United States District Court, D. Connecticut
BENCH TRIAL RULING
C. Hall United States District Judge
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.
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.
case was tried to the court on December 17, 2018.
FINDINGS OF FACT 
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.
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.
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
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. 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.
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
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
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.
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
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.
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.
CONCLUSIONS OF LAW
Fourth Amendment Excessive Force
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
McGugan v. Aldana-Bernier, 752 F.3d 224, 229 (2d
Cir. 2014) (citation omitted) (alterations in original).
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
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.
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.
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
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).
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.
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. 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
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.