United States Court of Appeals For the First Circuit
No. 24-1594
BRANDON VELEZ,
Plaintiff, Appellant,
v.
RACHAEL EUTZY; ERIK SLOCUM; CASEY SEIGLE; CITY OF MANCHESTER, NEW HAMPSHIRE,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Barron, Chief Judge, Breyer,* Associate Justice, and Kayatta, Circuit Judge.
Madeline Meth, Boston University Appellate Clinic, with whom Stephen T. Martin, Seth J. Hipple, and The Law Offices of Martin & Hipple, PLLC were on brief, for appellant.
Keelan B. Forey, with whom Matthew V. Burrows and Gallagher, Callahan & Gartrell, P.C. were on brief, for appellees.
* Hon. Stephen Breyer, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. September 16, 2025 KAYATTA, Circuit Judge. This case arises out of a
traffic stop in Manchester, New Hampshire, which escalated into a
physical struggle between several police officers and Brandon
Velez. After Velez did not immediately comply with orders to step
out of his vehicle, two officers physically attempted to remove
him and overcome his firm resistance. In the process, one officer
struck Velez four times and tased him twice. Velez later sued
several of the officers and the City of Manchester (the "City")
under federal and state common law for injuries he sustained during
the incident. In response, they filed a motion for summary
judgment, which the district court granted. Velez v. Eutzy,
No. 23-cv-44-SM-TSM, 2024 WL 2959656, at *1 (D.N.H. June 12,
2024). Velez now appeals. While we conclude that one of the
officers used excessive force, we affirm the district court on all
counts.
I.
As captured in full by the officers' body cameras, the
traffic stop and ensuing altercation unfolded as follows. On
February 22, 2021, shortly after 1:00 a.m., Velez was driving from
a local convenience store back to his apartment in Manchester. On
patrol in a marked police cruiser, Manchester police officers
Rachael Eutzy and Erik Slocum noticed that Velez's vehicle had a
broken headlight. They made a U-turn and began to follow Velez,
during which time they noticed that Velez's vehicle also had a
- 3 - broken taillight. As they followed Velez, he accelerated, turned
left, and then made another left, which the officers viewed as an
attempt to elude them. Shortly thereafter, Velez pulled into his
parking spot, located near where the officers first saw him, and
turned off the car's engine. Velez denies that he was attempting
to avoid the officers and argues that he did not see the police
car's blue lights, which the officers activated while he was
turning off the main road, until he was already parked.
Slocum later declared by affidavit that the address
where Velez parked had prior associations with drugs and
prostitution. The officers exited the police car and approached
Velez's vehicle. Velez was sitting in his car and had both of his
hands up. According to Velez, he had not rolled down his car
window because the window was not working.
Eutzy wore a full department uniform with badge and
insignia. She approached the driver's side and said, "Hey, how we
doing?" She then opened the driver's side car door. Velez
responded, "Why [are] you opening my door? First off, I live here.
That's so disrespectful." Eutzy replied, "Okay, okay. How is
that disrespectful?" Velez said: "You're not supposed to open my
door just like that." Eutzy's tone then became stern, as she
instructed Velez to "[s]top talking." Velez then said, "Okay,
hold up," and reached into his left pocket to retrieve what turned
out to be a cell phone. Immediately, Eutzy instructed him to
- 4 - "[g]et your hands out of your pockets." She told him to "[g]o
ahead and hop out." Rather than complying, Velez responded, "No.
No. You can't, you can't do that." Eutzy then grabbed Velez's
arm and began to pull him out of the car. Velez resisted and began
shouting, "Why are you doing this? Why are you doing this? You
haven't even told me why you pulled me over."
Slocum, who had by this point come around to the driver's
side, yanked on Velez's neck area and told him to "get out of the
fucking car." Velez still resisted. A physical struggle between
the officers and Velez ensued, during which Slocum again instructed
Velez to "[g]et out of the car" and told him that he was "under
arrest." Velez continued to resist getting out of his car, began
shouting for help, and appeared to brace himself against the car
frame as the officers continued to pull on him. Slocum then hit
Velez twice in the abdomen and twice in the head, and tased him
twice. After the second tasing, the officers pulled Velez out of
the car and onto the ground, where they attempted to handcuff him.
By this point, a third officer had arrived at the scene.
Eutzy instructed Velez to "[s]top fighting," and the third officer
told him to "get on your stomach, idiot." Velez responded, "I'm
not fighting" and repeatedly shouted that he "c[ould]n't breathe."
The officers handcuffed Velez behind his back and maneuvered him
to a standing position. By this point, seven police officers were
on the scene. Slocum asked for Velez's name, and the cadre of
- 5 - officers led Velez to a police car. At the police station, Velez
was charged with two misdemeanors and a traffic violation. He
pled guilty to the traffic violation, and the misdemeanor charges
were dropped.
On December 9, 2022, Velez sued the City and several of
its police officers in state court, alleging a suite of federal
and state-common-law claims. The City, Eutzy, Slocum, and another
officer who was on the scene named Casey Seigle (collectively,
"defendants") removed the case to federal court in January 2023
and moved for summary judgment in March 2024, which the district
court granted. Velez now appeals.
II.
We review an order granting summary judgment de novo,
"drawing all reasonable inferences in favor of the non-moving
party." Pac. Indem. Co. v. Deming, 828 F.3d 19, 23 (1st Cir. 2016)
(quoting Roman Catholic Bishop of Springfield v. City of
Springfield, 724 F.3d 78, 89 (1st Cir. 2013)). Against this
backdrop, we proceed to Velez's claims.
A.
We begin with Velez's wrongful-arrest claim (brought
pursuant to 42 U.S.C. § 1983) and false-imprisonment claim
(brought pursuant to state law). The parties agree that both
claims fail if probable cause existed for his arrest. See Holder
v. Town of Sandown, 585 F.3d 500, 504 (1st Cir. 2009) ("An arrest
- 6 - is lawful if the officer has probable cause." (cleaned up)); Ojo
v. Lorenzo, 64 A.3d 974, 983 (N.H. 2013) ("[P]robable cause is a
defense to a claim for false imprisonment resulting from a
warrantless detention.").
The requisites of probable cause are well established.
An officer has probable cause to arrest when the "facts and
circumstances within the officer's knowledge . . . are sufficient
to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense."
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). This is an
objective inquiry, Town of Sandown, 585 F.3d at 504, and is
"determined in light of the information known to the police at the
time of the arrest," United States v. Diallo, 29 F.3d 23, 25 (1st
Cir. 1994). At the summary judgment stage, "when the underlying
facts claimed to support probable cause are not in dispute, whether
those 'raw facts' constitute probable cause is an issue of law
that we must determine de novo." Town of Sandown, 585 F.3d at
504.
Eutzy and Slocum claim that they arrested Velez for two
reasons: (1) resisting orders to exit the vehicle in violation of
N.H. Rev. Stat. Ann. (RSA) 642:2 (2021) and (2) disobeying a police
officer by failing to stop when signaled and refusing to provide
his name to officers when asked in violation of RSA 265:4. Because
- 7 - we conclude that the first rationale supplied probable cause for
Velez's arrest, we decline to address the second.
As a threshold matter, the officers were clearly
entitled to insist that Velez exit his car. See United States v.
Coplin, 463 F.3d 96, 102 (1st Cir. 2006) ("[A] police officer may,
as a matter of course, require the driver of a car lawfully stopped
for a suspected traffic violation to step out of his vehicle.").
This rule is rooted in a concern for officer safety. See
Pennsylvania v. Mimms, 434 U.S. 106, 111 & n.6 (1977). And the
law clearly allows officers to use reasonable force to effect a
lawful detention, including force to overbear resistance. See
Graham v. M.S. Connor, 490 U.S. 386, 396 (1989).
RSA 642:2 makes it a misdemeanor for anyone to
"knowingly or purposely physically interfere[] with a person
recognized to be a law enforcement official . . . seeking to effect
an arrest or detention of the person . . . regardless of whether
there is a legal basis for the arrest." The officers argue that,
because "Velez's refusal to exit the vehicle when ordered to by
Officer Eutzy was illegal" under RSA 642:2, that refusal supplied
probable cause for Velez's subsequent arrest. Insofar as the
officers are contending that Velez's verbal refusal to exit the
car violated RSA 642:2, they may well be mistaken. RSA 642:2
explicitly states that "[v]erbal protestations alone shall not
constitute resisting arrest or detention." But once Eutzy grabbed
- 8 - Velez's arm to remove him from the car, Velez's physical resistance
provided an indisputably sufficient basis for the officers to
conclude that Velez was resisting detention and therefore
committing a misdemeanor in violation of RSA 642:2.
While New Hampshire's criminal code does not define
"detention," its Supreme Court has explained that to "detain" means
"to hold or keep in or as if in custody, to keep back, and to stop
or delay." State v. Kelley, 899 A.2d 236, 238 (N.H. 2006) (cleaned
up). The New Hampshire Supreme Court has also held, in a slightly
different context, that a person's physical resistance to an
officer's attempt to remove him from a space can qualify as
resisting detention under RSA 642:2. See State v. Clay, No. 2018-
0184, 2019 WL 1970210, at *3 (N.H. May 2, 2019) (finding a
violation of RSA 642:2 where the defendant physically resisted an
officer pulling on his arm in order to remove him from a local
board meeting). Moreover, New Hampshire courts have described
traffic stops, which can include protective frisks, as a form of
detention. See State v. McKinnon-Andrews, 846 A.2d 1198, 1201–02
(N.H. 2004); State v. Roach, 677 A.2d 157, 160 (N.H. 1996).
Given this case law, the officers had ample basis to
conclude that requiring Velez to exit his car during the traffic
stop constituted a form of "detention." Cf. State v. Fleury, 364
A.2d 625, 626 (N.H. 1976) (per curiam) (noting that RSA 642:2's
inclusion of the word "detention" was meant "to avoid defenses
- 9 - based on technical distinction between arrest and other forms of
seizures of the person falling short of a full-blown arrest").
They were therefore justified in thinking that Velez's physical
resistance to their subsequent attempts to remove him from the car
violated RSA 642:2.
Velez argues that an arrest occurred the moment Eutzy
grabbed Velez's arm and was therefore unlawful because it was
preceded by no physical resistance. But calling the use of force
employed to effect a detention per se an arrest would run opposite
to the law's recognition that reasonable force can be used merely
to detain. See Coplin, 463 F.3d at 102. And it would ignore New
Hampshire's statutory distinction between arrest and detention.
Velez finally contends that no reasonable officer could
have concluded that Velez was resisting arrest or detention because
he was not given an opportunity to submit before force was used on
him. But the cases Velez cites for this proposition analyzed this
factor in the context of Fourth Amendment excessive-force claims.
See Ciolino v. Gikas, 861 F.3d 296, 303–04 (1st Cir. 2017); Gray
v. Cummings, 917 F.3d 1, 12–13 (1st Cir. 2019). We therefore
address this argument in our excessive-force analysis. Nor do we
see how this argument would alter our thinking here, where the
video evidence clearly depicts Velez first verbally refusing to
get out and then physically resisting the officers' attempts to
achieve compliance. We thus affirm the district court's conclusion
- 10 - that, as a matter of law, the officers had probable cause to arrest
Velez, and that Velez's wrongful-arrest and false-imprisonment
claims fail as a result.
B.
Our conclusion that the officers had probable cause to
arrest Velez also disposes of Velez's claim that he was arrested
in retaliation for protesting Eutzy's conduct and trying to record
their encounter. See Nieves v. Bartlett, 587 U.S. 391, 402 (2019)
("[A] plaintiff pressing a retaliatory arrest claim must [also]
plead and prove the absence of probable cause for the arrest.").
In any event, the undisputed facts do not support the contention
that the arrest was retaliatory. The video clearly shows that the
arrest followed Velez's physical resistance to Eutzy's lawful
command, rather than simply his protestations. Nor does the record
support Velez's assertion that he was arrested for allegedly
attempting to record the officers. The body camera footage shows
Velez retrieving his phone from his pocket during his colloquy
with Eutzy. But he did not turn it on, activate the camera, or
otherwise tell the officers that he was planning to record them.
And neither Eutzy nor Slocum made any comments about Velez
potentially recording the encounter. Cf. Scott v. Harris, 550
U.S. 372, 381 (2007) ("When opposing parties tell two different
stories, one of which is blatantly contradicted by the record, so
that no reasonable jury could believe it, a court should not adopt
- 11 - that version of the facts for purposes of ruling on a motion for
summary judgment.").
For the foregoing reasons, the district court did not
err in concluding that, as a matter of law, Velez was not subject
to a retaliatory arrest. We move on.
C.
1.
Velez also brings Fourth Amendment excessive-force and
common-law assault-and-battery claims against Eutzy and Slocum.
Because "our determination of the reasonableness of the force used
under § 1983 controls our determination of the reasonableness of
the force used under the common law assault and battery claim[],"
Raiche v. Pietroski, 623 F.3d 30, 40 (1st Cir. 2010), we focus our
analysis on the Fourth Amendment excessive-force claim brought
under § 1983.
To determine whether force used in an arrest exceeds
what the Constitution allows, we proceed in two steps. First, we
must ascertain the relevant facts and circumstances. Scott, 550
U.S. at 378. Here, there is no need to have a trial to determine
those facts. Rather, given the video evidence, the record contains
no disputed material facts. Second, we must determine whether,
given those facts, the force used was "objectively reasonable."
Id. at 381. This is a "question of law." Id. at 381 n.8.
- 12 - The key question, therefore, is whether the officers
used an unreasonable amount of force to effectuate their lawful
goal of removing Velez from his car. The border between excessive
and acceptable force is often "hazy," with the result that "a
reasonable officer sometimes may use unreasonable force."
Mlodzinski v. Lewis, 648 F.3d 24, 33 (1st Cir. 2011) (citation
omitted). To determine whether an officer used unreasonable force,
we consider "the totality of the circumstances." Gray, 917 F.3d
at 8. Relevant factors include "the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting
arrest or attempting to evade arrest by flight." Graham, 490 U.S.
at 396.
In considering these factors, we distinguish between the
actions of Eutzy and Slocum. Though Eutzy initiated the use of
force by grabbing Velez's arm after he verbally refused to exit
the car, Slocum escalated that force by yanking on Velez's neck
area and then hitting and tasing him multiple times soon after.
We cannot say that Eutzy's pulling on Velez's arm rose to the level
of excessive force. But we are persuaded that the escalating force
deployed by Slocum without pause or warning -- to the point of
body blows, head blows, and double tasing -- was not reasonable in
its entirety.
- 13 - Many of the Graham factors favor Velez. A trivial
offense prompted the stop. Two officers were present, and the
situation presented no out-of-the-ordinary threats to their safety
(other than the risks incident to even routine stops). See Raiche,
623 F.3d at 37 (noting that the plaintiff posed little threat to
officers because he remained in his vehicle and "never displayed
any weapons or made any verbal threats"). Nor did Velez pose an
active flight risk, since he had parked and turned off his engine.
The district court concluded, Velez, 2024 WL 2959656, at
*8 -- and the officers now argue -- that the force deployed was
reasonable and necessary once Velez began to resist the officers'
efforts to remove him from the car, at least in part to secure
their safety. But the resistance here was passive and its
resoluteness was untested by a conversation or the passing of even
a few moments. And while we do not doubt that Velez's initial
resistance justified some use of force, the video discloses no
need to have immediately escalated that force to multiple blows
and tasing, all within less than a minute from Eutzy's initial
instruction that Velez "hop out." Cf. Est. of Armstrong ex rel.
Armstrong v. Village of Pinehurst, 810 F.3d 892, 897, 901 (4th
Cir. 2016) (concluding that the officers used excessive force
where, among other things, an officer tased the plaintiff after
thirty seconds of the plaintiff resisting attempts to remove him
from a post).
- 14 - Finally, the officers argue that several cases have
described "hard-hand strikes" and "[t]aser deployments" as
"legitimate law enforcement tools." True enough. But those cases
uniformly involved more obvious threats to law enforcement safety
than the circumstances here. See O'Brien v. Town of Bellingham,
943 F.3d 514, 531 (1st Cir. 2019) (plaintiff was "acting
irrationally, cursing and threatening the officers, and trying to
smash a glass window"); Kenney v. Floyd, 700 F.3d 604, 610 (1st
Cir. 2012) (suspect was an "uncooperative motorist[] who posed a
continued risk of flight"); Berube v. Conley, 506 F.3d 79, 84–85
(1st Cir. 2007) (plaintiff acted erratically, wielded a hammer
against an officer, and disobeyed orders to show his hands);
Gaudreault v. Municipality of Salem, 923 F.2d 203, 206 (1st Cir.
1990) (plaintiff was "visibly intoxicated," "yelling at bar
employees," "disturbing the patrons," and "vigorously resist[ing]
arrest"). They therefore shed little light on whether hard-hand
strikes and the tasing of Velez were appropriate in view of the
circumstances.
In sum, after evaluating the "totality of the
circumstances," Gray, 917 F.3d at 8, we conclude that Slocum
violated Velez's Fourth Amendment right to be free from excessive
force.
- 15 - 2.
All that, though, does not mean that Slocum is liable
for damages: The officers invoke a qualified immunity defense.
Qualified immunity "gives government officials breathing room to
make reasonable but mistaken judgments," Ashcroft v. al-Kidd, 563
U.S. 731, 743 (2011), thus shielding from liability "all but the
plainly incompetent or those who knowingly violate the law," Malley
v. Briggs, 475 U.S. 335, 341 (1986). "An officer is entitled to
qualified immunity if an objectively reasonable officer could have
concluded (even mistakenly) that his or her conduct did not violate
the plaintiffs' rights." Johnson v. City of Biddeford, 92 F.4th
367, 375 (1st Cir. 2024) (cleaned up). This is a lenient test by
design. We have cautioned against "second-guessing where the
officers, acting in the heat of events, made a defensible (albeit
imperfect) judgment." Statchen v. Palmer, 623 F.3d 15, 18 (1st
Cir. 2010).1
1 We recognize that "[t]he doctrinal intersection of qualified immunity principles and summary judgment principles" can be murky. Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009). This is "because the summary judgment standard requires absolute deference to the nonmovant's factual assertions," while qualified immunity "demands deference to the reasonable, if mistaken, actions of the [defendant]." Id. at 18–19. To reconcile this tension on an appeal from a final judgment, we follow a two-step approach, "first identifying the version of events that best comports with the summary judgment standard and then asking whether, given that set of facts, a reasonable officer should have known that his actions were unlawful." Id. at 19.
- 16 - The district court did not reach the topic of qualified
immunity, which was raised by the officers as an alternative basis
for summary judgment, instead concluding that no reasonable jury
could find that the officers deployed excessive force. See Velez,
2024 WL 2959656, at *8. But both parties brief the issue on
appeal. See Yan v. ReWalk Robotics Ltd., 973 F.3d 22, 39 (1st
Cir. 2020) (exercising our "discretion to affirm a decision of the
district court on alternative grounds," especially where "the
parties . . . extensively briefed the" alternative grounds on
appeal). And "[t]here can be no question of our power to rely on
a different ground than the district court did in affirming its
judgment." Sands v. Ridefilm Corp., 212 F.3d 657, 662 (1st Cir.
2000); see also Wilber v. Curtis, 872 F.3d 15, 20 (1st Cir. 2017)
(resolving a Fourth Amendment claim on qualified immunity grounds
even though the district court did not reach the issue).
Under the doctrine of qualified immunity, Slocum can be
held liable only if, at the time of his interaction with Velez,
the law "clearly established" that the force that he employed was
excessive. See Wilber, 872 F.3d at 21. And whether the law is
"clearly established" is itself an issue of law subject to de novo
review. Ciolino,861 F.3d at 302. So, we ask, what law "clearly
established" that the amount of force used by Slocum here was
excessive?
- 17 - Certainly, case law clearly established Velez's right
"to be free from the use of excessive force by an arresting
officer." Morelli v. Webster, 552 F.3d 12, 23–24 (1st Cir. 2009).
But that only pins down the right generally; it does not establish
that the conduct here violated that right. See Ashcroft, 563 U.S.
at 742 ("We have repeatedly told courts . . . not to define clearly
established law at a high level of generality."). Hence, the
pivotal inquiry is "whether in the particular factual context of
[this] case, a reasonable officer would have understood that his
conduct violated the right." Mlodzinski, 648 F.3d at 32–33.
In arguing that we should resolve this inquiry in his
favor, Velez first cites a pair of cases -- Raiche, 623 F.3d at
34, and Alexis v. McDonald's Restaurants of Massachusetts, Inc.,
67 F.3d 341 (1st Cir. 1995) -- that he says clearly establish that
the force used on him was excessive. In Raiche, a police officer
tackled a man, who was sitting quietly on his stopped motorcycle,
to the ground with such force that the man sustained head injuries
and the motorcycle was irreparably damaged. 623 F.3d at 34. And
in Alexis, the plaintiff was sitting at a restaurant booth when an
officer, "without asking or directing [the plaintiff] to get up
from the table," violently pulled her out of the booth and across
the table, forcibly handcuffed her, dragged her to the police
cruiser, and pushed her inside. 67 F.3d at 346.
- 18 - The force visited on the unwitting plaintiffs in Raiche
and Alexis differs materially and obviously from the force used on
Velez. In those cases, neither plaintiff was given -- let alone
indicated potential noncompliance with -- a verbal order before
officers used force on them. Neither plaintiff engaged in any
resistance to officers' attempts to detain them. See Raiche, 623
F.3d at 37; Alexis, 67 F.3d at 346. And both Raiche and Alexis
involved inflictions of force that were so plainly grievous against
the plaintiffs' utter lack of resistance that "the level of force
chosen by the officer[s could not] in any way, shape, or form be
justified under those facts." Morelli, 552 F.3d at 24. We cannot
say that Raiche and Alexis so squarely govern the facts here that
they place "the unconstitutionality of the officer[s']
conduct . . . beyond debate." Johnson, 92 F.4th at 375 (citation
omitted).
Second, Velez contends, citing Raiche, 623 F.3d at 38–
39, and Mlodzinski, 648 F.3d at 38, that even absent on-point case
law, it was "obvious" that the officers employed excessive force.
We disagree. It is true that a qualified immunity defense cannot
succeed if "a general constitutional rule already identified in
the decisional law . . . appl[ies] with obvious clarity to the
specific conduct in question." United States v. Lanier, 520 U.S.
259, 271 (1997). "[B]ut if 'officers of reasonable competence
could disagree' on the lawfulness of the action, defendants are
- 19 - entitled to immunity." Mlodzinski, 638 F.3d at 33 (quoting Malley,
475 U.S. at 341). Here, Slocum's use of force was not so obviously
out-of-bounds that it clearly established by its own terms a
constitutional violation. Though we conclude above that excessive
force was used, we think the circumstances nonetheless present a
close case on which reasonable officers might have concluded
otherwise.
"[U]nder the doctrine of qualified immunity, police
officers are . . . entitled to reasonable latitude in making
judgments about how much force is necessary to overcome
resistance." Statchen, 623 F.3d at 17–18. We concluded that
Slocum's escalation of force against Velez crossed the threshold
from "reasonable" to "unreasonable," given the totality of the
circumstances. But this does not mean that the officer's conduct
amounted to "plain[] incompeten[ce]" or a "knowing[] violat[ion
of] the law." Malley, 475 U.S. at 341. Unlike in Raiche, Alexis,
and Mlodzinski, the use of force at issue appears to reflect "the
type and kind of erroneous judgment that a reasonable police
officer under the same or similar circumstances might have made."
Morelli, 552 F.3d at 24. Velez cites no cases clearly establishing
otherwise. Thus, qualified immunity precludes liability on
Velez's excessive-force claim.
- 20 - 3.
"As a general principle, the unfavorable disposition of
a plaintiff's federal claims at the early stages of a suit . . .
will trigger the dismissal without prejudice of any supplemental
state-law claims." Rodriguez v. Doral Mortg. Corp., 57 F.3d 1168,
1177 (1st Cir. 1995). But because this practice "is not compelled
by a lack of judicial power," we "may retain jurisdiction over
state-law claims notwithstanding the early demise of all
foundational federal claims," so long as "the plaintiff's federal
claim is substantial." Id. Exercising this discretion, we turn
to whether state immunity resolves Velez's assault-and-battery
claim.
Here, Velez himself concedes that "[t]he same standard
[as federal qualified immunity] governs New Hampshire immunity for
his state-law assault and battery claims." We hold above that
federal qualified immunity shields the officers from liability for
Velez's excessive-force claim. Assuming New Hampshire law to be
as Velez claims, we similarly dispose of his assault-and-battery
claim. We thus affirm the district court's conclusion that Velez's
common-law assault-and-battery claim fails as a matter of law.
D.
Next, Velez argues that a reasonable juror could find
under both federal and state law that the City failed to adequately
train its officers. A municipality may be held liable under § 1983
- 21 - if the unconstitutional conduct at issue "implements or executes
a policy statement . . . or decision officially adopted and
promulgated by that body's officers." Monell v. Dep't of Soc.
Servs. of N.Y., 436 U.S. 658, 690 (1978). In limited cases, a
municipality's "decision not to train certain employees about
their legal duty to avoid violating citizens' rights may rise to
the level of an official government policy for purposes of § 1983."
Connick v. Thompson, 563 U.S. 51, 61 (2011). For this to be the
case, a municipality's failure to train "must amount to deliberate
indifference to the rights of persons with whom the untrained
employees come into contact." Id. (cleaned up).
To the extent that Velez's claims are predicated on the
City's failure to train officers on how to respond to First
Amendment-protected conduct, those claims necessarily fail. As we
conclude above, Velez's retaliatory-arrest claim does not state a
First Amendment violation. And "[i]f . . . the officer has
inflicted no constitutional harm, neither the municipality nor the
supervisor can be held liable." Wilson v. Town of Mendon, 294
F.3d 1, 6–7 (1st Cir. 2002). We thus center our discussion on
Velez's argument that the City did not adequately train its
officers on excessive force.2
2 There is a colorable argument that Velez has waived this claim. He mentions excessive force in his failure-to-train argument only in relation to his retaliatory-arrest claim, rather than briefing it separately. But because we conclude that Velez's
- 22 - On this score, though, Velez's argument is thin. When
assessing a city's liability under a failure-to-train theory, we
focus on the "adequacy of the training program in relation to the
tasks the particular officers must perform." City of Canton v.
Harris, 489 U.S. 378, 390 (1989). "If a program does not prevent
constitutional violations, municipal decisionmakers may eventually
be put on notice that a new program is called for." Bd. of Cnty.
Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 407 (1997). But
Velez does not argue that the City's use-of-force training
materials are inadequate. To the contrary, the record shows that
Manchester police officers receive training on the proper use of
force at the New Hampshire Police Academy. The Manchester Police
Department also conducts its own use-of-force training and
periodically reviews its use-of-force policy. And all officers
are required to undergo annual training on various topics related
to law enforcement, including the proper use of force. Velez does
not contend otherwise.
Instead, Velez attempts to anchor his municipal
liability claim in a single incident of alleged misconduct: his
arrest. But "a pattern of similar constitutional violations by
untrained employees is ordinarily necessary to demonstrate
deliberate indifference for purposes of failure to train."
failure-to-train argument fails as to excessive force, too, we assume without deciding that he has preserved it.
- 23 - Connick, 563 U.S. at 62 (cleaned up); see also St. Hilaire v. City
of Laconia, 71 F.3d 20, 29 (1st Cir. 1995) ("Evidence of a single
incident is usually insufficient to establish a custom or usage."
(cleaned up)). This is so because "continued adherence to an
approach that [policymakers] know or should know has failed to
prevent tortious conduct by employees may establish the conscious
disregard for the consequences of their action -- the deliberate
indifference -- necessary to trigger municipal liability."
Connick, 563 U.S. at 62 (quotation marks and citation omitted).
Velez parries by invoking a theory of supervisory
liability: He points to Slocum's failure to deescalate the
situation, the City's failure to conduct an after-the-fact
investigation, and another police officer's approval of Eutzy's
and Slocum's uses of force as evidence of "supervisory
encouragement, condonation and even acquiescence in the
unconstitutional practice." Bordanaro v. McLeod, 871 F.2d 1151,
1157 (1st Cir. 1989) (quotation marks and citation omitted). The
fact that the officers "acted in concert," Velez asserts, "is
further evidence that there was a pre-existing practice of"
excessive force. Id. at 1156.
The mere fact that the officers participated in, or did
not object to, the forcible removal of Velez from his car, however,
does not perforce demonstrate an unlawful municipal custom.
Indeed, we reaffirmed this principle in Bordanaro. There, we
- 24 - underscored "that evidence of a single event alone cannot establish
a municipal custom or policy," but "where other evidence of the
policy has been presented and the 'single incident' in question
involves the concerted action of a large contingent of individual
municipal employees, the event itself provides some proof of the
existence of the underlying policy or custom." Id. at 1156–57.
Unlike in Bordanaro, where the jury was presented with additional,
uncontroverted evidence of a widespread, unlawful arrest practice,
id. at 1156, Velez asks us to infer a municipal custom of
inadequate training from the actions of officers during and
immediately following one incident of arrest. Velez points to no
specific training deficiencies responsible for such supervisory
acquiescence. Nor does he establish "that the lack of proper
training, rather than a one-time negligent administration of the
program or factors peculiar to the officer[s] involved in a
particular incident, is the 'moving force' behind [his] injury."
Brown, 520 U.S. at 407–08. In other words, Velez's "approach
provides a means for circumventing [the municipal-policy
requirement] altogether." City of Oklahoma City v. Tuttle, 471
U.S. 808, 823 (1985).
Velez's state-law claim fails for many of the same
reasons. Under New Hampshire law, a failure-to-train claim sounds
in negligence. See Cutter v. Town of Farmington, 498 A.2d 316,
319 (N.H. 1985). The relevant inquiry "is whether the [officers]
- 25 - were incompetent, inexperienced or unskilled in a way that caused
injury, the risk of which was within the scope of their employment
and was known to the employer-municipality." Id. at 320. The
focal point is not "whether the harm occurred because of the
[officers'] inattention or negligence," but whether the employer-
municipality "had reason to foresee" that the officers would
inflict unwitting harm due to inexperience or incompetence on the
job. Id. Here, Velez marshals no evidence suggesting that Eutzy's
or Slocum's supervisors, or the City more broadly, "knew or should
have known of a risk of [Slocum's] incompetence in the use of
force." Levy v. Lique, No. 10-cv-00374, 2012 WL 1600174, at *8
(D.N.H. May 7, 2012). To the contrary, "the uncontested evidence
shows that [the officers] received annual training on the broadly
utilized continuum of force." Id. Without more, Velez's state-
law claim cannot succeed.
III.
For the foregoing reasons, we affirm the judgment in
favor of defendants. The parties shall bear their own costs.
- 26 -