KEW v. TOWN OF NORTHFIELD VT (2023)

ORDER ON MOTIONS FOR SUMMARY JUDGMENT (Docs. 77, 78)

In August 2017, Northfield Police Officers Brian Hoar and Michael Gero responded to the residence of Plaintiff Debra Kew in response to a call that Ms. Kew may be suicidal. After knocking on the door to Ms. Kew's apartment, checking her windows, and unsuccessfully attempting to get into her apartment with an extra set of keys, the officers kicked in the door to Ms. Kew's apartment. Within 40 seconds of entering her apartment, the officers made physical contact with Ms. Kew, pushing her down to the ground and placing her hands behind her back. They placed her in handcuffs shortly thereafter. Ms. Kew remained in handcuffs for approximately 45 minutes until the officers, with the assistance of a mental health professional, determined she was not at risk of suicide or a danger to herself.

Based on these events, Ms. Kew brought claims against Officers Gero and Hoar and the Town of Northfield (“Northfield”), alleging claims under the Americans with Disabilities Act, 42 U.S.C. § 1983, the Vermont Constitution, and Vermont state law. (Doc. 57.) The officers and Northfield move for summary judgment on all of Ms. Kew's claims. (Docs. 77, 78.) Because disputed issues of fact remain, the court grants the motions in part and denies them in part.

Factual Background 1

Ms. Kew, a military veteran, was a resident of Northfield, Vermont at the times relevant to this case. (Doc. 77-6 at 14–15.) She served in the Navy for three years after high school and was medically discharged when she was 21 years old. (Id. at 20.) She asserts that she has been diagnosed with mixed personality disorder, depression, anxiety, and post-traumatic stress disorder (PTSD). She has had these conditions since her discharge from the Navy in 1984. (Doc. 77-7 at 4.) In addition, Ms. Kew was, for a period of time, addicted to Dilaudid, a narcotic pain medication. (Id.) She also stated that she was a “cutter” and would sometimes cut herself with razor blades. (Id. at 20, 38.)

Ms. Kew has required the use of a wheelchair at various times. She was in a wheelchair when she was discharged from the military due to a leg injury. (Doc. 77-6 at 25; Doc. 77-7 at 36.) She was also a wheelchair user in August 2017 at the time of the welfare check because of a leg fusion procedure; she had been using a wheelchair for five years at that time. (Doc. 77-7 at 19–20, 27.) Ms. Kew explained that she could walk short distances, but otherwise needed her wheelchair. (Id. at 27–28.) She receives Medicare, Medicaid, and Social Security disability benefits. (Doc. 77-6 at 19.)

The Northfield Police Department has a history of conducting welfare checks on Ms. Kew over the course of many years. Between 2000 and 2017, officers from the Northfield Police Department have conducted approximately 20 welfare checks on Ms. Kew, most involving a reported threat that Ms. Kew intended to die by suicide. (Doc. 90-2 ¶ 198.) Moreover, both Officer Hoar and Officer Gero were familiar with Ms. Kew and had interacted with her on numerous occasions in the past, both personally and professionally. (See Doc. 90-9 at 28–29 (Officer Hoar); Doc. 90-10 at 5 (Officer Gero).)

I. Ms. Kew's August 22, 2017 Medical Appointment

On the morning of August 22, 2017, the date of the welfare check at issue here, Ms. Kew went to the Veterans Affairs White River Junction Medical Center (“the VA”) for a brief check-in after receiving one week of Suboxone treatment. (Doc. 77-7 at 20; Doc. 77-15 at 10–11.) She tested positive for cannabis and amphetamine.² (Doc. 77-7 at 22; Doc. 77-15 at 7.) The clinical psychiatrist, Dr. Scott Rebhun, reported that Ms. Kew was “extremely anxious and cannot stay still” and that she described a significant amount of stress, inability to sleep well and that, during the appointment, “she makes intermittent eye contact and is continually squirming and rocking.” (Doc. 77-15 at 2.) Later that day, Nurse Mary Jones added a note that Ms. Kew “looked out of it ․ was rambling in her speech and seemed like she was under the influence.” (Id. at 10.) Dr. Rebhun then reported that Ms. Kew “adamantly denies amphetamine use” and that she “stormed off saying she would not be back next week or this week and would ‘be better off dead’ but did not express intent to harm herself.” (Id. at 11.) Dr. Rebhun spoke with Dr. Schwartz, one of the Suboxone providers, and they “agreed a safety check [was] not warranted.” (Id. at 8.) Dr. Rebhun left a message for Ms. Kew asking her to call him back and reminding her of the 24-hour crisis hotline. (Id.)

After returning home, Ms. Kew called the VA crisis line. (Doc. 77-7 at 26; Doc. 77-11 ¶ 11.) In her First Amended Complaint, Ms. Kew states that the “VA crisis responders perceived this as a possible threat to harm herself by overdosing on her medications.” (Doc. 57 ¶ 32.) That is because she “had threatened on multiple prior occasions to VA hospital workers or crisis responders that she would overdose on her medications, including most recently on or about June 19, 2017.” (Id. ¶ 33.)

At approximately 5:40 p.m., Sergeant Brian Hoar and Corporal Michael Gero received a call to conduct a welfare check on Ms. Kew because “she had made a threat of suicide by medication overdose to the Veterans’ Administration” and she “had a history of using bladed instruments to self harm and threats of suicide.” (Doc. 77-97 at 4; Doc. 90-9 at 51.) Once on the scene, Officer Hoar assumed the lead role and explained to Officer Gero that they were there because Ms. Kew had “called the VA hotline, said she wanted to go forty-two via pills.”³ (Gero Video 1 at 1:25–1:32;⁴ Doc. 90-11 at 4.) Both officers were in their police uniforms. (See, e.g., Gero Video 1.)

II. The August 22, 2017 Welfare Check

Officers Gero and Hoar first checked the rear of Ms. Kew's apartment building and the front window before entering the building through the front door. (Hoar Video 1 at 0:01–1:10; Gero Video 1 at 1:09–2:39.) Officer Gero knocked on Ms. Kew's door and announced “police” repeatedly over the course of a few minutes, but Ms. Kew did not answer. (Gero Video 1 at 3:02–4:00.) Officer Hoar then attempted to look up the combination for the lockbox just outside the door to Ms. Kew's apartment where there was a spare set of keys. (Gero Video 1 at 5:00–5:07.) Officer Gero continued to knock and announce his presence with no response over the course of at least four more minutes. (Id. at 5:24–9:31.) Ms. Kew's next-door neighbor then opened her door and spoke with the officers. The neighbor suggested they speak to another neighbor in a different apartment. (Id. at 9:34–10:26.) The officers talked in the hallway, and eventually exited the building and returned to the parking lot. (Id. at 10:28–11:44.) While the officers were outside, an ambulance crew arrived. (Gero Video 2 at 0:08–0:16.) Shortly after the ambulance arrived, the officers reentered Ms. Kew's apartment building through the front door while the ambulance crew waited outside. (Id. at 0:32–0:40.)

Back at Ms. Kew's front door, Officer Hoar and Officer Gero both tried unsuccessfully to unlock Ms. Kew's door with a key provided by the ambulance crew. (Id. at 0:48–1:40.) The officers then knocked again and discussed calling the fire department to pry open the door. (Id. at 2:15–2:22.) Officer Hoar again unsuccessfully tried to open the door with the keys and said, “Actions have consequences, right?” (Id. at 2:44–2:59.) Officer Hoar then stated, “Debra, we're going to kick the door in if you don't open it” and knocked again. (Id. at 3:03–3:19.) When Ms. Kew again did not answer, Officer Hoar kicked Ms. Kew's door three times in succession, breaking open the door to her apartment on the third kick. (Id. at 3:19–3:23.)

As the door opened, Ms. Kew exclaimed, “What the fuck?” (Id. at 3:22–3:25.) Officer Hoar entered and said, “Hello.” (Id. at 3:25.) When the officers walked inside, the apartment was dark because all the lights were turned off. (Id. at 3:24–3:26.) The officers turned on their flashlights and shined them toward Ms. Kew as she walked out of the door to her bedroom and entered the living room. (Id. at 3:25–3:26.) She was wearing shorts and a t-shirt. (Id. at 3:26.) As Officer Gero shined his light near Ms. Kew's face, she appeared to raise her arm to shield her eyes from the direct light. (Id. at 3:28–3:31.)

Ms. Kew was visibly upset and swearing at the officers; she said, “Did you break my fucking door down?” (Id. at 3:28–3:29.) Ms. Kew then began walking toward Officer Hoar gesturing for him to leave the apartment and telling him, “Get the fuck out of here.” (Id. at 3:31–3:34.) Officer Hoar took three steps toward Ms. Kew and directed her to sit down in a chair, which Ms. Kew refused. (Id. at 3:34–3:36.) Ms. Kew again pointed at the door, this time closer to Officer Hoar's person since he had moved closer to Ms. Kew, and again directed him to “Get the fuck out of here.” (Id. at 3:38–3:41.)

In response, Officer Hoar took another step closer to Ms. Kew and reached toward Ms. Kew's left arm that she had pointed toward the door, prompting Ms. Kew to state, “Don't even touch me.” (Id. at 3:39–3:42.) Officer Hoar then said, “Just come sit down so we can see if you're okay.” (Id. at 3:42–3:44.) Ms. Kew responded, while appearing to gesture again toward the door, that she wanted to check on the door to her apartment. (Id. at 3:44–3:48.) Officer Hoar responded, “We can take care of that,” but Ms. Kew retorted, “Excuse me, I will take care of my own door.” (Id. at 3:48–3:53.) At that point, Officer Hoar said, “Let's go” and Ms. Kew pointed toward the door and responded, “Get away from me.” (Id. at 3:53–3:56.) Officer Hoar then moved toward Ms. Kew and took hold of her left arm. (Id. at 3:56–3:58.) At that point, Ms. Kew used her right arm to brace herself against the wall, prompting Officer Gero to intervene and move Ms. Kew's right arm behind her back. (Id. at 3:58–5:10.)

Over Ms. Kew's protests to let go, the officers took hold of Ms. Kew and pushed her to the ground with her arm behind her back. (See, e.g., id. at 4:45.) Officer Gero asked, “Are you going to sit in your chair? Get up,” and he then directed her, “Sit in your chair” and “Go that way” to which Ms. Kew said, “No.” (Id. at 5:10–5:18.) Officer Gero explained, “If you don't, I'm going to put you in a pair of handcuffs until you calm down.” (Id. at 5:20–5:23.) Ms. Kew continued to complain about her door, and then Officer Gero stated, “Don't punch me.” (Id. at 5:24–5:26.) As Ms. Kew started to move around on the floor, Officer Gero directed Officer Hoar to grab Ms. Kew's other arm, and Officer Hoar then placed Ms. Kew in handcuffs. (Id. at 5:27–6:05.) During this exchange, Officer Gero asked, “Why didn't you answer the door?” to which Ms. Kew responded, “I was asleep in my fucking bed!” (Id. at 5:58–6:04.)

Officer Hoar attempted to talk to Ms. Kew, telling her they had been knocking. (Id. at 7:00–7:10.) Ms. Kew responded, “You broke my fucking door, you assholes.” (Id. at 7:10–7:13.) Officer Hoar then asked Ms. Kew if she wanted to be evaluated by the ambulance crew, to which Ms. Kew responded, “No” and “No fucking ambulance is evaluating me. Take these fuckers off.” (Id. at 7:16–7:30.) Ms. Kew further stated, “I am not going anywhere, so take these fucking things off me” and “I am not going to the hospital.” (Id. at 7:34–7:49.) Officer Hoar left the room to speak with the ambulance crew, and Officer Gero instructed Ms. Kew, “Calm down.” (Id. at 7:38–7:41, 7:51–7:52.)

Ms. Kew, still on the floor, attempted to scoot toward her bedroom multiple times, stating that she wanted to check on her dog in her bedroom. (Id. at 7:55–9:05.) As Ms. Kew scooted away from Officer Gero, he took hold of her upper arm and pulled her across the floor back to where she had been. (Id.) On two occasions, in addition to dragging her back, Officer Gero placed his arm across Ms. Kew's upper shoulders and neck and pushed her head and shoulders toward the ground, between her outstretched legs and told Ms. Kew, “Calm down.” (Id. at 8:04–8:44.) Ms. Kew screamed, “Get your fucking hands off me!” multiple times. (Id. at 8:22–8:48.)

Officer Hoar explained to Ms. Kew, “You said you were going to hurt yourself by taking extra pills, okay?” to which Ms. Kew responded, “No I did not fucking say that.” (Id. at 9:20–9:27.) Officer Hoar stated, “We're here to make sure you're okay” and Ms. Kew responded, “I am fine!” (Id. at 9:44–9:47.) Officer Hoar asked Ms. Kew, “Did you take any medication you weren't supposed to?” and she responded, “No, I did not.” (Id. at 9:54–9:57.)

Ms. Kew demanded multiple times that the officers take off the handcuffs, which they refused to do. They told her that they had been knocking; Ms. Kew responded that she had been asleep. (Id. at 10:10–10:37.) Ms. Kew also denied making any call threatening suicide and directed the officers to check her phone. (Id. at 10:37–10:56.) In addition, Ms. Kew demanded that the officers shut her door and stated that if the ambulance crew was going to check her, “[H]ave them get their asses in here and shut the fucking door.” (Id. at 10:56–11:07.)

As she remained on the floor of her living room, Officer Gero warned Ms. Kew, “You're just going to hurt your wrists pulling on the cuffs like that,” to which Ms. Kew responded, “I don't give a shit, you already [inaudible],” and Officer Gero said, “[inaudible] you don't care about your health right now, I can see that.” (Id. at 11:16–11:23.) Officer Hoar interjected, “The way you're acting right now makes me believe you are not of sound mental capacity right now.” Ms. Kew responded, “Oh bull fucking shit,” and Officer Hoar replied, “You don't normally act like this,” to which Officer Gero added, “I've never seen you act like this,” and Ms. Kew questioned, “How would you act if you tried having your arm broken by somebody?” (Id. at 11:25–11:41.)

Ms. Kew then spoke directly to Officer Gero: “You tried to tell me I scratched you. I don't even have nails. How can I scratch you?”⁵ (Id. at 11:46–11:53.) Officer Gero turned and spoke with the ambulance crew at the threshold to Ms. Kew's apartment and Officer Hoar asked Ms. Kew, “How else are we going to get you up to the hospital?” to which Ms. Kew responded, “I'm not going to the hospital.” (Id. at 11:53–12:17.) Officer Gero turned to Officer Hoar and reported that the ambulance crew had also never seen Ms. Kew act like this. (Id. at 12:26–12:35.) Ms. Kew then interjected, “No, I have not. Not when you break my fucking door down and put handcuffs on me. How the fuck do you think I'm supposed to act?” (Id. at 12:33–12:44.)

Officer Hoar explained to Ms. Kew that they placed her in handcuffs based on her history of cutting herself, her retreat toward her bedroom, and their objective to check on her safety. (Id. at 12:46–13:09.) Officer Hoar told Ms. Kew, “I can either have [the mental health professional] come down and meet you here, or you can go meet them up there,” and Ms. Kew replied, “I ain't going anywhere.” (Id. at 13:11–13:18.) Officer Hoar then asked, “Will you talk with them if they come down here to chat with you?” and Ms. Kew began audibly sobbing. (Id. at 13:18–3:26.) Officer Hoar took out his phone to call the mental health screener. (Id. at 13:27–13:32.) A moment later he can be heard talking with the mental health professional. (Id. at 13:42–14:09.)

Ms. Kew again stated, “I'm not going to the hospital. I have the right to refuse. There is nothing wrong with me.” (Id. at 13:37–13:44.) The officers explained to Ms. Kew that the situation could have been avoided if she had answered the door, and Ms. Kew again explained she was sleeping. (Id. at 14:25–14:36.) Officer Gero stated, “The impetus for this whole thing was that you called, you called saying you were going to commit bodily harm,” to which Ms. Kew retorted, “No, I did not.” (Id. at 14:38–14:47.) Officer Gero then challenged, “What did you say to them? What were your words exactly?” and Ms. Kew responded, “I told my psychiatrist that I was not coming back on Thursday because I'm sick and tired of them fucking with my meds.”⁶ (Id. at 14:48–15:03.)

The officers and Ms. Kew continued to exchange comments for a few more minutes. The officers asked Ms. Kew if she would allow the ambulance crew to take her blood pressure, but she refused until the officers took off her handcuffs, which they declined to do. (Id. at 17:50–18:01.) After approximately another minute elapsed, the officers told the ambulance crew that they could leave, and the ambulance crew departed. (Id. at 19:11–19:16, 20:02.) While they waited for the mental health screener, Officer Hoar asked Ms. Kew if she had taken any meds that made her sleepy and she responded that she had taken Lorazepam, which had made her fall asleep. (Id. at 21:05–21:15.)

Eventually, the mental health screener arrived at Ms. Kew's apartment. (Gero Video 3 at 8:00–8:05.) The mental health screener, Ms. Houston, and Officer Hoar spoke with Ms. Kew for approximately ten minutes, periodically asking her to move to a chair, cooperate, and calm down so the officers could remove the handcuffs. (Id. at 11:06–15:52.) Ms. Kew either declined to move or remained silent. Approximately ten minutes after engaging with Ms. Houston, Ms. Kew stated she would cooperate, and Officer Hoar removed her handcuffs. (Id. at 20:20–21:05.) At that point, approximately 46 minutes after the officers initially placed Ms. Kew in handcuffs, Officer Hoar removed the handcuffs. (See Gero Video 2 at 6:05–30:31; Gero Video 3 at 0:00–21:05.) Ms. Kew told Ms. Houston that the police officers had hurt her arm. (Gero Video 4 at 22:18–22:24.)

After some time, Ms. Kew opened her bedroom door, let her dog out, and sat on the floor of the living room playing with her dog. (Gero Video 5 at 7:45–12:25.) Once Ms. Houston was satisfied that Ms. Kew would not harm herself, she left the apartment with Officer Gero and Officer Hoar. (Id. at 19:30–19:47.)

Based on these events, Ms. Kew filed a complaint in Vermont Superior Court, which Defendants removed to federal court. (Doc. 1). She then filed her First Amended Complaint alleging claims of battery (Count I), assault (Count II), false imprisonment and deprivation of liberty (Count III), negligent infliction of emotional distress (Count IV), negligence (Count V), excessive force (Count VI), violations of the Americans with Disabilities Act, 42 U.S.C. § 12133 et seq. (Counts VII, VIII), and a Monell claim (Count IX). (Doc. 57.)

Northfield and Officers Gero and Hoar now both move for summary judgment. (Docs. 77, 78.) Ms. Kew opposes both motions (Docs. 90, 94) and both Northfield and the officers filed reply briefs (Docs. 102, 103). The court heard oral argument on this matter on September 15, 2022 and took the motions under advisement at that time.

Legal Standard

Summary judgment is appropriate when the record shows that there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is material when it might affect the outcome of the suit under governing law,” and “[a]n issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (emphasis added) (internal quotation marks omitted). A court reviewing a motion for summary judgment construes the record evidence and draws all reasonable inferences in the light most favorable to the non-moving party. Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per curiam).

Where, as here, there is a video depicting facts at issue, a court may rely on that evidence even if the video contradicts the facts asserted by one of the parties. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); MacLeod v. Town of Brattleboro, No. 10-cv-286, 2012 WL 5949787, at *7 (D. Vt. Nov. 28, 2012), aff'd, 548 F. App'x 6 (2d Cir. 2013) (summary order).

Analysis

Ms. Kew's First Amended Complaint alleges nine counts, some of which involve federal law and others of which involve state law. The court begins with the federal claims before turning to Ms. Kew's state-law claims.

I. Americans with Disability Acts Claims

Ms. Kew alleges that Officers Gero and Hoar violated her rights under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12133. She alleges both that the officers wrongfully arrested her because of her disabilities and that, once the officers had arrested her, they failed to reasonably accommodate her disabilities. (Doc. 57 ¶¶ 89–109.)

As a threshold issue, Ms. Kew's First Amended Complaint does not specify whether her claims are against Officers Gero and Hoar in their individual or official capacities. (See id.) The officers move for summary judgment, arguing that they cannot be held individually liable under the ADA. (Doc. 78-1 at 24.)

While the ADA provides a private cause of action for individuals suing for retrospective damages, an individual may only sue state officials under the ADA in their official capacities, not in their individual capacities. Garcia v. S. U.N. Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); Taylor v. Schaffer, No. 14-cv-123, 2015 WL 541058, at *6 (D. Vt. Feb. 10, 2015). When a plaintiff sues a state official in his official capacity for retrospective damages, the state is the real party in interest. See Garcia, 280 F.3d at 107; Fox v. State Univ. of N.Y., 497 F. Supp. 2d 446, 450–51 (E.D.N.Y. 2007). Therefore, the court grants the officers’ motion for summary judgment and construes this claim against Northfield.⁷

Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To establish a violation of the ADA, Ms. Kew must demonstrate that “(1) [s]he is a qualified individual with a disability; (2) the defendant is subject to [the ADA]; and (3) that [s]he was denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant because of [her] disability.” Disabled in Action v. Bd. of Elections, 752 F.3d 189, 196–97 (2d Cir. 2014) (quoting McElwee v. County of Orange, 700 F.3d 635, 640 (2d Cir. 2012)).

There is no dispute that Ms. Kew is a qualified individual with a disability. The ADA defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable modifications to rules, policies or practices ․ or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). Ms. Kew is diagnosed with borderline personality disorder, mixed personality disorder, depression, anxiety, and PTSD. (Doc. 77-7 at 4; Doc. 77-10 at 3.) According to Ms. Kew, she has had these diagnoses since she received a medical discharge from the military in 1984. (Doc. 77-7 at 4.) In addition, Ms. Kew has used a wheelchair since approximately 2013. (Doc. 77-10 at 7.) She uses a wheelchair because of a “leg fusion” and has used a wheelchair for five years. (Doc. 77-7 at 19–20, 27.) Ms. Kew has also received social security disability benefits since 1993. (Doc. 77-6 at 19; Doc. 77-10 at 7.) There is no genuine dispute that Ms. Kew has established the first requirement to state a claim under Title II of the ADA.⁸

Ms. Kew has satisfied the second requirement as well. “The only reasonable interpretation of Title II is that law enforcement officers who are acting in an investigative or custodial capacity are performing ‘services, programs, or activities’ within the scope of Title II.”⁹ Williams v. City of New York, 121 F. Supp. 3d 354, 368 (S.D.N.Y. 2015). While claims stemming from an arrest “fit oddly into the ADA framework,” Taylor, 2015 WL 541058, at *6, courts in the Second Circuit have held that interactions between law enforcement and disabled individuals qualify as services, benefits, or activities that are covered by the ADA. See, e.g., Durr v. Slator, 558 F. Supp. 3d 1, 32–33 (N.D.N.Y. 2021); Williams, 121 F. Supp. 3d at 365–66 (collecting cases); Reyes v. Town of Thomaston, No. 18-cv-831, 2020 WL 5849529, at *3–4 (D. Conn. Sept. 30, 2020); Sage v. City of Winooski, No. 16-cv-116, 2017 WL 1100882, at *3 (D. Vt. Mar. 22, 2017).

Courts have recognized two types of ADA claims stemming from an arrest:

• “[A] wrongful arrest claim, where police arrest a suspect based on his disability, not for any criminal activity”; and

• “[A] claim that alleges a failure to provide reasonable accommodations, where police properly arrest a suspect but fail to reasonably accommodate his disability during the investigation or arrest, causing him to suffer greater injury or indignity than other arrestees.”

Ryan v. Vt. State Police, 667 F. Supp. 2d 378, 387 (D. Vt. 2009) (collecting cases). Ms. Kew brings both types of claims. As a result, the court rejects Northfield's argument that the performance of a welfare check is not a provision of public benefits within the meaning of the ADA and finds that Ms. Kew has also satisfied this second requirement.

This leaves a dispute regarding the third required element—whether Ms. Kew “was denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant by reason of [her] disability.” Disabled in Action, 752 F.3d at 196–97. A private plaintiff suing a state for monetary damages must show that the violation was “intentional or willful,” meaning that the violation was “motivated by either discriminatory animus or ill will due to disability.” Garcia, 280 F.3d at 112; accord Felix v. City of New York, 344 F. Supp. 3d 644, 665 (S.D.N.Y. 2018). Where, as here, however, a private individual sues a non-state governmental entity, the less demanding “deliberate indifference” standard applies. Felix, 344 F. Supp. 3d at 665; see also Garcia, 280 F.3d at 115 (explaining that holding requiring discriminatory animus or ill will for ADA claims against states does not “affect[ ] the applicability of the deliberate indifference standard to Title II claims against non-state governmental entities”). Deliberate indifference means a “deliberate choice, rather than negligence or bureaucratic inaction” or that “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond.” Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 276 (2d Cir. 2009) (internal quotation marks omitted) (defining “deliberate indifference” in context of a claim under the Rehabilitation Act); see also Felix, 344 F. Supp. 3d at 665 (applying same “deliberate indifference” standard to a claim under the ADA).

The court analyzes this contested third element as to both of Ms. Kew's ADA claims.

A. Wrongful Arrest (Count VII)

Ms. Kew alleges that the officers knew of her mental, physical, and emotional conditions and knew her to be nonviolent. (Doc. 57 ¶¶ 92–95.) Ms. Kew argues that Sergeant Hoar and Corporal Gero arrested her “because they were frustrated and wanted her to calm down, not because she posed a threat or had committed a crime.” (Id. ¶ 97.) Had the officers been concerned she might have a bladed instrument, she claims the officers would have “patted down Ms. Kew or otherwise checked her for weapons during the August 22, 2017 incident.” (Id. ¶ 96.)

At the outset, there is little doubt that Ms. Kew was arrested. Officer Hoar testified that “[w]e were not arresting her.” (Doc. 90-9 at 105.) But “the term ‘arrest’ is not limited to use in criminal law” and includes custodial detention for the protection of individuals in need of medical treatment. Disability Advocs., Inc. v. McMahon, 279 F. Supp. 2d 158, 164, 168–69 (N.D.N.Y. 2003), aff'd 124 F. App'x 674 (2d Cir. 2005) (summary order). “An arrest requires either physical force ․ or, where that is absent, submission to the assertion of authority.” California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). For an arrest by physical force, “the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee” constitutes an arrest. Id. at 624, 111 S.Ct. 1547; accord Torres v. Madrid, ––– U.S. ––––, 141 S. Ct. 989, 1003, 209 L.Ed.2d 190 (2021).

Here, the officers’ actions constituted an arrest of Ms. Kew. Both officers applied physical force to restrain Ms. Kew and Officer Hoar then placed her in handcuffs. (Gero Video 2 at 3:56–5:23; Doc. 90-9 at 105.) And the body camera footage makes clear that Ms. Kew had submitted to the officers’ authority. Therefore, this was an “arrest.” The operative question is whether it was a wrongful arrest.

“In the context of an encounter with law enforcement, courts have recognized ADA claims ‘where police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity[.]’ ” Brunette v. City of Burlington, No. 15-cv-00061, 2018 WL 4146598, at *32 (D. Vt. Aug. 30, 2018) (alteration in original) (quoting Sheehan v. City & County of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev'd in part, cert. dismissed in part, Sheehan, 575 U.S. 600, 135 S.Ct. 1765 (2015)). A wrongful-arrest ADA claim arises where, for example, a police officer mistakes a stroke survivor's slurred speech for intoxication and arrests the individual for driving under the influence. See Buchanan ex rel. Est. of Buchanan v. Maine, 417 F. Supp. 2d 45, 72 (D. Me. 2006). Likewise, where an officer arrests a deaf individual for resisting arrest, interpreting the deaf individual's inability to hear verbal orders for non-compliance, the individual may have been wrongly arrested under the ADA. See Lewis v. Truitt, 960 F. Supp. 175, 178–79 (S.D. Ind. 1997).

Here, the officers did not arrest Ms. Kew because they misperceived any effect of her disabilities as criminal activity. As Officer Hoar explained, he did not think he had any grounds to arrest Ms. Kew. (Doc. 90-9 at 105.) Officer Gero testified that her case “is a non-criminal case.” (Doc. 90-10 at 6.) He further confirmed that they did not detain her for a crime. (Doc. 90-11 at 10.) This is consistent with Ms. Kew's assertion that the officers did not think she had committed any crime. (Doc. 57 ¶ 97.)

Moreover, Officer Hoar testified that Ms. Kew posed a risk of harm to herself. (Doc. 90-9 at 105.) In Vermont, an officer may place a person in custody on this basis under certain circumstances. See 18 V.S.A. § 7505(a), (b). Ms. Kew argues that there is a genuine dispute about whether the officers had probable cause to believe that she posed a risk of harm to herself. (Doc. 94 at 2–3.) But whether or not the officers had probable cause to arrest Ms. Kew under 18 V.S.A. § 7505 is irrelevant to Ms. Kew's ADA wrongful-arrest claim because an arrest under that statute is not for criminal activity. As the officers’ undisputed testimony makes clear, the officers did not arrest her because they misperceived any effect of Ms. Kew's disabilities as criminal activity. That is the only basis for an ADA wrongful-arrest claim. Ryan, 667 F. Supp. 2d at 387; Brunette, 2018 WL 4146598, at *32. Therefore, the court grants Northfield's motion for summary judgment as to Ms. Kew's wrongful-arrest claim under the ADA in Count VII.

B. Reasonable Accommodations (Count VIII)

Moving to the next type of ADA claim in the context of an arrest, Ms. Kew also alleges that Officers Gero and Hoar failed to accommodate her disabilities in the initial encounter. (Doc. 57 ¶¶ 103–109.) She alleges that Officers Gero and Hoar could have employed de-escalation techniques to defuse the encounter, as stated in one of the Northfield Police Department's internal policies. (Id. ¶¶ 104–105.) In addition, she alleges that the officers could have accommodated her disabilities by removing the handcuffs once she was safely secured on the floor of her living room but that they did not do so even as she continued to struggle against the handcuffs. (Id. ¶ 106–107.) Finally, Ms. Kew alleges that the officers could have allowed her to sit in a chair rather than on the floor. (Id. ¶ 108.)

“Title II of the ADA requires police officers to provide reasonable accommodations to arrestees ․” Durr, 558 F. Supp. 3d at 32; accord Ryan, 667 F. Supp. 2d at 389. This may include, for example, “delaying, where safety concerns permit, approaching individuals in the middle of mental health crises.” Felix, 344 F. Supp. 3d at 665–66. Still, a court analyzing such a claim must consider “whether the officers’ accommodations were reasonable under the circumstances.” Williams, 121 F. Supp. 3d at 368.

Northfield does not argue that Officers Gero and Hoar accommodated Ms. Kew's disabilities. Rather, they argue that exigent circumstances meant they had no obligation to provide reasonable accommodations during the encounter and that Ms. Kew did not request any accommodations during the interaction. (Doc. 77-1 at 10–12.) In addition, Northfield argues that Ms. Kew's proposed accommodations, such as retreating from her home or using de-escalation techniques prior to placing her in handcuffs would have been unreasonable. (Id. at 11.) Northfield argues, instead, that the officers did engage in verbal de-escalation techniques once Ms. Kew was in handcuffs. (Id.) Finally, Northfield argues it had no obligation to provide reasonable accommodations because Ms. Kew did not ask for them and the officers were not aware she needed them. (Id. at 11–13.)

The court turns first to Northfield's exigent circumstances argument before addressing its argument that Ms. Kew's claim fails because she did not request any accommodations.

1. Exigent Circumstances

The Second Circuit Court of Appeals has not explicitly adopted an exigent-circumstances exception to an ADA reasonable-accommodations claim. Instead, courts in the Second Circuit consider “whether the officers’ accommodations were reasonable under the circumstances.” Williams, 121 F. Supp. 3d at 368; accord Waller ex rel. Est. of Hunt v. City of Danville, 556 F.3d 171, 175 (4th Cir. 2009) (“Accommodations that might be expected when time is of no matter become unreasonable to expect when time is of the essence.”). Exigent circumstances that “may excuse law enforcement officers from providing accommodations fit[ ] within” this reasonableness standard.¹⁰ Williams, 121 F. Supp. 3d at 368; accord Durr, 558 F. Supp. 3d at 32.

To determine whether exigent circumstances excuse an officer from providing reasonable accommodations, courts consider “whether the police had (1) secured the scene and (2) ensured there was no threat to human life.” Taylor, 2015 WL 541058, at *7 (citing Hainze v. Richards, 207 F.3d 795, 802 (5th Cir. 2000)). Courts likewise consider whether “the situation had been defused sufficiently” at the time the offending conduct occurred. Id. (citing Sheehan, 743 F.3d at 1233). “This is because ‘where the incident presents an immediate danger because the individual is armed and charging at police’ ” or law enforcement has “ ‘no information regarding the potential danger to others who may be present where a call has been made because of a tense situation ․ then no reasonable accommodation of a disability may be required or possible.’ ” Id. (alterations in original) (quoting Wingard v. Pa. State Police, No. Civ. A. 12 1500, 2013 WL 3551109, at *6 (W.D. Pa. July 11, 2013)).

For example, this court rejected the exigent-circumstances component of the defendants’ motion to dismiss where a plaintiff who suffered from a seizure disorder and other mental disorders expressed suicidal ideations to his neurologist, the neurologist contacted the Vermont State Police, the police made contact with the plaintiff's partner who assured them he had no guns and needed to be left alone, but the police later returned to the property, approached the plaintiff in the woods with a rifle, ordered him to lay on the ground, and eventually shot the plaintiff with a taser. Taylor, 2015 WL 541058, at *1–2. The court reasoned that the trooper knew of the plaintiff's disability, could have accommodated the plaintiff by leaving him alone, the scene was secure, there was no threat of danger because the plaintiff did not have a weapon, and, therefore, there were no exigent circumstances. Id. at *8. Critically for purposes of Ms. Kew's case, the Taylor court concluded that the only alleged facts supporting a finding of exigent circumstances arose after the police arrived at the scene. Id.

Similarly, the court in Brunette rejected the exigent-circumstances component of the defendants’ motion for summary judgment where Mr. Brunette's mother called the police after observing him cutting down a tree in the front yard with a reciprocating saw, Mr. Brunette had a history of mental illness, including paranoid schizophrenia and delusional disorder, and the police confirmed that Mr. Brunette was not on any medications at the time. Brunette, 2018 WL 4146598, at *2–3. The officers asked Mr. Brunette to come downstairs to speak with them, and he eventually did, appearing in the garage holding a shovel, before he advanced toward one of the officers with the shovel, which the officer interpreted as threatening. Id. at *3–4. One officer drew his gun and ordered Mr. Brunette to drop the shovel and other officer retreated toward the street and also drew his weapon and ordered Mr. Brunette to stop. Id. at *4. When he did not stop, the assisting officer eventually fired four shots, killing Mr. Brunette. Id. at *4–5. In rejecting the officers’ exigent circumstances argument, the court reasoned that the scene was calm when the officers arrived, they had time to assess the scene and possibly employ the accommodations that Mr. Brunette had identified, and that there was genuine dispute whether the plaintiff emerged from the garage with the shovel in a threatening manner. Id. at *35.

A reasonable jury could find that there were no exigent circumstances in this case. When the officers entered Ms. Kew's apartment and first encountered her, she was agitated, but not armed or dangerous. Both officers testified that they would not have approached Ms. Kew as they did if they had believed she was armed or had sharp objects on her person. (See Doc. 90-9 at 66, 68; Doc. 90-11 at 5, 21–22.) As the situation continued to unfold, no exigency developed. Ms. Kew variously gesticulated toward the door when requesting to check on it and pointed toward the door when telling the officers to leave. Although her hands came close to Officer Hoar, a reasonable jury may find that she was gesticulating toward the door, not trying to hit Officer Hoar, or that Ms. Kew's hands came close to Officer Hoar only because he kept getting closer to her.

A reasonable jury could also find that Ms. Kew did not attempt to flee to her bedroom, as the officers assert, but that she took one or two short steps away from Officer Hoar as he compressed the space between himself and Ms. Kew. Both officers explained that they were concerned Ms. Kew would retreat into her bedroom and attempted to prevent her from doing so. (Doc. 77-106 ¶ 3; Doc. 77-109 ¶ 3; Doc. 90-9 at 71–73, 114; Doc. 90-11 at 13, 15.) But Officer Hoar acknowledged that Ms. Kew only retreated as he advanced. (Doc. 90-9 at 73.) The video, too, demonstrates that Ms. Kew did not begin moving in the direction of her bedroom until after Officer Hoar continued to approach her. (Gero Video 2 at 3:55–4:00.) That is also how Ms. Kew understood her actions, explaining that she was not attempting to “get away” but, instead, was trying to “get [her] space” because Officer Hoar “was in [her] face” and “just kept coming closer and closer to me and grabbing me.” (Doc. 77-7 at 30.) Indeed, this is not a case where exigent circumstances existed because an individual is armed and charging at police or because the police have no information about the plaintiff. See Wingard, 2013 WL 3551109, at *6.

The video footage supports Ms. Kew's position that—as in Taylor—the officers themselves were responsible for creating any exigency that arose during the encounter. Cf. Taylor, 2015 WL 541058, at *8. Construing the facts in the light most favorable to Ms. Kew, a reasonable jury could find that the officers’ conduct contributed to any exigency and that an exigency would not have arisen if the officers had delayed approaching Ms. Kew. Cf. Felix, 344 F. Supp. 3d at 665–66; Taylor, 2015 WL 541058, at *8.

Finally, a reasonable jury could find that no exigency developed after the officers had Ms. Kew in handcuffs either. Ms. Kew no longer had access to any sharp objects and could not harm herself or the officers. At this point, the officers had secured the scene by closing the door to the bedroom and scanning the room for sharp objects. There was no longer any threat to either Ms. Kew's life or the officers’ lives. See Taylor, 2015 WL 541058, at *7. Speaking with an unarmed and handcuffed person with limited physical mobility does not present the type of exigency necessary to overcome the officers’ obligation to accommodate Ms. Kew's disabilities under the ADA.

The court recognizes that officers are forced to make quick decisions on the spot and the court is not well-positioned to evaluate these decisions. Nevertheless, factual issues remain for a jury to resolve. A jury could conclude that if the officers had defused the encounter, delayed approaching Ms. Kew, used de-escalation techniques, followed the Northfield Police Department's policy for dealing with individuals of diminished capacity, retreated from Ms. Kew to avoid physical confrontation, or employed less confrontational tactics, the situation would not have necessitated an arrest. Therefore, the court rejects the officers’ exigent-circumstances argument. This will be an issue for a jury to resolve.

2. Failure to Request a Specific Accommodation

Northfield also argues that Ms. Kew's ADA claim fails because she did not make “a specific request for accommodation.” (Doc. 77-1 at 11–12.) The Second Circuit has held that the ADA requires reasonable accommodations even in the absence of an explicit request if a person's disability is “obvious.” Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008). This court, too, has reasoned that when officers already know of a plaintiff's disability, the plaintiff is not required to contemporaneously request accommodations when approached by the police. Sage, 2017 WL 1100882, at *4.

Here, the officers had responded to numerous prior welfare checks on Ms. Kew and knew that she had multiple mental health conditions. They were familiar enough that they knew she had used sharp instruments to cut herself in the past and had access to prescription medications. For example, Officer Hoar explained that although he “had no knowledge of any documented or diagnosed physical impairment,” he “knew she was in a wheelchair at one point and believe I heard that she had a leg issue.” (Doc. 77-109 ¶ 6.) Officer Hoar also stated that he “had no knowledge of any diagnosed emotional and/or psychological impairment” but “did know that she could be challenging at times during interactions, and knew that she was the subject of welfare checks due to threats of suicide.” (Id. ¶ 7.) Officer Gero explained that he was aware of the same. (Doc. 77-106 ¶¶ 5–7.) In other words, the officers knew that Ms. Kew had both physical and mental disabilities even though they did not know her exact diagnoses. Accordingly, a reasonable jury could find that Ms. Kew's disabilities were “obvious,” and she was therefore not required to request accommodations during the incident.¹¹

The cases Northfield relies on are inapposite. One case involved an officer interacting with an individual whom the officer knew had a mental illness but did not have any “particularized knowledge about the nature or degree” of the disability. Gray v. Cummings, 917 F.3d 1, 18 (1st Cir. 2019). The court held that the lack of knowledge about the mental disability meant the officer could not gauge whether the individual's conduct was a result of her disability or unlawful conduct for purposes of an ADA wrongful-arrest claim nor could the officer gauge what specific accommodations would have been appropriate under the circumstances. Id. But Gray did not address whether the individual's disabilities were “obvious” such that the officer should have provided accommodations without any request. See id. Northfield's second case fares no better. In that case, the court held that the situation confronting the officers rendered any accommodation impossible even if the individual requested an accommodation. Est. of Williams v. Douglas County, No. 16-CV-2913, 2018 WL 9848045, at *20 (N.D. Ga. Sept. 6, 2018).

3. Reasonableness of Ms. Kew's Requested Accommodations

Finally, Northfield argues that Ms. Kew's proposed accommodations, such as retreating from her home or using de-escalation techniques prior to placing her in handcuffs would have been unreasonable. (Doc. 77-1 at 11.) Ms. Kew responds that the officers’ failure to follow the Northfield Police Department's already-existing policy for dealing with persons of diminished capacity is evidence that the officers failed to reasonably accommodate her. (Doc. 94 at 6–7.)

To assess whether Northfield reasonably accommodated Ms. Kew's disabilities, Ms. Kew initially has the burden “of producing evidence of the existence of a reasonable accommodation.” Brunette, 2018 WL 4146598, at *34 (quoting Sheehan, 743 F.3d at 1233). The burden then shifts to Northfield to show that the accommodations it provided were effective or that Ms. Kew's requested accommodations “would have resulted in a fundamental alteration of necessary procedures or an undue financial or administrative burden.” Ryan, 667 F. Supp. 2d at 386 (citing Tennessee v. Lane, 541 U.S. 509, 511, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004)). The reasonableness inquiry must be assessed under the totality of the circumstances. Williams, 121 F. Supp. 3d at 365. However, “the reasonableness of an accommodation is ordinarily a question of fact” best left for a jury. Brunette, 2018 WL 4146598, at *35 (quoting Sheehan, 743 F.3d at 1233).

A police department's internal policies may inform a court's inquiry into the reasonableness of a plaintiff's proposed reasonable accommodations. See id. at *34–35. Here, the Northfield Police Department had a policy specifically for interacting with persons of diminished capacity. (Doc. 77-101.) Both officers were familiar with the policy. (See Doc. 90-9 at 85–87 (Officer Hoar); Doc. 90-11 at 3 (Officer Gero).) The policy was in effect at the time of the welfare check in August 2017. Cf. Brunette, 2018 WL 4146598 at *35 (finding policy adopted after incident was relevant where policy codified preexisting practices).

The Northfield Police Department's policy for dealing with persons of diminished capacity directs officers to “respect the comfort zone of the subject in order to reduce any unnecessary agitation. Officers should convince the subject that they do not have to move. Officers should continuously evaluate this comfort zone and not compress it, unless absolutely necessary.” (Doc. 77-101 at 4, § IV(A)(c); Doc. 90-9 at 86–87.)

Both officers agreed that Ms. Kew was of diminished capacity when the officers conducted the welfare check. (Doc. 90-9 at 86 (Officer Hoar); Doc. 90-11 at 27 (Officer Gero).) But in in the moments immediately after breaking down the door and entering Ms. Kew's apartment, Officer Hoar acknowledged, “I don't think we did any of these steps” to comply with the department's policy for dealing with diminished-capacity individuals. (Doc. 90-9 at 89–90.) Officer Hoar also noted that when the officers entered Ms. Kew's apartment, he compressed the space between himself and Ms. Kew and did not respect her comfort zone. (Id. at 88.) Officer Gero, on the other hand, explained that Officer Hoar “used limited de[-]escalation” but that further techniques were not possible due to “potentiality of physicality” and once they had her in handcuffs, they “took steps back” and “gave her additional space.” (Doc. 90-11 at 27.)

The Northfield Police Department's policy for dealing with persons of diminished capacity also explains that “[i]t has been found that threats to arrest or use force are not productive when dealing with persons with diminished capacities. Reassure the subject that the police are there to help them.” (Doc. 77-101 at 5, § IV(C)(e).)

After the officers had Ms. Kew on the floor and Officer Gero had one of her hands behind her back, Officer Gero asked, “Are you going to sit in your chair? Get up,” and he then directed her, “Sit in your chair” and “Go that way” to which Ms. Kew said, “No.” (Gero Video 2 at 5:10–5:18.) Officer Gero then stated, “If you don't, I'm going to put you in a pair of handcuffs until you calm down.” (Gero Video 2 at 5:20–5:23.)

Based on this information, the court finds that Ms. Kew has met her initial burden of demonstrating the availability of reasonable accommodations. A reasonable jury could find that the officers might have followed the Northfield Police Department policy for dealing with persons of diminished capacity by using de-escalation techniques, giving Ms. Kew extra space, not compressing Ms. Kew's space, and not threatening to use force against her. Further, the court finds that Northfield has not made any showing that Ms. Kew's requested accommodations would fundamentally alter the nature of the service, program, or activity. Instead, Northfield focused its arguments on the exigent circumstances facing them such that they were not obligated to provide any reasonable accommodations. Because Northfield failed to make any showing and the reasonableness of accommodations is generally a question of fact, the court concludes that this claim must be decided by a jury. Therefore, the court denies Northfield's motion for summary judgment as to Ms. Kew's ADA reasonable-accommodations claim in Count VIII.

II. Section 1983 Claims

Ms. Kew also brings three claims under 42 U.S.C. § 1983. In Counts III and VI, she alleges claims against Officers Gero and Hoar for false imprisonment and excessive force. In Count IX she brings a claim against Northfield for failure to train and failure to supervise.

Section 1983 provides a private cause of action for individuals to sue a “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ․ subjects, or causes to be subjected, any citizen of the United States ․ to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. Because she seeks damages, Ms. Kew's claims must be against Officers Gero and Hoar in their individual capacities. See Kentucky v. Graham, 473 U.S. 159, 168–69, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Further, any § 1983 suit against a state official in his official capacity is “only another way of pleading an action against an entity of which an officer is an agent.” Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) (internal quotation marks omitted). Officers Gero and Hoar apparently understand Ms. Kew's claims the same way because they assert the defense of qualified immunity, which is only available to individual defendants sued in their individual capacities for damages. Ford v. Reynolds, 316 F.3d 351, 356 (2d Cir. 2003). As a result, insofar as Ms. Kew's claims are against Officers Gero and Hoar in their official capacities, the court grants summary judgment in favor of the officers.

Ms. Kew's claim against Northfield are claims against a municipal entity, considered a “person” for purposes of § 1983. Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 701, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A plaintiff making a Monell claim must plead that the alleged violation of a constitutional right resulted from a municipal policy, custom, or practice. Saeli v. Chautauqua County, 36 F.4th 445, 460 (2d Cir. 2022). And where a plaintiff brings individual-capacity claims against individual officers as well as Monell claims against a municipality, the substance of those claims may not be identical even if they involve the same individual defendants. See id.

With this background in mind, the court first turns to Ms. Kew's two individual-capacity claims against the officers before turning to her Monell claims against Northfield.

A. Individual-Capacity Claims

Officers Gero and Hoar have asserted the defense of qualified immunity.¹² Qualified immunity shields government officials, including law enforcement officers, “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.” McEvoy v. Spencer, 124 F.3d 92, 97 (2d Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Whether a government official is entitled to qualified immunity involves a two-step analysis: (1) whether the officer's conduct violated a constitutional right, and (2) whether that constitutional right was clearly established at the time of the challenged conduct. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Sabir v. Williams, 52 F.4th 51, 58 (2d Cir. 2022). A court need not address these two steps in order nor address both steps if it may resolve the claim at one step or the other. Pearson, 555 U.S. at 236, 129 S.Ct. 808. Nonetheless, addressing both steps of the inquiry is “often beneficial,” id., because skipping the first step “stunts the development of constitutional law” making it “harder for plaintiffs to defeat qualified immunity by showing that a right is ‘clearly established.’ ” Dongarra v. Smith, 27 F.4th 174, 178 (3d Cir. 2022).

At step one, the court applies current law to determine whether there was a constitutional violation. Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022) (“To evaluate whether there is a constitutional violation, we apply the current law.”). At step two, officers are entitled to qualified immunity if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Dancy v. McGinley, 843 F.3d 93, 106 (2d Cir. 2016) (internal quotation marks omitted). This second inquiry is necessarily retrospective because a court must determine “whether, at the time of the officers’ action, the state of the law gave the gave the officers fair warning that their conduct was unconstitutional.” Ballentine, 28 F.4th at 64 (internal quotation marks omitted); accord Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). As a result, where a court considers a prior judicial decision to determine whether a right was clearly established, it must examine the clearly-established right relative to the date of the underlying challenged action analyzed by that prior decision, not the date that prior decision was issued. Where, however, a prior decision concludes a right was not clearly established at the time of the underlying challenged action but clearly establishes that right moving forward, a court must examine the clearly-established right relative to both the date of the underlying challenged action and the date that decision was issued. See Ballentine, 28 F.4th at 64–66 (explaining same).

A right is “clearly established” when “the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011) (cleaned up) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523, (1987)); see also Lynch v. Ackley, 811 F.3d 569, 578–79 (2d Cir. 2016) (explaining that law is “clearly established” “if the law on the subject was defined at the time with reasonable clarity or clearly foreshadowed in rulings of the Supreme Court of the Second Circuit”). Courts must not “define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Instead, the inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Mullenix v. Luna, 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (per curiam) (internal quotation marks omitted).

The court addresses Ms. Kew's claims under this two-step framework.¹³

1. False Imprisonment and Deprivation of Liberty (Count III)

In her first individual-capacity claim, Ms. Kew alleges that Officers Gero and Hoar “arrested and confined [her] against her will” without “any reasonable basis or privilege to support” this action in violation of the Fourth and Fourteenth Amendments to the United States Constitution. (Doc. 57 ¶¶ 63, 65.)

The court must first identify the injury Ms. Kew is alleging and “the specific constitutional standard which governs that right.” Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 116 (2d Cir. 1995) (alteration in original) (quoting Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). A claim for “a warrantless deprivation of liberty from the moment of arrest to the time of arraignment will find its analog in the tort of false arrest[,]” Singer, 63 F.3d at 117, and “[t]he common law tort of false arrest is a species of false imprisonment.” Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996) (alteration in original) (quoting Singer, 63 F.3d at 118). “A mental health false arrest claim arises from both the Fourth Amendment's protection against unreasonable mental health seizures and the Fourteenth Amendment's due process protections.” Guan v. City of New York, 37 F.4th 797, 807 (2d Cir. 2022). As a result, the court construes Ms. Kew's claim for false imprisonment and deprivation of liberty together as alleging a single claim for false imprisonment. See id.; see also McCarthy v. Roosevelt Union Free Sch. Dist., No. 15-CV-01468, 2017 WL 4155334, at *4 (E.D.N.Y. Sept. 19, 2017) (construing several claims under § 1983 based on an involuntary hospitalization—including violation of procedural due process, violation of substantive due process, unreasonable search and seizure, and false arrest—as one claim for false arrest).¹⁴

a. Constitutional Violation

To determine the elements of a constitutional claim, courts “first look to the elements of the most analogous tort as of 1871 when § 1983 was enacted so long as doing so is consistent with the values and purposes of the constitutional right at issue.” Thompson v. Clark, ––– U.S. ––––, 142 S. Ct. 1332, 1337, 212 L.Ed.2d 382 (2022) (internal quotation marks omitted). “A false imprisonment claim under § 1983 tracks the state-law elements of the claim.” Grega v. Pettengill, 123 F. Supp. 3d 517, 548 (D. Vt. 2015). “Under Vermont law, a person commits the crime of false imprisonment, or unlawful restraint in the second degree, ‘if the person ․ knowingly restrains another person.’ ” Id. (alteration in original) (quoting 13 V.S.A. § 2406); see also State v. Alexander, 173 Vt. 376, 382, 795 A.2d 1248, 1253 (2002) (explaining that the “Vermont equivalent” of false imprisonment is “unlawful restraint in the second degree”). “ ‘Restrain’ means to restrict substantially the movement of another person without ․ lawful authority.” 13 V.S.A. § 2404. That means “[p]robable cause is a complete defense to a constitutional claim of false arrest and false imprisonment” under both Vermont and federal law. Betts v. Shearman, 751 F.3d 78, 82 (2d Cir. 2014); accord Crowell v. Kirkpatrick, 667 F. Supp. 2d 391, 417 (D. Vt. 2009) aff'd, 400 F. App'x 592 (2d Cir. 2010) (summary order).

The critical question for purposes of Ms. Kew's false-imprisonment claim is whether Officers Gero and Hoar had probable cause that (1) Ms. Kew committed a crime or (2) Ms. Kew needed treatment and presented a risk to herself or others. “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). An officer's conclusion may include information from other police officers as well as information officers glean from other witnesses or private citizens. See Savino v. City of New York, 331 F.3d 63, 74 (2d Cir. 2003); Lee v. Sandberg, 136 F.3d 94, 103 (2d Cir. 1997).

Officers Gero and Hoar did not have probable cause to believe that Ms. Kew had committed any crime. The officers were responding to a call for a welfare check, not a call that someone had committed a crime. (Doc. 90-9 at 44, 51, 60; Doc. 90-11 at 4.) The officers did not believe that they had any grounds to arrest her. (Doc. 90-9 at 105.) Officer Gero testified that her case “is a non-criminal case.” (Doc. 99-10 at 6.) He further confirmed that the officers did not detain her for a crime. (Doc. 90-11 at 10.)

In the context of mental health seizures, the probable cause determination is different and distinct from the probable cause determination for an arrest based on criminal conduct. Guan, 37 F.4th at 808. The Second Circuit Court of Appeals recently held that even if officers had probable cause to arrest a person for a crime, that probable cause does not also apply to a mental health seizure, meaning officers need independent probable cause for a mental health seizure even in the same course of events. Id.

Courts examine a state's mental health seizure law when determining whether an officer had probable cause to execute a mental health seizure. See, e.g., Hoffman v. County of Delaware, 41 F. Supp. 2d 195, 209 (N.D.N.Y. 1999), aff'd 205 F.3d 1323 (2d Cir. 2000) (summary order). In Vermont, a “law enforcement officer” may “take [a] person into temporary custody” “where certification by a physician is not available without serious and unreasonable delay, and when personal observation of the conduct of a person constitutes reasonable grounds to believe that the person is a person in need of treatment, and he or she presents an immediate risk of serious injury to himself or herself or others if not restrained.” 18 V.S.A. § 7505(a), (b) (emphasis added); see also 13 V.S.A. § 2406(b) (“It is a defense to a prosecution” for unlawful restraint in the second degree “that the defendant acted reasonably and in good faith to protect the person from imminent physical or emotional danger.” (emphasis added)). In other words, if Officers Gero and Hoar had reason to believe that Ms. Kew posed an immediate risk of serious injury to herself or others, then they had probable cause to take her into custody.

The word “immediate” in § 7505 is important. Immediate means “[o]curring without delay; instant.” Immediate (def. 1), Black's Law Dictionary (11th ed. 2019); see also Immediate (def. 4.b), Oxford English Dictionary (2d ed. 1989) (“Occurring, accomplished, or taking effect without delay or lapse of time; done at once; instant.”). That means the question here is whether Officers Gero and Hoar had probable cause to believe Ms. Kew posed a serious and instant risk to herself or the officers.

In this case, a reasonable jury could find that Ms. Kew did not pose any immediate risk of serious injury either to herself or others. Based on the limited information the officers received, they reasonably believed Ms. Kew may have been in the process of attempting suicide. When they could not contact her for over fifteen minutes, a reasonable jury could find that the officers had greater reason to think she might pose an immediate risk to herself. But this calculus changed the moment the officers encountered Ms. Kew. See Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts ․” (internal quotation marks omitted)); Bryant v. Crowe, 697 F. Supp. 2d 482, 490 (S.D.N.Y. 2010) (“As a fluid concept, the existence of probable cause can change ․”). And they encountered and interacted with Ms. Kew before they arrested her.

After the officers entered her apartment, Ms. Kew was visibly upset and agitated. (Doc. 90-9 at 74; see, e.g., Gero Video 2 at 3:26–3:36.) As described in detail above, she variously gesticulated toward the door, indicating she wanted to check on it, and again toward the door indicating that she wanted the officers to exit her apartment. Both officers also testified that they were concerned Ms. Kew would retreat into her bedroom. (Doc. 77-106 ¶ 3; Doc. 77-109 ¶ 3; Doc. 90-9 at 71, 114; Doc. 90-11 at 13, 15.) But, as already discussed, both Officer Hoar and Ms. Kew explained that Ms. Kew backed toward her bedroom only after Officer Hoar continued to advance toward her and compress her space. (Doc. 77-7 at 30 (Ms. Kew); Doc. 90-9 at 73 (Officer Hoar); see also Gero Video 2 at 3:55–4:00.) Further, the ambulance crew never checked on Ms. Kew, the officers eventually told the crew they could leave, and they did leave. (Gero Video 2 at 19:11–20:04.) Construing these facts in Ms. Kew's favor, a reasonable jury could find that the officers did not consider Ms. Kew to be an immediate risk of serious harm to herself.

Likewise, there is no suggestion that Ms. Kew posed any immediate risk of serious harm to the only other people in her apartment, Officers Gero and Hoar. Ms. Kew was not holding a weapon, and the officers both confirmed that based on their observations they were not concerned she had a weapon. Officer Hoar explained that he did not recall ever searching Ms. Kew for a knife and did not recall any other Northfield police officer ever searching her for a knife. (Doc. 90-9 at 45–46.) He also acknowledged that the way he responded to Ms. Kew by walking right up to her within arm's length is not how he would respond to a person with a knife (Id. at 68; see also Doc. 90-11 at 5 (Officer Gero describing that the typical response to a person with a blade would be to give them “as much [room] as is possible”).) Officer Hoar confirmed that Ms. Kew was just angry.¹⁵ (Doc. 90-9 at 84.)

Similarly, Officer Gero confirmed that they could tell based on what Ms. Kew was wearing that she likely did not have any weapon on her person. (Doc. 90-11 at 21.) Besides doing a generalized scan of the surroundings for any potential weapon, neither officer specifically searched for a weapon. (Id.) Plus, the officers knew Ms. Kew was of limited mobility, further decreasing the risk of any knife attack. (Doc. 90-9 at 74; Doc. 90-11 at 16.) This was not the type of encounter where, for example, officers were in danger because a person in the midst of a mental health crisis was either wielding a weapon or believed to be doing so. Cf. Kerman v. City of New York, 261 F.3d 229, 233, 238–39 (2d Cir. 2001) (affirming district court's grant of qualified immunity where, upon entering the apartment of an emotionally disturbed man possibly wielding a firearm, officers “rushed in, jumped on [the plaintiff's] back, grabbed and pulled [the plaintiff's] arms behind him and handcuffed him”).

The officers testified that Ms. Kew may have attempted to strike at Officer Hoar as he approached her. Officer Gero characterized Ms. Kew's movement as her “flipping her hands.” (Doc. 90-11 at 13, 15.) He also explained that Ms. Kew was “putting her hands” in Officer Hoars’ face (id. at 13) and that Ms. Kew's “hand came in [Officer Hoar's] face” (id. at 27). In their briefing, the officers characterize Ms. Kew's movement as a “thrust” toward Officer Hoar. (Doc. 77-2 ¶ 375.) The video shows Ms. Kew raising her hand as she tells Officer Hoar to “Get the fuck out of here.” (Gero Video 2 at 3:39–3:40.) At that point, Officer Hoar attempted to grab Ms. Kew's hand. (Id. at 3:40–3:41.) A reasonable jury could conclude that Ms. Kew was gesticulating toward the door as she was telling Officer Hoar to leave rather than attempting to strike him. In addition, a reasonable jury could conclude that Officer Hoar created any risk that was present in that moment by quickly moving closer to Ms. Kew rather than giving her the space he acknowledged he could have or should have given her. (Doc. 90-9 at 71–73.) In sum, the court cannot say as a matter of law that Ms. Kew posed any immediate risk of serious harm to either herself or the officers.¹⁶

This court is not aware of any federal court that has had occasion to determine the applicability of Vermont's mental health seizure law in the context of a § 1983 claim for either false arrest or false imprisonment. Other cases from within the Second Circuit provide some helpful guideposts. Applying the New York Mental Hygiene law, a court found officers possessed probable cause for a mental health seizure where the plaintiff's home-care nurse called the police and told them the plaintiff was suicidal, the officers spoke with the nurse after arrival and confirmed her account of the plaintiff's suicide threat, the plaintiff was in a “clearly agitated mental state,” and the officers observed multiple bottles of pills that they could not identify. Bayne v. Provost, 04 CV 44, 2005 WL 1871182, at *1–2, *7–8 (N.D.N.Y. Aug. 4, 2005).

Another court applying New York law found officers had probable cause for a mental health seizure where a mother called 911 to report that her son had stopped use of his medication and was having a psychotic episode, the officers knew of the son's history of mental illness, and the family expressed fear that the son might be a danger to himself. Glowczenski v. Taser Int'l Inc., No. CV04-4052, 2010 WL 1936200, at *6–7 (E.D.N.Y. May 13, 2010). However, a third court applying New York law concluded that there were genuine disputes of fact bearing on whether police had probable cause for a mental health seizure where a plaintiff's mother called 911 for assistance with her son “whom she described ․ as ‘not dangerous’ but in need of help” and the police observed that the plaintiff “had not taken his medication”; exhibited “bizarre and unreasonable” behavior; “taunted” the police; made “threatening gestures” with a paint roller; “stripped naked”; and rubbed paint on his body. Greenaway v. County of Nassau, 97 F. Supp. 3d 225, 229, 233–34 (E.D.N.Y. 2015). Distinguishing other cases, the court concluded that the officers were not entitled to summary judgment on qualified immunity grounds. Id. at 234–35.

While helpful guideposts, these cases are not directly on point. To begin, the requirements for an officer to conduct a mental health seizure under New York law is less stringent than under Vermont law. The New York statute requires only a showing that the individual was “conducting himself in a manner which is likely to result in serious harm to the person or others.” N.Y. Ment. Hyg. Law § 9.41. The Vermont statute, on the other hand, requires a showing of “an immediate risk of serious injury to himself or herself or others if not restrained.” 18 V.S.A. § 7505(a) (emphasis added). That means the courts’ conclusions in those cases, while illustrative, are not dispositive.

Plus, the facts of those cases are distinguishable from the facts of Ms. Kew's case. First, Ms. Kew did not threaten suicide. Instead, she called the Veterans Affairs crisis hotline and “told the VA crisis responder that she was not going to come back to the VA and that she was sick and tired of the VA changing her medications.” (Doc. 77-2 ¶ 293 (quoting Doc. 57 ¶ 31).) Ms. Kew noted that the “VA crisis responders perceived this as a possible threat to harm herself by overdosing on her medications” because she “had threatened on multiple prior occasions to VA hospital workers or crisis responders that she would overdose on her medications, including most recently on or about June 19, 2017.” (Id. ¶¶ 295–296 (quoting Doc. 57 ¶¶ 32–33).) As translated to or by the officers, Officer Hoar told Officer Gero that Ms. Kew “called the VA hotline, said she wanted to go forty-two via pills.” (Gero Video 1 at 1:25–1:32.) But the officers never confirmed that Ms. Kew had made a suicide threat. Cf. Bayne, 2005 WL 1871182 at *1–3; see also Greenaway, 97 F. Supp. 3d at 234 (making same distinction). And Ms. Kew denied doing so when they asked her. (Gero Video 2 at 9:20–9:27.) There was also no report from Ms. Kew's family or anyone having directly observed her that they were concerned she was a danger to herself. Cf. Glowczenski, 2010 WL 1936200, at *2. Finally, when the officers entered Ms. Kew's apartment, there was no indication that she was in the process of attempting suicide and Officer Gero confirmed they found no pills. (Doc. 90-11 at 22.) Cf. Bayne, 2005 WL 1871182, at *1–2.

Instead, this case is much closer to the facts of Greenaway. There the court concluded that the officers had not shown that plaintiff “making gestures that some officers interpreted as ‘threatening’ is clearly grounds for involuntary hospitalization as a matter of law.” Greenaway, 97 F. Supp. 3d at 234. Further, the Greenaway court explained that the defendants had not shown or alleged that the plaintiff's behavior “included threats of or attempts at suicide or bodily harm to himself. Nor do they show that his behavior placed others in reasonable fear of serious physical harm.” Id. The plaintiff in Greenaway, like Ms. Kew here, had “a history of peaceful interaction with law enforcement personnel during his mental health-related episodes.” Id. at 235. In sum, the court found that the plaintiff's “bizarre and unreasonable behavior” coupled with his taunting of police, threatening gestures with a paint roller, and stripping naked and rubbing paint on himself did not give officers probable cause for a mental health seizure. Id. at 234–35. This case is especially helpful for two reasons. First, the plaintiff's behavior at issue in Greenaway was comparatively more extreme than Ms. Kew's behavior here. Second, as already noted, the standard for a mental health seizure under New York law is less stringent than Vermont law. If the officers in Greenaway lacked probable cause to seize the plaintiff under a less stringent standard, a reasonable jury here could find that the officers lacked probable cause to seize Ms. Kew under a more stringent standard.

Under these circumstances, a jury could reasonably find that the officers did not have probable cause to believe that Ms. Kew posed an immediate risk of serious harm to herself or to others under 18 V.S.A. § 7505(a). Therefore, the court declines to grant summary judgment at step one of the qualified-immunity analysis.

b. Clearly Established

It was clearly established at the time of Ms. Kew's arrest in August 2017 that “an officer had probable cause to arrest an individual for a mental health evaluation only if the officer had reason to believe there was a risk of serious physical harm to the individual or others.” Guan, 37 F.4th at 809 (finding the right clearly established at the time of a November 13, 2017 arrest); see also Anthony v. City of New York, 339 F.3d 129, 137 (2d Cir. 2003) (analyzing arrest on March 7, 2000). This inquiry is nearly identical to the inquiry just above. As a result, the officers would not be shielded by qualified immunity at step two of the analysis either.

c. Arguable Probable Cause

Beyond the clearly-established inquiry, “if reasonable officers could disagree ‘on the legality of the action at issue in its particular factual context,’ the officer is entitled to qualified immunity.” Guan, 37 F.4th at 806 (quoting Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007)). In the context of claims for false arrest or false imprisonment, police officers enjoy an extra layer of protection. Officers are immune from false-arrest and false-imprisonment claims if they had “arguable probable cause.”¹⁷ Guan, 37 F.4th at 806, 810; accord Betts, 751 F.3d at 83. This is an “analytically distinct test” that “is more favorable to the officers than the one for probable cause.” Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004).

“A police officer has arguable probable cause if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Guan, 37 F.4th at 806 (quoting Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016)). Arguable probable cause does not mean “ ‘almost’ probable cause.” Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007). Nor is the relevant question “whether the officer should have acted as he did.” Figueroa, 825 F.3d at 100. Instead, the operative question is “whether any reasonable officer, out of the wide range of reasonable people who enforce the laws in this country, could have determined that” probable cause existed. Id. Stated differently, an officer is protected if “a rational jury could not find that the officers’ judgment was so flawed that no reasonable officer would have made a similar choice.” Lennon v. Miller, 66 F.3d 416, 424–25 (2d Cir. 1995).

“[T]o determine whether a mental-health seizure is justified by arguable probable cause, a court must review the specific observations and information available to the officers at the time of a seizure.” Myers v. Patterson, 819 F.3d 625, 633 (2d Cir. 2016). “A person may be annoyed, uncooperative, and irrational without presenting a danger to herself or of violence to others.” Id. at 634.

Here, the court concludes that the officers had “arguable probable cause.” Both officers had interacted with Ms. Kew on several prior occasions and the record of their knowledge is clear. Cf. Druss v. Muscatella, 2022 WL 3701085, at *6 (S.D.N.Y. Aug. 26, 2022) (denying summary judgment based on “arguable probable cause” because there was genuine dispute of material fact as to what observations and information were available to officers responding to a mental health welfare check). Officer Gero had interacted with Ms. Kew professionally at least three times including the August 2017 welfare check. (Doc. 90-10 at 5.) Officer Gero also had at least two other “casual interactions” with Ms. Kew. (Id.) Officer Gero recalled that, during one of those casual encounters, Ms. Kew “was outside her residence at the time and she was crying, she was distraught, she was upset about medical treatment she was receiving.” (Id. at 6.) On the other occasion, Ms. Kew was “rolling in a wheelchair on the way back from Cumberland Farms ․ [a]nd she was upset” so Officer Gero “stopped and [he] asked her if everything was okay.” (Id.) He described Ms. Kew as “[a] sad, depressed individual” and noted that she had “never directed hostilities towards [him], ever.” (Doc. 90-11 at 4.) Likewise, Officer Hoar testified that he had known Ms. Kew for a long time, and that he had had fewer than 12 interactions with Ms. Kew. (Doc. 90-9 at 28–29.) He described Ms. Kew as being “sometimes” pleasant. (Id. at 47.)

On the day of this welfare check, Officer Hoar testified that there was nothing specific about this call that made him concerned about violence. (Doc. 90-9 at 47.) Officer Gero also testified that Ms. Kew had never been known to pull a knife against a police officer or an EMS responder during the numerous prior welfare checks and he did not think she was violent. (Doc. 90-11 at 4, 23.) But once on the scene, the officers’ assessment changed. Officer Gero testified that he did not think Ms. Kew was violent and “the call for service took [him] by surprise” because “she'd never been like that.” (Id. at 4.) Once on the scene, Officer Gero became more concerned because Ms. Kew is generally “a lik[e]able person” and her behavior that day was “an anomaly.” (Id. at 22.) This is supported by the video in which Officer Hoar and Officer Gero both expressed to Ms. Kew that they had never seen Ms. Kew act in the way she acted during the August 2017 encounter. (See Gero Video 2 at 11:25–11:41.)

Moreover, the officers had received a call that Ms. Kew might be attempting suicide. They attempted to contact Ms. Kew for over 15 minutes before they finally made the decision to break her door and enter her apartment. At that point, the officers were concerned about Ms. Kew's welfare. Once they entered Ms. Kew's apartment and observed that she was alive and alert, some of that initial concern dissipated. Still, the officers wanted the ambulance crew to conduct a medical examination of Ms. Kew to ensure she was safe. Plus, the officers were forced to make a series of rapid decisions in this initial encounter. Cf. Angevin v. City of New York, 204 F. Supp. 3d 469, 482 (E.D.N.Y. 2016) (noting courts must consider the rapidly evolving nature of an encounter when assessing arguable probable cause). Given all the information the officers had at their disposal, the court concludes that no rational jury could find that Officers Gero's and Hoar's judgment was “so flawed that no reasonable officer would have made a similar choice.” Lennon, 66 F.3d at 425.

Therefore, the officers are entitled to qualified immunity on this claim and the court grants the officers’ motion for summary judgment as to Count III of Ms. Kew's First Amended Complaint insofar as it alleges a claim under 42 U.S.C. § 1983.

2. Excessive Force (Count VI)

“[A]ll 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, 490 U.S. at 395, 109 S.Ct. 1865.¹⁸ The standard for excessive force is one of “objective reasonableness,” which “requires balancing the nature and quality of the intrusion on the plaintiff's Fourth Amendment interests against the countervailing governmental interests at stake.” Tracy v. Freshwater, 623 F.3d 90, 96 (2d Cir. 2010). An analysis of “objective reasonableness” “[r]equires careful attention to the facts and circumstances of each particular case.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. “Because objective reasonableness is extremely fact-specific, summary judgment on the issue is often inappropriate.” Greenaway, 97 F. Supp. 3d at 235.

Ms. Kew's allegations contain at least four separate bases for an excessive-force claim. First, she alleges that the officers used excessive force when initially arresting her. (Doc. 57 ¶ 41.) Second, she alleges that the officers used excessive force in placing her in handcuffs. (Id. ¶¶ 41–42.) Third, Ms. Kew alleges that Officers Gero and Hoar's decision to leave her in handcuffs for an extended period constituted excessive force. (Id. ¶¶ 43–44.) Fourth, she alleges that the officers used excessive force in dragging her across the floor while she remained in handcuffs. (Id. ¶ 45.) The court considers each basis for Ms. Kew's excessive-force claim and the officers’ arguments for summary judgment.

a. Force Used to Arrest Ms. Kew

Ms. Kew's first claim stems from the officers’ initial use of force to arrest her. She alleges that Officer Hoar grabbed her “by the wrist, twisted her arm, pushed her to the floor” and that Officer Gero grabbed her “other arm and put his knee on her back while Ms. Kew was on the floor.” (Doc. 57 ¶ 41.) These allegations are generally supported by the video. But although Officer Gero places his hands on Ms. Kew's back, there is no point in the video that shows him placing his knee on Ms. Kew's back. (Gero Video 2 at 4:01–6:50.) The officers argue that the right to make an arrest or seizure carries with it the right to use some force to effectuate it and that there is no right to not be placed in handcuffs. (Doc. 78-1 at 17.)

i. Constitutional Violation

Courts analyzing a claim for excessive force consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [s]he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865; accord Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015). A court reviewing any use of force must consider the totality of the circumstances and be careful to analyze it “from the perspective of a reasonable officer on the scene,” not with the “20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865.

Here, construing the facts in the light most favorable to Ms. Kew, at the moment the officers decided to use force to arrest Ms. Kew, she had committed no crime, posed no immediate threat to the safety of the officers, and was not attempting to evade arrest. Graham, 490 U.S. at 396, 109 S.Ct. 1865. A reasonable jury may or may not view Ms. Kew's gesticulations and statements as threatening. See Vasquez v. Salisbury Twp. Police Dep't, No. Civ. A. 98-2655, 1999 WL 636662, at *10 (E.D. Pa. Aug. 19, 1999) (“A police officer may not detain or arrest someone simply for being obnoxious or uncooperative, without more.”). And Ms. Kew admits that once Officer Hoar grabbed her arm she was “resisting his attempts to bring her back into the living room[.]” (Doc. 90-12 at 6.) Of course, a police officer may use “some degree of force” to subdue an individual who “resists, threatens, or assaults the officer.” Sullivan v. Gagnier, 225 F.3d 161, 165–66 (2d Cir. 2000) (per curiam). But that does not alter the court's conclusion here because even if a jury found that Ms. Kew threatened the officers or resisted, the court cannot conclude as a matter of law that the force used by the officers was “reasonably related to the nature of [Ms. Kew's] resistance” or that the force was proportionate to the “force used, threatened, or reasonably perceived to be threatened.” Sullivan, 225 F.3d at 166; cf. McKinney v. City of Middletown, 49 F.4th 730, 742 (2d Cir. 2022) (“[P]olice may violate clearly established law by initiating significant force against a suspect who is only passively resisting ․”).

In the specific context of force used to arrest an individual, courts balance “the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing government interests at stake.” Figueroa, 825 F. 3d at 105 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). This involves analysis of “the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Id. (quoting Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 251–52 (2d Cir. 2001)); accord Linton, 2022 WL 17080324, at *9.

To be sure, there is no bright-line rule “that an officer use the least amount of force necessary.” Bettis v. Bean, No. 14-cv-113, 2015 WL 5725625, at *11 (D. Vt. Sept. 29, 2015). But in this case, where Ms. Kew had committed no crime, posed no safety risk to the officers, and was not trying to escape, a reasonable jury could find that that the officers did not need to use any force when they did, let alone the amount of force that they used. Cf. El v. City of Pittsburgh, 975 F.3d 327, 337–38 (3d Cir. 2020) (affirming district court's denial of motion for summary judgment on claim of constitutional violation for excessive force based on police officer slamming a non-threatening plaintiff into a wall and pavement after the plaintiff stood, gestured, and took one or two small steps toward other officers during an investigatory stop and the plaintiff was not suspected of any severe crime, posed no safety threat, and was not trying to flee); Jackson v. Tellado, 236 F. Supp. 3d 636, 664 (E.D.N.Y. 2017) (denying qualified-immunity-based motion for judgment as a matter of law addressed to jury's finding of a constitutional violation for excessive force based on officer punching the plaintiff in the face when the plaintiff was not suspected of any crime and posed no danger to anyone).

The officers’ failure to attempt de-escalation techniques and failure to follow the Northfield Police Department's policy for dealing with individuals of diminished capacity further supports this conclusion. A court may consider “whether there were exigent circumstances, whether the use of less force was feasible and prudent, and whether the officer took reasonable steps to minimize the use of force and any injury resulting from that force.” MacLeod, 2012 WL 1928656, at *5. A reasonable jury could find that the officers’ admitted failure to engage in de-escalation techniques and admitted crowding of Ms. Kew contrary to the Northfield policy meant that their subsequent use of force against her was unreasonable. Further, a reasonable jury might find that the officers’ admitted belief that Ms. Kew did not possess a knife further undermines their claimed need to immediately use force to detain her. Cf. Kerman, 261 F.3d at 238–39 (affirming district court's grant of qualified immunity on excessive-force claim where officers entered “the apartment of an emotionally disturbed man possibly wielding a firearm”).

Ms. Kew's injury also weighs against the officers. A claim for excessive force must allege that the force was more than de minimis. Graham, 490 U.S. at 396, 109 S.Ct. 1865 (“Not every push or shove ․ violates the Fourth Amendment.”). Where a plaintiff's injury is de minimis, a court may dismiss an excessive-force claim. See Jackson v. City of New York, 939 F. Supp. 2d 219, 231 (E.D.N.Y. 2013) (discussing de minimis injuries that defeat excessive force claims). Here, a reasonable jury may find that Ms. Kew's injury was more than de minimis. Later on the day of the welfare check, August 22, 2017, Ms. Kew went to the Emergency Room at the Central Vermont Medical Center where she had x-rays of both wrists. (See Doc. 77-113.) Neither wrist showed any fracture, but both showed soft tissue swelling. (Id. at 2–3.) After she returned home that night, however, her pain got worse and she went back to the Emergency Room, this time at the University of Vermont Medical Center. (See Doc. 77-114.) The doctors diagnosed her with compartment syndrome in her left hand and forearm and performed emergency surgical decompression.¹⁹ (Id. at 2.) Ms. Kew remained hospitalized for six days. (See Doc. 77-117.)

The parties dispute whether the force used by the officers caused this injury or whether it was caused by something else. (See Doc. 78-1 at 21; Doc. 90 at 4–5.) But construing the evidence and all reasonable inferences in favor of Ms. Kew, a reasonable jury could find that the officers caused Ms. Kew's injury. That will be a question for a jury to decide after considering the medical evidence presented by the parties. And, based on this information, a reasonable jury could also conclude that the force used was more than de minimis. Cf. Jackson, 939 F. Supp. 2d at 231 (“Injuries held to be de minimis for purposes of defeating excessive force claims include short-term pain, swelling, and bruising, brief numbness from tight handcuffing, claims of minor discomfort from tight handcuffing, and two superficial scratches from a cut inside the mouth.” (quoting Lemmo v. McKoy, No. 08-CV4264, 2011 WL 843974, at *5 (E.D.N.Y. Mar. 8, 2011))).

In sum, there are multiple genuine disputes of material fact for a jury to resolve regarding the officers’ use of force to arrest Ms. Kew and whether it rises to the level of a constitutional violation at step one of the qualified-immunity analysis.

ii. Clearly Established

Moving to the clearly-established inquiry, Ms. Kew had a clearly-established right at the time of her arrest in August 2017 to be free from excessive force when she was unarmed, not engaging in any criminal conduct, not attempting to escape, and not posing a risk to the officers. Weather v. City of Mount Vernon, 474 F. App'x 821, 824 (2d Cir. 2012) (summary order) (finding that a plaintiff had a clearly-established right to be free from excessive force at the time of a 2007 arrest where “[the plaintiff] was breaking no law, was not resisting arrest, and was not placing himself or others in danger”);²⁰ see also El, 975 F.3d at 340 (finding it clearly established at the time of a July 2013 arrest “that an unarmed individual who is not suspected of a serious crime—including one who is verbally uncooperative or passively resists the police—has the right not to be subjected to physical force such as being grabbed, dragged, or taken down”); Jackson, 236 F. Supp. 3d at 664 (finding it clearly established at the time of a June 2011 arrest that officers could not punch someone in the face unprovoked who had committed no crime and posed no threat and also finding such a right “obvious” under Hope v. Pelzer “because in such a situation no force is necessary or justified”); Greenaway, 97 F. Supp. 3d at 241 (“[T]he Court finds that tasing a non-violent mentally ill person engaged in non-criminal conduct violated a federal right that was clearly established on April 25, 2010.”); Garcia v. Dutchess County, 43 F. Supp. 3d 281, 296–98 (S.D.N.Y. 2014) (collecting cases and finding it clearly established at the time of a March 2010 arrest that police could not use a taser in either dart or stun mode on a non-resisting individual who was not suspected of any crime), aff'd in part, dismissed in part sub nom. Garcia v. Sistarenik, 603 F. App'x 61 (2d Cir. 2015) (summary order); Negron v. City of New York, 976 F. Supp. 2d 360, 371 (E.D.N.Y. 2013) (finding it clearly established at the time of a September 2008 arrest that officers could not tase a mentally ill individual who had not committed a serious or violent crime, posed no threat, and officers could have retreated while still surrounding the plaintiff and preventing his flight).²¹

While it is true that there is no Supreme Court or published Second Circuit case directly on point, that does not mean the right here was not clearly established at the time of the officers’ actions. A right may be clearly established based on “robust consensus of cases of persuasive authority.” District of Columbia v. Wesby, ––– U.S. ––––, 138 S. Ct. 577, 589–90, 199 L.Ed.2d 453 (2018) (internal quotation marks omitted); accord Liberian Cmty. Ass'n of Conn. v. Lamont, 970 F.3d 174, 186 (2d Cir. 2020). Surveying cases from its sister circuits, the Third Circuit concluded that that there was a “consensus ․ of persuasive authority that an unarmed individual who is not suspected of a serious crime—including one who is verbally uncooperative or passively resists the police—has the right not to be subjected to physical force such as being grabbed, dragged, or taken down.” El, 975 F.3d at 339–40 (alteration in original) (citing and discussing cases from Fifth, Sixth, Eighth, and Eleventh Circuits). So too here.

One might argue, however, that the Third Circuit's conclusion is distinguishable because here Ms. Kew was both verbally uncooperative and physically uncooperative and that her resistance was more than “passive.” Ms. Kew braced herself against the wall and in the process of the officers subduing her, she may have scratched Officer Gero. But Ms. Kew did not become physically uncooperative until after the officers had initiated physical force against her. And she did not brace herself against the wall until after Officer Hoar had grabbed hold of her arm and attempted to pull her out toward the living room and she did not engage at all with Officer Gero until he, too, physically engaged with Ms. Kew and helped Officer Hoar bring her to the ground.

In addition, there is another separate and independent basis for finding the right clearly established in this case. Officers may still be on notice that conduct violates a constitutional right even absent “a case directly on point” where existing precedent has “placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074. Here, the officers were on notice of the factors identified in Graham, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865. Officers Gero and Hoar should have known that it was unreasonable to use force to push Ms. Kew to the ground and place her in handcuffs when she was not engaged in any criminal conduct, not attempting to escape, and posed no risk of harm to the officers.

True, the “general rules set forth in ‘Garner and Graham do not by themselves create clearly established law outside an ‘obvious case.’ ” Kisela, 138 S. Ct. at 1153 (quoting White v. Pauly, 580 U.S. 73, 80, 137 S.Ct. 548, 196 L.Ed.2d 463 (2017) (per curiam)). But this was one of those instances in which “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful.” Hope, 536 U.S. at 741, 122 S.Ct. 2508 (alteration in original) (internal quotation marks omitted). For example, another court found that it was sufficiently “obvious” that an officer could not use any force against a person, let alone punch that person in the face unprovoked, where that person had committed no crime and posed no threat to the officers. Jackson, 236 F. Supp. 3d at 664. So too here.

Considering both the consensus from other circuits and the obviousness of the right at issue, the court concludes that it was not “objectively reasonable” for Officers Gero and Hoar “to believe [their] conduct did not violate [Ms. Kew's] rights” at the time of her arrest in August 2017. Harris v. O'Hare, 770 F.3d 224, 239 (2d Cir. 2014) (internal quotation marks omitted). Officers Gero and Hoar should have known that they could not resort to force against Ms. Kew within 40 seconds of encountering her when she was not engaged in any criminal conduct, not attempting to escape, and posed no risk of harm to them.

Therefore, the court denies the officers’ motion for summary judgment as to Count VI of Ms. Kew's First Amended Complaint insofar as it alleges a claim under 42 U.S.C. § 1983 that the officers used excessive force in arresting her.

b. Initial Handcuffing of Ms. Kew

Separate from her claim that the officers used excessive force in their initial arrest, Ms. Kew also claims that the officers used excessive force by placing her in handcuffs and that she “[s]creamed and pleaded for the officers to ․ remove the handcuffs.” (Doc. 57 ¶ 42.) The officers argue that a person does not have a right to remain free from handcuffs and that the use of handcuffs on Ms. Kew was warranted under the circumstances for their safety and Ms. Kew's own safety. (Doc. 78-1 at 17–19.)

i. Constitutional Violation

The Second Circuit has held that “handcuffing is [not] per se reasonable” to arrest an individual but “[n]either the Supreme Court nor the Second Circuit has established that a person has the right not to be handcuffed in the course of a particular arrest, even if he does not resist or attempt to flee.” Soares v. Connecticut, 8 F.3d 917, 921–22 (2d Cir. 1993). Nevertheless, “excessively tight handcuffing that causes injury can constitute excessive force in violation of the Fourth Amendment.” Shamir v. City of New York, 804 F.3d 553, 557 (2d Cir. 2015); accord Esmont v. City of New York, 371 F. Supp. 2d 202, 214–15 (E.D.N.Y. 2005).

When assessing the reasonableness of handcuffing, courts consider whether “(1) the [plaintiff's] handcuffs were unreasonably tight; (2) the defendants ignored the [plaintiff's] pleas that the handcuffs were too tight; and (3) the degree of injury to the [plaintiff's] wrists.” Esmont, 371 F. Supp. 2d at 215. Other district courts in the Second Circuit also consider the Esmont factors to determine whether a plaintiff has sufficiently alleged a claim for excessive force. See, e.g., Pizarro v. Ponte, No. 17 Civ. 4412, 2019 WL 568875, at *6 (S.D.N.Y. Feb. 11, 2019); Barcomb v. Kraeger, No. 14cvl 159, 2016 WL 2644885, at *5 (D. Conn. May 5, 2016); Burwell v. Peyton, No. 12-CV-166, 2015 WL 6874250, at *3 (D. Vt. Nov. 9, 2015), aff'd sub nom. Burwell v. Moody, 670 F. App'x 734 (summary order). “[H]andcuffing does not suffice for an excessive force claim unless it causes some injury beyond temporary discomfort or bruising.” Othman v. City of New York, No. 13-CV-4771, 2018 WL 1701930, at *7 (E.D.N.Y. Mar. 31, 2018) (internal quotation marks omitted).

Applying the Esmont factors here, the court concludes that no reasonable jury could find in favor of Ms. Kew at step one of the qualified-immunity analysis. Ms. Kew does not allege, either in her complaint or in her briefing, that the handcuffs were unreasonably tight. (See Doc. 57; Doc. 90.) When the officers first applied the handcuffs, Ms. Kew did not complain that they were too tight, nor did officers respond to any perceived distress. (See Gero Video 2 at 5:50–7:00.) When the officers instructed Ms. Kew, “Open your hands so I can double lock the handcuffs,” Ms. Kew responded, “No, my hands are fine.” (Id. at 6:16–6:21.) Besides repeatedly telling the officers to take the handcuffs off generally, Ms. Kew never made any specific pleas for the officers to loosen the handcuffs throughout the encounter. (See generally id.) Plus, Officer Gero proactively warned Ms. Kew, “You're just going to hurt your wrists pulling on the cuffs like that,” to which Ms. Kew responded, “I don't give a shit, you already [inaudible].” (Id. at 11:16–11:21.) Although Ms. Kew ended up suffering severe injuries to her left hand and arm, satisfying one of the three Esmont factors, the court finds that the other two factors weigh strongly against Ms. Kew on this claim. Therefore, the court concludes that no reasonable jury could find Officers Gero and Hoar's handcuffing of Ms. Kew constituted excessive force in violation of Ms. Kew's constitutional rights.

ii. Clearly Established

Even if Ms. Kew had made out a constitutional violation for the officers’ application of handcuffs, however, her claim would still fail because the officers did not violate clearly-established law. The Second Circuit did not clearly establish that a plaintiff may assert an excessive-force claim for handcuffing without verbally alerting officers to her pain until October 2019. Cugini v. City of New York, 941 F.3d 604, 616–17 (2d Cir. 2019). At the time of her arrest in August 2017, Ms. Kew did not give any verbal indication that the handcuffs were causing her any pain. Even if she had made out a constitutional violation, which she has not, the officers would be entitled to summary judgment under the clearly-established inquiry of the qualified-immunity analysis.

Plus, in Cugini, the Second Circuit concluded that “officers can no longer claim ․ that they are immune from liability for using plainly unreasonable force in handcuffing a person or using force that they should know is unreasonable based on the arrestee's manifestation of signs of distress.” Id. at 617 (emphasis added). As just explained, the officers did respond to Ms. Kew's signs of distress. In other words, even under the law clearly established by Cugini, the officers would also be entitled to qualified immunity.

Therefore, the court grants the officers’ motion for summary judgment as to Count VI of Ms. Kew's First Amended Complaint insofar as it alleges a claim under 42 U.S.C. § 1983 for excessive force based on the officers’ handcuffing of Ms. Kew.

c. Continued Handcuffing of Ms. Kew

Separate and apart from the officers’ initial use of force and their initial handcuffing, Ms. Kew has also alleged that the extended amount of time the officers kept her in handcuffs constitutes excessive force. Specifically, Ms. Kew alleges that she “sat handcuffed and slumped forward on the floor of her living room for approximately forty-five minutes” during which time “she asked several times for the handcuffs to be removed [but] the officers refused.” (Doc. 57 ¶¶ 43–44.) The officers argue that there is no clearly-established law regarding the temporal limits for handcuffing a person. (Doc. 78-1 at 21.)

i. Constitutional Violation

Ms. Kew has not identified any case stating that there is any specific temporal limit on an officers’ use of handcuffs nor that the continued use of handcuffs may constitute excessive force. Nevertheless, a related a constitutional proposition is readily discernible from existing Fourth Amendment principles. To begin, a person has “a constitutional right to be free from arrest without probable cause, as well as a constitutional right to be free from unreasonably prolonged or intrusive investigative detention.” Gilles v. Repicky, 511 F.3d 239, 247 (2d Cir. 2007) (analyzing August 2004 arrest). Similarly, an officer who has probable cause for an initial arrest may still be liable for the continued detention of an individual once the officer has investigated and determined that he no longer has probable cause. See Gilles, 511 F.3d at 247. This is because probable cause may “dissipate over time.” DeBruin v. Macedon Police Dep't, 456 F. Supp. 3d 518, 523 (W.D.N.Y. 2020) (internal quotation marks omitted). Finally, “[u]nnecessary handcuffing can give rise to a § 1983 excessive force claim ‘where the plaintiff suffers injury as a result.’ ” Johnson v. City of New York, No. 18-CV-5623, 2020 WL 3100197, at *3 (S.D.N.Y June 11, 2020) (quoting Lloyd v. City of New York, 246 F. Supp. 3d 704, 724 (S.D.N.Y. 2017)).

Here, Ms. Kew may have alleged a constitutional violation. Officer Hoar agreed that the scene had been calm for two to three minutes by minute 19 of the video, approximately 16 minutes after the officers initially entered Ms. Kew's apartment.²² (Doc. 90-9 at 136.) Similarly, approximately 17 minutes after they had entered her apartment, after EMS had already left the scene without evaluating Ms. Kew, Officer Hoar testified that the scene was calm, and he did not expect anything dangerous to happen. (Id. at 139.) Officer Hoar confirmed that he did not “have a specific reason” for keeping Ms. Kew in handcuffs at that point in time.²³ (Id. at 140.) But Officer Hoar acknowledged that they kept Ms. Kew in handcuffs for approximately 45 minutes. (Id. at 80.) And, as already explained above, a reasonable jury could find that Ms. Kew suffered severe injuries because of this encounter.

Based on these facts, a reasonable jury could find that, whether or not the officers had probable cause to arrest Ms. Kew for a mental health seizure initially (based on a risk of serious harm to herself or others), that probable cause for seizing her had dissipated after approximately 17 minutes. Ms. Kew had calmed down and Officer Hoar did not expect anything dangerous to happen. Nonetheless, Ms. Kew remained handcuffed for almost 30 minutes after that point. As a result, a reasonable jury could find that the officers used excessive force in keeping Ms. Kew handcuffed after any probable cause they had for her initial detention had dissipated.

ii. Clearly Established

Whether or not Ms. Kew has alleged a constitutional violation, however, the right to be free from excessive force based on an officer's failure to remove handcuffs once probable cause dissipated was not clearly established at the time of Ms. Kew's arrest in August 2017.

Therefore, the court grants the officers’ motion for summary judgment as to Count VI of Ms. Kew's First Amended Complaint insofar as it alleges a claim under 42 U.S.C. § 1983 for excessive force based on the officers’ continued handcuffing of Ms. Kew.

d. Dragging of Ms. Kew Across the Floor

Lastly for purposes of her Fourth Amendment excessive-force claim, Ms. Kew alleges that Officer Gero used excessive force when he “dragg[ed] [her] backward across the floor by her handcuffs.” (Doc. 57 ¶ 45.) Defendants do not directly address this claim, instead they rely on the argument that a person has no clearly-established right not to be placed in handcuffs. (Doc. 78-1 at 17–18; Doc. 102 at 3.)

It is “well established” that “entirely gratuitous force is unreasonable and therefore excessive.” Lennox v. Miller, 968 F.3d 150, 157 (2d Cir. 2020) (quoting Tracy, 623 F.3d at 99 n.5). Officers may not use significant force against individuals who are already in handcuffs and no longer resisting arrest or posing a threat to officers or others. See id. (finding it clearly established as of July 2016 “that it is impermissible to use significant force against a restrained arrestee who is not actively resisting”); Jones, 963 F.3d at 225 (“Before the incident at issue here in April 2015, it was clearly established in this Circuit that it is a Fourth Amendment violation for a police officer to use significant force against an arrestee who is no longer resisting and poses no threat to the safety of officers or others.”).

This concept is true, too, in the more the more specific context of dragging or physically moving a suspect in handcuffs. For example, a court denied summary judgment based on qualified immunity where officers dragged a plaintiff across a parking lot by the scruff of her neck with her face close to the pavement. Mael v. Howard, No. 18-CV-378, 2022 WL 263235, at *6–8 (W.D.N.Y Jan. 27, 2022). Another court denied summary judgment on qualified immunity grounds where officers removed a plaintiff from her car and dragged her across her front yard. Nicholas v. City of Binghamton, No. 10-CV-1565, 2012 WL 3261409, at *10 (N.D.N.Y. Aug. 8, 2012), abrogated on other grounds by Guan, 37 F.4th at 809.

Here, no reasonable jury could find that the force Officer Gero used against Ms. Kew was “significant” or “gratuitous.” The body camera video footage shows that after being handcuffed and forced to a seated position, Ms. Kew attempted to scoot toward her bedroom three times, apparently to check on her dog who was in her bedroom. (Gero Video 2 at 7:55–9:05.) As Ms. Kew scooted away from Officer Gero, he took hold of Ms. Kew's upper arm, not the handcuffs as Ms. Kew alleges, and pulled her across the floor away from her bedroom. (Id.) On two of the three times that Ms. Kew attempted to scoot toward her bedroom, in addition to dragging her back, Officer Gero placed his arm across Ms. Kew's upper shoulders and neck and pushed her head and shoulders toward the ground, between her outstretched legs and told Ms. Kew, “Calm down.” (Id. at 8:04–8:44.) This is not the type of “significant” or “gratuitous” force courts have found to be a constitutional violation. Cf. Robison v. Via, 821 F.2d 913, 923–24 (2d Cir. 1987) (holding that plaintiff's testimony that the police officer “ ‘pushed’ her against the inside of the door of her car, ‘yanked’ her out, ‘threw [her] up against the fender,’ and ‘twisted [her] arm behind [her] back,’ and that “she suffered bruises lasting a ‘couple weeks,’ was “sufficient to prevent the summary dismissal of a § 1983 claim for excessive force”); Lemmo, 2011 WL 843974, at *5–7 (denying summary judgment on qualified immunity where plaintiff alleged defendants twisted his thumbs while already handcuffed and secured inside a jail cell).

Therefore, the court grants the officers’ motion for summary judgment as to Count VI of Ms. Kew's First Amended Complaint insofar as it alleges a claim under 42 U.S.C. § 1983 for excessive force based on Officer Gero's dragging and pushing of Ms. Kew while she remained in handcuffs.

B. Monell Municipal-Liability Claim (Count IX)

Ms. Kew alleges one count against Northfield under Monell for (1) failure to train and (2) failure to supervise its officers. (Doc. 57 ¶¶ 110–114.) She argues that the Northfield Police Department's failure to maintain accurate Computer Aided Dispatch (“CAD”) notes and records contributed to the violation of her constitutional rights. (Doc. 94 at 12–15.) Specifically, she argues that the CAD notes suggesting that she was known to use knives or blades were inaccurate, leading the officers to argue that she was potentially dangerous. (Id. at 13–14.) In addition, she argues that the CAD notes improperly failed to indicate that she was disabled or had any mental health conditions. (Id. at 14–15.)

Northfield moves for summary judgment on this claim, arguing that Ms. Kew has failed to carry her burden to demonstrate any Monell liability. Specifically, Northfield argues that it did not fail to train its officers and had no policy about the CAD notes that could form the basis for liability.²⁴ (Doc. 77-1 at 15–16.) In addition, Northfield argues that the CAD notes contained only accurate information. (Id. at 16–17.)

“[A] municipality can be held liable under Section 1983 if the deprivation of the plaintiff's rights under federal law is caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. at 690–91, 98 S.Ct. 2018). Stated differently, a municipality can he held liable “when it has promulgated a custom or policy that violates federal law and, pursuant to that policy, a municipal actor has tortiously injured the plaintiff.” Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). That means a plaintiff must demonstrate (1) an official policy or custom (2) that caused the plaintiff to (3) be denied a constitutional right. Burwell v. Peyton, 131 F. Supp. 3d 268, 302 (D. Vt. 2015) (quoting Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007), on recons. in part, No. 12-CV-166, 2015 WL 6874250 (D. Vt. Nov. 9, 2015), and aff'd sub. nom. Burwell v. Moody, 670 F. App'x 734 (2d Cir. 2016) (summary order).²⁵

Here, Ms. Kew has alleged two different types of Monell liability against Northfield: failure to train and failure to supervise. The court addresses each in turn.

1. Failure to Train

While Monell liability requires a plaintiff to plead a policy, custom, or usage that violated her constitutional rights, a lack of training or education may itself constitute a policy. See City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). A plaintiff must demonstrate “that the officials’ purported failure to train occurred under circumstances that could constitute deliberate indifference” and must “identify a specific deficiency in the city's training program and establish that that deficiency is ‘closely related to the ultimate injury,’ such that it ‘actually caused’ the constitutional deprivation.” Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 129 (2d Cir. 2004); see also Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) (requiring plaintiff to prove that the “inadequate supervision actually caused or was the moving force behind the alleged violations”).

Ms. Kew alleges that Northfield failed to train its officers by not providing them with “accurate, complete, and current information known to the Town about individuals with whom its police officers will interact, to protect such individuals, including Ms. Kew, from being harmed by police unnecessarily.” (Doc. 57 ¶ 110.) But Ms. Kew's allegations suffer from a few significant flaws.

First, Ms. Kew's allegation is that the information in Northfield's CAD notes is inaccurate. The CAD notes stated that she “is a cutter” and that she “hides blade on [her] person.” (Doc. 77-86 at 10; Doc. 90-9 at 37, 43.) Ms. Kew argues that this is inaccurate because no welfare checks on Ms. Kew involved blades hidden on Ms. Kew's person. (Doc. 94 at 14.) But that only demonstrates a partial inaccuracy. Officer Hoar responded to a prior welfare check on Ms. Kew at the request of the Northfield volunteer ambulance service where Ms. Kew “had also used a razor to cut ․ her arm.” (Doc. 77-73 at 4.) And Ms. Kew admitted that she “would take the little hand razors” and “break them apart and use the little blades” to cut herself. (Doc. 77-7 at 38.) That means the parties’ dispute centers on whether the CAD note describing Ms. Kew's hiding of blades on her person was inaccurate.

That dispute ultimately turns out to be a red herring insufficient to send this claim to a jury because, whether or not that factual dispute is “material,” Ms. Kew has failed to adequately allege the necessary causation element of a Monell claim. Officer Hoar testified that he did not remember whether he even received the CAD note information before responding to the welfare check on Ms. Kew in August 2017.²⁶ (Doc. 90-9 at 40, 44–45.) Likewise, Officer Gero testified that he did not read any CAD notes prior to entering Ms. Kew's apartment in August 2017. (Doc. 90-11 at 4.) And while Officer Gero testified about the various types of alert codes in Ms. Kew's file, Officer Gero did not testify that he reviewed these before the welfare check in August 2017. (See Doc. 90-10 at 4–5; Doc. 90-11 at 4.) As a result, Ms. Kew has not alleged that any deficiency in Northfield's maintenance of its CAD notes is “closely related to [her] ultimate injury, such that it actually caused the constitutional deprivation” here. Amnesty Am., 361 F.3d at 129 (internal quotation marks omitted). That is fatal to her Monell failure-to-train claim.

Plus, Ms. Kew has not shown that any purported failure to train amounted to deliberate indifference to her constitutional rights. Deliberate indifference in the context of a failure-to-train claim requires the plaintiff to “submit evidence that defendants knew to a moral certainty that the City would confront a given situation; the situation presented the City with a difficult choice or there was a history of its mishandling the situation; and the wrong choice by the City would frequently cause the deprivation of plaintiffs’ rights.” Reynolds, 506 F.3d at 192. Ms. Kew has not alleged any of those: she has not alleged that Northfield knew it would confront a situation where purportedly inaccurate CAD information would lead to a violation of a person's constitutional rights, that Northfield was faced with a difficult choice or had any history of mishandling the situation, or that the wrong choice by Northfield “frequently” caused a deprivation of a person's constitutional rights based on inaccurate CAD information. The requirement that a municipality either know of a history of mishandling or should know is based on the principle of notice because “[w]ithout notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.” Connick v. Thompson, 563 U.S. 51, 62, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). Here, too, Ms. Kew's allegations fall short. Therefore, the court grants Northfield's motion for summary judgment as to Ms. Kew's Monell failure-to-train claim in Count IX.

2. Failure to Supervise

Related to her failure-to-train claim, Ms. Kew has alleged that the Northfield Police Department's failure to supervise its officers is a basis for Monell liability. To allege such a claim, Ms. Kew must show “the need for more or better supervision to protect against constitutional violations was obvious.” Amnesty Am., 361 F.3d at 127 (quoting Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995)). “An obvious need may be demonstrated through proof of repeated complaints of civil rights violations; deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents.” Vann, 72 F.3d at 1049. While proof of a failure to respond is sufficient to establish deliberate indifference, it is not necessary; instead, “[t]he operative inquiry is whether the facts suggest that the policymaker's inaction was the result of a ‘conscious choice’ rather than mere negligence.” Amnesty Am., 361 F.3d at 128 (quoting City of Canton, 489 U.S. at 389, 109 S.Ct. 1197).

For similar reasons as those discussed above regarding her failure-to-train claim, Ms. Kew's failure-to-supervise claim also falls short. First, Ms. Kew has not shown that the that the need for more or better supervision to protect against constitutional violations was so obvious that any purported lack of action on Northfield's part amounted to deliberate indifference. The only relevant evidence suggests that the Northfield Police Department was aware that some of its officers failed to maintain accurate documentation and records and disciplined them for this shortcoming. (See, e.g., Doc. 90-19 at 4–7.) But “[d]eliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). A single prior lawsuit, complaint, or incident “is insufficient to establish that [defendants] were on notice that their training and supervision was deficient in the ‘particular respect’ Plaintiff contends violated [her] constitutional rights.” Burwell, 131 F. Supp. 3d at 303 (quoting Connick, 563 U.S. at 62, 131 S.Ct. 1350); cf. Coggins v. County of Nassau, 254 F. Supp. 3d 500, 520–21 (E.D.N.Y. 2017) (“Courts in the Second Circuit routinely hold that multiple civilian complaints against an officer regarding conduct similar to that exhibited toward a plaintiff is enough for a jury to find the requisite degree of indifference to support failure to supervise liability under Monell.”). Here, Ms. Kew has not shown any prior lawsuit, complaint, or incident in which Northfield's purported failure to maintain accurate CAD notes caused a constitutional violation, let alone a series of them.

Plus, Ms. Kew has not alleged the requisite causal connection between this and any constitutional violation. Instead, her argument on this point is based on speculation. When asked whether it would be dangerous for an officer to go into a situation with inaccurate CAD information, Officer Hoar testified that would “depend[ ] on what the information is” and he agreed “it would be a good idea” to have a policy to ensure accurate CAD information. (Doc. 90-9 at 156–157.) But this is not sufficient to satisfy the “stringent causation and culpability requirements” necessary to a Monell failure-to-supervise claim. Reynolds, 506 F.3d at 192. Like her deliberate-indifference claim, Ms. Kew has failed to allege that any failure to supervise by Officer Hoar caused any constitutional violation here.

Therefore, the court also grants Northfield's motion for summary judgment as to Ms. Kew's Monell failure-to-supervise claim, meaning the court grants summary judgment in favor of Northfield as to Count IX in full. Because some of Ms. Kew's federal claims survive summary judgment, the court proceeds to consider Ms. Kew's state-law claims.

III. Vermont Constitution Claims

In addition to bringing claims for false imprisonment and excessive force under § 1983, Ms. Kew also alleges these same claims in Counts III and VI against all Defendants under Article 11 of the Vermont Constitution. (Doc. 57 ¶¶ 62–68, 83–88.) Although raised in the same counts as her § 1983 claims, the claims come from two different causes of action. Section 1983 is a legislatively-created private cause of action. The private cause of action under Article 11 of the Vermont Constitution is, by contrast, judicially implied. See Zullo v. State, 2019 VT 1, ¶ 47, 209 Vt. 298, 205 A.3d 466.

A private plaintiff seeking to assert a claim for monetary damages against the State of Vermont directly under Article 11 to the Vermont Constitution must allege: “(1) the officer violated Article 11; (2) there is no meaningful alternative remedy in the context of that particular case; and (3) the officer either knew or should have known that the officer was violating clearly established law or the officer acted in bad faith.” Id. ¶ 55, 209 Vt. 298, 205 A.3d 466.

The parties make a variety of arguments on both sides, including whether this judicially-implied private cause of action should be extended beyond its facts, whether the implied private cause of action is limited to claims against the state only or if it also applies to claims against municipalities or individual officers, whether Ms. Kew has a “meaningful alternative remedy” here, and whether Northfield is shielded by qualified immunity. (See Doc. 77-1 at 18–22; Doc. 78-1 at 24; Doc. 94 at 15–17.)

Under the statute giving federal district courts supplemental jurisdiction over state-law claims, a district court “may decline to exercise supplemental jurisdiction over a claim ․ if the claim raises a novel or complex issue of State law.” 28 U.S.C. § 1367(c)(1). Here, Ms. Kew's claims under Article 11 of the Vermont State Constitution raise both novel and complex issues of state law. Id. The Vermont Supreme Court first recognized this cause of action in 2019 and has not yet clarified how it applies nor whether that application is different in cases where a plaintiff alleges overlapping federal claims, some of which survive and some of which are dismissed. See, e.g., Moore v. Bitca, 19-cv-00035, 2020 WL 5821378, at *24–25 (D. Vt. Sept. 30, 2020) (declining to exercise supplemental jurisdiction over Article 11 claim because it raised a novel and complex issue of state law).

“If one of the § 1367(c) categories applies, the district court may then undertake the discretionary inquiry of whether to exercise supplemental jurisdiction ․ ‘[A] district court should not decline to exercise supplemental jurisdiction unless it also determines that doing so would not promote the values articulated in Gibbs: economy, convenience, fairness, and comity.’ ” Catzin v. Thank You & Good Luck Corp., 899 F.3d 77, 85 (2d Cir. 2018) (emphasis added) (quoting Jones v. Ford Motor Credit Co., 358 F.3d 205, 214 (2d Cir. 2004)).

Here, declining to exercise jurisdiction promotes fairness to the parties in having the claim adjudicated in a Vermont court as well as comity to the separate sovereign of Vermont in addressing and developing its own law. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (“Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.”). While the parties have completed discovery at this point, suggesting that the court should not dismiss the state-law claims, cf. Moore, 2020 WL 5821378, at *24, the other factors, especially comity, weigh much more heavily in favor of this court not addressing Ms. Kew's claims under Article 11. See id.

There is, however, a question of whether Ms. Kew's claim under Article 11 would be time-barred in state court. The Vermont Supreme Court has not ruled on the applicable statute of limitations for claims brought directly under Article 11 to the Vermont Constitution. Claims for personal injury in Vermont have a three-year statute of limitations, 12 V.S.A. § 512(4), which a Vermont court might find to be the applicable limitations period, see, e.g., Shields v. Gerhart, 155 Vt. 141, 145, 582 A.2d 153, 156 (1990). This is a question best left to the Vermont state courts.

Therefore, the court declines to exercise supplemental jurisdiction over Ms. Kew's claims under Article 11 of the Vermont State Constitution in Counts III and VI of her First Amended Complaint and dismisses them from the suit.

IV. State-Law Tort Claims

Ms. Kew also asserts a variety of state-law tort claims. In Counts I and II, she alleges claims of assault and battery against Officers Gero and Hoar. (Doc. 57 ¶¶ 52–61.) In Counts IV and V, she asserts claims for negligence and negligent infliction of emotional distress against Northfield. (Id. ¶¶ 69–82.) The court addresses the claims against the officers before moving to the claims against Northfield.²⁷

A. Assault and Battery (Counts I & II)

Ms. Kew's claims for state-law assault and battery are against the individual officers, not Northfield. See 24 V.S.A. § 901a(e). Under Vermont law, battery “is an intentional act that results in harmful contact with another.” Christman v. Davis, 2005 VT 119, ¶ 6, 179 Vt. 99, 889 A.2d 746 (citing Restatement (Second) of Torts § 13 (1965)). “[A]ssault is defined as ‘any gesture or threat of violence exhibiting an [intention] to assault, with the means of carrying that threat into effect ․ unless immediate contact is impossible.’ ” Billado v. Parry, 937 F. Supp. 337, 343 (D. Vt. 1996) (alteration in original) (quoting Bishop v. Ranney, 59 Vt. 316, 318, 7 A. 820, 820–21 (1887)).

The officers move for summary judgment on this claim, arguing that they are protected by qualified immunity under state law. (Doc. 78-1 at 22–24.) The qualified-immunity analysis for Ms. Kew's state-law claims is different than the qualified-immunity analysis for Ms. Kew's federal-law claims because Vermont law governs. See Napolitano v. Flynn, 949 F.2d 617, 621 (2d Cir. 1991) (“[T]he substantive law of Vermont governs the applicability of qualified immunity to [plaintiff's] state law claims ․”). Under Vermont law a public official is entitled to qualified immunity if he or she is “(1) acting during the course of [his] employment and acting, or reasonably believing [he is] acting, within the scope of [his] authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts.” Murray v. White, 155 Vt. 621, 627, 587 A.2d 975, 978 (1991).

Whether an officer was acting in good faith asks whether an official's acts violated clearly-established rights “of which the official reasonably should have known.” Id., 155 Vt. at 630, 587 A.2d at 980. Under Vermont law, once a defendant asserts the defense of qualified immunity, it is the plaintiff's burden “to rebut the qualified immunity defense ‘by establishing that the official's allegedly wrongful conduct violated clearly established law. We do not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden upon plaintiffs.’ ” Sprague v. Nally, 2005 VT 85, ¶ 4 n.3, 178 Vt. 222, 882 A.2d 1164 (quoting Pierce v. Smith, 117 F.3d 866, 871–72 (5th Cir. 1997)).

Here, the court finds that Ms. Kew has met her burden to defeat the officer's qualified immunity under state law. “When assault and battery [are] alleged against police officers, ‘the inquiry is whether the officer's conduct was reasonably necessary and thereby privileged.’ ” Crowell, 667 F. Supp. 2d at 417 (quoting Smith v. District of Columbia, 882 A.2d 778, 788 (D.C. 2005)). While officers are privileged to use some force in making an arrest, “the privilege ends when the force used is excessive, which is determined [based on] the same standards used to analyze a Fourth Amendment excessive force claim.” Burwell, 131 F. Supp. 3d at 299 (internal quotation marks omitted).

Because the court concluded that Officers Gero's and Hoar's use of force was not reasonable as a matter of law under the Fourth Amendment to the United States Constitution, the court also denies the officers summary judgment on Ms. Kew's state-law claims of assault and battery. Cf. Burwell, 131 F. Supp. 3d at 299 (denying summary judgment on state-law assault and battery claims after denying summary judgment on § 1983 excessive-force claim); Kent v. Katz, 146 F. Supp 2d 450, 463 (D. Vt. 2001) (same). Therefore, the court denies the officers’ motion for summary judgment as to Counts I & II of Ms. Kew's First Amended Complaint for assault and battery.

B. Negligence and Negligent Infliction of Emotional Distress (Counts IV & V)

Ms. Kew also brings two negligence claims, one negligent-infliction-of-emotional-distress claim (“NIED”) and one pure negligence claim. She brings both against Northfield in place of the individual officers, as is required under Vermont law. 24 V.S.A. §§ 901(a), 901a(b). Under this statutory scheme, Northfield steps into the shoes of the defendant officers with all attendant defenses available to the officers, including state qualified immunity. Civetti v. Turner, 2020 VT 23, ¶¶ 15, 33, 212 Vt. 185, 233 A.3d 1056.

Ms. Kew's NIED claim is based on her “suffer[ing] harmful physical impact from the officers’ use of force against her. (Doc. 57 ¶ 71.) Similarly, her negligence claim is based, in part, on her right to “be free from excessive force by police officers.” (Id. ¶ 79.) Because Ms. Kew's claim for NIED and part of her claim for negligence are based on the officers’ intentional use of force, they fail; “the concept of negligence cannot apply to such intentional conduct.” Galipeau v. Stemp, No. 14-cv-55, 2016 WL 3190659, at *17 (D. Vt. June 6, 2016). Therefore, the court grants Northfield's motion for summary judgment as to Count IV of Ms. Kew's First Amended Complaint and as to Count V of Ms. Kew's First Amended Complaint insofar as it is based on the officers’ use of force.

As part of her negligence claim, Ms. Kew also alleges that the officers’ actions deprived her of “reasonable accommodations for her mental and physical impairments.” (Doc. 57 ¶ 79.) She alleges that the officers’ derogation from department policies constituted a breach of their duty of care toward her. (See id. ¶¶ 75–77.) Northfield, on behalf of the officers, asserts that the defense of qualified immunity shields it from all liability. Specifically, Northfield asserts that Ms. Kew has not met her burden to demonstrate that the officers’ actions violated any clearly-established law. (Doc. 77-1 at 23–24.)

Here, setting aside the question of whether Ms. Kew has satisfied the essential elements to state a claim for negligence, she has failed to meet her burden to demonstrate that the officers violated any clearly-established law. Ms. Kew asserts that the officers had a duty to exercise reasonable care in conducting the welfare check. (Doc. 94 at 18–19.) Her First Amended Complaint, however, is more specific, arguing that she had a clearly-established right to reasonable accommodations. But the two cases she cites for that proposition are not on point.

First, she points to Kennery v. State, in which the Vermont Supreme Court held that police officers conducting a welfare check had “a common law duty of care under Restatement (Second) of Torts § 324A.” 2011 VT 121, ¶ 11, 191 Vt. 44, 38 A.3d 35. But this case is inapposite for two reasons. First, the Kennery Court did not find the right to care under § 324A to be clearly established because it did not address this aspect of qualified immunity. See id. ¶¶ 11, 43–44. Second, the duty encompassed by § 324A is to third persons. See Restatement (Second) of Torts § 324A (1965). Kennery involved a daughter who called the police to conduct a welfare check on her mother, and when that welfare check went wrong, the daughter sued the police for negligently conducting the welfare check. See Kennery, 2011 VT 121, ¶¶ 3–8, 191 Vt. 44, 38 A.3d 35. In other words, Kennery did not clearly establish that officers owed a duty of care to the subject of the welfare check, contrary to Ms. Kew's broader articulation of the clearly-established right at issue here, nor did Kennery establish that the subject of a welfare check had a clearly-established right to reasonable accommodations, contrary to Ms. Kew's narrower articulation of the right at issue here.

Second, Ms. Kew points the court to Sabia v. Neville, in which the Vermont Supreme Court affirmed an earlier holding that it was clearly established that the Vermont Department of Child and Family Services (formerly SRS) had a statutory duty to investigate reports of child abuse and aid children seeking protection from sexual abuse. 165 Vt. 515, 525, 687 A.2d 469, 473 (1996). But this case does not speak to the duty of care a police officer owes to the subject of a welfare check, nor the reasonable accommodations a police officer owes to the subject of a welfare check.

Ms. Kew's arguments based on these cases is more properly directed at establishing that the officers here had a duty of care in the first place. She may be right about that—a police department's policy may, in certain cases, establish a duty of care. See, e.g., MacLeod, 2012 WL 5949787, at *10 (concluding that the town's use of force policy created a duty of care). But the court does not need to reach or address that issue because Ms. Kew cannot overcome qualified immunity. See id. at *19 (concluding that even though the department's use of force policy created a duty for purposes of a negligence claim, the officers were protected by state qualified immunity). Therefore, the court grants Northfield's motion for summary judgment as to Ms. Kew's claim for negligence insofar as it alleges the officers breached a duty of care to provide her with reasonable accommodations. Having considered both bases of Ms. Kew's negligence claim in Count V of her First Amended Complaint, the court grants Northfield's motion for summary judgment as to Count V of Ms. Kew's First Amended Complaint in full.

Conclusion

The motions for summary judgment (Docs. 77, 78) are GRANTED in part and DENIED in part.²⁸ For the sake of clarity, the court briefly summarizes the disposition:

• Counts I & II for Assault and Battery: The officers’ motion for summary judgment is DENIED;

• Count III for False Imprisonment: The officers’ motion for summary judgment is GRANTED as to Ms. Kew's claim against Officers Gero and Hoar in their individual capacities under 42 U.S.C § 1983; Ms. Kew's claim under Article 11 of the Vermont Constitution is DISMISSED without prejudice;

• Counts IV and V for Negligent Infliction of Emotional Distress and Negligence: The Town of Northfield's motion for summary judgment is GRANTED;

• Count VI for Excessive Force: The officers’ motion for summary judgment is DENIED as to Ms. Kew's claims against Officers Gero and Hoar in their individual capacities under 42 U.S.C § 1983 insofar as she alleges excessive force in the officers’ initial arrest and GRANTED as to Ms. Kew's claims against Officers Gero and Hoar in their individual capacities under 42 U.S.C § 1983 insofar as she alleges excessive force in the officers’ initial use of handcuffs, the officers’ continued use of handcuffs, and Officer Gero's dragging and pushing of Ms. Kew while she remained in handcuffs; Ms. Kew's claim under Article 11 of the Vermont Constitution is DISMISSED without prejudice;

• Count VII for Wrongful Arrest under the Americans with Disabilities Act: The officers’ motion for summary judgment is GRANTED and Town of Northfield's motion for summary judgment is GRANTED.

• Count VIII for Failure to Provide Reasonable Accommodations under the Americans with Disabilities Act: The officers’ motion for summary judgment is GRANTED and the Town of Northfield's motion for summary judgment is DENIED;

• Count IX for Monell liability against the Town of Northfield: The Town of Northfield's motion for summary judgment is GRANTED.

FOOTNOTES

2.   Ms. Kew asserted that she was retested and there was no amphetamine. (Doc. 77-7 at 22.) In her response to Defendants’ request for admissions, she explained that “the amphetamine showed up because [she] had taken Benadryl and allergy medication.” (Doc. 77-37 ¶ 10.)

3.   This appears to be a reference to the police radio code “10-42,” which is used to signal an officer is ending his duty. See, e.g., Patel by Patel v. McIntyre, 667 F. Supp. 1131, 1134 (D.S.C. 1987) (subsequent history omitted); Hertz v. Woodbury County, No. 06-cv-4083, 2008 WL 2095553, at *1 (N.D. Iowa May 16, 2008) (subsequent history omitted).

4.   For ease of reference, the court cites the officers’ body-camera footage using the labels Defendants provided.

5.   When the officers took a hold of Ms. Kew, brought her to the ground, and placed her in handcuffs, it seems Officer Gero suffered a minor scratch. The ambulance crew provided him with hand sanitizer to clean it out. (Gero Video 2 at 16:55–17:40.) Officer Gero can be seen rubbing the sanitizer on his hands and what appears to be a minor scratch on his left thumb. He did not apply a bandage and did not receive any further medical treatment for it. (See id.)

6.   This is confirmed by the Doctor Rebhun's notes from Ms. Kew's visit to the VA earlier that same day. (See Doc. 77-15 at 11.)

7.   The court notes the difference between the ADA and § 1983. The Second Circuit has determined that Title II of the ADA includes an implied private cause of action and abrogates a state's sovereign immunity in certain instances. Garcia, 280 F.3d at 108–12. This means that a state may be sued for retrospective relief, including damages. Id. at 112. On the other hand, the Supreme Court has determined that 42 U.S.C. § 1983 does not abrogate a state's sovereign immunity. Quern v. Jordan, 440 U.S. 332, 345, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). As a result, whether an individual may sue a state official in his official capacity under § 1983 depends on whether the state has waived sovereign immunity for suits under § 1983, see, e.g., Taylor, 2015 WL 541058, at *8, and the type of remedy requested, see, e.g., Ford v. Reynolds, 316 F.3d 351, 354–55 (2d Cir. 2003). Vermont has not waived sovereign immunity for § 1983 claims. 12 V.S.A. § 5601(g).

8.   Northfield assumes for the sake of argument that Ms. Kew has a disability for purposes of summary judgment. (Doc. 77-1 at 3–4.)

9.   The Supreme Court considered whether Title II of the ADA applies to arrests but declined to definitively resolve the issue. See City & County of San Francisco v. Sheehan, 575 U.S. 600, 610, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015).

10.   This is the way other circuits approach the issue as well. See, e.g., Roell v. Hamilton County, 870 F.3d 471, 489 (6th Cir. 2017); Sheehan v. City & County of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014); Bahl v. County of Ramsey, 695 F.3d 778, 784–85 (8th Cir. 2012); Waller ex rel. Est. of Hunt v. City of Danville, 556 F.3d 171, 175 (4th Cir. 2009); Bircoll v. Miami-Dade County, 480 F.3d 1072, 1085 (11th Cir. 2007).

11.   The court, therefore, does not reach the question of whether Ms. Kew's repeated requests to be freed from the handcuffs, to have access to her dog, and to have the officers leave her apartment constitute requests for reasonable accommodations.

12.   The qualified-immunity doctrine “has recently been the subject of intense public scrutiny and debate, especially as the doctrine relates to police conduct.” Linton v. Zorn, No. 18-cv-5, 2022 WL 17080324, at *8 (D. Vt. Oct. 19, 2022) (collecting cases), appeal docketed, No. 22-2954 (2d Cir. Nov. 17, 2022).

13.   At the hearing held on September 15, 2022, Ms. Kew confirmed that she is not alleging any claim based on Officers Gero and Hoar breaking down the door to her apartment and entering her apartment without a warrant. As a result, the court does not address the officers’ argument on this point. (See Doc. 78-1 at 11–16.)

14.   The parties’ briefing appears to understand this claim the same way, only addressing the Fourth Amendment standards for false imprisonment and false arrest, not any due process standard. (See, e.g., Doc. 78-1 at 15–17; Doc. 90 at 9–12.)

15.   The mental health screener's post-incident report confirms this understanding. Ms. Houston described that “Ms. Kew reported that she was sleeping and that's why she did not answer [the door] and was very upset with the [Northfield Police Department]” and was “ju[s]t upset with [the officers] for breaking her door.” (Doc. 77-111 at 2.)

16.   Officer Gero testified that Ms. Kew “threatened to sic the dog on us.” (Doc. 90-11 at 15.) At one point, Ms. Kew does mention her dog, which is in her bedroom, and Officer Hoar responds, “Okay, then we'll take care of your dog.” (Gero Video 2 at 4:00–4:03.) Ms. Kew makes no mention of releasing her dog to injure the officers. Likewise, the officers claim the video captured Ms. Kew's dog growling at them. (Doc. 77-2 ¶ 368.) The court reviewed the video; if Ms. Kew threatens to sic her dog on the officers and if there is any growling, both are inaudible. Because there is video evidence, the court is not required to credit Officer Gero's testimony on this point. See Scott, 550 U.S. at 380, 127 S.Ct. 1769. The officers may testify to these facts at trial, and it will be for a jury to weigh against the other evidence.

17.   The “arguable probable cause” doctrine is controlling law in the Second Circuit. See Guan, 37 F.4th at 806, 810. But there is good reason to conclude that this doctrine may no longer accurately reflect the qualified-immunity analysis established by the Supreme Court. See Walczyk, 496 F.3d at 165–71 (Sotomayor, J., concurring) (describing numerous analytical flaws in the “arguable probable cause” doctrine and asserting that “[i]t is time to eliminate these complications and reconcile our qualified immunity analysis with the Supreme Court's most recent, authoritative jurisprudence”); see also Tal J. Lifshiftz, Note, “Arguable Probable Cause”: An Unwarranted Approach to Qualified Immunity, 65 U. Miami L. Rev. 1159, 1182–86 (2011) (discussing shortcomings of the “arguable probable cause” analysis); Amanda Peters, Mass Arrests & The Particularized Probable Cause Requirement, 60 B.C. L. Rev. 217, 232–34 (2019) (similar).

18.   Graham’s principles also apply in the context of a protective detention, arrest, or seizure. Turner v. City of Champaign, 979 F.3d 563, 569 (7th Cir. 2020) (collecting cases).

19.   “Compartment syndrome occurs when pressure rises in and around muscles. The pressure is painful and can be dangerous. Compartment syndrome can limit the flow of blood, oxygen and nutrients to muscles and nerves. It can cause serious damage and possible death ․ Acute compartment syndrome must get immediate treatment. A surgeon will perform an operation called a fasciotomy. To relieve pressure, the surgeon makes an incision (cut) through the skin and the fascia (compartment cover).” Compartment Syndrome, Cleveland Clinic (Feb. 15, 2021), https://my.clevelandclinic.org/health/diseases/15315-compartment-syndrome.

20.   While the Second Circuit has not said so explicitly, unpublished opinions of the Second Circuit likely do not clearly establish law for purposes of qualified immunity. See, e.g., Wilkinson ex rel. Wilkinson v. Russell, 182 F.3d 89, 101 (2d Cir. 1999) (concluding that a right was not clearly established where neither the plaintiff nor the court had identified “a single published opinion” so stating); see also Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir. 2001) (“A district court opinion affirmed by an unpublished table decision does not determine whether a right was clearly established.”).

21.   That some of the cases cited involved tasers and stun guns, not the use of bodily force, does not mean the right has been defined at too high a level of generality. See Kisela v. Hughes, ––– U.S. ––––, 138 S. Ct. 1148, 1152–53, 200 L.Ed.2d 449 (2018) (per curiam) (discussing the need for factual specificity in defining a clearly-established right). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741, 122 S.Ct. 2508. And “[a]n officer is not entitled to qualified immunity on the grounds that the law is not clearly established every time a novel method is used to inflict injury.” Jones v. Treubig, 963 F.3d 214, 225 (2d Cir. 2020) (alteration in original) (quoting Terebesi v. Torreso, 764 F.3d 217, 237 (2d Cir. 2014)).

22.   The officers entered Ms. Kew's apartment approximately three minutes into one of the body camera videos. (See Gero Video 2 at 3:23.) By minute 19 of that same video, therefore, approximately 16 minutes had elapsed.

23.   Officer Gero, on the other hand, testified that they had a reason to keep Ms. Kew in handcuffs for much longer because she was not fully communicative or cooperative. (See, e.g., Doc. 90-11 at 26.)

24.   Northfield argues that the absence of a policy cannot form the basis of a claim under Monell. (Doc. 77-1 at 16.) But this is incorrect as a matter of law. See City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). It is also misleading because one of the cases Defendants cite explains how the absence of a policy may itself be actionable under Monell. See Gerte v. Borough of Naugatuck, No. 19cv1511, 2021 WL 1165362, at *6 n.4 (D. Conn. Mar. 26, 2021).

25.   “Where plaintiffs allege that their rights were deprived ․ by the unconstitutional application of a valid policy, or by a city employee's single tortious decision or course of action,” a plaintiff must allege that the action was “taken by, or is attributable to, one of the city's authorized policymakers.” Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 126 (2d Cir. 2004). A policymaker is an official who had “final policymaking power” and that the challenged actions must be “within that official's area of policymaking authority.” Roe v. City of Waterbury, 542 F.3d 31, 37 (2d Cir. 2008). Where, like here, the employee is a lower-level employee, a plaintiff must allege that “authorized policymakers approve[d] a subordinate's decision and the basis for it.” Amnesty Am., 361 F.3d at 126 (alteration in original) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (plurality opinion)).While neither party has briefed on this issue, Officer Hoar is likely not a “policymaker” with respect to the CAD notes. Ms. Kew has neither established that Officer Hoar had the authority to implement changes to the CAD reporting system nor that his alleged dereliction of his oversight responsibilities could amount to a department-wide policy. Officer Hoar testified that he was not responsible for developing policies for the Northfield Police Department because that was the job of the Chief of Police, and his role was to give input and recommendations to the Chief. (Doc. 90-9 at 18–19.) As to the CAD notes, he testified only that he would “approve the incident [reports] that officers wrote” and that he might have been aware of the department policies regarding the CAD reports. (Id. at 156.) Likewise, Ms. Kew has not established that any authorized policymakers approved Officer Hoar's decisions regarding the CAD notes. She only established that his supervisors did not approve his failure to consistently update the CAD notes. (See, e.g., Doc. 90-19.) This is another basis to reject her Monell claims here.

26.   Officer Hoar only remembered seeing the CAD note that Ms. Kew was known to hide blades on her person in preparation for his deposition. (Doc. 90-9 at 43–44.)

27.   Although the court declines to exercise supplemental jurisdiction over Ms. Kew's claims under the Vermont Constitution, it retains jurisdiction over her state-law tort claims that are related to her federal claims. 28 U.S.C. § 1367(a). These other claims do not fall within any of the enumerated categories of 28 U.S.C. § 1367(c)(1)–(3). See Catzin, 899 F.3d at 85. Ms. Kew's state-law claims also likely do not present any “exceptional circumstance” under § 1367(c)(4). See SST Glob. Tech., LLC v. Chapman, 270 F. Supp. 2d 444, 459 (S.D.N.Y. 2003) (collecting cases). “[A]lthough it is unusual, it is permissible for the federal court to decide one supplemental claim on the merits while declining to hear another supplemental claim.” 13D Federal Practice & Procedure (Wright & Miller) § 3567.3 (3d ed. Apr. 2023 update).

28.   Northfield argues that only certain types of damages are available for certain of Ms. Kew's claims. (Doc. 77-1 at 24–25.) That is an issue the court can resolve at trial and the court, therefore, declines to rule on it at this stage.

Geoffrey W. Crawford, Chief Judge United States District