United States District Court, D. Connecticut
B. FITZSIMMONS UNITED STATES MAGISTRATE JUDGE
Brian Irizarry brings this civil rights action against
officers of the Connecticut State Police pursuant to 42
U.S.C. §1983, claiming excessive force and deliberate
indifference to serious medical needs in violation of his
Fourth Amendment rights under the United States Constitution.
Defendants are Troopers Michael Dowling, Andrew Rondeau and
Ethan Tanksley and Sergeant Heath Ericson. Defendants are
sued in their individual capacity. A bench trial was held on
July 10 and 11, 2018.
and evidence adduced at the trial are summarized below as
necessary to explain the Court's findings and
FINDINGS OF FACT
on the credible testimony, the exhibits, and the entire
record developed during the trial, the Court finds the
following facts established.
all times relevant to this lawsuit, the defendants were
acting in their official capacity as Connecticut State
Troopers and therefore under color of state law.
Plaintiff Brian Irizarry is currently serving a state
sentence for various crimes including assault on a police
officer, creating a public disturbance and reckless
endangerment, all arising on May 12, 2013 out of the
incidents alleged in this lawsuit. [7/10/18 Tr. 8-9].
May 2013, plaintiff Brian Irizarry was released on bond with
a promise to appear on various state larceny and robbery
charges. [7/10/18 Tr. 13]. On May 12, 2013, there were
several outstanding warrants for failure to appear, with a
total bond amount of $450, 000. [Def. Ex. 501, 7/10/18 Tr. at
Michael Malley is a Bail Enforcement Agent. Prior to May 12,
2013, he posted bond for Irizarry after an arrest. [7/10/18
Tr. 75]. Sometime thereafter, Malley learned that plaintiff
did not attend his sentencing and the bond was forfeited by
the court for Irizarry's failure to appear. Id.
Malley testified that he had six months to locate Irizarry or
he would be responsible for paying the full amount on the
bond. [7/10/18 Tr. 75-76].
Malley explained that he reviewed Irizarry's bond
application and reached out to his family and listed
contacts, did field investigations and used other
investigative measures in an effort to apprehend plaintiff.
[7/10/18 Tr. 76]. Malley was aware that Irizarry was wanted
on approximately six warrants. Id.
Malley learned from these inquiries that Irizarry was
on the run and that he apparently made statements that he was
not going to be caught, and they were kind of worried, his
friends, the people who reached out to us, were worried for
his safety being apprehended. They said he had a very, very
fast car and he would try to flee. That was the impression
that they gave us is that he does not want to be taken into
[7/10/18 Tr. 77].
Malley was informed that plaintiff was carrying pepper spray.
Malley received information that Irizarry was going to be in
Brooklyn, Connecticut, and was spending time at the
Dunkin' Donuts. [7/10/18 Tr. 78-79]. He drove with Mark
Vanaman, another Bail Enforcement Agent, to the Dunkin'
Donuts where they eventually identified plaintiff inside the
building and saw his car in the parking lot. [7/10/18 Tr.
79]. Malley contacted the State Police to report that
Irizarry was located. Id.
6:57 PM on May 12, 2013, Connecticut State Trooper Michael
Dowling was dispatched by Troop D to assist Malley and
Vanaman with taking plaintiff into custody. [Def. Ex. 501,
7/10/18 Tr. 120].
Trooper Dowling met Malley and Vanaman in a parking lot
located near the Brooklyn Dunkin' Donuts. The Agents
presented identification and badges and showed Trooper
Dowling a photograph of Brian Irizarry. [7/10/18 Tr. at 121].
It was arranged that Agent Vanaman would walk to the
Dunkin' Donuts and enter through the front entrance.
Malley and Dowling drove their cars to the Dunkin'
Donuts. Malley planned to enter through the west side
entrance and Trooper Dowling would enter on the north side
through the front door. [7/10/18 Tr. 82, 103, 122]. There
were vehicles at both exits. Malley and Vanaman testified
that they believed it would be safer to apprehend Irizarry in
a confined setting, such as the Dunkin' Donuts, rather
than when plaintiff was in his car. They assessed that a
potential car chase should be avoided. [7/10/18 Tr. 91, 113,
Malley testified that as he pulled the car up to the west
entrance, he observed Vanaman struggling with Irizarry inside
and “people running all over the place. As soon as I
entered, I was hit by a cloud of pepper spray.”
[7/10/18 Tr. 83]. Malley stated that his eyes were tearing,
he had difficulty breathing and he started to cough. [7/10/18
Trooper Dowling testified that as he pulled up to the front
of the building, he observed “two females, who were
seated near that window, jump up and run from the right to
the left to the east side of the restaurant.” [Tr.
7/10/18 Tr. 123]. As he entered through the front door,
Trooper Dowling observed a reddish-orange substance on
Vanaman that he recognized from his training and experience
to be pepper spray, also known as OC (“oleoresin
capsicum”) spray. He testified that Vanaman was
fighting with Irizarry, who had shed his shirt. [7/10/18 Tr.
he entered the restaurant, Trooper Dowling immediately felt
the effects of pepper spray-including burning in his lungs
and skin and changes to his breathing and vision. [7/10/18
Irizarry ran across the restaurant toward the register.
Trooper Dowling testified that plaintiff ignored repeated
verbal commands to stop and submit to arrest. [7/10/18 Tr.
126-27]. “My understanding is that he was just trying
to do anything he could do get away.” [7/10/18 Tr.
Closed circuit video footage recorded inside the Dunkin'
Donuts from four locations captured the following:
• Agent Vanaman entered Dunkin' Donuts through the
front door and walked past plaintiff, who was seated at a
corner table. Out of plaintiff's sight, Agent Vanaman
removed his glasses and pulled out his badge that was hanging
from a chain round his neck to display it on his chest.
• When Vanaman approached plaintiff at his table,
plaintiff initiated a physical struggle. The video shows
Agent Vanaman holding plaintiff by his shirt and plaintiff
escaping his grasp by discharging pepper spray and slipping
from his jacket and shirt and running toward the service
counter. Customers and employees are seen running away from
plaintiff and covering their mouths and eyes. Agent Vanaman
doubled over covering his eyes. Plaintiff collided with
customers as he reached the counter on the other/east side of
the Dunkin' Donuts.
• As plaintiff and Agent Vanaman engaged in a physical
struggle, Agent Malley entered Dunkin' Donuts through the
west entrance. Shortly thereafter, Trooper Dowling entered
through the front entrance.
• Trooper Dowling attempted to stop plaintiff at the
counter by holding his pants but was unable to keep his grip.
Irizarry jumped over the counter, then ran a short distance
to the drive-through window. Irizarry dove head-first through
the drive-through window and ran to the right.
• Trooper Dowling exited the Dunkin Donuts through the
front door. He was next seen running by the drive-through
window after Irizarry.
[Def. Ex. 503].
Vanaman testified that when he approached Irizarry he had his
badge displayed and stated “bail enforcement, you have
a warrant, put your hands up.” [7/10/18 Tr. 105-07]. As
Irizarry reached into his pocket, Vanaman approached him and
began to physically struggle with him to prevent plaintiff
from reaching whatever was in his pocket. Id.
Irizarry sprayed pepper spray directly into Vanaman's
eyes, blinding him. [7/10/18 Tr. 107]. Irizarry pulled away
and slipped out of his shirt and jacket and ran. Id.
trial, plaintiff did not dispute that he was aware there were
outstanding warrants issued for his arrest; he admitted that
he failed to comply with verbal commands from Agents Vanaman
and Malley or Trooper Dowling to submit to their custody; he
purposely carried pepper spray to evade arrest; he discharged
pepper spray at Agent Vanaman; he saw Trooper Dowling enter
the Dunkin' Donuts through the front door and ran in the
opposite direction so he would not be arrested; he physically
struggled with Vanaman, Malley and Trooper Dowling; he ran
into customers who blocked his path to jump over the counter;
and he escaped from Dunkin' Donuts by diving out of the
drive-through window in an effort to evade being taken into
custody. [7/10/18 Tr. 45-57].
Vanaman, Malley and Trooper Dowling testified that they
issued numerous commands to plaintiff to submit to arrest
that he ignored. [7/10/18 Tr. 84, 86, 110, 126].
Once outside the Dunkin' Donuts, Trooper Dowling
testified that he called for police backup, identifying
Irizarry as wearing black pants and no shirt. [7/10/18 Tr.
130; Def. Ex. 501]. Plaintiff was running “at a dead
sprint.” [7/10/18 Tr. at 131]. Dowling testified that
he was concerned for his safety.
I had already felt the effects of the pepper spray; I had
clearly identified myself as a state trooper; I told him he
was under arrest, and he was still fleeing from me. I had
used physical force. I grabbed onto him and he still pulled
away and resisted my commands to stop resisting.
[7/10/18 Tr. at 131].
Pursuit and Arrest
undisputed testimony is that Trooper Dowling chased Irizarry
from the Dunkin' Donuts down Allen Hill Road, through a
yard and into nearby woods. Trooper Dowling testified that he
continued to order Irizarry to stop and submit to arrest as
he gave chase. [7/10/18 Tr. 57-58; 77, 132].
Before entering the woods, Trooper Dowling warned Irizarry to
stop or he would use his Taser. Plaintiff did not comply. The
Taser was deployed but did not reach plaintiff. A second
effort resulted in a malfunction of the device. [7/10/18 Tr.
Trooper Dowling continued to order Irizarry to stop and
submit to arrest. Id. Dowling radioed to dispatch
that Irizarry was running into the woods at number 60 Allen
Hill Road. [7/10/18 Tr. 137-38; Def. Ex. 501].
Malley testified that he ran after Irizarry but could not
breathe from the effects from exposure to the pepper spray
and turned back to the Dunkin' Donuts to assist Vanaman.
At that point, he heard sirens, observed the arrival of state
police cruisers and saw troopers enter the woods. [7/10/18
Trooper Dowling testified that upon entering the woods,
Irizarry slowed to a fast walk. Dowling yelled “stop,
State Police.” [7/10/18 Tr. 138]. Irizarry continued to
run. Dowling caught up with plaintiff and tackled him to the
ground. [7/10/18 Tr. 139]. Plaintiff would not submit to
arrest. Plaintiff continued to resist, struggling, flailing
his arms and rolling on the ground. Trooper Dowling attempted
multiple compliance holds without success. [7/10/18 Tr.
140-41]. Irizarry initially appeared to become compliant;
however, when Dowling “attempted to handcuff him, he
continued to pull his arms away and continued to attempt to
escape.” [7/10/18 Tr. 141]. During a second attempt to
handcuff plaintiff, Dowling lost control of his handcuffs.
Irizarry “was flailing his arms, he rolled around on
his stomach, so I was basically in a full mount position on
him at that point.” Id. Trooper Dowling
testified that Irizarry was flailing his arms and attempting
to strike him in the head. [7/10/18 Tr. 143].
Trooper Dowling estimates that he struck plaintiff
approximately ten times to control him sufficiently to place
him in handcuffs. [7/10/18 Tr. 143, 145]. At some point,
Dowling was thrown from his position on top of Irizarry and
landed on his [Dowling's] back. [7/10/18 Tr. 144].
Trooper Dowling testified he was exhausted and aware he had
broken his right hand during the struggle and efforts to take
plaintiff into custody. [7/10/18 Tr. 145].
Troopers Rondeau and Tanksley and Sergeant Ericson testified
that they responded to Dowling's call for back up
support. [7/10/18 Tr. 174-75; 200-201; 234]. When Trooper
Rondeau arrived at Allen Hill Road, he could not see Dowling
and Irizarry in the woods but he could “hear an active
ongoing struggle, screaming, yelling, sticks breaking. It was
obvious there was a fight happening.” [7/10/18 Tr. 177]
He ran into the woods toward the sounds, with Trooper
Tanksley following Rondeau. [7/10/18 Tr. 177-78; 203].
Troopers Rondeau and Tanksley testified that they found
Trooper Dowling on his back with a hand raised in a defensive
position. Irizarry was kneeling on top of Trooper Dowling
with his hand raised with a clenched fist as if about to
strike Trooper Dowling. [7/10/18 Tr. 178-79; 204- 05].
Trooper Tanksley testified that Dowling “was in a
vulnerable position because he was on his ...