United States Court of Appeals For the First Circuit
No. 21-1278
JUANA BAEZ, individually and on behalf of all others similarly situated; CRUZ SANABRIA, individually and on behalf of all others similarly situated; ROGELIO RODAS, individually and on behalf of all others similarly situated; DEMETRIUS OVIEDO, individually and on behalf of all others similarly situated; JOSE ALBERTO NUNEZ-GUERRERO, individually and on behalf of all others similarly situated,
Plaintiffs, Appellants,
v.
TOWN OF BROOKLINE, MASSACHUSETTS BROOKLINE POLICE COMMISSIONERS,
Defendant, Appellee,
NEIL WISHINSKY, in his individual and official capacities; NANCY DALY, in her individual and official capacities; BEN FRANCO, in his individual and official capacities; NANCY HELLER, in her individual and official capacities; BERNARD GREENE, in his individual and official capacities,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Kayatta, Lipez, and Gelpí, Circuit Judges.
Brooks A. Ames, with whom Brookline Justice League was on brief, for appellants. Joseph A. Padolsky, with whom Michael Downey, Douglas I. Louison, and Louison, Costello, Condon & Pfaff, LLP were on brief, for appellee.
August 11, 2022 KAYATTA, Circuit Judge. The five named plaintiffs in
this case argue that between 2014 and 2015, the Brookline police
violated plaintiffs' rights under the Fourteenth Amendment's Equal
Protection Clause by treating them differently because they are
Hispanic. Rather than suing any of the individual officers,
plaintiffs pursued claims against the Town of Brookline and its
Selectmen (who are also the Town's Police Commissioners).
Plaintiffs say that the Town caused their allegedly
unconstitutional mistreatment by its "deliberate indifference" to
complaints of racial discrimination by Brookline police. In
granting summary judgment in favor of all defendants, the district
court found that the record would not allow any reasonable jury to
conclude that the Town of Brookline was deliberately indifferent
to complaints of unlawful discrimination by police officers. Baez
v. Town of Brookline, No. CV 17-10661, 2021 WL 1209743, at *3 (D.
Mass. Mar. 31, 2021).1 For the following reasons, we agree.
I.
We review the entry of summary judgment de novo. Alston
v. Town of Brookline, 997 F.3d 23, 35 (1st Cir. 2021). In so
doing, "we evaluate the facts of record in the light most
1 Because plaintiffs did not appeal the lower court's judgment regarding the individual defendants, the individual defendants are not parties to this appeal. Further, because no class was certified below, we use "plaintiffs" to mean only the named plaintiffs (the appellants before us).
- 3 - flattering to the nonmovant[s]" -- here, plaintiffs -- "and draw
all reasonable inferences in [their] favor." Id. Summary judgment
is warranted only if, after reviewing the record in the manner
just described, we determine "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." Id.
II.
We begin with a review of the applicable law. To prevail
in this action against a municipality under 42 U.S.C. § 1983,
plaintiffs must prove that they suffered a violation of a
constitutional right as a result of a "policy or custom" of the
Town of Brookline. Monell v. Dep't of Soc. Servs., 436 U.S. 658,
694 (1978). In plaintiffs' favor, we will assume without deciding
that a jury could reasonably find that Brookline police officers
violated plaintiffs' equal-protection rights. We train our
attention, instead, on whether the evidence would support a finding
that those (assumed) constitutional violations were the result of
an official policy or custom.
Not surprisingly, there is no evidence that the Town has
a formal or express policy instructing police officials to
discriminate based on race or ethnicity. But "[o]fficial municipal
policy" need not be so explicit -- it also includes, inter alia,
"the acts of [a government's] policymaking officials[] and
practices so persistent and widespread as to practically have the
- 4 - force of law." Connick v. Thompson, 563 U.S. 51, 60–61 (2011).
Put another way, a municipality can be held liable if an unlawful
"custom or practice" is "'so well settled and widespread that the
policymaking officials of the municipality can be said to have
either actual or constructive knowledge of it yet did nothing to
end the practice.'" Whitfield v. Meléndez-Rivera, 431 F.3d 1, 13
(1st Cir. 2005) (quoting Bordanaro v. McLeod, 871 F.2d 1151, 1156
(1st Cir. 1989)). Thus, "[i]n limited circumstances," a
municipality's decision not to act "may rise to the level of an
official government policy for purposes of § 1983." Connick, 563
U.S. at 61 (discussing "a local government's decision not to train
certain employees about their legal duty to avoid violating
citizens' rights").
Pointing to these principles, plaintiffs in this case
seek to establish liability by showing that they suffered
constitutional injury as "the direct result of poor . . .
supervision of" Brookline police officers, "stemming from
'deliberate indifference to the rights of persons with whom the
[police] come into contact.'" Jones v. City of Boston, 752 F.3d
38, 59 (1st Cir. 2014) (quoting Hayden v. Grayson, 134 F.3d 449,
456 (1st Cir. 1998)). "Deliberate indifference is a stringent
standard of fault, requiring proof that a municipal actor
disregarded a known or obvious consequence of his action."
Connick, 563 U.S. at 61 (cleaned up) (quoting Bd. of Comm'rs v.
- 5 - Brown, 520 U.S. 397, 410 (1997)). "A showing of simple or even
heightened negligence will not suffice." Brown, 520 U.S. at 407.
To make this required showing of deliberate
indifference, plaintiffs advance a single argument on appeal: "The
Town's failure to take meaningful action to independently
investigate racial discrimination complaints and impose
appropriate discipline on offending officers constitutes
deliberate indifference to racial discrimination." See Fiacco v.
City of Rensselaer, 783 F.2d 319, 331–32 (2d Cir. 1986) (inadequate
handling of complaints against police could permit a rational juror
to find "a policy of nonsupervision . . . that amounted to a
deliberate indifference"). Plaintiffs allege that by failing to
properly address complaints, the Town "turned a blind-eye" to "a
pattern of discriminatory behavior" and "tacitly encouraged"
discriminatory police conduct. Plaintiffs further argue that but
for the Town's deficient handling of racial discrimination
complaints, plaintiffs would not themselves have suffered
constitutional injury by Brookline police officers. Plaintiffs
focus in particular on the actions of the Police Commissioners,
who we will assume are policymaking officials for the purposes of
section 1983 liability.
Plaintiffs are correct that "deliberate indifference may
be inferred" if a municipality receives "repeated complaints of
civil rights violations . . . followed by no meaningful attempt on
- 6 - the part of the municipality to investigate or to forestall further
incidents." Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir.
1995); see also Harris v. City of Pagedale, 821 F.2d 499, 506 (8th
Cir. 1987) (finding deliberate indifference where "[c]ity
officials in positions of authority and responsibility were
notified of" sexual misconduct by police officers "on repeated
occasions" but "repeatedly failed to take any remedial action").
Taking nominal action will not shield a local government from
liability. See Beck v. City of Pittsburgh, 89 F.3d 966, 974 (3d
Cir. 1996) ("[W]e cannot look to the mere existence of superficial
grievance procedures as a guarantee that citizens' constitutional
liberties are secure."). Deliberate indifference can be
predicated on actions shown to be "meaningless or blatantly
inadequate." Reynolds v. Giuliani, 506 F.3d 183, 196 (2d Cir.
2007) (discussing deliberate indifference in the context of
supervisory liability). That said, responsive measures do not
necessarily establish deliberate indifference just because they
ultimately prove ineffective. See Doe ex rel. Doe v. Dallas Indep.
Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998) (explaining, in the
context of individual liability, that "[a]ctions and decisions by
officials that are merely inept, erroneous, ineffective, or
negligent do not amount to deliberate indifference").
- 7 - III.
Having explained the applicable law, we turn to
evaluating whether plaintiffs' evidence might suffice to establish
municipal liability under that law. More specifically, we look to
the Town's handling of relevant complaints (formal and otherwise)
during the years surrounding plaintiffs' interactions with
Brookline police to discern whether the Town's actions could
support a finding of deliberate indifference.
A.
Plaintiffs' own relevant interactions with Brookline
police occurred in 2014 and 2015.2 Those interactions led three
plaintiffs to file complaints against Brookline police officers.
The Police Department's procedures for handling such complaints
track their relevant origins to 2008, when the Town's Board of
Selectmen charged a committee with reviewing the Police
Department's then-existing complaint procedures and recommending
improvements. This review was prompted by a contentious incident
at Town Hall the previous year, which led to a complaint alleging
racial discrimination by Brookline police officers. The nine-
member review committee was chaired by Patrick J. King, a member
of the Massachusetts State Ethics Commission who had been a trial
attorney in the Civil Rights Division of the U.S. Department of
2 We confine our analysis to those interactions described in plaintiffs' opening brief as the basis for their claims on appeal.
- 8 - Justice before serving as a superior court judge and working in
alternative dispute resolution. The committee met eleven times in
as many months, holding two meetings for public comment. One
committee member wrote that "in over 30 years of community
involvement, [he] recall[ed] no committee more willing to hear
from the public." The committee also heard from experts, who
underscored the importance of using procedures to "compensate for
the reality" that "[i]n all police jurisdictions[,] the internal
dynamic leans in favor of the police." The committee ultimately
recommended various reforms, and the Town revised its complaint
procedures in response.
As best we can tell, the undated complaint procedures
included in the addendum to plaintiffs' opening brief were the
operative Police Department procedures at the time plaintiffs
submitted their complaints. Those procedures allow a person to
submit complaints in person, online, or by telephone --
anonymously, if desired. Complaints are ordinarily to be
investigated in the first instance by an Internal Affairs/Staff
Inspection Officer. The procedures outline the time frame in which
the investigator should commence work on a given complaint. They
require an investigator to "make reasonable attempts to interview"
witnesses, "assist[] both complainants and officers in identifying
and locating evidence to corroborate their factual assertions,"
and "maintain[] thorough records." Unless a witness provides a
- 9 - statement on her own, she should be asked to sign her statement or
a summary thereof. When complete, the investigator's report is to
be furnished to the complainant and the subject officer and
reviewed by the Chief of Police. The Chief is then to prepare her
own report (after further investigation, if she requests it) for
transmittal to the Selectmen, the complainant, and the subject
officer. A complainant can appeal for review by the Selectmen,
triggering a pre-hearing review by the Town Administrator.
Plaintiffs nevertheless complain that the Police
Department's procedures employ no mechanism for review by any
outside or independent person or tribunal. There are several
problems with this argument. First, plaintiffs cite no rule,
regulation, or case law indicating that a town is deliberately
indifferent whenever it fails to employ independent civilians to
review complaints of discriminatory policing -- and we are not
prepared to endorse such a categorical rule. Second, the Town
does provide for independent review of the Police Department's
findings: If a complainant appeals the disposition of her
complaint against an officer, the Selectmen may appoint "one or
more independent persons to conduct an investigation and write a
report for the Selectmen." Further, the Town provides for a
- 10 - biennial assessment of the Department's complaint procedures to be
conducted by the Police Chief and two civilians.3
In sum, we see no basis on which a reasonable jury could
find that the Town's complaint procedures as written evidence
deliberate indifference to the possibility of discrimination by
Brookline police. To the contrary, the procedures -- at least on
paper as set forth in the record -- suggest that the Town took
meaningful steps to respond to complaints of discriminatory
conduct.
B.
To be sure, the fact that Brookline has on paper a
procedure for handling complaints lodged with the Police
Department leaves open the possibility that, in practice, its
investigations are flawed and subsequent reviewers merely rubber-
stamp initial police findings of no misconduct. And such a sham
is more or less what plaintiffs claim Brookline's procedures to
be. So we turn to the evidence of how the Town responded to
complaints of discriminatory policing, beginning with plaintiffs'
own charges of improper police conduct.
1. Cruz Sanabria
Sanabria's claim stems from police involvement in a
series of disputes between Sanabria and his white neighbors. On
3 The first assessment occurred in 2014; the second was delayed to 2017.
- 11 - March 28, 2014, Sanabria called the police after his neighbors
allegedly placed trash barrels around his car. Sanabria laments
that although responding officers "took a report," "nothing was
done." The same was apparently true when one of Sanabria's
neighbors called the police on August 27, 2014, alleging that
Sanabria had damaged her bicycle; the police determined that no
crime had occurred and did not inform Sanabria of the accusation.
Three months later, one of Sanabria's neighbors alleged
that Sanabria closed the basement door while she was on the
basement stairs, causing her to fall down the stairs. This time,
Sanabria was told to appear at a police-initiated hearing before
a clerk-magistrate to determine whether there was probable cause
to charge Sanabria with assault with a dangerous weapon. The
clerk-magistrate determined that no probable cause existed.
Sanabria and his counsel met with Town officials in
February 2015. Several months later, Sanabria lodged a more formal
complaint, which the Town described as alleging racial profiling.
The lieutenant looking into Sanabria's case had attended the
February meeting with Sanabria and his counsel. He considered the
officer's recent history of similar complaints (there evidently
were none), visited the scene of the incident, and spoke to non-
police witnesses. He tried to schedule an interview with Sanabria,
offering to meet him at a location of Sanabria's choosing. But
Sanabria declined to be interviewed and said that his complaint
- 12 - also concerned the Town's conduct around the February meeting.
After the investigating lieutenant recommended finding Sanabria's
complaint to be unfounded, Sanabria initially exercised his appeal
right. The Town retained Charles E. Walker, Jr. -- a former chair
of the Massachusetts Commission against Discrimination -- to act
as a hearing officer for Sanabria's appeal. Sanabria through
counsel objected to the use of an outside hearing officer and
refused to pursue the appeal.
2. Demetrius Oviedo
Oviedo and his brother were arrested by Brookline police
while walking home in the early morning hours of November 8, 2014.
The brothers were with a friend, who Oviedo testified had stopped
to urinate in public as the brothers kept walking. Oviedo
maintained that the brothers were stopped by a Brookline police
officer in plain clothes, who demanded Oviedo's identification.
According to Oviedo, after he asked why the man needed to see his
identification, the officer called for backup. Oviedo said that
his brother "got a little loud" and was arrested. Oviedo relayed
that he stepped towards his brother and, after initially declining
to get down as requested, was arrested himself. The friend, who
was also Hispanic, was not arrested.4
4 The officers evidently did not realize that the friend was the one who had urinated in public.
- 13 - Oviedo was charged with disorderly conduct, resisting
arrest, and assault and battery on a police officer. All of those
charges were dismissed, and Oviedo paid court costs. Oviedo did
not file a complaint as a result of this incident.
3. Alberto Nunez-Guerrero and Juana Baez
On August 15, 2015, Nunez-Guerrero brought groceries to
Baez, with whom he has two children. He drove Baez's car. When
he arrived, he parked next to the building while he took the
groceries up to Baez. The parties dispute how long he was away
from the car. But by the time he returned, a tow truck had arrived,
and its white driver had begun to tow Baez's car. Nunez-Guerrero
jumped onto the tow truck to prevent the driver from leaving with
Baez's car, then called the police. While officers were en route
to the scene, a dispatcher told them that a man was jumping on,
punching, and slamming the tow truck.
As Nunez-Guerrero and the tow-truck driver exchanged
words, Baez came downstairs and joined the verbal altercation.
Baez alleges that the tow-truck driver nearly hit her with the
truck's door while she was holding her newborn.
Brookline police officers arrived at the scene, finding
Nunez-Guerrero still standing on the truck. One officer directed
Nunez-Guerrero to come down. He complied and was handcuffed.
Nunez-Guerrero alleges that another officer told him, "Do not speak
Spanish, or I'm going to put more charges." Baez testified that
- 14 - an officer asked her if she understood English and directed her to
go get her passport or other identification.
Nunez-Guerrero was charged with malicious destruction of
property and being a disorderly person. The first charge was
dismissed and Nunez-Guerrero was acquitted of the second. Baez
was charged with disorderly conduct, but the charge was dismissed
upon payment of court costs.5
Nunez-Guerrero did not file a complaint as a result of
the incident. Baez did, and the Town described her complaint as
alleging racial profiling and rudeness/discourtesy. The Town
Administrator promptly replied, explaining:
[Y]our complaint has been forwarded to the Police Department's Internal Affairs Office for review and processing in accordance with the Town of Brookline's Citizen Complaint Procedures. A copy of these Procedures is attached. I have also enclosed a copy of the Town's Diversity, Inclusion and Community Relations By-law; and encourage you to consider contacting the Department's Director, Dr. Lloyd Gellineau, who will provide you with information and guidance should you find that helpful.6
5 The police also notified the Department of Children and Families about Baez's decision to bring her infant downstairs with her while she argued with the tow-truck driver, leaving her three- year-old child unattended upstairs. 6 The Town's Commission for Diversity, Inclusion and Community Relations is evidently empowered to receive and investigate complaints against the Town and its employees "concerning allegations of discrimination or bias." Town of Brookline Gen. By-Laws, art. 3.14, § 3.14.3. However, the Town does not indicate when the Commission's complaint procedures took effect, and it appears that they were in development as of mid- December of 2015, by which time Sanabria, Rodas, and Baez had
- 15 - A Brookline police lieutenant was assigned to
investigate Baez's complaint. He described receiving "a complete
lack of cooperation" from Baez and Nunez-Guerrero despite, "[o]n
numerous occasions[,] . . . request[ing] and attempt[ing] to meet
with them for the purpose of interviewing them and obtaining
information which [he] thought would be relevant to the
investigation." Nevertheless, the officer visited upwards of
thirty residences to look for witnesses, ultimately securing the
accounts of at least eight people. He examined photographs taken
on the day of the incident and considered the involved officers'
past history of complaints. And he lamented his inability to
follow up on one of Baez's allegations (about her first attempt to
file a complaint) without her cooperation, because he opined that
"it would be of great concern" if it had occurred.
The investigating officer ultimately recommended finding
Baez's complaint to be unfounded. Baez initially exercised her
appeal right, but then (through counsel) objected to the Town's
proposed procedures and did not schedule an appeal.
4. Rogelio Rodas
Rodas's claims stem from a police encounter on
October 9, 2015. Rodas was driving home when he noticed
already lodged complaints through the Police Department's procedures.
- 16 - construction cones blocking the entrances to his building's
parking lot. Rodas asked a nearby police officer if he could move
the cones; the officer allegedly ignored and then rebuffed him.
Rodas said that he "grabbed" two cones and "threw them on the side
of the sidewalk" so he could proceed to park. After that, the
officer allegedly grabbed Rodas and threatened to "shove [the
cones] up Rodas's ass" if Rodas did not replace them.
Rodas filed a complaint about his treatment. Rodas did
not allege racial discrimination at that time. After initially
cooperating with the Town's investigation of his complaint, Rodas
declined to participate in a second interview. Nevertheless,
investigating officers reviewed video footage of Rodas's police
encounter and sought out non-police witnesses identified by Rodas.
Although the lieutenant who submitted the findings did not think
the officer's behavior "[rose] to the level of formal misconduct,"
he found "elements of what happened" to be "concerning" and
recommended "referr[ing]" the matter to the officer's "supervisor
for counselling on better ways to handle [such] situations." The
lieutenant recommended a finding of "[u]nfounded" for Rodas's
allegation of excessive force and "[n]ot sustained" for his
allegation of discourtesy. Rodas failed to appeal the disposition
of his complaint.
- 17 - 5. Other Individuals
Plaintiffs also allege deficiencies in the Town's
handling of other allegations of racial discrimination since 2008
in which plaintiffs were not involved.7 Plaintiffs rely in part
on a 2017 review conducted by two civilians (including the chair
of the Town's Commission for Diversity, Inclusion and Community
Relations) tasked with reviewing the Town's handling of complaints
for the period from 2013–2016. The resulting report identified a
total of eleven allegations of racial profiling (comprising 14.9%
of all allegations contained in the forty-one complaints
reviewed). In its recommendations, the report stated that "not
all complainants making appeals to the Select Board were granted
the right to be heard by the Select Board or were granted the right
in a timely manner." The same report concluded that "most
complaints were investigated and reviewed in a fair, thorough, and
impartial manner," stating that, in the reviewers' judgment, "each
complaint was taken seriously, with a thorough investigation of
each complaint." Nonetheless, the report noted "a few cases" in
Given that all plaintiffs' claims on appeal arose in 2014 7
or thereafter, we do not discuss events alleged to have occurred prior to the 2008 review of the Police Department's complaint procedures.
- 18 - which "actions by the police or others have led to dissatisfaction
with the process and criticism by complainants."8
Plaintiffs also point to an investigation conducted in
2017, when counsel for Isa Ebowe, a Black man, sent a letter
alleging that Detective David Wagner racially profiled Ebowe
during a stop in Brookline and used excessive force against him.9
Ebowe's claims were investigated by Lieutenant Paul Campbell, who
had also worked on the investigations of the Sanabria and Rodas
complaints. Campbell tried unsuccessfully to locate video footage
of the incident, including by arranging for a forensic video
analyst to examine a nearby clinic's security system. Through
counsel, Ebowe declined to be interviewed. Campbell noted two
8 Plaintiffs also discuss the handling of specific complaints from 2011 and 2015. But they offer no evidence that those complaints were not subject to either the review discussed above or the prior review conducted in 2014 (which covered complaints registered in 2011, 2012, and 2013). And they develop no argument that those periodic reviews were themselves a sham. 9 Although evidence of events that occurred after plaintiffs' police encounters and after the Town handled their complaints cannot establish causation in plaintiffs' cases, it might conceivably be "relevant to whether [the Town] was deliberately indifferent to a continued pattern of police misconduct." Forrest v. Parry, 930 F.3d 93, 115 (3d Cir. 2019) ("Although the failure to investigate [subsequent] complaints could not have caused Forrest's alleged injuries . . . . Camden's handling of complaints after Forrest's arrest is highly relevant to demonstrating that it maintained the same practice prior to and at the time of said arrest."); see also Foley v. City of Lowell, 948 F.2d 10, 14 & n.3 (1st Cir. 1991) (in a section 1983 case, "actions taken subsequent to an event are admissible if, and to the extent that, they provide reliable insight into the policy in force at the time of the incident").
- 19 - prior complaints of racial profiling against Wagner. Unaided by
cooperation from the complainant, Campbell determined that Wagner
had violated a policy requiring documentation of the incident, but
otherwise concluded that the evidence did not support Ebowe's
claims of excessive force and racial profiling.10 Plaintiffs
allege that the Selectmen "accepted the department's findings
clearing [Wagner] of wrongdoing." But Campbell's initial report
on the case noted that the matter remained open and was being
reviewed by Town Counsel. The Town ultimately reached a $157,000
settlement agreement with Ebowe. Without admitting liability, the
Town agreed that the Police Department would work with the Anti-
Defamation League to provide training on implicit bias. In a
subsequent deposition, Selectman Greene noted that he thought
implicit bias had played a role in Wagner's interaction with Ebowe.
Wagner was required to undergo training as a result of his
10 Plaintiffs suggest that Campbell displayed pro-police bias by probing aspects of Ebowe's past that plaintiffs evidently consider irrelevant, including past insurance claims. But Ebowe claimed to have incurred medical expenses as a result of his encounter with Wagner, and plaintiffs do not explain why an impartial investigator would not be entitled to assess Ebowe's credibility, including by researching past insurance claims. And to the extent that plaintiffs fault the Town for not "provid[ing] the Ebowe complaint to the reviewers who conducted the 2013–2016 review of the Citizen Complaint Procedures," they do not address Campbell's testimony that Ebowe never filed a formal complaint. Nor do they explain why Campbell's investigation of allegations received by the Town in January 2017 should have been reviewed during an assessment of "complaints received in 2013, 2014, 2015, and 2016."
- 20 - encounter with Ebowe, though the Town does not specify the nature
of that training. Wagner was not involved in any of the incidents
involving plaintiffs.
Plaintiffs also fault the Town for not following up on
allegations of police harassment made by Dwaign Tyndal during a
meeting of the Commission for Diversity, Inclusion and Community
Relations. The meeting transcript indicates that the committee's
chairperson pointed out to Tyndal several avenues for filing a
complaint. Plaintiffs are silent as to whether Tyndal did so.
C.
The foregoing provides no meaningful support for the
contention that the Town employed its complaint procedures as a
sham. Viewing the record generously to plaintiffs, they have
unearthed a few shortcomings in the handling of particular
complaints (not all of which seem to have involved racial
discrimination) over the course of seven years. Placing these
facts in context, no reasonable jury could say that the Town made
"no meaningful attempt . . . to investigate or to forestall"
racially discriminatory policing. Vann, 72 F.3d at 1049.
Further, we cannot agree that jurors could reasonably
find that the Town merely rubber-stamped police conduct. The
record shows that, in many cases, the complainants were unwilling
to participate in the complaint review process. We have no
occasion to doubt that in some instances, the complainants' prior
- 21 - experiences in Brookline or elsewhere may have led them to distrust
the police or other Town officials. But one cannot prove a town
deliberately indifferent to complaints of police misconduct by
failing to cooperate with investigations and not availing oneself
of meaningful procedures for appealing decisions.
Moreover, while plaintiffs disagree with the outcomes of
their individual investigations, they do not produce evidence
showing that those investigations were plagued by the kind of
systemic deficiencies that would allow a reasonable jury to find
that the Town had a policy of deliberate indifference towards
complaints of discriminatory police behavior.
To be sure, plaintiffs point to testimony by several
Town officials who could not recall an instance when the Police
Department sustained an allegation of racial discrimination. But
to turn this assertion into evidence that would support a finding
of deliberate indifference, plaintiffs would need to show that
during the relevant time period, the Town's policy or custom was
to ignore such complaints or to subject them to sham reviews. And,
as demonstrated by the evidence we have discussed (including the
apparently common practice of counseled claimants to refuse to
cooperate fully with Town investigations), no such showing is
possible on this record.
- 22 - IV.
We add a coda prompted by charts in the fact section of
plaintiffs' opening brief purporting to show a correlation between
race and the arrest rates of Brookline residents. Plaintiffs
devote little argumentation to this data. They suggest in passing
that a jury might view the data "as placing the Town on notice of
a pattern of racially discriminatory policing" and "add[ing]
credence to . . . claims of racial discrimination." For several
reasons, the data does little to advance plaintiffs' theory on
appeal.
First, the provenance of the data is unclear. It appears
that counsel created the charts. But counsel has not described
where to find all of underlying data, and we cannot tell where
some of the figures come from. It does appear that no attempt was
made to account for possible confounding factors, such as age.
Second, plaintiffs "proffer[] no expert testimony or
other insights to show the probativeness of the figures" or "their
likely statistical significance." Mack v. Great Atl. & Pac. Tea
Co., 871 F.2d 179, 184 (1st Cir. 1989); see also, e.g., Bos. Parent
Coal. for Acad. Excellence Corp. v. Sch. Comm. of City of Bos.,
996 F.3d 37, 46 (1st Cir. 2021) ("A party claiming a disparate
impact generally does not even get to first base without" "evidence
establishing that [the disparity at issue] is statistically
- 23 - significant"). As a result, the ability to draw an inference of
any causal relationship is undercut.
Finally, and most fundamentally, plaintiffs' claims on
appeal fall short of the mark even if we read the data as plaintiffs
do. That is because proving discrimination by Brookline police
would not prove that the Town was deliberately indifferent to
complaints of such conduct.
Whatever one might say of the Town's response to
complaints of racial bias in law enforcement, no reasonable jury
could view this record as showing that the Town was deliberately
indifferent to allegations of discriminatory policing. In
addition to maintaining a carefully considered process for
investigating and adjudicating complaints lodged with the Police
Department, the Town has provided its police officers with
programming on racial profiling and hate crimes; published annual
reports on the demographics of police encounters; and created a
Commission for Diversity, Inclusion and Community Relations with
its own complaint procedures. The plaintiffs have not put forward
evidence from which a reasonable factfinder could conclude that
the Town's formally established, multifaceted approach to
preventing, detecting, and investigating racial discrimination by
police was merely a sham.
- 24 - V.
For the foregoing reasons, the district court's order
granting summary judgment for the Town is affirmed.
- 25 -