Irizarry v. Dowling

BRIAN IRIZARRY v. MICHAEL DOWLING, ANDREW RONDEAU, HEATH ERICSON, and ETHAN TANKSLEY

CIV. NO. 3:15CV01400(HBF)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

September 26, 2018

BENCH RULING

Plaintiff Brian Irizarry brings this civil rights action against officers of the Connecticut State Police pursuant to 42 U.S.C. §1983, claiming excessive force and deliberate indifference to serious medical needs in violation of his Fourth Amendment rights under the United States Constitution. Defendants are Troopers Michael Dowling, Andrew Rondeau and Ethan Tanksley and Sergeant Heath Ericson.¹ Defendants are sued in their individual capacity. A bench trial was held on July 10 and 11, 2018.

Testimony and evidence adduced at the trial are summarized below as necessary to explain the Court's findings and conclusions.

I. FINDINGS OF FACT

Based on the credible testimony, the exhibits, and the entire record developed during the trial, the Court finds the following facts established.

1. At all times relevant to this lawsuit, the defendants were acting in their official capacity as Connecticut State Troopers and therefore under color of state law.

2. Plaintiff Brian Irizarry is currently serving a state sentence for various crimes including assault on a police officer, creating a public disturbance and reckless endangerment, all arising on May 12, 2013 out of the incidents alleged in this lawsuit. [7/10/18 Tr. 8-9].

3. In May 2013, plaintiff Brian Irizarry was released on bond with a promise to appear on various state larceny and robbery charges. [7/10/18 Tr. 13]. On May 12, 2013, there were several outstanding warrants for failure to appear, with a total bond amount of $450,000. [Def. Ex. 501, 7/10/18 Tr. at 121].

Failure to Appear

4. Michael Malley is a Bail Enforcement Agent. Prior to May 12, 2013, he posted bond for Irizarry after an arrest. [7/10/18 Tr. 75]. Sometime thereafter, Malley learned that plaintiff did not attend his sentencing and the bond was forfeited by the court for Irizarry's failure to appear.

Id. Malley testified that he had six months to locate Irizarry or he would be responsible for paying the full amount on the bond. [7/10/18 Tr. 75-76].

5. Malley explained that he reviewed Irizarry's bond application and reached out to his family and listed contacts, did field investigations and used other investigative measures in an effort to apprehend plaintiff. [7/10/18 Tr. 76]. Malley was aware that Irizarry was wanted on approximately six warrants. Id.

6. Malley learned from these inquiries that Irizarry was

on the run and that he apparently made statements that he was not going to be caught, and they were kind of worried, his friends, the people who reached out to us, were worried for his safety being apprehended. They said he had a very, very fast car and he would try to flee. That was the impression that they gave us is that he does not want to be taken into custody.

[7/10/18 Tr. 77].

7. Malley was informed that plaintiff was carrying pepper spray. Id.

Dunkin' Donuts

8. Malley received information that Irizarry was going to be in Brooklyn, Connecticut, and was spending time at the Dunkin' Donuts. [7/10/18 Tr. 78-79]. He drove with Mark Vanaman, another Bail Enforcement Agent, to the Dunkin' Donuts where they eventually identified plaintiff inside the building and saw his car in theparking lot. [7/10/18 Tr. 79]. Malley contacted the State Police to report that Irizarry was located. Id.

9. At 6:57 PM on May 12, 2013, Connecticut State Trooper Michael Dowling was dispatched by Troop D to assist Malley and Vanaman with taking plaintiff into custody. [Def. Ex. 501, 7/10/18 Tr. 120].

10. Trooper Dowling met Malley and Vanaman in a parking lot located near the Brooklyn Dunkin' Donuts. The Agents presented identification and badges and showed Trooper Dowling a photograph of Brian Irizarry. [7/10/18 Tr. at 121]. It was arranged that Agent Vanaman would walk to the Dunkin' Donuts and enter through the front entrance. Malley and Dowling drove their cars to the Dunkin' Donuts. Malley planned to enter through the west side entrance and Trooper Dowling would enter on the north side through the front door. [7/10/18 Tr. 82, 103, 122]. There were vehicles at both exits. Malley and Vanaman testified that they believed it would be safer to apprehend Irizarry in a confined setting, such as the Dunkin' Donuts, rather than when plaintiff was in his car. They assessed that a potential car chase should be avoided. [7/10/18 Tr. 91, 113, 122].

11. Malley testified that as he pulled the car up to the west entrance, he observed Vanaman struggling with Irizarry inside and "people running all over the place. As soon as I entered, I was hit by a cloud of pepper spray." [7/10/18 Tr. 83]. Malley stated that his eyes were tearing, he had difficulty breathing and he started to cough. [7/10/18 Tr. 84].

12. Trooper Dowling testified that as he pulled up to the front of the building, he observed "two females, who were seated near that window, jump up and run from the right to the left to the east side of the restaurant." [Tr. 7/10/18 Tr. 123]. As he entered through the front door, Trooper Dowling observed a reddish-orange substance on Vanaman that he recognized from his training and experience to be pepper spray, also known as OC ("oleoresin capsicum") spray. He testified that Vanaman was fighting with Irizarry, who had shed his shirt. [7/10/18 Tr. 124].

13. As he entered the restaurant, Trooper Dowling immediately felt the effects of pepper spray-including burning in his lungs and skin and changes to his breathing and vision. [7/10/18 Tr. 125].

14. Irizarry ran across the restaurant toward the register. Trooper Dowling testified that plaintiffignored repeated verbal commands to stop and submit to arrest. [7/10/18 Tr. 126-27]. "My understanding is that he was just trying to do anything he could do get away." [7/10/18 Tr. 127].

15. Closed circuit video footage recorded inside the Dunkin' Donuts from four locations captured the following:

• Agent Vanaman entered Dunkin' Donuts through the front door and walked past plaintiff, who was seated at a corner table. Out of plaintiff's sight, Agent Vanaman removed his glasses and pulled out his badge that was hanging from a chain round his neck to display it on his chest.

• When Vanaman approached plaintiff at his table, plaintiff initiated a physical struggle. The video shows Agent Vanaman holding plaintiff by his shirt and plaintiff escaping his grasp by discharging pepper spray and slipping from his jacket and shirt and running toward the service counter. Customers and employees are seen running away from plaintiff and covering their mouths and eyes. Agent Vanaman doubled over covering his eyes. Plaintiff collided with customers as he reached the counter on the other/east side of the Dunkin' Donuts.

• As plaintiff and Agent Vanaman engaged in a physical struggle, Agent Malley entered Dunkin' Donuts through the west entrance. Shortly thereafter, Trooper Dowling entered through the front entrance.

• Trooper Dowling attempted to stop plaintiff at the counter by holding his pants but was unable to keep his grip. Irizarry jumped over the counter, then ran a short distance to the drive-through window. Irizarry dove head-first through the drive-through window and ran to the right.

• Trooper Dowling exited the Dunkin Donuts through the front door. He was next seen running by the drive-through window after Irizarry.

[Def. Ex. 503].

16. Vanaman testified that when he approached Irizarry he had his badge displayed and stated "bail enforcement, you have a warrant, put your hands up." [7/10/18 Tr. 105-07]. As Irizarry reached into his pocket, Vanaman approached him and began to physically struggle with him to prevent plaintiff from reaching whatever was in his pocket. Id. Irizarry sprayed pepper spray directly into Vanaman's eyes, blinding him. [7/10/18 Tr. 107]. Irizarry pulled away and slipped out of his shirt and jacket and ran. Id.17. At trial, plaintiff did not dispute that he was aware there were outstanding warrants issued for his arrest; he admitted that he failed to comply with verbal commands from Agents Vanaman and Malley or Trooper Dowling to submit to their custody; he purposely carried pepper spray to evade arrest; he discharged pepper spray at Agent Vanaman; he saw Trooper Dowling enter the Dunkin' Donuts through the front door and ran in the opposite direction so he would not be arrested; he physically struggled with Vanaman, Malley and Trooper Dowling; he ran into customers who blocked his path to jump over the counter; and he escaped from Dunkin' Donuts by diving out of the drive-through window in an effort to evade being taken into custody. [7/10/18 Tr. 45-57].

18. Vanaman, Malley and Trooper Dowling testified that they issued numerous commands to plaintiff to submit to arrest that he ignored. [7/10/18 Tr. 84, 86, 110, 126].

19. Once outside the Dunkin' Donuts, Trooper Dowling testified that he called for police backup, identifying Irizarry as wearing black pants and no shirt. [7/10/18 Tr. 130; Def. Ex. 501]. Plaintiff was running "at a dead sprint." [7/10/18 Tr. at 131].

Dowling testified that he was concerned for his safety.

I had already felt the effects of the pepper spray; I had clearly identified myself as a state trooper; I told him he was under arrest, and he was still fleeing from me. I had used physical force. I grabbed onto him and he still pulled away and resisted my commands to stop resisting.

[7/10/18 Tr. at 131].

Foot Pursuit and Arrest

20. The undisputed testimony is that Trooper Dowling chased Irizarry from the Dunkin' Donuts down Allen Hill Road, through a yard and into nearby woods. Trooper Dowling testified that he continued to order Irizarry to stop and submit to arrest as he gave chase. [7/10/18 Tr. 57-58; 77, 132].

21. Before entering the woods, Trooper Dowling warned Irizarry to stop or he would use his Taser. Plaintiff did not comply. The Taser was deployed but did not reach plaintiff. A second

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