16-480(L)

Outlaw v. Allen 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECON D C IRCUIT 3 - - - - - - 4 August Term, 2016 5 (Argued: January 17, 2017 Decided: March 7, 2018) 6 Docket No. 16-480( L), 16-635(XAP) 7

_________________________________________________________ 8 TYLON C. OUTLAW, 9 Plaintiff-Appellant-Cross-Appellee, 10 - v. - 11 CITY OF HARTFORD, 12 Defendant-Appellee, 13 OFFICER MICHAEL ALLEN, in his individualcapacity, 14 Defendant-Cross-Appellant, 15 DETECTIVE TROY GORDON, in his individualcapacity, 16 Defendant . * 17

_________________________________________________________ 18 Before : KATZM ANN, Chief Judge, KEARSE and LIVI NGSTON, Circuit Judges .

* The Clerk o f Court is directed t o amend the offi ci al capti on to conform wi th the abov e.1 Appeal by plainti ff from s o much of a judgment of the United States 2 District Court for the District of Conne cticut , Geoffrey W. Crawfor d, Judge, as granted 3 summary judgment dismi ssing his claim s against defendan t City of Hartford (the 4 "City"), brought principally under 42 U.S.C. § 1983, for failing to supervise its police 5 officers with resp ect to appropr iate use of force; cr oss-appe al by defendant police 6 officer Mi c h a e l A ll en from so much of the judgment as order s him to pay plainti ff 7 $454,197 in dama g e s following (a) expr ess jury findings that All en injured plainti ff 8 by intentionally or re cklessly using exce ssive force, in viol ation of the Uni ted States 9 Constitution and th e Constitution of the State of Conne cticut , and (b) the court's 10 ruling that All en is not entitl ed to qual ified immunity. Plaintiff contends principally 11 that the district court err ed in granting summary judgment in favor of the City, given 12 evidence he proffer ed to show deliberate indifferen c e b y the City to numerous 13 civilian complaints of exce ssive force by its police officers. Defe ndant All en contends 14 principally that he is entitl ed to qual ified immunity on the constituti onal c la ims 15 because of the jury's verdict in his fav o r on plainti ff's claim against him for assault 16 and battery in violati on of state law, an d that factual findings b y the district court-- 17 which the parties had agreed should re s o lv e a ll aspects of his qual ified immunity

21 defens e--should be set aside as incons is tent with factual findings he imputes to the 2 jury. 3 On the appeal, we conclude that the district court did not err in granting 4 summary judgment in favor of the City on plainti ff's municipal li abili ty claim s on the 5 ground tha t the evidence proffer ed by plainti ff was insuffici ent to permit an inference 6 of deliberate indifference. We conclude that the cross -appeal is without merit given 7 that as to an affirmative defens e of qualified immunity, the bu r d e n is on the 8 defendan t to prove the neces sary factual pred ic a te s b y a prepon derance of the 9 eviden c e ; th at in order to avoid having the court instruct the jury that he had that 10 burden, All en chose not to have submi tted to the j ury the fact questions as to which 11 he now wants favorable answer s pres umed; an d that the p e r tinent factual findings 12 made by the district court are not inconsistent with the jury's answer s to the questions 13 that were pos ed. 14 Affirmed. 15 RAYMOND J. RIG AT, C linton, Conne cticut , for 16 Plaintiff-Appellant-Cross-Appellee . 17 NATHALIE FEOLA-GUERRI ERI, Senior Assistant 18 Corp oration Counse l, Hartford, Conne cticut , for 19 Defendant-Appellee . 31 WILLIAM J. MELLEY III, Hartford, Conne cticut , for 2 Defendant-Cross-Appellant .

3 KEARSE, Circuit Judge : 4 Plaintiff Tylon C. Outlaw a p p e a ls from so much of a judgment of the 5 United States District Court for the District of Conne ctic u t, Ge o ffrey W. Crawfor d, 6 Judge , as summarily dismi ssed his claim s against de fendant City of Hartford (the

* * 7 "City"), b rought principally under 42 U.S.C. § 1983, all eging d e liber ate indifference 8 in the supervis ion of police officers with resp ect to appropr iate use of force, and 9 seeking to hold the City resp onsible for the use by defendan t Michael All en, an officer 10 in the Hartford Poli ce Depar tment ("HPD"), of exce ssive force to a r r e s t O u tlaw, in 11 viol ation of his rights under the Fourth Amendment to the United States Constitution 12 and under the C o n s ti tuti on of the State of Conne cticut . The district court granted 13 summary judgm ent to the City, dismi ssing those cl aims on the ground that Outl aw 14 proffer ed insuffici ent evidence to p e r mi t an inference that the City had a policy or 15 c u s to m o f failing to s upervise its police officers in the use of force or that the City's

** Judge Geoffrey W. Cr awford, of the United Stat es Di stric t Co urt forthe Di stric t of Vermont, sitting by desi gnation. 41 c u s toms or polici es caused Outlaw' s injuries. See Outlaw v. City of Hartford, N o . 2 3:07-cv-01769, 2015 WL 1538230, at *6-*12 (D. Conn. Apr. 6, 2015) (" Outlaw I"). Outlaw 3 contends that summary judgment w a s in a p p ro p ri a te, giv en the evidence he proffer ed 4 to show that the City had e x h ib ited deliberate indifference to numerous civil ian 5 complaints of exce ssive force by its poli ce officers . 6 All en cross -appeals from s o mu c h of the district court's judgment as 7 order s hi m to pay Outlaw $454,197 in damages following expr ess jury findings that 8 All en injured Outlaw by intentional ly or reckless ly using exce ssive force, in viol ation 9 of the United States and Conne cticut Constitutions. All en contends that he is entitl ed 10 to qual ified immunity on those claim s in li ght of the jury's verdict against Outlaw on 11 O u tl a w 's claim for assault and battery in viol ation of state law, and that posttrial 12 factual findings by the district court, made in ruling that All en is not entitl ed to 13 qualified immunity for the constituti onal viol ations, see Outlaw v. City of Hartford, No. 14 3:07-cv-01769 , 2 0 16 WL 591753 (D. Conn. Feb. 12, 2016) (" Outlaw II"), should be set 15 aside as inconsistent with findings that All en imputes to the jury. 16 On the appea l, w e c o nclude that the district court did not err in r uling 17 that the evidence proffer ed by Outlaw in support of his munici pal li abili ty claim s was

51 insuffici ent to permit an inference of deliberate indifference on the part of the City to 2 the use of exce ssive force by HPD officers. On the cross -appeal, we conclude that 3 All en's contentions are without merit given that, as qual ified immunity is an 4 affirmative defens e, the burden was on All en to prove b y a p repon derance of the 5 evidence any factual predicates neces sary to establish that defens e; that in order to 6 avoid having the court instruct the jury that h e had that b urden, All en chose not to 7 have submitted to th e ju r y the fact questions as to which he now wants favorable 8 answer s pres umed; th at the jury's answer s to the interrogatories accompanying its 9 verdict did not imply the factual findings that All en imputes to the jury; and that the 10 p ertinent factual findings by the district court are not inconsistent with the ju r y 's 11 answer s to questions that were posed.

12 I. BACKGROUND

13 On the night of Dece mber 1 7, 2004, All en and HPD Detective Troy 14 Gordon confronte d and arre sted 30-year-old Tylon Outlaw on a downtown stree t in 15 Hartford, Conne cticut . Outlaw was charged with bre ach of peace, being intoxicated

61 in the roadway, threatening a police officer, and assault o n a police officer. The 2 charges were res o lv e d in 2005 by Outlaw' s entry of an Alford plea to the offense of 3 creating a public disturbance, see North Carolina v. Alford, 400 U.S. 25 (1970), which is 4 "'simply a guil ty plea, with evidence in the recor d of guil t, typical ly accompanied by 5 the defendan t's protestation of innocence and his or her unequivocal desire to enter 6 the plea,'" Outlaw I , 2015 WL 1538230, at *2 n.1 (quoting Abimbola v. Ashcroft, 378 F.3d 7 173, 181 (2d Cir. 2004) (other internal quotation marks omitted)). The arre st occurre d 8 after All en had repe atedly struck Outlaw with a police baton, bloodying his head in 9 sever al places and breaking his knee . 10 Outlaw brought the pres ent § 1983 action in 2007 against All en, Gordon, 11 and the City, alleging p rincipally that Allen and Gordon had caused h is inju ries by 12 using exce ssive force in viol ation of the Fourth A mendment, and that the City was 13 li able for their conduct because it had a policy or custom of deliberate indifference in 14 failing to train and supervise its police officers as to appropr iate use of force during 15 an a rre st. Outlaw also asser ted claim s under the Conne cticut Constitution and 16 Conne cticut

common l aw.

71 A. Pretrial Rulings 2 F o ll owing years of discovery, defendan ts moved fo r summ a ry j u d gm ent 3 dismi ssing the complaint. In Outlaw I , the district court granted the moti on to dismi ss 4 th e Fourth Amendment claim and simi lar state-law claim s against the City, ru li n g, 5 to the e x tent pertinent to Outlaw' s appeal, that the evidence Outlaw proffer ed was 6 insuffici ent to establish that the City had a policy or custom of indifference that 7 caused Outlaw's injuries ( seePart II I below). 8 The district court d e n ie d the indivi dual defendan ts' moti ons for 9 summary judgment dismi ssing the Fourth Amendment and Conne cticut 10 constituti onal claim s of exce ssive force and the state-law claim s of intentional 11 infli ction of emotional distress, ruling that there were genuine issues of material fact 12 to be tried. S e e O utlaw I , 2015 WL 1538230, at *3-*6, *12-*14. The court granted the 13 moti ons to dismi ss Outlaw' s other constituti onal and state-law claim s; however, 14 following a moti on by Outlaw for reconsideration, it reinstated the state-law claim s 15 against Gordon and All en for as sault and battery.

81 B. The Trial 2 In 2016, Outlaw' s surviving constituti onal and common-l aw tort claim s 3 against All en and Gordon were tr ie d to a jury, which heard two versions of the 4 Dece mber 2004 incident: one from Outlaw and sever al bys ta n d e rs, the other from 5 All en and Gordon.

6 1. Outlaw's Testimony 7 Outlaw testified that on the night of Dece mber 17, 2004, he drove to 8 downtown Hartford to meet his friend Nick Sackandy at a restauran t on Union Place 9 (the "Restaurant") to discuss a propose d business venture. Outlaw arrived around 10 10 p.m., drank most of one beer, and left around 11:00 or 11:15. As he was returning to 11 his car, walking south on U n io n Pl ace toward its intersection with Allyn Stree t, 12 O utlaw heard his name being called from a double-parked taxi; the driver was h is 13 high school friend Anthony Carr oll. While Outlaw was cross ing the stree t toward the 14 tax i, a Ford Taurus was inching north on Union Place toward the taxi, and th e 15 T au ru s' s d riv er- - wh o Ou tl aw l a ter l ea rned w a s De tectiv e G o rdon--shouted at Outlaw, 16 "hey, m other fucker" (Trial Transcr ipt January 4, 2016 ("Jan. 4 Tr."), at 27). Thinking

91 the driver might be an acquaintance, Outlaw returne d the greetings (character ized at 2 trial as "inner city" "pleasantries" (Trial Transcr ipt January 5, 2016 ("Jan. 5 Tr."), at 50; 3 J a n . 4 Tr . 54)), then walked around to the driver side of the taxi. As Outlaw was 4 speaking with the rear -seat passen gers, who were also friends of his, the Ta u r us, 5 which bore no markings to indicate that it was a police vehicle, pull ed up behind the 6 taxi; Gordon, who had not identifi ed hi mself as a police officer, summoned Outlaw 7 to the Taurus. Outlaw waved hi m off. The T aurus then slowly moved past the taxi 8 and stopped two or thr ee carlengths ahead. 9 Gordon, dress ed in plain clothes, jumped out of his car and approache d 10 Outlaw "aggress ively" (Jan. 5. Tr. 59), carrying a black object that Outlaw thought was 11 a gun. Gordon kicked Outlaw in the stom ach, which did not hurt him but sent hi m 12 stumbling b a c kw a r d . ( See id . at 63; Jan. 4 Tr. 36-37.) Gordon kicked again toward 13 Outlaw, but Outlaw blocked that ki ck with his hands; however, at almost the same 14 instant Outlaw was struck on the b ack of his head with "a bat-like object" (Jan. 4 Tr. 15 37), which he even tually learned was a police baton wielded by Allen. 16 Outlaw fell to the ground, yelling for help. While on the ground on his 17 back or cur led into a fetal position, he was repe atedly struck in the head, ar ms, and

101 legs with a baton and was kicked in the back and stomach. Outlaw had not s a id 2 anything to Gordon after their initial exchan ge of "pleasantries" (Jan 5. Tr. 56-57); he 3 had never moved in Gordon's direction, never raised his hand, and never attempted 4 to punch or kick Gordon; Outlaw' s only attempt to defend himself was to curl up and 5 try to cover targeted areas of his body. He testified that while he was down, Gordon 6 kicked himin the face; and whenOutlaw tried to cover his face and he ad, All en hit 7 him in the right kn ee with the baton, bre aking the kn e e c a p , leaving Outlaw unab le 8 to move his leg, and causing him the most pain that he (a former high school, college, 9 and profe ssional footballplayer) had eve r ex perience d. 10 Outlaw testified that Gordon never displayed a badge; and during the 11 incident, neither Gordon nor All en ever identifi ed himself as a police officer. Outlaw 12 had the impression that there were people other than All en and Gordon hitting and 13 kicking him while he was on the ground (in his deposition, O u tl a w h a d said that 14 Gordon, after initial ly kicking him in the stomach, had no t kicked or punched him 15 again ( see Jan. 5 Tr. 69)). Outlaw testified that none of the people hitting or kicking 16 him i dentified themselves as police officers. 17 Eventually All en placed Outlaw face down on the pavement and cuffed

111 his hands be hind his back. He then gr abbed O utlaw by the coll ar, dragge d him for 2 60-odd feet, and threw h im to the pavement between parked cars, where Outlaw 3 landed on his face. While the y a w aited the arrival of an ambulance, blood was 4 dripping from Outlaw 's head and face. 5 At the hospital, Outlaw r eceived stitches to his eyebr ow and staples in 6 thr e e o th e r p lace s on his head. Surger y was perfor med on his broke n kneecap; a 7 metal strip wa s in s ta ll e d in the knee to c over the kneecap, held in place with metal 8 scre ws. After the knee surger y, the police shackled Outlaw' s legs to his bed. Outlaw 9 endure d a lengthy convalescence . He neede d crutches or a cane for six months and 10 had two additi onal operations on his knee .

11 2. Testimony by Onlookers 12 Rachel Ki ll ian-Lall ier ("Ki ll ian") was a passen ger in Carr oll' s taxi on the 13 night in question. She testified that she and her then-boyfr iend, in the back seats, and 14 Carr oll and his uncle, in the front seats, were chatting with Outlaw, who w as 15 standing on the driver side of the taxi, when a car came along and parked about a car 16 length away. A man--undisputedly Gordon--got out of the car; he was not wearing

121 any kind of police u niform, and Ki ll ian never saw a badge on him or heard him 2 indicate to anyone that he was a police officer. Gordon appeare d to be "very angry" 3 and "walk[ed] very aggress ively towards" Outlaw, as if he were on a mission (Jan 5. 4 Tr. 103, 113); he kicked Outlaw, apparen tly in the abdomen. Soon a number of other 5 people, including police officers, arrived and piled onto Outlaw, who was on the 6 ground, and be gan punching him. 7 Ki ll ian testified that Outlaw had never moved toward Gordon, and that 8 she never heard Gordon or the others who piled onto Outlaw identify themselves as 9 police officers. 10 Carr oll, the taxi's driver, similar ly d e s c ribed Gordon as "angry" and 11 "raged." (Jan 5. Tr. 142.) He testified that he saw G ordon rush from his vehicle and 12 kick Outl aw and that he saw se veral other people, some in poli ce uniforms, rush in 13 to punch O u tl a w a n d pile on him on the ground. Carr oll never heard Gordon 14 identify himself as a police officer; it w as only when Car roll l eft his taxi to check on 15 O u tl a w at the bottom of the pile of people hitting him that Carr oll saw Gordon 16 remove a badge from under his sh irt.

131 Sa c k a n d y testified that in the meeting at the Restaurant, Outlaw had 2 drunk one beer and no other alcohol. Outlaw had left after about an hour. Sackandy 3 testified that not l ong after Outlaw left, John Stenge l, a friend of Sackandy, arr ived, 4 excitedly saying that Hartford policemen were "beating th e shit out of some guy 5 outside." (Jan. 5 Tr. 126, 129.) 6 Stengel, who on Dece mber 17, 2004, had never met Outlaw and had not 7 socialized w ith him since, testified that he had been walking north on Union Place 8 that night toward the Restaurant when he saw a "pretty brutal" interaction involving 9 five or six people, some in police uniform, "beating s o me b ody up pretty badly, 10 kicking, throwing punches." ( Id . at 170, 172.) Stengel saw no resistance by the pers on 11 who was on the gr ound being beate n.

12 3. The Testimony of Gordon 13 Gordon testified that on the night of Dece mber 1 7, 2 0 04, befor e his 14 encounter with Outlaw, he had resp onded to a repor ted assault on A llyn Stree t. At 15 Allyn Stree t, he did not see a fight, and it was decided that there was nothing for the 16 police to do. Gordon then drove to th e e nd of Allyn and turned right onto Union

141 Place, a one-way stree t. Gordon saw cars parked along both sides of Union Place and 2 saw a double-parked vehicle on the left, with a man--Outlaw, whom Gordon did not 3 know--standing at the front passe nger-s ide window. 4 Gordon te s ti fie d th a t h e a s k e d O u tl a w to p le a s e mo v e o u t o f th e 5 roadway. Gordon was driving a Ford Taurus with no visible police in d ic ia, was 6 dress ed in pla in c lo th e s, and did not identify himself as a police officer. Gordon 7 testified that Outlaw resp onde d , "why don't you shut the F[uck] up." (Trial 8 Transcr ipt January 6, 2016 ("Jan. 6 Tr."), at 87). Gordon repe ated his request, to which 9 Outlaw resp onded, "why don't you get out of the car and see what happens ." ( Id . 10 at 89.) Gordon began driving away; but whenhe hear d Outlaw say, "i f you get out 11 o f th a t car I' m going to kick your A[ss]" ( id .), he interprete d that as a threat and 12 decided to arre st Outlaw. He parked his car some two car lengths ah e a d o f the 13 double-parked car--wher e Outlaw, Gordon testified, was stil l on the passen ger side-- 14 and moved his badge from under his shirt to the surface of his clothing to ma ke it 15 visible. 16 With his radio in hand, Gordon exited his car and approache d Outlaw. 17 He testi fied that Outl aw moved toward him and threw a punch, striking him in the

151 upper ch est; Gordon leaned b ack and defen sively ki cked Outlaw in the shin. After 2 that kick, he never touched Outlaw again. Gordon testified that he never announced 3 that he was a police officer "bec ause [he] did not have tim e." (Jan. 6 Tr. 137.) Other 4 officers appeare d suddenly and subdued Outlaw, taking him to the ground. Gordon 5 neverheard anyone identify him self as a police officer.

6 4. The Testimony of Allen 7 All en testified that on the night of Dece mber 17, 2004, he was on patrol 8 in uniform and driving a police cruiser; he was dispatched to Allyn Stree t to deal with 9 a repor t of a s e r io us assault. Gordon also arrived at the scene in resp onse to the 10 repor t. When the officers did n o t fin d there either a suspect or a victi m, they left 11 Allyn Stree t. Gordon, in his unmarked car, turned right onto Union Place; All en, in 12 his cruiser, followed. 13 All en testified th a t on Union Place, he saw an indivi dual--eventually 14 identifi ed as Outlaw--standin g a t the passen ger side of a taxi and that Outlaw was 15 "block[ing] the flow of the northbound traffic th a t could have gone around the 16 taxicab" (Jan. 6 Tr. 160). All en s to p p e d his cruiser after Gordon had stopped his

161 unmarked car and e xited, blocking traffic. 2 All en had not seen or hear d a ny convers ation between Gordon and 3 Ou tl a w . He testified that he saw Gordon approach Outlaw and then saw Outlaw 4 "lunge" toward Gordon and throw " s ever al punches to [Gordon's] face and chest 5 area." ( Id . at 163.) All en testified that he exited his cruiser, "hollered," and "identifi ed" 6 himself as a police officer. ( Id . at 165.) He testified that Outlaw had grabb ed Gordon's 7 clothin g, a n d a s Outlaw cocked his right arm to deliver another blow, All en struck 8 Outlaw' s right biceps with his baton. Outlaw did not react, but cocked his arm to hit 9 Gordon again. All en, attempt in g to protect Gordon from serious injury, swung at 10 Outlaw' s arm a secon d tim e. 11 All en descr ibed Outlaw as dropping to the ground "on his butt and 12 elbows" and assaulting All en with his legs, "viol ently struggling w i th [ A ll en] resisting 13 arre st." ( Id . at 166-67.) Other officers came to All en's assistance in making the arre st. 14 All en testified that he had used only neces sary force, that there were no unneces sary 15 blows. All en swung his baton at Outlaw' s thigh and calf; he testified that he did not 16 hit Outl aw's knee.

171 All en testified that when he "was escor ting Mr. Outlaw to the cr u is e r, " 2 he "noticed the re was some blood on [Outlaw' s] s calp." (Jan. 6 Tr. 166.) He said h e 3 "assumed" that he had hit Outlaw' s head with his nightstick. ( Id .) He acknowledged 4 that he had testified in deposition th at his second swing had struck Outlaw in the 5 head.

6 5. The Verdicts 7 After being instru c te d a s to the law governing Outlaw' s claim s of 8 exce ssive fo r c e in v iolation of the United States Constitution and the Conne cticut 9 Constitution ( see Part II.B. below) and his state-law claim s of assault and battery ( see 10 Part II .C. be low) and intenti onal inflicti on of emotionaldistress (or"II ED"), the jury 11 was given a Verdict Form containing interroga to r ie s a sking whether Outlaw had 12 proven those claim s and had p r o ven that either defendan t's conduct caused him 13 injury. Each set of questions dealt separately with Al len or Gordon. 14 Th e jury found that Outlaw had not proven any of his claim s a g a in s t 15 Gordon. It answer ed "No" to the questions whether Gordon had used exce ssive force, 16 or had applied force or viol e nce in an unlawful manner, or had acted in a manner

181 intended to subject Outlaw to emotional distress. ( See Verdict Form questions 1, 7, 13, 2 17.) 3 As to All en, the jury found th a t O utlaw had proven that All en used 4 exce ssive force, had done so intentional ly or reckless ly, and had thereb y caused 5 Outlaw injury. The questions and answer s were : 6 II. FEDE RAL CIVILRIGHTS CLAIM AGAINST DEF ENDANT 7 ALL EN 8 4. Did defendan t Michael All en employ exce ssive force 9 against plaintiff on Decembe r 17, 2004? YES . 10 5. Did defendan t Mi ch ael All en act intentional ly or 11 reckless ly in e mploying exce ssive force against 12 plainti ff on De cember17, 2004? YES . 13 6. Did the use of exce ssive force by defendant Michael 14 All en cause p laintiff to suffer injury? YES . 15 (Verdict Form questions 4-6.) 16 IV. CONNECTICUT CONSTITUTIONALCLAIMS AGAINST 17 DEFE NDANT ALLE N 18 10. Did defendan t Michael All en violate the plaintiff's 19 civil rights under the Conne cticut Con s titution by 20 employing exce ssive force against plainti ff [o]n 21 Dece mber 17, 2004? YES . 22 11. Did defendan t Michael All en act inte n ti onally or 191 reckless ly in employing exce ssive f o r c e against 2 plainti ff on De cember17, 2004? YES . 3 12. Did the u se of exce ssive force by defendant Michael 4 All en cause p laintiff to suffer injury? YES . 5 (Verdict Form questions 10-12.) Th e ju r y f ound, however, that Outlaw had not 6 provenhis state-law cl aims against Allen for assault and battery or IIED: 7 VI. ASSAULT and B ATTERY CL AIM AGAINST DEFE NDANT 8 ALL EN 9 15. Do you find th a t defendan t Michael All en applied 10 force or viol ence to plainti ff's body in an unlawful 11 manner? NO . 12 . . . . 13 VIII. INTENTIONAL INFLICTION OF EMOTIONAL 14 DISTRESS CLAIM AGAINST DE FENDANT AL LE N 15 20. Did defendan t Michael All en act towards plainti ff in 16 a manner intended to infli ct emotional distress or 17 which he shou l d have known would cause emotional 18 distress? NO . 19 (Verdict Form questions 15, 20.) 20 The Verdict Form instructed the jury that if it answer ed "Yes" to any set 21 of questions against either defendan t, it sho uld determine the damages Outlaw 22 should recove r for the injuries proven . Having found against All en on the exce ssive 201 force claim s, the jury awarded Outlaw $408,197 for pain, sufferin g , em o ti on a l d i stress , 2 and loss of enjoyment of li fe. ( See Verdict Form Part IX.) Although the jury awarded 3 Outlaw $111,803 for past and future medical expe nses, the parties stipul ated that that 4 sum should be reduce d to $46,000.

5 C. The Court's Rulings on Allen's Defense of Qualified Immunity 6 No questions had been submitted to the jury as to facts for predicates of 7 the individ u a l d e fendants' defens e of qual ified immunity. In the confer ence 8 discussing the instructions to be given to the jury, the court had stated that if it posed 9 such questions, it would instruct the jury that as to those factual issues, the burden of 10 proof is on the def e n d a n ts. ( See Char ge Confe rence January 6, 2016 ("Conf. Tr."), 11 at 11-12 ("[T]he burden of proof is different . . . . So if they a r e g o in g to be making 12 factual determinations . . . they have to b e applying the right burden of pr oof. And 13 it' s di ffere nt [as t o] qual ified immunity because it' s on . . . the defense as opposed to 14 on the plainti ff that carries it for ever ything else. . . . I' m not going to do it unless I can 15 explain to them what questions they are answer ing . . . and who['s] got the burden of 16 proof.").)

211 Counse l for All en and Gordon resp onded that that wo u ld b e "very 2 confusing" ( id . at 12) an d u ltimately asked that n o questions b e put to the jury as to 3 facts on which the q uali fied immunity defens e wou ld be predicated ( see id . at 36-39, 4 40, 42). The parties agreed that any neces sary factual findings would be made by the 5 court. Defe nse couns el said, "Your Honor has that on yourlap, period." ( Id . at 37.) 6 Foll owing the jury's verdict against All en on the exce ssive force claim s, 7 All en and Outlaw submitted briefs with regar d to the defens e of qual ified immunity. 8 All en argue d principally that 9 by finding Detective Gordon not resp onsible for any tort, the jury 10 rejected th e majority of the plainti ff's claim s. The issue of the 11 conduct of the plaintiff was found to necessitate the actions of Detective 12 Gordon . The movement of th e p la inti ff, his language, his 13 aggress ive action, his failu re to stop and his gener al demeanor, all 14 as descr ibed by Detective Gordon, were found to be contrary to the 15 statements of the plainti ff. 16 (Defe ndant Michael All en's Brief Regarding Quali fied Immunity ("All en's QI Mem.") 17 at 2 (emphases added); see als o i d . at 4 ("The jury believed Detective Gordon's 18 testimony that

the Plaintiff hit

, or was attempting to hi t, him .").) 19 All en also argued th a t b e c a use the jury found against Outlaw on his 20 claim of assault, it "had to have found that [Allen's] actions were justifi ed under state

221 law." ( Id . at 4 (emphasis added); see id . at 6 ("The court had charged the jury on the 2 justi fic a tion for force which presumably the jury found. Because the jury of necessity 3 found that the applicati on of the force was not unlawful, O ffic e r All en is entitl ed to 4 qual ified immunity for his actions." (emphases added))). He noted that the court had 5 instructed in part as follows: 6 "Under Conne cticut law, a police officer is justifi ed in using 7 physical force upon another person when and to the extent he or 8 she reaso nably believes such to be neces sary to effect an arre st or 9 to defend himself or hers el f o r a th ird party from the use or 10 imm inent use of physical force while e ffecting or attempting to 11 effect an ar rest. . . . 12 In determining whether a defendan t reaso nabl y believed 13 that the use of physical force was neces sary to arre st plainti ff or to 14 preve nt him from harming the officers or others, you should take 15 into account all of the ci rcumstances of the incident. You should 16 consider this instruction in deciding whether the defe n d ants 17 viol ated the Conne cticut Con sti tu ti on o r c o mmi tted an assault and 18 battery upon the p laintiff." 19 ( Id . at 7 ( qu o ti n g Jury Instructions and Trial Transcr ipt January 7, 2016 ("Instr./Tr. 20 Tr."), at 24-25) (emphasis omitted).) All en argued that in li ght of this charge, the jury's 21 verdict in his f a v o r on assault and battery " represents specific findings " that he 22 "reason ably could have believed," and did "reasonabl[y] believe []" that "the force he used 23 was reaso nable and neces sary to effectuate [Outlaw' s] arre st." (All en's QI Mem. at 7-8 231 (emphases added).) 2 All en also argued th a t he w a s "entitl ed to qual ified immunity because his 3 actions did not viol a te any clearly established statutory or constituti onal right 4 concer ning the use of batons where a fellow officer was being a s s a u l t ed ." ( Id . at 4 5 (emphasis added ) . ) He argued that "[t]he United States Supre me Court has not 6 addres sed the use of batons in the context of exce ssive force claim s," and that a district 7 court case had held it "not [to be] exce ssive force for an officer to use his baton against 8 three men who were appro a c h i n g him threateningly, at least one of whom had been 9 drinking." ( Id . at 3, 4 (emphasis added).) 10 In Outlaw II , the district court rejecte d All en's contentions and made 11 findings of specific facts as to which the jury h a d b e en asked no questions. As to 12 Outlaw' s state of sobr iety, the court found that Outlaw "had consumed a beer " at the 13 Restaurant but "was not intoxicated." Outlaw II , 2 0 1 6 W L 5 9 1 753, at *1. As to the 14 interactions between Outl aw an d G o rd on , the c ou rt 's findings included the following: 15 From his unmarked car, Detective Gordon called out to 16 Plaintiff and order ed him out of the road. The accounts differ on 17 whether he delivered a civil and profes sional request or whether 18 he used profane language. It is undisputed that he did not ide n tify 19 himself as a police officer . With his back turned to the road, Plaintiff 20 made a dismi ssive "brush off" gesture. He ignored Detect iv e 241 Gordon and continued his convers ation with the occupants of the 2 cab. Plaintiff had no idea that a police officer had directed him to leave 3 the road . 4 Detective Gordon pull ed past the taxi cab, parke d , and 5 moved qui ckly on foot towards Plaintiff. He did not identify himself 6 as a police officer . He carried an unli t flash li gh t [ sic ] in his right 7 hand. He wore a badge around his neck, which he had pull ed out 8 of his shirt. He also wore a winter jacket. The badge was not visible 9 to Plaintiff who s t i l l h a d no idea that the man who had spoken to him 10 from his car and was now moving towards him was a police offic e r [ . ] 11 Rather[,] Plaintiff saw a stranger approach ing him on an unli t 12 stree t carrying an object that he feared was a gun . . . . 13 Detective Gordon kicked Plaintiff in the chest as soon as he 14 reache d him. . . . Officer Al len, who had witnessed these events, 15 got out of his cruiser and p ull ed out his baton. He came up behind 16 Plaintiff a n d struck him repeatedly on the head, cutting his scalp each 17 time. The photographs admitted into evidence show three distinct scalp 18 lacerations. Officer Allen also did not identify himself as a police officer 19 before hitting Plaintiff . 20 Plaintiff fell to the ground and curled up in a fetal position 21 with his hands seeking to p rotect his head. As Plaintiff lay o n the 22 ground, Officer Allen struck him again on the right knee with the baton . 23 Sever al other Hartford police office r s n o t named in this lawsui t 24 arrived and joined in beating Plaintiff while h e la y o n the 25 ground. . . . 26 . . . . 27 A t trial, each side blamed the other for causin g th e 28 altercation. The courtfinds that Plaintiff's version of the events is more 29 credible . 251 Id . at *2 (emphases adde d). 2 The court addres sed the specific circumstances of the encounter, making 3 findings as to, inter alia, whether Outlaw had attempted to fight with either G ordon 4 or Allen. As to Gordon, the court found that 5 the testimony by D e t e c t i v e Gordon that Plaintiff struck him or, as 6 Officer Allen testified, that Plaintiff grabbed the dete c tive by the coat, 7 pulled him towards him, and punched him, is not credible and not true. 8 Plaintiff is more credible when he testified that he was accosted by 9 an unknown man on a dark stree t whom he feare d was holding a 10 gun. Withou t warning, he was kicked in the midsecti on by 11 Detective Gordon and then struck from behind by Officer Allen. 12 This testimony is corrob orated by the testimony of witness e s in 13 the cab, as well as the undisputed testimony that it was Detective 14 Gordon who got out of his car and approache d Plaintiff without 15 identifying himself as a poli ce officer. 16 Outlaw II

, 2016 WL 591753, at *3 (emphasis added). As to All en, the court also found 17 that 18 Officer Al[l]en's testimony that Plaintiff fought with D e tective 19 Gordon and then continued to try to kick Officer A l l e n a f ter being 20 k n o c ked to the ground by a blow to the head is not credible . Office r 21 Alle n s tr uck Plaintiff at least four tim es with a police baton-- 22 drawing blood with the blows to the he ad and later bre aking 23 Plaintiff' s knee . Plaintiff's version that he was struck from behind by 24 Officer Allen, fell to the ground, attempted to protect his head where he 25 had alrea dy been hit, and was then struck on the knee is more credible 26 than Officer Allen's version of the events

. 261 Id . (emphases added). 2 The court also found that A ll e n h it Outlaw hard enough to bre ak 3 Outlaw' s kneecap: "[T]he treating physician tes tifi ed on c r o s s - e x a mination that . . . 4 he believes the patella was broke n b y a blow from the baton"; "[t]here was no 5 te s ti mony that Plaintiff struck the pavement with his kneecap or that his fall wa s 6 actually the cause of the fracture"; and "[t]he jury reso lved this issue in Plaintiff' s favor 7 when it d e te r mined that Officer All en's conduct was a proximate cause of injury to 8 Plaintiff . . . ." Id . 9 The court rejected All en's contention that the verdict in his favor on the 10 ass a u lt claim meant that the jury found that Outlaw was the aggress or against 11 Gordon and that Allen believed that for ce was n ecess ary for reaso ns of safety. The 12 court obser ved that the elements of the assault and exce ssive force claim s differ and 13 that the different verdi c ts o n those two categories of claim s were not neces sarily 14 inconsistent. See id . at *4. 15 The c o u rt a l so re j ected A ll en's contention that the law was not su ffi c i ently 16 clear to alert him that the force he was using against Outlaw was excessive: 17 That the law prohibits excessiveforce when usingforce to make an 18 arrest is neither a r e cent nor surprising development . Within the 271 District of Conne cticut , there are li terally hun d r e d s of decisions 2 th at articulate this constituti onal rule in cases involving p o li c e 3 officers. Many of these decisions issued prior to December 2004 when 4 the incident at issue occurred . . . . 5 Outlaw II

, 2016 WL 591753, at *5 (citing cases) (emphases added). 6 As these cases demonst r a te , it was clearly established by 7 Dece mber 2004 that the use of exce ssive force in the course of an 8 arre st is unlawful . Prior to 2004, Hartford police officers had been 9 sued repe atedly on th e s e grounds and, in each case, the courts 10 consistently articulated the legal standard expr esse d at the 11 n a ti o nal level in [ Tennessee v. Garner , 471 U.S. 1 (1985)] and 12 Graham [ v. Connor , 490 U.S. 386 (1989)]: that the force applied by 13 the police must be reaso nable in ligh t of the requirements of the 14 situati on. 15 Id . Accordingly, the court found in the pres ent case that 16 [a] reasonable officer in the position of OfficerAll en . . . . would see 17 that the original offense committed by Plaintiff was a minor pedestrian 18 violation--in effect, a jaywalking incident . He would see that Plaintiff 19 was facing away fr om D etective Gordon's car and ignoring h im. 20 He would neither see nor hear threats or serious misconduct on the part 21 of Plaintiff . He w o u l d see no signs of resistance or aggression by 22 Plaintiff when Detective Gordon confronted Plaintiff . He would not see 23 Plaintiff strike Detective Gordon or pose a threat to Detective Gordon's 24 safety . 25 Id . ( e mp h ases added). Outlaw was "on the ground, unres isting and protecting his 26 h e a d w ith his hands," and All en "continu[ed] to strike Plaintiff with his baton with 27 enough forc e to fracture Plaintiff' s knee cap." Id . 281 The court is aware that Officer All en descr ibes the incident 2 differently and all eges th a t Plaintiff viol ently attacked Detective 3 Gordon with his fist. For purpose s of the qualified immunity 4 is s ue, the court does not believe Officer Allen's version of the event s . 5 Instead, the court has found that Plaintiff never fought with either 6 officer . The court does not believe Officer Allen's de s c r ip t ion that 7 Plaintiff continued to struggle and ki ck at the officers once on the 8 ground . As the factual findings show, it is more likely that Plaintiff's 9 account of curling up and seeking to protect his head is the accurate one . 10 Id . at *6 (emphases adde d). The court added: 11 It is obvious from this descr ipti on of events that a reasonable 12 officer, armed with the same information as Of f i c e r Allen, would have 13 little doubt about the unlawfulness of repeatedly striking an unresisting 14 man with his baton . See Belanger v. City of Hartford, 578 F. Supp. 2d 15 360, 366 (D. Conn. 2008) ("A reaso nable police officer should know 16 that swinging a baton at an indivi dual' s face while they are facing 17 away fr o m the officer without prior warning would constitute a 18 viol ation of that indivi dual' s right to be free from exce ssive force" 19 [discussing events that occurr ed on D ecember23, 2004]). 20 Outlaw II

, 2016 WL 591753, at *6 (emphasis added). 21 A reasonable officer in Officer All en's position would have seen that 22 Plaintiff had not commi tted a viol ent or serious crime. He would 23 have seen that Plaintiff had not attempte d t o f l e e or resist . He would 24 have seen Detective Gordon push Plaintiff backwards with a kick. 25 He neither identifi ed himself as a police o ffice r nor heard 26 Detective Gordon do so. Under these facts, and g i v e n t h a t Plaintiff 27 posed no threat to the officers or the public safety, striking Plaintiff from 28 behind with a b a t o n a n d then continuing to strike him as he lay on the 29 ground must be viewed as a cl e ar violation of Plaintiff's Fourth 30 Amendment rights under the law in effect at the time . 291 I

d . (emphases added). The court "conclude[d] that qual ified immunity is not av a i l able 2 to Officer Allen in l ight of the facts of this case." Id . 3 Judgment was enter ed in Outlaw' s favor against Allen on t he cl aims of 4 exce ssive force in viol ation of the feder al and state constitut ions in the amount of 5 $454,197.

6 II. ALLEN' S CH ALLENGES TO THE JUDGMENT AGAI NST HIM

7 In his cross -appeal, All en does not challenge the jury's findings that in 8 connection with arre sting Outlaw he caused Outlaw injury b y in te n tional ly or 9 r ecklessly using e xcess ive f orce. Nor, he profes ses, does he contend that th e r e w a s 10 any inconsistency in the jury's verdict ( see All en reply brief on appeal at 4 ("The jury's 11 finding that Officer All en used exce ssive force is not inconsistent with its finding that 12 Officer All en was not li able f o r a ssault and battery."); id . at 9 ("there is no 13 disagreement in that both parties ar e claim ing the jury's findings on exce ssive force 14 and a s s a ult are not inconsistent and both parties appear to be saying that the jury 15 finding o f n o a ssault is explained in li ght of the instruction that some force can be a

301 defens e in a claimof assault" (emphasis added))). 2 R a th e r, All en states that "the only ruling pres ented for review [on his 3 cross -appeal] is the [posttrial] decision by [the distric t ju d g e ] that Officer Michael 4 All en is not entitl ed to qual ified immunity for his actions . . . ." (All en brief on appeal 5 at 10.) In s upport of his challenge to the court's rejection of his claimof entitlem ent 6 to im mu nity, All en pursues the posttrial arguments he made in the district cour t, 7 contending that there were exone rative facts that the jury "found" ( e.g. , All en brief on 8 appeal at 21), or "had to have" found ( e.g. , id . at 20, 29), or "neces sarily found" ( e.g. , id . 9 a t 11, 19, 25; All en reply brief on appeal at 2, 4, 6, 10). He argues that th e d is tr ic t 10 court's decision in Outlaw II impermi ss ib ly made factual findings that were 11 inconsistent with findings that All en imputes to the jury, such as that All en "saw the 12 plainti ff acting aggress ively towards Detective Gordon" (All en brief on appeal at 20) 13 and that All en "believed that he, Detective Gordon, or a third pers on was in danger" 14 ( id . at 29). 15 Although the purely le gal proposition-- i.e. , that, with resp ect to any 16 factual issues as to which the parties have a Seven th Amendment right to trial by jury, 17 the court may not proper ly make factual findings that are contrary to findings made

311 by the jury--is eminently sound, see, e.g. , Curtis v. Loether, 415 U.S. 189, 196 n.11 (1974); 2 Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470-73 (1962); LeBlanc-Sternberg v. Fletcher , 67 3 F.3d 412, 431-32 (2d Cir. 1995), cert. denied, 518 U.S. 1017 (1996), All en's contention that 4 the jury neces sarily made his hypothesized favorable findings is frivolous. We reach 5 this conclusion based on well-establi shed principles of law and the recor d in this case.

6 A. Excessive Force, Qualified Immunity, and Trial Procedure 7 "The Fourth Amendment prohibits the use of exce ssive force in making 8 a n a r r e s t, and whether the force used is exce ssive is to be analyzed under that 9 Amendment's 'reasonablene ss standard.'" Brown v. City of New York , 798 F.3d 94, 100 10 (2d Cir. 2015) (quotin g G r aham v. Connor , 490 U.S. 386, 395 (1989) (other internal 11 quotation marks omitted)). The "prope r a p p li c a ti on " o f thi s standard "requires careful 12 attention to the facts and circumstances of each particular case, including the sever ity 13 of the crim e at issue, whether the suspect poses an imm ediate threat t o the safety of 14 the officers or others, and whether he is actively resisting arre st or attempting to 15 evade arre st by flight." Graham , 490 U.S. at 396. Even where an officer is found to 16 have used exce ssive force, however, the d o c tr in e of qualified immunity wil l shield

321 that o fficer from li abili ty for damages if his "conduct d[id] not viol ate clearly 2 established statutory or constituti onal rights of whic h a r e asonable pers on would 3 have known." Mullenix v . L u n a , 136 S. Ct. 305, 308 (2015) (internal quotation marks 4 omitted); see, e.g. , Anderson v. Creighton , 483 U.S. 635, 639 (1987). Whether the law was 5 sufficiently clearly established is itself an i ssue of law that we consider de novo . See, 6 e.g. , Elder v. Holloway, 510 U.S. 510, 516 (1994). 7 All en contends that in Dece mber 2004, the law governing his conduct 8 was not sufficiently clearly established because "it was not clearly established that an 9 officer going to the aid of another law enforc ement officer should not use a baton on 10 an indivi dual apparen tly resisting arre st." ( See All en brief on appeal at 27.) We reject 11 the factual premises underlying All en's contention for the reaso ns set out in Part II.C. 12 below. We disagree with his invocati on of the "clearly established" standard because 13 its applicabil ity "depends s ub s ta n tially upon the level of gener ali ty at which the 14 relevant 'l egal rule' is to be identifi ed," Anderson v. Creigh t o n , 4 8 3 U.S. at 639: "The 15 contours of the right must be sufficiently clear that a reaso nable official would 16 unders tand that what he i s doing viol ates that right." Id . at 640. "This is not to say," 17 however, "that an official action is protected by qual ifie d immunity unless the very

331 action in question has previously been h eld unlawful. . . ." Id . 2 The unconstituti onality of outrageous conduct obviously will be 3 unconstituti onal, this being the reason, as Judge Posner has said, 4 that "[t]he easiest cases don't even arise." K.H. v. Morgan , 914 F.2d 5 846, 851 (C.A.7 1990). 6 Safford Unified School District No. 1 v. Redding , 557 U.S. 364, 377 (2009) (other internal 7 quotation marks omitted). The constituti onal prohibition agains t use of exce ssive 8 force in making an arre st had be e n e s tab li shed long befor e Dece mber 2004; no 9 competent police officer could have failed to comprehen d that that principle would 10 encom pass repe atedly beating an unres isting, supine, jaywalking su sp ect w i th a sti ck . 11 The qual ified immunity standard is an objective standard, asking not 12 whether the defendan t officer acted in good faith or w h a t h e h imself knew or 13 b e li eved, but rather what would have been known to or believed by a reas o n ab le 14 officer in the defendan t's position. See, e.g. , Anderson v. Creighton , 483 U.S. at 640-41. 15 Where the ri ght at issue in the ci rcumstances confr onting poli ce officers was clearly 16 established but was viol ated, the officer wil l stil l be entitl ed to qual ified immunity if 17 it was objectively reaso nable for him to b e li e v e th at his acts did not viol ate those 18 rights. See, e.g. , id . at 639-40; Rogoz v. City of Hartford, 796 F.3d 236, 247 (2d Cir. 2015); 19 Kerman v. City of New York , 374 F.3d 93, 108 (2d Cir. 2004) (" Kerman "). "[T]he matter

341 of whether a defendan t official 's con duct was objectively reasonable, i.e. , whether a 2 reaso nable official [in the defendan t's position] would reaso nably believe his conduct 3 did not viol ate a clearly establis h e d r ig ht, is a mixed question of law and fact." Id . 4 at 109 . If th e r e is a "dispute as to the material historical facts, . . . . 'the factual 5 question[s] must be reso lved by the factfinder.'" Zellner v. Summerlin , 494 F.3d 344, 6 368 (2d Cir. 2007) (quoting Kerman , 374 F.3d at 109). After the factfinder's "' deci[sion 7 as to] what the facts were that the officer faced or perce ived,' the court then may 'make 8 the ultimate legal determination of whether qual ified immunity attaches on those 9 f a cts .'" Kerman , 374 F.3d at 109 (quoting Stephenson v. Doe, 332 F.3d 68, 81 (2d C ir . 10 2003) (other internal quotation marks omitted) (emphases in Kerman )); see, e.g. , Zellner 11 v. Summerlin , 494 F.3d at 368 ("Once the [fac tfinder] has r esolved any disputed facts 12 that are material to the qu a li fie d immunity issue, the ultimate determination of 13 whether the officer's conduct was objectively reaso nable is to be made by the court."). 14 Quali fied immuni ty i s an a ffi rm a tive defens e on which the defendan t has 15 the burden of proof. See, e.g. , Gomez v. Toledo, 446 U.S. 635, 640 (1980); Rogoz v. City 16 of Hartford, 796 F.3d at 247. "To the extent that a particular finding of fact [i]s esse ntial 17 to an affirmative defense, . . . it [i]s incumbent on [the defendant] to request that the

351 [factfinder] be asked the pe rtinent question." Kerman , 374 F.3d at 120. 2 U s u a ll y, if a jury trial has been proper ly demanded, the factfinder for 3 such ques tions wil l be a jury, see Fed. R. Civ. P. 38(a) ("The right of trial by jury as 4 declared by the Seven th Amendment to the Constitution--or as provided by a feder al 5 statute--is pres erve d to the parties inviol ate."). The jury may be a s k e d to ma ke its 6 findings by answer ing special interrogatories. See, e.g. , Kerman , 374 F.3d at 109. When 7 such interrogatories are used, of course, the court wil l n e e d to give the jury proper 8 "instructions and explanations," Fed. R. Civ. P. 49(a)(2), 49(b)(1), to enable the jury to 9 make its findings in accordance with, inter alia, the proper all ocation of the burden of 10 proof. 11 H owever, the parties may agree to forgo their Seven th Ame n d me n t 12 rights, either enti rely or wi th resp ect to specified issues. See generally Fed. R . Civ. P. 13 38(c) ("In its demand" for a jury trial, "a party may specify the issues that it wishes to 14 have tried by a jury"; but if another party wishes to have additi onal issues decided by 15 the j ury, i t may so ensure by se rving a tim ely "demand for jury trial on any other or 16 all factual issues triable by a jury"). Rule 38 also provides that "[a] proper [jury trial] 17 demand may be withdrawn . . . if th e p arties consen t." Id . Rule 38(d). Rule 39

361 simi larly all ows a nonjury trial on issues for which a jury trial w a s proper ly 2 demanded under Rule 38 if "the parties or their attor n e y s fil e a stipul ation to a 3 nonjury trial or so stipulate on the recor d . . . ." Fed. R. Civ. P. 39(a)(1). These rules 4 mean that the parties, directly or through their attorneys, are all owed to agree to forgo 5 their Seven th Amendment rights on specified factual questions and have those 6 questions decided by the court.

7 B. The Jury Instructions on Outlaw's Excessive-Force Claims 8 In the pres ent case, the district court proper ly, and withou t o bjection, 9 charged the jury as to, inter alia, what it must find Outla w h a d p r oven by a 10 prepon derance of the evidence in or der to r eturn verdicts in h is favor on his claim s 11 of exce ssive force in viol ation of the feder al and state constituti ons. It instructed that 12 "a police officer may onlyuse such for ce as is[] objectively reason able, under all the 13 circumstances" (Instr./Tr. Tr. 17-18); that "[t]he right to make any arre st or to protect 14 the public or a n o th e r p olice officer neces sarily carries with it the right to use some 15 degre e of physical coercion or threat thereo f to effect the arre st or to protect" ( id . at 18 16 (emphasis added)); that "[a] police officer is not justified in using physical force which

371 exceeds the amount reasonably required under the conditions of the case" ( id . (emphases 2 added)) ; a n d th at "[i]n gener al, a seizure or arre st of a pers on is unreasonable . . . if a 3 police officer uses excessive force" ( id . at 17 (emphases added)). The court instructed 4 the j ury that, under Conne cticut law, neither assault nor excessive force in viol ation 5 of the Conne cticut Constitution is proven if the officer's use of force was justifi ed. ( See 6 id . at 24.) 7 The court instructed that the jury could "consider all of the circumstan c es 8 known to the officers on the scene , including" the sever ity of Outlaw' s all eged crime, 9 whether Outlaw posed an imm ediate threat to the safety of the officers or others, and 10 whether Outlaw was actively resisting arre st or attempting to flee. ( See id . at 18-19.) 11 It also told the jury that it was free to draw such reaso nable inference s as it felt 12 justifi ed in li ght of the evidence and that it should not abandon common sense . ( See 13 id . at 6-7, 12.) 14 We p re sum e, absent any indication to the contrary, that the jury followed 15 th e court's instructions, and that the jury, having found that All en intentional ly o r 16 reckless ly subjected Outlaw to force that was "exces sive," did not then conclude that 17 so much of the force as was ex cessive was justified.

381 C. The Supposed "Necessary Findings" as to Questions Not Asked 2 All en argues that the jury mu s t h ave found justifi cation for the total 3 amount of force he used because , he says, "[t]he only reaso nable interpretation of the 4 jury finding Officer All en li able for exce ssive force and at the same tim e not li able for 5 assault is that Officer All en reaso nably believed the force was necessary to protect 6 himself, Detective Gordon, or third parties from the Plaintiff's use or imminent use of 7 force " (All en brief on appeal at 23 (emphases added)), and that it was "very wrong" for 8 "the Dis tr ic t Court [to] ma[k]e findings of fact in contravention of the jury's finding 9 that Officer Allen believed force was neces sary to prevent harm to himself, another officer, 10 or a third party " (All en re ply brief on appeal at 3 (emphases added)). Thi s argum ent 11 is factual ly, doctrinal ly, and logi callyflawed. 12 Th e factual flaw is, of course, that there were no jury findings a s to 13 Outlaw' s conduct or All en's beliefs. The jury was not asked whether Outlaw used 14 force, or threatene d force, or appeare d to do so. The j ury was not asked what All en 15 saw or be li eved. 16 The d o ctrinal flaw is that what All en himself "believed" is not a 17 c on si d er a ti on in determining qual ified immunity for a feder al constituti onal viol a ti on

391 but rather is an element only in the state-law concept of justifi cation, see, e.g. , Conn. 2 Gen. Stat. § 53a-22(a) (physical force in making an arre st may be justifi ed if based on 3 certain "believed facts"); cf . Jones v. Marshall, 528 F.2d 1 3 2, 135 (2d Cir. 1975) (in 4 Conne cticut

, "use of force likely to cause death . . . is privil eged only if," inter alia, " the 5 force used was act u a l l y a nd reaso nably believed by [the officer] in good faith to be 6 neces sary to effect the arre st. See Martyn v. Donlin , . . . 1 5 1 C o nn. [402,] 411-12, 198 7 A.2d [700,] 7 05-06 [(1964)]" (emphases added)). As discussed above, the feder al 8 standard for qual ified immunity is what a reaso nable o fficer in All en's position would 9 have believed, not what All en himself believed. See, e.g. , Anderson v. Creighton , 483 10 U.S. at 641 (the defendan t o ffic er's "subjective beliefs about the [circumstances] are 11 irrelevant"). 12 F inally, there are sever al flaws to All en's logi c, stemming from (1) th e 13 instructions given as to different permissible motivations for the use of force, (2) the 14 instructions that permitted the jury to d ifferentiate between amounts of force used, 15 and (3) the different all ocations of the burden o f proof where , as here , the proper 16 quantum of proof is a prepon derance of the evi dence. First, in arguing that the jury 17 found justifi cation negating the cl aim of assault, All en assumes that the jury "had to

401 have made" the "finding[]" that All en "believed that he, Detective Gordon, or a third 2 per s o n was in danger." (All en brief on appeal at 29; see id . at 21, 23-24; All en reply 3 brief on appeal at 6 (calling such a finding "crucial"); id . at 3, 4, 5 , 7, 8; see also All en 4 brief on appeal at 20 ("The jury . . . had to have credited Officer All en's testimony that 5 he saw the plainti ff acting aggress ively towards Detective Gordon.") ) . But this 6 assumption ignores the court's instruction th a t the jury could find a use of force 7 justifi ed if it found either that there was an objectively reaso nable concer n for safety 8 or that force was objectively reaso nably believ e d n e c e s sary to effect an arre st ( see 9 Instr./Tr. Tr. 24 (force in connection with an arre st is justifi ed "when and to the extent 10 [the officer] reaso nably believes such to be necessary to effect an arrest or to defend 11 himself or hers elf or a th ir d p a r ty " ( emphases added)); see also id . at 17 ("a police 12 officer may only use such force as is[] objectively reasonable")). 13 It is undisputed that Outlaw was, at least at some point, standing on the 14 passen ger side of the taxi that was double-parked on the left side of Un ion Place, 15 thereb y perh aps constricting the traffic lanes; and Outlaw eventually pleaded guil ty 16 to creating a public disturbance. The jury, in finding that Outlaw had not proven his 17 claim against All en for assault, could well ha v e b a s e d that finding on an inference

411 that a certain amount of force was reaso nably used m ere ly to effect Outl aw's arrest. 2 There is no neces sary inference that the jury found--either also or instead--that All en 3 was appre hensive forhis own safety or anyon e else's safe ty. 4 Second, the jury was instructed in a way that all owed it to conclude that 5 some portion, b u t n o t a ll, of the force used by All en may have been justifi able. In 6 resp onse to a question from the jury, the court stated, in a supplemental instruction 7 endors ed by the parti es, that the standard for force that is exce ssive "does not apply 8 to the assault and battery claim ." (Trial Trans c r ipt January 8, 2016, at 6.) Thus, the 9 jury was informed both that 10 [a]ny harmful or offensive physical contact is sufficient to support 11 a claim of assault and battery unless you find that the use of force 12 was justifi ed for the reaso ns set out in the [main] jury instructions 13 ( id . (emphasis added)), and, in the main instructions, that 14 some degre e of physical coercion [ is p ermissible] to effect 15 the arr est . . . 16 (Instr./Tr. Tr. 18 (emphasis added)). Thus, as Al len himself puts it, "the jury finding 17 of no a s s a u lt is e xplained in light of the instruction that some force can be a defens e 18 in a clai m of assault." (Al len reply brief onappeal at 9 (emphasis added).) 19 But while the jury apparen tly found that the mini mal amount of physical 421 contact that would ordinarily constitute an assault did not viol ate state law here 2 because "some" degre e of force could objectiv e ly reaso nably have been believed 3 neces sary to effect Outlaw' s arre st, its verdict against All en on the claim of exce ssive 4 force in viol ation of the Conne cticut Constitution negates any possible inference that 5 it found the entire a mo u n t o f f o r c e he used to be justifi ed: The jury had been 6 instructed ( see Instr./Tr. Tr. 24-25) that under Conne cticut law a finding of justifi cation 7 would also mean that a plaintiff had not proven e x cessive force in viol ation of the 8 Conne cticut Constitution. Accordingly, we infer that the ju r y r ejected Outlaw' s 9 assault claim because it found that some force was reaso nably believed warranted in 10 order to move Outlaw out of the roadway and effect his arre st, but that it also found 11 that the total amount of force used against him was exce ssive and was not reaso nably 12 believed to be ne cessar y. 13 A third logi cal flaw inheres in All en' s to t a l disregard of the principle that, 14 as to the facts neces sary to establish his entitl ement to qual ified immunity, he had the 15 b u rden of proof. In finding against Outlaw on his claim for assault, th e ju r y 16 indisputably concluded that Outlaw had not proven assault in viol a ti o n o f 17 Conne cticut law by a prepon derance of the evidence. But, as informed by the court's

431 instructions, the jury could have so concluded if it simply viewed the evidence as to 2 Outlaw' s claim as being in equipoi se ( see Instr./Tr. Tr. 13 ("If . . . you find the evidence 3 to be in b a lance or equally probab le, . . . then the plainti ff has failed to sustain his 4 burden and you must find for the defendan ts.")). The jury's finding that Outlaw did 5 not carry his burden of proving assault by a prepon derance of the evidence thus did 6 not mean that it found that All en carr ied his own burden of establishing the factual 7 predica te s on which his claim of entitl ement to qualified immunity is based, for 8 example, that Outlaw wa s h it ti ng Gordon, or attempting to hit Gordon, or acting 9 threateningly or aggres sively. 10 All en does no t s u g g e s t that he made any principled attempt to have 11 questions as to facts that could show his entitl ement to qual ified immunity submitted 12 to the jury. To the contrary, although the transcr ipt of the charge confer ence indicates 13 that defendan ts initial ly wanted to have the jury asked some questions of that nature, 14 the transcr ipt also makes clear, as indicated in Part I.C. above, th at de fense counsel 15 made a strategic choice to forgo submission of such questions to the jury. The 16 apparen t reaso n was that the district court stated--prope rly--th a t a s to any such 17 questions the court would have to instruct the jury that the burden of proof as to those

441 matters w a s o n th e defendan ts, and that defens e counsel prefe rre d not to have the 2 jury so in s tr u cted. Since the court insisted that the jury be instructed proper ly, 3 defens e counsel propose d that no such questions be submitted to the jury and that all 4 of the requisite factual deter minatio n s b e made by the court. Outlaw, who bore no 5 resp onsibili ty for seeing that a s u fficient recor d was created for an affirmative 6 defens e, expr essly consen ted. Thus, as defendan ts wished, questions with regar d to 7 "qual ified immunity for feder al claim s" and "qual ified immunity for state law claim s" 8 were deleted (Conf. Tr. 40); all mentions of the concept of a qual ified immunity 9 defens e were deleted ( see id . at 38-40, 42); and an explanation that as to some issues 10 in the case the plaintiff does not have the burden of proof was deleted ( see id . at 39). 11 As to the entirety of the qual ified immunity defens e, defens e counsel said , " Your 12 Honor has that on your lap, pe riod" (Conf. Tr. 37), and the co u r t a c c o r d ingly made 13 findings as to facts about which the jury was deliberately not asked. We cannot all ow 14 All en now to put words in the jury's mouth. 15 While All en argues that, in asking the court to make factual findings, he 16 did not consen t to have the court make findings inconsistent with those made by the

451 jury, that argument is inconsequential . The jury made none of the factual findings he 2 wishes to impute to it. 3 Finally, we note that All en makes no attempt to argue that the evidence 4 at trial was insuffici ent to support the district court's factual findings. Ironically, he 5 argues that "there was no finding by the jury that it neces sarily believed" the various 6 witnesses' "testimony concer ning [Outlaw' s] version of the facts" (All en reply brief on 7 appeal at 1 (emphasis omitted)). However, in contrast to the lack of any instructions 8 to th e ju r y on defendan ts' qual ified immunity defens e, the jury was instructed that 9 "[i]n order for the plaintiff to establish [that he was deprived of a constituti onal right], 10 he must show . . . b y a prepon derance of the evidence," inter alia, " that the defendants 11 committed the acts alleged by the plaintiff ." (Instr./Tr. Tr. 16-17 (emphases added).) The 12 jury so found with respe ct to Outl aw's constitu tionalclaim s. 13 In sum, w e c o n c lude that All en's arguments that the jury neces sarily 14 made factual findings that (a) would entitl e him to qual ified immunity, and (b) were 15 contrary to the posttrial factual findings made by the court, are meritless. The jury 16 made no findings, expr ess or impl icit , as to whether All en c a r r ie d his burden of 17 establishing any factual pre dicate for his defens e. The court, having b een asked by

461 the parties to make findings o f f a c t w ith resp ect to the qualified immuni ty de fense , 2 had the authority to make credibility asses sments and draw such inference s as it 3 believed appropr iate. It s findings of fact, descr ibed in Part I.C. above, are amply 4 supported by the trial recor d. We affirm so much of the judgment as awarded Outlaw 5 damages against All en.

6 III . OUTLAW'S APPEAL FROM THE SUMMARY 7 DISMISSAL OF HIS C LAIMS AGAI NST THE CITY

8 In his appeal, Outlaw challenges the district court's grant of summary 9 judgment in favor of the City, dismi ssing his § 1983 claim and simi lar state-law claim s 10 that the City is li able for the injuries infli cted on him by All en. His complaint all eged 11 th a t the City "ha[d] systematical ly failed to adequately hire, train, supervise, 12 disc ip li n e , monitor, counsel, otherwise control and overse e its Poli ce Officers to 13 preve nt the kinds of" exce ssive force in fli c te d on him. (Complaint ¶ 13.) It alleged 14 that the C ity and HPD "were on notice of the viol ent natures and tendencies of its 15 police officer[s]" including All en, and had "fail ed to take corre ctive action to preve nt" 16 such conduct. ( Id . ¶ 14.)

471 Summary judgment is approp r iate only where there are no genuine 2 issues of material fact that preclude judgment for the moving party as a matter of law. 3 See Fed. R. Civ. P. 56(a). We review the grant of a moti on for summary judgment de 4 novo ; we reso lve all factual ambigui ties in favor of the party against whom summary 5 judgment w as sought. See, e.g. , Amnesty America v. Town of West Hartford, 361 F.3d 6 113, 122 (2d Cir. 2004) (" Amnesty America "); Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 7 1996).

8 A. Principles Governing Municipal Liability Under § 1983 9 It is well established that "under § 1983, local go v e r n me nts are 10 resp onsible only for 'their own il legal acts.' . . . . They are not vicariously li able under 11 § 1983 for their employees' a c ti o n s . " Connick v. Thompson , 563 U.S. 51, 60 (2011) 12 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 ( 1 9 8 6 ) (emphasis in Pembaur )); see, 13 e.g. , Board of C o u n ty C o mmissioners v. Brown , 520 U.S. 397, 403 (1997) ("We have 14 consistently refuse d to hold munici palities li able under a th eory of respondeat 15 superior ."); City of Canton v . Harris , 489 U.S. 378, 392 (1989); Monell v. Department of 16 Social Services of the City of New York , 436 U.S. 658, 665-83, 691 (1978). Plaintiffs who 481 seek to impose li abili ty on local governments under § 1983 must prove, inter alia, that 2 the indivi duals who viol ated their feder al rights took "'acti on pursu a n t to official 3 mu n icipal policy.' " Connick v. Thompson , 563 U.S. at 60 (quoting Monell, 43 6 U . S . 4 at 691). 5 "Official munici pal policy includes" not only "the decision s of a 6 g overnment's lawm akers," but also "the acts of its policym aking official s, and practices 7 so pers istent a n d widespread as to practically have the force of law. . . . These are 8 'acti on[s] for which the munici pality is actually r e s p o n sible.'" Connick v. Thompson , 9 563 U.S. at 61 (quoting Pembaur , 475 U.S. at 479-80 ( emphasis ours)). Thus, a § 1983 10 plainti ff need not prove that his injury was caused by an explicitly stated munici pal 11 rule or regulation. Further, a munici pality may be li able even for its inacti on if, in its 12 failu re to act, it "'exhibit[ed] del ib e r a te indifference to constituti onal deprivations 13 caused by subordinates.'" Cash v. County of Erie, 6 5 4 F.3d 324, 334 (2d Cir. 2011) 14 (quoting A m n e s ty A m erica, 361 F.3d at 126), cert. denied, 565 U.S. 1259 (2012); see 15 generally City of Canton , 489 U.S. at 388-92. 16 " [ D ] e liber ate indifference is a stringent standard of fault." Connick v . 17 Thompson , 563 U.S. at 61 (internal quot ation marks omi tted).

491 [Q]uite apart fr o m th e state of mind required to establish the 2 underlying constituti onal viol ation . . . , a plainti ff s e e k in g to 3 establis h munici pal li abili ty on the theory that a facially lawful 4 munici pal action has led an employee to viol ate a plainti ff's rights 5 must demonstr a te that the munici pal action was taken with 6 d e l i b e r a t e i n d i f f e r e n c e a s t o i t s k n o w n o r o b v i o u s 7 consequences . . . . A showing of simpl e or even heightened 8 negligence willnot suffice. 9 Board of County Commissioners , 520 U.S. at 407 (internal quotation marks omitted); see, 10 e.g. , Amnesty America, 361 F.3d at 128 ("The operative inqu iry is whe th e r the facts 11 suggest that the policym aker 's in a c tion was the result of a 'conscious choice' rather 12 than mere ne gli gence." (quoting City of Canton , 489 U.S. at 389)). 13 Thus, to procee d on a deliberate-indifferenc e theory, a plainti ff mu st fi rst 14 establish "that 'the need for more or better supervision to protect against 15 constituti onal viol ations was obvious.'" Amnesty America, 361 F.3d at 127 (quoting 16 Vann v. City of New York , 72 F.3d 1040, 1049 (2d Cir. 1995)). This "obvious need may 17 be demonstrated through," for example, "proof of repe ated complaints of civil rights 18 viol ations." Vann v. City of New York , 72 F.3d at 1049; see, e.g. , Connick v. Thompson , 563 19 U.S. at 61-62 ("[A] city' s 'po licy of inacti on' in li ght of notice that its program wil l 20 cause constituti onal viol ations 'i s th e functional equival ent of a decision by the city 21 itself to viol ate the Constitution.' " (quoting City of Canton , 489 U.S. at 395 (opinion of 501 O'Connor, J ., concurring in part and disse nting in part))); Fiacco v. City of Rensselaer , 2 783 F.2d 319, 327 (2d Cir. 1986) (a munici pality "should not take a lai ssez-faire atti tude 3 toward the viol ation by its peace officers of the very rights they are supp o s e d to 4 preve nt others from viol ating"), cert. denied, 480 U.S. 922 (1987); Ricciuti v. New York 5 City Transit Authority, 9 41 F.2d 119, 123 (2d Cir. 1991) ("The inference that a 6 [munici pal] policy existed may . . . be drawn from circumstanti al pr o o f , s u c h a s . . . 7 evidence that th e mu n icipal ity had notice of but repe atedly failed to make any 8 meaningful investigati on into charges that police officers had used exce ssive force in 9 viol ation of the complainants' civi l rights."). 10 Finally, inheren t in the principle that "a municipality can be li able under 11 § 1983 only where its polici es are the 'moving fo r c e [ behind] the constituti onal 12 viola ti o n, '" City of Canton , 489 U.S. at 389 (quoting Monell, 436 U.S. at 694), is the 13 concept that the plainti ff must show "a direct causal link between a munici pal policy 14 or custom and the all eged constituti onal deprivation," City of Canton , 489 U.S. at 385; 15 see, e.g. , Cash v. County of Erie, 654 F.3d at 333 ("to establish municipal li abili ty under 16 § 1983, a plainti ff must prove that 'acti on pursuant to official munici pal policy' caused 17 the alleged constitutional injury" (quoting Connick v. Thompson , 563 U.S. at 60)).

511 B. The City's Motion for Summary Judgment 2 Foll owing discovery, the City moved for summary judgment dismi ssing 3 the claim s against it on the ground that Outlaw could not show that his injuries 4 resulted from a munici pal custom or policy. The City submitted an affidavit stating 5 that Gordon a n d All en had undergone background checks befor e being hired by 6 HPD; descr ibing training that Gordon, A ll e n, and other HPD officers rece ived 7 pursuant to H PD's polici es and procedur es; and s ta ti n g th a t in the years since they 8 began service with HPD both Gordon and All en had rece ived additi onal tr a in ing. 9 ( See Affidavi t o f U rsula Wiebusch dated November 23, 2010, ¶¶ 5-9.) The affidavit 10 attached the training reco r d s of Gordon and All en. It also attached pertinent 11 provisions of the C ity C o d e of Ordinances that s et out the munici pal pr ocedure for 12 citi zen review of complaints of exce ssive force or other civil rights viol ations by HPD 13 officers. The affidavit stated that Gordon and All en had rece ived s u p e r v ision as to 14 the prope r use of for ce. ( Id . ¶ 10.) 15 In its accompanying memorandum, the City stated that "there [we]re no 16 founded complaints against" Gordon or All en for use of exce ssive force. (City's 17 Memorandum of Law in S upport of [ its] Motion for Summary Judgment ("City's SJ

521 Mem.") at 18.) The City also attached the deposi ti o n te stimony of Outlaw' s police2 practices expert, David Stothers (Depo siti on of David E. Stothers ("Stothers Dep.")). 3 Th e City noted that Stothers himself thought the City's training practice s w e r e 4 adequate. ( See City's SJ Mem. at 17; Stothers Dep. at 126 (testifying that Stothers was 5 "no[t]" opining "that the City failed to train" its officer s , a n d th at he thought "their 6 training was probably adequate").) 7 Stothers had, however, written a letter opining that the City was lax in 8 supervising its officers ( see Stothers Letter dated Febr uary 5, 2010 ("Stothers Opinion 9 Letter")), in li ght of its handling of an incident that occu rre d in November 2004 10 (descr ibed in Part III .C.3. below). The City p ointed o ut that Stothers testified in his 11 deposition that his opinion as to laxity was based only on HPD's investigati on of that 12 November2004 incident. ( SeeCity's SJ Mem. at 18; Stothers Dep. 128 ("Q. . . . Other 13 than that one particular incident, do you have any support for an opinion that the 14 City failed to take corre ctive action to preve nt use of force on the citi zens in gener al? 15 A. Not b a sed upon things I' ve read, no.").) The City argued that such a single 16 incident does not suffice to support an inference of a municipal custom or policy. ( See 17 City's SJ Mem. at 14 (ci ting Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)).)

531 C. Outlaw's Submissions in Opposition to Summary Judgment 2 In resp onse to the City's moti on, Outlaw did not pursue the complaint's 3 theory of deficient training but argued only that th e C ity failed to conduct proper 4 supervision. He principally cited (1) the 1994 annual repor t of the City's Civil ian 5 Poli ce Review Board; (2) li sts, produced by the City, of lawsui ts a n d n o n la w suit 6 claim s filed against the City and/or HPD officers from 1998 through 2005; (3) a li st of 7 use-of-for ce repor ts filed by All en, along with two citi zen complaints filed against 8 All en; (4) documents filed in other li tigation against City official s, principally Cintron 9 v. Vaughn , No. 3:69-cv-13578 (D. Conn) (or " Cintron "); and (5) Stothers 's opinion, inter 10 alia, that there was "sub stantialevidence that the HPD h as had a custom or prac tice 11 that amounts to a deliberate indifferenc e to the constituti onal rights of pers ons with 12 whom the agency has come in contact" (Stothers Op inion Letter at 15). Informati on 13 in these documents included the following.

14 1. The Civilian Police Review Board's Annual Report for 1994 15 The City's Civil ian Poli ce Review Board ( the "Review Board" or the 16 "Board") was established in 1992 to r eview investigati ons by HPD 's Internal Affairs

541 Division ("IAD") of civil ian complaints against HPD officers. The Board was required 2 to p repar e an annual r eport detailing, inter alia, the type and numbe r o f complaints 3 filed against indivi dual officers and the di spositions of the com plaints. Outlaw had 4 asked the City to produce the Board's annual repor ts for 1994 and 2000 to 2005. The 5 City produced only the re port for 1994 (the "1994 Report"); the recor d suggests that 6 annual reports we re not pr epare d for the othe r year s. 7 According to the 1994 Report, the Review Board's early meetings were 8 met with " ma s s p rotest by the police union"; officers "jeered and insulted both the 9 Board and complainants" and threatene d some with "bodily harm." (1994 Report 2, 10 12-13.) The Board also repor ted difficu lti es in carrying out its duties, since "[r]epe ated 11 requests to the Chief of Poli ce regar ding ordina n c e - ma n d a ted data ha[d] been met 12 with marked, delayed resp onses . . . or no resp onse at all "; and the data that were 13 rece ived were "woefully incompl ete." ( Id . at 4.) The 1994 Report stated that the IAD 14 seemed unable "to complete investigati ons in a tim ely manner," as a result of which 15 a "public perce ption that officers w[ould] not be appropr iately discipl ined [wa]s 16 reinforce d." ( Id . at 7-8.) And the IAD inves tigation files often gave the impression 17 "that the complainant rather than the officer . . . [wa]s being investigated by IAD." ( Id . 18 at 7.) 551 In its first 17 months, the Board reviewed 26 cases, 18 of which involved 2 complaints of exce ss iv e f o r c e. Of the 18 exce ssive-force complaints, the Board 3 sustained 14; IAD had sustained only two.

4 2. The Lists of Excessive Force Claims 5 Outlaw submitted and emphasized two li sts, produced by the City, of 6 civil ian complaints against the City and/or HPD offi c ers from 1998 through 2005: One 7 li sted 66 lawsui ts; the other li sted 87 claim s on which suit had not been brought but 8 which were submitted to the City's insurer. The City stated that it had identifi ed the 9 claim s on these two li sts as "possibly" containing all e g a ti o n s of exce ssive force. 10 (Letter from John P. Shea, Jr. to Diane Polan, Esq., dated May 30, 2007, at 1 ("Shea 11 Ltr.").) 12 The li st of 66 lawsui ts showed that one suit ended in a judgment against 13 the City. Of the rest, 40 were settled; 17 were described as having resulted in either 14 a dismi ssal or a judgment in favor of the City; and eight were stil l pending when the 15 li st was produced. The li st of 87 claim s submitted to the City' s insurershowed that 16 19 claim s had been settled ; 2 6 r e mained pending; 28 had been denied; seven were

561 closed or inactive; six bore the notation "STATUTE OF LIMI TATIONS"; and one was 2 descr ibed simplyas "OTHER."

3 3. HPD Use-of-Force-Report Procedure and Allen's Uses of Force 4 During the relevant per iod, HPD had a procedur e requiring officer s to 5 file a use-of-non- lethal-force repor t, known as a "Form 60"--each of which would be 6 assigned a unique number--in any situati on in which the officer used "Less Lethal 7 Force," defined as "[a]ny force not reaso nably expe cted to cause death or serious 8 physical injury." HPD G ener al Order 7-27. That regulation required supervisors t o 9 forward all Form 60's and related incident repor ts to a n o n - duty commander, who 10 was required to review these documents befor e forwarding them to the Crime 11 Analysis Unit, which in turn was required to forward them to the IAD com mander. 12 Th e H PD Chief of Operations and the Commanders of IAD and Inspections were 13 required to review all use-of-force r eporting. 14 A li st produced by the City indicated that from June 2003 through 15 November2004, All en filed 11 Form 60's. Except for the incident involving Outlaw 16 himself, the Form 60's themselves were not produced. As to All en's Form 60 repor t

571 with regard to the arr est of Outlaw, the reviewing officer concluded that 2 [b]ased o n infor mati on provided by Det Gordon and Ofc 3 All en regar ding Accused's behavior, Officer All en's Actions are in 4 compli ance with HPD Poli cy/Proce dure and CT General Statutes 5 regar ding USE of Force. 6 (Super visory Use of Force Review, dated Dec. 22, 2004, of All en's Form 60, dated Dec. 7 18, 2004, at 3.) Outlawdid not fil e a complaintwith HPD. 8 The City produced two citi z e n c o mplaints that had been filed against 9 A ll en

, one for an incident that occurre d in 2006, principally involving il legal entry into 10 a building, for which he subse quently rece ived remedial training, and the other filed 11 in Febr uary 2005 by Clement Nurse w ith resp ect to an incident that occurre d in 12 November 2004 (the "Nurse Incident"). In the Nurse Incident, All en, in hitting Nurse 13 o n the head, broke his baton. Outlaw cited the depositions of Stothers , a 31-y e a r 14 veteran of the Los Angeles County Sher iff's Depar tment, and Patrick J. Harne tt, HPD 15 Chief fro m 2004 to 2006, who testified that, in their respe ctive several-decade s-long 16 caree rs, they had never heard of an officer striking anyone hard enough to bre ak his 17 baton. ( S e e S to th e r s Dep. 127; Depos iti on of Patrick J. Harne tt at 47.) When HPD 18 investigated Nurse 's complaint, three revi e wers, including Harne tt, sequentially 19 c oncluded that All en had used "neces sary/ reaso nable" fo rce a g a in st Nu rs e, in th a t " the 581 blow to the head [was] inadvertent and [was] caused primarily by the suspect[']s non2 compli ance." (HPD Intern a l Inv es ti g a ti on Ca se Revi ew dated 7/13/ 05, 7/14/ 05, 8/5/ 05.) 3 The rec ord does not reveal details of the investigati on.

4 4. TheCintron v. Vaughn Litigation 5 Outlaw contended that the City's deliberate indifference to the use by 6 HPD officers o f e x c e s s ive force was proven in othe r li tigation against City official s, 7 particularly Cintron . That case had been commenced in 1969 as a class action against 8 the City Manager, the Chief of HPD, and five other officers of HPD--but not against 9 the City itself--al leging a systematic pattern of police misconduct and discrimination 10 toward members of ra ci a l mino rity groups. In 1973, agreemen t was reache d that HPD 11 would, inter alia, adopt procedur es for internal review of citi zen complaints; regulate 12 the use of mace, tear gas, and firearms; and ensur e the use of reaso nable force during 13 arre sts, including by providing training aimed at "elim inat[ing] racial bias and viol ent 14 reactions to pers onal conduct." Cintron v. Vaughn , No. 3:69-cv-13578, Dkt. No. 107-2, 15 at 2-4, 9 (D. Conn., Cons ent De cree , June 21, 1973).

591 As descr ibed by the Cintron court in 2007, the case lay mostly dor mant 2 until 1999, when the plaintiffs moved to have the defe n dants held in contempt for 3 disregard of the obligati ons to which they had agreed in 1973. See Cintron v. Vaughn , 4 No. 3:69-cv-13578, 2007 WL 4240856, at *2 (D. Conn. Nov. 29, 2007). In 2 0 0 4, the 5 parties reache d a new agreemen t, e n te r ed as an Order of the Court ("2004 Order "), 6 creating a Citizen Complaint Procedure designed to improve HPD's investigati on of 7 citi zen complain ts all eging police misconduct. See id . In 2005, the plainti ffs moved 8 to have the defendan ts held in contempt for noncompliance with the 2004 Order . The 9 Cintron court f o u n d th at the defendan ts were in contempt of certain provisions by, 10 inter alia, failing to comply with the requirement that IAD conclude its investigati on 11 within 30 days of rece iving a complaint--resulting from HPD's assignment of too few 12 investigators to IAD; failing to notify success ful complainants, within 15 days, of the 13 results of discipl inary procee dings; and, when noti fying unsuccess ful complainants 14 that their complaints were no t s u stained, failing to send specified explanatory 15 materials. See id . at *7-*8. 16 The City ' s summ a ry j udgment moti on included documentation showing 17 that in 2010, Cintron had been settled, see Cintron v. Vaughn , No. 3:69-cv-13578, Dkt.

601 No. 232 (D. Conn., Order Administratively Closing Fil e, Febr uary 23, 2010), and the 2 Cintron court had "vacated" the contempt "rulings and findings contained in [its] . . . 3 November29, 2007 [Order ]," id . Dkt. No. 230 (D . Conn, Ruling, February 19, 2010).

4 5. Stothers's Opinion 5 Outlaw also p o inted to the Sto ther s O p ini on L etter, which focused in part 6 on HPD's failure to im plement an early warning system as re commended by a City 7 consu lt a n t in 1 999 for systematic tracking of officers' uses of force, HPD's failu re to 8 have any other procedur es in place for critical review of Form 60's, and HPD's failu re 9 to tim ely investigate complaints. Stothers opined that these failures "sen[t] a strong 10 message to police officers " th a t it was not concer ned about citi zen complaints. 11 (Stothers Opinion Letter at 16-17.) He also opined that All en himself had a relatively 12 high number of use -of-force incidents--11 in 18 months--in the period leading up to 13 the Outlaw incident.

14 D. The District Court's Outlaw I Decision 15 The district court, afte r discussing the principles governing munici pal

611 li abili ty in an action brought under § 1983 ( see Part III .A. above), conc luded that the 2 evidence pointed to by Outlaw was insuffici ent to support an inference that the City 3 was deliberately indifferent to HPD officers' use of exce ssive force. At the outset, the 4 court had noted that "[t]he facts advanced by the City are either admitted by plainti ff 5 or, more frequently, met with a statement that plainti ff lacks informati on concer ning 6 their truth." Outlaw I , 2015 WL 1538230, at *2. 7 The court concluded that the 1994 Review Board Annual Report was too 8 remote in tim e to be probative of HPD custom, policy, or p r a c tice at the tim e of 9 Outlaw' s arre st in 2004. See id . at *8. While the court noted that the City consultant' s 10 1999 recommendation for an early warning system was based on a study that 11 perce ived flaws closer to the tim e relevant to Outlaw, it also obser ved that that study 12 makes no re fere nce to complaints of unconstituti onal conduct or 13 the departmen t' s h a ndling of such complaints. Constr ued most 14 favorably to plainti ff, th e Study suggests that there were 15 deficiencies in the citi zen complaint proces s and a perce ived lack 16 of discipline. A gener al policy of lax discipl ine, assuming it could 17 be proven , d o es not demonstrate deliberate indifference to serious 18 misconduct rising to the level of unconstitutional act s. 19 Id .

621 Th e c ourt concluded that Outlaw' s reliance on the procee dings and 2 rulings in Cintron was mispl aced in li ght of th e nature of the claim s there asser ted. 3 The plainti ffs in that case complained of mistreatment reflecting a systematic pattern 4 of raci a l discrimination. The court also noted that the backlog of IAD complaints, 5 critici zed in Cintron , had eventually been eliminated. Although reso luti ons had not 6 been achieved at an ideal pace, "the fact that there were delays in addres sing citi zen 7 complaints against the HPD is insuffici ent to establis h that the City had a policy or 8 cust o m o f f a il ing to supervise its officers in the use of force that caused the all eged 9 constituti onal viol ation in this case." Id . at *9. 10 As to Outlaw' s contention that the shee r number of exce ssive-force 11 complaints filed (87) an d l aw sui ts commenced (66) against HPD officers in 1998-2005, 12 as shown on the li sts produced by the City, raised an inference that the City exhibited 13 deliberate indifference to the need to s upervise the officers, the district court found 14 the rec ord materially lacking in detail : 15 Plaintiff has also provided evidence that from 1998 to 2005, 16 there were eighty-eight [ sic ] complaints of exce s s iv e force by 17 Hartford police officers filed with the City, a n d s ixty-five [ sic ] 18 lawsui ts involving claim s of exce ssive force. There is no evidence of 19 the facts of these cases, the outcome in each case, or whether and how 20 thoroughly the complaints were investigated by the City . Nor is there 631 evidence that the se complaints involved the offic e r s in this cas e. 2 Absen t such evide nce, the numbers alone have minimal probative 3 value . 4 Id . at *10 (emphases adde d). 5 The court also noted th a t th e recor d contained evidence of very few 6 incidents involving Gordon or All en and that each incident had been investigated by 7 the City. There was no evidence "that the investigati ons were superficial or that the 8 City an d it s p o li ce chief 'simply did not care what a thorough investigati on would 9 reve al.' " Id . (quoting Fiacco v. City of Rensselaer , 783 F.2d at 331). 10 As to Stothers 's emphasi s on the li st of use-of-for ce repor ts filed by All en, 11 the court found that relianc e o n th e me re number of such repor ts was as flawed as 12 Outlaw' s reliance on the mer e number o f exce ssive-force claim s against the City: 13 Stothe r s states that Officer All en had eleven use-of-for ce 14 incidents in the eighteen months leading up to plainti ff's ca s e, 15 "something of which HPD senior management should have been 16 aware." ([Stothers Opinion Letter at 17.]) Again, no details of these 17 incidents are provided and the statistics alone are meaningless without 18 context . He also opines that the incident in which Officer Al[l]en broke 19 a baton over a suspect's head "should have raised a red-flag t o HPD 20 manag e ment ." ( Id .) As noted above, this incident was investigated 21 and Allen was ultimately exonerated. Stothers admitted that he did not 22 s e e the entire investigation . ([Stothers Dep. 128.]) The fact th a t 23 Stothers disagrees with the o u tc o me of the investigati on is 24 insuffici ent to p rove that the City was deliberate ly in different to 25 the use of for ce ther ein. 641 Outlaw I , 2015 WL 1538230, at *11 (emphases adde d). 2 The court also noted that Stothers 's opinion "that the senior management 3 of the HPD has failed to meaningfully review use-of-for ce cases" lacked a sound legal 4 foundation because 5 Stothers admitte d th a t other than the incident in which Officer 6 All en broke his baton, Stothers had no support for his opinion that 7 the City failed to take corre ctive action to preve nt use of force on 8 citi zens in gene ral. 9 Id . at *10 (emphases added). Further, Stothers 's negative opinion of the way in which 10 HPD reviews exce ssive force complaints wa s based only on the method the 11 supervisorhad used in Outlaw' s case. The court noted that a 12 plaintiff's "personal experience, without more, is insufficient t o p rove 13 'deliberate indifference' on the part of the City ." Jenkins v. City of New 14 York , 478 F.3d 76, 95 (2d Cir. 2007); Hernandez v. Connecticut Court 15 Support Servs. Div. , 726 F.Supp.2d 153, 157 (D.C onn.2009) (holding 16 that poor investigati on of plainti ff's case was insuffici ent to prove 17 City of Hartford had custom of inadequate tr a in ing and 18 supervision of police officers that caused constituti onal 19 viol ations). 20 Outlaw I

, 2015 WL 1538230, at *10 (emphasis added). 21 A c c ordingly, the court granted the City's moti on to dismi ss Outlaw's 22 deliberate indifference claim, concluding that

651 [t]he evidence provided by plain ti ff is insuffici ent to 2 establish that the City had a p o li c y or custom of failing to 3 supervise its police officers in the use of force that actually caused 4 the alleged constitutional vi olati on in his case. 5 Id . at *12.

6 E. The Gaps in the Evidence Relied on by Outlaw 7 We see no err or in the district court's conclusion that O utlaw failed to 8 proffer sufficient evidence to defeat the City's moti on for summary judgment. 9 Outlaw' s reliance on the procee dings in the Cintron li tigation is mispl aced because the 10 settlement agreemen ts, order s, and findings of contempt in that ca s e must be 11 considere d in li ght of the charges at issue there. The focus of that li tigation was not 12 a pervas ive use of exce ssive force; rather, the complaint all eged a systematic pattern 13 of misconduct and discrimination toward members of racial minorities. The Cintron 14 procee dings had mini mal value to prove the proposition that the City was gener ally 15 indifferent to HPD officers ' use of exces sive force. 16 Nor did the district court err in concluding that there was insuffici ent 17 probative evidence in the record to support the proposition that the December 2004 18 injuries to Outlaw were proximately caused by a munici pal disregard of the need for

661 better supervision of All en himself. In resp onse to a discovery request by Outlaw, the 2 City identifi ed only two instances in which exce ssive-force complaints had been filed 3 against All en. One, which center ed on All en's improper entry into a buildi n g, was 4 filed in 2006. Whatever HPD's r e s p o n s e to that incident (which resulted in a 5 requirement of additi onal searc h-and-se izure training for All en)--and whether or not 6 there was an all eged use of exce ssive force--H PD's handling of it could not have been 7 a proximate cause of the injuries that Outlaw had suffere d more t han a yearearlier. 8 The other complaint against All en concer ned the Nurse Incident, and 9 although All en's bre aking his baton on Nurse 's head occurre d in the month befor e the 10 Dece mber 2004 incident with Outlaw, Nurse did not file a complaint with HPD until 11 Febr uary 2005. While Stothers suggested that the Nurse Incident "should have raised 12 a red-flag to HPD management," he also opined that "HPD senior management was 13 apparen tly unaware of" the Nurse Incident "at the tim e." (Stothers Opinion Letter 14 a t 1 7 . ) The Nurse Incident was eventually investigated by HPD, and Outlaw' s 15 reliance on that event is flawed due to the absen ce of any evid e n c e that HPD 16 management had deliberately ignored it prior to Dece mber 17, 2004. As discussed in 17 Part II I.A. above, a § 1983 claimfor deliberate indiffere nce by a municipali ty is not

671 sustainable where its failu re is attributable to mere negligence rather than to 2 conscious choice. 3 The li sts of the la w suits filed and the claim s sent to the City's insurer 4 might have led to e v id ence from which an inference of deliberate indifference to 5 exce ssive force could proper ly be drawn, but as noted by the district court, there was 6 n o e v idence as to the facts underlying those claim s or how thoroughly they w e r e 7 investigated by the City. The simpl e fact that claim s were made and that some of 8 them were settled would not permit an inference that the City was de lib e r a te ly 9 indifferent in the supervision of HPD officer s w ith resp ect to the use of exce ssive 10 force. Indeed, it is not even clear that all of the entries on the li sts involved claim s of 11 ex c e s s iv e f orce, as the City stated that they were li sts of claim s that "the City ha[d] 12 previously identifi ed as possiblycontaining al legati ons of excessive for ce" (She a Ltr. 13 at 1 (emphasis added)). A n d it n oted that "many of" the officers whose names 14 appeare d on either li st had not neces sarily been accused of using "exces sive force" ( id . 15 at 1-2); in the lawsui t li st, the City had provided the names of all officers whose names 16 were mentioned anywhere "in the li tigation file as having s ome inv o lv e me nt in the 17 matter," which could have be e n " th e ir position in the chain of command or their 18 involvem e n t i n a ny pertinent investigations " ( id . at 1 (emphasis added)). That descr ipti on 681 itself suggests that there had been investigati ons; but the recor d p r o v id e s no 2 informati on as to the scope of any investigati ons or any outcomes such as discipl inary 3 actions or remedial training. 4 The li st of the 11 Form 60's filed by All en indicating his uses of nonlethal 5 force to effect arre sts from June 2003 through Novembe r 2004 was simil arly lacking 6 in sufficient detail. From this li st, only the Form 60 with regar d to Outlaw is in the 7 reco r d . The recor d does not show any specifics as to the circumstances of, or the 8 amounts of force used in, the other incidents. And although Stothers opined that 11 9 was a relatively high numb e r o f u s e -of-force repor ts for an 18-month period, the 10 recor d does not indicate his basis for that comparative asses sment. 11 As indicated in Part III .A. above, a munici pal policy of deliberate 12 indifference to the use of exce ssive force by police officers may be shown by evidence 13 that the munici pality had notice of complaints of the use of such force but repe atedly 14 failed to make any meaningful investigati on into such charges , see, e.g. , Ricciuti v. New 15 York City Transit Authority, 941 F.2d at 123; Fiacco v. City of Rensselaer , 783 F.2d at 326. 16 Thus, Monell li abili ty, by its n a tu r e , wil l often turn on evidence concer ning victims 17 other than the plainti ffs and all eged misfeasors other than the indivi dual defendan ts. 18 In additi on, a given officer's discipl inary history may be probative of whether it was 691 fores eeable to the munici pality that the officer would engage in misconduct yet again. 2 See, e.g. , Vann v. City of New York , 72 F.3d at 1050-51. To be sure, the right to probative 3 evidence in Monell and other actions is "not absolute" and wil l be "frequently qual ified 4 in the interest of protecting legitimate interests." SEC v. Rajaratnam , 622 F.3d 159, 181, 5 182 (2d Cir. 2010). For example, "[a] district court must . . . limit 'the frequency or 6 extent of discovery' if it determines that . . . 'the b urden or expe nse of the propose d 7 discovery outweighs its li kely bene fit,' " id . at 181 (quoting Fed. R. Civ. P. 26(b)(2)(C ) 8 and Fed. R. Civ. P. 26(b)(1), "[a]nd a district c o u r t may issue protective order s 'for 9 good cause . . . to protect a party or pers on from annoyance, embarr assmen t, 10 oppres sion, or undue bur den or e xpens e,'" id . (quoting Fed. R. Civ. P. 26(c)(1)). But 11 objections based on facile claim s of undue burden, overb readth, and lack of relevancy 12 do not take account of these pr incipl es. 13 The recor d befor e us does not show that Outlaw made requests for 14 informati on as to the City's "investigati ons" of exce ssive-force complaints; but it does 15 show that h e h a d s o u ght the foundational informati on as to the existence of such 16 complaints. His effort to obtain that basic preliminary informati on was largely 17 resisted by the City. For example, during the discovery period, Ou tl aw had requested 18 p r o d u c ti on by the City of, inter alia, all exce ssive-force complaints against HPD 701 officers fr om 1994 to 2004, and allof Allen' s HPD disciplinary records ( seeOutlaw' s 2 document request to th e C ity, Nos. 4, 6). Aside from identifying one complaint 3 against Gordon an d tw o a g ainst All en, the City refuse d production of such 4 complaints, objecting that the request was "overly broa d, vague and unduly 5 burden some" and that as the request covere d "a period of nine [ sic ] (9) [ sic ] years prior 6 to the d a te o f the [Outlaw] incident," it was "unli kely to lead to the discovery of 7 a dmissibl e evidence" (City's Objection to Outlaw' s document request N o . 4 ) . 8 Moreover, in resp onse to Outl aw's far more l imi ted request for disciplinary recor ds 9 of just the officers other th an Gordon and All en who were " involved in the 10 incident/arrest of the Plaintiff referenced in the Complaint," the City objected that the 11 request was "overly broad, vague, and unduly burden some" on the specious ground 12 that the "inter r ogatory seeks information from the entire Harford [sic] Police Department 13 based on the term 'involved '" ( C ity 's objection to Outlaw' s document request No. 3 14 (emphases added)). And the City declined to disclose All en's disciplinary recor ds on 15 the ground, inter alia, that the requ e s t "constitutes an invasion of [All en's] pers onal 16 privacy." (City's Obje c ti o n to Outlaw' s document request No. 6.) All en himself, in 17 resp onse to an interrogatory asking whether he had "ever been accused of viol ating 18 anyone's civil rights" (Outlaw' s Interrogatory No. 1 to All en), simi larly objected to the 711 question as an invasion of his privacy. 2 The City on appeal critici zes Outlaw for failing to cite any "evidence of 3 any citi zen com plaint that was fil ed and was not investigated" (City brief on appeal 4 at 9). Yet the City had objected to the interrogatories that sought to identify all filed 5 complaints--even those li mited to the officers who, in additi on to Gordon and All en, 6 had bee n involved in the arrest of Outlaw. 7 However, the recor d does not show any determined effort by Outlaw to 8 obtain the p otentially probative informati on that defendan ts declined to provide. 9 F o ll owing the discovery resp onses descr ibed above, Outlaw moved for an o r d e r 10 c o mp e ll ing the City to produce the informati on he had requested. But he then 11 withdrew his moti on. And the recor d does not reve al any further moti on to compel. 12 Some of the City' s o bje c ti ons to s ome Outlaw re quests may have been appropr iate. 13 But it was incumbent on Outlaw, who of course had the burden of proving the claim s 14 h e a s s e r ted, to utilize pr ocedure s provided by the Feder al Rules of Civil Procedure 15 to compel resp onses to his requests that sought neces sary informati on and that were 16 appropr iate. Having withdrawn his moti on to compel, Outlaw' s reliance on the li sts 17 of lawsui ts and claim s filed against the C ity--one ending in a judgment against the 18 City, dozen s being settled, and some perh aps not even involving complaints of 721 exce ssive force--is flawed by the lack of detailed informati on he chose not to pursue. 2 Finally, we s e e no err or in the district court's conclusion that the 3 circumstances descr ibe d in the Civil ian Poli ce Review Board's Annual Report for 1994 4 descr ibed events too remote in tim e to be probative of HPD's supervision polici es in 5 2004--espe cially given that the evidence of more rece nt events was s o la cking in 6 material detai l.

7 CONC LUSION

8 We have considere d a ll o f the arguments by the parties in support of 9 their resp ective appeals and, for the reaso ns stated above, have found th e m to be 10 withoutmerit. The judgm ent of the district court is affirmed.

73