United States Court of Appeals For the First Circuit

No. 21-1278

JUANA BAEZ, individually and on behalf of all others similarly situated; CRUZ SANABRIA, individually and on behalf of all others similarly situated; ROGELIO RODAS, individually and on behalf of all others similarly situated; DEMETRIUS OVIEDO, individually and on behalf of all others similarly situated; JOSE ALBERTO NUNEZ-GUERRERO, individually and on behalf of all others similarly situated,

Plaintiffs, Appellants,

v.

TOWN OF BROOKLINE, MASSACHUSETTS BROOKLINE POLICE COMMISSIONERS,

Defendant, Appellee,

NEIL WISHINSKY, in his individual and official capacities; NANCY DALY, in her individual and official capacities; BEN FRANCO, in his individual and official capacities; NANCY HELLER, in her individual and official capacities; BERNARD GREENE, in his individual and official capacities,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Kayatta, Lipez, and Gelpí, Circuit Judges.

Brooks A. Ames, with whom Brookline Justice League was on brief, for appellants. Joseph A. Padolsky, with whom Michael Downey, Douglas I. Louison, and Louison, Costello, Condon & Pfaff, LLP were on brief, for appellee.

August 11, 2022 KAYATTA, Circuit Judge. The five named plaintiffs in

this case argue that between 2014 and 2015, the Brookline police

violated plaintiffs' rights under the Fourteenth Amendment's Equal

Protection Clause by treating them differently because they are

Hispanic. Rather than suing any of the individual officers,

plaintiffs pursued claims against the Town of Brookline and its

Selectmen (who are also the Town's Police Commissioners).

Plaintiffs say that the Town caused their allegedly

unconstitutional mistreatment by its "deliberate indifference" to

complaints of racial discrimination by Brookline police. In

granting summary judgment in favor of all defendants, the district

court found that the record would not allow any reasonable jury to

conclude that the Town of Brookline was deliberately indifferent

to complaints of unlawful discrimination by police officers. Baez

v. Town of Brookline, No. CV 17-10661,

, at *3 (D.

Mass. Mar. 31, 2021).1 For the following reasons, we agree.

I.

We review the entry of summary judgment de novo. Alston

v. Town of Brookline,

(1st Cir. 2021). In so

doing, "we evaluate the facts of record in the light most

1 Because plaintiffs did not appeal the lower court's judgment regarding the individual defendants, the individual defendants are not parties to this appeal. Further, because no class was certified below, we use "plaintiffs" to mean only the named plaintiffs (the appellants before us).

- 3 - flattering to the nonmovant[s]" -- here, plaintiffs -- "and draw

all reasonable inferences in [their] favor."

Summary judgment

is warranted only if, after reviewing the record in the manner

just described, we determine "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."

II.

We begin with a review of the applicable law. To prevail

in this action against a municipality under

,

plaintiffs must prove that they suffered a violation of a

constitutional right as a result of a "policy or custom" of the

Town of Brookline. Monell v. Dep't of Soc. Servs.,

(1978). In plaintiffs' favor, we will assume without deciding

that a jury could reasonably find that Brookline police officers

violated plaintiffs' equal-protection rights. We train our

attention, instead, on whether the evidence would support a finding

that those (assumed) constitutional violations were the result of

an official policy or custom.

Not surprisingly, there is no evidence that the Town has

a formal or express policy instructing police officials to

discriminate based on race or ethnicity. But "[o]fficial municipal

policy" need not be so explicit -- it also includes, inter alia,

"the acts of [a government's] policymaking officials[] and

practices so persistent and widespread as to practically have the

- 4 - force of law." Connick v. Thompson,

, 60–61 (2011).

Put another way, a municipality can be held liable if an unlawful

"custom or practice" is "'so well settled and widespread that the

policymaking officials of the municipality can be said to have

either actual or constructive knowledge of it yet did nothing to

end the practice.'" Whitfield v. Meléndez-Rivera,

(1st Cir. 2005) (quoting Bordanaro v. McLeod,

(1st Cir. 1989)). Thus, "[i]n limited circumstances," a

municipality's decision not to act "may rise to the level of an

official government policy for purposes of § 1983." Connick,

(discussing "a local government's decision not to train

certain employees about their legal duty to avoid violating

citizens' rights").

Pointing to these principles, plaintiffs in this case

seek to establish liability by showing that they suffered

constitutional injury as "the direct result of poor . . .

supervision of" Brookline police officers, "stemming from

'deliberate indifference to the rights of persons with whom the

[police] come into contact.'" Jones v. City of Boston,

(1st Cir. 2014) (quoting Hayden v. Grayson,

(1st Cir. 1998)). "Deliberate indifference is a stringent

standard of fault, requiring proof that a municipal actor

disregarded a known or obvious consequence of his action."

Connick,

(cleaned up) (quoting Bd. of Comm'rs v.

- 5 - Brown,

(1997)). "A showing of simple or even

heightened negligence will not suffice." Brown,

.

To make this required showing of deliberate

indifference, plaintiffs advance a single argument on appeal: "The

Town's failure to take meaningful action to independently

investigate racial discrimination complaints and impose

appropriate discipline on offending officers constitutes

deliberate indifference to racial discrimination." See Fiacco v.

City of Rensselaer,

, 331–32 (2d Cir. 1986) (inadequate

handling of complaints against police could permit a rational juror

to find "a policy of nonsupervision . . . that amounted to a

deliberate indifference"). Plaintiffs allege that by failing to

properly address complaints, the Town "turned a blind-eye" to "a

pattern of discriminatory behavior" and "tacitly encouraged"

discriminatory police conduct. Plaintiffs further argue that but

for the Town's deficient handling of racial discrimination

complaints, plaintiffs would not themselves have suffered

constitutional injury by Brookline police officers. Plaintiffs

focus in particular on the actions of the Police Commissioners,

who we will assume are policymaking officials for the purposes of

section 1983 liability.

Plaintiffs are correct that "deliberate indifference may

be inferred" if a municipality receives "repeated complaints of

civil rights violations . . . followed by no meaningful attempt on

- 6 - the part of the municipality to investigate or to forestall further

incidents." Vann v. City of New York,

(2d Cir.

1995); see also Harris v. City of Pagedale,

(8th

Cir. 1987) (finding deliberate indifference where "[c]ity

officials in positions of authority and responsibility were

notified of" sexual misconduct by police officers "on repeated

occasions" but "repeatedly failed to take any remedial action").

Taking nominal action will not shield a local government from

liability. See Beck v. City of Pittsburgh,

(3d

Cir. 1996) ("[W]e cannot look to the mere existence of superficial

grievance procedures as a guarantee that citizens' constitutional

liberties are secure."). Deliberate indifference can be

predicated on actions shown to be "meaningless or blatantly

inadequate." Reynolds v. Giuliani,

(2d Cir.

2007) (discussing deliberate indifference in the context of

supervisory liability). That said, responsive measures do not

necessarily establish deliberate indifference just because they

ultimately prove ineffective. See Doe ex rel. Doe v. Dallas Indep.

Sch. Dist.,

, 219 (5th Cir. 1998) (explaining, in the

context of individual liability, that "[a]ctions and decisions by

officials that are merely inept, erroneous, ineffective, or

negligent do not amount to deliberate indifference").

- 7 - III.

Having explained the applicable law, we turn to

evaluating whether plaintiffs' evidence might suffice to establish

municipal liability under that law. More specifically, we look to

the Town's handling of relevant complaints (formal and otherwise)

during the years surrounding plaintiffs' interactions with

Brookline police to discern whether the Town's actions could

support a finding of deliberate indifference.

A.

Plaintiffs' own relevant interactions with Brookline

police occurred in 2014 and 2015.2 Those interactions led three

plaintiffs to file complaints against Brookline police officers.

The Police Department's procedures for handling such complaints

track their relevant origins to 2008, when the Town's Board of

Selectmen charged a committee with reviewing the Police

Department's then-existing complaint procedures and recommending

improvements. This review was prompted by a contentious incident

at Town Hall the previous year, which led to a complaint alleging

racial discrimination by Brookline police officers. The nine-

member review committee was chaired by Patrick J. King, a member

of the Massachusetts State Ethics Commission who had been a trial

attorney in the Civil Rights Division of the U.S. Department of

2 We confine our analysis to those interactions described in plaintiffs' opening brief as the basis for their claims on appeal.

- 8 - Justice before serving as a superior court judge and working in

alternative dispute resolution. The committee met eleven times in

as many months, holding two meetings for public comment. One

committee member wrote that "in over 30 years of community

involvement, [he] recall[ed] no committee more willing to hear

from the public." The committee also heard from experts, who

underscored the importance of using procedures to "compensate for

the reality" that "[i]n all police jurisdictions[,] the internal

dynamic leans in favor of the police." The committee ultimately

recommended various reforms, and the Town revised its complaint

procedures in response.

As best we can tell, the undated complaint procedures

included in the addendum to plaintiffs' opening brief were the

operative Police Department procedures at the time plaintiffs

submitted their complaints. Those procedures allow a person to

submit complaints in person, online, or by telephone --

anonymously, if desired. Complaints are ordinarily to be

investigated in the first instance by an Internal Affairs/Staff

Inspection Officer. The procedures outline the time frame in which

the investigator should commence work on a given complaint. They

require an investigator to "make reasonable attempts to interview"

witnesses, "assist[] both complainants and officers in identifying

and locating evidence to corroborate their factual assertions,"

and "maintain[] thorough records." Unless a witness provides a

- 9 - statement on her own, she should be asked to sign her statement or

a summary thereof. When complete, the investigator's report is to

be furnished to the complainant and the subject officer and

reviewed by the Chief of Police. The Chief is then to prepare her

own report (after further investigation, if she requests it) for

transmittal to the Selectmen, the complainant, and the subject

officer. A complainant can appeal for review by the Selectmen,

triggering a pre-hearing review by the Town Administrator.

Plaintiffs nevertheless complain that the Police

Department's procedures employ no mechanism for review by any

outside or independent person or tribunal. There are several

problems with this argument. First, plaintiffs cite no rule,

regulation, or case law indicating that a town is deliberately

indifferent whenever it fails to employ independent civilians to

review complaints of discriminatory policing -- and we are not

prepared to endorse such a categorical rule. Second, the Town

does provide for independent review of the Police Department's

findings: If a complainant appeals the disposition of her

complaint against an officer, the Selectmen may appoint "one or

more independent persons to conduct an investigation and write a

report for the Selectmen." Further, the Town provides for a

- 10 - biennial assessment of the Department's complaint procedures to be

conducted by the Police Chief and two civilians.3

In sum, we see no basis on which a reasonable jury could

find that the Town's complaint procedures as written evidence

deliberate indifference to the possibility of discrimination by

Brookline police. To the contrary, the procedures -- at least on

paper as set forth in the record -- suggest that the Town took

meaningful steps to respond to complaints of discriminatory

conduct.

B.

To be sure, the fact that Brookline has on paper a

procedure for handling complaints lodged with the Police

Department leaves open the possibility that, in practice, its

investigations are flawed and subsequent reviewers merely rubber-

stamp initial police findings of no misconduct. And such a sham

is more or less what plaintiffs claim Brookline's procedures to

be. So we turn to the evidence of how the Town responded to

complaints of discriminatory policing, beginning with plaintiffs'

own charges of improper police conduct.

1. Cruz Sanabria

Sanabria's claim stems from police involvement in a

series of disputes between Sanabria and his white neighbors. On

3 The first assessment occurred in 2014; the second was delayed to 2017.

- 11 - March 28, 2014, Sanabria called the police after his neighbors

allegedly placed trash barrels around his car. Sanabria laments

that although responding officers "took a report," "nothing was

done." The same was apparently true when one of Sanabria's

neighbors called the police on August 27, 2014, alleging that

Sanabria had damaged her bicycle; the police determined that no

crime had occurred and did not inform Sanabria of the accusation.

Three months later, one of Sanabria's neighbors alleged

that Sanabria closed the basement door while she was on the

basement stairs, causing her to fall down the stairs. This time,

Sanabria was told to appear at a police-initiated hearing before

a clerk-magistrate to determine whether there was probable cause

to charge Sanabria with assault with a dangerous weapon. The

clerk-magistrate determined that no probable cause existed.

Sanabria and his counsel met with Town officials in

February 2015. Several months later, Sanabria lodged a more formal

complaint, which the Town described as alleging racial profiling.

The lieutenant looking into Sanabria's case had attended the

February meeting with Sanabria and his counsel. He considered the

officer's recent history of similar complaints (there evidently

were none), visited the scene of the incident, and spoke to non-

police witnesses. He tried to schedule an interview with Sanabria,

offering to meet him at a location of Sanabria's choosing. But

Sanabria declined to be interviewed and said that his complaint

- 12 - also concerned the Town's conduct around the February meeting.

After the investigating lieutenant recommended finding Sanabria's

complaint to be unfounded, Sanabria initially exercised his appeal

right. The Town retained Charles E. Walker, Jr. -- a former chair

of the Massachusetts Commission against Discrimination -- to act

as a hearing officer for Sanabria's appeal. Sanabria through

counsel objected to the use of an outside hearing officer and

refused to pursue the appeal.

2. Demetrius Oviedo

Oviedo and his brother were arrested by Brookline police

while walking home in the early morning hours of November 8, 2014.

The brothers were with a friend, who Oviedo testified had stopped

to urinate in public as the brothers kept walking. Oviedo

maintained that the brothers were stopped by a Brookline police

officer in plain clothes, who demanded Oviedo's identification.

According to Oviedo, after he asked why the man needed to see his

identification, the officer called for backup. Oviedo said that

his brother "got a little loud" and was arrested. Oviedo relayed

that he stepped towards his brother and, after initially declining

to get down as requested, was arrested himself. The friend, who

was also Hispanic, was not arrested.4

4 The officers evidently did not realize that the friend was the one who had urinated in public.

- 13 - Oviedo was charged with disorderly conduct, resisting

arrest, and assault and battery on a police officer. All of those

charges were dismissed, and Oviedo paid court costs. Oviedo did

not file a complaint as a result of this incident.

3. Alberto Nunez-Guerrero and Juana Baez

On August 15, 2015, Nunez-Guerrero brought groceries to

Baez, with whom he has two children. He drove Baez's car. When

he arrived, he parked next to the building while he took the

groceries up to Baez. The parties dispute how long he was away

from the car. But by the time he returned, a tow truck had arrived,

and its white driver had begun to tow Baez's car. Nunez-Guerrero

jumped onto the tow truck to prevent the driver from leaving with

Baez's car, then called the police. While officers were en route

to the scene, a dispatcher told them that a man was jumping on,

punching, and slamming the tow truck.

As Nunez-Guerrero and the tow-truck driver exchanged

words, Baez came downstairs and joined the verbal altercation.

Baez alleges that the tow-truck driver nearly hit her with the

truck's door while she was holding her newborn.

Brookline police officers arrived at the scene, finding

Nunez-Guerrero still standing on the truck. One officer directed

Nunez-Guerrero to come down. He complied and was handcuffed.

Nunez-Guerrero alleges that another officer told him, "Do not speak

Spanish, or I'm going to put more charges." Baez testified that

- 14 - an officer asked her if she understood English and directed her to

go get her passport or other identification.

Nunez-Guerrero was charged with malicious destruction of

property and being a disorderly person. The first charge was

dismissed and Nunez-Guerrero was acquitted of the second. Baez

was charged with disorderly conduct, but the charge was dismissed

upon payment of court costs.5

Nunez-Guerrero did not file a complaint as a result of

the incident. Baez did, and the Town described her complaint as

alleging racial profiling and rudeness/discourtesy. The Town

Administrator promptly replied, explaining:

[Y]our complaint has been forwarded to the Police Department's Internal Affairs Office for review and processing in accordance with the Town of Brookline's Citizen Complaint Procedures. A copy of these Procedures is attached. I have also enclosed a copy of the Town's Diversity, Inclusion and Community Relations By-law; and encourage you to consider contacting the Department's Director, Dr. Lloyd Gellineau, who will provide you with information and guidance should you find that helpful.6

5 The police also notified the Department of Children and Families about Baez's decision to bring her infant downstairs with her while she argued with the tow-truck driver, leaving her three- year-old child unattended upstairs. 6 The Town's Commission for Diversity, Inclusion and Community Relations is evidently empowered to receive and investigate complaints against the Town and its employees "concerning allegations of discrimination or bias." Town of Brookline Gen. By-Laws, art. 3.14, § 3.14.3. However, the Town does not indicate when the Commission's complaint procedures took effect, and it appears that they were in development as of mid- December of 2015, by which time Sanabria, Rodas, and Baez had

- 15 - A Brookline police lieutenant was assigned to

investigate Baez's complaint. He described receiving "a complete

lack of cooperation" from Baez and Nunez-Guerrero despite, "[o]n

numerous occasions[,] . . . request[ing] and attempt[ing] to meet

with them for the purpose of interviewing them and obtaining

information which [he] thought would be relevant to the

investigation." Nevertheless, the officer visited upwards of

thirty residences to look for witnesses, ultimately securing the

accounts of at least eight people. He examined photographs taken

on the day of the incident and considered the involved officers'

past history of complaints. And he lamented his inability to

follow up on one of Baez's allegations (about her first attempt to

file a complaint) without her cooperation, because he opined that

"it would be of great concern" if it had occurred.

The investigating officer ultimately recommended finding

Baez's complaint to be unfounded. Baez initially exercised her

appeal right, but then (through counsel) objected to the Town's

proposed procedures and did not schedule an appeal.

4. Rogelio Rodas

Rodas's claims stem from a police encounter on

October 9, 2015. Rodas was driving home when he noticed

already lodged complaints through the Police Department's procedures.

- 16 - construction cones blocking the entrances to his building's

parking lot. Rodas asked a nearby police officer if he could move

the cones; the officer allegedly ignored and then rebuffed him.

Rodas said that he "grabbed" two cones and "threw them on the side

of the sidewalk" so he could proceed to park. After that, the

officer allegedly grabbed Rodas and threatened to "shove [the

cones] up Rodas's ass" if Rodas did not replace them.

Rodas filed a complaint about his treatment. Rodas did

not allege racial discrimination at that time. After initially

cooperating with the Town's investigation of his complaint, Rodas

declined to participate in a second interview. Nevertheless,

investigating officers reviewed video footage of Rodas's police

encounter and sought out non-police witnesses identified by Rodas.

Although the lieutenant who submitted the findings did not think

the officer's behavior "[rose] to the level of formal misconduct,"

he found "elements of what happened" to be "concerning" and

recommended "referr[ing]" the matter to the officer's "supervisor

for counselling on better ways to handle [such] situations." The

lieutenant recommended a finding of "[u]nfounded" for Rodas's

allegation of excessive force and "[n]ot sustained" for his

allegation of discourtesy. Rodas failed to appeal the disposition

of his complaint.

- 17 - 5. Other Individuals

Plaintiffs also allege deficiencies in the Town's

handling of other allegations of racial discrimination since 2008

in which plaintiffs were not involved.7 Plaintiffs rely in part

on a 2017 review conducted by two civilians (including the chair

of the Town's Commission for Diversity, Inclusion and Community

Relations) tasked with reviewing the Town's handling of complaints

for the period from 2013–2016. The resulting report identified a

total of eleven allegations of racial profiling (comprising 14.9%

of all allegations contained in the forty-one complaints

reviewed). In its recommendations, the report stated that "not

all complainants making appeals to the Select Board were granted

the right to be heard by the Select Board or were granted the right

in a timely manner." The same report concluded that "most

complaints were investigated and reviewed in a fair, thorough, and

impartial manner," stating that, in the reviewers' judgment, "each

complaint was taken seriously, with a thorough investigation of

each complaint." Nonetheless, the report noted "a few cases" in

Given that all plaintiffs' claims on appeal arose in 2014 7

or thereafter, we do not discuss events alleged to have occurred prior to the 2008 review of the Police Department's complaint procedures.

- 18 - which "actions by the police or others have led to dissatisfaction

with the process and criticism by complainants."8

Plaintiffs also point to an investigation conducted in

2017, when counsel for Isa Ebowe, a Black man, sent a letter

alleging that Detective David Wagner racially profiled Ebowe

during a stop in Brookline and used excessive force against him.9

Ebowe's claims were investigated by Lieutenant Paul Campbell, who

had also worked on the investigations of the Sanabria and Rodas

complaints. Campbell tried unsuccessfully to locate video footage

of the incident, including by arranging for a forensic video

analyst to examine a nearby clinic's security system. Through

counsel, Ebowe declined to be interviewed. Campbell noted two

8 Plaintiffs also discuss the handling of specific complaints from 2011 and 2015. But they offer no evidence that those complaints were not subject to either the review discussed above or the prior review conducted in 2014 (which covered complaints registered in 2011, 2012, and 2013). And they develop no argument that those periodic reviews were themselves a sham. 9 Although evidence of events that occurred after plaintiffs' police encounters and after the Town handled their complaints cannot establish causation in plaintiffs' cases, it might conceivably be "relevant to whether [the Town] was deliberately indifferent to a continued pattern of police misconduct." Forrest v. Parry,

(3d Cir. 2019) ("Although the failure to investigate [subsequent] complaints could not have caused Forrest's alleged injuries . . . . Camden's handling of complaints after Forrest's arrest is highly relevant to demonstrating that it maintained the same practice prior to and at the time of said arrest."); see also Foley v. City of Lowell,

, 14 & n.3 (1st Cir. 1991) (in a section 1983 case, "actions taken subsequent to an event are admissible if, and to the extent that, they provide reliable insight into the policy in force at the time of the incident").

- 19 - prior complaints of racial profiling against Wagner. Unaided by

cooperation from the complainant, Campbell determined that Wagner

had violated a policy requiring documentation of the incident, but

otherwise concluded that the evidence did not support Ebowe's

claims of excessive force and racial profiling.10 Plaintiffs

allege that the Selectmen "accepted the department's findings

clearing [Wagner] of wrongdoing." But Campbell's initial report

on the case noted that the matter remained open and was being

reviewed by Town Counsel. The Town ultimately reached a $157,000

settlement agreement with Ebowe. Without admitting liability, the

Town agreed that the Police Department would work with the Anti-

Defamation League to provide training on implicit bias. In a

subsequent deposition, Selectman Greene noted that he thought

implicit bias had played a role in Wagner's interaction with Ebowe.

Wagner was required to undergo training as a result of his

10 Plaintiffs suggest that Campbell displayed pro-police bias by probing aspects of Ebowe's past that plaintiffs evidently consider irrelevant, including past insurance claims. But Ebowe claimed to have incurred medical expenses as a result of his encounter with Wagner, and plaintiffs do not explain why an impartial investigator would not be entitled to assess Ebowe's credibility, including by researching past insurance claims. And to the extent that plaintiffs fault the Town for not "provid[ing] the Ebowe complaint to the reviewers who conducted the 2013–2016 review of the Citizen Complaint Procedures," they do not address Campbell's testimony that Ebowe never filed a formal complaint. Nor do they explain why Campbell's investigation of allegations received by the Town in January 2017 should have been reviewed during an assessment of "complaints received in 2013, 2014, 2015, and 2016."

- 20 - encounter with Ebowe, though the Town does not specify the nature

of that training. Wagner was not involved in any of the incidents

involving plaintiffs.

Plaintiffs also fault the Town for not following up on

allegations of police harassment made by Dwaign Tyndal during a

meeting of the Commission for Diversity, Inclusion and Community

Relations. The meeting transcript indicates that the committee's

chairperson pointed out to Tyndal several avenues for filing a

complaint. Plaintiffs are silent as to whether Tyndal did so.

C.

The foregoing provides no meaningful support for the

contention that the Town employed its complaint procedures as a

sham. Viewing the record generously to plaintiffs, they have

unearthed a few shortcomings in the handling of particular

complaints (not all of which seem to have involved racial

discrimination) over the course of seven years. Placing these

facts in context, no reasonable jury could say that the Town made

"no meaningful attempt . . . to investigate or to forestall"

racially discriminatory policing. Vann,

.

Further, we cannot agree that jurors could reasonably

find that the Town merely rubber-stamped police conduct. The

record shows that, in many cases, the complainants were unwilling

to participate in the complaint review process. We have no

occasion to doubt that in some instances, the complainants' prior

- 21 - experiences in Brookline or elsewhere may have led them to distrust

the police or other Town officials. But one cannot prove a town

deliberately indifferent to complaints of police misconduct by

failing to cooperate with investigations and not availing oneself

of meaningful procedures for appealing decisions.

Moreover, while plaintiffs disagree with the outcomes of

their individual investigations, they do not produce evidence

showing that those investigations were plagued by the kind of

systemic deficiencies that would allow a reasonable jury to find

that the Town had a policy of deliberate indifference towards

complaints of discriminatory police behavior.

To be sure, plaintiffs point to testimony by several

Town officials who could not recall an instance when the Police

Department sustained an allegation of racial discrimination. But

to turn this assertion into evidence that would support a finding

of deliberate indifference, plaintiffs would need to show that

during the relevant time period, the Town's policy or custom was

to ignore such complaints or to subject them to sham reviews. And,

as demonstrated by the evidence we have discussed (including the

apparently common practice of counseled claimants to refuse to

cooperate fully with Town investigations), no such showing is

possible on this record.

- 22 - IV.

We add a coda prompted by charts in the fact section of

plaintiffs' opening brief purporting to show a correlation between

race and the arrest rates of Brookline residents. Plaintiffs

devote little argumentation to this data. They suggest in passing

that a jury might view the data "as placing the Town on notice of

a pattern of racially discriminatory policing" and "add[ing]

credence to . . . claims of racial discrimination." For several

reasons, the data does little to advance plaintiffs' theory on

appeal.

First, the provenance of the data is unclear. It appears

that counsel created the charts. But counsel has not described

where to find all of underlying data, and we cannot tell where

some of the figures come from. It does appear that no attempt was

made to account for possible confounding factors, such as age.

Second, plaintiffs "proffer[] no expert testimony or

other insights to show the probativeness of the figures" or "their

likely statistical significance." Mack v. Great Atl. & Pac. Tea

Co.,

(1st Cir. 1989); see also, e.g., Bos. Parent

Coal. for Acad. Excellence Corp. v. Sch. Comm. of City of Bos.,

(1st Cir. 2021) ("A party claiming a disparate

impact generally does not even get to first base without" "evidence

establishing that [the disparity at issue] is statistically

- 23 - significant"). As a result, the ability to draw an inference of

any causal relationship is undercut.

Finally, and most fundamentally, plaintiffs' claims on

appeal fall short of the mark even if we read the data as plaintiffs

do. That is because proving discrimination by Brookline police

would not prove that the Town was deliberately indifferent to

complaints of such conduct.

Whatever one might say of the Town's response to

complaints of racial bias in law enforcement, no reasonable jury

could view this record as showing that the Town was deliberately

indifferent to allegations of discriminatory policing. In

addition to maintaining a carefully considered process for

investigating and adjudicating complaints lodged with the Police

Department, the Town has provided its police officers with

programming on racial profiling and hate crimes; published annual

reports on the demographics of police encounters; and created a

Commission for Diversity, Inclusion and Community Relations with

its own complaint procedures. The plaintiffs have not put forward

evidence from which a reasonable factfinder could conclude that

the Town's formally established, multifaceted approach to

preventing, detecting, and investigating racial discrimination by

police was merely a sham.

- 24 - V.

For the foregoing reasons, the district court's order

granting summary judgment for the Town is affirmed.

- 25 -