United States Court of Appeals For the First Circuit
No. 23-1165
NATALE COSENZA, Plaintiff, Appellant,
v.
CITY OF WORCESTER, MA, Defendant, Appellee,
KERRY HAZELHURST; JOHN DOHERTY; T.J. COAKLEY; MARK RICHARDSON; ALLAN BURNES; DANIEL BENEDICT; BRIAN DONOHUE; ROBERT TURGEON; AS YET UNKNOWN WORCESTER POLICE OFFICERS; DAVID GRADY; DARLENE ROCHEFORD,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Gelpí, Lynch, and Montecalvo, Circuit Judges.
Steve Art, with whom Jon Loevy, Locke Bowman, Megan Pierce, and Loevy & Loevy were on brief, for appellant. Douglas T. Radigan, with whom Brian J. Edmonds, and Bowditch & Dewey, LLP were on brief, for appellee. October 28, 2024 LYNCH, Circuit Judge. Natale Cosenza was convicted in
2002 by a jury in Massachusetts state court of the assault and
battery with a dangerous weapon of Melissa Horgan and the armed
burglary of her apartment. A significant part of the prosecution's
evidence against Cosenza was the victim's identification of
Cosenza from a photo array administered by investigating Worcester
police. In light of later developments in the law, the state
courts, in 2016, granted him a new trial and, in 2017, suppressed
the photo array evidence, leading the Commonwealth to enter a nolle
prosequi.1
In this federal civil rights action brought in 2018, 16
years after his conviction, Cosenza sued the City of Worcester for
monetary damages on the theory the City had adopted an affirmative
policy of not properly training its officers as to photo arrays
and other investigative techniques, and the City's deliberate
indifference to his constitutional rights caused him injury. The
federal district court entered summary judgment for the City.
Cosenza v. City of Worcester, No. 18-cv-10936, 2021 WL 5138493, at
*14 (D. Mass. Nov. 4, 2021). We affirm.
1 Massachusetts law defines a "nolle prosequi" as "a strategic decision by the Commonwealth to cease pursuing charges. Its entry is thus an affirmative exercise of a prosecutorial tool to discontinue prosecution." Commonwealth v. Denehy, 2 N.E.3d 161, 172 (Mass. 2014). "A prosecuting attorney may enter a nolle prosequi of pending charges at any time prior to the pronouncement of a sentence . . ." Mass. R. Crim. P. 16(a).
- 3 - The undisputed record evidence shows Worcester did not
exhibit deliberate indifference to Cosenza's constitutional
rights. Among other things, Cosenza did not point to any evidence
that the City maintained a policy of not training officers on the
procedures to conduct photo arrays, officers in fact completed on-
the-job training, and both state and federal law as to photo arrays
did not then cast doubt on the procedures used. See, e.g., Walker
v. Medeiros, 911 F.3d 629 (1st Cir. 2018); Commonwealth v.
Silva-Santiago, 906 N.E.2d 299 (Mass. 2009), abrogation on other
grounds recognized by Commonwealth v. Moore, 109 N.E.3d 484, 497
n.9 (Mass. 2018).
I.
A.
At roughly 4:00 A.M. on August 14, 2000, Melissa Horgan
woke in her Worcester apartment to find a man standing beside her
bed wearing underwear, a t-shirt, and a white covering on his head.
The man began striking Horgan with a hard object and a struggle
ensued, which ended when Horgan kicked the man and he fled.
Horgan's assailant entered the fourth-floor apartment through a
window in Horgan's roommate's bedroom, who was not at home that
night.
Horgan called the Worcester Police. Officer Daniel
Benedict and two other patrol officers arrived on the scene at
4:05 A.M. Officer Benedict spoke with Horgan and then with
- 4 - Horgan's next-door neighbor, Robert Payton. Horgan told Officer
Benedict that her assailant was a white male she did not recognize,
wearing a t-shirt and underwear, and that her assailant either had
no hair or that she did not know whether he had hair. Horgan did
not provide Officer Benedict with an estimate of her assailant's
height or weight. Payton told Officer Benedict that he had not
seen or heard anything, but that he had "recently" seen Cosenza,
who lived in a neighboring building, knocking on doors in Horgan
and Payton's building and asking for money. Payton also told
Officer Benedict that he believed Cosenza accessed the building by
jumping onto a shared second-floor balcony. Officer Benedict
memorialized his interviews in an incident report, in which he
listed Cosenza as a suspect.
Detective Kerry Hazelhurst and his partner, Detective
John Doherty, met with Horgan at her niece's residence on
August 15, 2000 to conduct a photo array. Horgan's niece was also
present. Based on Officer Benedict's incident report listing
Cosenza as a suspect, Det. Hazelhurst prepared an array of nine
identically sized photos for Horgan to view that included a
photograph of Cosenza alongside photos of eight other men who had
physical characteristics similar to Cosenza. Det. Hazelhurst laid
out the photos on a table simultaneously, and Horgan then reviewed
the array of all nine photos. Det. Hazelhurst followed his
standard practice in administering photo arrays, which was to
- 5 - instruct the witness to: "take their time, look at [the array]
carefully, make sure you're certain who you pick out." His
standard practice also involved telling witnesses "we need a
positive identification for us to go further. If it's an iffy ID
it's no good to us."
The detectives observed that Horgan had an intense
emotional reaction when she reached Cosenza's photo in the array
and identified him as her attacker. Det. Hazelhurst then told
Horgan Cosenza's name and that he lived near her. Det. Hazelhurst
did not take any notes during the interview or ask Horgan how
confident she was in her identification.
Dets. Hazelhurst and Doherty, along with two other
officers, T.J. Coakley and Mark Richardson, then began searching
for Cosenza near Horgan's apartment building. Det. Doherty
observed someone riding a bicycle, whom he identified as Cosenza.
Det. Doherty testified at the criminal trial that, from a distance
of roughly twenty feet, he yelled to the bicycle rider that he was
a police officer and that he wanted to talk, but that the bicycle
rider looked back and sped away.2
2 During his deposition in this case, Officer Coakley, who grew up in the same neighborhood as Cosenza, testified that, during the search for Cosenza on August 15, 2000, the bicycle rider the officers encountered was 200 yards, not 20 feet, away, when Det. Doherty yelled, that Officer Coakley could not identify the person as Cosenza, and that it was not clear that the person heard Det. Doherty's command to stop.
- 6 - Later that same day, Det. Hazelhurst took a statement
from Horgan at the police station. In this statement, Horgan
described her assailant as having "dark hair, medium to short
length" and "dark eyes," which was similar to Cosenza's appearance
in the photo that had been selected for the array. She estimated
her assailant was "medium height, medium build."3 Horgan also
stated that her assailant was someone who had previously knocked
on Horgan's door asking for money.
Horgan had left her apartment following the August 14
attack, and, on August 16, 2000, accompanied by Dets. Hazelhurst
and Doherty, she returned to the apartment to pack a bag of
clothes, which included some clothing that had been on her bedroom
floor. On September 13, 2000, Horgan removed the clothes from the
bag to wash them and found that she had packed a pair of men's
shorts, which she did not recognize. Horgan called Det. Hazelhurst
that day and told him about the shorts. Hazelhurst retrieved the
shorts from Horgan. Det. Hazelhurst took a statement from Horgan
about the shorts on February 20, 2001, in which Horgan stated that
the shorts did not belong to any members of her family who might
have been in the apartment. The shorts had semen stains on them,
which were tested for DNA. The testing results obtained on
July 17, 2001, excluded Cosenza as the source of the DNA.
3 Later evidence showed Cosenza was approximately 5'3" tall and weighed around 125 pounds.
- 7 - Det. Hazelhurst later testified at trial that he had
searched for a pair of men's shorts or pants on August 16, 2000,
when he accompanied Horgan to the apartment, but that he had not
found any. Det. Hazelhurst did not memorialize any such search in
a report, nor did he mention the search to Horgan when she alerted
him to the shorts she found.4
B.
A Massachusetts grand jury indicted Cosenza on charges
of assault with intent to rape in violation of Mass. Gen. Laws
ch. 265, § 24, assault and battery by means of a dangerous weapon
in violation of Mass. Gen. Laws ch. 265, § 15A, and armed burglary,
in violation of Mass. Gen. Laws ch. 266, § 14.
Cosenza moved to suppress Horgan's photo array
identification and sought to introduce expert testimony regarding
the unreliability of eyewitness identifications. The motion judge
found that "the defendant ha[d] failed to establish any
impermissible suggestiveness" and that "there ha[d] been no
violation of any state or federal due process provisions" and
denied the motion to suppress. Hr'g Tr. at 1-93, Commonwealth v.
Cosenza, No. 00-0430 (Mass. Super. Ct. Aug. 16, 2001). The judge
4 During her deposition for this case, Horgan stated that, contrary to Det. Hazelhurst's trial testimony, she did not recall the officers searching her apartment for men's shorts or pants on August 16.
- 8 - also denied Cosenza's request to introduce expert testimony.5
Trial Tr. at 21-23, Commonwealth v. Cosenza, No. 00-0430 (Mass.
Super. Ct. June 24, 2002).
Cosenza's defense was that Horgan's identification was
unreliable and that the shorts, and the DNA on them, belonged to
the true attacker. The Commonwealth, in turn, argued that Horgan's
identification was reliable and supported by the corroborating
evidence of Cosenza's flight from police and that the shorts must
have belonged to someone who stayed in the apartment after the
attack, since Det. Hazelhurst testified that he had searched
Horgan's apartment for shorts on August 16, 2000, but found none.
5 The judge did not explain this ruling at the time, but the Massachusetts Appeals Court observed that he later elaborated on the reasoning behind his denial when adjudicating Cosenza's motion for a new trial. The Appeals Court quoted the trial judge as stating that: the circumstances surrounding the complaining witness'[s] encounter with the assailant were not particularly distinct from many identification-type cases. Commonwealth v. Ashley, 427 Mass. 620, 624 (1998)[,] citing Commonwealth v. Santoli, supra [] at 844. Nor was there evidence of post-event suggestion by investigating officers, a one-on-one showup, or a cross- racial component . . . . In conclusion, there were not sufficient grounds proffered by the defendant to suggest that the circumstances under which the complaining witness'[s] identification was achieved . . . required expert testimony to assist the jury . . . . Commonwealth v. Cosenza, 844 N.E.2d 720, 2006 WL 871016, at *2 (Mass. App. Ct. 2006) (unpublished table decision) (alterations and omissions in original).
- 9 - The jury found Cosenza guilty of assault and battery by
means of a dangerous weapon and armed burglary. He received
concurrent sentences of nine to ten years on the assault and
battery conviction and twelve to twenty years on the armed burglary
conviction.
Cosenza's conviction was affirmed in 2006 on appeal.
See Cosenza, 2006 WL 871016, at *4. The Massachusetts Appeals
Court rejected, among others, Cosenza's argument that he should
have been allowed to present expert testimony regarding
identification, finding that "the judge did not abuse his
discretion in concluding that the jury would not be materially
assisted by the proposed expert testimony." Id. at *2 (quoting
Commonwealth v. Ashley, 694 N.E.2d 862, 866 (Mass. 1998)). Cosenza
did not appeal the denial of his motion to suppress Horgan's
identification. See id. at *1.
Cosenza petitioned for federal habeas relief in 2007 on
the ground that the trial judge erred in excluding Cosenza's expert
testimony related to eyewitness identification. Cosenza v.
Marshall, 568 F. Supp. 2d 78, 80 (D. Mass. 2007). Cosenza did not
argue that the identification procedures were themselves
unconstitutional. See id. at 82. The district court denied
Cosenza's petition, finding that the trial court did not abuse its
discretion by excluding Cosenza's expert testimony and instead
relying on a jury instruction to educate the jury about the factors
- 10 - that could influence the reliability of an eyewitness
identification. Id. at 84-85. The district court then denied
Cosenza's motion for a certificate of appealability, finding that
Cosenza failed to show "reasonable jurists would find the district
court's assessment of the constitutional claim debatable or
wrong." Cosenza v. Marshall, No. 7-CV-10316, 2007 WL 4245897, at
*1 (D. Mass. Nov. 29, 2007) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). Cosenza did not appeal from this denial.
In 2015, Cosenza moved for a new trial in Massachusetts
Superior Court, based on developments since 2002 in Massachusetts
law related to eyewitness identifications. The trial court granted
Cosenza's motion in light of subsequently decided cases on the
grounds that he had not been permitted to present expert testimony
on the issue of identification at his first trial.
Cosenza filed a new motion to suppress Horgan's
identification based on developments in the law in the years since
2002. At a hearing on his motion to suppress, Cosenza presented
the expert testimony of Dr. Nancy Franklin. Dr. Franklin testified
that Det. Hazelhurst had administered the photo array in a manner
that reduced the reliability of Horgan's identification for the
following reasons:
1) he failed to tell the witness that the suspect may or may
not be present in the array;
- 11 - 2) he allowed another civilian to be present in the room with
Horgan while she viewed the array;
3) his statement that "we need a positive identification to
go further," among other statements, was highly suggestive;
4) confirmatory post-identification feedback can increase the
witness's confidence in the identification; and
5) more than 30 hours elapsed between the crime and
administration of the array.
A judge of the Superior Court granted Cosenza's motion,
reasoning that Horgan had a limited opportunity to view her
assailant and that the photo array and accompanying procedures
were unduly suggestive under the standards established in
Commonwealth v. Gomes, 22 N.E.3d 897 (Mass. 2015) (which differed
from the standards established in Commonwealth v. Santoli, 680
N.E.2d 1116, 1118-19 (Mass. 1997), the prevailing standard in 2002)
such that Horgan's identification as a whole violated Cosenza's
right to due process under Article 12 of the Massachusetts
Declaration of Rights. See id. at 911-16 (laying out five
generally accepted principles regarding eyewitness identification
to be included in a model jury instruction concerning eyewitness
identification).
C.
In 2018, Cosenza then brought this federal action
pursuant to 42 U.S.C. § 1983 against Dets. Hazelhurst and Doherty
- 12 - and the City of Worcester.6 As to the City of Worcester, Cosenza
alleged that the City's lack of policies and failure to train its
officers in matters related to photo array administration,
evidence disclosure, and the fabrication of evidence made it liable
for the detectives' alleged misconduct. Cosenza alleged that Dets.
Hazelhurst and Doherty violated Cosenza's U.S. constitutional
right to due process, alleging that they: administered an unduly
suggestive photo array and "fabricated" the contents of Horgan's
post-identification statement by feeding her information about
Cosenza; "fabricat[ed]" testimony that Cosenza fled from them on
a bicycle; and "fabricat[ed]" testimony about searching Horgan's
apartment for shorts on August 16, 2000. Cosenza also alleged the
detectives withheld or destroyed exculpatory evidence related to:
Cosenza's flight, in that they did not disclose that the man on
the bicycle was 200 yards away, not 20 feet; Horgan's statement,
in that they failed to disclose the fact that they bolstered
Horgan's identification; and the August 16 search of Horgan's
apartment, in that they did not disclose that no search for shorts
6 Cosenza also asserted claims against the non-detective officers who assisted in investigating Horgan's assault, but did not pursue those claims at summary judgment, and summary judgment was granted as to those defendants. See Cosenza, 2021 WL 5138493, at *1 n.1. Cosenza does not appeal that ruling.
- 13 - or pants had been conducted. Cosenza also asserted claims for
malicious prosecution and civil conspiracy.7
Cosenza deposed Lieutenant John Towns, who testified for
the City of Worcester pursuant to Fed. R. Civ. P. 30(b)(6) and was
hired by the Worcester Police Department in 1994. Lt. Towns
testified that Worcester's police officers received training at
the municipal police academy, where at least some trainers taught
classes on photo arrays. At the time of Cosenza's arrest, the
Worcester Police Department kept a written policy manual roughly
900 pages long.8 Worcester had no written policies of its own
specifically related to the administration of photo arrays.
Worcester relied on "preferred practices." These preferred
practices included: ensuring that witnesses viewed photo arrays
alone, or at least separated from any other person relevant to the
investigation; endeavoring not to make any suggestive statements
prior to administering identification procedures; and selecting
photographs of others for photo arrays that generally looked like
the suspect. Relevant law was communicated to the Worcester Police
7 Cosenza also alleged that the defendant officers were liable for failing to intervene to prevent the violations of Cosenza's constitutional rights. The district court found that, on the pleadings, the defendant officers were entitled to qualified immunity on this claim. See Cosenza v. City of Worcester, 355 F. Supp. 3d 81, 100-01 (D. Mass. 2019). Cosenza does not appeal this ruling. 8 A copy of the manual, as it existed at the time of Cosenza's 2002 trial, could not be retrieved.
- 14 - Department via "case updates" prepared by the Worcester District
Attorney's Office. Lt. Towns could not recall a case update from
the period in which Cosenza was arrested related to photo array
identifications. As to the disclosure of exculpatory evidence,
Lt. Towns testified that it was Worcester's preferred practice for
officers to provide prosecutors with all of the information that
the police had about a case.
Lt. Towns also testified that, as of 2002, Worcester did
not have any preferred practices recommending that detectives:
obtain a confidence statement from witnesses after administering
a photo array; refrain from making statements following an array
that tended to reinforce a witness's identification; pre- or
re-interview witnesses before conducting a photo array; or only
conduct photo arrays after obtaining a particular quantum of
suspicion of the suspect's involvement.
The district court granted summary judgment to the City
on all claims against it,9 reasoning that Cosenza failed to
9 The district court found that the detectives were entitled to qualified immunity on the claim that Horgan's identification was unduly suggestive, reasoning that "it was not clearly established at the time of the alleged violation that the identification procedure was unconstitutional." Cosenza, 2021 WL 5138493, at *1. The district court found that the detectives were also entitled to qualified immunity on the malicious prosecution claim, because it was "at least arguable" that the detectives had probable cause to arrest Cosenza. Id. at *13. The district court allowed Cosenza's claims that the detectives suppressed evidence, fabricated evidence, and engaged in a civil conspiracy to proceed to trial. Id. at *1.
- 15 - demonstrate either "a pattern of unconstitutional violations" or
that it was "so obvious" that failing to train detectives to
conduct photo arrays would lead to a constitutional violation such
that Worcester was deliberately indifferent to Cosenza's
constitutional rights. Cosenza, 2021 WL 5138493, at *8-9.
As to Cosenza's allegations that the City was liable for
the officers' fabrication and suppression of evidence, the
district court found that there was "no evidence that the City had
an express policy that caused its officers to fabricate or suppress
evidence; nor is there evidence that the City's failure to train
its officers caused those alleged violations."10 Id. at *7 n.7.
The only matter before us is Cosenza's appeal as to the
City of Worcester.
II.
We review a grant of summary judgment de novo. Fagre v.
Parks, 985 F.3d 16, 21 (1st Cir. 2021). We construe the facts in
the light most favorable to the nonmoving party -- here,
10 A jury returned a verdict for Cosenza on his claims that Det. Hazelhurst suppressed and fabricated evidence and that Dets. Hazelhurst and Doherty conspired to do so. The jury returned a verdict for Det. Doherty on Cosenza's claim that he suppressed and fabricated evidence. Dets. Hazelhurst and Doherty appealed the verdicts against them, and Cosenza cross-appealed the district court's grants of summary judgment. Dets. Hazelhurst and Doherty then voluntarily dismissed their appeals, and Cosenza dismissed the detectives from his appeal. Dets. Hazelhurst and Doherty assigned to Cosenza their claims against Worcester for indemnification of the verdict.
- 16 - Cosenza -- and draw all reasonable inferences in his favor. Id.
We are not bound by the district court's reasoning and may affirm
on any ground supported by the record. Minturn v. Monrad, 64 F.4th
9, 14 (1st Cir. 2023).
A municipality may be liable under § 1983 "if the
governmental body itself 'subjects' a person to a deprivation of
rights or 'causes' a person 'to be subjected' to such deprivation."
Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell v.
N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 692 (1978)).
"Municipalities 'are responsible only for their own
unconstitutional acts,' and 'are not vicariously liable . . . for
the actions of their non-policymaking employees.'" Bannon v.
Godin, 99 F.4th 63, 88 (1st Cir. 2024) (omission in original)
(quoting Haley v. City of Bos., 657 F.3d 39, 51 (1st Cir. 2011)).
Instead, a plaintiff "must prove that 'action pursuant to official
municipal policy' caused their injury." Connick, 563 U.S. at 60
(quoting Monell, 436 U.S. at 691). Such policies "include[] the
decisions of a government's lawmakers, the acts of its policymaking
officials, and practices so persistent and widespread as to
practically have the force of law." Id.
"Triggering municipal liability on a claim of failure to
train requires a showing that municipal decisionmakers either knew
or should have known that training was inadequate but nonetheless
exhibited deliberate indifference to the unconstitutional effects
- 17 - of those inadequacies." Haley, 657 F.3d at 52. "The deliberate
indifference standard is 'stringent' and 'requir[es] proof that a
municipal actor disregarded a known or obvious consequence of his
action.'" Bannon, 99 F.4th at 88 (alteration in original) (quoting
Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410
(1997)).
Typically, "[a] pattern of similar constitutional
violations by untrained employees" is necessary to demonstrate
deliberate indifference. Connick, 563 U.S. at 62. It is clear
there is no evidence of any such pattern, and Cosenza does not
meaningfully pursue such a theory.
Instead, Cosenza attempts to fit within a different
theory -- that a municipality may be liable after a single incident
where "the need for more or different training is so obvious, and
the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can
reasonably be said to have been deliberately indifferent to the
need." City of Canton v. Harris, 489 U.S. 378, 390 (1989).
We assume, without deciding, that Dets. Hazelhurst and
Doherty committed the underlying constitutional violations for
which Cosenza claims Worcester is responsible.11 See Bannon, 99
11 The underlying constitutional violations have been adjudicated both for and against Cosenza at various stages in this litigation, up to and including trial. The parties dispute whether we may consider jury verdicts rendered almost two years after the
- 18 - F.4th at 88 ("[M]unicipal liability is viable only where a
plaintiff establishes the existence of 'underlying, identifiable
constitutional violations . . . .'" (quoting Lachance v. Town of
Charlton, 990 F.3d 14, 31 (1st Cir. 2021))).
Cosenza's contention that Worcester maintained an
affirmative policy not to train its officers to properly administer
photo arrays is flatly contradicted by the record. Cosenza points
to absolutely no evidence that Worcester maintained a written
policy to that effect, that there was an informal practice of not
training officers "so persistent and widespread as to practically
have the force of law," Connick, 563 U.S. at 61, or even to any
evidence that there was no training in photo arrays. On the
contrary, the genuinely undisputed evidence of record demonstrates
that Worcester police officers were trained at an academy under
the umbrella of a statewide agency called the Municipal Police
Training Committee, which offered at least some classes on how to
conduct identification procedures.12 Memoranda detailing changes
summary judgment order Cosenza now appeals in adjudicating Cosenza's claims against the City. Because we can resolve Cosenza's appeal without deciding which of the violations Cosenza alleges are meritorious, we decline to do so. 12 At oral argument the attorney for Worcester represented to the court that the Commonwealth of Massachusetts determines what is taught at police academies. Cosenza did not depose anyone authorized by the Commonwealth or the Municipal Police Training Committee to testify on their behalf about training materials or practices before 2002.
- 19 - in the law were circulated to Worcester officers as necessary.
On-the-job training occurred in the form of preferred practices,
which included, at least for some officers, preferred practices on
how to conduct photo arrays. Worcester's officers could also seek
out supplemental training if they so wished.
Cosenza fails on another point. That judicial opinions
established the U.S. Constitution required certain practices as of
the time he was granted a new trial, thirteen years after his
original trial, does not establish that those practices were
required as of 2002. The Massachusetts Superior Court found that
Horgan's identification was constitutionally permissible under the
prevailing standards in 2002, the Massachusetts Appeals Court
affirmed the Superior Court's denial of Cosenza's motion to present
expert testimony on the unreliability of eyewitness
identifications in 2006, and the Supreme Judicial Court declined
to hear Cosenza's appeal. See Cosenza, 2006 WL 871016, at *1-2;
Commonwealth v. Cosenza, 848 N.E.2d 1211, 1211 (Mass. 2006)
(unpublished table decision) (denying discretionary review).
Through expert witnesses, Cosenza points to model
national standards published by the International Association of
Chiefs of Police in 1992 and to the U.S. Department of Justice's
1999 publication "Eyewitness Evidence: A Guide for Law
Enforcement" as evidence that Worcester knew or should have known
of the need for additional training on the administration of photo
- 20 - arrays.13 Cosenza argues that, in light of these contemporaneous
publications, the possibility that untrained officers would
violate the Constitution was so obvious that Worcester's failure
to adopt the recommendations Cosenza relies upon amounts to
deliberate indifference.
This argument is foreclosed by federal and state law.
In Walker, a state prisoner sought habeas relief from his 2005
conviction on the grounds that his trial counsel was ineffective
in failing to file a pre-trial motion to suppress a witness's
identification of Walker in a photo array. 911 F.3d at 632. Like
Cosenza, Walker contended that the identification procedure used
was "constitutionally problematic because law enforcement did not
inform [the witness] that the suspect's picture might not be
included in the array, did not employ a 'double-blind'
identification process, did not record [the witness'] selection
13 As related by Cosenza's expert, Dennis Waller, these publications recommended that officers conducting a photo identification: avoid "suggestive statements"; "preserve[]" the photo array; "[a]dvise witness[es] . . . [t]he suspect may or may not be among the photos presented"; "[a]ssure the witness that regardless of whether an ID is made, police will continue to investigate the incident"; and "review all documentation available and conduct an interview with the victim" before administering a photo array. Waller warns that failure to adhere to these recommendations "may [] cause misidentifications by suggestive words or conduct." Cosenza notes that there is evidence Det. Hazelhurst failed to comply with these best practices and that Worcester's formal and informal policies failed to instruct officers to comply with some or all of the practices.
- 21 - from the array, and did not use a sequential-photographic array."
Id. at 634.
We held that "Walker fail[ed] to identify any United
States Supreme Court precedent that clearly establishes that,
under the federal Constitution, the procedures he identified as
being required must be employed." Id. at 635. Like Cosenza,14
Walker relied on "a 1999 report on eye-witness evidence that the
United States Department of Justice issued." Id. But that report
"did not purport to hold that these procedures were required as a
matter of federal constitutional law." Id. Rather, it set forth
a variety of recommended practices aimed at improving the
reliability of eyewitness identifications. But "showing merely
that additional training would have been helpful" is not enough to
establish municipal liability. Connick, 563 U.S. at 68.
The 1999 DOJ report (and other, similar reports and
recommendations issued at that time and relied upon by Cosenza)
cannot be said to have put Worcester on "actual or constructive
notice that a particular omission in their training program [would]
cause[] city employees to violate citizens' constitutional
14 Cosenza's reliance on Haley, 657 F.3d at 52, is misplaced. Unlike Cosenza, the plaintiff in Haley plausibly alleged, on a motion to dismiss, both that the Boston Police Department failed to train its employees in their evidence disclosure obligations and that the Boston Police had a policy of withholding evidence from criminal defendants. Id. at 52-53. Cosenza, at summary judgment, has identified no record evidence of a comparable policy from Worcester.
- 22 - rights." Id. at 61. Many of the procedures Cosenza now argues
were constitutionally required in 2002 were not required under the
Massachusetts Constitution until 2009, see Silva-Santiago, 906
N.E.2d at 303, and the SJC did not adopt a position consistent
with the 1999 DOJ report on which Cosenza relies until 2015, see
Gomes, 22 N.E.3d at 912-16. The Massachusetts Constitution is
more protective of due process in this regard than the United
States Constitution, which to date incorporates fewer of the
precautions advocated for by experts in the field of eyewitness
identification than does the Massachusetts Constitution. See,
e.g., United States v. Arthur, 764 F.3d 92, 102 (1st Cir. 2014)
(noting that "emerging social science . . . gives pause to any
knee-jerk assumption that eyewitness identification testimony . .
. is necessarily reliable" but "does not mean . . . that such
testimony must perforce be excluded"); United States v. Coleman,
851 F. App'x. 1016, 1021 (11th Cir. 2021) (lack of double-blind
administration and failure to obtain confidence statement did not
violate due process without "specific evidence of
suggestiveness").
Cosenza also argues that Worcester is liable on similar
theories for its officers' alleged fabrication and suppression of
evidence. We agree with the district court that Cosenza has not
identified any record evidence that Worcester "had an express
policy that caused its officers to fabricate or suppress evidence"
- 23 - or "fail[ed] to train its officers" in that regard. See Cosenza,
2021 WL 5138493, at *7 n.7. On the contrary, it is undisputed
that it was the Worcester Police Department's preferred practice
to disclose to the District Attorney's Office all known information
about a case. Even if the officers had failed to comply with that
practice, that alone is not "sufficient to establish that they
were trained inadequately." Bannon, 99 F.4th at 103 (Montecalvo,
J., concurring in part).
On this record, no reasonable factfinder could find
deliberate indifference, making summary judgment for the City
appropriate.
The entry of summary judgment for the City of Worcester
is affirmed.
- 24 -