United States District Court, D. Connecticut
R.UNDERHILL UNITED STATES DISTRICT JUDGE
case arises out of an arrest that occurred at the scene of an
accident in East Hartford, Connecticut. The plaintiff alleges
that she was improperly placed under arrest for taking
photographs of the accident scene and that she was subject to
the use of excessive force during the course of that arrest.
The defendants moved for summary judgment on all of
plaintiff's claims except the claims of excessive force,
assault, and battery.
Standard of Review
judgment is appropriate when the record demonstrates 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); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (plaintiff
must present affirmative evidence in order to defeat a
properly supported motion for summary judgment).
ruling on a summary judgment motion, the court must construe
the facts of record in the light most favorable to the
nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the moving party.
Anderson, 477 U.S. at 255; Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970); see also Aldrich v. Randolph Cent.
Sch. Dist., 963 F.2d. 520, 523 (2d Cir. 1992) (court is
required to “resolve all ambiguities and draw all
inferences in favor of the nonmoving party”). When a
motion for summary judgment is properly supported by
documentary and testimonial evidence, however, the nonmoving
party may not rest upon the mere allegations or denials of
the pleadings, but must present sufficient probative evidence
to establish a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
when reasonable minds could not differ as to the import of
the evidence is summary judgment proper.” Bryant v.
Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see
also Suburban Propane v. Proctor Gas, Inc., 953
F.2d 780, 788 (2d Cir. 1992). If the nonmoving party submits
evidence that is “merely colorable, ” or is not
“significantly probative, ” summary judgment may
be granted. Anderson, 477 U.S. at 249-50.
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be
no genuine issue of material fact. As to materiality, the
substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.
Id. at 247-48. To present a “genuine”
issue of material fact, there must be contradictory evidence
“such that a reasonable jury could return a verdict for
the non-moving party.” Id. at 248.
nonmoving party has failed to make a sufficient showing on an
essential element of his case with respect to which he has
the burden of proof at trial, then summary judgment is
appropriate. Celotex, 477 U.S. at 322. In such a
situation, “there can be ‘no genuine issue as to
any material fact, ' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 322-23; accord Goenaga v. March of Dimes
Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)
(movant's burden satisfied if he can point to an absence
of evidence to support an essential element of nonmoving
party's claim). In short, if there is no genuine issue of
material fact, summary judgment may enter. Celotex,
477 U.S. at 323.
21, 2013, the plaintiff, Clover Marsh, was driving along Main
Street in East Hartford, Connecticut (the
“Town”), when she observed a motor vehicle
accident. She immediately pulled her car over to the side of
the street and began to render assistance at the accident
scene. When emergency vehicles arrived, she and the other
bystanders relocated to a grassy area from which they could
observe the scene. There came a point in time when Marsh
decided to leave her position at the grassy area. Marsh
stated that she left both because she was going back to her
car to leave the area and because she wanted to get a couple
photos from an area in which she could better observe the
scene. Marsh positioned herself immediately behind two fire
trucks so that she could observe the accident scene by
looking between them. At that point, Sergeant Peter Vanek,
who had arrived at the scene and was performing his duties of
securing the scene and managing the other officers,
approached Marsh and instructed her to move from her position
adjacent to the fire trucks. Marsh refused Vanek's
commands that she leave the area. Instead, she persisted in
trying to take photos and/or videos and attempted to explain
why she was justified in staying in that location. Part of
her justification was that the relevant
“emergency” had ended because the accident victim
had already been removed from the car and placed into the
ambulance. Accordingly, in her eyes, the emergency situation
Vanek's interaction with Marsh, Vanek observed a
firefighter who had been distracted by Marsh's refusal to
comply with Vanek's orders. The firefighter, Robert
Bidwell, also testified that he had been distracted by
Marsh's conduct. At some point during the encounter with
Vanek, Marsh held up her phone and told Vanek that she was
recording him. Shortly after, Vanek placed Marsh under arrest
for interfering with the police, in violation of Conn. Gen.
Stat. § 53a-167a.
Vanek was placing Marsh into a police vehicle, Vanek handled
her in a way that caused her to strike her head on the
vehicle. Marsh stated that the impact caused everything to
“go black” and caused her ears to ring.
Eventually, she was taken to the hospital. Upon being
released, she suffered from dizziness and needed assistance
in order to be taken to her home. In the days following the
event, she continued to suffer headaches and, after going to
her own doctor, was diagnosed with a concussion.
31, 2016, Marsh filed this action in Connecticut Superior
Court, Judicial District of Hartford. The action was removed
on June 14, 2016, and an amended complaint was filed on
November 16, 2016. The amended complaint alleges eleven
causes of action. Count One alleges an excessive force claim
against Vanek. Counts Two through Four allege false arrest,
malicious prosecution, and retaliatory arrest claims against
Vanek. Count Five alleges a claim for respondeat
superior/municipal liability against the Town; the Chief of
Police, Scott Sansom; and the former Chief of Police, Mark
Sirois. Counts Six and Seven allege assault and battery
claims against Vanek. Counts Eight and Nine allege
recklessness and gross negligence claims against Vanek. Count
Ten alleges an intentional infliction of emotional distress
(“IIED”) claim against Vanek. And Count Eleven
alleges a claim for indemnification by the Town for any
damages caused by Vanek or other defendants. No motion to
dismiss was filed, and on April 10, 2017, the defendants
moved for summary judgment on all of her claims except the
claims of excessive force, assault, and battery.
majority of Marsh's claims rely on her claim that she was
arrested without probable cause. Accordingly, I will first
consider whether there was probable cause to arrest her.
After that, I will consider any remaining claims not resolved
by that determination.
probable cause standard is the same under both Connecticut
and federal law. Walczyk v. Rio, 496 F.3d 139, 156
(2d Cir. 2007). An officer has probable cause to arrest an
individual when the officer has “knowledge of, or
reasonably trustworthy information as to, facts and
circumstances that are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or
is being committed by the person to be arrested.”
Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir.
2007). In evaluating whether probable cause exists, the court
must look at the “totality of the circumstances,
” see Illinois v. Gates, 462 U.S. 213, 233
(1983). Moreover, the court must base its assessment on
objective facts and not an officer's subjective intent.
Zellner, 494 F.3d at 369.
53a-167a provides that “[a] person is guilty of
interfering with an officer when such person obstructs,
resists, hinders or endangers” a police officer
“in the performance of [the] officer's . . .
duties.” Conn. Gen. Stat. § 53a-167a(a). Section
53a-167a “necessarily was drafted expansively to
encompass a wide range of conduct that may be deemed to
impede or hinder a police officer in the discharge of his or
her official duties.” State v. Aloi, 280 Conn.
824, 837 (2007). “To ‘hinder' is defined as
‘to make slow or difficult the course or progress
of.'” Id. Accordingly, the statute may be
violated when an individual refuses to comply with a lawful
direct order, and it is “that refusal that hinders or
impedes” the performance of an officer's duties.
Acevedo v. Sklarz, 553 F.Supp.2d 164, 168 (D. Conn.
2008); see also Lawson v. Hilderbrand, 88 F.Supp.3d
84, 99 (D. Conn. 2015), rev'd and remanded on other
grounds, 642 F.App'x 34 (2d Cir.
avoid constitutional infirmity, the Connecticut Supreme Court
has construed section 53a-167a only to prohibit
“physical conduct and fighting words that by their very
utterance inflict injury or tend to incite an immediate
breach of the peace.” State v. Williams, 205
Conn. 456, 473 (1987). Mere verbal conduct, such as
“question[ing] a police officer's authority or
protest[ing] [the officer's] action, ” is not
prohibited under the statute. Id. at 472; see
also Acevedo, 553 F.Supp.2d at ...