Austrian v. City of Burlington

1

2024 Vt Super 073102

CATHY AUSTRIAN, on behalf of her minor child, J.A., Plaintiff v. CITY OF BURLINGTON, Defendant

No. 24-CV-370

Superior Court of Vermont, Civil Division, Chittenden Unit

July 31, 2024

RULING ON DEFENDANT'S MOTION TO DISMISS

Helen M. Toor, Superior Court Judge

Plaintiff Cathy Austrian brings this civil rights action against the City of Burlington arising from a police encounter involving her minor child J.A. in May 2021. She claims that the police used excessive force in violation of Article 11 of the Vermont Constitution, and that their treatment of J.A amounted to several violations of the Vermont Fair Housing and Public Accommodations Act. 9 V.S.A. § 4500 et seq. The City moves to dismiss pursuant to Rule 12(b)(6).

Alleged Facts

The following facts are alleged in the complaint. The court makes no finding as to their accuracy.

J.A. is a black minor child with a documented history of behavioral and intellectual disabilities. He was 14 years old at the time of the incident underlying this complaint.

On May 15, 2021, J.A.'s mother, Cathy Austrian, called the Burlington Police Department and welcomed two officers into her home following J.A.'s retail theft of vape pens from a local Cumberland Farms convenience store. She told the officers that J.A. was recently placed on an increased dose of medication for ADHD and had recently been acting strangely. She also told them that J.A. was behaving "in a manner somewhat disconnected from reality" and had a recent MRI of his heart. She led the officers upstairs, where she expected them to speak with J.A.

Right away, the officers were or should have been aware that J.A had some kind of mental, intellectual, or emotional disability based on his mother's instruction, the Department's familiarity with J.A., and the officers' observations of J.A., who sat on his bed, largely non-communicative, for the first 10 minutes of the encounter. After recovering all of the stolen items except one, the officers threatened J.A. with handcuffing and arrest if he did not produce the final item, which he held in his hand while remaining quietly seated.

Shortly thereafter, the officers approached J.A., grabbed him from the bed, wrenched his arms behind his back, and wrested the item from his hands. As a result of his disability, J.A exhibited a "fear response," seeking to protect himself from the officers and keep them away from his body. The officers then pinned J.A. back to the bed, handcuffed him, and took him to the floor. Once restrained, J.A. panicked, screaming and contorting himself in distress. J.A.'s mother then asked that emergency services be contacted.

A police sergeant asked Burlington Fire Department paramedics to place an opaque mesh bag, or "spit hood," over J.A.'s head, and J.A. began to scream even louder. Paramedics labelled J.A. as experiencing "excited delirium," which Plaintiff alleges is "a racialized and unsubstantiated condition rejected by the medical community and often attributed to the victims of police violence who are Black." Compl. ¶¶ 18, 92. After receiving permission from an off-site doctor, and despite knowing of J.A.'s heart problems and disabilities, paramedics then injected J.A. with ketamine, a highly potent fast-acting anesthetic used to induce loss of consciousness. The injection rendered J.A. unconscious, and the paramedics removed him in a stretcher bad and brought him to the hospital, where he remained on a heartrate monitor for the night.

As a result of this encounter, J.A. experienced physical bruising, unconsciousness, extreme fear, discrimination, loss of dignity, and an exacerbation of his behavioral disabilities at home and school. Plaintiff alleges that the City employees' actions were contrary to departmental directives and policy. Specifically, she alleges that they could have given J.A. more time and space, engaged him verbally to try to obtain the single remaining item, called a supervisor to seek guidance, requested a clinician for support, and otherwise avoided escalation. Additionally, she alleges that after successfully recovering the last stolen item, they could have simply disengaged and left J.A. in his home with his mother rather than again physically escalating the situation.

Discussion

In Count 1, Plaintiff claims that the Burlington Police Department used unjustified and unreasonable force against J.A., in violation of Article n of the Vermont Constitution. Compl. ¶¶ 173-88. Counts 2 through 5 all allege violations of the Vermont Fair Housing and Public Accommodations Act (VFHPAA), 9 V.S.A. § 4500 et seq. In Count 2, Plaintiff alleges that the City failed to make modifications for J.A.'s disability as to both the police officers' interaction with him and the paramedics' interaction with him. Compl. ¶¶ 189-206. Count 3 claims that the City denied J.A. equal services based on race, through the officers' perception of J.A. as a disproportionately aggressive physical threat and the paramedics' pathology of J.A.'s distress as "excited delirium." Compl. ¶¶ 207-26. The last two counts allege a failure to adequately train both City police officers (Count 4) and City paramedics (Count 5) on their obligations under the VHFPAA. Compl. ¶¶ 227-36, 237-51. Plaintiff seeks declaratory and injunctive relief, compensatory and punitive damages, costs, and attorneys' fees.

The City moves to dismiss pursuant to V.R.C.P. 12(b)(6). The City contends that: (1) its officers conducted a reasonable search and seizure as permitted by Article 11; (2) its police and fire departments are not subject to VFHPAA; (3) even if VFHPAA applies, it made reasonable efforts to account for J.A.'s purported disabilities; and (4) its police and fire departments are protected by qualified immunity. Preliminarily, however, the court addresses the bodycam video footage that the City submitted along with its motion to dismiss.

I. Bodycam Video Footage

The City proffers the police bodycam video from the day in question, arguing that it paints a very different picture from that described in the complaint: patient and gentle attempts by the police and paramedics to calm J.A., rather than the aggressive actions alleged. Plaintiff responds that such evidence is improper on a 12(b)(6) motion to dismiss.

It is well settled that "[w]hen the complaint relies upon a document . . . such a document merges into the pleadings and the court may properly consider it under a Rule 12(b)(6) motion to dismiss. Similarly,... courts may properly consider matters subject to judicial notice, such as statutes and regulations, and matters of public record." Kaplan v. Morgan Stanley & Co., 2009 VT 78, ¶ 10 n.4, 186 Vt. 605 (citations and quotation omitted). The City first argues that the court may consider the video because Plaintiff referenced it in the complaint. However, Plaintiff referenced the video only in passing, as something reviewed by the Police Commission. See Compl. ¶ 170 ("After reviewing the complaint, the body camera footage, and the confidential results of BPD's internal investigation, the Burlington Police Commission made several recommendations to Police Chief Jon Murad."). That is not sufficient to merge the video into the complaint. "A mere passing reference or even references [] to a document outside of the complaint does not, on its own, incorporate the document into the complaint itself." Williams v. Time Warner Inc., 440 Fed.Appx. 7, 9 (2d Cir. 2011); see also, e.g., Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) ("Limited quotation from or reference to documents that may constitute relevant evidence in a case is not enough to incorporate those documents, wholesale, into the complaint.").

The City next argues that the footage is "central to Plaintiffs claims" because "it depicts the relevant events of May 15, 2021." Reply at 3. "[C]ourts resolving Rule 12(b)(6) motions may consider matters incorporated by reference or integral to the claim." Wright & Miller, 5B Fed. Prac. & Proc. Civ. § 1357 (4th ed.) (emphasis added). But there is no indication that Plaintiff relied on the video in drafting the complaint. Because both J.A. and his mother witnessed the entirety of the relevant events, the complaint could have been based on their witness testimony alone. See Smith v. City of Greensboro, No. 1:19CV386, 2020 WL 1452114, at *3 (M.D. N.C. Mar. 25, 2020) ("The factual allegations... stand independent of the video, and may conceivably be proven without it . . . via witness testimony[]. Nor is there any indication from Plaintiffs that they actively relied upon the video in crafting the complaint. Thus, the video is not 'integral' to the complaint.") (citation omitted); Sidi v. City of Cincinnati, No. 1:13CV242, 2014 WL 1276195, at *1 n.3 (S.D. Ohio Mar. 27, 2014) ("While there just so happens to be a video recording of the events at issue in this case, the ability of Plaintiffs to bring their claims did not rest on the existence of the video recording."); cf. Bell v. City of Southfield, Michigan, 37 F.4th 362, 364 (6th Cir. 2022) ("[T]he videos here are already in the record. Indeed, the plaintiff's complaint implicitly relies on the videos by recounting facts that could only be known to him by watching the videos.").

The City alternatively contends that the bodycam footage is a “matter[] of public record” because: (1) it meets the definition of “public record” under Vermont's Public Records Act; (2) it was reviewed by the City's police commission in their review of the incident and (3) selected parts of the footage were distributed by Plaintiff's attorneys to the media. The City construes the term “public record” in this context much too broadly. Courts have limited the “public record” exception. See Alharbi v. Beck, 62 F.Supp.3d 202,...