Williams v . Cobb CV-03-472-PB 12/27/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kyle Williams

v. Civil N o . CV-03-472-PB Opinion N o .

E . Neill Cobb, et a l .

MEMORANDUM AND ORDER

Kyle Williams brings this action against the Town of Newbury

and one of its police officers, E . Neill Cobb. Williams charges

that Cobb violated his Fourth Amendment rights by detaining and

searching him without sufficient justification and by using

excessive force in effecting the search. He argues that the Town

is liable for Cobb’s misconduct because it failed to properly

train and supervise him. Defendants have responded with a motion

for summary judgment. They argue that Cobb is protected from

suit by the doctrine of qualified immunity and that the evidence

does not support Williams’ municipal liability claims. I reject

Cobb’s qualified immunity argument but agree that the Town is

entitled to summary judgment. I. BACKGROUND

Officer Cobb encountered Kyle Williams between 11:00 p.m.

and midnight on June 2 6 , 2001 while Cobb was patrolling

Blodgett’s Landing in Newbury, New Hampshire. Williams had his

right arm in a sling and he was carrying a beer bottle in his

left hand. Cobb stopped Williams and demanded that he produce

identification because he suspected that Williams was underage.

Williams provided a New Hampshire driver’s license that

confirmed that he was, in fact, of legal drinking age. Cobb then

asked Williams how much he had had to drink and Williams told him

that he had had one and one half 20-ounce beers. Cobb told

Williams that he thought Williams was lying and instructed him to

empty his pockets. Williams complied, but immediately returned

the contents to his pockets.

Cobb then attempted to frisk Williams. Williams initially

acquiesced but he pulled away as Cobb’s hand passed over his

groin area. Cobb responded by reaching for his gun and

unfastening his holster. After Williams agreed to cooperate,

Cobb moved behind Williams and instructed him to place his left

hand behind his back. He then forcibly removed Williams’ right

-2- arm from its sling and attempted to handcuff him. Fearing that

Cobb would further injure his right shoulder, Williams again

pulled away and told Cobb not to grab his right arm. Cobb

responded by placing Williams in a head lock and throwing him up

against a nearby car. Williams again told Cobb that he was

willing to cooperate but he pulled away yet again when Cobb made

a second attempt to grab his right arm. In response, Cobb

threatened Williams with pepper spray, threw him to the ground,

got on top of him, and placed his knee on Williams’ neck.

Williams was later charged with possession of a controlled

substance and resisting detention. Both charges were ultimately

dropped.

II. STANDARD OF REVIEW

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, 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.” Fed. R. Civ. P.

56(c). A trial is only necessary if there is a genuine factual

-3- issue “that properly can be resolved only by a finder of fact

because [it] may reasonably be resolved in favor of either

party.” Anderson v . Liberty Lobby, Inc.,

4 2 , 250

(1986). A material fact is one that affects the outcome of the

suit. See id. at 248.

In ruling on a motion for summary judgment, I must construe

the evidence in the light most favorable to the non-movant. See

Navarro v . Pfizer Corp.,

0 , 94 (1st Cir. 2001). The

party moving for summary judgment, however, “bears the initial

responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v . Catrett,

1 7 , 323

(1986). Once the moving party has properly supported its motion,

the burden shifts to the non-moving party to “produce evidence on

which a reasonable finder of fact, under the appropriate proof

burden, could base a verdict for i t ; if that party cannot produce

such evidence, the motion must be granted.” Ayala-Gerena v .

Bristol Myers-Squibb Co.,

6 , 94 (1st Cir. 1996)

(citation omitted). Neither conclusory allegations, improbable

-4- inferences, nor unsupported speculation are sufficient to defeat

summary judgment. See Carroll v . Xerox Corp.,

3 1 , 236-

37 (1st Cir. 2002).

III. DISCUSSION

A. Officer Cobb

Williams asserts two Fourth Amendment claims against Officer

Cobb. First, he argues that Cobb lacked sufficient justification

to detain and frisk him. Second, he argues that Cobb used

excessive force against him. Cobb counters that he is protected

from suit on these claims by the doctrine of qualified immunity.

1. Qualified Immunity

“The doctrine of qualified immunity protects ‘government

officials performing discretionary functions . . . from liability

for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Mutter v . Town of Salem,

0 2 , 405 (D.N.H. 1996) (quoting Harlow v .

Fitzgerald,

0 0 , 818 (1982)). A two-part inquiry is

used to determine whether an officer is entitled to qualified

immunity. First, I consider whether the facts alleged, taken in

-5- the light most favorable to the party asserting the injury,

demonstrate that the officer’s conduct violated a constitutional

right. Santana v . Calderon,

8 , 23 (1st Cir. 2003)

(quoting Saucier v . Katz,

9 4 , 201 (2001)). If a

constitutional violation occurred, I then determine whether “the

contours of this right are ‘clearly established’ under then-

existing law so that a reasonable officer would have known that

his conduct was unlawful.” Santana,

(quoting Dwan

v . City of Boston,

(1st Cir. 2003). If the law

would not have put a reasonable officer on notice that his or her

conduct was unlawful, summary judgment based upon qualified

immunity is appropriate. See Kelley v . Laforce,

, 6

(1st Cir. 2002); See also Malley v . Briggs,

(1986) (qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law”).

Officer Cobb does not contend that the applicable law was

unclear. Thus, I confine my analysis to his claims that he acted

lawfully.

2. Williams’ Unlawful Search and Seizure Claim

Williams argues that Officer Cobb violated his Fourth

Amendment rights by continuing to detain him after Cobb

-6- established that he was of lawful drinking age.1 He also charges

that Cobb violated his Fourth Amendment rights by frisking him

without sufficient reason to suspect that he was armed. Cobb

responds by claiming that he is entitled to qualified immunity

because his actions were authorized by Terry v . Ohio,

(1968).

Terry permits officers to briefly detain and frisk suspects

under certain limited circumstances. See

at 2 7 . A brief

detention must be supported by reasonable suspicion that the

suspect has engaged in criminal activity. U.S. v . Moore,

0 0 , 703 (1st Cir. 2000) (citing Terry, 235 U.S. at 3 0 ) . A

frisk must be supported by a reasonable suspicion that a suspect

is armed and dangerous. Terry at 3 0 . If suspicion of criminal

behavior is dispelled through the officer’s initial inquiries,

further detention is unlawful. Id.

Cobb had no reason to suspect that Williams was too young to

lawfully drink once Williams produced a driver’s licence that

demonstrated that he was over 2 1 . Nevertheless, Cobb argues that

he had a right to continue to detain Williams in order to

1 Williams does not challenge Cobb’s decision to briefly question him to determine if he was old enough to drink.

-7- determine whether Williams should be taken into protective

custody for intoxication pursuant to

-

B:3. 2 Cobb claims that he had reason to suspect that Williams

might be intoxicated because he was carrying a beer bottle, he

was swaying, he fumbled for his identification, and he had glassy

eyes. Williams challenges Cobb’s claim and argues that a

reasonable officer in Cobb’s position had no reason to suspect

that he was intoxicated because he had only consumed 1-1/2 beers.

Whether Williams exhibited the symptoms of intoxication on which

Cobb’s argument is based presents a disputed question of material

fact that will have to be resolved by a jury. Therefore, Cobb is

not entitled to summary judgment with respect to his claim that

he was entitled to detain Williams even after Williams had proved

that he was old enough to lawfully drink.

Williams alternatively claims that Officer Cobb lacked

sufficient justification to frisk him even if Cobb reasonably

2

-B:3 provides in pertinent part that “[w]hen a peace officer encounters a person who in the judgment of the officer is intoxicated as defined in RSA 172-B:1 X , the officer may take such person into protective custody . . . .”

-B:1, X defines intoxicated as “a condition in which the mental or physical functioning is substantially impaired and as a result of the presence of alcohol in his system.”

-8- suspected that he might be intoxicated.3 Cobb responds by

claiming that he was entitled to frisk Williams because he

observed a bulge in Williams’ pants pocket that made him suspect

that Williams might be armed. In making this argument, Cobb

attaches special significance to the fact that he could see the

bulge even after Williams had purportedly removed everything from

his pants pocket. This argument, however, also hinges on a

disputed fact. Williams claims that he removed everything from

his pockets when Cobb instructed him to do s o . He thus disagrees

with Cobb’s assertion that there was something in his pants

pocket that might have produced the alleged bulge. Whether Cobb

in fact observed a bulge in Williams’ pants pocket is a question

of fact that must be left for a jury to answer. Summary judgment

is therefore denied.

3. Williams’ Claim that Cobb Used Excessive Force

Williams next argues that Cobb used excessive force against

him during the search. Cobb counters by arguing that he is

entitled to qualified immunity because the force that he used was

reasonable under the circumstances.

3 Williams does not challenge the lawfulness of Cobb’s demand that he empty his pockets.

-9- Claims that a police officer used excessive force in

searching a suspect are analyzed under the Fourth Amendment. See

Graham v . Connor,

(1989). To recover on such a

claim, a plaintiff must demonstrate that the force used by the

defendant was objectively unreasonable given the totality of the

relevant circumstances. See Bastien v . Goddard,

0 , 14

(1st Cir. 2002). Among the factors that a court should consider

are: (1) the severity of the crime at issue, (2) whether the

suspect poses an immediate threat to the safety of the officers

or others, and (3) whether the suspect actively resists arrest or

attempts to evade arrest by flight. See

The claimant’s

physical condition may also be a relevant factor if the defendant

knew or reasonably should have known that the claimant suffered

from a preexisting condition that might make an otherwise

reasonable use of force unreasonably painful or injurious. See

Guite v . Wright,

4 7 , 750 (8th Cir. 1998) (citing

Walton v . City of Southfield,

(6th Cir. 1993)).

I am not persuaded by Officer Cobb’s claim that his use of

force was, without question, reasonable under the circumstances.

As I have explained, Cobb no longer had reason to suspect that

Williams was engaging in criminal activity once Williams

-10- demonstrated that he was old enough to drink. Moreover, if

Williams’ version of the facts is true, although Williams

recoiled when Cobb attempted to frisk him and then later resisted

when Cobb attempted to pull his injured arm behind his back,

Williams never threatened Cobb nor attempted to flee. Instead,

he repeatedly stated that he would cooperate but that he did not

want Cobb to pull on his injured right arm. Under the facts as

Williams has described them, Cobb’s multiple attempts to pull

Williams’ injured arm behind his back and his other attempts to

forcibly restrain Williams could be deemed to be an unreasonable

use of force. Material facts that bear on Cobb’s excessive force

claim thus remain in dispute. Accordingly, Cobb’s motion for

summary judgment is denied.

B. Town of Newbury

Williams has also sued the Town of Newbury. He contends

that the Town is liable for Williams’ unconstitutional conduct

because it failed to properly train and supervise him.

As the First Circuit has explained, “liability will attach

to the municipal employer where its failure to properly train its

officers ‘amounts to deliberate indifference to the rights of

persons with whom the police come into contact’ and where the

-11- specific deficiency in training is the ‘moving force’ behind a

constitutional injury.” Wilson v . Town of Mendon,

, 6

(1st Cir. 2002) (quoting City of Canton v . Harris,

7 8 ,

388-89 (1989)). The same standard applies when, as in this case,

a failure to supervise claim is brought against a municipality.

See Amnesty Am. v . Town of W . Hartford,

(2d

Cir. 2004).

Williams has failed to produce any significant evidence to

support his contention that the Town acted with deliberate

indifference in failing to train or supervise Officer Cobb. It

is uncontradicted that though Cobb had only two and one-half

years of part-time experience, he was trained at the New

Hampshire Police Academy, and was certified as an officer only

after attending New Hampshire’s Standards and Training Part Time

Academy. Both programs include tutorials on the contours of

search and seizure law.

Williams’ only proof that Officer Cobb was given authority

without adequate training or supervision is his claim that Cobb

violated both the Constitution and Newbury Police procedure on

the night in question. See O b j . to Defendants’ Motion for

Summary Judgment (Doc. N o . 8 ) at 22-24. Indeed, much of

-12- Williams’ brief contrasts Cobb’s behavior with rules set forth in

the Newbury Police Manual. Id. at 23 (describing situations in

which it is appropriate to brandish a firearm). Rather than

supporting Williams’ argument, however, these guidelines stand as

evidence that the Town expected a measure of professionalism from

Cobb and that Cobb failed to meet that standard.

Other than conclusory allegations, Williams offers no proof

that a reasonable jury could rely upon to hold that Newbury acted

with deliberate indifference. He offers no evidence

demonstrating a history of police abuse generally, nor evidence

of a pattern of bad behavior by Officer Cobb specifically.

Opposition at the summary judgment stage requires more. See

Carroll,

. I therefore conclude that no

reasonable jury could find the Town liable under § 1983 on a

theory of municipal liability.

IV. CONCLUSION

For the reasons set forth in this Memorandum and Order, I

deny Cobb’s request for summary judgment based on the doctrine of

qualified immunity but grant the Town’s request with respect to

-13- the federal claims that Williams has asserted against i t . I also

decline defendants’ request to dismiss Williams’ state law claims

for lack of supplemental jurisdiction.

SO ORDERED.

Paul Barbadoro United States District Judge

December 2 7 , 2004

cc: Steven Hengen, Esq. Brad Wilder, Esq.

-14-