MICHAEL P. SHEA, District Judge.
On the morning of November 15, 2012, East Hartford Police Officer Woodrow Tinsley, III, was dispatched to the apartment of Plaintiff Karla Huaman to assist a caseworker from the Connecticut Department of Children and Families ("DCF") in arranging for Huaman's troubled twelve-year-old son, J.M., to attend a psychological evaluation at the juvenile court. J.M. had committed no crime and posed no threat to anyone, but he did not budge that morning after Tinsley arrived at the apartment and urged him to get up from the couch, get dressed, and leave for the evaluation. Soon, Tinsley's "assist[ance]" turned into a forceful encounter, as Tinsley pulled J.M. across the floor of his home, and J.M.'s resistance precipitated a fight between J.M. and Tinsley. When the fight ended, J.M. was in handcuffs and under arrest for interfering with and assault on a police officer. Huaman sued Tinsley and others for false arrest, excessive force, and other claims, but after a trial, the jury found for defendants, apparently concluding, among other things, that Tinsley had had probable cause to arrest J.M. and had used only reasonable force against him.
On Huaman's motion for a new trial, I find that the jury's verdict on these claims was against the weight of the evidence and that Tinsley is not entitled to qualified immunity. Tinsley's own testimony shows that, in dragging J.M. across the floor of his home to "assist" in ensuring that J.M. attended the evaluation, Tinsley used force that he lacked authority to use and that he did not reasonably believe was necessary to make an arrest or to protect himself or another. There was thus no basis for the jury to find that Tinsley was acting in the performance of his duties when J.M. engaged in the resistance that resulted in his arrest and, consequently, no basis to find probable cause that he was interfering with or assaulting an officer while in the performance of those duties. And because Tinsley used substantial force when the circumstances did not call for any, there was no basis for the jury to find that the amount of force he used was reasonable. No reasonable officer could have believed that dragging an unwilling child out of his home to attend a psychological evaluation—whether it was court-ordered or not—was authorized by clearly established law. I therefore order a new trial on the false arrest claim and the two state law claims involving probable cause—false imprisonment and malicious prosecution—as well as on the excessive force claim. I deny the motion for new trial as to the negligence and emotional distress claims, as the jury's verdict as to those claims was not against the weight of the evidence. I deny Huaman's motion for judgment as a matter of law because she failed to make a Rule 50(a) motion before the case was submitted to the jury.
Huaman brought Fourth Amendment, state common law, and state statutory claims on behalf of J.M. against officers of the East Hartford Police Department (the former Chief of Police Mark Sirois, Police Sergeant Steven Syme, and Police Officers Kenneth Sullivan and Tinsley) and the Town itself. Before trial, Judge Dominic Squatrito dismissed the claims against Sirois, Syme, and Sullivan and all claims against the Town except the claim under Conn. Gen. Stat. §52-557n for negligent infliction of emotional distress. (ECF No. 106 at 42.) Remaining for trial were: (1) Human's claim under 42 U.S.C. § 1983 that Tinsley violated her son's Fourth Amendment rights to be free from excessive force and arrest without probable cause; (2) state law claims for malicious prosecution and false imprisonment against Tinsley; (3) claims for negligent and intentional infliction of emotional distress against Tinsley; and (4) a claim for negligent infliction of emotional distress against the Town under § 52-557n of the Connecticut General Statutes. The case was transferred to me for trial, and evidence before the jury began on September 14, 2016.
At the conclusion of Huaman's case, the defendants made a motion for judgment as a matter of law under Fed. R. Civ. P. 50(a), and I reserved ruling. At no time during the trial did Huaman make a Rule 50(a) motion. The case was submitted to the jury, which returned a verdict for the defendants on all counts. Despite not filing a Rule 50(a) motion, Huaman has now filed a post-verdict motion for judgment as a matter of law under Rule 50(b), as well as a motion for a new trial under Rule 59. I held oral argument on the motions on August 17, 2017, and, at the conclusion of that argument, issued an oral ruling denying the plaintiff's Rule 59 motion on some of the grounds she raised—including alleged juror misconduct and allegedly improper conduct by defense counsel during closing argument. (ECF No. 167.) This memorandum addresses the remaining arguments as well as Huaman's Rule 50(b) motion.
On November 15, 2012, Huaman's twelve-year-old son, J. M., had a 9:00 a.m. appointment for a psychological evaluation at the juvenile division of the Connecticut Superior Court in Hartford, Connecticut. (ECF No. 157 at 81-82; ECF No. 158 at 127.) J.M. had been diagnosed with both generalized anxiety disorder and a mild form of autism, and he had been truant from school. (Id. at 21-24, 40-42; ECF No. 156 at 39.) J.M. was reluctant to leave the house, to interact socially, and even to see to his own hygiene; he spent most of his time playing video games. (ECF No. 158 at 18, 56, 68.)
At approximately 8:10 a.m. on November 15, 2012, Lisa Freeman, the DCF worker assigned to Huaman's family, arrived at Huaman's apartment. (Id. at 40; ECF No. 157 at 144-45.) Huaman had called Freeman the day before to tell her that J.M. did not want to go to the psychological evaluation. (ECF No. 156 at 41.) When she arrived at Huaman's apartment, Freeman found J.M. lying on a couch wearing only a pair of shorts. (Id. at 42; ECF No. 157 at 148.) Freeman and Huaman attempted to convince J.M. to attend his evaluation, but J.M. refused, saying that he was tired and did not want to go. (ECF No. 156 at 44.)
Freeman called the East Hartford Police Department and informed dispatch that she needed police assistance with a juvenile who was refusing to attend a psychological evaluation at the Superior Court in Hartford. (ECF No. 157 at 85-86.) Huaman agreed with Freeman on the decision to call the police. (ECF No. 156 at 43-44.)
Because, at this point, the parties' trial testimony substantially diverged, I set forth below each side's versions of events. I have reproduced Tinsley's testimony in detail because, as discussed below, the jury apparently credited it and I will defer to their credibility finding for purposes of this ruling.
Tinsley, who by November 2012 had served as an East Hartford police officer for ten years (ECF No. 159 at 3), was dispatched to J.M.'s house after Freeman called for police assistance. (Id. at 3-5.) On his way there, Officer Tinsley received a call from his superior, Sergeant Syme. (ECF No. 157 at 195; ECF No. 159 at 19.) Syme was aware that Tinsley was responding to an assist call from DCF. He testified at trial that he instructed Tinsley not to "take any action unless [he had] a Court order signed by a judge." (ECF No. 157 at 195-98; ECF No. 159 at 20.) Syme testified that he discussed this with Tinsley because, in situations where DCF calls the police for backup, the police are "limited in what [they] should be doing." (ECF No. 157 at 196.) Tinsley recalled the same conversation as follows:
(ECF No. 159 at 20-21.)
Upon Officer Tinsley's arrival Freeman told him that J.M. was scheduled for a court-ordered evaluation and handed Officer Tinsley a document labeled "Notice of Evaluation." (ECF No. 156 at 46; Exhibit 1.) The document set forth the following text, which is shown below—in slightly cut-off form—as it appears in an entry on the Court's docket (ECF No. 74-4 at 2):
H12-CP12-014593-A
r Social Worker,
ourt Ordered PSY COMBO (CLN-INTELL-P/C) Evaluation Has Been Scheduled With:
ce Freedman, PHD
edule:
US [REDACTED] (CHILD) Thursday — November 15, 2012 AT 9:00AM to 2:00PM th __oor Conference Ro920 BROAD STREET P.O. BOX 6219, STATION A HARTFORD CT LA HUAMAN (Mother) Thursday — November 15, 2012 AT 2:00PM to 3:00PM th Floor Conference Ro920 BROAD STREET P.O. BOX 6219, STATION A HARTFORD CT LA HUAMAN (Mother) Thursday — November 15, 2012 AT 12:00PM to 1:00PM th Floor Conference Ro920 BROAD STREET P.O. BOX 6219, STATION A HARTFORD CT E [REDACTED] (Father) Thursday — November 15, 2012 AT 2:00 PM to 4:00 PM th Floor Conference Ro920 BROAD STREET P.O. BOX 6219, STATION A HARTFORD CT
The document also bore a date stamp "NOV 8 2012" as well as handwriting apparently referring to Lisa Freeman, the DCF worker, and a phone number. The document is not signed by a judge.
Tinsley testified about his understanding of the document at trial:
(ECF No. 159 at 34-35.) On cross examination, Tinsley also stated:
(Id. at 106-7.)
Further describing his arrival at the apartment, Tinsley testified:
(ECF No. 159 at 30-31.) Tinsley then spoke to J.M., who was sitting on the couch in a pair of shorts:
(ECF No. 156 at 31-35.) Then, Tinsley pulled J.M. off the couch and toward the door:
(Id. at 35-36.)
Tinsley testified that, after he started to pull J.M. to the door, J.M. began to resist:
(Id. at 38-40.)
After Tinsley pulled J.M.'s hand from the door frame, J.M. turned around "and we were kind of squared off face to face and I was still trying to hold on to him." (Id. at 40.) Tinsley testified that J.M. then attempted to knee him. (ECF No. 159 at 40.) In response, Tinsley forced J.M. to the floor, using a "distractive strike," which he said was just powerful enough to help him gain control of the situation. (Id. at 42.) After they both were on the floor, Tinsley felt J.M. reaching for his duty belt—where he kept his gun, baton, and pepper spray. (Id. at 44.) Tinsley then used another distractive strike, placed his knee on J.M.'s neck, and handcuffed J.M. while J.M. was on the floor. (Id. at 46). He described this as standard procedure. (Id.) Tinsley left J.M. on the floor while he went to wash his hands. (Id. at 48.) Huaman and Freeman then dressed J.M., with his hands handcuffed behind his back. (Id. at 49.)
Tinsley brought J.M. outside to his police car, which was parked in front of Huaman's apartment. (ECF No. 156 at 54.) Tinsley placed J.M., still handcuffed, into the backseat. (ECF No. 159 at 49.) Huaman and Freeman also went outside. (ECF No. 156 at 54-56.) Another officer, Sullivan, arrived at Huaman's apartment in response to Tinsley's request for another unit. (ECF No. 157 at 203.) While Sullivan was speaking to J.M., Sergeant Syme also arrived on the scene and spoke with Tinsley about what had happened in Huaman's apartment. (Id. at 202-3.) Syme then went over to Tinsley's police car, where Sullivan was still talking to J.M. Tinsley provided Huaman with a summons that charged J.M. with Interfering with an Officer, in violation of Conn. Gen. Stat. § 53a-167a, and Assault of Public Safety Personnel, in violation of Conn. Gen. Stat. § 53a-167c. (ECF No. 159 at 50, 52; Exhibit 2.) Tinsley discussed the summons with Syme before giving it to Huaman. (ECF No. 157 at 205.) Tinsley drove J.M. in the backseat of the police car to the psychological evaluation after issuing the summons. (ECF No. 159 at 53-55.)
Huaman testified that after arriving at the apartment, Tinsley "walk[ed] up to [J.M.] and pull[ed] him by the arm up from the couch," "with force," and then "turn[ed] around and grabb[ed] [J.M.] and put[] him on [sic] a head lock position" and "start[ed] dragging him out of the apartment." (ECF No. 156 at 49.) She also stated that Tinsley "was punching [J.M.]" at that time. (Id. at 50.)
Lisa Freeman testified that Tinsley "yanked [J.M.] off the couch by his arms," "pulled him over to the door [with J.M.] dragging his feet," "pushed him up against the door and was attempting to open the door to lead [J.M.] out of the door," "forced [J.M.] to the floor and proceeded to . . . punch [J.M.] in the face and stomach." (ECF No. 157 at 151-52.) Freeman stated that she "never saw [J.M.] in a headlock." (Id. at 177.)
Fed. R. Civ. P. 50(a) permits the entry of judgment as a matter of law if a "party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue. . . ." If the court does not grant the motion made under Rule 50(a), "the movant may file a renewed motion for judgment as a matter of law" within 28 days from the entry of judgment or, if the motion concerns a matter not decided by a verdict, within 28 days after discharge of the jury. Fed. R. Civ. P. 50(b).
A party who does not move for judgment as a matter of law under Rule 50(a) is barred from challenging the verdict under Rule 50(b). Walling v. Holman, 858 F.2d 79, 82 (2d Cir. 1988) ("Appellants are precluded from challenging the sufficiency of the evidence because they failed to move for a directed verdict at trial in accordance with Fed. R. Civ. P. 50(b)."). This procedural requirement "may not be waived by the parties or excused by the district court." Bracey v. Bd. of Educ. of City of Bridgeport, 368 F.3d 108, 117 (2d Cir. 2004). Nevertheless, a party who has failed to comply with the procedural requirements of Rule 50 is not foreclosed from challenging the verdict by means of a Rule 59 motion. La France v. N.Y., N. H. & H. R. Co., 191 F.Supp. 164, 166 n.1 (D. Conn.), aff'd, 292 F.2d 649 (2d Cir. 1961) (treating defendant's motion as a motion made under Rule 59(a) because defendant was barred from bringing the motion under Rule 50(b)).
Huaman did not move for a judgment as a matter of law before the case was submitted to the jury and thus is barred from making a Rule 50 motion following the jury verdict. The Second Circuit recognizes an exception to this rule only if needed to correct "manifest injustice." Malmsteen v. Berdon, LLP, 369 F. App'x 248, 249 (2d Cir. 2010), but Huaman's motion does not address this standard and analyzes the issue instead as if she had made a Rule 50(a) motion. Only in her reply brief—after the defendants point out that she failed to make a Rule 50(a) motion— does Huaman address the "manifest injustice" standard. (See ECF Nos. 150-1, 154.) It is improper to raise issues for the first time in a reply brief, and Huaman provides no reason why she should be excused from her failure to comply with Rule 50. See Cotto v. City of Middletown, 158 F.Supp.3d 67, 87 n.10 (D. Conn. 2016) (internal citation omitted). Accordingly, her Rule 50 motion is DENIED.
Fed. R. Civ. P. 59(a) permits a district court to grant a new trial "when the jury's verdict is against the weight of the evidence." DLC Mgmt. Co. v. Town of Hyde Park, 163 F.3d 124, 133 (2d Cir. 1998). "In contrast to a motion for judgment as a matter of law, a motion for a new trial pursuant to [Rule] 59 may be granted by the district court, although there is evidence to support the jury's verdict, so long as the district court determines that, in its independent judgment, the jury has reached a seriously erroneous result or its verdict is a miscarriage of justice." Nimely v. City of New York, 414 F.3d 381, 392 (2d Cir. 2005) (alterations, citation, and internal quotation marks omitted). "[O]n a Rule 59 motion the court may weigh the evidence and the credibility of witnesses and need not view the evidence in the light most favorable to the verdict winner." ING Glob. v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 99 (2d Cir. 2014) (internal quotation marks omitted). However, "a high degree of deference is accorded to the jury's evaluation of witness credibility, and . . . jury verdicts should be disturbed with great infrequency." Id.
In support of her Rule 59 motion, the plaintiff argues that Tinsley's "use of force and arrest [were] `unreasonable' and in violation of the Fourth Amendment." (ECF No. 150-1 at 1.) She contends that "[t]he indisputable evidence at trial was that Tinsley had no legal basis to use force against [J.M.], or to arrest [J.M]." (Id.) The defendants argue that the "plaintiff's legal arguments merely invite this Court to credit her disputed version of relevant events—a version flatly rejected by the jury." (ECF No. 153 at 6.) They assert that the jury simply believed Tinsley's version of events, rather than Huaman's. (Id. at 7.)
I agree with the defendants that the jury's verdict indicates that it found Tinsley's version of events more credible, and, because the jury's credibility determination is entitled to "a high degree of deference," I will credit Tinsley's testimony, where there is conflicting evidence. I observed the witnesses at trial, and I did not reach a firm conclusion that either side's witnesses were lying or obscuring the truth; instead, each witness had a different perspective on an intense, fast-moving situation, and the jury found Tinsley's version to be more credible than Huaman's.
Three of the plaintiff's claims against Tinsley have a probable cause requirement: (1) false arrest, (2) false imprisonment, and (3) malicious prosecution. Because I find that the jury's determination that Tinsley had probable cause to arrest J.M. was against the weight of the evidence, I GRANT the Rule 59 motion as to these three claims. I also find that the jury's determination that Tinsley did not use excessive force during his encounter with J.M. was against the weight of the evidence, and so I GRANT the Rule 59 motion on that claim as well. I DENY the Rule 59 motion as to the other claims against Tinsley and the Town.
With respect to Huaman's claim that Tinsley falsely arrested J.M., I instructed the jury that, to prevail on this claim, she had to prove:
(ECF No. 139 at 21); Weinstock v. Wilk, 296 F.Supp.2d 241, 246 (D. Conn. 2006). The parties stipulated at trial that the underlying proceeding terminated in favor of J.M., and there was no dispute that J.M. was aware of the arrest and did not consent to it (either on his own or through Huaman). (ECF No. 158 at 125).
Tinsley testified that he did not intend to arrest J.M. initially and that he did not form an intent to arrest J.M. until after J.M. attempted to knee him in the groin. (ECF No. 159 at 50, 97, 118-19.) His testimony makes clear that he intentionally arrested J.M. for violation of both Conn. Gen. Stat. §§ 53a-167a and 53a-167c in the moments after J.M. attempted to knee him. (ECF No. 159 at 28, 119-20.) I assume that the jury credited this testimony and, as noted, I will defer to its determination. The jury was instructed that it should focus on the moment of arrest in deciding whether the arrest was supported by probable cause, and I assume that it followed these instructions.
(ECF No. 139 at 22.) Further, because probable cause is offense-specific, I also instructed the jury on the elements of the crimes for which Tinsley arrested J.M.: (1) interfering with a police officer in violation of Conn. Gen. Stat. § 53a-167a; and (2) assaulting a police officer in violation of Conn. Gen. Stat. § 53a-167c:
(ECF No. 139 at 24) (emphasis added.)
These instructions were based in part on the Connecticut Supreme Court's decision in State v. Davis, 261 Conn. 553 (2002). In Davis, which involved a prosecution for assault on a police officer and interfering with a police officer, the court reversed the conviction on the basis of the trial court's erroneous jury instructions. The Supreme Court held that the trial court should have instructed the jury as to the "performance of duties" element in both Section 53a-167a and Section 53a-167c by directing it to apply Conn. Gen. Stat. § 53a-22(b). Davis, 261 Conn. at 570. That statute provides that a police officer "is justified in using physical force upon another person when and to the extent that he or she reasonably believes such to be necessary to: (1) Effect an arrest or prevent the escape from custody of a person whom he or she reasonably believes to have committed an offense, unless he or she knows that the arrest or custody is unauthorized; or (2) defend himself or herself or a third person from the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape." Conn. Gen. Stat. § 53a-22(b); see Davis, 261 Conn. at 570 (quoting statute). The Davis court added that "[i]f the police officer does not reasonably believe that his use of physical force is necessary, then his use of force is not within the performance of his duties and a citizen may properly resist that use of force." Id. at 571. The court also explained Conn. Gen. Stat. § 53a-23, Connecticut's statute abrogating the common law right to resist illegal arrests:
Id. at 567. The Court added that "[t]his statutory abrogation of the common-law privilege to resist arrest is limited, however, to illegal arrests, per se, and has not been applied to other illegal police conduct." Id. (emphasis added). "§ 53a-23 was not intended to require the defendant to submit to unlawful police conduct when there had been no attempted arrest." Id. at 568 (emphasis added).
I find that the jury's apparent conclusion that Tinsley was acting in the performance of his duties at the time of arrest was against the weight of the evidence. In the moments before J.M. attempted to knee him, Tinsley used physical force that he did not reasonably believe was necessary under the circumstances to make an arrest or protect himself or another. His own testimony makes this clear. First, he admitted that he had no reason to believe that Jesus had committed a crime or posed a threat to anyone when he pulled him off the couch and that he had no arrest warrant or take-custody order that might have authorized him to use force. (ECF No. 159 at 35, 80-87). Second, even considering only Tinsley's testimony, it is clear that, at some point between the couch and the door, J.M. began to resist and Tinsley began to apply enough force to overcome that resistance. (ECF No 159 at 38-40) ("And then once we got closer to the door [J.M.] started to change his action and attitude and started to resist, and then he pushed up against the door.") ("[H]e tensed up and became really agitated and was really fighting going out the door. He did not want to go [out the door].") ("I pulled his hand off the door.")
Nor can the verdict be saved by reference to my instruction that "an arrestee is not . . . permitted to resist an arrest by a police officer just because the arrest is illegal," which reflected Conn. Gen. Stat. § 53a-23. (ECF No. 139 at 25.) At the time J.M. began to resist—according to Tinsley's testimony—he was not resisting arrest, because Tinsley had formed no intention to arrest him. Tinsley was, instead, intending to drag J.M. across the floor and, apparently, out the door in his shorts. (ECF No. 159 at 38, 88.) Because I assume that the jury credited Tinsley's testimony that no decision to arrest was made, and no arrest attempted, until after the knee strike, it would have been against the weight of the evidence for the jury to find that J.M.'s "chang[ing] his action and attitude and start[ing] to resist" being pulled across the floor constituted resistance of an arrest by an arrestee. Davis, 261 Conn. at 568 ("§ 53a-23 was not intended to require the defendant to submit to unlawful police conduct when there has been no attempted arrest.").
Huaman's claim of false imprisonment also required her to prove that Tinsley lacked probable cause. As I instructed the jury, to prevail on this claim, Huaman had to prove:
(ECF No. 139 at 27-28.) Because the absence of probable cause is an element of this claim, and because the jury's determination that there was probable cause was against the weight of the evidence, a new trial is necessary on this claim too. There is no dispute that, when Tinsley put handcuffs on J.M.: (1) Tinsley restrained J.M.'s liberty (ECF No. 159 at 46); (2) J.M. did not consent or acquiesce willingly to the arrest—the arrest resulted from his struggle against Tinsley (id. at 40-46); (3) Tinsley intended to arrest J.M. for interfering with an officer and assaulting an officer (id. at 51); and (4) J.M. knew that he was being arrested and placed in handcuffs. (ECF No. 158 at 125.) That leaves only the probable cause element in dispute and, for the reasons discussed above, the jury's finding on that element was against the weight of the evidence.
The malicious prosecution claim also required Huaman to prove that Tinsley lacked probable cause, and a new trial is thus necessary on this claim, too, although the analysis is slightly more complicated. The Court instructed the jury that the elements of a malicious prosecution claim are:
(ECF No. 139 at 28.) I instructed the jury that they should "find the first and fourth elements proved." (Id.)
There are two complications with respect to the malicious prosecution claim. First, probable cause is assessed at a different moment in time than for a false arrest claim. Lombardi v. Myers, 14-cv-1687 (VAB), 2016 WL 4445939, at *4 (D. Conn. Aug. 18, 2016) (citations omitted); Coll v. Boisvert, 12-cv-1202 (JCH), 2014 WL 508694, at *8 (D. Conn. Feb. 5, 2014). But this distinction turns out to be immaterial in this case, because there was no evidence that Tinsley received additional information bearing on probable cause between the time of the arrest and the time he initiated charges against J.M. Goff v. Chivers, 15-cv-722 (SALM), 2017 WL 2174404, at * 14 (D. Conn. May 17, 2017) (where police arrested suspect for violation of § 53a-167 during roadside stop, transported suspect to state police barracks, and then charged suspect, a lack of probable cause at the time of the arrest was also a lack of probable cause at the time of prosecution because there was no evidence that the police gathered additional information before charges were filed).
The second complication is that this claim also requires a showing of malice, and it is possible that the jury decided this claim in Tinsley's favor because it found no evidence of malice. Nonetheless, even if the jury did decide on this ground, I cannot be sure that its faulty probable cause determination did not taint its verdict, because I instructed the jurors that they could "infer malice from a lack of probable cause." (ECF No. 139 at 29); see Berry v. Marchinkowski, 137 F.Supp.3d 495, 536 (S.D.N.Y. 2015) ("[I]t is clear that, in the Second Circuit, a jury may infer malice from the absence of probable cause." (citing cases)). Because the jury's determination that there was probable cause was against the weight of the evidence and because the jury was allowed to infer malice from a lack of probable cause, I must order a new trial on the malicious prosecution claim as well.
Huaman also argues that the jury's verdict for Tinsley on the excessive force claim was against the weight of the evidence because Tinsley's testimony regarding his use of force was not credible. (ECF No. 150-1 at 4-10; ECF No. 168 at 5-6.) Again, however, the jury disagreed, and I will defer to its apparent determination that Tinsley's testimony was more credible than Huaman's.
Even according to Tinsley's version of events, however, he used excessive force. As already discussed, Tinsley grabbed J.M. from the couch and pulled him towards the door, even if J.M. was initially "walking with" him. (ECF No. 159 at 35, 38-39.) When J.M. began to stiffen up as they got closer to the door, Tinsley continued to maintain his grip on J.M. and must have increased the amount of force he was using to overcome J.M.'s resistance and "tens[ing] up." He also forcibly pried J.M.'s hand loose from the doorframe. (Id. at 38-40.)
The Court instructed the jury:
(ECF No. 139 at 19-20, 21.) This instruction reflects the Supreme Court's teachings on excessive force in Graham v. Connor, 490 U.S. 386, 395 (1989), as well as Second Circuit case law holding that the "reasonableness inquiry depends only upon the officer's knowledge of circumstances immediately prior to and at the moment that he made the split-second decision" to use a particular amount of force. Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996).
This case, of course, involved an application of force under circumstances in which there was no probable cause to believe a crime was committed. Addressing force used to make arrests not supported by probable cause, the Second Circuit rejected the notion that "any force used in an arrest lacking probable cause is per se excessive," finding instead that "the reasonableness test established in Graham remains the applicable test for determining when excessive force has been used, including those cases where officers allegedly lack probable cause to arrest." Jones v. Parmley, 465 F.3d 46, 62 (2d Cir. 2006).
Under the Graham reasonableness test, however, "police are not permitted to use any degree of force in all instances—in some circumstances, no use of force is reasonable because none is required.'" Weather v. City of Mount Vernon, No. 08 CIV. 192 RPP, 2011 WL 1046165, at *9 (S.D.N.Y. Mar. 22, 2011), aff'd, 474 F. App'x 821 (2d Cir. 2012) (internal alterations omitted) (emphasis added); see also Piper v. City of Elmira, 12 F.Supp.3d 577, 588 (W.D.N.Y. 2014); Bauer v. Norris, 713 F.2d 408, 412-413 (8th Cir. 1983) ("The use of any force by officers simply because a suspect is argumentative, contentious, or vituperative is not to be condoned."); United States v. Harrison, 671 F.2d 1159, 1162 (8th Cir. 1982) ("Even if [an arrestee's] injuries were minor, a lack of provocation or need to use force would make any use of force excessive."). "Accordingly, the actions of the officers must be judged against the purported justification for the use of force under the circumstances and a defendant may be liable if the force used exceeded the force needed for the factual circumstances." Piper, 12 F. Supp.3d at 588 (internal quotation marks and citations omitted). "[A]lthough the Graham test does not consider the subjective intent of the officer(s) per se, . . . intentional, gratuitous uses of force that are not required to subdue an individual likely fail the Graham objective unreasonableness test." Lemmo v. McKoy, No. 08-CV-4264 RJD, 2011 WL 843974, at *6 (E.D.N.Y. Mar. 8, 2011).
The weight of the evidence at trial showed that, during the trip from the couch to the door and up to the moment of J.M.'s knee strike,
Defendants argue that Tinsley's pulling J.M. from the couch to the door constituted a de minimis use of force and thus cannot be excessive. They rely on several cases in the Second Circuit holding that de minimis uses of force did not constitute Fourth Amendment violations. But the defendants in these cases all were making arrests. See Torres v. Town of Bristol, 3:13-cv-1335 (SRU), 2015 WL 1442722, at *2-4 (D. Conn. 2015) (plaintiff was arrested for heroin in plain view during traffic stop); Rodriguez v. Village of Ossining, 918 F.Supp.2d 230, 238 (S.D.N.Y. 2013) (plaintiff was arrested for outstanding bench warrants); Phelps v. Szubinski, 577 F.Supp.2d 650, 651-52 (E.D.N.Y. 2008) (plaintiff arrested for speeding and driving with an invalid license); Jennejahn v. Village of Avon, 575 F.Supp.2d 473, 476, 481 (W.D.N.Y. 2008) (plaintiff arrested for harassing conduct to neighbors). An arrest or detention almost inevitably involves some use of force by the police and thus some risk of injury to both the police and the arrestee or detainee. See Muehler v. Mena, 544 U.S. 93, 98-99 (2005) (stating in the search warrant context that "[i]nherent in [an officer's] authorization to detain an occupant of the place to be searched is the authority to use reasonable force to effectuate the detention"). Here, however, Tinsley was not arresting J.M. as he dragged him to the door—or even making a Terry stop based on reasonable suspicion of a crime—and so cases involving arrests and detentions are not analogous. Assisting a DCF worker to convince a 12-year-old to attend a psychological evaluation—or providing backup in the event the child poses a threat—simply does not carry the same need for the use of force as does the apprehension or investigation of crime, at least, as in this case, if no threat materializes. And, as already noted, Tinsley was not acting under authority to take anyone into custody, and there was no basis to believe that there was a threat to anyone's safety. (ECF No. 159 at 30-33, 79-80); see Robison, 821 F.2d at 922. Thus, there was no need and no lawful basis to use the amount of force Tinsley applied in dragging J.M. from the couch to the door and prying his hands from the doorframe.
Nor does the fact that J.M. may not have suffered significant injury from Tinsley's actions save the verdict here. The Second Circuit allows a plaintiff to recover, "even though the injury caused was not permanent or severe where the force used was excessive." Lemmo, 2011 WL 843974, at *6; see also Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (noting in part that "we have permitted a plaintiff's claim to survive summary judgment on allegations that, during the course of an arrest, a police officer twisted her arm, `yanked' her, and threw her up against a car, causing only bruising") (citing Robison, 821 F.2d at 923-24). In fact, Graham itself makes the "extent of the injury" a factor in the analysis, but not a dispositive element. Graham, 490 U.S. at 390, 397-99 (1989). Where the circumstances call for no application of force, such that the other Graham factors weigh heavily against the officer's actions, an excessive force claim can still survive where any injuries are minor. See Barcomb v. Kraeger, 3:14-cv-1159 (JBA), 2016 WL 2644885, at *4-5 & n.8 (D. Conn. 2016) (rejecting more-than-de-minimis injury requirement for Fourth Amendment excessive force claim and stating that the "core judicial inquiry is not whether a certain quantum of injury was sustained but rather whether unreasonable force was applied given the circumstances" (interal citations and quotation marks omitted)); see also Jackson on Behalf of Z.J. v. City of Middletown, No. 3:11-cv-00725 (JAM), 2017 WL 2218304, at *4 (D. Conn. May 19, 2017) ("Because a plaintiff alleging an excessive force claim under the Eighth Amendment need not demonstrate a more-than-de-minimis injury, it necessarily follows that there is no basis to conclude that a Fourth Amendment claim for excessive force requires proof of more than a de minimis injury" because "the Supreme Court has otherwise made clear that the governing standard under the Eighth Amendment is even less protective of a plaintiff than the standard under the Fourth Amendment." (internal quotation marks omitted) (citing Graham, 490 U.S. at 398)).
For these reasons, the jury's verdict on the excessive force claim was against the weight of the evidence.
My finding that the jury's verdict on these claims was against the weight of the evidence raises the question whether Tinsley is nevertheless entitled to qualified immunity, because if he is, I would not order a new trial on the Section 1983 claims.
Qualified immunity protects a government official from liability for damages unless his actions violate a "clearly established statutory or constitutional right of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). More specifically, Tinsley is entitled to qualified immunity (1) "if [his] actions did not violate clearly established law" or (2) if "it was objectively reasonable for [him] to believe that [his] action did not violate such law." Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal citations omitted).
The Fourth Amendment right not to be arrested without probable cause is clearly established. Ricciuti v. New York City Transit Auth., 124 F.3d 123, 128 (2d Cir. 1997). But the analysis of whether clearly established law existed must "consider whether a reasonable officer could have believed that the specific action taken by the defendant was foreclosed by clearly established law." Caldarola v. Calabrese, 298 F.3d 156, 161 (2d Cir. 2002) (emphasis added); see also White v. Pauly, 137 S.Ct. 548, 552 (2017) ("Today, it is again necessary to reiterate the longstanding principle that clearly established law should not be defined at a high level of generality. As this Court explained decades ago, the clearly established law must be particularized to the facts of the case. Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." (internal citations and quotation marks omitted)). Here, I have determined that the arrest was not supported by probable cause because Tinsley was not acting in the performance of his duties "at the time of the interference or assault." (ECF No. 139 at 24.) Thus, the proper formulation of the qualified immunity question is whether, at the time of the incident, there was clearly established law holding that Tinsley's actions fell outside the performance of his duties.
The question whether J.M.'s Fourth Amendment rights were violated depends on whether there was probable cause to believe J.M. had violated two Connecticut statutes—Conn. Gen. Stat. §§ 53a-167a and 53a-167c. Where the alleged violation of a constitutional right "turns on an analysis of state, rather than federal law," "it is the state courts' interpretation of the law that is most significant." Chipperini v. Crandall, 253 F.Supp.2d 301, 307-8 (D. Conn. 2003). Moreover, "[w]hile most cases defining the analysis of the `clearly established' right focus on whether decisional law adequately defines the contours of the right at issue, statutes can also be a source." Id. at 309; see also Poulakis v. Rogers, 341 Fed. Appx. 523, 529 (11th Cir. Aug. 10, 2009) (analyzing whether officers had qualified immunity from plaintiff's Fourth Amendment claim for false arrest, court looked to decisions of Florida Supreme Court and text of Florida statute to determine whether there was probable cause to arrest for carrying an unlawfully concealed firearm, in violation of Florida law); Campbell v. Peters, 256 F.3d 695, 700-1 (7th Cir. 2001) (in deciding that defendant prison officials had qualified immunity with respect to plaintiff's Eighth Amendment claim that he was kept in prison a year longer than his sentence required, court found that state statute did not "clearly establish the rules for computing release times" and that state trial court decision interpreting state statute governing good time credit did not constitute clearly established law). "As the Supreme Court indicated, the salient question is whether the state of the law gave the officers fair warning that their alleged treatment of the plaintiff was unconstitutional." Chipperini, 253 F. Supp.2d at 309 (internal alterations and quotation marks omitted; citing Hope v. Pelzer, 536 U.S. 730, 740-41 (2002))
As of the November 2012 incident, there was Connecticut Supreme Court precedent specifically interpreting the "performance of duties" element of both Sections 53a-167a and 53a-167c. As already discussed, in State v. Davis, 261 Conn. 553, 565-72 (2002), the court held that the trial court should have instructed the jury that, "in determining whether the police officers were acting within the scope of their duties" under Sections 53a-167a and 53a-167c, "[the jury] should apply General Statutes § 53a-22(b)," which provides that a police officer "is justified in using physical force upon another person when and to the extent that he or she reasonably believes such to be necessary to" arrest someone "whom he or she reasonably believes to have committed an offense" or "defend himself or herself or a third person" from the use of physical force. Davis made clear that "if the police officer does not reasonably believe that his use of physical force is necessary, then his use of force is not within the performance of his duties and a citizen may properly resist that use of force." Id. at 570-71. And the statutes on which the Davis court relied were enacted decades before the incident in this case, in substantially the same form as they existed in 2012. See Conn. Gen. Stat. §§ 53a-167a and 53a-167 (requiring officer to be acting in performance of duties; enacted in 1971); § 53a-22(b) (defining when use of physical force by officer is justified; enacted in 1969 to take effect in 1971).
It is true that Davis did not involve the specific factual situation confronting Tinsley—a call to assist a DCF caseworker in the handling of a child. Rather, Davis involved an officer's altercation with a defendant who refused to leave the area in front of a corner grocery store after the officer had instructed a group of individuals gathered there to disperse. Davis, 261 Conn. at 556-57. But "officials can still be on notice that their conduct violates established law even in novel factual circumstances," and there is "no requirement that previous cases be `fundamentally similar'" or involve "materially similar facts" Hope, 536 U.S. at 741. Tinsley had "fair warning" that he could not use physical force against another if he was not arresting or detaining that person for a crime, protecting someone from harm, or preventing an escape. If anything, it should have been more obvious to Tinsley than to the officer in Davis—who was dealing with adults congregated on a street corner—that he was not acting in the performance of his duties when using force to drag from his home a 12-year-old boy who had committed no crime and posed no threat to anyone. See United States v. Lanier, 520 U.S. 259, 271 ("[G]eneral statements of the law are not inherently incapable of giving fair and clear warning. . . . The easiest cases don't even arise. There has never been a section 1983 case accusing welfare officials of selling forster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages . . . liability." (internal quotation marks and citations omitted.)).
Once it is determined that the law was clearly established, the analysis moves to whether an objectively reasonable officer would have thought that Tinsley's actions violated it. Qualified immunity protects Tinsley from damages on the false arrest claim if he can establish that he had "arguable probable cause" to arrest J.M. Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013) (internal quotations omitted), that is, "if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met." Id.; see also Pizarro v. Kasperzyk, 596 F.Supp.2d 314, 319 (D. Conn. 2015).
As already suggested, Tinsley cannot meet these standards. It would have been obvious to a reasonable officer faced with J.M on November 15, 2012, that using force to drag this reluctant twelve-year-old boy from his home to attend a psychological evaluation was not necessary to make an arrest or to protect himself or anyone else; and officers of reasonable competence could not disagree that doing so would fall outside the performance of an officer's duties, as the performance element was set forth in the relevant statutes and Davis.
Tinsley's testimony that he believed the Notice of Evaluation was a "court order" that required J.M to attend the evaluation does not change this analysis. Whatever the juridical status of the "Notice of Evaluation," it did not authorize the use of force. As Tinsley acknowledged, it was not an arrest warrant or a take-custody order. The document was issued by the "office of the clerk" of the Superior Court, was not signed by a judge, was not directed to the police, and made no reference to force, arrest, seizure, or even penalties for non-compliance. Nor did it bear any resemblance to a capias or suggest that J.M. had missed a previous court hearing. Compare Milner v. Duncklee, 460 F.Supp.2d 360 (D. Conn. 2006) (officers who arrested plaintiff in his home pursuant to a capias issued by a judge due to the plaintiff's failure to attend a child support hearing violated plaintiff's Fourth Amendment rights because capias, though authorizing arrest, did not authorize arrest in the home; officers nonetheless had qualified immunity because the law was not clearly established at the time whether a capias authorized arrest in the home). In short, nothing in the document remotely suggests that a police officer was authorized to use force to compel compliance with it, any more than a routine order I might sign scheduling a hearing in a civil case could be construed to authorize U.S. Marshals to round up the parties and bring them to the courtroom in handcuffs to make sure they attended. No reasonably competent officer could think that the Notice of Evaluation—whether it was a "court order" or not—authorized him to drag from his home a child who posed no threat and had committed no crime.
Because the relevant law was clearly established and because any objectively reasonable officer would have known that Tinsley's actions violated that law, Tinsley is not entitled to qualified immunity on the Fourth Amendment false arrest claim.
"It was clearly established at the time of this incident that a police officer could not lawfully apply a degree of force to an individual that was unreasonable in light of the totality of the circumstances." Weather, 2011 WL 1046165, at *10 (citing Saucier, 533 U.S. at 201-2). The Second Circuit has stated that, in cases like this one, the reasonableness analysis of excessive force claims and the reasonableness analysis of the resulting qualified immunity determination "ultimately converge on one question: Whether in the particular circumstances faced by the officer, a reasonable officer would believe that the force employed was lawful." Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 764 n.7 (2d Cir. 2003). "Even officers who are found to have used excessive force may be entitled to an extra layer of protection from the `sometimes hazy border between excessive and acceptable force.'" Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir.2003) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). "The relevant inquiry [for the extra layer of protection] `is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Stephenson, 332 F.3d at 77 (quoting Saucier, 533 U.S. at 202).
Largely for the same reasons discussed above, i.e., that it would have been obvious to a reasonable officer that using force to drag J.M. from his home was not necessary to make an arrest or to protect anyone, it would have been clear to a reasonable officer that the amount of force Tinsley used was excessive. Force was not authorized by the Notice of Evaluation, and there was nothing about the situation—no crime, no escape, no threat to anyone's safety, and no basis to arrest or detain—that created an urgent need for its use.
Huaman also brought claims of intentional and negligent infliction of emotional distress against Tinsley and a claim of negligent infliction of emotional distress against the Town under Connecticut General Statute § 52-557n. I do not find that the jury's verdict on any of these claims was against the weight of the evidence or seriously erroneous.
Among other things, these claims all required the jury to find that Tinsley's actions caused emotional distress to J.M.; the negligent infliction of emotion distress claim also required it to find that Tinsley "should have known that it was likely that a reasonable person under the circumstances would be distressed by the conduct and that that distress might result in illness or bodily injury." (ECF No. 139 at 31.) There was nothing so compelling about J.M.'s or Huaman's testimony, or that of the damages witnesses Huaman called, that a finding by the jury that J.M. did not suffer significant emotional distress from the incident would have been against the weight of the evidence. There was evidence at trial that the incident happened quickly, that Tinsley was unaware of J.M's mental disabilities, and that, by the time of trial, J.M was performing well socially and in school—considerably better than before the incident. While there was some evidence that J.M had suffered emotional distress as well, the evidence as a whole was not so one-sided that it would have been seriously erroneous for the jury to find against the plaintiff on the emotional distress components of these claims. I will thus not order a new trial on these claims.
As for the Town of East Hartford, the jury was instructed that a finding in Tinsley's favor on the negligent infliction of emotional distress claim precluded a finding that the Town was liable. § 52-557n; (ECF No. 139 at 33.) Thus, the verdict on this claim was not seriously erroneous either.
For the reasons set forth above I DENY Huaman's Rule 50 motion for judgment as a matter of law. I GRANT Huaman's Rule 59 motion for a new trial on the false arrest, false imprisonment, malicious prosecution, and excessive force claims, and I DENY the motion for a new trial on all other claims.
IT IS SO ORDERED.
