Jacobson v. Nashua et al. CV-01-165-B 06/19/02
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Roger J. Jacobson
v. Civil N o . 01-165-B Opinion No. 2002 DNH 120 City of Nashua, Kurt Gautier and David Lange
MEMORANDUM AND ORDER
Roger and Lorraine Jacobson1 have sued the City of Nashua
and Nashua police officers Kurt Gautier and David Lange under 42
U.S.C. § 1983 and various state law theories for unlawful arrest
(Count I ) , use of excessive force by Officer Gautier (Count I I ) ,
the City of Nashua’s failure to properly train defendant officers
(Count I I I ) , the City of Nashua’s failure to correct a pattern of
excessive force among its police officers (Count IV), 2 liability
1 The defendants argue that Lorraine Jacobson is not a proper party to this action because she has asserted no claims for which she has standing. I agree and dismiss her as a party to this suit. 2 Counts III and IV contain broad, general language and seem to overlap. A fair reading, though, allows me to distinguish the two claims as I’ve done here. for a dog bite (Count V ) , negligence by the City of Nashua in
training and supervising Officer Gautier and his canine (Count
V I ) , and malicious prosecution (Count VII). 3 The defendants have
moved for summary judgment, contending that they did not violate
Jacobson’s rights under federal and state law, and, in any event,
they are entitled to qualified immunity.
BACKGROUND4
On September 1 3 , 1998, after an evening of drinking beer and
other alcohol, Roger Jacobson (“Jacobson”) argued with his wife,
Lorraine Jacobson (“Lorraine”), accusing her of failing to cook
his steak properly. Intoxicated and angered, Jacobson threw the
contents of a mug of beer in Lorraine’s direction. Some beer hit
the wall behind Lorraine, and some hit the left side of her head.
Jacobson then asked Lorraine to call the police in order to help
3 Plaintiff concedes in his objection to defendants’ motion for summary judgment (doc. n o . 9 ) that Counts V and VII should be dismissed. Therefore, I dismiss these claims without further analysis. 4 The parties dispute many facts in this case. For purposes of this memorandum and order, I resolve these disputes and draw all reasonable inferences in Jacobson’s favor. See Navarro v . Pfizer Corp., 261 F.3d 9 0 , 94 (1st Cir. 2001) (explaining the operation of Fed. R. Civ. P. 56) (citation omitted).
-2- mediate the situation. Lorraine made the call at 9:47 p.m. by
dialing 911 while Jacobson was present. Jacobson then left the
house and Lorraine, fearing he might become violent, locked the
door behind him.
Officer Patrick Goodridge and Officer David Lange responded
to Lorraine’s 911 call. The officers first went to the door and
spoke with Lorraine. Officer Goodridge’s report states that he
observed the left side of Lorraine’s head to be wet, and that
Lorraine initially told the officers that Jacobson threw a beer
at her, verbally abused her, and threatened to kill her.
Lorraine told the officers that Jacobson had left the house, to
which Officer Lange responded that he had been to the house
before on a domestic violence call and that Jacobson “was not
going to get away with it this time.”
Officer Lange went outside to locate Jacobson, and called
for assistance from Officer Kurt Gautier and his police dog,
“Endy.” Officer Gautier arrived within ten minutes, making the
total time elapsed since Lorraine’s initial call approximately
fifteen to twenty minutes. After a short search, Endy led
Officer Gautier to Jacobson, who had fallen asleep in his
intoxicated state while sitting against a tree in his backyard.
-3- The light from a flashlight beam and Endy’s growl woke Jacobson,
who then heard a voice asking him what he was doing. Jacobson
replied, “I am sitting here.” Jacobson then heard a command to
show his hands, and responded by turning his hands over slowly,
so that his palms faced up.
Immediately thereafter, Endy bit Jacobson on the right arm
and pulled him a short distance. The dog left Jacobson lying on
his stomach, at which point the officers handcuffed and arrested
him. At that moment, Jacobson realized that the person who had
spoken to him was a police officer. The officers called an
ambulance, and Jacobson was transported to a hospital for
treatment of the dog bite. Later that night, he was taken to the
Nashua Police Department on charges of simple assault, criminal
threatening and resisting arrest. The next morning Jacobson was
arraigned and released.
In a statement filed with the Nashua Police Department on
the night of September 1 3 , 1998, Lorraine stated, “[Jacobson] was
drunk and verbaly [sic] abusive; threw beer at me over my head.”
Officer Lange claims that when he asked Lorraine why she declined
to report that Jacobson had threatened her life, she replied that
she loved Jacobson too much and wanted him to get help. At
-4- Jacobson’s criminal trial in Nashua District Court, Lorraine
testified that she did not tell the police officers that he had
hurt her or threatened to kill her. Jacobson was acquitted on
the charges of simple assault and criminal threatening, although
he was convicted of resisting arrest. Jacobson appealed his
conviction to superior court for a de novo trial, prior to which
the court dismissed the resisting arrest charge. Jacobson then
brought this civil rights action.
STANDARD OF REVIEW
Summary judgment is appropriate only “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c). A genuine issue is one “that properly can be resolved
only by a finder of fact because [it] may reasonably be resolved
in favor of either party.” Anderson v . Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). A material fact is one that affects the
outcome of the suit. See id. at 248.
In ruling on a motion for summary judgment, I must construe
-5- the evidence in the light most favorable to the non-movant. See
-6- Navarro, 261 F.3d at 94 (citation omitted). The party moving for
summary judgment, however, “bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v . Catrett, 477 U.S. 317, 323 (1986). Once the
moving party has properly supported its motion, the burden shifts
to the nonmoving party to “produce evidence on which a reasonable
finder of fact, under the appropriate proof burden, could base a
verdict for i t ; if that party cannot produce such evidence, the
motion must be granted.” Ayala-Gerena v . Bristol Myers-Squibb
Co., 95 F.3d 8 6 , 94 (1st Cir. 1996) (citing Celotex, 477 U.S. at
323; Anderson, 477 U.S. at 2 4 9 ) . While courts must exercise
restraint in granting summary judgment in cases where the
nonmoving party must prove “elusive concepts such as motive or
intent . . . summary judgment may be appropriate if the nonmoving
party rests merely upon conclusory allegations, improbable
inferences, and unsupported speculation.” Smith v . Stratus
Computer, Inc., 40 F.3d 1 1 , 13 (1st Cir. 1994) (citations and
internal quotation marks omitted). I apply this standard in
resolving the defendants’ motion for summary judgment.
-7- DISCUSSION
A. Unlawful Arrest
Defendants argue that Jacobson’s unlawful arrest claim is
defective because the undisputed facts demonstrate that they had
probable cause to arrest him. I agree. Even when taken in the
light most favorable to the plaintiff, the facts reveal that
Jacobson physically manifested his anger at his wife by throwing
beer at her, with the result that some of the beer hit the left
side of her head.5 Jacobson’s conduct thus meets the definitions
of simple assault by causing unprivileged physical contact, see
N.H. Rev. Stat. Ann. 631:2-a(a), criminal threatening, see N.H.
Rev. Stat. Ann. 631:4 I.(a), and domestic abuse, see N.H. Rev.
Stat. Ann. 173-B:1 I ( a ) , ( b ) . Because the police officers had
probable cause to believe Jacobson committed domestic abuse, they
were entitled to arrest him without a warrant. N.H. Rev. Stat.
Ann. 173-B:10 I I .
5 The plaintiff at times states that he threw beer at the wall. However, evidence in the record, including observations made by the police and Jacobson’s own deposition testimony, makes it clear that he threw beer either at or over Lorraine’s head, and that some of the beer hit Lorraine.
-8- Probable cause is further supported because police officers,
when responding to domestic violence situations, are permitted to
use their previous knowledge and consider whether a victim is
acting out of fear and intimidation or some desire to protect the
abuser. Fletcher v . Town of Clinton, 196 F.3d 4 1 , 52 (1st Cir.
1999) (citing United States v . Bartelho, 71 F.3d 436, 438 (1st
Cir. 1995) (“noting that officers are often trained not to take
the statements of abuse victims at face value, but instead to
consider whether the victims are acting out of fear”)). Thus,
the officers were entitled to rely upon their reasonable judgment
and past experience of responding to domestic violence calls at
the residence to determine whether Jacobson should be arrested.
See id.; Bartelho, 71 F.3d at 4 3 8 , 441. Accordingly, summary
judgment for the defendants on Count I (unlawful arrest) is
appropriate.
B. Qualified Immunity
Jacobson alleges that Officer Gautier violated his Fourth
Amendment right to be free from excessive force during arrest.
The defendants argue that Officer Gautier acted reasonably and
with justification when he used his canine to assist in arresting
Jacobson, and that Officer Gautier is shielded from suit by the
-9- doctrine of qualified immunity.
As I explained in a recent order, see Lee v . Portsmouth,
2002 D.N.H. 064 (D.N.H. Mar. 1 9 , 2002), a two-part inquiry is
necessary to determine whether an officer is entitled to
qualified immunity from an accusation of excessive force, see
Saucier v . Katz, 533 U.S. 194, 200 (2001). First, I must
consider whether the facts, “[t]aken in the light most favorable
to the party asserting the injury . . . show the officer’s
conduct violated a constitutional right.” Id. at 201. If s o ,
the second step “is to ask whether the right was clearly
established.” Id. “Clearly established for purposes of
qualified immunity means that the contours of the right must be
sufficiently clear that a reasonable official would understand
that what he is doing violates that right.” Wilson v . Layne, 526
U.S. 603, 614-15 (1999) (citing Anderson v . Creighton, 483 U.S.
635, 640 (1987)) (internal quotation marks omitted). If the law
would not have put an objectively reasonable officer on notice
that his or her conduct was unlawful, summary judgment based upon
qualified immunity is appropriate. See Malley v . Briggs, 475
U.S. 335, 341 (1986) (qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.”).
-10- The Fourth Amendment protects against the use of excessive
force by police officers in carrying out an arrest. Graham v .
Connor, 490 U.S. 386, 394-95 (1989). In the case of a non-
resisting, compliant suspect, this freedom is unquestionably an
established right. Fernandez v . Leonard, 784 F.2d 1209, 1217
(1st Cir. 1986). Jacobson’s account of his arrest places him
sitting passively under a tree in his backyard, responding
immediately to the officer’s command to show his hands, and then
being attacked by the police dog. If the jury were to credit
Jacobson’s testimony, it could find that Officer Gautier violated
his Fourth Amendment right to be free from excessive force during
arrest.
Next, I must determine whether a reasonable police officer
should have known that Officer Gautier’s conduct as alleged by
Jacobson violated the clearly established right to be free from
excessive force during arrest. See Rodriguez v . Comas, 888 F.2d
899, 901 (1st Cir. 1989). The defendants have argued that
Gautier’s use of force in this case was reasonable. They state
that Jacobson was unresponsive to several commands to show his
hands, and that Officer Gautier thus held a reasonable belief,
based on information he had received that Jacobson had threatened
-11- to kill Lorraine and might be angry and combative, that Jacobson
might be armed, dangerous and unpredictable. While a jury might
credit this view of the evidence,6 the plaintiff disputes i t ,
and, absent conclusive evidence in the record, I cannot credit
this view for purposes of this analysis.
When deciding whether a use of force was objectively
reasonable, courts typically consider factors such as the
severity of the crime, the immediate threat the suspect poses to
the arresting officers or others present, and whether the suspect
is resisting arrest or attempting to flee. See Alexis v .
McDonald’s Rest. of Mass., 67 F.3d 341, 352-53 (1st Cir. 1995)
(citing Graham, 490 U.S. at 3 9 6 ) . The underlying crime at issue
6 The 911 dispatch record, Officer Lange’s affidavit, and Officer Goodridge’s written report all suggest that Jacobson was angrier and more abusive than he admits, and did in fact threaten to kill his wife. Lorraine Jacobson denies reporting that her husband might be violent or threatened to kill her; however, the First Circuit has observed that domestic violence victims can be uncooperative in criminal investigations/prosecutions against their batterers in up to eighty or ninety percent of cases. See Fletcher, 196 F.3d at 52 (citing Lisa Marie De Sanctis, Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence, 8 Yale J.L. & Feminism 359, 367-68, 392 n . 197 (1996)). Nevertheless, the possibility remains that Jacobson’s version of the facts is accurate, and thus the summary judgment standard demands that I adopt those facts in assessing whether Jacobson’s claim is trialworthy.
-12- in this case, domestic abuse, can be severe; however, under his
version of facts, Jacobson posed no immediate threat and offered
no resistance to the arresting officers. While I agree with the
defendants that the “bite and hold” method employed by Gautier’s
dog does not constitute excessive force in all cases, the use of
such force on a person sitting passively who complies immediately
with a command to show his hands - and who is not reasonably
thought to be armed - is unreasonable. See Priester v . City of
Riviera Beach, Fla., 208 F.3d 919, 927 (11th Cir. 2000) (officer
guilty of excessive force where he intentionally caused police
dog to bite an unresisting suspect). Thus, summary judgment is
inappropriate for Jacobson’s excessive force claim.
C. Federal Claims Against City of Nashua
1. City of Nashua’s Failure to Properly Train Defendant Officers
Jacobson contends that the city of Nashua failed to properly
train Officer Gautier and other officers in using police dogs and
in answering domestic violence calls. Officer Gautier’s
potential liability is not enough to impose liability on the city
of Nashua. See Fletcher, 196 F.3d at 5 5 . Rather, to state a
claim for municipal liability under § 1983, Jacobson must
-13- demonstrate that when Officer Gautier used excessive force during
the arrest, he was “‘implement[ing] or execut[ing] a policy
statement, ordinance, regulation, or decision officially adopted
and promulgated by [the municipality’s] officers’ or [acted]
‘pursuant to governmental “custom” even though such a custom has
not received formal approval through the body’s official
decisionmaking channels.’” Id. (quoting Monell v . Dep’t of
Social Servs., 436 U.S. 6 5 8 , 690, 691 (1978)). When, as here, a
plaintiff alleges a failure to train, “the plaintiff must put
forth evidence of a failure to train that amounts to ‘deliberate
indifference to the rights of persons with whom the police come
into contact.’” Id. (quoting City of Canton v . Harris, 489 U.S.
378, 388 (1989)). Additionally, Jacobson must show a direct
causal link between Nashua’s policies and Officer Gautier’s
alleged use of excessive force in this case. Id.
Evidence in the record reflects that the city of Nashua
provides extensive training to officers and dogs in its Canine
Unit. Officer Gautier’s deposition shows that when he began
working with his dog in 1996, he completed four months of
training with the Boston Police Department K-9 Unit as required
by Nashua. In the years that followed, Gautier and his dog
-14- regularly attended training courses, mainly held in
Massachusetts, covering various topics including canine
aggression, tracking, and narcotics. Furthermore, a Nashua
Police Department S.O.P. for the Canine Unit indicates that
members of the unit are experienced police officers, pass an
annual physical examination, attend training monthly, and devote
one hour of each shift to training, grooming and feeding their
dogs.
The Canine Unit S.O.P. explains procedures for using a
canine when responding to a call. It instructs canine officers
in details such as securing the area around the suspect,
announcing to the suspect the presence of the Canine Unit,
offering the suspect a reasonable period of time to surrender
before the canine begins to search, eliminating distractions to
the canine, and requesting assistance for an apprehended suspect
when needed. The S.O.P. also contains a section detailing
procedures to be followed in the event of a dog bite occurring on
or off duty.
Jacobson has offered nothing to suggest a widespread problem
with the way that officers in the Nashua Canine Unit handle
calls. Officer Gautier’s allegedly unsatisfactory conduct on
-15- this and previous occasions will not sustain this claim because
“the fact that ‘a particular officer may be unsatisfactorily
trained will not alone suffice to fasten liability on the city,
for the officer’s shortcomings may have resulted from factors
other than a faulty training program.” Rodriguez-Vazquez v .
Cintron-Rodrigues, 160 F. Supp.2d 204, 212 (D. Puerto Rico 2001)
(quoting Canton, 489 U.S. at 390-91). Accordingly, the city is
entitled to summary judgment on Jacobson’s failure to train
claim.
Jacobson also complains that the defendant officers received
inadequate training in responding to domestic violence calls. I
have already concluded that the defendant police officers
committed no constitutional violation in arresting Jacobson.
Therefore, I need not analyze the adequacy of Nashua’s domestic
violence training procedures. See Evans v . Avery, 100 F.3d 1033,
1039-40 (1st Cir. 1996) (finding that an underlying
constitutional violation is a prerequisite to analyzing claim
against city).
2. City of Nashua’s Failure to Correct a Pattern of Use of Excessive Force By Police Officers
Count IV of the complaint alleges that the city of Nashua
-16- “permitted, tolerated, effected, and/or encouraged customs and
policies which allowed development of a pattern and practice of
unjustified and unreasonable use of force by police officers.”
Jacobson elaborates that Nashua failed to discipline or retrain
officers as necessary, and take other corrective measures in
response to uses of excessive force by officers. Municipal
liability can be established by showing that a city failed to
respond to repeated complaints of constitutional violations. See
Parrish v . Luckie, 963 F.2d 201, 204-05 (8th Cir. 1992) (city
could be held liable when police officer raped woman in custody
because it failed to respond appropriately to previous complaints
filed against officer); Gentile v . County of Suffolk, 926 F.2d
142, 145-47 (2d Cir. 1991) (county liable for its systematic
failure to adequately investigate and discipline police and
prosecutorial misconduct).
Jacobson has referenced three previous lawsuits where
plaintiffs alleged that Officer Gautier employed excessive force,
and suggests that Nashua effectively sanctioned the use of
excessive force because there is no indication that the city
conducted any investigation of Gautier after these suits were
filed. Of the lawsuits Jacobson mentions, one was dismissed, one
-17- was settled, and the outcome of the third is unclear. Without
more detail, I cannot conclude that the manner in which the
Nashua Police Department responded to these suits was
constitutionally deficient. Compare Consolo v . George, 835 F.
Supp. 4 9 , 50-52 (D. Mass. 1993) (finding testimony of expert
witness and facts surrounding event of plaintiff’s arrest did not
constitute sufficient evidence to allow reasonable jury to find
de facto policy of city allowing officers to use excessive force
when making arrests) with McLain v . Milligan, 847 F. Supp. 9 7 0 ,
978-80 (D. M e . 1994) (denying summary judgment on municipal
liability issue where plaintiff made detailed allegations that
city’s training on use of force consisted of optional video
instruction, and investigation consisted of soliciting oral
account from police officer with no further action). Therefore,
the city is entitled to summary judgment on Jacobson’s failure to
correct a pattern of excessive force claim.
D. State Law Negligence Claim Against City of Nashua
Jacobson’s final claim involves a state common law claim of
negligence against the city of Nashua for its alleged failure “to
supervise, control, monitor and train” police officers in the
Canine Unit. Because decisions about training and supervision of
-18- police officers involve a high degree of discretion, the city of
Nashua is immune from liability under New Hampshire’s doctrine of
discretionary function immunity. See, e.g., Hacking v . Town of
Belmont, 143 N.H. 546, 549-51 (1999). Therefore, the city is
entitled to summary judgment on Jacobson’s negligence claim.
CONCLUSION
I dismiss Counts V and VII of plaintiff’s complaint (doc.
no. 1 ) . I grant defendants’ motion for summary judgment (doc.
n o . 8 ) with respect to Counts I , III, IV, and VI of plaintiff’s
complaint, and deny with respect to Count I I .
SO ORDERED.
Paul Barbadoro Chief Judge
June 1 9 , 2002
cc: Steven L. Maynard, Esq. Donald E . Gardner, Esq.
-19-