Jones v. Town of East Haven (493 F. Supp. 2d 302, 2007)

RULING ON PENDING MOTIONS

THOMPSON, District Judge.

Defendant Town of East Haven (the “Town”) has filed a renewed motion for judgment as a matter of law, and for the reasons set forth in Part I below, that motion is being denied. Plaintiff Emma Jones has filed a “motion for hearing on compensatory damages,” which included a request for a new trial on compensatory damages, and for the reasons set forth in Part II below, that motion is being granted. The Town has filed a motion to set aside the jury’s award of punitive damages against it, and for the reasons set forth in Part III below, that motion is being granted. Finally, the court includes, in Part IV below, a written summary of its findings on the plaintiffs Batson claims.

I. RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW

Defendant Town of East Haven has renewed its motion, pursuant to Fed.R.Civ.P. 50, for judgment as a matter of law on the plaintiffs Monell claim. For the reasons set forth below, the renewed motion for judgment as a matter of law is being denied.

A. Legal Standard

The standard governing motions for judgment as a matter of law pursuant to Rule 50 is well-established. Such a motion should not be granted “unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in [the opposing party’s] favor.” Galdieri-Am-brosini v. National Realty & Dev. Corp., 136 F.3d 276, 289 (2d Cir.1998); Davis v. Rodriguez, 364 F.3d 424, 432 (2d Cir.2004). The court deciding a Rule 50 motion “must give deference to all credibility determinations and reasonable inferences of the jury, and it may not itself weigh the credibility of witnesses or consider the weight of the evidence.” Galdieri-Ambrosini, 136 F.3d at 289 (citations omitted); Advance Pharmaceutical, Inc. v. U.S., 391 F.3d 377, 390 (2d Cir.2004) (“[i]n assessing the sufficiency of the evidence to support a jury verdict, we must view the record in the light most favorable to the opposing party, assuming all reasonable inferences were drawn and all credibility disputes resolved in its favor”). Accordingly, judgment as a matter of law should not be granted unless: (I) “there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture,” or (ii) “there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded [persons] could not arrive at a verdict against [the mov-ant].” Galdieri-Ambrosini, 136 F.3d at 289 (citations omitted); Mattivi v. South African Marine Corp., “Huguenot,”, 618 F.2d 163, 168 (2d Cir.1980); see also Cross v. New York City Transit Authority, 417 F.3d 241, 248 (2d Cir.2005) (noting that “[a] movant’s burden in securing Rule 50 relief is particularly heavy after the jury has deliberated in the case and actually returned its verdict” and pointing to (I) and (ii) as set forth in Galdieri-Ambrosini as the only grounds for setting aside the verdict under those circumstances). “In other words, a Rule 50 motion must be denied unless ‘the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.’ ” Cross, 417 F.3d at 248 (citations omitted).

B. Factual Background

The evidence at trial included evidence with respect to the East Haven Police Department (the “EHPD”) and testimony by and other evidence pertaining to the chief of police in 1997. It also included evidence pertaining to an incident involving an individual named Shane Gray; comments made to an individual named Donald R. Jackman; the wearing of racially offensive T-shirts by members of the EHPD; the shooting of Malik Jones; actions by other EHPD officers immediately following that shooting; and incidents involving an individual named Patricia Snow-den.

1. The EHPD

In 1997, James Criscuolo was the chief of the EHPD, having been appointed chief in 1993. There were approximately 52 members of the department. In terms of vehicles, the EHPD had 11 marked units, six unmarked units, and two police vans. These vans were used both for prisoner transport and for patrol. The Town had a minority population of approximately 1.4%, and the EHPD was all white. Several communities along the shoreline east of New Haven were also predominately white.

The EHPD had three staggered shifts. There was an 8 a.m. to 4 p.m. shift, and some people on that shift worked 7 a.m. to 3 p.m. There was a 4 p.m. to midnight shift, and some people on that shift worked 3 p.m. to 11 p.m. Finally, there was a midnight to 8 a.m. shift, and some people on that shift worked 11 p.m. to 7 a.m. Depending on the particular evening, there were five to eight people working from 4 p.m. to midnight and two people working 3 p.m. to 11 p.m. on the evening shift. This included the shift commander, who would be a lieutenant or sergeant, the dispatcher, and detectives. Typically, there would be five to six marked units patrolling during the evening shift.

The Town encompasses approximately 14 square miles, and it is bordered on the west by New Haven, on the south by the Long Island Sound, on the east by Bran-ford and North Branford, and on the north by North Haven. The EHPD had four geographic sectors for patrol purposes. The Town is longer than it is wide, and the southern patrol sector is bordered by New Haven, the Long Island Sound, and Bran-ford; the center patrol sector is bordered by New Haven and Branford; the north patrol sector is bordered by New Haven, Branford, and North Branford; and the upper north patrol sector is bordered by New Haven, North Haven, and Branford. The New Haven Municipal Golf Course (the “Golf Course”), which lies mostly in East Haven, straddles the New Haven/East Haven line, and there is no thoroughfare through the Golf Course.

Chief Criscuolo, who had commanded the patrol division from 1985 to 1992, testified that EHPD officers patrolled those sectors and that there was no policy, written or unwritten, of patrolling the borders between New Haven and East Haven. Chief Criscuolo testified that the EHPD had both written and unwritten policies. He also told the jury that, while he was chief of police, he was aware that other communities were talking about the issue of racial profiling, but the EHPD did not have that problem, and he concluded that it was not necessary to address that issue. Chief Criscuolo testified that there was no EHPD policy against discriminating against people based on race.

Chief Criscuolo testified that no African-American individual had ever filed a formal complaint or lawsuit against the EHPD alleging excessive force. Joseph A. Pascarella, who was chief of police from 1964 to 1993, testified that, to his knowledge, no one ever claimed they had been mistreated because of his or her race during his tenure as chief.

The EHPD had a formal, written policy on use of deadly force and use of firearms. It was promulgated under the authority of Chief Pascarella. The policy provides, in part:

B. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. A police officer may not seize an unarmed non-dangerous suspect by shooting him.

C. Where the officer has probable cause to believe that the suspect poses a threat of deadly physical harm either to the officer or to others, it is permissible to use deadly physical force to defend himself or a third person to prevent escape by using deadly physical force. Thus, if the suspect threatens the officer or another with the use of deadly physical force or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly physical force may be used if necessary to defend himself or another, or to effect an arrest or to prevent escape, and if, where feasible, some warning has been given.

POLICE OFFICERS SHALL NOT USE DEADLY FORCE IN ANY OTHER MATTER INVOLVING A MISDEMEANOR OR TRAFFIC VIOLATION.

F. MOVING VEHICLES

Discharging a firearm from or at a moving vehicle is prohibited, unless the occupants of the other vehicle are using deadly physical force against the officer or another person.

(Defendant’s Ex. 47).

2. The Shane Gray Incident

The plaintiff introduced evidence from which the jury could have reasonably concluded that on September 15, 1991, Officer Flodquist used excessive force in taking Shane Gray into custody and that, while the EHPD conducted a routine inquiry into Flodquist’s discharge of his weapon, that inquiry was deficient and the EHPD ignored and did not investigate at all Gray’s complaint that Flodquist used excessive force.

It was undisputed that at approximately 9:15 p.m. that night an East Haven resident, Nicholas Pappacoda, was robbed by three black males in their twenties while trying to buy drugs on Eastern Circle in New Haven. New Haven police were called to the scene. At 11:34 p.m., the New Haven Police Department sent out a bulletin to surrounding police departments that three unknown black males in then-early twenties, who were wearing dark clothing, were wanted for robbery with a firearm. The bulletin stated that the incident occurred on Eastern Circle in New Haven, that a silver handgun was displayed, and that gunshots were fired. The bulletin stated that the perpetrators fled in an light blue Oldsmobile Sierra and gave the license plate number. The EHPD dispatcher promptly relayed the information in the bulletin to the EHPD units on patrol. Flodquist testified that there would have been at least five units on patrol at that time.

Eastern Street runs north/south in the City of New Haven, somewhat parallel to the New Haven/East Haven town line. The southern end of Eastern Street crosses the town line, at which point it becomes Laurel Street in East Haven. The northern end of Eastern Street terminates at Quinnipiac Avenue. The last major intersection prior to Quinnipiac Avenue is Route 80, also known as Foxon Road in East Haven and Foxon Boulevard in New Haven. Foxon Boulevard is the first major road crossing the New Haven/East Haven town line north of the Golf Course. If one proceeds from East Haven to New Haven on Foxon Road, turns south at the intersection of Foxon Boulevard and Eastern Street, one eventually arrives at the southern end of Eastern Street and crosses into East Haven, at which point the road becomes Laurel Street. Eastern Circle lies to the east of Eastern Street, is in the shape of a half-circle, and has a southern and a northern intersection with Eastern Street. Eastern Circle lies entirely within the City of New Haven.

Shane Gray testified that he exited his residence on Eastern Circle that evening and saw two Hispanic teenaged brothers from next door taking joyrides in a car on Eastern Circle. When Gray asked if he could take the car for a ride, they let him do so. Gray got into the car and drove towards the northern intersection of Eastern Circle with Eastern Street. As Gray approached Eastern Street, he saw two EHPD cruisers sitting there on Eastern Street, side by side but facing in opposite directions. The two cruisers were blocking the road. Gray panicked and jumped out of the car while it was still moving. The car continued on and crashed into a wooden guard rail next to a parking lot on the northern side of Eastern Circle. Gray ran through the parking lot and out into an open field. Officer Flodquist pursued him in one of the EHPD cruisers.

Also, Gray testified that the cruiser that chased him across the field had not been behind him as he was driving around Eastern Circle. He told the jury that before he saw the two EHPD cruisers parked at the northern intersection of Eastern Street and Eastern Circle, he had not seen any police car at all.

Officer Flodquist’s version of how he came to be pursuing Shane Gray across the open field was quite different. Flod-quist testified that when the EHPD dispatcher broadcast the information about the robbery on Eastern Circle, he informed the dispatcher that he would check both town lines in the vicinity of Eastern Circle. Flodquist testified that he first checked the New Haven/East Haven town line at the Route 80 end; Flodquist’s case/incident report states that the robbery occurred in New Haven on Route 80 near Quinnipiac Avenue. He then went south on Eastern Street and checked the town line at the Laurel Street end. Flod-quist testified that Eastern Street was in his normal course of patrol. Flodquist testified that he then observed a blue Oldsmobile heading south on Eastern Street, and that the driver made a sudden U-turn, and that when the car turned around Flod-quist saw that it had the marker plates that were reported in the recent broadcast as belonging to the car that had been stolen during the robbery. Flodquist testified that he pursued the vehicle a short while north on Eastern Street, into the southern entrance to Eastern Circle, and around Eastern Circle. He testified that his pursuit of the vehicle was very brief, lasting seconds, not minutes. Flodquist also testified that during the pursuit he activated his lights and sirens and he told the EHPD dispatcher that he was in pursuit of the vehicle, and that he had attempted to pull the vehicle over. He testified that near the northern entrance to Eastern Circle, the driver jumped out of the car while it was still moving. The car continued on and crashed into a wooden guard rail next to a parking lot while the driver ran through the parking lot and out into an open field, with Officer Flodquist in pursuit, driving his EHPD cruiser.

Flodquist testified that he had no communication with Officer Kevin McCarthy prior to pursuing Gray and that at no time while he was pursuing Gray’s vehicle that night did he see the EHPD cruiser being driven by McCarthy. He could not say whether McCarthy’s cruiser arrived on the scene before or after the automobile driven by Gray hit the guardrail. The plaintiff introduced into evidence the report of the New Haven police officer who investigated the crash of the Oldsmobile into the guard rail. Officer McCarthy told that New Haven officer that McCarthy was in his vehicle on Eastern Street, at the northern intersection of Eastern Circle with Eastern Street, and Gray was driving the Oldsmobile towards him when he suddenly slowed the vehicle and jumped out of the car. The car then went out of control and slammed into the wooden guard rail. The report contains no indication of how McCarthy came to be at the scene and no indication that he was aware of Flodquist pursuing Gray on Eastern Street and around Eastern Circle.

During Flodquist’s deposition, he had testified that, once Gray jumped out of the automobile and started running, he pursued Gray in his cruiser, instead of on foot, because there were no other officers on the scene at the time and, in that situation, Flodquist did not want to run out in to a field after an armed person without cover. However, at trial, Flodquist conceded that although he could not say exactly when McCarthy arrived at the scene, he knew at the time he was pursuing Gray across the field in his cruiser that he was not alone at the scene; specifically, he knew that McCarthy was in close proximity. He also testified that it was his intention to get past Gray.

The jury also heard very different accounts from Gray and Flodquist as to what happened during the pursuit across the field. Gray testified that as he ran across the field, Flodquist’s cruiser caught up with him “real fast.” When Flodquist’s cruiser caught up with Gray, it hit Gray and he flipped onto the hood of the cruiser. The cruiser kept going and slid into a ditch. At that point, Gray rolled over, fell off the ear, jumped up, and ran. When Gray looked back, Flodquist was still in the cruiser. Without saying “freeze” or anything else, Flodquist shot at Gray. Gray ducked his head and kept running. Gray ran to a neighboring building, knocked on the door, and laid down on the porch. Officers arrived at the porch, placed Gray in handcuffs, and proceeded to take Gray to an EHPD cruiser in the parking lot.

Gray’s relatives and other residents of neighboring homes had come outside at the scene, and Gray told them that the officer had hit him with his car and also had shot at him. Gray refused to let the officers place him in the EHPD cruiser until his aunt arrived and calmed him down. At that point, Gray was yelling loudly enough to be heard by everyone at the scene, including all of the police officers on the scene, that Flodquist had hit him with his car and had shot at him. There were both New Haven and EHPD officers at the scene at this time. Gray testified that at no time that day did he have a gun.

Gray testified that he was so mad about being hit by Flodquist’s cruiser and about being shot at that he called the officers every name he could think of and that, if he could have gotten the handcuffs off, he would have attacked the officers. He testified that after he had been transported to EHPD headquarters, he continued to be mad. When he was taken to the desk at the station, he was yelling at whomever was around that Flodquist had shot at him and hit him with his car and that his side hurt. Gray testified that there were three or four EHPD officers around the desk at that time and that these officers were different from the ones Gray complained to at the scene of the incident.

Gray told EHPD officers at the station that he needed to go to the hospital because he had been hit by Flodquist’s cruiser. The East Haven Fire Department was called and a paramedic checked Gray at approximately 1:53 a.m. Gray was subsequently taken to Yale New Haven Hospital, where he was treated in the emergency room. At the hospital, Gray complained of pain in his left buttock, and he told the staff that he had been hit by a police ear at a moderate speed and thrown onto the hood. The hospital staff noted that Gray had a contusion on his left hip. Gray was discharged from the hospital at about 3:40 a.m. and returned to EHPD headquarters. At about 4:40 a.m., Gray was released on a $2,500 bond, having been charged with larceny, carrying a pistol without a permit, interfering with police and reckless endangerment.

Flodquist told the jury that as he pursued Gray across the open field, his cruiser was not directly behind Gray, but rather Gray was in front of the cruiser but off to the left. When Flodquist wrote up his case/incident report, he stated that when he drove up on the grassy area, he saw that the suspect had “an object” in his right hand while he was running. However, when Flodquist testified, he stated that when he saw Gray jump out of the car and start running away, Gray had a chrome object in his hand and that as Flodquist got closer to Gray, he could see that it was a gun. When challenged as to how he could see that the object was a gun from approximately 50 feet away at 11:30 or so at night in the dark, Flodquist testified that he could see that it was a gun because he had all of his lights on as he was chasing down Gray.

Flodquist testified that he then saw Gray disappear and realized that the cruiser was approaching a ditch, at which point he applied his brakes and the cruiser slid. As the cruiser slid down the embankment into the ditch, Flodquist saw Gray going up the far side of the ditch. Flodquist testified that he opened the driver’s door of his cruiser and shouted for Gray to stop. Gray, who was on the far side of the ditch, turned towards Flodquist. Flodquist testified that he saw a small chrome gun in Gray’s right hand. Before Gray could raise it, Flodquist, having already drawn his weapon, fired two shots at Gray while leaning on the cruiser door for support. Gray fell to the ground and then got up and ran away.

Flodquist testified that he then pursued Gray to the porch of a nearby residence approximately 200 yards away, where he took Gray into custody at gunpoint and placed handcuffs on him. Flodquist then escorted Gray to Officer Peterson’s EHPD cruiser, which was parked on Eastern Street. No gun could be found on Gray’s person or on the ground where he had been handcuffed. Flodquist conceded that once Gray stood up and while he was running away from the ditch to the porch, Flodquist always had Gray in sight and he did not see a gun in Gray’s hand; nor did he see Gray throw a gun away.

A search of the entire area was undertaken by the New Haven and EHPD officers at the scene, but no gun was ever found. Flodquist testified that someone in the crowd must have taken the gun, although he saw no one take it. He wrote in the case/incident report that several persons in the crowd that gathered in the apartment complex were laughing and saying, “Don’t bother looking for the gun, you won’t find one now.” However, Flodquist conceded that he had said or done nothing that would have alerted anyone in the crowd to the fact that he was claiming that he saw Gray with a gun. He also agreed that he was the only police officer who claimed to have seen a gun. Also, when Flodquist testified at trial concerning comments from the crowd about not finding the gun, he indicated that a person from the crowd, who was over near Flodquist’s cruiser, yelled out the comment about not bothering to look for the gun and added something like “white boy.”

Flodquist testified that he was positive that at no time did his cruiser ever strike Gray and that Gray never rolled up onto the hood of his cruiser. He also testified that Gray never told him that Gray had been hit by Flodquist’s cruiser. Flod-quist’s case/incident report does, however, state that he attempted to stop the cruiser as it caught up with Gray and it began skidding on the wet grass; that Flodquist had already unfastened his seat belt and had his weapon in his hand; and that “the cruiser, officer and suspect went into a large drainage ditch.” It also notes that Gray was complaining of pain in his buttocks.

In testifying about this incident, Flod-quist disagreed that the EHPD’s procedure was that when a crime is committed in New Haven, it would be a New Haven arrest, even if the arrest was made by EHPD officers. Chief Criscuolo had testified if an individual committed a crime in New Haven but was apprehended by the EHPD, the procedure would be to turn the suspect over to the New Haven police, even if the person was apprehended in East Haven by the EHPD.

At the time Flodquist placed Gray in handcuffs, no New Haven officer had arrived on the scene. The only officers there were EHPD officers. When Sgt. DaCosta of the EHPD arrived at the scene, he took possession of Flodquist’s weapon because that was part of the procedure to be followed when shots are fired by an EHPD officer. An internal investigation into whether the discharge of the weapon was justified was also part of that procedure. The internal investigation was conducted by Captain Criscuolo, who was Chief of the EHPD in 1997, and Flodquist testified that the conclusion was that his actions were justified. Gray testified that he was never contacted by anyone from the EHPD about the incident.

A report of the investigation of Flod-quist’s firing his weapon at Gray was prepared. That report was destroyed by the EHPD’s keeper of records in accordance with state regulations. However, the EHPD cell card for Shane Gray from the night of the incident had not been destroyed. The cell card is a document that is created and time-stamped when a prisoner arrives in detention. Then additional events, such as when a prisoner makes a telephone call, and the time of the event, are also recorded. Flodquist agreed that if Gray had made a complaint, one could expect to see it on the cell card. When Flodquist was asked by plaintiffs counsel whether Gray’s cell card was available, he initially testified that he did not know whether it was or not. Later in the questioning, Flodquist was asked where he had gotten very specific times he gave in his testimony as to when certain events happened during Gray’s stay at the station. It came out that Flodquist had gotten the times by reviewing a copy of Gray’s cell card. When the cell card was later introduced into evidence, it contained no record of any complaint by Gray — just a notation by Flodquist that the Fire Department had been called to check the prisoner.

During Flodquist’s pretrial deposition, he remembered Shane Gray’s name without being prompted, and he volunteered, without being asked, that Gray was deceased. When asked how he knew that Gray was deceased, Flodquist stated that an investigator from the State’s Attorney’s Office had called him a few weeks or months after the incident and told him Gray had been the victim of a homicide in New Haven. Flodquist also told the plaintiffs counsel during the deposition that he thought Gray was a juvenile at the time of the incident, and at trial he agreed that he knew that juvenile records are not available to the public; Gray was 21 at the time of the incident. Flodquist also testified during his deposition that he thought the incident happened sometime around 1986 or 1987; Flodquist was notified that he had been hired by the EHPD in February 1985.

3. Comments to Jackman

Donald R. Jackman testified about a comment made by a member of the EHPD in the presence of three other officers, on January 8, 1996, to the effect that Jack-man would have been treated differently had he been African-American instead of white.

Jackman, who had had a previous encounter with the EHPD, made a series of telephone calls to the EHPD late on the night of January 7, 1996 and early in the morning of January 8, 1996. Jackman used insulting language during these calls. At approximately 1:00 or 2:00 a.m., a squad car was sent to Jackman’s residence. Eventually four members of the EHPD were at the scene. Jackman refused to let the officers into his residence and refused to tell them whether he had a gun. When the four officers gained entry to Jackman’s residence, a violent struggle ensued and they learned that Jackman did have a gun. Jackman bit one of the officers on the hand, causing a serious injury. Jackman testified that he was beaten about the face and head, had teeth knocked out, and needed stitches in his head.

■ Jackman testified that at the end of the struggle, he was facedown on his bed and one of the officers, who had his weapon to Jackman’s head, said to Jackman, ‘You’re lucky you’re not a nigger because you’d be fucking dead” and “[i]n three days you will be in Whalley being butt fucked by the niggers.” (Transcript, June 5, 2003, at 15). At the time, Jackman did not know what “Whalley” was, but he subsequently learned that it was a jail in New Haven.

The four members of the EHPD who were involved in the Jackman incident were Sgt. Daniel Gihully, and Officers Robert Nappe, Joseph Peterson and Ed Vecellio. Nappe testified at trial that neither he nor any of his fellow officers made any comment of the type claimed by Jack-man.

4. The T-Shirt Incident

The jury could have reasonably inferred that substantially contemporaneously with, if not prior to, the Jones shooting, certain members of the EHPD were wearing racially offensive T-shirts in public. The precise time period during which these T-shirts were first worn is unclear, but the situation eventually resulted in a May 27, 1997 memorandum from Chief Criscuolo and a discussion at the regularly monthly meeting of the Board of Police Commissioners that evening.

Chief Criscuolo testified that it came to his attention, around the time of the Jones shooting, that some members of the EHPD were wearing certain T-shirts while playing in softball games, but the team on which these police officers played was not an official EHPD team. The T-shirts depicted police officers holding suspects on the hood of a police car and contained a reference to “boys on the hood.” Chief Criscuolo testified that, even though he had never seen the movie “Boyz n the Hood,” he thought the T-shirts were in bad taste, and he agreed that they were racially offensive to people of color. ■

Chief Criscuolo testified that the T-shirt situation was brought to his attention by an individual he passed on the street. Criscuolo could not recall who this person was or even whether the person worked for the EHPD. Criscuolo testified that he expressed his own displeasure about the T-shirts and told the person that he wanted the situation stopped. Criscuolo stated that making that statement to this particular person was, in his view, sufficient action on his part to address the situation. In Criseuolo’s view, the situation was insignificant so long as officers stopped wearing the T-shirts.

Criscuolo conceded that, as Chief of the EHPD, having learned about the T-shirt incident, it fell to him to do something in response. He agreed that as chief of police he should take action if members of the EHPD were engaging in off-duty conduct that made it appear to the public that members of the department behaved in a discriminatory fashion.

Criscuolo testified that he did not conduct any investigation into the matter. He took no steps to find out how many members of the EHPD were wearing the T-shirts. He testified that he did not know whether it was ten, twenty, or some other number of officers. Nor did Criscuolo take any steps to determine which members of the EHPD were wearing the T-shirts or how long they had been wearing such racially offensive T-shirts in public. Criscuolo felt that he only wanted to know who had been wearing such T-shirts if the practice continued. Criscuolo testified, however, that he conducted no inquiry within the department to determine if the wearing of the T-shirts had stopped. He simply assumed that it had stopped because he was not told it had continued.

Criscuolo testified that the T-shirts were a topic of discussion around the town, and that he heard about them from people in addition to that person he spoke to on the street and told he wanted the situation stopped. Although Criscuolo never asked to see one of the T-shirts, they were described to him and he may have seen a depiction of them in a newspaper which ran an article about the wearing of the T-shirts by members of the EHPD.

Detective Raecuia of the EHPD, who was president of the police union, testified that certain members of the union — he could not say how many — had been wearing the T-shirts. He testified that there was no controversy when the T-shirts were first acquired or worn. The T-shirts only became controversial after an article appeared in a newspaper approximately one month prior to May 27,1997.

On May 27, 1997, Chief Criscuolo distributed the following memorandum to the EHPD:

It was recently brought to my attention that a Tee Shirt that appeared to be representing sponsorship by this Department was being worn by a baseball team comprising of some East Haven Police Officers.

Before any display, inference of sponsorship or representation of the East Haven Police Department is used, permission must first be obtained from the Chief of Police.

(Defendant’s Ex. 123). Criscuolo testified that he knew that the Board of Police Commissioners was meeting on the night of May 27, 1997, but he could not recall if he knew that the subject of the T-shirts would be raised at the meeting. The subject of the T-shirts was raised at the meeting. The minutes of the meeting reflect that members of the media and citizens from New Haven were in attendance, in addition to the members of the Board. The minutes reflect that the chairman of the Board commented that the T-shirt incident offended him and asked Chief Cris-euolo if he had handled the situation, and that the Chief replied that he had. The chairman stated that the incident was “unexcusable” and that the Board would take quick action if something like that ever happened again. Another of the Board of Police Commissioners also commented that it was “intolerable.”

As the plaintiff pointed out to the jury, Chief Criseuolo’s memorandum made no mention of offensive T-shirts.

5. The Jones Shooting

On April 14, 1997, at approximately 6:16 p.m., Officer Flodquist of the EHPD reported to the dispatcher that he was trying to catch up with a gray Oldsmobile Cutlass automobile that was eastbound on Route 1. Approximately one minute later, Flodquist gave the dispatcher the license plate number of the automobile and informed the dispatcher that they were doing a U-turn and proceeding west on Frontage and that the driver was “taking off’ on him. At a little after 6:18, Flodquist reported that he was pursuing two black males, westbound in a gray Cutlass, coming up to Saltonstall and Forbes and that they were going about 50 miles per hour. At that point, Officer Gary DePalma joined the pursuit, pulling up immediately behind the Oldsmobile; Flodquist was immediately behind DePalma. At approximately 6:19 p.m., the EHPD dispatcher informed the New Haven dispatcher that two EHPD units were inbound into New Haven, trying to stop an automobile.

The pursuit continued onto Interstate 95, and DePalma and Flodquist followed the Oldsmobile when it got off at Exit 2. At that point, the EHPD dispatcher advised the New Haven dispatcher that they should know that if they approached the vehicle, there were “two black, uh, males within.” Eventually, DePalma and Flod-quist pursued the Oldsmobile eastbound on Grand Avenue, where at 14 seconds after 6:21, Flodquist notified the dispatcher that they were eastbound on Grand Avenue, going at a slow speed and he thought the occupants of the Oldsmobile were looking to bail out. At 31 seconds after 6:21, Flodquist reported that they were into a vacant lot at Murphy Road and Grand Avenue. Officer Flodquist’s next transmissions were at 9 seconds after 6:22 p.m., when he stated: “45, there’s an Officer involved here. Need Signal One. I’ve been hit by the vehicle,” and at 32 seconds after 6:22 p.m., when he stated, “I’ve been struck by the suspect’s vehicle on foot involved in a shooting.”

The pivotal events in this case occurred in the short time between Flodquist’s transmission at 14 seconds after 6:21 p.m. and his transmission to the dispatcher at 9 seconds after 6:22 p.m. The evidence considered by the jury included that summarized below.

As the Oldsmobile proceeded east on Grand Avenue, Malik Jones was driving and Samuel Cruz was in the front passenger seat. Jones turned left onto Murphy Road and lost control of the ear. The Oldsmobile veered to the right into a vacant lot, and traveled in a semi-circle and exited the lot onto Grand Avenue, but now facing west in the westbound lane.

DePalma had begun to turn left onto Murphy Road, but when he saw the path being taken by the Oldsmobile, backed up and pulled back onto Grand Avenue near Flodquist’s police van, still facing east. Flodquist had not tried to turn and had stopped on Grand Avenue, also facing east. The Oldsmobile came to a stop, its path forward blocked by the two EHPD vehicles.

Flodquist exited the police van and ran between his vehicle and the Oldsmobile to the driver’s side door of the Oldsmobile. Witnesses described how Flodquist’s face looked during this time, and the jury could have reasonably concluded that he was, at the least, extremely angry. Flodquist had his weapon out by the time he was between the police van and the Oldsmobile. Cruz testified that while Flodquist was between the police van and the Oldsmobile, Jones, who had not turned off the car, shifted gears and put the Oldsmobile into reverse, but did not move the car. Jones’ hands were on the steering wheel.

Flodquist testified that as he got out of the police van, he paused and stopped behind the driver’s door of the van for 20 to 30 seconds. However, other witnesses testified that Flodquist immediately ran to the driver’s door of the Oldsmobile. De-Palma exited his cruiser, and he went to the passenger side of the Oldsmobile.

It is undisputed that after Flodquist arrived at the driver’s side of the Oldsmobile, he used the butt of his gun to break the window in the driver’s door. The glass shattered; some of it went into the car and some of it fell outside the car. It is also undisputed that at some point, the Oldsmobile moved backwards following a circular path, and Flodquist was directly in its path, and had he not kept moving backwards, he would have been struck by the car as it circled backwards.

The Oldsmobile moved in a circular fashion, through the open lot, and back onto Grand Avenue, where it came to rest against DePalma’s cruiser. The driver’s door of the Oldsmobile came to rest against the front left corner of DePalma’s vehicle, and consequently that door could not be opened.

It was also undisputed that only four bullets were ever recovered and that four shell casings were found after the halfway point on the circular path the Oldsmobile traveled from its starting point on Grand Avenue facing the police van to its final position against DePalma’s cruiser. At the time of the initial investigation, only three shell casings were located. The fourth shell casing was not found until four months later, when the Connecticut State Forensic Laboratory did a forensic reconstruction of the incident. It was undisputed that Flodquist fired four shots after the halfway point on the circular path traveled by the Oldsmobile.

It was undisputed that Flodquist’s weapon held 12 bullets, 11 in the clip and one in the chamber. It was also undisputed that, after the incident, there were only seven bullets remaining in the weapon. Flod-quist testified that on March 24, 1997, he was dispatched to shoot a sick animal and fired one shot at that time and that he did not know whether he had reloaded his weapon between March 24, 1997 and April 14,1997.

The defense contended that Flodquist only fired a total of four shots during the incident; that all four shots were fired after the halfway point on the circular path traveled by the Oldsmobile, while the Oldsmobile was moving toward Flodquist; and that when Flodquist shot Jones, he reasonably believed that he was in danger of being seriously injured or killed. The plaintiff contended that Flodquist fired a total of five shots and that he fired the first shot immediately after breaking the glass in the driver’s door with his gun and before he ever believed he could not get out of the path of the Oldsmobile.

Based on the evidence submitted, the jury could have reasonably concluded that under the circumstances, the amount of force used by Flodquist exceeded that which a reasonable officer would have used in similar circumstances because the force used was not reasonably necessary to defend himself against the imminent use of force.

Flodquist gave written statements on April 14, 1997 and on April 22, 1997. His April 22nd statement contained more detail. In that statement, he stated that he exited the police van and took cover behind the driver’s door and waited there for approximately 20 to 30 seconds, that he had drawn his weapon, that he had given commands to the occupants of the Oldsmobile several times, and that he saw that Jones had his hands on the steering wheel and Cruz was sitting still. Flodquist stated that he concluded that the pursuit was over and that it was time to take the driver into custody, so he approached the driver’s side, continuing to give loud commands not to move. The April 22nd statement continues:

I positioned myself at the driver’s side door area, just forward of the door hinge and to the rear of the left front tire. I saw the operator’s right hand come off the steering wheel and his left hand turn the wheel to the right. Both his movements were very quick. At the same time, the car started to accelerate quickly with the left front tire turned towards me. I reacted by striking the driver’s window with a sweeping motion with my right hand and the butt of my service weapon. I am not sure if the car struck me just before breaking the window or just after. The purpose in breaking the window was to stop the operator from driving the car and striking me. I was going to turn the car off or grab the operator to do this. The operator of the gray Oldsmobile continued to backup rapidly. I continued to shout commands as the car moved. I had to move with the car to avoid being run over by it.... If he had backed straight up, he could have escaped without driving into my path. The car made contact with me several times and I tried to escape the path. I tried to escape but the car was going too fast. I turned around to try to run away and saw the left tire coming right at me. Looking at the tire I thought I was going to be killed or seriously injured. Unable to escape I continued to sidestep alongside the car and I was scared for my life without any doubt whatsoever. The car was right on top of me. The car struck me again and I was thrown back. This is when I fired the first shot. By shooting at the operator I was trying to stop the operator from accelerating and running me over. The first shot hit him in the left chest area. The shot appeared to have no effect on the operator and he gave me a defiant, go to hell look. He did not stop the car, it continued to turn in to me. The car continued to accelerate and pick up speed. I then fired several more times after hesitating after the first shot. I do not recall how many more times I fired, but I stopped firing when I saw the operator slump to the right and the car slowed down. I was now able to run towards the rear of the car and out on an angle escaping its path.

(Plaintiffs Ex. 24, at 3-6).

Flodquist testified that although he was in a state of heightened awareness and on alert, he was not angry or upset during the incident. He stated that his face could have been red because he was yelling and he has a fair complexion. Although he had stated in his April 22nd statement that he was unsure about the sequence of events, Flodquist testified that he banged on the driver’s window after the Oldsmobile struck him. He also testified that, although he could not be positive, he believed that he broke the window the first time he struck it. Flodquist was bleeding from the head at the end of the incident. He testified that he knows he was cut, but he does not know for certain what hit him, although he believed the cuts were from the glass shattering when the driver’s window broke.

Also, Flodquist conceded that he did not try to get away from the Oldsmobile until after the window broke. He testified that the first time he realized he could not get away was when the window broke, and that prior to that point, he tried to move with the car.

Flodquist testified that he did not fire the first shot until he was at least halfway around the circular path traveled by the Oldsmobile. He also testified that he did not know how many shots he fired. Flod-quist conceded on cross-examination that if the Oldsmobile posed no risk of harm to him at the time he fired the first shot, then he was not justified in doing so.

Cheryl Bell testified that she was driving on Grand Avenue with her young son and had pulled her car over to the side when she heard sirens and saw police cars. She stopped practically across the street from where the Oldsmobile was when Flodquist exited his police van. Flodquist caught her attention when he jumped out of his van because he pulled his weapon and looked “flaming mad.” His face was bright red; Bell explained that he looked “as mad as hell.” Bell testified that Flod-quist ran to the driver’s side of the Oldsmobile, never pausing. She stated that he ran up to the car and immediately started banging on the window. Almost simultaneously with the second or third bang, Bell heard a gunshot. Bell testified that the entire incident happened very fast and took about five seconds.

In addition; Bell testified when Flod-quist was about two steps from the driver’s door, she saw the white lights in the rear of the Oldsmobile go on, like a flash of the reverse lights. She also testified that while it is possible the car was moving when Flodquist broke the window, her recollection was that she did not see it moving; she stated, however, that she was looking directly at Flodquist. After the first gunshot, Bell put her head down on the steering wheel. She testified that she did not remember how many gunshots she heard after she put her head on the steering wheel, but that she heard at least three or four gunshots throughout the entire incident.

Edwin Velez testified that he was in slow-moving traffic on Grand Avenue near Murphy Drive and that the three vehicles, i.e. the Oldsmobile, DePalma’s cruiser, and Flodquist’s police van were less than 100 feet in front of him. He testified that, before the window broke, while two officers were yelling at the people in the ear, the Oldsmobile went forward a little bit and then backwards a little bit. He stated that the Oldsmobile started to move backwards again and the officer who was standing by the driver’s window put his left hand on the hood of the car by the windshield area and the officer on the passenger side was kicking at the door. Velez testified that Flodquist banged on the driver’s side window three times and that the first gunshot was fired by Flod-quist immediately after he broke the window.

MacArthur Bethea lived on Grand Avenue and was at home at the time of the incident. Bethea testified that he first noticed the Oldsmobile because its engine was so noisy. He stated that he saw the Oldsmobile go into the vacant lot and that he saw the police van come to a stop and Flodquist jump out. He testified that he could see that Flodquist was in a rage because he was red. He stated that the Oldsmobile was coming to a stop, that Flodquist had his gun out, and that as Flodquist got to the car, the car was “into a