Jok v. City of Burlington, Vermont

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF VERMONT

MABIOR JOK, )

)

Plaintiff, )

)

v. ) Case No. 2:19-cv-70

)

CITY OF BURLINGTON, VERMONT, )

BRANDON DEL POZO, JASON )

BELLAVANCE, JOSEPH CORROW, )

and JANINE WRIGHT, )

)

Defendants. )

OPINION AND ORDER

Plaintiff Mabior Jok brings this action alleging that

Officer Joseph Corrow used excessive force in violation of his

constitutional rights. Plaintiff also brings Vermont state law

claims of battery, assault, intentional infliction of emotional

distress, and gross negligence against Officer Corrow.

Additionally, Plaintiff alleges that Defendant City of

Burlington, as well as former Chief of Police for the City of

Burlington Brandon Del Pozo, former Deputy Chief of Police

Janine Wright, and Sergeant Jason Bellavance, allowed a pattern

and practice of failing to train, supervise and discipline

officers, that amounted to negligence under Vermont state law

and deliberate indifference to Plaintiff’s 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. Plaintiff opposes the

motion, arguing that genuine issues of material fact preclude

dismissal of his 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

Jok is an immigrant who came to the United States after

fleeing his home country of Sudan. In Sudan, he was forced into

combat as a child soldier, suffered a lack of basic food

necessities as a refugee, and watched his closest family

members, including his father, die. He currently suffers from

post-traumatic stress disorder (“PTSD”), symptoms of which

include flashbacks to those past experiences.

Defendants assert that Jok’s PTSD is triggered by people in

uniform. Jok testified in his deposition that people in uniform

remind him of the people who killed his father but denies having

issues with all uniformed people. Jok also testified that

incidents of violence can trigger flashbacks. To soothe his

mental pain, Jok sometimes self-medicates with alcohol.

At approximately 1:45 a.m. on September 8, 2018, Jok

was standing with a group of people smoking cigarettes outside

R.J.’s, a Burlington, Vermont bar. The conversation among the

group became tense. Defendant Joseph Corrow, a Burlington police

officer who was on patrol in the immediate area, arrived on the

scene. An exchange then occurred between Jok and Corrow which

culminated in Officer Corrow deploying an “arm takedown,” a

maneuver used to bring a person to the ground. Jok hit the

ground and lost consciousness.

Jok’s next memory is waking up in the hospital. He was

cited and ultimately charged with disorderly conduct. The charge

was later dismissed by the State.

After the September 8, 2018 incident, the Burlington

Police Department (the “Department”) conducted an internal

investigation to determine whether Officer Corrow violated its

use of force policy. The investigation addressed three issues:

(1) whether Officer Corrow’s use of force against Jok was

unnecessary; (2) whether his use of force was excessive or

unreasonably departed from the expectations of his training; and

(3) whether his tactics departed from the expectations of his

training in a way that did not minimize risks to his safety. The

investigation concluded that Officer Corrow’s use of force was

“lawful and proper,” and that the force used did not depart from

his training and the Department’s expectations. The

investigation also concluded, however, that Officer Corrow did

not take sufficient steps to minimize the risks to himself by

calling for backup prior to approaching the group.

The following facts remain currently disputed between the

parties:

1. It is disputed what occurred as Officer Corrow

approached the scene. Officer Corrow claims that he saw a group

of people standing with Jok, many of whom were yelling at each

other. He then reportedly saw Jok strike another man in the face

with a closed fist. Defendants argue that Officer Corrow

approached Jok and tried to handcuff him, but Jok raised his

arms. Fearing that Jok was about to assault him, Officer Corrow

allegedly administered a modified arm bar takedown. Upon being

taken down, Jok lost consciousness. Officer Corrow and Sergeant

Jason Bellavance placed Jok in a recovery position and called

the Burlington Fire Department. Defendants’ memorandum submits

that the punch is captured on Officer Corrow’s body camera, yet

Officer Corrow testified that the alleged punch was outside the

video’s field of view. Jok denies hitting anyone. Jok also

denies raising his arms, claiming that he did not have time to

react or resist prior to being taken down by Officer Corrow. See

Pls. Ex. 1. Jok disputes that Officer Corrow tried to handcuff

and arrest him before using force. Instead, Plaintiff alleges

that Officer Corrow made no attempt to arrest him and

immediately used force. See Pls. Ex. 12.1 at 2-4. Jok further

contends that after Officer Corrow slammed him to the pavement,

Defendants left him face down and bleeding for over one minute.

Witnesses from the night give conflicting testimony on what

happened. Some witnesses say that Jok punched a man and others

say that he was trying to break up a fight. Thomas Everton was

working security at R.J.’s Bar that evening and reported in his

deposition that “Jok came through the crowd during the

engagement between these two people and decided to either hit or

attempt to hit.” See Pls. Ex. 13 at 13:5-12. Another witness,

Alex Komeyan, stated that Plaintiff was not involved in a

physical fight, but rather a verbal exchange which he referred

to as “friendly.” See Pls. Ex. 10 at 42:7-25. Witness Ajeing Dau

also testified that Plaintiff did not punch anyone. See Pls. Ex.

14 at 48:17-25. In an email to Janine Wright, Sergeant

Bellavance wrote that he “spoke with several people on scene who

made allegations that Corrow ‘slammed’ Jok to the ground for no

reason. Not one of these people claimed to have witnessed Jok

assault the male prior . . . .” See Pls. Ex. 53.

Upon reviewing the video evidence,1 the Court concludes that

a reasonable interpretation of the bodycam footage is that Jok

did not appear to be the aggressor in a fight nor was he about

to strike Officer Corrow, and that force was used by Officer

Corrow immediately without any verbal command or warning.

1 See Scott v. Harris, 550 U.S. 372, 380-81 (2007) (holding that a

court can, based on its interpretation of a video evidence, view

“the facts in the light depicted by the videotape”).

2. The level of aggression displayed by the group as

Officer Corrow approached is also disputed. Relying on witness

testimony by Jacob Garrett, Defendants describe a group that had

become increasingly aggressive, yelling obscenities at one

another. They were drunk and angry. See Defs. Ex. E at 36:7-20.

Plaintiff alleges that to the contrary, things had calmed down

by the time Officer Corrow approached and that plaintiff was not

one of the people in the argument when the above-described

aggression took place. See Pls. Ex. 2.1 at 33:14-16; 45:5-25.

Witness Matthew Vince testified that Corrow had “zero knowledge”

of what was happening before he “tackle[d]” Jok. See Pls. Ex.

7.2. Meanwhile, Officer Corrow testified that as he approached,

he understood that Jok and “the person he was fighting” were the

only people that posed a risk. See Defs. Ex. B at 120:11-18.

3. The identity of the person that Jok allegedly punched is

disputed. Several Defendants, including Defendant Bellavance,

Defendant Wright, and Defendant’s use of force expert, Jack

Ryan, all identified “AJ” or “the male in the blue checkered

shirt” as the person that Jok punched. See Pls. Ex. 52 at 84-85;

Pls. Ex 9.2 at 21-23. Bodycam footage from that night shows

Sergeant Bellavance asking several witnesses for the name of the

person that Jok allegedly hit, and that he is unable to get an

answer. See Pls. Ex. 55. Meanwhile, witness Alex Komeyan

indicated that the altercation was between Paul Comba and Jok.

See Pls. Ex. 10 at 40:14-41:16.

4. It is disputed how much Officer Corrow knew about

Plaintiff prior to the incident on September 8, 2018. Defendants

allege that Jok engaged in violent behavior which made him known

to members of the Burlington Police Department. Plaintiff

disputes this, arguing that while other members of the police

department may know Jok, the relevant individual in this case,

Officer Corrow, did not have specific knowledge of Jok’s history

of interactions with the police. Officer Corrow testified that

he could not recall the name of anyone telling him that Jok was

violent, and that prior to September 8, he was not aware that

Jok had ever been charged with resisting arrest or that his name

had ever been flagged in the Department system. See Pls. Ex.

1.41 at 78-79, 87-88, 90. Despite not having any specific

knowledge, Officer Corrow testified that he had dealt with Jok

“a bunch.” Id. at 76:19-21.

5. Some dispute also exists as to what the Burlington

Police Department’s internal investigation revealed. Defendants

allege that the investigation found that Officer Corrow’s use of

force was not unreasonable, unlawful, or excessive. Jok argues

that the investigation was flawed, insufficient, biased, and did

not comport with Department policy which dictates that internal

investigations should be completed within 30 days of an

incident. Among other things, Plaintiff submits that the

conclusions reached in the investigation were based in part on

misleading information provided by Sergeant Bellavance. Jok also

notes that the investigation was led by then-Deputy Police Chief

Janine Wright. The Second Amended Complaint accuses Defendant

Wright of racial bias.

6. Jok contends that his evidence creates a dispute of fact

on the question of racial bias within the Burlington Police

Department. Defendants argue that there is no evidence of

Department officers using force in a way that was motivated by

racial animus. The summary judgment record includes a report

authored by the City of Burlington concluding that its police

were more likely to draw or point a firearm at a suspect of

color. See Pls. Ex. 9 at 25. Then-Chief of Police Brandon Del

Pozo has also acknowledged publicly that the use of force by his

Department had a disproportionate impact on African Americans.

See Pls. Ex. 20.2 at 1:02:40. Between 2010 and 2016, Black

people made up 17.81% of the population in use of force

suspects, See Pls. Ex. 9 at 12, a much larger percentage than

the percentage of Black citizens in Burlington. Defendants also

argue that there is no evidence that Officer Corrow’s actions

were motivated by race. Plaintiff disputes this claim, pointing

to the fact that the 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. See pls. Ex. 4.6. Wright testified in her

deposition that she remembers having a conversation with Del

Pozo about his concerns with the number of Black people Officer

Corrow pulled over. See Pls. Ex. 5.01 at 92:3-94:7.

Procedural History

Plaintiff Mabior Jok filed this lawsuit in federal court on

May 2, 2019. He then submitted a Second Amended Complaint on

August 11, 2020. In that complaint, Jok alleged the intentional

use of excessive force and physical brutality as 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 Fourth and Fourteenth

Amendment rights. Jok also alleged that Officer Corrow’s actions

constituted assault, battery, the intentional infliction of

emotional distress, and gross negligence.

In his second amended complaint, Jok also alleged the

disparate use of police force and escalation of force against

Black citizens. Plaintiff describes 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. 121 at 13-14. Plaintiff argues that

Defendants Del Pozo, Wright, Bellavance and the City of

Burlington allowed a pattern and practice to emerge of disparate

use of force against Black citizens in violation of Plaintiff’s

Fourteenth Amendment rights.

Defendants first moved for summary judgment on April 27, 2020.

The Court denied Defendants’ motion without prejudice.

Defendants moved for summary judgment again on June 15, 2021.

Defendants argue that there is no genuine dispute of material

fact as to whether their conduct violated Plaintiff’s

constitutional rights. Additionally, Defendants argue that

Officer Corrow used a reasonable amount of force given the

circumstances, and that the individual Defendants are entitled

to qualified immunity.

Plaintiff opposes the motion for summary judgment, arguing

that there is a genuine dispute of material fact as to what

happened during his interaction with the Burlington Police

Department on the night of September 8, 2018. Furthermore,

Plaintiff alleges that there is evidence of disparate use of

force against different racial groups. Plaintiff therefore

submits that the questions of whether the use of force violated

his constitutional rights and Vermont state law, and whether

Defendants Del Pozo, Wright, Bellavance and the City of

Burlington 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. Jok’s Fourth Amendment Claim

Jok’s version of events varies substantially from that of

Officer Corrow, 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

from Jok’s favor, the Court must accept as true that when

Officer Corrow arrived on the scene, Jok had not just punched

someone and he did not assume a “fighter stance” in preparation

to hit Officer Cornrow. Instead, Jok was involved in a verbal

disagreement with a group of people outside of R.J.’s bar but

gave no indication that he was a threat to the public or that he

was about to cause Officer Corrow physical harm. Without

inquiring into the situation and without having witnessed Jok

assault someone, Officer Corrow used an arm takedown maneuver

and threw Jok to the ground, whereupon Jok lost consciousness.

The factual disputes presented by these two versions of

events are material. Jok’s version of events depicts him having

a verbal disagreement with a group of people without risk of

escalating violence. Conversely, Defendants argue that Jok

inflicted violence on someone else and that Officer Corrow

feared that Jok would then hit him.

1. Severity of the Crime

In assessing reasonableness, a court should consider the

nature and severity of the crime leading to the arrest. Graham,

490 U.S. at 396. It is disputed whether Jok assaulted someone

outside of the bar. Multiple witness accounts convey different

narratives. Accepting Jok’s version of events, there was no

crime at all. However, even if the Court accepts that Officer

Corrow suspected that Jok had hit someone, 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. § 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.

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, Officer Corrow was justified in

perceiving the group outside of the bar as a threat, as 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 Officer Bellavance

to believe that he had probable cause to arrest Plaintiff for

disorderly conduct.” 2015 WL 1523019, at *9. 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 *10. 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, Officer Corrow 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

posed by Jok to either the police or the public, this Graham

factor weighs against granting summary judgment.

3. Resisting Arrest

After reviewing the bodycam footage, the Court concludes

that Jok did not resist arrest before Officer Corrow used force

against him, as he had not been placed under arrest or given a

verbal command.2 Because Jok’s excessive force claim is limited

to Officer Corrow’s alleged assault, any conduct that occurred

after the alleged assault, including resisting arrest, is not

relevant to the inquiry. What is relevant to the inquiry is that

Jok was not resisting arrest at the time that force was used

2 See Scott v. Harris, 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”).

against him. Therefore, this Graham factor also weighs against

granting summary judgment.

4. Constitutional Violation

In sum, it is disputed whether Officer Corrow was

immediately in danger, or if Jok had just assaulted someone. It

is undisputed that Officer Corrow 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. A question arises as to whether a reasonable

officer would have believed that Jok 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. Officer Corrow did not

give Jok the opportunity to avoid force. Officer Corrow did not

even identify himself before using force. Furthermore, there was

no gradual progression of force. Instead, Officer Corrow

approached and immediately made forceful physical contact.

The Court cannot conclude at this stage that no reasonable

juror could find that Officer Corrow’s actions in this case

constituted excessive force in violation of Jok’s Fourth

Amendment rights.

B. Qualified Immunity

Officer Corrow 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 Officer Corrow violated Jok’s Fourth Amendment

rights. The inquiry therefore shifts to whether Jok’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 Jok 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, Jok had not been placed under arrest,

nor had he been given any orders by Officer Corrow. 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,

Officer Corrow 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 Plaintiff disputes 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 Jok’s excessive force claim is therefore denied.

III. State Law Claims

Officer Corrow also moves for summary judgment on Jok’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 Jok’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 Jok’s assault and battery

claims.

Officer Corrow also moves for summary judgment on

Plaintiff’s 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.”).

Plaintiff has not introduced evidence to demonstrate that

Officer Corrow’s use of force 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 Officer Corrow intended to cause Jok 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

established facts that rise to the high standard for a

successful intentional infliction of emotional distress claim.

As such the Court grants summary judgment on Jok’s intentional

infliction of emotional distress claim.

Officer Corrow 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 deployment 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 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 Plaintiff has 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 Officer Corrow’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 Officer Corrow’s actions is disputed.

Therefore, summary judgment on Jok’s state law gross negligence

claim against Officer Corrow is denied.

IV. Supervisory Liability Claims

A. Brandon Del Pozo

In their motion for summary judgment, Defendants argue that

Plaintiff has 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. (quotation

marks omitted) (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 Plaintiff, 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. 9.1. 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 (census data estimated the Black population of

Burlington at 5.7% in 2019; see Meli et al. v. City of

Burlington, et al., Case No. 2:19-cv-71, ECF No. 144-31).3 See

3 Both parties in the Jok and Meli cases have admitted supporting

evidence. This order will therefore reference both records.

Pls. Ex. 9.1. 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. See Pls. Ex. 9.1. 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 Pls. Ex. 21 at 33:6-

9.

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. 6.1 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

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 Meli et al. v. City of Burlington, et al., Case No.

2:19-cv-71, ECF No. 144-20 at 54:21.4 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

4 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.

by Officer Corrow. See Pls. Ex. 4.6. Furthermore, Del Pozo was

aware of 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 Pls.

Ex. 5.01 at 92:3-94:7. 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 the Meli lawsuit,

was in the top 75% of officers for use of force incidents. See

Pls. Ex. 4.2. Also, in Meli, Plaintiffs’ 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 Meli et al. v.

City of Burlington, et al., Case No. 2:19-cv-71, ECF No. 144-44

at 54:21.5

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 Pls. Ex.

8.3. Published in 2017, the report estimated that “Black drivers

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

force data. However, the parties have admitted different

excerpts. This order will therefore reference both records.

are stopped at [a] rate that is between 161% and 193% of their

population share.” Id. at 29. Id. at 29. The report also

concluded that the Black arrest rate statewide is almost double

the White arrest rate. Id. Plaintiff submits 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 Meli et al. v. City of Burlington, et al., Case No. 2:19-cv-

71, ECF No. 144-32 at 55:6-12.6 Furthermore Seguino and Brooks

acknowledged in a follow-up study, which assessed traffic stop

data in Burlington from 2014-2019, 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 Meli et al. v. City of Burlington,

et al., Case No. 2:19-cv-71, ECF No. 144-33 at 8 (noting that

“[a]s an example, there are wide racial disparities in use of

6 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.

force and arrests rates, but these events occur much less

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

Finally, it is clear that Del Pozo was aware of the

disproportionate effect of policing on the Black community. At a

city council meeting, Del Pozo acknowledged “that the use of

force by his Department has a disproportionate impact on African

Americans,” see Pls. Ex. 20.2 at 1:02:40, and that the “ACLU was

right.” See id. at 01:07:05.

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 against Del Pozo is therefore

denied.

B. Janine Wright

Plaintiff also brings a Section 1983 claim against former

Deputy Chief of Police Janine Wright. As discussed above,

supervisory liability requires that a constitutional "violation

must be established against the supervisory official directly.”

Tangreti, 98 F.3d at 618. There is no allegation here that Ms.

Wright participated directly in the use of force. Furthermore,

Plaintiff has not established facts to demonstrate that Ms.

Wright had subjective knowledge of the constitutional violations

occurring in the Burlington Police Department and the risk of

harm to Plaintiff and that she was deliberately indifferent to

that risk. Unlike his claim against Defendant Del Pozo,

Plaintiff has not provided evidence that notice of these

violations was addressed directly to Ms. Wright beyond

suggesting that she was on a Burlington Police Department email

listserv and was sent a report about disparate impact based on

race in traffic stops. This alone does not meet the demanding

requirement that Defendant Wright knew that the type of harm

from which Plaintiff suffered was occurring and that she was

deliberately indifferent to that risk of harm. Summary judgment

on the supervisory liability claim against Ms. Wright is

therefore granted.

Plaintiff also brings a state law negligent supervision

claim against Janine Wright. As discussed above, because the

Court granted summary judgment for the federal supervisory

liability claim, the Court also grants summary judgment for Ms.

Wright on the negligent supervision claim. Negligent supervision

requires 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, 2018 WL

4639096, at *6-7. That is, insofar as Plaintiff has failed to

establish that Ms. Wright violated his constitutional rights, he

has also not established facts to meet the requirements of

negligent supervision. Summary judgment is granted on the

negligent supervision claim against Ms. Wright.

C. Sergeant Bellavance

Plaintiff also brings a Section 1983 claim against Sergeant

Bellavance. As discussed regarding Defendant Wright, Plaintiff

has not set forth facts to demonstrate that Sergeant Bellavance

had subjective knowledge of the constitutional violations

occurring in the Burlington Police Department, the risk of harm

to Plaintiff, or deliberate indifference to that risk.

Furthermore, Plaintiff has not established any facts suggesting

that Sergeant Bellavance’s training of officers was deficient

beyond suggesting that officers did not know how to handle

situations where one person is fighting another, or even that it

was Sergeant Bellavance’s job to train and sanction officers.

While Plaintiff does submit that Sergeant Bellavance was Officer

Corrow’s direct supervisor and thus he should have known about

Corrow’s disparate use of force, Plaintiff has failed to set

forth facts suggesting Sergeant Bellavance had subjective

knowledge of constitutional violations and was deliberately

indifferent to the risk of a constitutional violation. Summary

judgment on the supervisory liability claim against Sergeant

Bellavance is thus granted.

Plaintiff also brings a state law negligent supervision

claim against Sergeant Bellavance. As discussed above, because

the Court has granted summary judgment for the federal

supervisory liability claim, it also grants summary judgment for

Sergeant Bellavance on the negligent supervision claim.

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

Plaintiff alleges 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 Plaintiff points to a disparate impact on Black

citizens in the use of force, he has supplied no evidence that

the City’s policy was intentionally discriminatory or that it

was motivated by racial animus. For support, Plaintiff cites

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

Plaintiff alleges that Defendant City of Burlington failed

to properly train, supervise, and discipline its officers

resulting in violation of Plaintiff’s Fourth Amendment rights.

In their motion for summary judgment, Defendants argue that

Plaintiff’s Monell claim against the City of Burlington fails

because Plaintiff has failed to identify specific deficiencies

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

violations. Furthermore, Defendants argue that Plaintiff has 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. 25 at 7. 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, which 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 Plaintiff 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. 205 at 33-34 (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. 205 at 34. 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.” 577 F.3d at

439-40 (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 Plaintiff concedes that his § 42 U.S.C 1983 claims

against Officer Corrow preclude the City of Burlington from

respondeat superior liability, see Monell, 436 U.S. at 691, he

argues that his 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 Officer Corrow. Therefore, because the Court has

declined to dismiss the claims against Officer Corrow, it also

declines 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 the Court has established that the

claims against Officer Corrow are not entitled to summary

judgment, the same is true of the supervisory liability claim

against the City. See id. Therefore, summary judgment on Jok’s

claim against Defendant City of Burlington for its supervision

of Officer Corrow is denied.

B. Negligent Supervision

Plaintiff also argues that Defendant City of Burlington’s

failure to train, supervise, discipline and sanction officers

amounts to 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. 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 is thus denied.

Conclusion

For the reasons set forth above, Defendants’ Motion for

Summary Judgment on Jok’s claims against Officer Corrow is

GRANTED as to his IIED claim and DENIED as to the remainder of

his claims. Defendants’ Motion for Summary Judgment on

Plaintiff’s Monell claim is GRANTED as to the 14th Amendment

claim and DENIED as to the 4th Amendment claim. Defendants’

Motion for Summary Judgment on Plaintiff’s supervisory liability

claims against Defendant Wright and Bellavance is GRANTED.

Defendants’ Motion for Summary Judgment on Plaintiff’s

supervisory liability claim against Defendant Del Pozo is

DENIED. Defendants’ Motion for Summary Judgment on Plaintiff’s

supervisory liability claims against 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