Opinion
No. X07 CV02 0078935S
May 3, 2004
MEMORANDUM OF DECISION
The defendants, Officer Daniel Moore, Officer Darrin Tranter, Officer Steven Ciarleglio, Officer Kevin Slater, Sergeant Paul Jabs, Lieutenant Roger Barker, Chief of Police Rudolph Rossmy, all of whom are members of the Vernon Police Department, and the town of Vernon move for summary judgment with respect to all counts of the revised complaint filed by the plaintiff Dorothy Alexander in her capacity as administratrix for the estate of her sister Sheila Caldwell, and as next friend of Shiana and Ernest Alexander, the children of the decedent, Sheila Caldwell.
Summary judgment shall be granted if the pleadings and documentary proof submitted demonstrate that no genuine dispute as to material fact exists and that the movant is entitled to judgment as a matter of law. Practice Book § 17-49.
The essence of the revised complaint is that the failure of Vernon police officers to arrest Arman Caldwell, the estranged husband of Sheila Caldwell, causally contributed to her murder by his hand The eighty-four counts of the revised complaint set forth various specifications of negligence, direct constitutional common-law claims, recklessness, and indemnification claims under General Statutes § 7-465.
A review of the pleadings and documents submitted discloses the following undisputed or unrebutted facts. Sometime during the afternoon of February 12, 2000, Sheila Caldwell phoned the Vernon Police Department requesting police protection from her husband while she retrieved belongings from her residence in Vernon. Officers Moore and Tranter arrived at the home and found both Sheila and Arman Caldwell present. Sheila informed the officers that during an argument on the previous day, February 11, 2000, Arman had slapped her face, struck her with a belt, and physically restrained her from contacting the police. She complained of bruises to her face and legs. Sheila refused to give a written statement and indicated that she did not want her husband to be arrested.
Arman informed the officers that, to the contrary, Sheila had initiated the physical altercation on February 11, 2000, by punching and scratching him and that he restrained her only to curtail her attack upon him. The officers observed scratch marks on his chest. Arman also declined to give a written statement and did not want his wife arrested for the purported assault upon him the previous day.
While at the scene, Officer Moore requested and received a records check concerning the Caldwells and learned that neither spouse was wanted nor had domestic abuse protective or restraining orders issued against them. Officer Moore gave both oral and written domestic violence assistance information to the Caldwells. He also informed them that he would consult with the state's attorney's office regarding the potential procurement of arrest warrants for one or both of them.
Sheila left the residence without incident. However, during the evening of February 12, 2000, she again phoned the Vernon police to report that her husband had phoned her and revealed that he had destroyed the contents of their home. Sheila stated that she was returning to the residence to survey the damage, and she wanted the police to join her there. The police dispatcher warned Sheila to go to police headquarters first, so that officers might accompany her to the home. Instead, she went directly to the residence with some friends and family. A member of her family later called the Vernon police station from the home and requested assistance.
Officers Ciarleglio and Slater arrived and observed extensive damage at the home. Sheila repeated for these officers what had transpired on February 11, 2000. At that time, Sheila expressed her wish to have Arman arrested for the damage he wrought. She also informed the officers that her husband had told her that he had fled to Maryland The officers told her they would attempt to secure an arrest warrant for Arman.
On February 13, 2000, while Sheila was staying at her mother's home in East Hartford, she received harassing phone calls from her husband She notified the East Hartford Police Department of the calls. She also told the East Hartford police that she was unaware of her husband's location.
The next day, February 14, 2000, Arman Caldwell broke into his mother-in-law's house in East Hartford, fatally shot Sheila, and then himself.
I
In order to prevail against the defendants on any legal theory propounded in the revised complaint, the plaintiff must prove that the failure of Officers Moore and Tranter to arrest Arman Caldwell on February 12, 2000, proximately caused the shooting of Sheila Caldwell two days later. Ward v. Greene, 267 Conn. 539, 546 (2004). After these officers left the Caldwell home on the afternoon of February 12, 2000, the whereabouts of Arman Caldwell were unknown to Sheila and the Vernon police until her murder on February 14, 2000. Thus, it can only be the inaction during the visit by these officers on the afternoon of February 12, 2000, which could causally form the basis for any liability under any legal theory in this case.
The issue then arises as to the existence of a genuine factual controversy regarding whether the failure of these officers to arrest Arman Caldwell in Vernon on February 12, 2000 was a substantial factor in bringing about the fatal shooting on February 14, 2000, in East Hartford. Ordinarily, the existence or absence of proximate cause is a question of fact. Nelson v. Steffens, 170 Conn. 356, 363 (1976). A court cannot grant summary judgment merely because, in its assessments, the plaintiff has a weak case. Vetre v. Keene, 181 Conn. 136, 140 (1980). But where the court determines that no reasonable and logical trier of fact could arrive at any other conclusion except causation is absent, summary judgment may be granted. Buska v. DeFilippo, 162 Conn. 462, 466 (1972). This is especially significant where, as in this case, the defendants are municipal employees because C.G.S. § 52-557n(b)(6) codifies the common-law requirement of proximate causation before liability can attach. Elliott v. Waterbury, 245 Conn. 385, 402 (1998). The court concludes that the undisputed circumstances of this case present just such an instance.
The materials submitted must contain some probative evidence connecting the alleged wrongdoing, i.e. the failure of the officers to arrest Arman Caldwell on February 12, 2000, with the shooting two days later in order to remove the issue of causation from the shadows of speculation. Grady v. Tulin, 170 Conn. 443, 450 (1976). While causation may be inferred from circumstances, the plaintiff is obligated to proffer some evidence supporting a logical basis for drawing such an inference. Wallace v. Waterhouse, 86 Conn. 546, 548 (1913). The causal connection between the wrongful act and the injury must be based on more than conjecture or surmise. Weigold v. Patel, 81 Conn. App. 347, 355 (2004).
The present matter is dissimilar to the scenario before our Supreme Court in Sestito v. Groton, 178 Conn. 520 (1979). In that case, a police officer purportedly ignored a fistfight in his presence and failed to intervene to quell an ongoing melee. Id., 522. While the officer drove away from the scene of the fracas, one of the participants was shot and killed. Id. These facts, if proven, could logically establish the nexus between the officer's inaction and the homicide. It would be reasonable to conclude that police intervention under those facts would have interrupted the riot and thwarted the shooting which immediately ensued.
The undisputed facts of the present litigation are very different. Here, the Vernon police officers were called to the home a day after the disturbance and physical struggle occurred. Implicit in the plaintiff's argument regarding causation is the premise that if Arman Caldwell was arrested on February 12, 2000, he would have been unable to commit the murder two days later because he would have been incarcerated. There is neither factual nor logical support for this supposition.
General Statutes § 54-1g does require that one arrested and charged with a family violence crime be presented in court on the next court day after the arrest, but there is no requirement under our law that the person arrested be held in custody. The actualization of the plaintiff's supposition rests on the uncertainty of such factors as the setting of bond and Arman Caldwell's inability or unwillingness to post bail sufficient to secure his release if the posting was required. Therefore, any potential protection afforded to Sheila Caldwell by Arman's arrest depended on the right combination of intervening acts of government officials and is, thereby, too remote and speculative to establish proximate causation. Ward v. Greene, supra, 556.
The court concludes, as a matter of law, that the plaintiff cannot prevail because no probative evidence exists to support a logical and reasonable inference that the failure to arrest Arman Caldwell on February 12, 2000, proximately caused her murder in another town on February 14, 2000.
II
Alternatively, the movants are entitled to summary judgment on other grounds as well.
A. Direct Constitutional Causes of Action
In Counts 1, 5, 9, 13, 17, 21, 25, 29, 33, 37, 41, 45, 49, and 53, the plaintiff alleges, in substance, that the failure to arrest Arman Caldwell violated the decedent's and minor children's state constitutional rights as embodied in Article first, § 1 and § 8 of the Connecticut Constitution. Article first, § 1 affords equal stature under the law to citizens of the state, and Article first, § 8 prohibits the deprivation of life without due process.
An analysis of the evolution of common-law constitutional claims is necessary at this point. The source of judicially created private causes of action seeking damage for constitutional violations is the United States Supreme Court case of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In that case the United States Supreme Court permitted a civil damages suit against federal officers for certain violations of the federal constitution for which no other remedy existed. Such common-law actions seeking monetary damages for constitutional infringements have come to be called Bivens actions.
In Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314 (1993), our Supreme Court rejected adoption of Bivens liability in Connecticut where the plaintiff contended that state substantive and procedural due process rights were derogated by the action of local zoning officials. While the Court in that case found no cognizable cause of action, it employed the analysis and criteria set forth in the Bivens case in arriving at that conclusion. In using this approach, our Supreme Court implicitly suggested that, in an appropriate matter which satisfied the Bivens criteria, such a cause of action might be viable.
Five years later, our Supreme Court found a case where the facts and constitutional violations claimed fulfilled the Bivens requirements, and the Court created a common-law cause of action. Binette v. Sabo, 244 Conn. 23 (1998). However, our Supreme Court has been constant in stating that in deciding whether a Bivens action ought to be permitted for a given state constitutional violation, the Bivens case and its federal progeny would guide Connecticut courts. Kelley Property Development, Inc. v. Lebanon, supra, 338; ATC Partnership v. Windham, 251 Conn. 597, 613 (1999).
Not every injury caused by the misconduct of a government employee or official creates a direct common-law constitutional cause of action. Kelley Property Development, Inc. v. Lebanon, supra, 333; Martin v. Brady, 64 Conn. App. 433, 439 (2001), affirmed, 216 Conn. 372 (2002). Fundamental to finding such a direct action is that the alleged misconduct violated some constitutional provisions. As a matter of law, the court holds that no such constitutional transgression occurred in this case.
The state constitutional provisions cited by the plaintiff clearly prohibit police officers from wrongfully assaulting or killing citizens. Binette v. Sabo, 244 Conn. 23, 49 (1998). However, there is no constitutional provision which addresses the assaulting or killing of one private citizen by another private citizen, as unfortunately happened in the present case. Nor is there any state constitutional right obligating towns to prevent a private citizen from killing another citizen. Indeed, there is no state constitutional requirement that a town even have a police force.
In other words, a direct constitutional common-law claim may lie, if the Bivens criteria are met, against agents of the government who affirmatively act in excess of their lawful authority and injure someone, but no such action is created against government agents who negligently fail to take an action which might have been permitted within their authority. The wrongful failure to engage in remedial action, standing alone, fails to convert the misdeeds of private citizens into an affirmative constitutional deprivation by a police officer. Melanson v. West Hartford, 61 Conn. App. 683, 689 (2001), cert. denied 256 Conn. 904 (2001).
Unless the defendant officers in this case shared the intent of Arman Caldwell to harm Sheila Caldwell, no direct state constitutional cause of action exists for the failure, even if negligent, to arrest him on February 12, 2000. See Sacramento v. Lewis, 523 U.S. 833 (1998). No evidence that any of the defendants harbored such malice is present in this case.
B. Negligence Claims 1.
Counts 18, 22, and 26 assert claims of negligent training and supervision against Sergeant Jabs, Lieutenant Barker, and Chief Rossmy, respectively. As municipal employees these defendants have qualified, governmental immunity which shields them from liability for the negligent performance of discretionary acts within the scope of their employment. Tryon v. North Branford, 58 Conn. App. 702, 708 (2000). Whether such conduct is discretionary or ministerial is usually a question of law. Id.
The supervision of a police force obviously involves the exercise of wide discretion. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 179-80 (1988). While General Statutes § 46b-38b(e) obligates law enforcement agencies to develop specific operational guidelines for arrest policies in family violence matters, the details of such guidelines, policies, and implementation are left to the supervisors of each agency to adopt. Consistent with the aims and general dictates of the family violence prevention and response statutes § 46b-38a through § 46b-38h, the amount, frequency, and specific subject matter of that training and supervision remains within the discretion of the superior officers of the Vernon Police Department.
There are exceptions to the qualified immunity of municipal agents engaged in discretionary acts, however. The only exception colorably applicable to the circumstances of the present case is one which imposes liability for negligent, discretionary conduct which subjects an identifiable person, or narrowly-defined class of persons, to imminent harm. Purzycki v. Fairfield, 244 Conn. 101, 108 (1998). In order to satisfy the "imminent harm" prong of this exception to governmental immunity, the risk must be temporary and confined in space. Id., 110.
"Imminent harm" excludes dangers which might occur, if at all, at some unspecified time in the future. Evon v. Andrews, 211 Conn. 501, 508 (1989). In that case, the peril arose from persistent fire and building code violations which went uninspected and unabated. Id. In Doe v. Board of Education, 76 Conn. App. 296 (2003), the risk posed by unsupervised and accessible, vacant classrooms was ruled, as a matter of law, to be too lengthy in duration to meet the imminent harm component of this exception to qualified, governmental immunity. Id., 305-06.
In addition, the class of persons exposed to the apparent risk in question must be narrowly defined. Burns v. Board of Education, 228 Conn. 640, 648 (1994). A risk which endangers the public in general fails to fulfill the identifiability aspect of this exception. Shore v. Stonington, 187 Conn. 147, 157 (1982).
Based on these principles, the court holds, as a matter of law, that inadequate training or general oversight of a police force with respect to response to domestic violence, as opposed to response to a specific incident, is neither imminent nor poses an apparent risk to a narrowly defined class of persons. Therefore, the imminent harm to identifiable persons exception to qualified, governmental immunity is unavailable, and these superior officers remain cloaked with that immunity.
2.
Counts 2, 6, 10, 14, 18, 22, 26, 30, 34, 38, 42, 46, 50, and 54 allege that the investigating officers, Moore, Tranter, Ciarleglio, and Slater, were negligent in failing to apprehend Arman Caldwell.
Under § 46b-38b(a), a police officer who receives speedy information which engenders probable cause to believe that an individual has committed a family violence crime, as defined by § 46b-38a, must arrest the individual and charge that person with the appropriate crime. The plaintiff contends that this statutory scheme divested these investigating officers of any discretion not to arrest Arman Caldwell on February 12, 2000. The court rejects this contention.
First, the investigating officers had to assess whether the information they received from Sheila Caldwell on February 12, 2000, relating to the occurrences on February 11, 2000, was speedy information. The plaintiff can point to no appellate level decision which has recognized day-old information as speedy information.
Second, the investigating officers had to determine whether probable cause existed to believe that Arman Caldwell committed a family violence crime. It is undisputed that these officers were confronted with conflicting versions of events and ambiguous physical evidence regarding the altercation of February 11, 2000. Any determination of probable cause necessarily demands an exercise of judgment and discretion.
Finally, as to discretion, § 46b-38b(b) states, in part, that "[w]here complaints are received from two or more opposing parties, the officer shall evaluate each complaint separately to determine whether he should seek a warrant for an arrest." (Emphasis added.) This subsection invests police officers with the discretion to secure an arrest warrant rather than effect an on-site, warrantless arrest where, as in the present matter, each spouse accuses the other of culpability. Although the court need not decide the point, it is even arguable that § 46b-38b(b) mandates seeking an arrest by warrant rather than warrantless arrests in such situations.
Clearly, the investigating officers were engaged in a discretionary function when contemplating procurement of an arrest warrant rather than immediately taking Arman Caldwell into custody on February 12, 2000. As set forth in the previous subsection of this memorandum, these investigating officers also possess qualified, governmental immunity unless the imminent harm to identifiable persons exception applies.
Unquestionably, Sheila Caldwell was an identifiable person within the purview of this exception on February 12, 2000. The dispositive issue is whether, at the time of the officers' decision not to make a warrantless arrest of Arman Caldwell, it was apparent that such inaction would place Sheila Caldwell at risk of imminent harm.
There is no claim that Arman engaged in threatening behavior during the police investigation of February 12, 2000 at the Caldwell residence. As noted above, Sheila complained about the events of the previous day and that she was afraid Arman would respond violently in the absence of police presence as she prepared to leave that residence that afternoon. It is undisputed that Sheila gathered her belongings and left the residence without further incident. No evidence was submitted in conjunction with this motion from which a reasonable trier of fact could logically infer that, two days later, Arman would travel to his mother-in-law's home in another town and murder his wife unless he were immediately arrested on February 12, 2000.
As discussed above, in order to invoke the imminent harm to an identifiable person exception, the apparent danger must be temporally and spatially limited. Here, the claimed risk can only be that, at some unspecified date after Sheila Caldwell departed her residence, her husband would track her down and kill her. This is a risk which might be realized, if at all, at some future unknown time and place and, therefore, cannot give rise to the imminent harm to an identifiable person exemption to qualified, governmental immunity. Evon v. Andrews, supra.
Thus, the investigating officers are immune from liability for any negligence in failing to make a warrantless arrest of Arman Caldwell on February 12, 2000.
C. Recklessness Claims
Counts 57, 59, 61, 63, 65, 67, 71, 73, 75, 77, 79, 81 and 83 allege that the failure to arrest Arman Caldwell and the failure to train and supervise the Vernon police force regarding proper domestic violence response were reckless and wanton acts. These allegations parallel those set forth in the negligence counts.
Reckless and wanton behavior goes well beyond mere negligence and exceeds even gross negligence. Martin v. Brady, 261 Conn. 372, 379 (2002). It is a state of consciousness of the consequences of one's dangerous acts. Id. It is more than the failure to take reasonable precautions to avoid injuring others. Id. It is conduct which is highly unreasonable and involves an extreme departure from ordinary care in a situation where high danger is apparent. Id.
The reckless actor is one who recognizes that his or her behavior creates a substantial risk of harm to others. Recklessness connotes a conscious course of action that is fraught with peril. The allegations of inaction and inadequate supervision in this matter fail to reach the level of reckless or wanton conduct. No evidence was adduced to support the conclusion that any member of the Vernon Police Department disregarded obvious danger and consciously left Sheila Caldwell in a situation where her husband was likely to murder her. It must be kept in mind that the decedent left her residence on February 12, 2000 with the safety of police protection and was fatally attacked two days later at a different residence in a different town.
As a matter of law, the defendants are entitled to summary judgment as to the recklessness counts.
D. Indemnification Claims
The remaining counts allege municipal liability under the indemnification statute, General Statutes § 7-465. Because that indemnification liability is contingent on the direct liability of the other defendants in whose favor the court has determined summary judgment must be granted, these counts must also fail.
The motion for summary judgment is granted as to all counts and all defendants.
Sferrazza, J.