Meli v. City of Burlington, Vermont

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

ALBIN MELI; CHARLIE MELI; )

JEREMIE MELI; )

)

Plaintiffs, )

)

v. ) Case No. 2:19-cv-71

)

CITY OF BURLINGTON, VERMONT; )

BRANZON DEL POZO; JASON )

BELLAVANCE; CORY CAMPBELL; )

)

Defendants. )

OPINION AND ORDER

Plaintiffs Albin Meli and Jeremie Meli bring this action

alleging that members of the Burlington Police Department (“the

Department”) used excessive force in violation of their

constitutional rights. Plaintiffs also bring Vermont state law

claims of battery, assault, intentional infliction of emotional

distress, and gross negligence against members of the

Department. Additionally, Plaintiff Charlie Meli alleges an

arrest without probable cause in violation of his Fourth

Amendment rights. Finally, Albin, Jeremie, and Charlie all

allege that Defendant City of Burlington and Brandon Del Pozo,

formerly the Chief of Police for the City of Burlington, allowed

a pattern and practice of failing to train, supervise and

discipline officers, that amounted to gross negligence under

Vermont state law and deliberate indifference to Plaintiffs’

rights under the Fourth and Fourteenth Amendments.

Defendants now move for summary judgment, arguing that

there was no unlawful conduct and that the individual Defendants

are entitled to qualified immunity. Plaintiffs oppose the

motion, arguing that genuine issues of material fact preclude

dismissal of their claims as a matter of law. For the reasons

set forth below, Defendants’ motion for summary judgment is

granted in part and denied in part.

Factual Background

On the evening of September 8, 2018, Jeremie Meli went out

for drinks with his brothers, Albin and Charlie Meli. Plaintiffs

first went to Splash at the Boathouse while waiting for Kelly

Wassick, Charlie Meli’s girlfriend, to finish her shift working

at a restaurant. After Kelly completed her shift, the group took

an Uber to What Ales You bar, a local bar in the downtown

Burlington, Vermont area, sometime around 10:30 p.m. Jeremie

Meli had a shot of whiskey upon arriving at the bar. Jeremie

then remembers heading to the bathroom. The rest of his memory,

however, is comprised of “split second” flashes of being on the

ground outside of What Ales You and later being in the hospital.

Matthew Fay was bartending at What Ales You that evening.

In the early hours of the morning of September 9, 2018, a fight

broke out between Plaintiffs, other patrons, and What Ales You

staff members. While working his shift, Fay heard commotion from

the fight and approached the group to intervene. Upon

approaching, Fay saw Plaintiff Jeremie Meli yelling at another

patron. Jeremie then left the bar. Shortly thereafter, a member

of the What Ales You staff called the police.

Jeremie turned onto Main Street as he exited the bar.

Burlington Police Sergeant Jason Bellavance exited his car

nearby to respond to the 911 call. As he approached, Bellavance

encountered Fay on the corner of Main Street and St. Paul

Street. Sergeant Bellavance then walked towards What Ales You

and saw Jeremie Meli and bar owner Sinan Eren engaged in a

verbal argument. Upon arriving at the spot where Eren and

Jeremie stood, Sergeant Bellavance pushed Jeremie forcefully,

causing him to fall backwards, hit his head, and lose

consciousness. Sergeant Bellavance then called for medical

assistance while other officers began to arrest Jeremie. A

struggle ensued between Jeremie and several police officers.

Jeremie was later charged with simple assault, disorderly

conduct and resisting arrest.

Albin Meli left the bar with his brother, Jeremie, and

rounded the corner onto Main Street. Albin watched Sergeant

Bellavance push Jeremie forcefully into a wall. At this point,

Police Officer Cory Campbell arrived on the scene. Albin was

visibly upset after watching his brother’s injury and became

increasingly distressed, pleading with the officers to stop

touching his brother. ECF No. 144 at 5. After making physical

contact with Officer Campbell, Albin Meli was taken to the

ground by several police officers, handcuffed, arrested, and

charged with disorderly conduct, simple assault and impeding an

officer. He was later charged with assault on a police officer.

Charlie Meli was still inside What Ales You when his

brother Jeremie was injured. Upon walking outside, Charlie saw

Jeremie on the ground and Albin being arrested. Charlie began to

show signs of distress including screaming and crying. Officers

then put handcuffs on Charlie, see Pls. Ex. 21 at 3:30, and

placed him in the back of a police cruiser while he repeatedly

said, “please don’t put me in there.” See id. at 5:30-6:30.

Charlie was charged with disorderly conduct. The State

subsequently dropped all charges against the Meli brothers. All

three Plaintiffs in this case are Black.

Following this incident, the Burlington Police Department

conducted an internal investigation of Sergeant Bellavance’s use

of force against Jeremie. The investigation resulted in Sergeant

Bellavance receiving a four-day suspension without pay.

Bellavance was later terminated from the Burlington Police

Department.

The following facts remain currently disputed between the

parties:

1. It is disputed what occurred between Eren and Jeremie

as Sergeant Bellavance approached the scene. Specifically, the

nature of the argument is disputed. Defendants describe a tense,

“chest-to-chest” exchange with Jeremie yelling and appearing to

be the aggressor. See ECF 134-1 at 2. Plaintiffs argue that the

two individuals were not “chest-to-chest,” that there was a

“visible space” in between them, and that Eren poked Jeremie in

the chest as Sergeant Bellavance approached. See ECF No. 144-2

at 8. It is undisputed that Fay identified Jeremie for

Bellavance as the person who had hit him a few times.1 Defendants

argue that as Bellavance approached, Jeremie appeared to be in

an active argument with Eren, and was therefore justified when

he used “a reasonable amount of force to try to separate

[Plaintiff] who [had been identified as assaulting Mr. Fay] and

appeared to be actively agitated, yelling at, and about to

assault [Mr. Eren].” Defs. Ex. F, 181:23-182:3. Conversely,

Plaintiffs argue that Jeremie was not acting as an aggressor,

and that Sergeant Bellavance ignored the fact that as he

approached, Jeremie yelled to Eren that “you guys started a

1 While Plaintiffs argue that Jeremie never hit Fay, it is clear

from Sergeant Bellavance’s bodycam footage that at the very

least, Fay told Bellavance that he had been hit by Jeremie. See

Pls. Ex. 6 at 00:30-00:50. The Court will accept the bodycam

footage as undisputed. See Scott v. Harris, 550 U.S. 372, 380-81

(2007) (holding that video evidence was sufficient to preclude

any genuine dispute of material fact for summary judgment

purposes).

fight.” Pls. Ex.6 at 0:56-1:00. Plaintiffs also allege that the

argument between Eren and Meli was not at risk of escalating,

that Eren did not feel threatened, and that as one witness

described “it didn’t appear . . . remotely to be headed towards

violence.” Pls. Ex. 7 at 20:9-11. Upon reviewing the bodycam

footage, the Court concludes that a reasonable interpretation of

the video suggests that the fight was a verbal altercation.2

While both Jeremie and Eren faced one another yelling, there was

no indication that Jeremie was about to assault Eren.3

2. It is undisputed that Albin was upset after watching

Jeremie hit his head. The way Albin conveyed his distress,

however, is disputed. Defendants argue that Albin was “pointing

his fingers and yelling and swearing.” Defs. Ex. G 34:6-14. On

the contrary, Plaintiffs introduced a statement by witness

Nathan Bradbury who remarked that he was “amazed at how

compliant . . . [Albin] was with the officer’s requests.” Pls.

Ex. 7 37:15-38:3. Defendants also claim that Officer Campbell

gave Albin several verbal commands to

“back away,” all of which Albin ignored. See ECF No. 133-8 at 7.

Plaintiffs allege that Officer Campbell directed the commands to

“back away” to witness Nathan Bradbury, not to Albin.

2 See Scott, 550 U.S. at 381.

3 See id.

3. The nature of Albin’s physical contact with Officer

Campbell is disputed. Defendants argue that Albin shoved Officer

Campbell’s shoulder with enough force to cause him to lose his

balance. Plaintiffs argue that he placed his hand on Officer

Campbell’s shoulder, pleading with him to “please tell them to

stop.” Pls. Ex. 6 at 5:06.

4. What happened after Albin made contact with Officer

Campbell is also disputed. Defendants allege that Officer

Campbell took Albin to the ground and felt it was necessary to

do so because Albin had just shoved him. Albin argues that

Campbell and several other officers tackled him after Bellavance

yelled “[g]et him down, get him down.” Pls. Ex. 6 at 5:11. Albin

alleges that this response was unnecessary, excessive, and that

his hand was injured while being restrained. Plaintiffs cite

then-Chief of Police Brandon Del Pozo’s Internal Affairs letter

addressed to Sergeant Bellavance, in which he noted “Meli’s

brother became alarmed at Meli’s injuries, having witnessed the

fall. The sound of his head striking the ground or the wall was

audible . . . and his unconsciousness was notable. It was normal

for his brother to become alarmed and act the way he did . . .

Pls. Ex. 30 at 3-4.

5. It is disputed what Charlie Meli did once he exited

the bar. Defendants argue that Charlie repeatedly refused to

comply with police officer instructions to stand back.

Plaintiffs allege that Charlie did comply with officer commands

but admits that he was visibly upset after witnessing both of

his brothers be injured by law enforcement.

6. Some dispute exists as to what the Department’s

investigation into Bellavance’s use of force against Jeremie

concluded. Defendants admit that the investigation determined

that Bellavance’s actions were not consistent with Department

training. Defendants also argue that the internal investigation

concluded that Sergeant Bellavance’s actions were neither

excessive nor unlawful. Plaintiffs, however, argue that the

internal affairs letter issued by the Department indicates that

Bellavance’s use of force was unnecessary or unreasonably

departed from expectations of training, and that he did not have

sufficient cause to use that level of force. See Pls. Ex. 30 at

3-4.

Procedural History

Plaintiffs Jeremie, Charlie, and Albin Meli filed this

lawsuit in federal court on May 2, 2019. In that complaint,

Jeremie alleged the intentional use of excessive force by

Sergeant Bellavance constituted an illegal and unreasonable

seizure in violation of his Fourth Amendment rights. He also

alleged that Defendant City of Burlington has a pattern and

practice of failing to adequately discipline, train, supervise

and otherwise direct police officers with regard to knowledge,

recognition, and respect of, and for violations of, the

constitutional rights of citizens and persons, which amounts to

deliberate indifference to his constitutional rights. Jeremie

also alleged that Defendant Bellavance’s actions constituted

assault, battery, intentional infliction of emotional distress,

and gross negligence.

Albin Meli alleged that Officer Campbell and Sergeant

Bellavance’s intentional use of excessive force and physical

brutality constituted illegal and unreasonable seizures. In

addition, Albin alleged that Defendant Bellavance and Campbell’s

assault of Jeremie and Albin, followed by their arrest without

just cause, constituted the intentional infliction of emotional

distress. Albin also alleged battery and gross negligence

against Sergeant Bellavance and Officer Campbell. Finally, Albin

alleged that Defendant City of Burlington has a pattern and

practice of failing to train, supervise, and direct police

officers which amounted to a deliberate indifference to his

well-established constitutional rights.

Charlie Meli claimed that the actions taken by

Defendants Bellavance, Campbell, Del Pozo, and the City of

Burlington against him were unreasonable, unnecessary, and

excessive, and amounted to gross recklessness and callous

indifference to his constitutional rights, in particular the

right to be free from unlawful seizure.

Plaintiffs’ amended complaint, filed on September 30,

2019, restated the above causes of action. Additionally, all

three Plaintiffs alleged the disparate use of force against

Black citizens. Plaintiffs describe a pattern where officers

“identify themselves as law enforcement and issue verbal

commands when encountering disorderly situations involving white

persons . . . . [versus] officers fail to identify themselves,

act aggressively towards and deploy sudden and overwhelming

force . . . when encountering disorderly situations involving

black persons.” ECF no. 21 at 12-13. Plaintiffs argue that

Defendant Del Pozo and the City of Burlington allowed a pattern

and practice of disparate use of force against Black citizens in

violation of Plaintiffs’ Fourteenth Amendment rights.

On July 1, 2021, Defendants moved for summary

judgment. Defendants argue that there is no genuine dispute of

material fact as to whether their conduct violated Plaintiffs’

constitutional rights. Additionally, Defendants argue that

Sergeant Bellavance and Officer Campbell used a reasonable

amount of force given the circumstances, and that they are

entitled to qualified immunity.

Plaintiffs oppose the motion for summary judgment, arguing

that there are genuine disputes of material fact as to what

happened during the interaction between the Burlington Police

Department and the Meli brothers on the night of September 8,

2018. Furthermore, Plaintiffs allege that there is evidence of

disparate use of force against different racial groups.

Plaintiffs therefore submit that the questions of whether the

use of force violated their constitutional rights and Vermont

state law, and whether Defendant Del Pozo and the City of

Burlington have allowed a pattern and practice of disparate use

of force to prevail within the Department, should be submitted

to the jury.

Discussion

I. Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil

Procedure, summary judgment is appropriate “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In evaluating information presented in summary

judgment, “courts are required to view the facts and draw

reasonable inferences ‘in the light most favorable to the party

opposing the [summary judgment] motion.’” Scott v. Harris, 550

U.S. 372, 378 (2007) (citing United States v. Diebold, Inc., 369

U.S. 654, 655 (1962)).

The moving party bears the initial burden of pointing to

evidence in the record, “including depositions, documents . . .

[and] affidavits or declarations,” Fed. R. Civ. P. 56(c)(1)(A),

“which it believes demonstrate[s] the absence of a genuine issue

of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). The burden then shifts to the nonmoving party to

demonstrate a genuine issue of material fact. Fed. R. Civ. P.

56(c)(1)(A); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986). A genuine dispute of material fact exists when “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson, 477 U.S. at 248. However,

“mere speculation and conjecture is insufficient to preclude the

granting of the motion.” Harlen Assocs. v. Inc. Vill. of

Mineola, 273 F.3d 494, 499 (2d Cir. 2001). “On a motion for

summary judgment, a fact is material if it ‘might affect the

outcome of the suit under the governing law.’” Royal Crown Day

Care LLC v. Dep’t of Health & Mental Hygiene of N.Y., 746 F.3d

538, 544 (2d Cir. 2014) (quoting Anderson, 477 U.S. at 248).

At the summary judgment stage, the inquiry should not be

“whether . . . the evidence unmistakably favors one side or the

other but whether a fair-minded jury could return a verdict for

the plaintiff on the evidence presented.” Anderson, 477 U.S. at

252. “Assessments of credibility and choices between conflicting

versions of the events are matters for the jury, not for the

court on summary judgment.” Jeffreys v. City of New York, 426

F.3d 549, 553 (2d Cir. 2005); see also Hayes v. N.Y.C. Dep’t of

Corr., 84 F.3d 614, 619 (2d Cir. 1996) (“In applying th[e]

[summary judgment] standard, the court should not weigh evidence

or assess the credibility of witnesses.”).

II. Fourth Amendment Excessive Force Claim

The Fourth Amendment makes it unlawful for a police

officer to use “unreasonable and therefore excessive force . . .

in the course of effecting an arrest.” See Tracy v. Freshwater,

623 F.3d 90, 96 (2d Cir. 2010). Excessive force claims under the

Fourth Amendment are assessed under the “objective

reasonableness standard.” Graham v. Connor, 490 U.S. 386, 388

(1989). The Graham factors guide the objective reasonableness

inquiry and consider “the crime committed, its severity, the

threat of danger to the officer and society, and whether the

suspect is resisting or attempting to evade arrest.” See Thomas

v. Roach, 165 F.3d 137, 143 (2d Cir. 1999) (citing Graham, 490

U.S. at 396). The officer’s actions should be judged based on

the facts of the situation, “without regard to their underlying

intent or motivation.” Graham, 490 U.S. at 397. Using the Graham

standard, summary judgment is appropriate only when “no

reasonable factfinder could conclude that the officers’ conduct

was objectively unreasonable.” Amnesty Am. v. Town of W.

Hartford, 361 F.3d 113, 123 (2d Cir. 2004).

Furthermore, when analyzing excessive force claims, courts

should look at the situation “from the perspective of a

reasonable officer on the scene, rather than with the 20/20

vision of hindsight” and must make “allowance for the fact that

police officers are often forced to make split-second judgments—

in circumstances that are tense, uncertain, and rapidly

evolving—about the amount of force that is necessary in a

particular situation.” Graham, 490 U.S. at 396-97. The inquiry

into whether “the force used . . . is ‘reasonable’ under the

Fourth Amendment ‘requires a careful balancing of the nature and

quality of the intrusion on the individual’s Fourth Amendment

interests’ against the countervailing governmental interests at

stake.” Graham, 490 U.S. at 396 (citing Tennessee v. Garner,

471 U.S. 1, 8 (1985) (quoting United States v. Place, 462 U.S.

696, 703 (1983)).

A. Jeremie’s Fourth Amendment Claim

Jeremie’s version of events varies substantially from that

of Sergeant Bellavance, creating significant disputes of fact.

For summary judgment purposes, a court must view the facts in

the light most favorable to the non-moving party. Viewing the

facts in Jeremie’s favor, the Court must accept as true that

when Sergeant Bellavance arrived on the scene, Jeremie did not

exhibit violent behavior or pose a cognizable risk to Sergeant

Bellavance or the public. Instead, Jeremie was involved in a

verbal disagreement with bar owner Sinan Eren but did not give

any indication that he was about to cause Eren physical harm.

Furthermore, when Sergeant Bellavance arrived outside of the bar

Fay told him that Jeremie had hit him. Bellavance did not

witness the alleged assault himself. Without inquiring into the

situation, Sergeant Bellavance shoved Jeremie forcefully into a

wall. Jeremie offered no resistance and did not disobey any

orders. Instead, he was knocked unconscious, became disoriented,

and exhibited signs of traumatic brain injury.

Viewing the facts from the perspective of a reasonable

police officer on the scene, the Court accepts that Sergeant

Bellavance was told that Jeremie had assaulted someone. It is

undisputed that officer Sergeant Bellavance did not issue any

verbal commands before using force. Jeremie denies that he was

acting violently or that he was about to hit Eren, but Sergeant

Bellavance alleges he believed Jeremie was about to become

violent.

The factual disputes presented by these two versions of

events are material. Jeremie’s version of events depict him

having a verbal disagreement with Eren without risk of

escalating violence. Eren indicated in his deposition that he

did not feel threatened by Jeremie. See Pls. Ex. 3 at 51:22-24

and 37:23-38:5. Conversely, Defendants argue that Jeremie was

“yelling at” Eren and that he was “about to assault [him].” See

Defs. Ex. E at 181:24-182:3.

1. Severity of the Crime

In assessing the officer’s reasonableness, a court should

consider the nature and severity of the crime leading to the

arrest. Graham, 490 U.S. at 396. Taking the facts most favorable

to the non-moving party, Plaintiffs allege that Jeremie did not

hit Fay. See Pls. Ex. 13 at 81:14-17. However, it is undisputed

that Fay told Sergeant Bellavance that Jeremie had hit him. See

Pls. Ex. 6 at 00:30-00:50. Under Vermont law a person who

engages in a “fight or scuffle . . . by mutual consent” is

guilty of a misdemeanor punishable by “not more than 60 days” in

prison or not more than a $500 fine, or both. 12 V.S.A. section

1023(b). Simple Assault is punishable by up to one year in

prison or a fine of not more than $1,000, or both. Id.

Therefore, although the crime involves violence, it is

considered a misdemeanor under local law. Furthermore, the

alleged crime had already occurred, it was not occurring as

Sergeant Bellavance approached, which would have necessitated

immediate intervention.

2. Threat to the Public and the Officer

In assessing reasonableness, a court is also to consider

the risk the arrestee poses to the officer and the public. From

Defendants’ perspective, Sergeant Bellavance had sufficient

cause to approach and question Plaintiff after being informed by

Fay that Plaintiff had hit him. See Loria v. Gorman, 306 F.3d

1271, 1289 (2d Cir. 2002)(“A]n officer may rely on a complaint

to establish probable cause and cannot be held liable for a

constitutional violation simply because the complaint turns out

to have been false.”). Furthermore, crowds and situations

involving disorderly conduct can pose a threat to officers and

public safety. See Brayshaw v. City of Burlington, No. 5:13-CV-

253, 2015 WL 1523019, at *9 (D. Vt. Apr. 3, 2015); Cuviello v.

Expo, 2013 WL 3894164, at *6 (E.D. Cal. July 27, 2013); see also

Gomez v. City of Whittier, 211 F. App’x 573, 575-76 (9th Cir.

2006) (acknowledging the government’s legitimate interest in

maintaining the control of the crowd). However, even in

situations of disorderly conduct force is not necessarily

justified.

In Brayshaw, this Court granted the City of Burlington’s

motion for summary judgment on a Fourth Amendment Excessive

Force claim noting that “[p]laintiff continued to physically

resist Sergeant Bellavance’s efforts to move him away from the

crowd and when an unruly crowd began to participate in their

exchange, it was objectively reasonable for Sergeant Bellavance

to believe that he had probable cause to arrest Plaintiff for

disorderly conduct.” 2015 WL 1523019, at *7. This Court further

concluded that the use of an arm takedown “was objectively

reasonable in light of clear evidence that a mere verbal request

would not suffice.” Id. at *8. This case varies considerably

from Brayshaw, however. Here, no verbal command was given.

Plaintiff was not given any warning that law enforcement was

approaching, and he was not given any orders to which he could

comply. Instead, viewing the facts in a light most favorable to

the non-moving party, Sergeant Bellavance initiated the use of

force without identifying himself, asking Plaintiff to do

anything, or making any attempt to de-escalate the situation.

Because there are genuine issues of material fact in dispute as

to the risk posted by Jeremie to either the police or the

public, this Graham factor weighs against granting summary

judgment.

3. Resisting Arrest

Jeremie submits that he offered no resistance at any time.

Instead, he was knocked unconscious, became disoriented and

subsequently demonstrated signs of traumatic brain injury. See

Pls. Ex. 38 (describing in Jeremie’s medical report that “it is

. . . [Dr. Trudell’s] professional opinion, which [she] hold[s]

to a reasonable degree of medical certainty, that Mr. Meli

experienced a mild TBI with post-concussive syndrome, which has

resulted in mild neurocognitive impairment and neurobehavior

changes with psychological disturbance”). Defendants argue that

Jeremie began to resist and kick officers while he was on

ground. See Defs. Ex. G at 47:24-48:4. However, after reviewing

the video evidence, the Court concludes that Jeremie did not

resist before Sergeant Bellavance used force against him, as he

had not been placed under arrest or given a verbal command.4

Because Jeremie’s excessive force claim is limited to Sergeant

Bellavance’s alleged assault, any conduct that occurred after

the alleged assault, including resisting arrest, is not relevant

to the inquiry as to whether the use of force was excessive.

What is relevant to the inquiry is that Jeremie was not

resisting arrest at the time that force was used against him.

Therefore, this Graham factor also weighs against granting

summary judgment.

4. Constitutional Violation

In sum, it is disputed whether a third party was

immediately in danger, or if Jeremie was about to assault

someone. It is undisputed that Sergeant Bellavance did not

witness an assault and that he used force without first issuing

a verbal warning. The Supreme Court has acknowledged that there

is no “easy-to-apply legal test in the Fourth Amendment context

[and that] . . . we must still slosh our way through the

factbound morass of ‘reasonableness.’” Scott, 550 U.S. at 383.

Accepting Jeremie’s version of events, a question arises as to

whether a reasonable officer would have believed that Jeremie

4 See Scott, 550 U.S. at 380-81 (holding that a court can, based

on its interpretation of a video evidence, view “the facts in

the light depicted by the videotape”).

posed an immediate threat to the safety of others such that the

use of force was warranted.

In Crowell v. Kirkpatrick, this Court granted summary

judgment in an excessive force case. 667 F. Supp. 2d 391, 408

(D. Vt. 2009). In doing so this Court relied specifically on the

fact that: “(1) the Plaintiffs remained in control of the

situation the entire time, and could have avoided the use of

force entirely by simply complying with a lawful order; [and]

(2) the Defendants gradually progressed through varying degrees

of lesser force before deciding to use their Tasers; . . .” Id.

None of those same factors exist here. Sergeant Bellavance did

not give Jeremie the opportunity to avoid force. Sergeant

Bellavance did not even identify himself before using force.

Furthermore, there was no gradual progression of force. Instead,

Sergeant Bellavance approached and immediately made forceful

physical contact. Furthermore, the Burlington Police

Department’s own internal investigation concluded that Sergeant

Bellavance’s actions departed from Burlington Police

Department’s standards and training. See Pls. Ex. 30. Former

Police Chief Brandon Del Pozo acknowledged that it was

“unreasonable for Sergeant Bellavance not to use verbal commands

prior to using force.” Pls. Ex. 19 at 106: 13-14 (also finding

that there was “ample opportunity to safely issue a strong

verbal command . . . instructions, identify oneself, et cetera .

. .” Id. at 117:7-12.

The Court cannot conclude at this stage that no reasonable

juror could find that Sergeant Bellavance’s actions in this case

constituted excessive force in violation of Jeremie’s Fourth

Amendment rights.

B. Qualified Immunity

Sergeant Bellavance has also moved for summary judgment on

the basis of qualified immunity. Qualified immunity shields

government officials “from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have

known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In deciding a

government official’s qualified immunity claim on summary

judgment, a court must consider (1) “whether the facts shown

‘make out a violation of a constitutional right’”; and (2)

“‘whether the right at issue was clearly established at the time

of defendant’s alleged misconduct.’” Taravella v. Town of

Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (quoting Pearson, 555

U.S. at 232). A right is considered “clearly established” when

“[t]he contours of the right . . . [are] sufficiently clear that

a reasonable official would understand that what he is doing

violates that right.” Okin v. Vill. of Cornwall-On-Hudson Police

Dep’t, 577 F.3d 415, 433 (2d Cir. 2004) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

For the reasons set forth above, a reasonable juror could

conclude that Sergeant Bellavance violated Jeremie’s Fourth

Amendment rights. The inquiry therefore shifts to whether

Jeremie Meli’s right was clearly established. While “[t]he

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is doing

violates that right,” Saucier v. Katz, 533 U.S. 194, 202 (2001),

police officers can nevertheless “be on notice that their

conduct violates established law even in novel factual

circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); see

also Terebesi v. Torreso, 764 F.3d 217, 237 (2d Cir. 2014) (“An

officer is not entitled to qualified immunity on the grounds

that the law is not clearly established every time a novel

method is used to inflict injury.”)(quotation marks

omitted)(quoting Mendoza v. Block, 27 F.3d 1357, 1362 (9th

Cir.1994)). When determining if a law is clearly established,

courts should consider “the specificity with which the right is

defined, the existence of Supreme Court or Court of Appeals case

law on the subject, and the understanding of a reasonable

officer in light of preexisting law.” Terebesi, 764 F.3d at 231.

Furthermore, the law can be considered clearly established even

in the absence of case law in the relevant circuit if decisions

from other circuits “clearly foreshadow a particular ruling on

the issue.” Id. (quotation marks omitted) (quoting Varrone v.

Bilotti, 123 F.3d 75, 79 (2d Cir. 1997)).

Taking the facts in the light most favorable to Plaintiff,

it is clearly established law that a reasonable officer would

know the type of force inflicted on Jeremie Meli violated his

constitutional rights. The Second Circuit has held that it is a

clearly established violation of the Fourth Amendment for a

police officer to use considerable force against an unresisting

detainee who poses no threat to officers or public safety. See

Tracy, 623 F.3d at 98-99. The Second Circuit has also held that

it is clearly unconstitutional for an officer to strike a person

who is complying with commands and not posing a risk to public

safety. See Rogoz v. City of Hartford, 796 F.3d 236, 247-48, 251

(2d Cir. 2015) (denying summary judgment on the basis of

qualified immunity when the officer jumped on a compliant

subject’s back while he was prone on the ground).

In the current case, Jeremie had not been placed under

arrest, nor had he been given any orders by Sergeant Bellavance.

Therefore, it cannot be said that he was resisting arrest or not

complying. See King v. United States, 917 F.3d 409, 431 (6th

Cir. 2019) (“It is impossible to resist an arrest (or detention)

without knowing that an arrest (or detention) is being

attempted.”). Furthermore, the Second Circuit and a number of

other circuits have held that using “arm takedowns” and other

maneuvers to take a person to the ground, including pushes and

shoves, without cause violates clearly established law. See,

e.g., Jones v. Parmley, 465 F.3d 46, 63 (2d Cir. 2006)(“Our

review of the record shows that each plaintiff who has brought

an excessive force claim has alleged sufficient facts from which

a reasonable factfinder could find that the NYSP employed

excessive force . . . . [f]or example, plaintiffs allege that

without provocation, the NYSP threw several plaintiffs to the

ground . . . .”); see also Ciolino v. Gikas, 861 F.3d 296, 303-

04 (1st Cir. 2017) (police officer's forceful takedown of

plaintiff arrestee violated clearly established law where

arrestee was not given a chance to submit peacefully to arrest);

Montoya v. City of Flandreau, 669 F.3d 867, 873 (8th Cir. 2012)

(“[T]he contours of the right at issue were sufficiently clear

to inform a reasonable officer in . . . [the Defendant's]

position it was unlawful for him to perform a ‘leg sweep’ and

throw to the ground a nonviolent, suspected misdemeanant who was

not threatening anyone, was not actively resisting arrest, and

was not attempting to flee.”). As the Sixth Circuit recently

made clear, “[a]ssaulting an unarmed and compliant individual

has been a clearly established violation of the Fourth Amendment

for decades.” Butler v. City of Detroit, 936 F.3d 410, 425 (6th

Cir. 2019) (denying qualified immunity and finding an officer’s

slamming of an arrestee into a wall violated clearly established

federal law); see, e.g., Stanfield v. City of Lima, 727 F. App’x

841, 848 (6th Cir. 2018)(holding that a “takedown” in which was

police officer shoved an arrestee from behind and tripped him

was objectively unreasonable and violated arrestee’s

constitutional rights); McCaig v. Raber, 515 F. App’x 551, 555

(6th Cir. 2013) (denying qualified immunity for a police officer

who used a leg sweep to take down an arrestee who “jerked away”

but otherwise was not resisting arrest); Burden v. Carroll, 108

F. App’x 291, 293-94 (6th Cir. 2004)(holding that a police

officer who shoved an arrestee into a brick wall was not

entitled to qualified immunity, because even if the officer were

“reasonably mistaken about the legality of using some force to

secure the area when he first arrived on the scene . . . . [he]

had adequate time to assess the situation” and conclude that the

arrestee did not present a “safety or flight risk”).

Taking the facts in a light most favorable to Plaintiff,

Sergeant Bellavance is not entitled to qualified immunity. The

precedent set forth above makes it clear that taking an arrestee

to the ground who is not violent, resisting, or posing a threat

to officers or the public violates clearly established law.

Furthermore, the extent to which Plaintiffs dispute Defendants’

version of events makes granting summary judgment on the basis

of qualified immunity inappropriate. “Summary judgment on

qualified immunity grounds is not appropriate when there are

facts in dispute that are material to a determination of

reasonableness.” Thomas, 165 F.3d at 143; see also Cowan ex rel.

Estate of Cooper v. Breen, 352 F.3d 756, 764 (2d Cir.

2003)(holding that “[[b]ecause in this case genuine, material,

factual disputes overlap both the excessive force and qualified

immunity issues, summary judgment must be denied”); Breen v.

Garrison, 169 F.3d 152, 153 (2d Cir. 1999) (holding that the

“the amount of force used, the injuries suffered and the

objective reasonableness of the officer’s conduct” should be

left to a jury when the parties’ stories differ considerably on

these issues and that those differences also bar summary

judgment on the basis of qualified immunity). In this case,

there are disputes of fact and those disputes are material and

genuine. Summary judgment therefore cannot be granted on the

basis of qualified immunity. Defendants’ motion for summary

judgment on Jeremie Meli’s excessive force claim is therefore

denied.

C. Albin’s Fourth Amendment Claim

There are a number of disputed facts regarding Burlington

Police Department’s interaction with Albin Meli. Defendants

argue that Albin was screaming, swearing, and failing to comply

with officers’ requests after witnessing Jeremie’s injury.

Plaintiff denies disobeying orders. Defendants also argue that

“[p]laintiff shoved Officer Campbell in the shoulder” and that

the shove “was forceful enough to cause Officer Campbell to lose

his balance.” See Defs. Ex. G at 47:21-48:4. Plaintiff admits

that Albin placed his hand on Officer Campbell’s shoulder, but

that it was only to plead with him to stop the officers from

hurting his brother. Witness Nathan Bradbury stated in his

deposition that “when they grabbed him, he, as would anybody

falling off balance, reached out, and from what I saw, that’s

what they called touching a police officer, which is a pretty

big stretch if you ask me. Like, he was just trying to balance

himself . . .” Ex. 7 at 38: 7-13.

It is undisputed that Officer Campbell and Sergeant

Bellavance then took Plaintiff Albin Meli to the ground.

Defendants allege that “Officer Campbell felt it was necessary

to take Plaintiff to the ground for several reasons, including

the need to prevent Plaintiff from further assaulting him.” ECF

No. 133-1 at 5 (citing Defs. Ex. G at 57: 1-6). Plaintiffs argue

that the takedown was excessive and that Albin sustained

injuries during the arrest. See Pls. Ex. 7 at 38:17-25 (Bradbury

described that three officers took Albin to the ground and that

he could “hear something snap as soon as they pulled his arm

back”). In the bodycam footage, Albin tells officers several

times that they were hurting him while he is being arrested. See

Pls. Ex. 6 at 5:36.

D. Qualified Immunity

Defendants move for summary judgment on the basis of

qualified immunity on Albin’s excessive force claim. In

assessing whether an officer is entitled to qualified immunity,

the Court can begin with the “clearly established” inquiry

first, and if it finds that a right was not clearly established,

the Court may skip the constitutional inquiry all together. See

Pearson v. Callahan, 129 S. Ct. 808, 818 (2009)(recognizing that

“judges of the district courts and the courts of appeals should

be permitted to exercise their sound discretion in deciding

which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the

particular case at hand”).

Here, the Court cannot conclude that a reasonable officer

would understand that Sergeant Bellavance’s and Officer

Campbell’s use of force violated clearly established law. Even

taking the facts most favorable to Plaintiff, it is undisputed

that Albin was yelling and made physical contact with Officer

Campbell during the arrest of his brother. There are no direct

cases in the Second Circuit establishing that taking a person

down to the ground in a chaotic and threatening situation after

they placed their hands on a law enforcement officer is a

violation of clearly established law. To the contrary, there is

some precedent in other circuits that suggests a law enforcement

officer is entitled to qualified immunity in these

circumstances. See e.g., Borquez v. City of Tucson, 475 F. App'x

663 (9th Cir. 2012)(finding that defendant police officer was

entitled to qualified immunity, because shoving plaintiff into a

wall after he grabbed the officer’s arm did in fact constitute

excessive force, “[g]iven . . . that [Plaintiff] grabbed

[Defendant’s] arm, we conclude that it would not have been

sufficiently clear to every reasonable officer whether Pacheco's

shove was unlawful under these conditions”); Darrah v. City of

Oak Park, 255 F.3d 301, 307 (6th Cir. 2001)(concluding that the

use of force was reasonable against a person who grabbed the

ankle of an officer as he effectuated the arrest of someone

else, noting that the officer “took relatively minimal measures

to free himself from Plaintiff, particularly after his first

attempt at shaking her loose was only temporarily effective”).

Because several other courts have upheld the use of force

in circumstances where an arrestee places hands on an officer

coupled with the fact there is not clearly established law that

the use of force was unlawful, the Court cannot conclude that a

reasonable officer would be on notice that throwing Albin to the

ground after he touched that officer would violate clearly

established law. As such, Officer Campbell and Sergeant

Bellavance are entitled to qualified immunity. For the foregoing

reasons summary judgment is granted on Albin’s excessive force

claim.

E. Charlie’s Fourth Amendment Claim

Charlie Meli brings a false arrest claim against Sergeant

Bellavance and Officer Campbell, alleging a violation of his

Fourth Amendment Rights after being arrested for disorderly

conduct. A factual dispute exists surrounding Charlie’s

interaction with Officer Campbell and Sergeant Bellavance.

Defendants argue that Charlie Meli was yelling and not complying

with police instructions to step back. See Defs. Ex. F at 41:19-

21. Conversely, Plaintiffs convey a very different scenario–one

in which Charlie Meli expressed deep concern after watching

injuries be inflicted on both of his brothers, but continuously

complied with and responded to police orders. See Pls. Ex. 21 at

0:40-0:50. Plaintiffs also maintain that Charlie’s actions gave

no indication that he would escalate into violence. Furthermore,

it is not clear from the record what specific requests police

officers gave Charlie, to which he allegedly did not comply,

before arresting him. See Pls. Ex. 21 at 3:00-4:00.

F. Qualified Immunity

Defendants move for summary judgment on the basis of

qualified immunity on Charlie’s false arrest claim. In general,

a false arrest claim will not be successful if a police officer

had probable cause or arguable probable cause to make the

arrest. Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004).

Under Vermont law, “[a] person is guilty

of disorderly conduct if he or she, with intent to cause public

inconvenience or annoyance, or recklessly creates a risk

thereof: (1) engages in fighting or in violent, tumultuous, or

threatening behavior;(2) makes unreasonable noise; (3) in a

public place, uses abusive or obscene language; (4) without

lawful authority, disturbs any lawful assembly or meeting of

persons; or (5) obstructs vehicular or pedestrian traffic.” 13

V.S.A. § 1026(a)(1).

Even viewing the facts in the light most favorable to

Charlie, a reasonable police officer could believe he had

arguable probable cause to arrest Charlie for disorderly

conduct. As a result, the Court cannot conclude that it was

clearly established law that an arrest in this case would

violate Charlie’s constitutional rights. The bodycam footage

clearly shows Charlie Meli demonstrating signs of distress, see

Pls. Ex. 21. Arresting a person for disorderly conduct when they

are in fact yelling, cursing, and making noise, even with the

remaining factual disputes, cannot be said to put a reasonable

officer on notice that an arrest would be unlawful. See Stern v.

City of New York, 665 F. App’x 27, 30 (holding that a “jury

could . . . reasonably have concluded that by yelling and

cursing and threatening, . . . [plaintiff] was making

‘unreasonable noise’” and therefore was not entitled to judgment

as a matter of law on whether officers had probable cause to

arrest him for disorderly conduct); see also Hollins v. City of

New York, 761 F. App’x 15, 16 (2019) (holding that a district

court did not abuse its discretion in denying a new trial after

a jury found that police officers had probable cause to arrest

someone for “screaming profanities for several minutes around

10:00 p.m. on the street of a residential neighborhood”). As

such, Officer Campbell and Sergeant Bellavance are entitled to

qualified immunity. For the foregoing reasons summary judgment

is granted on Charlie’s false arrest claim.

III. State law Claims

A. Jeremie’s State Law Claims

Sergeant Bellavance also moves for summary judgment on

Jeremie Meli’s state law claims of assault, battery, intentional

infliction of emotional distress and gross negligence. Vermont

law defines battery as an “intentional act that results in

harmful contact with another.” Christman v. Davis, 889 A.2d 746,

749 (Vt. 2005). This Court has held that “[w]hen assault and

battery is alleged against police officers, ‘the inquiry is

whether the officer’s conduct was reasonably necessary and

thereby privileged.’” Crowell, 667 F. Supp. 2d at 417 (quoting

Smith v. District of Columbia, 882 A.2d 778, 788 (D.C. 2005).

While police officers can use force to lawfully arrest a

suspect, see Green v. City of New York, 465 F.3d 65,86 (2d Cir.

2006), that privilege terminates when “the force used is

excessive, which is determined using the same standards used to

analyze a Fourth Amendment excessive force claim.” Mayo v. Winn,

No. S0952-05CNC, 2009 WL 8103582, at *6 (Vt. Super. May 14,

2009) (citing Evans-Reid v. District of Columbia, 930 A.2d 930,

937 (D.C. 2007)). Because Jeremie’s assault and battery claims,

like his excessive force claim, turn on a question of

reasonableness which considering material disputed facts should

be left to the jury, the Court denies summary judgment on

Jeremie Meli’s assault and battery claims.

Sergeant Bellavance also moves for summary judgment on

Plaintiffs’ intentional infliction of emotional distress

(“IIED”) claim. IIED claims “require[] a plaintiff to establish

‘outrageous conduct, done intentionally or with reckless

disregard of the probability of causing emotional distress,

resulting in the suffering of extreme emotional distress,

actually or proximately caused by the outrageous conduct.’” See

Cook v. Arrowsmith Shelburne, 69 F.3d 1235, 1242 (2d Cir. 1995)

(quoting McHugh v. Univ of Vermont, 758 F. Supp. 945, 949 (D.

Vt. 1991)). A successful IIED claim is one that goes “beyond all

possible bounds of decent and tolerable conduct in a civilized

community.” Fromson v. State, 848 A.2d 344, 347 (Vt. 2004). “A

plaintiff's burden on a claim of IIED ‘is a heavy one.’” Dulude

v. Fletcher Allen Health Care, Inc., 807 A.2d 390, 398 (Vt.

2002)(quoting Gallipo v. City of Rutland, 656 A.2d 635, 643 (Vt.

1994)); see also Farnum v. Brattleboro Retreat, Inc., 671 A.2d

1249, 1256 (Vt. 1995) (“The test is objective; the plaintiff

must show that the harm resulting from the inflicted distress

was so severe that no reasonable person could be expected to

endure it.”). The Vermont Supreme Court has “declined to find

outrageous conduct based solely on the alleged illegal motives

underlying the conduct.” Fromson v. State, 848 A.2d 344, 349

(Vt. 2004). Furthermore, the inquiry into whether a jury could

reasonably find that an officer’s conduct was “so outrageous and

extreme as to go beyond all possible bounds of decency” is first

a question of law for the court. See Jobin v. McQuillen, 609

A.2d 990, 993 (Vt. 1992) (“It is for the court to determine as a

threshold question whether a jury could reasonably find that the

conduct at issue meets the test.”).

Plaintiffs have not introduced evidence to demonstrate that

Sergeant Bellavance’s use of force against Jeremie was “so

outrageous . . . and so extreme . . . as to go beyond all

possible bounds of decency.” Demag v. Am. Ins. Companies, 508

A.2d 697, 699 (Vt. 1986). Additionally, there is no evidence in

the record that suggests that Sergeant Bellavance intended to

cause Jeremie emotional distress. See Beaudry v. McKnight, No.

2:17-CV-23, 2019 WL 1296628, at *17 (D. Vt. Mar. 21, 2019)

(holding that “Plaintiff's allegations may be construed as

claiming Officer McKnight caused him an unspecified injury when

Plaintiff was slammed into the open door and back of

a police cruiser . . . . Although a close question, without

additional factual content, the alleged conduct does not satisfy

the exacting standard required for an IIED claim under Vermont

law”). The Court therefore concludes Plaintiff has not alleged

facts that rise to the high standard for a successful

intentional infliction of emotional distress claim. As such the

Court grants summary judgment on Jeremie’s intentional

infliction of emotional distress claim.

Sergeant Bellavance also moves for summary judgment on

Plaintiff’s gross negligence claim. To prove gross negligence

Plaintiff must demonstrate that “1)defendants owed a legal duty

to protect plaintiff from an unreasonable risk of harm;

2)defendants breached that duty; 3)defendants’ conduct was the

proximate cause of plaintiffs’ injuries; and 4) plaintiffs

suffered actual damage.” Knight v. Rower, 742 A.2d 1237, 1242

(Vt. 1999). Gross negligence, however, is “more than an error of

judgment,” rather it is a failure to exercise “even a slight

degree of care.” See Kennery v. State, 38 A.3d 35, 64 (Vt. 2011)

(quotation marks omitted) (quoting Hardingham v. United

Counseling Serv. Of Bennington Cnty., 672 A.2d 480, 482 (Vt.

1995)).

This Court previously found that a police department’s use

of force policy could create a duty of care. See MacLeod v. Town

of Brattleboro, No. 5:10-CV-286, 2012 WL 5949787, at *10 (D. Vt.

Nov. 28, 2012) (holding that a police department’s use of force

policy around the use of tasers could create a governmental

duty, because while the policy was formulated with the goal of

protecting the general public, “it is specifically directed to

police encounters with certain members of the public”). This

Court also noted that a use of force policy could create a

governmental duty because the threat of physical harm in use of

force incidents warrants guidance around these policies, and

because a plaintiff could reasonably rely on these policies. Id.

Here, as in MacLeod, the use of force policy and its

specified expectations and limitations could create a

governmental duty upon which Defendants owed Plaintiff a duty

from unreasonable risk of harm. See id. at *9 (“The question of

whether ‘a duty exists upon which liability may be claimed is a

matter of law to be decided by the [c]ourt.’”)(citing Edson v.

Barre Supervisory Union No. 61, 933 A.2d 200, 203(Vt. 2007)).

This conclusion draws on the fact that the use of force policy,

while written for the public at large, is directed at a subset

of citizens who have encounters with the police. Furthermore,

the use of force policy can be understood as a mechanism through

which the Burlington Police Department protects police officers

as well as citizens from harm by creating expectations around

police-citizen interactions. Finally, a plaintiff could

reasonably rely on these guidelines. The Burlington Police

Department publishes and updates these guidelines and holds them

out as a public document. Therefore, like in MacLeod, the Court

concludes that Plaintiffs have made a preliminary showing that

the use of force policy in this case creates a duty.

The question as to whether Defendants breached that duty

hinges on the reasonableness of Sergeant Bellavance’s actions.

“Gross negligence is ordinarily a question of fact for the jury,

and an allegation of gross negligence may be dismissed by the

court only if reasonable minds cannot differ.” Kennery, 38 A.3d

at 64 (citing Kane v. Lamothe, 936 A.2d 1303, 1309 (Vt. 2007)).

“Each case turns almost entirely on its own peculiar factual

situation.” Langdon-Davies v. Stalbird, 163 A.2d 873, 874-75

(Vt. 1960); see also Garafano v. Neshobe Beach Club, Inc., 238

A.2d 70, 76 (Vt. 1967) (noting that questions around breach of

care are “questions of fact . . . clearly for resolution by the

jury”). As discussed above, the factual basis for the

reasonableness of Sergeant Bellavance’s actions is disputed.

Therefore, summary judgment on Jeremie’s state law gross

negligence claim against Sergeant Bellavance is denied.

B. Qualified Immunity Under Vermont State Law

Finally, Defendants move to dismiss Plaintiff’s state law

claims under Vermont’s qualified immunity doctrine. In Vermont,

“lower-level government employees are immune from tort liability

when they perform discretionary acts in good faith during the

course of their employment and within the scope of their

authority.” Hudson v. Town of E. Montpelier, 638 A.2d 561, 564

(Vt. 1994). A determination of good faith is made based on the

federal qualified immunity standard by asking “whether the

Defendants’ conduct violated clearly established rights . . . of

which a reasonable person would have known.” Crowell v.

Kirkpatrick, 667 F. Supp. 2d 391, 417 (D. Vt. 2009). Because the

Court has declined to grant qualified immunity to Sergeant

Bellavance on the Fourth Amendment claim due to disputed

questions of fact, those same disputed questions of fact

preclude applying qualified immunity to Plaintiff’s remaining

state law claims of assault, battery and gross negligence.

C. Albin’s State Law Claims

Sergeant Bellavance and Officer Campbell also move for

summary judgment on Albin’s state law claims. The same reasons

that the court used to grant summary judgment for Albin’s Fourth

Amendment claim on the basis of qualified immunity also exist

here. Because the Court granted summary judgment on Albin’s

Fourth Amendment Claim based on qualified immunity, the Court

grants summary judgment on Albin’s state law claims of battery,

assault, intentional infliction of emotional distress and gross

negligence against Sergeant Bellavance and Campbell on that same

basis.

IV. Supervisory Liability Claims

A. Brandon Del Pozo

In their motion for summary judgment, Defendants argue that

Plaintiffs have not demonstrated Del Pozo’s personal involvement

in any of the alleged injuries in this case, and that he is

entitled to summary judgment. Historically, the Second Circuit’s

decision in Colon v. Coughlin governed supervisory liability.

See 58 F. 3d 865 (2d Cir. 1995). Under Colon, supervisory

liability could be demonstrated by showing that:

1) the defendant participated directly in the alleged

constitutional violation, 2) the defendant, after being

informed of the violation through a report or appeal,

failed to remedy the wrong, 3) the defendant created a

policy or custom under which unconstitutional practices

occurred, or allowed the continuance of such a policy or

custom, 4) the defendant was grossly negligent in

supervising subordinates who committed wrongful acts, or

5) the defendant exhibited deliberate indifference to

the rights of [persons] by failing to act on information

indicating that unconstitutional acts were occurring.

Id. at 873 (quoting Williams v. Smith, 781 F.2d 319, 323-24

(2d Cir. 1986)). In Ashcroft v. Iqbal, the Supreme Court

held that in supervisory liability cases, a plaintiff must

prove that “each government-official defendant, through the

official’s own actions, has violated the Constitution.” 556

U.S. 662, 676 (2009). Iqbal thus called the Colon factors

into question. See Reynolds v. Barrett, 685 F.3d 193, 205

n.14 (2d Cir. 2012) (“Iqbal has . . . engendered conflict

within our Circuit about the continuing vitality of

supervisory liability test set forth in Colon . . . .”).

Recently, in Tangreti v. Bachmann, the Second Circuit

clarified that a constitutional "violation must be established

against the supervisory official directly.” 983 F.3d 609, 618

(2020). While “the factors necessary to establish a [Section

1983] violation will vary with the constitutional provision at

issue,” see id. (citing Iqbal, 556 U.S. at 676), in Tangreti the

Second Circuit held that to successfully plead an Eighth

Amendment claim, a plaintiff must show that “conditions of

confinement . . . pose an unreasonable risk of serious harm to

their current or future health, and . . . that the defendant

acted with deliberate indifference.” Id. at 618-19 (quotation

marks and citations omitted). Deliberate indifference means “the

official must know[]of and disregard[] an excessive risk to

inmate health or safety; the official must both be aware of

facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw that

inference.” Id. (quoting Vega v. Semple, 963 F.3d 259, 272 (2d

Cir. 2020)) (quotation marks omitted).

The extent to which Iqbal heightened the requirements of

pleading other constitutional violations remains somewhat

unresolved. See Lombardo v. Graham, 807 F. App’x 120, 124 n.1

(2d Cir. 2020) (acknowledging that “Iqbal may have heightened

the requirements of supervisory liability” but declining to say

to what extent). Nonetheless, while a supervisor cannot be found

liable alone “by reason of . . . [his] supervision of others who

committed the violation,” Tangreti, 983 F.3d at 619, it

seemingly remains possible for a policy maker to be held liable

for their creation or continuance of an unconstitutional policy

or custom. See Dodds v. Richardson, 614 F.3d 1185, 1199 (10th

Cir. 2010)(holding that post-Iqbal, Ҥ 1983 [still] allows a

plaintiff to impose liability upon a defendant-supervisor who

creates, promulgates, implements, or in some other way possesses

responsibility for the continued operation of a policy” which

results in a violation of constitutional rights). To be held

liable as a policymaker, a plaintiff must demonstrate that the

defendant had the requisite mens rea, specifically that “the

supervisor had subjective knowledge of a substantial risk of

serious harm to a [person] and disregarded it.” Tangreti, 983

F.3d at 616. “The focus is on what the supervisor did or what

they caused to be done, the resulting injury attributable to his

conduct, and the mens rea required of him to be held liable.”

Id. at 618 (quotation marks omitted). One court recently

concluded that “[r]eading Tangreti and . . . other decisions

together . . . a senior prison official can still be held liable

for his role in creating a policy . . . but . . . only if the

pleadings or record evidence ‘permit the inference that [he] had

subjective knowledge of the risk of the sexual abuse inflicted

on [plaintiffs] and that [he] decided to disregard that risk.’”

Stone #1 v. Annucci, No. 20-CV-1326 (RA), 2021 WL 4463033, at *9

(S.D.N.Y. Sept. 28, 2021)(citing Tangreti, 983 F.3d at 619).

Based on the current summary judgment record and viewing

the facts in a light most favorable to the Plaintiffs, a

reasonable factfinder could conclude that Mr. Del Pozo knew

about the disparate use of force against Black citizens and

failed to act. For example, the Burlington Police Department

published a use of force report which analyzed data from 2012 to

2018. See Pls. Ex. 34. That report concluded that 20.9% of use

of force incidents were against Black people, a significantly

higher percentage than the number of Black residents in

Burlington (Plaintiffs also submit census data estimating the

Black population of Burlington at 5.7% in 2019; see Pls. Ex.

35). See Pls. Ex. 34. Furthermore, while use of force incidents

as a whole decreased from 2012-2018, the percentage of incidents

of force against Black individuals increased over this time from

~17% in 2012 to ~25% in 2018. Del Pozo clearly was aware of the

report’s findings as he attested in his deposition that “as the

Chief of Police . . . [he] was responsible for approving that

report.” See Mabior Jok v. City of Burlington, et al., Case No.

2:19-cv-70, ECF No. 214-68 at 33:6-9.5

In 2017, Jay Diaz, a staff attorney from the Vermont Civil

Liberties Union, wrote a letter to Mr. Del Pozo pointing out

that “[BPD] officers have arrested and threatened multiple

Burlingtonians, virtually all boys or men of color, in

retaliation for their speech protected by the First Amendment to

the United States Constitution . . . .” Diaz went on to cite

multiple incidents where “all people of color, were each charged

with disorderly conduct. .. [and] none of the accused used

violence, force, or clear threats. Regardless of the

appropriateness of their statements, they do not fit the

definition of disorderly conduct.” See Pls. Ex. 26 at 2. The

letter concluded that the “arrests in these cases demonstrate a

troubling pattern of Burlington police unlawfully retaliating in

violation of individuals’ First Amendment rights . . . ” and

that “[o]fficers have a range of options available to them to

avoid such confrontations, including de-escalation tactics.” Id.

at 3. The letter also detailed an incident where Burlington

police officers asked a group of men of color to leave the area

5 Both parties in the Jok and Meli cases have admitted Brandon

Del Pozo’s deposition. However, the parties have admitted

different excerpts. This order will therefore reference both

records.

on Main Street outside of Nectar’s Music for no apparent reason.

Id. at 1. When one of the men answered that “I know my rights”

and “fuck you” to the police officers, one officer said to

another, “[i]f he keeps going, I’ll fucking knock his ass out.”

See id. The officers proceeded to take that man to the ground,

pepper spray and arrest him, leaving him with lacerations on his

hands, legs and neck. Id. at 2. In his deposition, Del Pozo

acknowledged that he remembered receiving the letter from the

ACLU. See Pls. Ex. 19 at 54:21. Despite this notice, Del Pozo

does not remember having specific conversations with the police

officers under his supervision about “their threats to knock

someone out.” Id. at 58:15-20.

Furthermore, Del Pozo supervised several officers whose

traffic stop patterns and use of force patterns arguably raised

concerns. A Burlington Police Department’s Criminal Data

Analyst, Nancy Stetson, wrote in an email to Del Pozo that the

Department conducted 24 vehicle searches in 2018, 12 of which

were performed on Black people; nine of those 12 were conducted

by Officer Corrow, an officer named in another excessive force

case against the Burlington Police Department. See Jok, Case No.

2:19-cv-70, ECF No. 214-31.6 Furthermore, Del Pozo was aware of

6 Both parties in the Jok and Meli cases have admitted use of

force data as well as references to Nancy Stetson’s analysis of

that data. However, the parties have admitted different

excerpts. This order will therefore reference both records.

this disparity. Former Deputy Chief of Police Janine Wright

testified in her deposition that she remembers having a

conversation with Del Pozo regarding his concerns with the

number of Black people Officer Corrow had pulled over. See Jok,

Case No. 2:19-cv-70, ECF No. 214-33 at 92:3-94:7.7 In another

email to Del Pozo, Stetson noted that from the period from July

1, 2016 to the end of March 2019, Officer Campbell, a named

defendant in this lawsuit, was in the top 75% of officers for

use of force incidents. See Jok, Case No. 2:19-cv-70, ECF No.

214-27.8 Finally, Plaintiff’s Expert Nader Hashim analyzed

Sergeant Bellavance’s use of force data finding that 25% of

Bellavance’s use of force incidents were committed against Black

people (above average as compared to 20% for the Burlington

Police Department as a whole). See Pls. Ex. 47.

Additionally, University of Vermont Professor Stephanie

Seguino and Cornell University Professor Nancy Brooks conducted

a statewide analysis of racial disparities in traffic policing

titled “Driving While Black and Brown in Vermont.” See Jok, Case

7 Both parties in the Jok and Meli cases have admitted Janine

Wright’s deposition. However, the parties have admitted

different excerpts. This order will therefore reference both

records.

8 Both parties in the Jok and Meli cases have admitted Brandon Del

Pozo’s deposition. However, the parties have admitted different

excerpts. This order will therefore reference both records.

No. 2:19-cv-70, ECF No. 214-51.9 Published in 2017, the report

estimated that “Black drivers are stopped at [a] rate that is

between 161% and 193% of their population share.” Id. at 29. The

report also concluded that the Black arrest rate statewide is

almost double the White arrest rate. Id. Plaintiffs submit that

these findings are relevant to disparities in the use of force.

Plaintiff’s expert Seguino stated in her deposition that “based

on the analysis that we have done of traffic stop data that

demonstrate ... differential treatment based on race, it is a

reasonable assumption that if there are biased behaviors in

traffic stops, there are biased behaviors in other interactions

with citizens.” See Pls Ex. 36 at 55:6-12. Furthermore Seguino

and Brooks acknowledged in their study that “[t]o the extent we

observe disparities in traffic stops, we may be able to identify

racial disparities and bias that are not so easy to discern with

events that occur less frequently or for which bias is difficult

to measure empirically.” See Pls. Ex. 37 at 8 (noting that “[a]s

an example, there are wide racial disparities in use of force

and arrests rates, but these events occur much less frequently

than traffic stops.”) See id. at 8 n.7.

9 Both parties in the Jok and Meli cases have submitted Professor

Seguino’s findings. However, the parties have admitted different

excerpts. This order will therefore reference both records.

A reasonable factfinder could conclude that given the use

of force data, traffic stop data, and the ACLU letter, Mr. Del

Pozo was on notice of the disproportionate use of force against

Black citizens within the police department he supervised and

despite that notice, he failed to take action. A reasonable jury

could further conclude that notice coupled with inaction

constitutes deliberate indifference. For the reasons stated

above, the summary judgment on Plaintiff’s supervisory liability

claim against Mr. Del Pozo is denied.

Plaintiff also brings a state law negligent supervision

claim against Mr. Del Pozo. When pleading a negligent

supervision claim, a plaintiff must demonstrate an employer’s

knowledge of misconduct, that the misconduct was foreseeable,

that the employer owed a duty to plaintiff, and that that duty

was breached. Rudavsky v. City of South Burlington, No. 2:18-CV-

25, 2018 WL 4639096, at *6-7 (D. Vt. Sept. 27, 2018). The

questions of knowledge and foreseeability “should be viewed in

the context of the alleged pattern, practice, and/or policy with

respect to the use of excessive force” because “if, as alleged,

[the police] had a practice of overlooking or downplaying

incidents of excessive force . . . then it was foreseeable that

officers would be inclined to use such force without fear of

discipline.” See id. at *6 (declining to dismiss a negligent

supervision claim against the city of Burlington for alleged

excessive force by its officers). Taking the facts in the light

most favorable to plaintiff, a factfinder could conclude that

Defendant Del Pozo knew about misconduct, that misconduct was

foreseeable, and that he owed a duty to Plaintiff. See also id.

at *7 (noting that “when a detainee has been taken into custody

and is, for example, handcuffed, he is unable to defend himself

from attack and is owed a duty of protection by his custodian”).

Because the Court has denied summary judgment for the

supervisory liability claim against Mr. Del Pozo, the Court also

denies summary judgment on the negligent supervision claim for

the reasons stated above. See LaFaso v. LaFaso, 223 A.2d 814,

819 (Vt. 1966); see also Garafano v. Neshobe Beach Club, Inc.,

238 A.2d 70, 76 (Vt. 1967) (noting that questions around breach

of care are “questions of fact . . . clearly for resolution by

the jury”). The City’s motion for summary judgment on the

negligent supervision claim is therefore denied.

V. Monell Claims against Defendant City of Burlington

Under Monell, a municipality can be held liable in cases

where the injury suffered by a plaintiff arises from the

municipality’s customs or policies.” Monell v. Dep’t of Social

Services, 436 U.S. 658, 694 (1978). This “policy, custom or

practice” can be met in four ways. See Webster v. City of New

York, 333 F. Supp. 2d 184, 205. (S.D.N.Y 2004). Plaintiff can

demonstrate (1) evidence of a formal policy adopted by the

municipality, see Monell, 436 U.S. at 690; (2) actions taken by

policy makers that caused the constitutional deprivation, see

Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84 (1986); (3)

a practice “so permanent and well settled as to constitute a

custom or usage . . . ,” see Monell, 436 U.S. at 690-91

(quotation marks omitted); see also City of Oklahoma City v.

Tuttle, 471 U.S. 808, 823-24 (1985) (noting that “[p]roof of a

single incident of unconstitutional activity is not sufficient

to impose liability under Monell, unless proof of the incident

includes proof that it was caused by an existing,

unconstitutional municipal policy”); and (4)failure to train and

supervise by policy makers which constitutes deliberate

indifference to the constitutional rights of those affected. See

City of Canton v. Harris, 489 U.S. 378, 388 (1989).

A. Fourteenth Amendment Monell Claim

Plaintiffs allege that the Burlington Police Department

allowed a pattern of behavior to develop involving the unlawful

use of force against minorities in violation of the Fourteenth

Amendment. A successful claim under the Fourteenth Amendment

requires a plaintiff to allege that a state actor intentionally

discriminated on the basis of race. See Brown v. City of

Oneonta, New York, 221 F.3d 329, 337 (2d Cir. 2000). A plaintiff

can allege this by identifying a policy that “expressly

classifies persons on the basis of race,” see Hayden v. County

of Nassau, 180 F.3d 42, 48 (2d Cir. 1999), or a plaintiff can

identify a facially neutral policy that is motivated by racial

animus or applied in an intentionally discriminatory manner. See

Yick Wo v. Hopkins, 118 U.S. 356 (1986); Village of Arlington

Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-65

(1977). While Plaintiffs point to a disparate impact on Black

citizens in the use of force, they have supplied no evidence

that the city’s policy was intentionally discriminatory or that

it was motivated by racial animus. For support, Plaintiffs cite

social media posts to purportedly show that leadership within

the Burlington Police Department was motivated by racial animus.

While this evidence may call into question the actions of

certain individuals, it does not allege that the Department

applied its use of force policy in an intentionally

discriminatory manner. Summary judgment on Plaintiff’s

Fourteenth Amendment claim against the City of Burlington is

therefore granted.

B. Fourth Amendment Monell Claim

Plaintiffs allege that Defendant City of Burlington failed

to properly train, supervise, and discipline its officers

resulting in violation of Plaintiffs’ Fourth Amendment rights.

In their motion for summary judgment, Defendants argue that

Plaintiffs Monell claim against the City of Burlington fails

because Plaintiffs have failed to identify specific deficiencies

in the City’s training that led to their alleged constitutional

violations. Furthermore, Defendants argue that Plaintiffs have

not produced any evidence suggesting the City of Burlington was

deliberately indifferent to a pattern of Fourth Amendment

violations.

First, a reasonable factfinder could conclude that the City

of Burlington’s decision to hire Brandon Del Pozo as Chief of

Police despite being aware of his academic writing suggests

deliberate indifference. In that published writing, Del Pozo

“argu[es] against [the] quick dismissal of racial profiling,

writing that in some instances it is a legal, ethical and useful

tool for policing,” and comments on the criminality of Black

offenders:

NCVS data, [where] individual blacks are 50 times more

likely to commit crimes against whites than vice-versa;

groups of blacks are up to 250 times as likely to do so.

In fact, NCVS data suggests that blacks are responsible

for 90% of all violent interracial crime. What this

implies is that in racially-mixed situations, blacks

account for the vast majority of violent, interracial

crime. A further implication is that if the police are

patrolling such areas populated by a mix of white and

black citizens, the sub-group of blacks among them

contains significantly more criminals.

Pls. Ex. 49 at 14. Furthermore, a reasonable factfinder could

conclude that Former Chief of Police Brandon Del Pozo’s remarks,

coupled with use of force data and traffic stop data discussed

above, that suggests Black citizens were disparately impacted by

Burlington police interactions, as well as a ACLU letter

notifying the city of a “disturbing pattern … [of] arresting and

charging men of color with disorderly conduct,” all put

Defendant City of Burlington on notice of constitutional

violations.

Specifically, under Monell’s second factor, a reasonable

factfinder could conclude that injuries suffered by Plaintiffs

in this case were a result of inadequate or non-existent

policies around racial bias training and the higher use of force

and arrest rates against Black citizens. Under Monell’s third

factor, a reasonable fact finder could conclude that the City of

Burlington permitted a widespread practice of permitting higher

use of force against Black citizens, as evidenced by use of

force reports, the ACLU letter addressed to the Burlington

Police Department, other lawsuits, news articles and academic

studies. Finally, under Monell’s fourth factor, a reasonable

factfinder could conclude that the City of Burlington failed to

provide adequate training and supervision of subordinates on

racial bias and racial animus, to the extent that it amounted to

deliberate indifference to the rights of those who can into

contact with the municipal employees. In sum, a reasonable

factfinder could also conclude that Defendant City of

Burlington’s failure to remedy these violations, and its failure

to train and supervise its employees, amounted to deliberate

indifference to Plaintiff’s Fourth Amendment rights.

In the alternative, Defendants argue that Plaintiff’s

Monell claim should be denied because “Plaintiff has not

identified a witness qualified to provide expert opinion

testimony regarding the statistics compiled by Defendant

Burlington.” See ECF No. 133 at 30 (referring to the use of

force statistics provided by the Burlington Police Department).

In doing so, Defendants cite Floyd v. City of New York, 959 F.

Supp. 2d 540, 577 (S.D.N.Y. 2013) as a case “discussing reasons

witness was not qualified to testify as expert regarding

statistics.” See ECF No. 133 at 30. Defendants’ argument fails

for several reasons.

First, while Defendants argue that Plaintiff has not

identified an expert to interpret the statistics it seeks to

introduce, Defendants do not directly claim that expert

testimony is required to determine whether a custom or policy

meets the Monell standard. Furthermore, while the case upon

which Defendants rely, Floyd v. City of New York, does include

an extensive discussion of expert methodology and testimony in

that case, it does not hold that expert testimony is necessary

for a Monell claim.

Second, and most importantly, case law suggests that a

plaintiff can survive summary judgment without having identified

an expert if they have other evidence to support their claim.

While the Second Circuit has not definitively said whether an

expert is required to survive summary judgment on a Monell

claim, it has upheld several Monell claim verdicts without the

use of expert testimony related to city or department policies.

See Sorlucco v. New York City Police Dep't, 971 F.2d 864, 870

(2d Cir. 1992) (holding that contrary to the district court's

evaluation, plaintiff had introduced “sufficient evidence from

which the jury could reasonably infer an unconstitutional NYPD

practice of sex discrimination); Fiacco v. City of Rensselaer,

N.Y., 783 F.2d 319, 331 (2d Cir. 1986) (“Drawing all reasonable

inferences in favor of [plaintiff], the jury could rationally

have concluded that during the two years prior to [plaintiff’s]

arrest, the City defendants' response to complaints of use of

excessive force by City police officers was uninterested and

superficial. . . . reflecting an indifference by the City to the

use of excessive force.”); see also Okin v. Vill. of Cornwall-

On-Hudson Police Dep't, 577 F.3d 415, 441 (2d Cir. 2009)

(denying summary judgment on municipal liability claims without

mentioning expert testimony). In all those cases, the Court

either denied summary judgment or upheld a verdict without

mention of the use of expert testimony.

In Sorlucco, for example, the plaintiff submitted a

statistical study prepared by the New York Police Department

(“NYPD”) tracking disciplinary action taken against probation

officers as evidence. See Sorlucco, 971 F.2d at 871. The court

in that case disagreed with the district court’s conclusion that

the study was statistically insignificant. Id. at 872. In doing

so, it reasoned that the plaintiff “presented ample facts

concerning her treatment at the hands of her superiors from

which the jury, in conjunction with the statistical evidence,

could have reasonably inferred that there was a custom of sex

bias operating within the NYPD” and it “believe[d] that . . .

[plaintiff’s] evidence concerning her ‘personal experiences with

the [NYPD] brought the cold numbers convincingly to

light,’ ... at least to the extent where the jury could

rationally reach the result it did.” Id. at 872. This conclusion

was made all without any mention of expert testimony.

In another case, Lucente v. County of Suffolk, six female

inmates claimed that the county had a custom or practice of

ignoring or inadequately addressing a correction officer’s

sexual misconduct with inmates. 980 F.3d 284, 288 (2d Cir.

2020). The district court granted summary judgment for the

county and the Second Circuit reversed, holding that plaintiff’s

evidence raised genuine issues of fact as to whether the county

had a custom or practice of ignoring a correctional officer’s

sexual misconduct with inmates. Id. In reaching this conclusion,

that court did not analyze the requirement for expert testimony

per se, but no expert testimony was mentioned at all. This

suggests that expert testimony was not part of the case, and

that it was not required for plaintiff to survive summary

judgment.

Finally, in Okin, relying on “more than a dozen contacts

between . . . [plaintiff] and the Village” the Court noted that,

“[plaintiff’s] claim of municipal liability . . . focused on the

Village's alleged failure-to-train, is fairly construed to

articulate a claim that the Village had a custom whereby it

acquiesced in unconstitutional conduct by its officers” and that

“[t]hese incidents suggest a consistent pattern of failing to

adequately respond to . . . [plaintiff’s] complaints, to

implement the New York mandatory arrest statute, to interview

the alleged abuser, or to file domestic incident reports, a

pattern which may have encouraged further violence.” Okin, 577

F.3d at 439-440 (citing Vann v. City of New York, 72 F.3d 1040,

1049 (2d Cir. 1995) (“[D]eliberate indifference may be inferred

if . . . complaints are followed by no meaningful attempt on the

part of the municipality to investigate or to forestall further

incidents.”).

Additionally, several other circuits have upheld Monell

claims without expert testimony. See e.g., Watson v. City of

Kansas City, Kan., 857 F.2d 690, 696 (10th Cir. 1988) (allowing

the admission of arrest rate statistics with no mention of an

expert interpretation because “[w]hen all of the plaintiff's

evidence is considered, it is sufficient, if believed, to

support a jury finding that the City and Police Department

followed a policy or custom of affording less protection to

victims of domestic violence than to victims of nondomestic

attacks”). Furthermore, the Third Circuit has definitively said

that expert testimony is not necessarily required to uphold a

Monell verdict. See Beck v. City of Pittsburgh, 89 F.3d 966,

973-75 (3d Cir. 1996) (holding that because a jury could infer

from numerous complaints that the police department knew of an

officer's violence and failed to investigate those claims, it

allowed a custom of excessive force and the district court erred

in granting summary judgment; the court further held that expert

testimony was not required to show deficiencies in procedures so

as to hold the city liable). In Beck, the court reasoned that

“[a]s for drawing inferences from the evidence regarding the

adequacy of the investigatory process . . . ‘[t]o require expert

testimony to prove this fact is ridiculous. It is not beyond the

ken of an average juror to assess what a reasonable municipal

policymaker would have done with the information in this

case’”). Id. at 975-76.

Taken together, these holdings suggest that expert

testimony is not required to survive summary judgment on a

Monell Claim. The Court therefore rejects Defendants’ argument

that Plaintiff’s claim should be dismissed for want of expert

testimony. Summary judgment on the Fourth Amendment Monell Claim

against Defendant City of Burlington is thus denied.

VI. Municipal Liability State Law Claims

A. Vicarious Liability for Negligence

While Plaintiffs concede that their § 42 U.S.C 1983 claims

against Sergeant Bellavance preclude the City of Burlington from

respondeat superior liability, see Monell v. Dep’t Soc. Servs.,

436 U.S. 658, 691 (1978), they argue that Jeremie’s state law

supervisory liability claims face no such restriction. Under

Vermont state law, an employer can be held liable for torts

committed by its employees when done in the scope of employment.

See Brueckner v. Norwich Univ., 730 A.2d 1086, 1090 (Vt. 1999).

Conduct is considered to be within the scope of employment when

“(a) it is of the kind the servant is employed to perform; (b)

it occurs substantially within the authorized time and space

limits; (c) it is actuated, at least in part, by a purpose to

serve the master; and (d) in a case in which the force is

intentionally used by the servant against another, it is not

unexpectable by the master.” Restatement (Second) of Agency §

228(1) (1958). Furthermore, the claims against the City of

Burlington are derivative of the claims against Sergeant

Bellavance. Therefore, because we have declined to dismiss the

claims against Sergeant Bellavance, we also decline to dismiss

the claims against the City. See Winfield v. State, 779 A.2d

649, 653 (Vt. 2001) (“Plaintiff’s claims against the State are

derivative of the tort claims against the individual defendants.

Since we have held that the conduct complained of . . . failed

to violate any established rights to which plaintiff was

entitled, we discern no basis for the claims against the

State.”). Because we have established that the claims against

Sergeant Bellavance are not entitled to summary judgment, the

same is true of the supervisory liability claim against the

City. See id. Therefore, summary judgment on Jeremie’s claim

against Defendant City of Burlington for its supervision of

Sergeant Bellavance is denied. For the same reasons, summary

judgment is granted for Charlie and Albin’s claims against the

City of Burlington for its supervision of Officer Campbell and

Sergeant Bellavance.

B. Negligent Supervision

Plaintiffs also argue that Defendant City of Burlington’s

failure to train, supervise, discipline and sanction officers

amounts to gross negligence in violation of Vermont State law.

As discussed above, when pleading a negligent supervision claim,

a plaintiff must demonstrate employer’s knowledge of misconduct,

that the misconduct was foreseeable, that the employer owed a

duty to plaintiff, and that that duty was breached. Rudavsky,

2018 WL 4639096, at *6-7 (D. Vt. Sept. 27, 2018). Taking the

facts in a light most favorable to Plaintiff, a factfinder could

conclude that City of Burlington knew about misconduct, that

misconduct was foreseeable, and that it owed a duty to

plaintiff. The Court uses the same reasoning here that it did

when denying summary judgment on the negligent supervision claim

against Mr. Del Pozo. The City’s motion for summary judgment on

the negligent supervision claim thus denied.

Conclusion

For the reasons set forth above, Defendants’ Motion for

Summary Judgment on Jeremie’s claims is GRANTED as to his IIED

claim and DENIED as to the remainder of his claims. Defendants’

Motion for Summary Judgment on Albin’s claims is GRANTED.

Defendants’ Motion for Summary Judgment on Charlie’s claims is

GRANTED. Defendants’ Motion for Summary Judgment on Plaintiffs’

Monell claims is GRANTED as to the 14th Amendment claim and

DENIED as to the 4th Amendment claim. Defendants’ Motion for

Summary Judgment on Plaintiffs’ supervisory liability claims

against Defendant Del Pozo and the City is DENIED.

DATED at Burlington, in the District of Vermont, this 14th

day of February, 2022.

/s/ William K. Sessions III

William K. Sessions III

U.S. District Court Judge