United States Court of Appeals For the First Circuit

No. 23-1165

NATALE COSENZA, Plaintiff, Appellant,

v.

CITY OF WORCESTER, MA, Defendant, Appellee,

KERRY HAZELHURST; JOHN DOHERTY; T.J. COAKLEY; MARK RICHARDSON; ALLAN BURNES; DANIEL BENEDICT; BRIAN DONOHUE; ROBERT TURGEON; AS YET UNKNOWN WORCESTER POLICE OFFICERS; DAVID GRADY; DARLENE ROCHEFORD,

Defendants.

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

[Hon. Timothy S. Hillman, U.S. District Judge]

Before

Gelpí, Lynch, and Montecalvo, Circuit Judges.

Steve Art, with whom Jon Loevy, Locke Bowman, Megan Pierce, and Loevy & Loevy were on brief, for appellant. Douglas T. Radigan, with whom Brian J. Edmonds, and Bowditch & Dewey, LLP were on brief, for appellee. October 28, 2024 LYNCH, Circuit Judge. Natale Cosenza was convicted in

2002 by a jury in Massachusetts state court of the assault and

battery with a dangerous weapon of Melissa Horgan and the armed

burglary of her apartment. A significant part of the prosecution's

evidence against Cosenza was the victim's identification of

Cosenza from a photo array administered by investigating Worcester

police. In light of later developments in the law, the state

courts, in 2016, granted him a new trial and, in 2017, suppressed

the photo array evidence, leading the Commonwealth to enter a nolle

prosequi.1

In this federal civil rights action brought in 2018, 16

years after his conviction, Cosenza sued the City of Worcester for

monetary damages on the theory the City had adopted an affirmative

policy of not properly training its officers as to photo arrays

and other investigative techniques, and the City's deliberate

indifference to his constitutional rights caused him injury. The

federal district court entered summary judgment for the City.

Cosenza v. City of Worcester, No. 18-cv-10936,

, at

*14 (D. Mass. Nov. 4, 2021). We affirm.

1 Massachusetts law defines a "nolle prosequi" as "a strategic decision by the Commonwealth to cease pursuing charges. Its entry is thus an affirmative exercise of a prosecutorial tool to discontinue prosecution." Commonwealth v. Denehy,

(Mass. 2014). "A prosecuting attorney may enter a nolle prosequi of pending charges at any time prior to the pronouncement of a sentence . . ." Mass. R. Crim. P. 16(a).

- 3 - The undisputed record evidence shows Worcester did not

exhibit deliberate indifference to Cosenza's constitutional

rights. Among other things, Cosenza did not point to any evidence

that the City maintained a policy of not training officers on the

procedures to conduct photo arrays, officers in fact completed on-

the-job training, and both state and federal law as to photo arrays

did not then cast doubt on the procedures used. See, e.g., Walker

v. Medeiros,

(1st Cir. 2018); Commonwealth v.

Silva-Santiago,

(Mass. 2009), abrogation on other

grounds recognized by Commonwealth v. Moore,

, 497

n.9 (Mass. 2018).

I.

A.

At roughly 4:00 A.M. on August 14, 2000, Melissa Horgan

woke in her Worcester apartment to find a man standing beside her

bed wearing underwear, a t-shirt, and a white covering on his head.

The man began striking Horgan with a hard object and a struggle

ensued, which ended when Horgan kicked the man and he fled.

Horgan's assailant entered the fourth-floor apartment through a

window in Horgan's roommate's bedroom, who was not at home that

night.

Horgan called the Worcester Police. Officer Daniel

Benedict and two other patrol officers arrived on the scene at

4:05 A.M. Officer Benedict spoke with Horgan and then with

- 4 - Horgan's next-door neighbor, Robert Payton. Horgan told Officer

Benedict that her assailant was a white male she did not recognize,

wearing a t-shirt and underwear, and that her assailant either had

no hair or that she did not know whether he had hair. Horgan did

not provide Officer Benedict with an estimate of her assailant's

height or weight. Payton told Officer Benedict that he had not

seen or heard anything, but that he had "recently" seen Cosenza,

who lived in a neighboring building, knocking on doors in Horgan

and Payton's building and asking for money. Payton also told

Officer Benedict that he believed Cosenza accessed the building by

jumping onto a shared second-floor balcony. Officer Benedict

memorialized his interviews in an incident report, in which he

listed Cosenza as a suspect.

Detective Kerry Hazelhurst and his partner, Detective

John Doherty, met with Horgan at her niece's residence on

August 15, 2000 to conduct a photo array. Horgan's niece was also

present. Based on Officer Benedict's incident report listing

Cosenza as a suspect, Det. Hazelhurst prepared an array of nine

identically sized photos for Horgan to view that included a

photograph of Cosenza alongside photos of eight other men who had

physical characteristics similar to Cosenza. Det. Hazelhurst laid

out the photos on a table simultaneously, and Horgan then reviewed

the array of all nine photos. Det. Hazelhurst followed his

standard practice in administering photo arrays, which was to

- 5 - instruct the witness to: "take their time, look at [the array]

carefully, make sure you're certain who you pick out." His

standard practice also involved telling witnesses "we need a

positive identification for us to go further. If it's an iffy ID

it's no good to us."

The detectives observed that Horgan had an intense

emotional reaction when she reached Cosenza's photo in the array

and identified him as her attacker. Det. Hazelhurst then told

Horgan Cosenza's name and that he lived near her. Det. Hazelhurst

did not take any notes during the interview or ask Horgan how

confident she was in her identification.

Dets. Hazelhurst and Doherty, along with two other

officers, T.J. Coakley and Mark Richardson, then began searching

for Cosenza near Horgan's apartment building. Det. Doherty

observed someone riding a bicycle, whom he identified as Cosenza.

Det. Doherty testified at the criminal trial that, from a distance

of roughly twenty feet, he yelled to the bicycle rider that he was

a police officer and that he wanted to talk, but that the bicycle

rider looked back and sped away.2

2 During his deposition in this case, Officer Coakley, who grew up in the same neighborhood as Cosenza, testified that, during the search for Cosenza on August 15, 2000, the bicycle rider the officers encountered was 200 yards, not 20 feet, away, when Det. Doherty yelled, that Officer Coakley could not identify the person as Cosenza, and that it was not clear that the person heard Det. Doherty's command to stop.

- 6 - Later that same day, Det. Hazelhurst took a statement

from Horgan at the police station. In this statement, Horgan

described her assailant as having "dark hair, medium to short

length" and "dark eyes," which was similar to Cosenza's appearance

in the photo that had been selected for the array. She estimated

her assailant was "medium height, medium build."3 Horgan also

stated that her assailant was someone who had previously knocked

on Horgan's door asking for money.

Horgan had left her apartment following the August 14

attack, and, on August 16, 2000, accompanied by Dets. Hazelhurst

and Doherty, she returned to the apartment to pack a bag of

clothes, which included some clothing that had been on her bedroom

floor. On September 13, 2000, Horgan removed the clothes from the

bag to wash them and found that she had packed a pair of men's

shorts, which she did not recognize. Horgan called Det. Hazelhurst

that day and told him about the shorts. Hazelhurst retrieved the

shorts from Horgan. Det. Hazelhurst took a statement from Horgan

about the shorts on February 20, 2001, in which Horgan stated that

the shorts did not belong to any members of her family who might

have been in the apartment. The shorts had semen stains on them,

which were tested for DNA. The testing results obtained on

July 17, 2001, excluded Cosenza as the source of the DNA.

3 Later evidence showed Cosenza was approximately 5'3" tall and weighed around 125 pounds.

- 7 - Det. Hazelhurst later testified at trial that he had

searched for a pair of men's shorts or pants on August 16, 2000,

when he accompanied Horgan to the apartment, but that he had not

found any. Det. Hazelhurst did not memorialize any such search in

a report, nor did he mention the search to Horgan when she alerted

him to the shorts she found.4

B.

A Massachusetts grand jury indicted Cosenza on charges

of assault with intent to rape in violation of

, assault and battery by means of a dangerous weapon

in violation of Mass. Gen. Laws ch. 265, § 15A, and armed burglary,

in violation of

.

Cosenza moved to suppress Horgan's photo array

identification and sought to introduce expert testimony regarding

the unreliability of eyewitness identifications. The motion judge

found that "the defendant ha[d] failed to establish any

impermissible suggestiveness" and that "there ha[d] been no

violation of any state or federal due process provisions" and

denied the motion to suppress. Hr'g Tr. at 1-93, Commonwealth v.

Cosenza, No. 00-0430 (Mass. Super. Ct. Aug. 16, 2001). The judge

4 During her deposition for this case, Horgan stated that, contrary to Det. Hazelhurst's trial testimony, she did not recall the officers searching her apartment for men's shorts or pants on August 16.

- 8 - also denied Cosenza's request to introduce expert testimony.5

Trial Tr. at 21-23, Commonwealth v. Cosenza, No. 00-0430 (Mass.

Super. Ct. June 24, 2002).

Cosenza's defense was that Horgan's identification was

unreliable and that the shorts, and the DNA on them, belonged to

the true attacker. The Commonwealth, in turn, argued that Horgan's

identification was reliable and supported by the corroborating

evidence of Cosenza's flight from police and that the shorts must

have belonged to someone who stayed in the apartment after the

attack, since Det. Hazelhurst testified that he had searched

Horgan's apartment for shorts on August 16, 2000, but found none.

5 The judge did not explain this ruling at the time, but the Massachusetts Appeals Court observed that he later elaborated on the reasoning behind his denial when adjudicating Cosenza's motion for a new trial. The Appeals Court quoted the trial judge as stating that: the circumstances surrounding the complaining witness'[s] encounter with the assailant were not particularly distinct from many identification-type cases. Commonwealth v. Ashley,

(1998)[,] citing Commonwealth v. Santoli, supra [] at 844. Nor was there evidence of post-event suggestion by investigating officers, a one-on-one showup, or a cross- racial component . . . . In conclusion, there were not sufficient grounds proffered by the defendant to suggest that the circumstances under which the complaining witness'[s] identification was achieved . . . required expert testimony to assist the jury . . . . Commonwealth v. Cosenza,

,

, at *2 (Mass. App. Ct. 2006) (unpublished table decision) (alterations and omissions in original).

- 9 - The jury found Cosenza guilty of assault and battery by

means of a dangerous weapon and armed burglary. He received

concurrent sentences of nine to ten years on the assault and

battery conviction and twelve to twenty years on the armed burglary

conviction.

Cosenza's conviction was affirmed in 2006 on appeal.

See Cosenza,

, at *4. The Massachusetts Appeals

Court rejected, among others, Cosenza's argument that he should

have been allowed to present expert testimony regarding

identification, finding that "the judge did not abuse his

discretion in concluding that the jury would not be materially

assisted by the proposed expert testimony."

at *2 (quoting

Commonwealth v. Ashley,

(Mass. 1998)). Cosenza

did not appeal the denial of his motion to suppress Horgan's

identification. See id. at *1.

Cosenza petitioned for federal habeas relief in 2007 on

the ground that the trial judge erred in excluding Cosenza's expert

testimony related to eyewitness identification. Cosenza v.

Marshall,

(D. Mass. 2007). Cosenza did not

argue that the identification procedures were themselves

unconstitutional. See

. The district court denied

Cosenza's petition, finding that the trial court did not abuse its

discretion by excluding Cosenza's expert testimony and instead

relying on a jury instruction to educate the jury about the factors

- 10 - that could influence the reliability of an eyewitness

identification.

. The district court then denied

Cosenza's motion for a certificate of appealability, finding that

Cosenza failed to show "reasonable jurists would find the district

court's assessment of the constitutional claim debatable or

wrong." Cosenza v. Marshall, No. 7-CV-10316,

, at

*1 (D. Mass. Nov. 29, 2007) (quoting Slack v. McDaniel,

(2000)). Cosenza did not appeal from this denial.

In 2015, Cosenza moved for a new trial in Massachusetts

Superior Court, based on developments since 2002 in Massachusetts

law related to eyewitness identifications. The trial court granted

Cosenza's motion in light of subsequently decided cases on the

grounds that he had not been permitted to present expert testimony

on the issue of identification at his first trial.

Cosenza filed a new motion to suppress Horgan's

identification based on developments in the law in the years since

2002. At a hearing on his motion to suppress, Cosenza presented

the expert testimony of Dr. Nancy Franklin. Dr. Franklin testified

that Det. Hazelhurst had administered the photo array in a manner

that reduced the reliability of Horgan's identification for the

following reasons:

1) he failed to tell the witness that the suspect may or may

not be present in the array;

- 11 - 2) he allowed another civilian to be present in the room with

Horgan while she viewed the array;

3) his statement that "we need a positive identification to

go further," among other statements, was highly suggestive;

4) confirmatory post-identification feedback can increase the

witness's confidence in the identification; and

5) more than 30 hours elapsed between the crime and

administration of the array.

A judge of the Superior Court granted Cosenza's motion,

reasoning that Horgan had a limited opportunity to view her

assailant and that the photo array and accompanying procedures

were unduly suggestive under the standards established in

Commonwealth v. Gomes,

(Mass. 2015) (which differed

from the standards established in Commonwealth v. Santoli,

(Mass. 1997), the prevailing standard in 2002)

such that Horgan's identification as a whole violated Cosenza's

right to due process under Article 12 of the Massachusetts

Declaration of Rights. See id. at 911-16 (laying out five

generally accepted principles regarding eyewitness identification

to be included in a model jury instruction concerning eyewitness

identification).

C.

In 2018, Cosenza then brought this federal action

pursuant to

against Dets. Hazelhurst and Doherty

- 12 - and the City of Worcester.6 As to the City of Worcester, Cosenza

alleged that the City's lack of policies and failure to train its

officers in matters related to photo array administration,

evidence disclosure, and the fabrication of evidence made it liable

for the detectives' alleged misconduct. Cosenza alleged that Dets.

Hazelhurst and Doherty violated Cosenza's U.S. constitutional

right to due process, alleging that they: administered an unduly

suggestive photo array and "fabricated" the contents of Horgan's

post-identification statement by feeding her information about

Cosenza; "fabricat[ed]" testimony that Cosenza fled from them on

a bicycle; and "fabricat[ed]" testimony about searching Horgan's

apartment for shorts on August 16, 2000. Cosenza also alleged the

detectives withheld or destroyed exculpatory evidence related to:

Cosenza's flight, in that they did not disclose that the man on

the bicycle was 200 yards away, not 20 feet; Horgan's statement,

in that they failed to disclose the fact that they bolstered

Horgan's identification; and the August 16 search of Horgan's

apartment, in that they did not disclose that no search for shorts

6 Cosenza also asserted claims against the non-detective officers who assisted in investigating Horgan's assault, but did not pursue those claims at summary judgment, and summary judgment was granted as to those defendants. See Cosenza,

, at *1 n.1. Cosenza does not appeal that ruling.

- 13 - or pants had been conducted. Cosenza also asserted claims for

malicious prosecution and civil conspiracy.7

Cosenza deposed Lieutenant John Towns, who testified for

the City of Worcester pursuant to Fed. R. Civ. P. 30(b)(6) and was

hired by the Worcester Police Department in 1994. Lt. Towns

testified that Worcester's police officers received training at

the municipal police academy, where at least some trainers taught

classes on photo arrays. At the time of Cosenza's arrest, the

Worcester Police Department kept a written policy manual roughly

900 pages long.8 Worcester had no written policies of its own

specifically related to the administration of photo arrays.

Worcester relied on "preferred practices." These preferred

practices included: ensuring that witnesses viewed photo arrays

alone, or at least separated from any other person relevant to the

investigation; endeavoring not to make any suggestive statements

prior to administering identification procedures; and selecting

photographs of others for photo arrays that generally looked like

the suspect. Relevant law was communicated to the Worcester Police

7 Cosenza also alleged that the defendant officers were liable for failing to intervene to prevent the violations of Cosenza's constitutional rights. The district court found that, on the pleadings, the defendant officers were entitled to qualified immunity on this claim. See Cosenza v. City of Worcester,

(D. Mass. 2019). Cosenza does not appeal this ruling. 8 A copy of the manual, as it existed at the time of Cosenza's 2002 trial, could not be retrieved.

- 14 - Department via "case updates" prepared by the Worcester District

Attorney's Office. Lt. Towns could not recall a case update from

the period in which Cosenza was arrested related to photo array

identifications. As to the disclosure of exculpatory evidence,

Lt. Towns testified that it was Worcester's preferred practice for

officers to provide prosecutors with all of the information that

the police had about a case.

Lt. Towns also testified that, as of 2002, Worcester did

not have any preferred practices recommending that detectives:

obtain a confidence statement from witnesses after administering

a photo array; refrain from making statements following an array

that tended to reinforce a witness's identification; pre- or

re-interview witnesses before conducting a photo array; or only

conduct photo arrays after obtaining a particular quantum of

suspicion of the suspect's involvement.

The district court granted summary judgment to the City

on all claims against it,9 reasoning that Cosenza failed to

9 The district court found that the detectives were entitled to qualified immunity on the claim that Horgan's identification was unduly suggestive, reasoning that "it was not clearly established at the time of the alleged violation that the identification procedure was unconstitutional." Cosenza,

, at *1. The district court found that the detectives were also entitled to qualified immunity on the malicious prosecution claim, because it was "at least arguable" that the detectives had probable cause to arrest Cosenza. Id. at *13. The district court allowed Cosenza's claims that the detectives suppressed evidence, fabricated evidence, and engaged in a civil conspiracy to proceed to trial. Id. at *1.

- 15 - demonstrate either "a pattern of unconstitutional violations" or

that it was "so obvious" that failing to train detectives to

conduct photo arrays would lead to a constitutional violation such

that Worcester was deliberately indifferent to Cosenza's

constitutional rights. Cosenza,

, at *8-9.

As to Cosenza's allegations that the City was liable for

the officers' fabrication and suppression of evidence, the

district court found that there was "no evidence that the City had

an express policy that caused its officers to fabricate or suppress

evidence; nor is there evidence that the City's failure to train

its officers caused those alleged violations."10

at *7 n.7.

The only matter before us is Cosenza's appeal as to the

City of Worcester.

II.

We review a grant of summary judgment de novo. Fagre v.

Parks,

(1st Cir. 2021). We construe the facts in

the light most favorable to the nonmoving party -- here,

10 A jury returned a verdict for Cosenza on his claims that Det. Hazelhurst suppressed and fabricated evidence and that Dets. Hazelhurst and Doherty conspired to do so. The jury returned a verdict for Det. Doherty on Cosenza's claim that he suppressed and fabricated evidence. Dets. Hazelhurst and Doherty appealed the verdicts against them, and Cosenza cross-appealed the district court's grants of summary judgment. Dets. Hazelhurst and Doherty then voluntarily dismissed their appeals, and Cosenza dismissed the detectives from his appeal. Dets. Hazelhurst and Doherty assigned to Cosenza their claims against Worcester for indemnification of the verdict.

- 16 - Cosenza -- and draw all reasonable inferences in his favor.

We are not bound by the district court's reasoning and may affirm

on any ground supported by the record. Minturn v. Monrad,

(1st Cir. 2023).

A municipality may be liable under § 1983 "if the

governmental body itself 'subjects' a person to a deprivation of

rights or 'causes' a person 'to be subjected' to such deprivation."

Connick v. Thompson,

(2011) (quoting Monell v.

N.Y.C. Dep't of Soc. Servs.,

(1978)).

"Municipalities 'are responsible only for their own

unconstitutional acts,' and 'are not vicariously liable . . . for

the actions of their non-policymaking employees.'" Bannon v.

Godin,

(1st Cir. 2024) (omission in original)

(quoting Haley v. City of Bos.,

(1st Cir. 2011)).

Instead, a plaintiff "must prove that 'action pursuant to official

municipal policy' caused their injury." Connick,

(quoting Monell,

). Such policies "include[] the

decisions of a government's lawmakers, the acts of its policymaking

officials, and practices so persistent and widespread as to

practically have the force of law."

"Triggering municipal liability on a claim of failure to

train requires a showing that municipal decisionmakers either knew

or should have known that training was inadequate but nonetheless

exhibited deliberate indifference to the unconstitutional effects

- 17 - of those inadequacies." Haley,

. "The deliberate

indifference standard is 'stringent' and 'requir[es] proof that a

municipal actor disregarded a known or obvious consequence of his

action.'" Bannon,

(alteration in original) (quoting

Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown,

(1997)).

Typically, "[a] pattern of similar constitutional

violations by untrained employees" is necessary to demonstrate

deliberate indifference. Connick,

. It is clear

there is no evidence of any such pattern, and Cosenza does not

meaningfully pursue such a theory.

Instead, Cosenza attempts to fit within a different

theory -- that a municipality may be liable after a single incident

where "the need for more or different training is so obvious, and

the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can

reasonably be said to have been deliberately indifferent to the

need." City of Canton v. Harris,

(1989).

We assume, without deciding, that Dets. Hazelhurst and

Doherty committed the underlying constitutional violations for

which Cosenza claims Worcester is responsible.11 See Bannon, 99

11 The underlying constitutional violations have been adjudicated both for and against Cosenza at various stages in this litigation, up to and including trial. The parties dispute whether we may consider jury verdicts rendered almost two years after the

- 18 - F.4th at 88 ("[M]unicipal liability is viable only where a

plaintiff establishes the existence of 'underlying, identifiable

constitutional violations . . . .'" (quoting Lachance v. Town of

Charlton,

(1st Cir. 2021))).

Cosenza's contention that Worcester maintained an

affirmative policy not to train its officers to properly administer

photo arrays is flatly contradicted by the record. Cosenza points

to absolutely no evidence that Worcester maintained a written

policy to that effect, that there was an informal practice of not

training officers "so persistent and widespread as to practically

have the force of law," Connick,

, or even to any

evidence that there was no training in photo arrays. On the

contrary, the genuinely undisputed evidence of record demonstrates

that Worcester police officers were trained at an academy under

the umbrella of a statewide agency called the Municipal Police

Training Committee, which offered at least some classes on how to

conduct identification procedures.12 Memoranda detailing changes

summary judgment order Cosenza now appeals in adjudicating Cosenza's claims against the City. Because we can resolve Cosenza's appeal without deciding which of the violations Cosenza alleges are meritorious, we decline to do so. 12 At oral argument the attorney for Worcester represented to the court that the Commonwealth of Massachusetts determines what is taught at police academies. Cosenza did not depose anyone authorized by the Commonwealth or the Municipal Police Training Committee to testify on their behalf about training materials or practices before 2002.

- 19 - in the law were circulated to Worcester officers as necessary.

On-the-job training occurred in the form of preferred practices,

which included, at least for some officers, preferred practices on

how to conduct photo arrays. Worcester's officers could also seek

out supplemental training if they so wished.

Cosenza fails on another point. That judicial opinions

established the U.S. Constitution required certain practices as of

the time he was granted a new trial, thirteen years after his

original trial, does not establish that those practices were

required as of 2002. The Massachusetts Superior Court found that

Horgan's identification was constitutionally permissible under the

prevailing standards in 2002, the Massachusetts Appeals Court

affirmed the Superior Court's denial of Cosenza's motion to present

expert testimony on the unreliability of eyewitness

identifications in 2006, and the Supreme Judicial Court declined

to hear Cosenza's appeal. See Cosenza,

, at *1-2;

Commonwealth v. Cosenza,

, 1211 (Mass. 2006)

(unpublished table decision) (denying discretionary review).

Through expert witnesses, Cosenza points to model

national standards published by the International Association of

Chiefs of Police in 1992 and to the U.S. Department of Justice's

1999 publication "Eyewitness Evidence: A Guide for Law

Enforcement" as evidence that Worcester knew or should have known

of the need for additional training on the administration of photo

- 20 - arrays.13 Cosenza argues that, in light of these contemporaneous

publications, the possibility that untrained officers would

violate the Constitution was so obvious that Worcester's failure

to adopt the recommendations Cosenza relies upon amounts to

deliberate indifference.

This argument is foreclosed by federal and state law.

In Walker, a state prisoner sought habeas relief from his 2005

conviction on the grounds that his trial counsel was ineffective

in failing to file a pre-trial motion to suppress a witness's

identification of Walker in a photo array.

. Like

Cosenza, Walker contended that the identification procedure used

was "constitutionally problematic because law enforcement did not

inform [the witness] that the suspect's picture might not be

included in the array, did not employ a 'double-blind'

identification process, did not record [the witness'] selection

13 As related by Cosenza's expert, Dennis Waller, these publications recommended that officers conducting a photo identification: avoid "suggestive statements"; "preserve[]" the photo array; "[a]dvise witness[es] . . . [t]he suspect may or may not be among the photos presented"; "[a]ssure the witness that regardless of whether an ID is made, police will continue to investigate the incident"; and "review all documentation available and conduct an interview with the victim" before administering a photo array. Waller warns that failure to adhere to these recommendations "may [] cause misidentifications by suggestive words or conduct." Cosenza notes that there is evidence Det. Hazelhurst failed to comply with these best practices and that Worcester's formal and informal policies failed to instruct officers to comply with some or all of the practices.

- 21 - from the array, and did not use a sequential-photographic array."

.

We held that "Walker fail[ed] to identify any United

States Supreme Court precedent that clearly establishes that,

under the federal Constitution, the procedures he identified as

being required must be employed."

. Like Cosenza,14

Walker relied on "a 1999 report on eye-witness evidence that the

United States Department of Justice issued."

But that report

"did not purport to hold that these procedures were required as a

matter of federal constitutional law."

Rather, it set forth

a variety of recommended practices aimed at improving the

reliability of eyewitness identifications. But "showing merely

that additional training would have been helpful" is not enough to

establish municipal liability. Connick,

.

The 1999 DOJ report (and other, similar reports and

recommendations issued at that time and relied upon by Cosenza)

cannot be said to have put Worcester on "actual or constructive

notice that a particular omission in their training program [would]

cause[] city employees to violate citizens' constitutional

14 Cosenza's reliance on Haley,

, is misplaced. Unlike Cosenza, the plaintiff in Haley plausibly alleged, on a motion to dismiss, both that the Boston Police Department failed to train its employees in their evidence disclosure obligations and that the Boston Police had a policy of withholding evidence from criminal defendants.

. Cosenza, at summary judgment, has identified no record evidence of a comparable policy from Worcester.

- 22 - rights."

. Many of the procedures Cosenza now argues

were constitutionally required in 2002 were not required under the

Massachusetts Constitution until 2009, see Silva-Santiago,

, and the SJC did not adopt a position consistent

with the 1999 DOJ report on which Cosenza relies until 2015, see

Gomes,

. The Massachusetts Constitution is

more protective of due process in this regard than the United

States Constitution, which to date incorporates fewer of the

precautions advocated for by experts in the field of eyewitness

identification than does the Massachusetts Constitution. See,

e.g., United States v. Arthur,

(1st Cir. 2014)

(noting that "emerging social science . . . gives pause to any

knee-jerk assumption that eyewitness identification testimony . .

. is necessarily reliable" but "does not mean . . . that such

testimony must perforce be excluded"); United States v. Coleman,

, 1021 (11th Cir. 2021) (lack of double-blind

administration and failure to obtain confidence statement did not

violate due process without "specific evidence of

suggestiveness").

Cosenza also argues that Worcester is liable on similar

theories for its officers' alleged fabrication and suppression of

evidence. We agree with the district court that Cosenza has not

identified any record evidence that Worcester "had an express

policy that caused its officers to fabricate or suppress evidence"

- 23 - or "fail[ed] to train its officers" in that regard. See Cosenza,

, at *7 n.7. On the contrary, it is undisputed

that it was the Worcester Police Department's preferred practice

to disclose to the District Attorney's Office all known information

about a case. Even if the officers had failed to comply with that

practice, that alone is not "sufficient to establish that they

were trained inadequately." Bannon,

(Montecalvo,

J., concurring in part).

On this record, no reasonable factfinder could find

deliberate indifference, making summary judgment for the City

appropriate.

The entry of summary judgment for the City of Worcester

is affirmed.

- 24 -