was alive when he was transported to the emergency room at the University of Vermont Medical Center. At 5:05 p.m., Dr. Ken Sartorelli, M.D. pronounced him deceased. The cause of death was identified as gunshot wounds to the torso with the manner of death characterized as homicide.

         Chief Medical Examiner Steven L. Shapiro, M.D. and Deputy Chief Medical Examiner Elizabeth A. Bundock, M.D., Ph.D. provided a report based on an autopsy performed by Dr. Bundock on November 7, 2013. Dr. Bundock pointed out that she received Wayne Brunette's body unclad and that she did not examine his clothing, as she typically would in the case of a gunshot victim. She concluded that Wayne Brunette died from gunshot wounds to his torso. Her autopsy report notes that his blood alcohol concentration was 0.081 and that his blood was positive for cannabinoids, although neither was a cause of death.

         Dr. Bundock could not determine the sequence in which Bullets A, C, D, and E entered Wayne Brunette's body. Bullet A entered the upper left abdomen and moved slightly upward to the right side of his body, puncturing Mr. Brunette's liver and stomach. This trajectory indicated that the left side of the body was facing the shooter more than the right side. Dr. Bundock opined that Bullet A would cause bleeding, pain, and "[i]n and of itself, . . . could lead to death, if untreated[, ]" but that Wayne Brunette "would not have been made immobile or die immediately from this wound." (Doc. 99-19 at 12.)

         Bullet C entered Wayne Brunette's left side near his hip and traveled to the right, moving from the back of his body towards the front, again indicating that his left side was facing Corporal Thibault. Bullet C fractured Wayne Brunette's hip bone and pelvis and "[went] through the abdominal wall musculature and fat so it [did not] perforate any [vital] internal organs[.]" Id. at 18. Because Bullet C did not compromise the joint with the femur, it was "not likely to have had a huge effect on [Wayne Brunette's] mobility[, ]" such that Dr. Bundock expected "that he could still reasonably walk" and "move his legs" after that injury. Id.

         Bullet D entered and exited Wayne Brunette's upper arm first before re-entering his chest, close to the armpit. Dr. Bundock opined that this bullet would "have essentially torn up his bicep in the left arm[, ]" making it "hard to hold something after that[.]" Id. at 19. Specifically, she stated that "[i]t would be hard to have your arm flexed up and bearing weight" after suffering the injury caused by Bullet D. Id. at 20. Although she agreed that Wayne Brunette would have lost control of flexing the musculature in his left arm, she testified that he could possibly hold the shovel after being shot by Bullet D, but it was unlikely that he could poke with the shovel or hold it over his head.

         After entering Wayne Brunette's chest, Bullet D passed through his heart, diaphragm, and the left lobe of his liver, traveling from almost six inches to five-and-a-half inches downward. A "reasonably fair interpretation[]" of this trajectory is that, at some point, Wayne Brunette was at a lower level than Corporal Thibault. Id. at 26. However, "[t]he most [Dr. Bundock] can say is that [Bullet D's trajectory] suggests that there was a position change between [Bullet D] and the other three fired[, ]" supporting a conclusion that "somebody moved," although she cannot determine who. Id. at 23. Although Bullet D caused a fatal wound to the heart and lung, an individual could "continue to walk" and "cover large amounts of distance, even with a hole in their heart[.]" Id. at 28.

         Bullet E entered the left side of Wayne Brunette's back below his shoulder blade and closer to the center of his body, "transect[ing] the spinal cord." Id. at 32. Bullet E rendered Mr. Brunette unable to move his legs, making it more likely that he would fall. Although the bullet entered through Wayne Brunette's back, Dr. Bundock testified that his "back was not predominantly facing the gun." (Doc. 116-9 at 14.) Instead, "[h]e was presenting more of his left torso[, ]" resulting in an injury that was not "a directly front to back type [of] injury." Id.

         Dr. Bundock observed that "[i]t is much more useful to take the [bullet] trajectories and use them to confirm or refute observations, than to take them and try to conjure up a scene." Id. at 11. She cannot conclude, to a reasonable degree of medical certainty, "how [Wayne Brunette and Corporal Thibault] are positioned, with respect to the surroundings." Id. After reviewing the bullet trajectories of Bullets A, B, and D, however, Dr. Bundock opined that they were not "consistent with [Wayne Brunette's] torso facing the gun." (Doc. 99-19 at 25.) Rather, they were consistent with Wayne Brunette's left side facing the shooter, who was potentially holding the firearm out to his side as he was shooting. Dr. Bundock concurred with Vermont State Police ("VSP") Detective Annis's conclusion that "the location of the entrance wounds in the left to right travel and all bullets could be a result of [Wayne Brunette] possibly advancing with his left foot forward and torso turned toward his right." (Doc. 116-9 at 19) (internal quotation marks omitted).

         After the shooting, BPD and VSP investigated the scene and took tape-recorded statements from ten individuals who witnessed the shooting, including Corporal Thibault and Corporal Navari. At the time of the incident, BPD vehicles were not equipped with cameras. VSP's Crime Scene Search Team recovered three of the four bullet casings ejected from Corporal Thibault's firearm. The fourth bullet casing was not found.[6]

         C. Corporal Thibault's and Corporal Navari's Training with BPD.

         1. Use of Force Training.

         The incident at 85 Randy Lane was the first officer-involved shooting or use of deadly force in Burlington, Vermont since 1997. Neither Corporal Thibault nor Corporal Navari had previously fired their weapons in the line of duty.

         In 1998, Corporal Thibault graduated from the Vermont Police Academy. He was employed by BPD on a full-time basis from 2001-2016, aside from two deployments as part of the Vermont Army National Guard, one lasting approximately ninety days, the other spanning seven months, as well as a one-year military contract. He is no longer employed by BPD.

         In 2003, Corporal Navari graduated from the Vermont Police Academy and joined BPD where he has been employed on a continuous, full-time basis. He was promoted to the rank of Corporal in 2009.

         At the Vermont Police Academy, all BPD officers, including Corporal Thibault and Corporal Navari, receive annual use of force training during which they are trained in artificial decision points for applying force, as well as changing the manner of force. When the incident took place, BPD had a Department Directive Policy, entitled "DD05 Response to Resistance/Use of Force" (the "Directive"), which states in relevant part:

Officers are agents of the state authorized to use various degrees offeree to effect arrests or ensure the public safety. Officers employ objectively reasonable force necessary to accomplish a legal purpose. Officers should use only the force that is necessary and appropriate for compliance to control of a suspect and only until compliance or control has been achieved.

(Doc. 95-27 at 2.)

         According to the Directive, "[a]n Officer may use lethal force to protect him/herself or another person from what the Officer reasonably believes to be an imminent threat of death or serious bodily injury." Id. at 3. "Imminent" is defined as "impending or about to happen." Id. The Directive further states that the officer "may continue [the] application [of lethal force] until the subject surrenders or no longer poses an imminent danger." Id. at 8. After using lethal force, an officer, if able, "shall immediately call for an ambulance and render appropriate first aid until the arrival of rescue personnel." Id. In determining the appropriate amount of force, an officer considers the absence of a safe alternative, including the availability of cover. "An Officer in a position of cover may gain additional time to assess the need to use lethal force without incurring significant risks." Id. at 10.

         When the incident occurred, Corporal Thibault was a certified Use of Force instructor for BPD. He was also certified as an instructor in (a) "Rape Aggression Defense'/Self-Defense; (b) firearms; (c) control and restraint; and (d) Monadnock Defensive Tactic Systems ("MDTS"), which includes instruction on policy, case law, and de-escalation techniques. Both Corporal Thibault and Corporal Navari had received training in de-escalation techniques. Corporal Thibault instructed or received training on the use of force ten times between 2002 and the incident, while Corporal Navari was trained on the use of force six times between 2005 and the incident.

         BPD requires officers to complete a "use of force" report whenever officers use force that exceeds the handcuffing of a compliant individual. Prior to the incident, Corporal Thibault accumulated fifty-nine use of force reports over ten years of BPD employment. Corporal Navari had fourteen use of force reports during this same time period.[7]

         Plaintiffs submitted a list of Corporal Thibault's fifty-nine use of force reports as well as nine use of force report summaries written by Corporal Thibault that describe the incidents in question. There is no evidence before the court with regard to the precise nature of the other fifty use offeree incidents.[8] For each of the reports before the court, a BPD supervisor checked a box indicating that he or she had "reviewed this incident" and "concluded that [Corporal Thibault's] actions were in compliance with [BPD's] Use of Force Policy." (Doc. 99-34 at 2.) The BPD supervisors who checked the boxes do not include former Chief Schirling. In the excerpts of his deposition provided to the court, former Chief Schirling was not asked if he reviewed any of the fifty-nine use of force reports for Corporal Thibault. Because of the important role they play in determining supervisory liability, the court quotes the nine use of force reports submitted to the court verbatim.

         On June 25, 2009:

[A]t approx. 1600 hours, I was in City Hall park with Cpl. Glynn and Ofc. Longevin investigating a report of an intoxicated juvenile. While the other officers were investigating, I observed the Defendant lying down on a park bench facing the back rest. I approached the subject and said, "Sir, Sir[.]"[] The subject's eyes were closed and he did not respond. I announced again stating, "Sir, are you ok[]?"[] I stated this once more time while shaking his left shoulder.
At that time, the Defendant jumped and began yelling but I wasn't sure what he was saying. I immediately detected a strong odor of intoxicants. He began walking quickly from me, turning around, and pacing back and forth. I asked [him] if he was okay and requested him to come speak to me. He continued yelling something about sleep[.] I asked Cpl. Glynn if he knew the subject and he advised he knew him as [redacted.] I asked the Defendant[] to relax and to come speak with me. He had ignored me and walked to another park bench and began speaking with several other subjects. The Defendant was unbalanced and swayed while he was standing still. He continued to yell and raise his arms shaking them in exclamation.
I advised Ofc. Longevin that we would be taking the Defendant into protective custody. I then advised the Defendant that we would be placing him into protective custody. He then yelled something about jail. Ofc. Longevin then began to explain to hi[m] something about protective custody. I then advised the Defendant that he was now in protective custody. Ofc. Longevin ordered the Defendant to turn around twice. The Defendant ignored the officer and fumbled with a bag of cigarette tobacco. I then ordered the Defendant to drop the bag and to turn around and place his hands behind his back. The Defendant ignored my order. I then pointed a bottle of OC spray toward the Defendant and ordered him to turn around again. The Defendant yelled, "Go ahead and mace me." I ordered the Defendant to turn around one last time. The Defendant didn't move. I then sprayed the Defendant's face with OC. I then secured the Defendant right arm and placed it behind his back. Ofc. Longevin then took control of the Defendant's left arm and placed him in handcuffs.
Ofc. Longevin and I then began to escort the Defendant toward the intersection of College St. and St. Paul St. where Cpl. Glynn had parked our patrol vehicle. I stopped the Defendant in the northwest corner of the park where I search[ed] him for weapons. All throughout the process, and the process of escorting the Defendant, he yelled attracting the attention of multiple park patrons. The Defendant yelled things such as, "Fuck you, you fucking faggot, who fucking maced me, fuck you, I'll have your fucking job, call my fucking lawyer [.]" After searching the Defendant, we began to escort him across the sidewalk to the patrol vehicle. Once stepping onto the concrete, the Defendant collapsed toward the ground. I told him to get up and I attempted to pull him upward. He then yelled, "my fucking knee, I have a bad knee." I allowed the Defendant to stay where he was and Cpl. Glynn contacted rescue at my request. The Defendant continued to yell, "Fuck you, fuck you, I'll have your job[.]"[] On two occasions, the Defendant began to kick but did not strike anyone. The Defendant also spat multiple time in between yelling. While on the ground, Cpl. Glynn poured water on the Defendant's face in an attempt to decontaminate him. Cpl. Glynn also read the Defendant the OC spray administrative warning. Burlington Fire Dept. personnel responded to the scene. The Defendant continued to yell at rescue personnel demanding to know who the "tall blond faggot" was who "maced" him. After approximately five minutes of rescue personnel trying to reason with the Defendant, the Defendant compl[i]ed enough to be placed in an ambulance and transported to the emergency room.
At approximately 1800 hours, the Defendant was issued a citation for disorderly conduct by Ofc. Cousins.

Id. at 3-4.

         On May 16, 2007:

I responded to the parking lot next to the Daily Planet to a report of an "aggressive acting" male subject who was intoxicated. I checked the parking lot and observed no one. I then checked the alley connecting the lot and College St. I heard a subject yelling/singing out loud but couldn't understand [him]. I then observed [the individual] walking west on college St. [He] struck 4-5 newspaper boxes as he walked by them[.] [He] also had a pint bottle of Vodka protruding from a jacket pocket. I asked [him] to stop and asked him what he was doing. His speech was slurred but he insisted, again and again, that he had been doing nothing wrong.
[The individual's] speech was slurred and he swayed while standing. I advised [him] that I would be placing him into protective custody. I asked [him] to remove his backpack which he began to do. When he held the pack by the strap with one hand he said, "No." I then ordered [him] to turn around and place his hands behind his back[.] [He] refused and continued to hold the pack by one of its straps. I ordered him to turn around once more but he continued to passively resist. At that time I sprayed [his] face with OC spray which was not completely effective because the delivery failed due to lack of pressure. I was able to handcuff [the individual] in a standing position. He was transported to ACT 1 by Ofc. Erwin.

Id. at 8.

         On May 8, 2007:

I responded to Battery Park to assist Ofc. Clements with an open container violation. In the center of the park, I observed [the individual] sitting on a bench with an open container of Steel Reserve. Ofc. Clements spoke with [the individual] who[se] speech was very slurred. Ofc. Clements ordered [the individual] to stand, turn around and place his hands behind his back. [The individual] initially acquiesced but after ordered again, he st[ood] up. I instructed [the individual] to turn around and place his hands behind his back once more but he quickly stepped forward, toward me, with his arms extended. To defend myself, I sprayed [the individual's] face with OC spray and ordered him not to resist and to comply with our orders. Ofc. Clements and I were then able to handcuff [the individual] from a standing position without further incident. Ofc. Clements transported [the individual] to ACT 1 and then to corrections.

Id. at 6.

         On October 16, 2006:

[A]t approx., 1515 hours, Officer Clements and I observed the Defendant sleeping on a bench swing in Battery Park. Upon approaching the Defendant, I observed an open can of Bud Light under the swing and a shopping cart filled with multiple empty alcohol cans.
Upon waking the Defendant, he spoke with slurred speech and denied owning any of the alcohol. The Defendant was very intoxicated and appeared to have urinated in his pants. The Defendant was issued a municipal ticket for an open container violation. After issuing the ticket I asked the Defendant to stand up. I had determined that he would be taken into protective custody.
The Defendant did not stand up. I then ordered the Defendant, at least three to four times, to stand up and place his hands behind his back. The Defendant laughed until the fourth or fifth order was given. He then began to stand but placed his right hand inside a jacket after he had also been ordered to keep his hands visible. Once the Defendant stood, he would not place his hands behind his back, although he had been ordered a number of times to do so. At that time I sprayed the Defendant's face with O.C. spray to allow Officer Clements and [me] to safely handcuff the Defendant. Officer Clements then took control of one of the Defendant's arms to attempt to handcuff him. The Defendant continued to resist by not placing his other arm behind his back. Officer Clements was then forced to perform an arm bar takedown. Once the Defendant was on the ground he tucked his free arm under his body forcing Officer Clements to pry his arm from under him to safely handcuff him. After I had "pepper" sprayed the Defendant I gave multiple orders (at least 10 to 15) for him to "stop resisting[.]"[] The Defendant did not comply with these orders.

Id. at 10.

         On July 12, 2006:

1. On 7-12-06 at approx. 1055 Hours Ofc. Clements and I were patrolling the Church Street Marketplace. We were walking southbound and nearing the intersection of College St. when I observed two males sitting on a rock. The Defendant was speaking loudly with another male discussing our bulletproof vests. I heard the Defendant say, "Those fucking vests must be fucking hot[.]"[] I then heard him say, "Look at that one, he thinks he's fucking cool." The Defendant was speaking loudly enough for me to hear him clearly over 15 feet away. The Defendant was also sitting approx. 3 feet away from a youth lemonade stand.
2. At that time I walked over to the Defendant and asked him if he was okay. The Defendant immediately grew angry and advised he was fine. I advised the Defendant that he got my attention by swearing loudly and speaking about me and my police equipment. The Defendant stated, "I'm fucking talking A to B." I again asked the Defendant if he was okay but he yelled louder that, "It was fucking between A and B[.]"[] The Defendant then pointed at me and yelled "keep walking[.]" I advised the Defendant that I would not be taking orders from him and requested he calm down.
3. The Defendant then stood up and raised his hands in the air and shook them. In one hand he held a Power Aid bottle and the other hand was held in a fist. The Defendant's body convulsed and shook as he tensed his muscles. He yelled, "Fine, fuck you." And turned quickly to walk north on Church St. At this point pedestrian traffic along with workers on Church St. had stopped what they were doing and looked on as a result of the Defendant's loud and profane outbursts.
4. At that time I requested the Defendant to stop but the Defendant kept walking northbound, yelling "fuck you [.]"[] I continued to follow the Defendant and continued to request him to stop. The Defendant continued to yell, "fuck you" causing other pedestrians to clear a way as not to be near the disturbance. I advised the Defendant that he had better not run and advised I would pepper spray him if he didn't stop. The Defendant then turned toward me and "squared off as he bladed his stance and held his fists up in a fighting stance. I ordered the Defendant to turn around and place his hands behind his back and informed him he was under arrest for disorderly conduct. The Defendant did not turn around although Ofc. Clements and I continued to order him to turn around.
5. Due to Defendant's actions and his refusal to comply I sprayed the Defendant with OC spray. As I sprayed the Defendant he turned his head, avoiding most of the spray and then turned around and placed his hands behind his back. I moved forward to compliantly handcuff the Defendant with the assistance of Ofc. Clements. I was able to secure both handcuffs but the Defendant continued to yell. The Defendant's face grew very red and he spit every time he yelled. The Defendant also tensed up his entire body as we attempted to maintain control of him. Although Officer Clements and I ordered the Defendant to stop resisting and to calm down, the Defendant continued to resist and scream. The Defendant's actions forced Ofc. Clements and I to place the Defendant on the ground to maintain control of him. While on the ground the Defendant continued to struggle and yell until an officer with a patrol vehicle responded to transport the Defendant to police headquarters.
6. The Defendant's criminal record indicated that he had failed to appear at a court proceeding.

Id. at 12-13.

         On July 7, 2006:

[A]t approx. 110 hours, Officer Clements and I went to the residence o[f an individual] to arrest her for a disorderly conduct violation in accordance with a rule 3 failure to appear exception. Upon knocking on her door[, she] answered and opened the door. I advised her that I had some paperwork for her and offered to show her the affidavit of probable cause for her arrest. [She] asked [if] she was being arrested and I advised her [that] she was. [She] then began to turn away from Ofc. Clements and I and state, "I need my shoes and vitamins[.]" I advised [her] that she was "under arrest" and told her we needed to be with her if she wanted to retrieve items.
Ofc. Clements and I escorted her to a table where she took some vitamins. She then began to order me to sit down. I again advised her that she was in my custody and was under arrest. [She] stood up and went to a dark area in her kitchen yelling at Ofc. Clements about him being a homosexual. Due to concerns of sharp objects in the kitchen I illuminated the area with my flashlight and advised her of my safety concerns and again advised her that we needed to go. [She] came out of the kitchen yelling about being a pacifist and calling Ofc. Clements a homosexual. [She] then stepped toward Ofc. Clement and stuck her arm out, index finger extended, pointing at Ofc. Clements face, approx. 6" from his face.
At that [t]ime I sprayed [her] with O.C. spray. She ran from Ofc. Clements and I toward the west end of her apartment. There, both Ofc. Clements and I secured her arm[s], I [secured] the left arm, and placed her in rear wristlock and handcuffed her.

Id. at 15.

         On August 25, 2005:

While assisting Officer Dier while dealing with a juvenile arrest in holding cell 1, 1 observed the male juvenile kick Officer Dier's leg. The male had earlier advised me that when he was out of handcuffs he was going to "knock me out[.]"[] The subject also advised ...

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