Opinion
No. X 04 CV 03 0104164 S
October 26, 2007
MEMORANDUM OF DECISION
On June 22, 2002, Officer Jad Bickford of the City of Groton Police Department responded to a call regarding an intoxicated person outside the Tollgate Laundry in the city. After a conversation of perhaps two or three minutes, Bickford allowed the individual, one Marcelino Lasalle, to walk away. Lasalle walked to his rooming house, where he fatally and tragically wounded the manager, Grover Bressert. The plaintiff Ann Swanson is the administratrix of Bressert's estate and brings this action against the city and Bickford for, inter alia, wrongful death; she is also a plaintiff in her capacity as representative for children's claims for loss of consortium. The defendants have filed a motion for summary judgment seeking the entry of judgment in their favor. This ruling addresses the motion.
The complaint sounds in ten counts. The first alleges negligence as to Bickford. The underlying allegations are that Bressert was the manager of the Rand Lodge, a rooming house in the city of Groton. On June 22, 2002, he told Marcelino Lasalle, a tenant in the rooming house, that he was going to be evicted because of his harassing and threatening behavior toward others while he was intoxicated. Lasalle was upset and left.
Shortly afterward Lasalle was observed outside the Tollgate Laundry in the city. The manager of the laundromat called "911" to report the problem. The dispatcher notified Bickford, who responded. The complaint alleges that Bickford found Lasalle "grossly intoxicated . . . and engaging in behavior that constituted a public nuisance." Lasalle refused to identify himself and was allowed "to stagger away" toward the Rand Lodge. Bickford did not establish Lasalle's identity or intentions despite his behavior. It is alleged that the city and Bickford knew or should have known of Lasalle's propensity for violence, which would have been discoverable through a records check.
The complaint alleges that Bickford was negligent in twenty-four ways, including failure to take Lasalle into protective custody pursuant to General Statutes § 17a-683(b); failure to take reasonable measures to gain consent to assist, pursuant to General Statutes § 17a-683(a); failure to make application for commitment; failure to arrest Lasalle; failure to investigate the situation, to escort Lasalle home, to protect others, and the like.
The third count alleges a negligence action against the city pursuant to General Statutes § 52-557n. The allegations of negligence are similar to those of the first count, and add allegations of failure to train and to supervise.
The fifth count is brought against the city for indemnification pursuant to General Statutes §§ 7-101a and 7-465.
The seventh count is a federal civil rights action brought against Bickford in his individual capacity. By not detaining Lasalle, Bickford allegedly violated Bressert's constitutionally protected rights under the fifth and fourteenth amendments to the United States Constitution and denied him equal protection of the laws.
The ninth count is a federal civil rights action brought against the city: by not properly supervising, the city violated Bressert's constitutionally protected rights under the fifth and fourteenth amendments to the United States Constitution and denied him equal protection of the laws.
Counts two, four, six, eight and ten allege loss of parental consortium as a result of the cause of action pled in each of the immediately preceding counts.
The defendants have alleged special defenses including governmental immunity and qualified immunity.
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." LaFlamme v. Dallessio, 261 Conn. 247, 250 (2002); Practice Book § 17-49. The party moving for summary judgment bears the burden of proving the absence of a genuine dispute as to any material fact; and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. "Equally well settled is that the trial court does not sit as the trier of fact when ruling on a motion for summary judgment . . . [T]he trial court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." (Citations omitted; internal quotation marks omitted.) Field v. Kearns, 43 Conn.App. 265, 269-70, cert. denied, 239 Conn. 942 (1996). "To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact." Witt v. St Vincent's Medical Center, 252 Conn. 363, 373 n. 7 (2000); D.H.R. Construction Company v. Donnelly, 180 Conn. 430, 434 (1980). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. The test is whether a party would be entitled to a directed verdict on the same facts. Sherwood v. Danbury Hospital, 252 Conn. 193, 201 (2001); Serrano v. Burns, 248 Conn. 419, 424 (1999); Forte v. Citicorp Mortgage, Inc., 66 Conn.App. 475 (2000). In Connecticut, "[a] trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, [the trier of fact] could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail." (Internal quotation marks omitted.) Colombo v. Stop Shop Supermarket Co., 67 Conn.App. 62, 64 (2001), cert. denied, 259 Conn. 912 (2002).
The defendants' primary argument is that the negligence actions are barred by the operation of governmental immunity. The black letter law has been stated many times by our courts, perhaps most recently in Durrant v. Board of Education, 284 Conn. 91 (2007). The historical general rule was that municipal employees were not immune from ordinary tort liability, but over the years the doctrines of immunity developed. A good summary appears in Skrobacz v. Sweeney, 49 Conn.Sup. 15, 27-29 (2003) (White, J.):
In deciding whether an action is barred by the doctrine of governmental immunity, "the court looks to see whether there is a public or private duty alleged by the plaintiff." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). "[I]f the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public and not an individual injury, and must be redressed if at all in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it or to perform it properly, is an individual wrong, and may support an individual action for damages." (Internal quotation marks omitted.) Id., 166. "If a public duty exists, an official can be liable only if the act complained of is a ministerial act or one of the narrow exceptions to discretionary acts applies." Id., 170.
"[A]lthough the public duty doctrine provides the starting point of the analysis, distinctions between discretionary acts and ministerial acts are often controlling without regard to whether the duty is ascertained to be public or private." Id. "The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act." (Internal quotation marks omitted.) Purzycki v. Fairfield, 244 Conn. 101, 107, 708 A.2d 937 (1998). "Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 167-68. "The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence." (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).
The plaintiffs suggest two arguments in an effort to surmount the obstacle of governmental immunity: first, they suggest that Bickford's duty to take Lasalle into protective custody was ministerial rather than discretionary; and second, even if it was discretionary, the circumstances indicated that if Bickford failed to act, imminent harm was likely to occur to an identifiable person. An examination of the facts presented in connection with the motion is helpful in the resolution of these questions.
The parties submitted factual materials from several sources, including the affidavits of Bickford, of the plaintiffs' experts on police work and of Werber, who was the manager of the laundromat; the depositions of Lasalle, Swanson, Bickford and Dr. Milzoff, who is an expert on the effects of alcohol; the Bickford incident report; and a transcript of the 911 call from Werber to the police. Additionally, two police statements from residents of the rooming house were handed up during argument.
Lasalle's deposition was taken in prison. See State v. Lasalle, 95 Conn.App. 263 (2006) (conviction for murder upheld).
The accounts present a generally coherent factual scenario, with only one notable discrepancy, to be noted infra. Entirely unknown to Bickford, Lasalle had apparently told more than one tenant at the Rand Lodge, around 6:00 p.m. on June 22, 2002, that Bressert was about to try to evict him and he wasn't happy about it. Lasalle was drinking heavily and walked to a package store in the vicinity of the Tollgate Laundry, about half a mile away. Outside the laundry he was visibly intoxicated. Werber, the manager of the laundromat, called 911 and reported that a male, probably Hispanic, was "very, very intoxicated. I don't know if he's going to start trouble. He seems to be talking to people he doesn't know as they walk by." There was no mention on the 911 call of threats or violence. The dispatcher indicated that someone would check out the situation.
The defendant Jad Bickford was sent to the scene. He talked with Werber; there is some discrepancy in the evidence as to what was said in that conversation. Bickford then engaged in conversation with Lasalle, who had been outside talking on a cell phone. Bickford indicates that Lasalle appeared intoxicated and unsteady. He said he was going to "Randall House," which Bickford took to be Rand Lodge. Bickford asked if he wanted a ride. Lasalle first said that he did, but changed his mind when asked for identification. He refused to give his name. He walked away toward Rand Lodge and appeared able to walk.
Later in the day Lasalle murdered Bressert. For details, see State v. LaSalle, supra. Lasalle was noticed with bloody clothing. Bickford heard the report and wondered if it was the same person he had earlier encountered. He went to Rand Lodge, where he surmised Lasalle had been headed, talked his way in and ultimately discovered Bressert's body.
During his encounter with Lasalle, Bickford formed the opinion that Lasalle was intoxicated but not incapacitated. He felt that Lasalle was capable and not a danger to himself or others. He did not think he had probable cause to arrest or reason to take steps to take Lasalle into protective custody. The plaintiffs, on the other hand, submitted the affidavit of an expert in alcohol intoxication who opined that Lasalle most probably was incapacitated by alcohol, as that term is defined, at the time of his encounter with Bickford. See General Statutes § 17a-680(11). Bickford did not think it was necessary to require Lasalle to produce identification. During the encounter, Lasalle did not behave in a threatening, harassing or confrontational manner. Bickford never knew of any ill will or animosity between Lasalle and Bressert and did not know who either of them were at the time of the encounter.
It may be interesting to note that the criminal trial of Lasalle considered the issue of his intoxication, though in the context of the elements of murder. His position at trial was that he was so intoxicated that he could not form the required intent, and would therefore perhaps be guilty of manslaughter but not murder. Evidence regarding intoxication was presented, and the jury found that he was capable of forming the intent to cause death and did form the intent. In the trial, evidence was presented, apparently on the issue of consciousness of guilt, that he had the presence of mind to wash a knife blade and to try to conceal some clothes.
The standard regarding intoxication in the criminal context of course is not identical to the standard for taking into protective custody pursuant to General Statutes § 17a-683(b), and I imply no direct analogy.
Bickford was interested, at the time of the encounter, in finding out Lasalle's identity, because he thought that there could be outstanding warrants for him. Had Lasalle given him sufficient information, he could have made inquiry from the cruiser about outstanding warrants and apparently a record check. As it turns out, Lasalle had at least two out-of-state warrants pending against him. Lasalle's version, given in a deposition, was that he remembers being very drunk, but still remembers not wanting to give his identity because he was worried about being arrested on the warrants. Though he may or may not have been "incapacitated by alcohol" as defined by statute, he did have the presence of mind to avoid arrest.
The primary discrepancy in the evidentiary materials submitted in connection with the summary judgment motion is whether Werber told Bickford at the scene that Lasalle had been threatening or harassing passers-by. In his affidavit, though not in his 911 call, Werber stated that he told Bickford that Lasalle had been doing so. Bickford avers in his affidavit that no one told him Lasalle had engaged in violent, threatening or harassing behavior. Because in the consideration of a motion for summary judgment any factual discrepancy should be resolved in favor of the nonmoving party, I will assume that Werber did make some mention of harassing or threatening behavior.
The defendants suggest that the decision whether to take a person into protective custody is inherently discretionary, and thus Bickford is protected by governmental immunity unless an exception is pertinent. The plaintiffs suggest that the mandatory language of General Statutes § 17a-683(b) removes all discretion if the intoxicated person is "incapacitated." The plaintiffs compare the language of § 17a-683(a), which states that an officer who finds an apparently "intoxicated" person may, with the person's consent, assist the person in various ways, including transportation to the person's home, a treatment facility or a hospital, with the language of § 17a-683(b), which states that an officer who finds a person "incapacitated by alcohol" shall take him into protective custody. One is incapacitated by alcohol when one, through the use of alcohol, "has his judgment so impaired that he is incapable of realizing and making a rational decision with respect to his need for treatment." General Statutes § 17a-680(11).
Appropriately, no one has suggested that the police function, at least in the context of this case, is other than governmental.
The plaintiffs' position makes grammatical sense but runs counter to a vast array of case law to the contrary. There would appear to be no authority for the proposition that an officer has no discretion whether to arrest or take other positive action, even when the operative statute includes mandatory (or directory) language such as "shall." In Florence v. Plainfield, 50 Conn.Sup. 1 (2006) (Sferrazza, J.), a person who had been convicted of assault in the first degree served time in prison and was released. His new girl friend complained to police about violent behavior toward her. The police did not notify the assailant's probation officer, but rather applied for an arrest warrant, and reportedly were slow in processing the warrant and executing it. The assailant evaded execution and tragically shot and killed the girl friend. A domestic violence statute, § 46b-38b, provided that a police officer "shall arrest" a person on speedy information. Judge Sferrazza wrote (at 6-8):
Florence is not precisely on point, of course. There are differences between the domestic violence statute and the alcohol-protective custody statute, and every factual situation is different.
It is true that General Statutes § 46b-38b(a) requires that a police officer who receives "speedy information" that creates probable cause to believe that an individual has committed a family violence crime, as defined by General Statutes § 46b-38a, shall arrest and charge that individual with the appropriate crime. Whether the predicate facts triggering the mandate of § 46b-38b(a) exist, however, requires police officers to exercise discretion and judgment.
* * * *
Decisions regarding the scope of an investigation whether probable cause for an arrest exists, whether information is speedy or not, whether to seek an arrest warrant or make a warrantless arrest, when and how best to pursue a wanted person, the number of police officers that are needed to conduct and complete an investigation, whether coordination with other agencies is necessary during an investigation, the search for a suspect or the pursuit of that suspect is appropriate and the proper supervision of subordinates — all require a municipal police officer to employ wide discretion and to exercise judgment. As municipal employees engaged in discretionary functions, these defendants possess qualified governmental immunity from liability unless some recognized exception dissolves that immunity. See Tryon v. North Branford, 58 Conn.App. 702, 708, 755 A.2d 317 (2000).
In Skrobacz v. Sweeney, 49 Conn.Sup. 15, 32, Judge White wrote:
"The Superior Court has consistently held that acts or omissions of police officers in the exercise of their duties are discretionary in nature." Peters v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV-95 0147192S (January 2, 2001) ( 28 Conn. L. Rptr. 671, 674) (D'Andrea, J.); Shaham v. Wheeler, Superior Court, judicial district of Danbury, Docket No. 321879 (March 12, 1998) (Nadeau, J.); Iulo v. Milford, Superior Court, judicial district of Ansonia-Milford at Milford, Docket No. CV-90 031055S (December 21, 1990) ( 3 Conn. L. Rptr. 66) (Fuller, J.). The Superior Court has also determined that "[t]he investigation of crimes and the decisions to make arrests for them is clearly a discretionary rather than a ministerial function." Gonzalez v. Bridgeport, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV-88 253464 (June 4, 1993) (Fuller, J.) [ 9 Conn. L. Rptr. 202].
Similarly, in Castle Rock v. Gonzales, 545 U.S. 748 (2005), the United States Supreme Court considered, inter alia, whether a Colorado statute which stated that police "shall arrest (when there is probable cause)" and "shall enforce (a valid restraining order)" did not entirely eliminate the discretion of police officers engaged in law enforcement:
We do not believe that these provisions of Colorado law truly made enforcement of restraining orders mandatory. A well established tradition of police discretion has long co-existed with apparently mandatory arrest statutes.
In each and every state there are long-standing statutes that, by their terms, seem to preclude nonenforcement by the police . . . However, for a number of reasons, including their legislative history, insufficient resources, and sheer physical impossibility, it has been recognized that such statutes cannot be interpreted literally . . . [T]hey clearly do not mean that a police officer may not lawfully decline to . . . make an arrest. As to third parties in these states, the full-enforcement statutes simply have no effect, and their significance is further diminished. 1 ABA Standards for Criminal Justice 1-4.5, commentary, pp. 1-124 to 1-125 (2d ed. 1980) (footnotes omitted).
The deep-rooted nature of law-enforcement discretion, even in the presence of seemingly mandatory legislative commands, is illustrated by Chicago v. Morales, 527 U.S. 41 (1999), which involved an ordinance that said a police officer "shall order" persons to disperse in certain circumstances, id., at 47, n. 2. This Court rejected out of hand the possibility that "the mandatory language of the ordinance . . . afford[ed] the police no discretion." Id., at 62, n. 32. It is, the Court proclaimed, simply "common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances." Id., (emphasis added).
Castle Rock, supra, 760-61.
It must be assumed, for the purpose of the summary judgment motion, that Lasalle was in fact incapacitated, because of the opinion of Dr. Milzoff presented by the plaintiffs. The on-the-scene judgment of incapacitation nonetheless involves the exercise of judgment: the standard presumably cannot be objectively measured by an officer at the scene. Even if an officer has no discretion whether to take a person he determines to be incapacitated into protective custody — a perhaps doubtful proposition in itself under authority such as Castle Rock — an officer still must exercise judgment in reaching the determination that the person in fact is incapacitated. An officer does not necessarily act at his peril when trying in good faith, though perhaps mistakenly, to decide what to do. See also Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179-80 (1988).
Were the issue one of negligence rather than immunity, there likely would be a genuine issue of fact. The plaintiffs produced evidence tending to show actual incapacity, and if Lasalle were in fact incapacitated, the trier of fact presumably could reasonably draw an inference that Bickford knew or should have known of such incapacity.
The plaintiffs have argued that because a Terry stop may have been permissible and some form of detention, at least temporary, and request for identification may have been justified; see State v. Ortiz, 47 Conn.App. 333, 337-39 (1997); the extension of the stop in this case was required. Ortiz holds that in various circumstances some intrusion is constitutionally permissible, not necessarily mandated.
Bickford's activity was discretionary, then, so the next consideration is whether an exception to governmental immunity exists. The only exception suggested is that, in the circumstances, the officer's failure to act was likely to subject an identifiable person to imminent harm. See Shore v. Stonington, 187 Conn. 147, 153 (1982); Burns v. Board of Education, 228 Conn. 640, 646-48 (1994) (in addition to the usual formulation, considerations include the imminency of potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim); Evon v. Andrews, 211 Conn. 501 (1989); Florence v. Plainfield, supra.
Applying the standard to the facts of this case yields only one result. Even if we assume that Lasalle was severely intoxicated and that he had been engaged in some sort of "threatening or harassing" behavior, there is nothing to indicate that Bressert was an identifiable victim or that harm of the general nature which actually happened — murder or serious assault — was likely to happen. In hindsight, it is true, it tragically all falls together. But at the time, there was nothing to indicate to Bickford, for example, that Lasalle was en route to assault Bressert, or that Lasalle's intent as perceived might escalate from at most petty annoyance — Werber had indicated that he didn't know if there would be any trouble — to intent to kill. Compare, e.g., Florence, Shore, Durrant v. Board of Education (parents picking up children from school not class of identifiable victims) and Prescott v. Meriden, 273 Conn. 759 (2005) (parents at football game not class of identifiable victims).
Recovery against Bickford is barred by governmental immunity, and summary judgment shall enter in his favor.
The remainder of the claims may be addressed much more simply. The third count has been brought against the city pursuant to General Statutes § 52-557n. The allegations mirror those of the first count and add allegations regarding failure to train and to supervise. The evidence set forth regarding failure to train and to supervise includes Bickford's deposition testimony, in which he mentioned standards such as whether Lasalle presented a danger to himself or others. From this, the plaintiffs infer that the city did not adequately train and supervise Bickford as to the appropriate standards to apply when one finds a person incapacitated by alcohol. Perhaps in response, the defendants presented rather generalized evidence regarding the training Bickford did receive.
Even if the evidence might support a finding of negligence as to failure to train, the city also enjoys a form of governmental immunity. Pursuant to General Statutes § 52-557n(a)(2)(B), the city shall not be liable for "negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." There is little point in repeating the analysis regarding the exercise of discretion and the "imminent harm likely to occur to identifiable person" exception. See, e.g., Martel v. Metropolitan District Commission, 275 Conn. 38, 48 (2005); Gordon, supra. Summary judgment shall enter in favor of the city as to the third count.
The fifth count alleges indemnification pursuant to General Statutes §§ 7-101a and 7-465. Because judgment shall enter in favor of the employee, there is nothing to indemnify, and judgment shall enter in favor of the city as to the fifth count.
The seventh count alleges a violation of Bressert's constitutionally protected rights pursuant to the fifth and fourteenth amendments to the United States Constitution and brings the action pursuant to 42 U.S.C. § 1983. The court does not entirely understand the reasoning behind this count. It is clear, from the prior discussion, that Bickford did not violate Bressert's rights to substantive or procedural due process under the fifth amendment, applicable to the states through the fourteenth amendment. DeShaney v. Winnebago County, 489 U.S. 189 (1989) (substantive due process); Castle Rock v. Gonzales, 545 U.S. 748 (2005) (procedural due process). So far as equal protection is concerned, there is no allegation of purposeful discrimination or class-based animus. See Valdez v. City of East Hartford, 26 F.Sup.2d 376, 383-84 (D.Conn. 1998). It is hard to see how there could be a knowing disregard of an excessive risk to Bressert; thus deliberately indifferent conduct is hard to discern. The court's uncertainty as to the precise nature of the constitutional claims is augmented by the plaintiffs' not having briefed them, and they may well be deemed abandoned.
At oral argument the plaintiffs suggested that there was deliberate indifference to the rights of poor people, who may tend to be in rooming houses. There was no analysis of this claim, and the court is somewhat perplexed as to the precise reasoning.
Even if there should be a prima facie showing, defendants are entitled to qualified immunity in defense of constitutional claims. In Skrobacz v. Sweeney, supra, 35-37, Judge White addressed an analogous situation:
To state a cause of action under § 1983, a plaintiff must allege that a deprivation of federal rights has occurred under color of any statute, ordinance, regulation, custom or usage. (Citation omitted.) Tedesco v. Stamford, 215 Conn. 450, 456, 576 A.2d 1273 (1990), on remand, 24 Conn.App. 377, 588 A.2d 656 (1991), rev'd on other grounds, 222 Conn. 233, 610 A.2d 574 (1992). Police officers are entitled to qualified immunity from civil actions arising from § 1983 claims for discretionary actions . . . The defense of qualified immunity shields government officials from civil liability if the official's conduct did not violate constitutional rights that were clearly established at the pertinent time or if it was objectively reasonable for the official to believe that the conduct did not violate such rights . . . As a general rule, police officers are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights. (Citations omitted; internal quotation marks omitted.) Crone v. Connelly, 74 Conn.App. 788, 798-99, 813 A.2d 1084 (2003), aff'd, 267 Conn. 581, 840 A.2d 552 (2004).
Plaintiffs may not unwrap a public officer's cloak of immunity from suit simply by alleging even meritorious factual disputes relating to probable cause, when those controversies are nevertheless not material to the ultimate resolution of the immunity issue. (Internal quotation marks omitted.) Ham v. Greene, 248 Conn. 508, 520-21, 729 A.2d 740, cert. denied, 528 U.S. 929, 120 S.Ct. 326, 145 L.Ed.2d 254 (1999). The qualified immunity defense is intended to strike a fair balance between (1) the need to provide a realistic avenue for vindication of constitutional guarantees, and (2) the need to protect public officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority. (Internal quotation marks omitted.) Lee v. Sandberg, 136 F.3d 94, 100 (2d Cir. 1997).
[The defendants] are entitled to qualified immunity if it was objectively reasonable for them to believe that their actions did not violate the constitutional rights of the plaintiff. In determining whether an officer's actions were objectively reasonable, "[t]he court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be construed after the fact." (Internal quotation marks omitted.) Id., 104. Nevertheless, "[a] police officer has acted in an objectively unreasonable manner when no officer of reasonable competence could have made the same choice in similar circumstances." (Internal quotation marks omitted.) Id., 102.
It is clear, from the facts presented in connection with this motion, that Bickford's conduct did not violate Bressert's clearly established constitutional rights and that it was objectively reasonable for Bickford to believe that he was not violating Bressert's constitutional rights. Because the constitutional claim has not been briefed, and because it would appear, based on the minimal analysis available, that qualified immunity would be operative in any event, summary judgment shall enter in favor of Bickford as to the seventh count.
Indeed, Bickford did not know who Bressert was.
Summary judgment shall enter in favor of the city for the same reason. The facts show no deprivation of a constitutionally protected right by municipal policy, and the claim has not been briefed.
The odd-numbered counts alleged a loss of parental consortium arising from each immediately preceding count. Summary judgment shall enter in favor of the defendants as to each odd-numbered count, because (1) judgment has entered in favor of the defendant on the count from which the consortium claim is derived; and (2) this court believes that Mendillo v. Board of Education, 246 Conn. 456 (1998) bars recovery for loss of parental consortium.
Judgment shall enter in favor of the defendants on all counts.
The defendants have also argued that proximate cause is lacking, on the ground, generally, that Lasalle may have ended up committing the murder even if he had been detained. I do not reach this ground and need not decide it. It appears to the court, however, that if the "imminent harm to identifiable person" exception were to be satisfied, then the absence of proximate cause would be correspondingly difficult to prove.