Margolies v. Millington

          BENCH TRIAL RULING

          Janet C. Hall United States District Judge

         I. INTRODUCTION

         This is an action brought by plaintiff Michael Margolies, Jr. (“Margolies”) pursuant to sections 1983 and 1988 of title 42 of the United States Code against defendants Darren Millington (“Officer Millington”), an officer in the Trumbull Police Department; Courtney Millington (“Mrs. Millington”), Darren Millington's wife and Margolies' ex-wife; and William Agresta (“Agresta”), Mrs. Millington's father. The allegations stem from an altercation between the parties in October 2015.

         Margolies claims that Officer Millington and Mrs. Millington subjected him to unreasonable force in violation of the Fourth Amendment. He claims that all the defendants are liable for state law assault and battery, intentional and negligent infliction of emotional distress, and defamation. Margolies' Amended Complaint also raised claims of malicious prosecution under federal and state law, but those claims were abandoned at trial, and the court does not address them in this Ruling.

         The case was tried to the court on December 17, 2018.

         II. FINDINGS OF FACT ^[1]

         Officer Millington is a Trumbull Police Officer. He is married to Mrs. Millington. Agresta is Mrs. Millington's father. Margolies and Mrs. Millington, previously married, were divorced in 2014. They are the parents of three minor children, G., W., and J., who were aged 10, eight, and six, respectively, at the time of the events at issue. At that time, Officer Millington and Mrs. Millington were engaged.

         On the afternoon of Friday, October 30, 2015, Mrs. Millington and Margolies were present in Connecticut state court in connection with a temporary suspension of Margolies' custodial rights. The Judge in that matter ordered that Margolies' parenting time resume immediately (that evening) and denied Mrs. Millington's request for a delay. Margolies and Mrs. Millington communicated following the state court hearing, at which time Mrs. Millington indicated that the children did not wish to spend the weekend with Margolies. Margolies insisted he wished to see the children and take advantage of his parenting time. Mrs. Millington and Margolies then agreed that Margolies would pick up the children at 9:00 p.m., at the conclusion of the Daniels Farm Elementary School Halloween party.

         Margolies arrived at the school between 8:30 and 9:00 p.m. Mrs. Millington, Officer Millington, who was off-duty, and Agresta, were already present with the children. The children were acting skittish and did not approach Margolies. As the event ended, the parties and the children made their way towards the exit. Mrs. Millington informed Margolies that the children maintained that they did not wish to leave with him. Margolies, who still wished to take advantage of his court-ordered parenting time, said that the children did not get to choose whether to leave with him, and asked Mrs. Millington if she would discuss the dispute outside. Mrs. Millington said no. Margolies told Mrs. Millington she was perpetuating and exacerbating a bad situation. Officer Millington told Margolies he was the one perpetuating and exacerbating the situation. Mrs. Millington told Margolies that the children were not leaving with him that evening, and that he could file a contempt motion in state court if he so wished.

         At that point, Margolies picked up his youngest child, J., turned, and stepped toward the school exit. J. began to cry and called out for Mrs. Millington. Margolies took one to two steps towards the door before he felt someone hit him from behind. Mrs. Millington had reached out over Margolies' shoulder, apparently to grab J. from Margolies, who had turned to walk out of the school. Margolies, unable to see who was reaching over his shoulder, turned to shield his son, which resulted in Mrs. Millington falling over Margolies' hip and onto the floor.^[2] Margolies was unsure who was striking him, or for what purpose. When he saw that Mrs. Millington was on the floor beside him, Margolies felt disbelief that she had struck him.

         Still carrying J. in front of him, Margolies then felt someone else jump on his back. Surveillance video shows that Officer Millington, who had jumped onto Margolies' back, reached his arms around Margolies' shoulder and then one arm around his neck, initiating what eventually became a chokehold. See Plaintiff's Exhibit 1 (“Pl.'s Ex. 1”). While maintaining his hold, Officer Millington told Margolies, “Stop, you know who I am, I am a police officer, don't fight back.”^[3]

         Officer Millington pulled Margolies to a corner, holding him there in a chokehold until others intervened. Agresta approached Margolies and removed J. from Margolies' hands. Mrs. Millington placed herself between Officer Millington and Margolies, facing Officer Millington. She can be seen in the surveillance video pushing against Officer Millington and speaking to him. She wanted to diffuse the situation and told Officer Millington that engaging further “was not worth it.”

         Agresta, after placing J. on the floor, walked back towards Margolies, navigating around several people in order to reach him, and began to speak with him. In the surveillance video, Agresta can be seen, his forearm raised above his waist and parallel to the floor, leaning into Margolies with it. The gist of the conversation between Agresta and Margolies was Margolies denying that he struck Mrs. Millington or knocked her over, and Agresta claiming that Margolies had done so. Agresta also told Margolies that he was going to get him.

         Margolies then left the building and proceeded to his girlfriend's home. He did not return to the school that evening and did not seek medical attention. All three children remained at the school. Police were called to the school, and Officer Millington, Mrs. Millington, and Agresta gave statements to the police. In his sworn statement to police, Officer Millington wrote that Margolies “grabbed [Mrs. Millington] and threw her into the air[, ] slamming her down on the floor.” Defendants' Exhibit 5, Statement of Darren Millington (“Defs.' Ex. 5”), 1-2. Officer Millington added that, when leaving the school, Margolies had “pushed his way past” several people, id. at 2, which the court does not credit. Mrs. Millington told a police officer that Margolies “hooked his arm around her, ” and that she was “lifted into the air.” See Defendants' Exhibit 4, Affidavit of Officer Pysz at 2. Agresta told the same officer that Margolies picked Mrs. Millington up and “threw her to the ground in the doorway.” Id.

         The following week, on November 4, 2015, Margolies was stopped by five Trumbull police vehicles while driving to pick up his children for his next-scheduled parenting time. Five blocks from Mrs. Margolies' house, two police vehicles engaged their flashing lights from behind him, two from the front, and a fifth approached from the side. Margolies was arrested, without incident, and charged with breach of the peace, child endangerment, and assault in the third degree. The charges were ultimately dismissed, in exchange for Margolies' agreement to participate in an accelerated diversionary program. Margolies testified that he paid $2, 000 to secure bail, and paid attorneys' fees in excess of $5, 000 over the course of nine months.

         Since the Halloween incident, Margolies has changed the location for pick-up and drop-off of his children, experiences anxiety and stress when entering Trumbull because Officer Millington is a Trumbull police officer, and has had to deal with what he described as a “rupture” to his relationship with his children.

         III. CONCLUSIONS OF LAW

         A. Fourth Amendment Excessive Force

         Margolies brought an action under section 1983 of title 42 of the United States Code, in which he alleged that Officer Millington and Mrs. Millington subjected him to unreasonable force in violation of his constitutional rights. Am. Compl. ¶ 19. Section 1983 is a mechanism to seek damages for the deprivation of constitutional rights by state actors. See 42 U.S.C. § 1983. Liability under section 1983 will lie only when the conduct complained of was “committed by a person acting under color of state law” and “deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). “The 'under color' of law requirement has consistently been viewed in the same manner as the 'state action' requirement under the Fourteenth Amendment.” Ginsberg v. Healey Car & Truck Leasing, Inc., 189 F.3d 268, 271 (2d Cir. 1999) (citation omitted). A private party may be found liable under section 1983, if the conduct is fairly attributable to the state. The Second Circuit has held that a private party acts under color of law when:

(1) the State compelled the conduct [the 'compulsion test'], (2) there is a sufficiently close nexus between the State and the private conduct [the 'close nexus test' or 'joint action test'], or (3) the private conduct consisted of activity that has traditionally been the exclusive prerogative of the State [the 'public function test'].

McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (citation omitted) (alterations in original).

         To prove a Fourth Amendment excessive force claim, a plaintiff must prove, by a preponderance of the evidence, that the application of force was objectively unreasonable, in light of the totality of the circumstances. See Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir.), supplemented, 108 Fed.Appx. 10 (2d Cir. 2004). The Second Circuit has held that, in examining the totality of the circumstances, courts should look to (1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of others; and (3) whether he or she was actively resisting arrest. See Miller v. Moynihan, 453 F.Supp.2d 453, 457 (D. Conn. 2006) (quoting Sullivan v. Gagnier, 225 F.3d 161, 165 (2d Cir. 2000).

         1. Officer Millington

         An off-duty police officer may be found to act under color of law if the officer “invokes the real or apparent power of the police department or perform[s] duties prescribed generally for police officers.” Claudio v. Sawyer, 675 F.Supp.2d 403, 408 (S.D.N.Y. 2009) (citing Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994)) (internal quotations omitted, alterations in original). However, an officer does not act under color of law when the actions at issue are taken as part of “personal pursuits.” While there is no bright line dividing personal pursuits from acts taken under color of law, courts look to the totality of the circumstances and in particular at the nature of the officer's act. See id.

         In Rivera v. La Porte, 896 F.2d 691 (2d Cir. 1990), for example, an off-duty corrections officer (La Porte) assaulted a civilian (Rivera) following a private traffic dispute. La Porte then arrested Rivera, after identifying himself as a police officer. The Second Circuit upheld a jury verdict for Rivera on a section 1983 excessive force claim. On the question of whether La Porte acted under color of state law, the Second Circuit held that, “[t]hough the dispute that precipitated the arrest was private, the response, including the arrest and the use of excessive force, was unquestionably action under color of law.” Rivera, 896 F.2d 696.

         Officer Millington testified that he jumped on Margolies' back and engaged a hold over Margolies' shoulder, “touching” Margolies' neck. This court finds that the hold was a chokehold placed around Margolies' neck. After placing Margolies in the hold, Officer Millington told him, “Stop, stop, you know who I am, you know I am a police officer, don't fight back.” Based on Margolies' testimony, as supported by the video evidence, the court finds that Officer Millington placed his arm around Margolies' neck. Further, Officer Millington identified himself as a police officer and instructed Margolies to refrain from resisting. The court finds that Officer Millington, by identifying himself as a police officer for the State of Connecticut, and by instructing an individual to refrain from resisting physical force by virtue of his status as such an officer, was acting under color of law. See generally Conn. Gen. Stat. § 53a-23 (abrogating common law rule regarding right to resist an illegal arrest and stating that “[a] person is not justified in using physical force to resist an arrest by a reasonably identifiable peace officer . . . whether such arrest is legal or illegal”).

         The second inquiry is whether the force Officer Millington employed was objectively excessive, in light of the totality of the circumstances. While most Fourth Amendment excessive force claims arise out of arrests, and neither party argues that Officer Millington placed Margolies under arrest, the Supreme Court made clear in Graham v. Connor that “all claims that law enforcement officers have used excessive force-deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 395, (U.S. 1989) (emphasis in original).

         A Fourth Amendment seizure occurs when there is “a governmental termination of freedom of movement through means intentionally applied.” Zainc v. City of Waterbury, 603 F.Supp.2d 368, 383 (D. Conn. 2009) (citing Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989)). Officer Millington testified that his purpose in applying the hold on Margolies was to “stop the situation.” He stated to responding officers that his goal was to “secure [Margolies] until police arrived.” Clearly, Officer Millington's purpose was to restrain Margolies and prevent his freedom of movement, pending further police action. The court finds that Officer Millington's restraint of Margolies' movement rose to the level of a seizure under the Fourth Amendment.

         As to the question as to whether the force Officer Millington applied was objectively unreasonable, the court concludes that it was. While Margolies was carrying his six-year-old son, Officer Millington jumped on Margolies' back, applied a chokehold on him, and maintained that hold on him until separated from Margolies by bystanders, including Mrs. Millington.^[4] In his police statement, Officer Millington told the responding police officers that he saw Margolies grab Mrs. Millington and throw her into the air, slamming her down on the floor. See Pl.'s Ex. 5 at 2. While the video presented at trial shows that there was some form of physical contact between Margolies and Mrs. Millington, and that Mrs. Millington thereafter fell to the ground, there is absolutely no evidence to support Officer Millington's statement to his fellow police officers that Margolies grabbed Mrs. Millington, nor that Margolies slammed or threw Mrs. Millington to the ground. See Pl.'s Ex. 1. Officer Millington also testified that Margolies picked up J. and “flopped” the child around “aggressively.” The video shows Margolies picking J. up into the air, swinging him into a carry position.

         Finally, while J. cried out for his mother, the court does not conclude that it established an objectively reasonable basis for the extent of force applied by Officer Millington. That a six-year-old child is unhappy or does not wish to leave a location with a parent, does not, without more, establish an objectively reasonable basis to believe a crime is being committed or that the child's wellbeing is threatened. A Connecticut State Judge, earlier that day, had ordered that Margolies' parenting time be reinstated that evening. ...