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Hull v. Town of Newtown

Supreme Court of Connecticut

December 26, 2017


          Argued September 12, 2017

          David N. Rosen, for the appellants (plaintiffs).

          Aaron S. Bayer, with whom was Tadhg Dooley, for the appellee (defendant).

          Kathleen M. Flaherty and Kirk W. Lowry filed a brief for the Connecticut Legal Rights Project et al. as amici curiae.

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Robinson, Vertefeuille and Espinosa, Js. [*]


          ESPINOSA, J.

         This appeal requires us to determine whether certain policy and procedures of the Newtown Police Department (department) imposed a ministerial duty on its officers to search Stanley Lupienski, an individual suffering from auditory hallucinations and shortness of breath, when they took him into custody pursuant to General Statutes § 17a-503 (a).[1] The plaintiffs, Andrew Hull and Erica Hull, [2] appeal[3] from the judgment of the trial court granting summary judgment in favor of the defendant, the town of Newtown. The plaintiffs contend that the arrest section of the department's policy (arrest policy) imposes a ministerial, non-discretionary duty on the police to search anyone taken into custody, including those taken into custody pursuant to § 17a-503 (a). See Newtown Board of Police Commissioners, Newtown Police Policy and Procedure 3.00 (revised February 1, 2005) (Police Policy). Alternatively, the plaintiffs argue that Lupienski was a prisoner and, therefore, subject to mandatory search under the department's prisoner transportation section of the policy (transportation policy). See id., 3.07 (revised May 5, 2009). The defendant counters that the arrest policy applies only in the context of criminal arrest and does not apply in the context of civil mental health custody, which is governed by § 17a-503 (a). The defendant also argues that the transportation policy does not apply to those under custody pursuant to § 17a-503 (a). We agree with the defendant and, therefore, affirm the judgment of the trial court.

         The following undisputed facts are relevant to this appeal. The plaintiffs' claims arise from an incident at Danbury Hospital on March 2, 2010. While a patient at the hospital, Lupienski shot Andrew Hull, an assistant nurse manager. Lupienski had been transported to the hospital approximately thirty-eight hours earlier, after he went to the department complaining of auditory hallucinations and shortness of breath. Without searching Lupienski, Officer Steven Borges took him into involuntary custody and arranged for him to be transported to the hospital by Newtown Emergency Management Services, as provided by § 17a-503 (a).

         The plaintiffs subsequently brought this action, seeking damages for, inter alia, the injuries sustained by Andrew Hull, and alleging that the police had a ministerial, nondiscretionary duty to search Lupienski pursuant to the arrest policy. The defendant moved for summary judgment, arguing that (1) it was immune from liability because any duty to search was discretionary rather than ministerial, (2) any requirement to search would have been a public duty resulting in a public injury rather than an individual injury, (3) there was no custody pursuant to the arrest policy and therefore no duty to search Lupienski, and (4) the plaintiffs had submitted no proof that a search would have revealed a weapon. The trial court denied the motion. The plaintiffs subsequently filed a motion seeking a legal ruling from the trial court as to whether ‘‘custody'' under § 17a-503 (a) equates to ‘‘arrest'' under the arrest policy. In its memorandum of decision, the court concluded that ‘‘as a matter of law . . . taking a person into custody pursuant to § 17a-503 (a) is not an ‘arrest' and that Lupienski was not ‘arrested' under the [Police Policy].'' As a result of the trial court's decision, the defendant filed a second motion for summary judgment, contending that the police had no duty to search Lupienski because he was not arrested under the arrest policy or under § 17a-503 (a). Several weeks later, the plaintiffs moved to amend the complaint to include their alternative theory that alleged that the police had a duty to search Lupienski pursuant to the transportation policy. The trial court denied the plaintiffs' motion to amend and granted the defendant's motion for summary judgment. The court also denied the plaintiffs' subsequent motion for reconsideration, which argued that the trial court improperly declined to consider the transportation policy as an alternative legal basis for the duty to search. This appeal followed.

         The plaintiffs' primary argument implicates governmental immunity. Their theory of liability is that the police had a ministerial or mandatory, nondiscretionary duty to search Lupienski. The plaintiffs rest this conclusion on two premises. First, the plaintiffs contend that the arrest policy requires officers to search arrestees, and that individuals, like Lupienski, who are taken into custody pursuant to § 17a-503 (a), have been ‘‘arrested'' for the purposes of the arrest policy. Second, the plaintiffs offer as an alternative argument that the transportation policy imposed a ministerial, nondiscretionary duty to search Lupienski. The defendant counters that neither § 17a-503 (a) nor the arrest or transportation policies imposed such a duty and that, as a result, the defendant is shielded from liability due to governmental immunity.

         We begin by setting forth the applicable standard of review. ‘‘Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.'' (Internal quotation marks omitted.) Marchesi v. Board of Selectmen, 309 Conn. 608, 620, 72 A.3d 394 (2013).

         With respect to governmental immunity, under General Statutes § 52-557n, a municipality may be liable for the ‘‘negligent act or omission of a municipal officer acting within the scope of his or her employment or official duties.'' (Internal quotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 161, 95 A.3d 480 (2014). The determining factor is whether the act or omission was ministerial or discretionary. See id., 161-62 (contrasting extent of municipal liability for ministerial versus discretionary acts). ‘‘[Section] 52-557n (a) (2) (B) . . . explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.'' (Internal quotation marks omitted.) Id., 161. In contrast, ‘‘municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.'' (Internal quotation marks omitted.) Id., 162.

         Discretionary acts are treated differently from ministerial acts ‘‘in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society. . . . [D]iscretionary act immunity reflects a value judgment that-despite injury to a mem-ber of the public-the broader interest in having government officials and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury.'' (Citation omitted; footnote omitted; internal quotation marks omitted.) Id., 161.

         These concerns are particularly appropriate in the present case, in light of the ‘‘broad scope of governmental immunity that is traditionally afforded to the actions of municipal police departments.'' Id., 164. ‘‘[I]t is firmly established that the operation of a police department is a governmental function, and that acts or omissions in connection therewith ordinarily do not give rise to liability on the part of the municipality. . . . [Accordingly] [t]he failure to provide, or the inadequacy of, police protection usually does not give rise to a cause of action in tort against a city.'' (Internal quotation marks omitted.) Id. For example, in Coley, we held that governmental immunity shielded the city of Hartford in a wrongful death action stemming from alleged police negligence where two officers failed to stay on the scene of a domestic violence call that later turned fatal. Id., 152, 155-56. The plaintiff in Coley claimed that the General Statutes and a Hartford police departmental policy that set forth procedures for police response to domestic violence imposed a nondiscretionary duty to ‘‘remain at the scene for a reasonable amount of time until the likelihood of imminent violence had been eliminated . . . .'' Id., 152. This court held that ‘‘the police officers' allegedly negligent acts . . . required the exercise of discretion, and, accordingly, the [city of Hartford] [was] immune from liability for its discretionary acts.'' Id., 172.

         In the present case, the police would have been required to search Lupienski only if the arrest policy in conjunction with § 17a-503 (a), or the transportation policy, imposed a ministerial duty to do so. We address each possibility in turn.


         The plaintiffs' first argument in support of their claim that the police had a ministerial duty operates in three parts: (1) the arrest policy expressly requires officers to search arrestees; (2) the arrest policy defines arrest as taking a person into custody; and (3) custody under the arrest policy encompasses custody as it is used in § 17a-503 (a). As a result, we must examine the meaning of custody in each context, interpreting the arrest policy first and then § 17a-503 (a). Although we agree that the policy requires that arrestees be searched, we conclude that the arrest policy applies solely to the criminal context and therefore does not apply when the police take a person into custody pursuant to § 17a-503 (a).

         The department's arrest policy mandates that ‘‘[o]fficers shall conduct a thorough search of the person arrested''; Police Policy, supra, 3.00, pt. IV H, p. 4; and defines arrest as ‘‘[t]aking a person into custody.'' Id., pt. III, p. 1. Assuming, without deciding, that the arrest policy imposes a ministerial duty to search those arrested, the question is what the policy means by ‘‘custody.'' Looking to the text of the arrest policy, custody applies in the criminal context alone. Despite the lack of a definition of custody[4] in the arrest policy, our conclusion finds support in that policy's provisions.

         First, under the arrest policy, arrest requires either an arrest warrant or probable cause. Id., pt. IV, p. 4. The arrest policy defines probable cause for an arrest as ‘‘[t]he existence of facts and circumstances that would lead a reasonably prudent officer to believe that a person had committed a criminal offense.'' (Emphasis added.) Id., pt. III, p. 1. This requirement of probable cause of a criminal offense corresponds closely with the state and federal understanding of probable cause. See, e.g., State v. Johnson, 286 Conn. 427, 435-36, 944 A.2d 297 (‘‘In order for a warrantless felony arrest to be valid, it must be supported by probable cause. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.'' [Citations omitted; internal quotation marks omitted.]), cert. denied, 555 U.S. 883, 129 S.Ct. 236, 172 L.Ed.2d 144 (2008); see also Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004) (‘‘a warrantless arrest by a law officer is reasonable under the [f]ourth [a]mendment where there is probable cause to believe that a criminal offense has been or is being committed''). Thus, in the absence of an arrest warrant, the arrest policy allows arrests only where there is probable cause to believe that the arrestee committed a criminal offense. The reverse is also informative; under the arrest policy, any arrest not grounded in probable cause requires an arrest warrant. That option requires an officer to obtain an arrest warrant from a ‘‘judge, magistrate, or other legal authority empowered to issue such warrants . . . .'' Police Policy, supra, 3.00, pt. IV C, p. 2. Thus, under the arrest policy, there is no arrest unless there is such a warrant, or there is probable cause for a criminal offense.

         Second, the arrest policy imposes procedural requirements that further clarify that the policy applies solely to the criminal context. For example, ‘‘arresting officers shall identify themselves, inform the suspect of his or her arrest, and specify the charges for which the arrest is being made.'' (Emphasis added.) Id., pt. IV D, p. 3. This requirement would be irrational and impossible beyond the criminal context. The same is true of the arrest policy mandate that ‘‘[a]ll arrested persons shall be handcuffed after being taken into custody, except as otherwise provided by departmental policy . . . .'' Id., pt. IV F, p. 3. Relatedly, the arrest policy also directs that ‘‘[a]rrestees shall be advised of their Miranda[5]rights before any questioning, '' inherently indicating criminal arrest. (Footnote added.) Id., pt. IV I, p. 4. These procedures underpin a scheme that would be absurd and troubling outside of the criminal context.[6]

         Having established that custody under the arrest policy applies in the criminal context, it is useful to summarize what the resulting meaning of custody is, as doing so further illustrates the criminal purview of the arrest policy. Custody in this court's criminal law jurisprudence is closely linked to the parameters of custodial interrogation set forth by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny. See, e.g., State v. Arias, 322 Conn. 170, 177, 140 A.3d 200 (2016) (listing factors for determining existence of custody for purposes of Miranda). As a result, the constitutional concerns underpinning custody are related to the danger of coercion in police interrogation, and they are generally discussed in conjunction with Miranda. See State v. Mangual, 311 Conn. 182, 193, 85 A.3d 627 (2014) (‘‘[as] used in . . . Miranda [and its progeny], custody is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion'' [internal quotation marks omitted]).

         Determining whether custody exists under Miranda is circumstance dependent, but ‘‘the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. . . . Further, the United States Supreme Court has adopted an objective, reasonable person test for determining whether a defendant is in custody. . . . Thus, in determining whether Miranda rights are required, the only relevant inquiry is whether a reasonable person in the defendant's position would believe that he or she was in police custody of the degree associated with a formal arrest.'' (Internal quotation marks omitted.) State v. Jackson, 304 Conn. 383, 416, 40 A.3d 290 (2012). Nonexclusive factors to consider in determining ‘‘whether a suspect was in custody for purposes of Miranda [include]: (1) the nature, extent and duration of the questioning; (2) whether the suspect was handcuffed or otherwise physically restrained; (3) whether officers explained that the suspect was free to leave or not under arrest; (4) who initiated the encounter; (5) the location of the interview; (6) the length of the detention; (7) the number of officers in the immediate vicinity of the questioning; (8) whether the officers were armed; (9) whether the officers displayed their weapons or used force of any other kind before or during questioning; and (10) the degree to which the suspect was isolated from friends, family and the public.'' (Internal quotation marks omitted.) State v. Arias, supra, 322 Conn. 177.

         Therefore, custody, as it is used in the criminal context and under the arrest policy, is a close relative of formal arrest. Indeed, many of the factors that suggest custody-such as handcuffing-would also suggest a formal arrest. See State v.Mangual, supra, 311 Conn. 208 (‘‘[h]andcuffs are generally recognized as a hallmark of a formal arrest'' [internal quotation marks omitted]). Relatedly, custody often presents itself in the ...

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