# Jok v. City of Burlington, Vermont

> District Court, D. Vermont · February 14, 2022

URL: https://www.frixlaw.com/law-library/cases/10695846

## Case

- **Court:** District Court, D. Vermont
- **Decided:** February 14, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10695846

## How later opinions describe it (automated extraction)

- holding that a court can, based on its interpretation of a video evidence, view “the facts in the light depicted by the videotape”
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10695846. Public record. Not legal advice.