United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING
IN PART DEFENDANT OFFICERS' MOTION FOR SUMMARY JUDGMENT
[DKT. NO. 78] AND GRANTING THE CITY OF NORWALK'S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 79]
Vanessa L. Bryant United States District Judge.
Cody Greene brings this action against the City of Norwalk
(“Norwalk”), and Officers Steven Luciano, Felipe
Taborda, Adam Mulkern, and Julio Rodriguez (collectively, the
“Defendant Officers”). He alleges, inter
alia, that the Defendant Officers used excessive force
under color of law, in violation of the United States
Constitution. [Dkt. No. 51]. Defendants moved for summary
judgment pursuant to Federal Rule of Civil Procedure 56.
[Dkt. Nos. 78, 79]. For the reasons that follow, the
Defendant Officers' Motion for Summary Judgment [Dkt. No.
78] is GRANTED-IN-PART and DENIED-IN-PART, and the City Of
Norwalk's Motion for Summary Judgment [Dkt. No. 79] is
Norwalk Police Department Street Team
Defendant Officers were assigned to the Norwalk Police
Department, Special Services Unit Street Team (the
“Street Team”). [Dkt. No. 78-5 at 38-39]. The
Street Team was tasked with investigating street level
narcotics and gang activities and arresting suspected
perpetrators. The Street Team specifically targeted those
areas where [they have] had violence, drug dealing, gang
activity, et cetera. [Dkt. No. 97-2, Kulhawik Dep., at 32].
Street Team members employed “self-initiated
stops” rather than answering dispatch radio calls.
[Dkt. No. 78-5 at 65]. Officer Tabora described the Street
Team as a “pro-active” unit, and stated that they
would patrol areas of the city where there was “an open
drug trade or high crime area . . . where there has been
gang activity, stabbings or shootings, areas where large
fights occur through these . . . rival gangs.” [Dkt.
No. 78-6 at 37]. If a Street Team officer saw something
suspicious taking place, he would “initiate the action,
speak with the person.” [Dkt. No. 78-5 at 65].
Norwalk maintains that the Norwalk Police Department provided
extensive training to all of its officers beyond that
mandated by the State of Connecticut. [Dkt. No. 82]. The
officers received training in use of force, shooting
decisions, taser usage and arrest, and control/officer
safety, although Plaintiff maintains that this training was
inadequate. [Id.; Dkt. No. 97-1 at 20]. The Norwalk
Police Department is an accredited law enforcement agency
that has been certified by the Commission on Accreditation
for Law Enforcement Agencies (“CALEA”) since
1995. [Dkt. No. 81-13]. In March 2012, the Norwalk Police
Department received the “Certificate of Advanced
Meritorious Accreditation” from CALEA. Id.
Norwalk Police Department's internal personnel tracking
system suggests that none of the Defendant Officers had, at
the time of the Cody Greene incident, any complaints
registered against them. [Dkt. No. 80-2]. Plaintiff
challenges the reliability of this tracking system, arguing
that a 2011 report indicated that Officer Luciano had
accounted for five percent of all instances of uses of force
by the entire department. [Dkt. No. 97-2, 2011 Use of Force
Analysis]. The same report stated that “the Special
Services Street Team . . . was tasked with high visibility
enforcement in known high incident locations. The unit made
over 150 arrests and therefore came in contact with a much
larger number of individuals than most other officers.”
Id. It also explained that “[a]s a result of
these additional arrests and encounters with potentially
violent offenders, a higher than average use of force would
be expected.” Id. In 2011, members of the
Street Team reported four to five times more instances of
uses of force compared to most other officers. Id.
Plaintiff offers no additional facts to support his
skepticism of the tracking system's reliability.
faults the City of Norwalk for failing to offer Street Team
members additional training to handle these encounters. [Dkt.
No. 87-1 at 25 (citing Dkt. No. 82)]. He argues that by
design, Street Team members faced heightened dangers, and
that the Norwalk Police Department failed to train members of
the Street Team to deal with these heightened dangers.
Plaintiff singles out training on Terry stops in
particular, arguing that the Norwalk police department
dedicated only three power point slides to the issue during a
training that was not specifically tailored for Street Team
members. [Dkt. No. 97-2, Exh. 24]. Plaintiff offers no
evidence that the general training received by officers
together with the training criticized is inadequate.
approximately 8:30 p.m. on July 18, 2012, Plaintiff went to
visit a friend who lived at 16 School Street in Norwalk,
Connecticut. [Dkt. No. 51 ¶ 14]. Plaintiff parked on the
street and walked up to the building. [Dkt. No. 97-2, Greene
Dep., at 29]. As he was knocking on a door, an unmarked black
Ford Expedition with tinted windows pulled up a driveway and
four males dressed in black got out of the vehicle.
[Id.; Dkt. No. 78-5 at 67]. Defendants dispute this
sequence of events, arguing that Mr. Greene began walking
quickly toward the apartment building after he saw the car,
and tucked something into his waistband. [Dkt. No. 78-5 at
69]. The Plaintiff maintains that the Defendants could not
have seen this because they were behind him when he
purportedly tucked something into his waistband. [Dkt. No.
96-1 ¶ 30; Dkt. No. 96-2, Mulkern Dep., at 69-70; Dkt.
No. 96-2, Luciano Dep., at 35; Dkt. No. 96-2, Taborda Dep.,
parties also dispute whether the Defendant Officers'
clothing had any markings identifying them as law enforcement
officers. [Dkt. 96-1 at 5]. Plaintiff has submitted evidence
that the four officers were dressed in all black and that
there were no markings on their clothing to indicate that
they were police officers. [Dkt. No. 97-2, Greene Dep., at
31-32, 63; Dkt. No. 97-2, Martinez Dep., at 16, 18; Dkt. No.
97-2, Rodriguez Dep., at 7-8].
the four men got out of the car, Officer Luciano stayed by
the car, and the three other Defendant Officers walked up to
the Plaintiff. [Dkt. No. 96-2, Greene Dep., at 33, 37,
77-78]. Officer Mulkern asked the Plaintiff what he was doing
at the apartment and who he was there to see. [Dkt. No. 78-4
at 30; Dkt. No. 96-2, Taborda Dep., at 47; Dkt. No. 96-2,
Rodriguez Dep., at 48]. Plaintiff responded that he was there
to see his “cousin, ” who Plaintiff stated in his
deposition was Jerrod Smith, a close friend that he referred
to as a cousin, but to whom Plaintiff was not related. [Dkt.
No. 78-4 at 31]. Plaintiff claims he then pointed to Mr.
Smith and stated, “That's my cousin right
there.” [Id. at 31]. Plaintiff then stated,
“My dad is a State Trooper.” [Id. at
89]. Plaintiff testified that when questioned by the four
men, he was unaware that they were police officers, and that
the officers never identified themselves as police officers.
[Dkt. No. 80-8 at 84-85]. He further testified that the four
men were dressed all in black, and that their clothing had no
markings identifying the men as police officers. [Dkt. No.
96-2, Greene Dep., at 31]. A photograph taken of Officer
Mulkern later that night showed him wearing a tee shirt which
did not have police insignia on the front. [Dkt. No. 78-9].
Plaintiff also testified that he saw that the men were
wearing belts, but did not notice that the men were wearing
guns or weapons on their belts. [Dkt. No. 97-2, Greene Dep.,
at 63; Dkt. No. 80-8 at 35]. Plaintiff testified that none of
the officers asked him what he had in his waistband, and none
asked to pat him down. [Dkt. No. 80-8 at 89].
then maintains that the four individuals began speaking with
each other, and that he heard someone say something like,
“get him” or “grab him” and then one
of the men-a white male-grabbed his upper right arm and tried
to pull him off of his cousin's stoop. Id. at
32, 92-93. Plaintiff claims that the individual did not say
anything to him when he grabbed his arm, and did not ask him
whether he had anything in his waistband. Id. at 32,
89, 93. Officer Mulkern maintains that he told the Plaintiff
that he was going to pat him down to look for drugs or
weapons, and he testified that he believed Mr. Greene was
carrying a weapon. [Dkt. No. 78-5 at 14; Dkt. No. 81-12 at
95]. Officer Mulkern also testified that he grabbed the back
of Plaintiff's shirt after he started to run, ripping a
“square” piece of fabric from the back, but that
he never grabbed the Plaintiff's arm. [Dkt. No. 96-2,
Mulkern Dep., at 91].
Mulkern cut his leg on a fence or railing immediately after
the Plaintiff began to flee from the Defendant Officers.
[Dkt. No. 78-5 at 91]. The parties dispute whether the
Defendant was injured while holding onto the Plaintiff or
whether he tripped after the Plaintiff escaped his grasp.
[Dkt. No. 96-1 ¶ 59]. A photograph of Officer Mulkern at
the Norwalk hospital appears to show this injury, and also
depicts body armor with “POLICE” written on it,
on the floor beside his bed. [Dkt. No. 80-9]. No evidence
indicates whether this vest belonged to Officer Mulkern, or
whether he or any other officer wore it during the pursuit.
In the photograph, Officer Mulkern is wearing a black t-shirt
with an Under Armour logo on the chest. Id. No
yellow police lettering or yellow badge is visible on the
front of the t-shirt. Id.
then ran from the individuals, describing his route as
running up the driveway, left onto School Street, down School
Street towards Main Street, “across Main Street through
a parking lot, up a driveway, and . . . over a fence down to
the ground below going towards Main Street.”
Id. at 35, 93. He denied that anyone shouted at him
to stop or identified themselves as police officers during
the pursuit. [Dkt. No. 78-4 at 94-95]. Police reports
indicate that a woman named Sonia Suarez later located on the
ground near her home a bag containing 28 smaller bags of a
green leafy substance later determined to be marijuana, but
these reports do not state that Ms. Suarez saw the Plaintiff
in possession of or discarding the bag. [Dkt. Nos. 81-1,
81-8]. The Plaintiff denies ever having possessed this
marijuana, or disposing of it during the pursuit. [Dkt. No.
96-2, Greene Dep., at 64-65].
four Defendant Officers chased the Plaintiff. [Dkt. No. 96-2,
Rodriguez Dep. at 63]. Officer Rodriguez removed his Taser
from his duty belt, and Officer Mulkern drew his gun during
the pursuit. [Dkt. No. 96-2, Rodriguez Dep., at 64-65; Dkt.
No. 96-2, Mulkern Dep., at 97, 104]. Plaintiff landed on his
feet in mulch after climbing over the fence. [Dkt. No. 78-4
at 37, 104; Dkt. No. 96-2, Rodriguez Dep., at 63]. A taco
truck was located approximately fifteen feet away from the
fence. [Dkt. No. 96-2, A. Martinez Dep., at 20]. An
eyewitness waiting in line at the truck, Oviedo Lagos,
confirmed that he saw the Plaintiff land on his feet,
apparently uninjured. [Dkt. 96-2, Lagos Dep., at 15].
Plaintiff climbed over the fence, his left leg started to
“go numb . . . kind of a spasm feeling.” [Dkt.
No. 80-8 at 38]. Mr. Lagos testified that the Plaintiff was
tased, and that he saw the Plaintiff's body lock up.
[Dkt. No. 96-2, Lagos Dep., at 15-16]. The parties agree that
Officer Rodriguez discharged his Taser and that one of the
Taser darts hit the Plaintiff, but they do not agree on where
Officer Rodriguez was standing when this happened. [Dkt. No.
96-1 ¶¶ 101, 102].
he was tased, Plaintiff looked toward the fence and saw a
white man dressed in all black standing on the other side of
the fence, pointing a weapon at him. [Dkt. No. 80-8 at
38-39]. Officer Mulkern confirmed in his deposition that he
pointed his gun at the Plaintiff after the Plaintiff went
over the fence. [Dkt. No. 96-2, Mulkern Dep., at 97, 104].
Plaintiff states that after he saw the weapon, he got down on
his knees and laid on his stomach. [Dkt. No. 80-8 at 38].
Plaintiff did not remember seeing any other individuals
dressed in black after his leg went numb. [Dkt. No. 80-8 at
40]. Mr. Lagos testified that it looked like the Plaintiff
“collapsed, ” face forward with his arms in front
of him, onto the grass. [Dkt. No. 96-2, Lagos Dep., at 16].
By contrast, Defendants maintain that the Plaintiff only
landed on the ground after Officer Luciano tackled the
Plaintiff, colliding with him as he continued to run. [Dkt.
No. 78-7 at 72; Dkt. No. 78-8 at 59]. Officer Luciano
believed that the Plaintiff had already been tased when he
tackled the Plaintiff. [Dkt. No. 96-2, Luciano Dep., at
68-69]. Plaintiff testified that he did not remember anything
from between the time he got down on his stomach until he
woke up in the hospital. [Dkt. No. 80-8 at 40].
second eyewitness, Alex Martinez, said that he saw the
Plaintiff laying down on grass near the fence, and that he
saw one officer approach the Plaintiff from behind and a
second from the side. [Dkt. No. 96-2, A. Martinez Dep. at 20,
23]. Mr. Lagos testified that two more officers approached
the Plaintiff shortly afterward. [Dkt. No. 96-2, Lagos Dep.,
at 11]. Mr. Lagos further testified that while the Plaintiff
was laying immobile on his stomach, an officer walked over to
him, turned him onto his back, put both knees on the
Plaintiff's shoulders, and started “punching his
face in” using both his fists and elbows. [Dkt. No.
96-2, Lagos Dep., at 17-18, 49; see also Dkt. No.
96-2, A. Martinez Dep., at 31]. Officer Luciano admitted to
striking the Plaintiff with a closed fist, but described the
hits as resulting from a “struggle” with the
Plaintiff. [Dkt. No. 96-2, Luciano Dep., at 62]. Mr. Lagos
also saw that the Plaintiff was bleeding from his face. [Dkt.
No. 96-2, Lagos Dep., at 17-18]. Bystanders yelled at the
officers to stop hitting the Plaintiff. Id. at 17.
In response, Officer Mulkern may have pulled up his pants leg
to show them the cut on his leg, stating, “You think
this guy's good?” and “Look what he did to
me.” [Dkt. No. 96-2, Lagos Dep., at 17-18].
Plaintiff's mother took a photograph of the scene of the
arrest the day after it took place. [Dkt. No. 96-2, S. Greene
Aff., ¶ 5]. The photograph depicts a copious amount of
blood staining the curb next to a grassy area. Id.
Officer Luciano hit the Plaintiff, he turned the Plaintiff
back onto his stomach and Officers Luciano and Taborda
handcuffed him. [Dkt. No. 78-2 at 82; Dkt. No. 96-2, A.
Martinez Dep., at 31]. The exact location of Officer
Rodriguez while Officer Luciano was hitting the Plaintiff is
unclear from the record. The Plaintiff and Officer Luciano
were visible to all of the remaining Defendants during the
time the Plaintiff was on the ground. [Dkt. No. 96-2, Mulkern
Dep., at 104; Dkt. No. 96-2, Rodriguez Dep., at 73; Dkt. No.
96-2, Luciano Dep., at 61; Dkt. No. 96-2, Taborda Dep., at
84]. The parties dispute whether or how much the Plaintiff
resisted once he was handcuffed. Defendants claim, and
Plaintiff denies, that when Officer Luciano tried to place
Greene into custody, Plaintiff was combative and struggled
with him. [Dkt. No. 81-11 at 120-21; Dkt. No. 81-10 at 73;
Dkt. No. 81-9 at 84; Dkt. No. 97-1 at 16]. Officer Luciano
never saw a weapon and never found a weapon in
Plaintiff's possession or in the vicinity. [Dkt. No.
96-2, Luciano Dep., at 51-53].
Norwalk Hospital ambulance responded to the scene using
lights and sirens, arriving at approximately 8:53 pm. [Dkt.
No. 80-6]. Greene was prone on the ground with his hands
cuffed behind his back upon the ambulance's arrival.
Id. An ambulance report documents that Greene was in
an “agitated state.” Greene was handcuffed to his
stretcher in the ambulance, which Defendants attribute to
Greene's “combative” behavior. [Id.;
Dkt. No. 79-2 at 8]. While the ambulance report described
Greene as “agitated, combative, kicking and spitting,
” physician notes used “combative” as part
of a description of Plaintiff's diminished brain function
following a traumatic brain injury. [Dkt. No. 78-16; Dkt. No.
96-2, Marc L. Rosen Consultation Report, at 26-27]. Mr. Lagos
testified that it that when Greene was being placed in the
ambulance, he was “screaming that he was in pain and
his face and arm really hurt.” [Dkt. No. 96-2, Lagos
Dep., at 21]. Ambulance personnel were interviewed as part of
the Internal Affairs investigation into the matter. [Dkt. No.
81-2]. One of the EMTs, Beatrice Grant, described Greene as
“agitated” during the drive to the Hospital.
hospital, a doctor signed an order authorizing the
Plaintiff's physical restraint. [Dkt. No. 80-4]. Hospital
records reflect that Greene remained agitated once in the
Emergency Room. [Dkt. No. 80-5]. An admission note stated
that the Plaintiff exhibited
“inappropriate/incomprehensible speech” and
“moments of aggressive fighting of all 4 ext.
restraints [followed] by episodes of unresponsiveness.”
Id. Hospital notes further state that the Plaintiff
suffered traumatic brain injury, orbital, maxillary, and
mandibular fractures, as well as nasal and septal fractures.
Id. Photographs of the Plaintiff's face on July
20, 2012 show one of the Plaintiff's eyes swollen shut,
stitches up the side of his nose, along with dried blood.
[Dkt. No. 96-2, Exh. 17]. Plaintiff also underwent drug
testing upon admission to the hospital, which showed that