US Magistrate dismisses suit against City of Lowell for “deliberate indifference to the rights of its citizens”

The entire decision can be found at McElroy v. City of Lowell.

At about 10 a.m. on April 12, 2008, plaintiff and a friend, James Earle (“Earle”), were driving in the vicinity of 50 North Street in the City on their way to New Hampshire. While en route, the doors of a car, which was parked on the side of the road, opened and caused plaintiff to nearly collide with the vehicle. Plaintiff saw the driver of the other car (“the driver”) through his rearview mirror and, noticing that the driver appeared upset, pulled over and exited his car to see if he had struck the other vehicle.

The driver then rushed toward plaintiff and punched him multiple times. At this point, Earle exited the vehicle and stopped the assault. Plaintiff then fled while the driver chased after him wielding a hammer and crowbar.

Plaintiff proceeded to drive around the block and telephoned the police. He then circled back to the scene of the altercation. Upon arriving back at the scene, he saw that a police cruiser had already arrived and that Earle was being “pushed up” against a truck. Plaintiff next tried to tell the police officers what had occurred, but was told to “shut the f*** up,” before being placed under arrest.

During the course of his arrest, an officer grabbed plaintiff by the shoulders, pushed him against a fence and “squeezed” him by the neck. After releasing the hold on plaintiff’s neck, an officer began to kick plaintiff’s calves, spreading his legs apart until he fell. Once plaintiff was on the ground, an officer placed his knee on the back of plaintiff’s neck. Plaintiff suffered a herniated disk and a torn medial collateral ligament (“MCL”) during the altercation.

Plaintiff alleges that a number of officers of the Lowell Police Department unlawfully arrested him and used excessive force. Pursuant to 42 U.S.C. § 1983 (“section 1983”), plaintiff brings an action for the violation of his civil rights against the officers in their individual capacity and against the City.

Plaintiff filed a three count complaint on December 26, 2009. Counts I and III are directed against the individual police officers pursuant to section 1983 and Massachusetts General Law chapter 12, section 11I, respectively. Count II seeks relief from the City pursuant to section 1983; alleging that the City has, as demonstrated by the actions of the officers described infra, “a policy of deliberate indifference to the rights of its citizens,” and, by a failing to train, supervise, and discipline the officers, has adopted a “custom and policy in which constitutional rights are violated by excessive force and unlawful seizures.”

It is well established that a municipality is not liable for the tortious actions of its employees simply by virtue of the employment relationship. Instead, to establish municipal liability, “a plaintiff must show that a policy or custom of the city led to the constitutional deprivation alleged.” This requires that “both the existence of a policy or custom and a causal link between that policy and the constitutional harm” must be proven in order to impute liability to a municipality. The municipal policy may either be (1) an official policy articulated or adopted by a decision-maker; or (2) an unofficial custom as evidenced by widespread action or inaction.

The complaint does not point to an official policy that caused plaintiff’s injuries. Rather, it generally states that the City has a custom of “deliberate indifference to the rights of citizens” because it has an inadequate training and supervision policy and because it fails to discipline officers involved in instances of constitutional violations. These statements, however, are merely conclusory and need not be credited as true for purposes of this motion. Therefore, plaintiff’s claim can only survive this motion if the existence of a municipal policy can be inferred from the facts surrounding the single incident of alleged officer misconduct described in the complaint.

While the existence of a municipal custom may be evidenced by the repetition of unlawful acts by officers, a single instance of police misconduct in the field, standing alone, is insufficient to establish the endorsement of an informal policy or custom by the City. Therefore, the single incident proffered in the complaint, without more, is insufficient to survive this motion to dismiss.

Without citing authority, plaintiff argues in his reply brief that the presence of multiple officers on scene is a sufficient fact from which the existence of a municipal custom can be inferred and liability thereby imposed against the City. Plaintiff is correct that the presence of a large contingent of officers working in concert can provide evidence of municipal policy even when the conduct relates to a single incident.

In this case, however, plaintiff fails to provide facts showing sufficient involvement of more than one officer that would justify holding the City liable. Plaintiff does state that there were multiple officers on scene and that they failed to intervene. Plaintiff, however, fails to provide facts that would demonstrate that officers engaged in a concerted action with the aim of violating his civil rights that is in any way similar to the conduct at issue in Kibbe, Bordanaro or Webster. The mere fact that other officers were in the vicinity, without facts showing active participation in the misconduct, is insufficient to state a plausible claim of municipal liability.

Plaintiff additionally argues that it is not the concerted action of multiple officers that justifies imputing liability to the City but rather the fact that so many officers failed to intervene while witnessing the alleged instance of excessive force and unlawful arrest. Plaintiff thus suggests that the inaction of the officers in the current case is analogous to the concert of action by officers found in the other cases and, therefore, the existence of a custom should similarly be inferred and liability thereby imputed to the City.

Again, and unlike the instant case, the officers’ conduct in Kibbe, Bordanaro and Webster was so egregious that even a layperson would have been aware that it violated the victims’ civil and constitutional rights. In this case, however, the arresting officer’s conduct is not so obviously improper. Even if later found to be unconstitutional, it is not such a flagrant violation that it would allow an inference of improper custom simply because witnessing officers did not intervene on plaintiff’s behalf.

Even if plaintiff provided facts sufficient to overcome dismissal with regard to the existence of a policy, plaintiff must still demonstrate the requisite causal connection between that policy and his injury. Where, as here, “the policy itself does not violate federal law,” but is instead a custom that “gives rise to subsequent conduct of subordinate employees that violates plaintiff’s rights,” significantly more is needed to show sufficient causal connection between the municipal conduct and “the deprivation of federally-protected rights.”

To prove causation, plaintiff must show that the City’s conduct amounted to a “deliberate indifference” to the constitutional rights of those persons that police would encounter.

Essentially, what is needed to prove the causal element under the deliberate indifference standard is a showing that a municipality had: (1) knowledge of an obvious risk to the constitutional rights of persons police would come in contact with; and (2) that there was a conscious failure to act despite the obvious risk. A pattern of constitutional violations coupled with a failure on the part of a municipality to properly respond (either with appropriate training and supervision, or through disciplinary action) could permit the inference of the requisite knowledge and corresponding inaction needed to satisfy the deliberate indifference element.

Plaintiff, however, points to no pattern of constitutional violations or to any other fact that would allow for the inference that the City had the requisite knowledge of an obvious risk to the constitutional rights of its citizens. Furthermore, even if knowledge of an obvious risk could be inferred, plaintiff fails to point to any fact (other than the bald assertion that the City failed to train, supervise, and discipline officers) evidencing that the City disregarded that risk and therefore caused his injury. “[C]onsiderably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the `policy’ and the constitutional deprivation.” While plaintiff states the grounds by which a municipality may theoretically be held liable pursuant to section 1983, he fails to provide even a modicum of fact that would make it plausible that the City would be held liable in this case.

For the foregoing reasons, the City’s motion to dismiss Count II is ALLOWED. In the event discovery uncovers sufficient facts to establish municipal liability or plaintiff currently possesses such facts, plaintiff may seek leave to amend the complaint.


About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
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