Steeves v. City of Rockland (600 F. Supp. 2d 143, 2009)

MEMORANDUM DECISION ON MOTION FOR SUMMARY JUDGMENT

JOHN H. RICH, III, United States Magistrate Judge.

In this case arising from an encounter between plaintiff Gary W. Ames and Rock-land, Maine police officer William Smith on June 25, 2006, the defendants have moved for summary judgment as to all claims against them. See Defendants’ Motion for Summary Judgment (“Motion”) (Docket No. 35) at 1, 7. For the reasons that follow, the Motion is granted as to Counts I, VI, VI I, VIH, IX, and XI I, as well as Count IV to the extent that it alleges liability on the part of the City of Rockland, Count V to the extent that it alleges violation of Ames’ rights to be free from false arrest and imprisonment, and Count XIII to the extent that it alleges liability on the part of the City of Rockland, or defendants Ockenfels or Boucher. The Motion is otherwise denied. In addition, the plaintiffs are ordered to address questions raised below regarding the viability of Counts II and X, failing which those counts shall be dismissed.

I. Summary Judgment Standards

A. Federal Rule of Civil Procedure 56

Summary judgment is appropriate only if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Rodriguez-Rivera v. Federico Trilla Reg’l Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir.2008) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008)). “A fact is material if it has the potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008)).

The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(e). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir.2001) (citation and internal punctuation omitted).

B. Local Rule 56

The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the Local Rules of this District. See Loe. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loe. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive “separate, short, and concise” statement of material facts in which it must “admit, deny or qualify the facts by reference to each numbered paragraph of the moving party’s statement of material facts[.]” Loe. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party’s statement of additional facts, if any, by way of a reply statement of material facts in which it must “admit, deny or qualify such additional facts by reference to the numbered paragraphs” of the nonmovant’s statement. See Loe. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.

Failure to comply with Local Rule 56 can result in serious consequences. “Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” Loe. R. 56(e). In addition, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment” and has “no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of fact.” Id.; see also, e.g., Sanchez-Figueroa v. Banco Popular de Puerto Rico, 527 F.3d 209, 213-14 (1st Cir.2008).

C. Requests To Strike

The defendants ask the court to strike the plaintiffs’ statement of additional facts on the basis of non-conformance with Local Rule 56 to the extent that it simply incorporates by reference responses set forth in the plaintiffs’ opposing statement of material facts. See generally Defendants’ Responses to Plaintiffs’] Statement of Additional Facts (“Defendants’ Reply SMF”) (Docket No. 50); Plaintiffs’] Statement of Additional Facts (“Plaintiffs’ Additional SMF”), commencing on page 54 of Plaintiffs’ Statement of Disputed Material Fact, Objections to Defendanfs’] Amended Statement of Material Fact and Statement of Additional Facts (“Plaintiffs Opposing SMF”) (Docket No. 47).

The plaintiffs are placed on notice that this practice does indeed transgress Local Rule 56(c), which requires that additional facts “each [be] set forth in a separately numbered paragraph ] and supported by a record citation[.]” Loe. R. 56(c). Nonetheless, I decline to strike the offending statements on that basis in this case, because, with some extra effort, it is possible to sort out which additional facts the plaintiffs intend to set forth. The defendants could have done so themselves but, instead, chose to respond only by way of requests to strike. Therefore, in accordance with Local Rule 56(f), in instances in which the defendants have tendered no substantive response, the plaintiffs’ statements of additional facts are deemed admitted to the extent that they set forth facts rather than arguments, and are supported by the record citations given.

II. Factual Background

The parties’ statements of material facts, credited to the extent either admitted or supported by record citations in accordance with Local Rule 56, with disputes in cognizable facts resolved in favor of the plaintiffs as nonmovants, reveal the following facts relevant to this decision.

A. Ockenfels

Alfred Ockenfels began working as a patrol officer for the City of Rockland in 1979. Defendant[s’] Amended Statement of Material Facts (“Defendants’ SMF”) (Docket No. 40) ¶2; Plaintiffs’ Opposing SMF ¶ 2. During his employment with the City of Rockland Police Department, Ockenfels also served as a detective, a patrol sergeant, and deputy chief before becoming chief of police in 1989. Id. ¶ 3. Ockenfels served as Rockland’s chief of police for 16 years, until he retired in 2005. Id. ¶ 4. He was succeeded as chief of police by the current chief, Bruce Boucher. Id. ¶ 5.

Ockenfels was serving as chief of police when William Smith was hired as a patrol officer by the City of Rockland in 2001. Id. ¶ 6. In Rockland, the chief of police does not have hiring or firing authority with regard to the city’s police officers. Defendants’ SMF ¶ 7; Affidavit of Alfred Ockenfels (“Ockenfels Ait”) (Docket No. 38) ¶ 2. By City Charter, that authority is vested in the city manager. Defendants’ SMF ¶ 8; Plaintiffs’ Opposing SMF ¶ 8.

During Ockenfels’ tenure, when the city-had a vacancy in the police department, an applicant being considered for employment would have to pass a background check, a psychological evaluation, and a polygraph examination and then be interviewed by members of the city’s personnel board. Id. ¶ 9. The applicant also would have to be a graduate of the Maine Criminal Justice Academy and be certified by the State of Maine to work as a law enforcement officer within the state. Id. ¶ 10. At the conclusion of this process, the personnel board would make a hiring recommendation to the city manager, who ultimately decided whether the applicant would be offered a position. Id. ¶ 11. This process was. used when Smith applied for, and ultimately was offered, a position as a patrol officer in 2001. Id. ¶ 12.

Ockenfels has known Smith since he was a high school student because Smith worked a seasonal position as a traffic officer with the Rockland Police Department. Id. ¶ 13. Seasonal traffic officers are unarmed and are used to help direct traffic during times or events that attract large numbers of tourists to Rockland. Id. ¶ 14. Ockenfels was aware that Smith later was employed as a firefighter/paramedic with the Rockland Fire Department. Id. ¶ 15. He also was aware that, after leaving the fire department position, Smith became a deputy with the Knox County Sheriffs Office and then a police officer with the Town of Rockport Police Department before he applied for a job as a patrol officer with the City of Rockland in 2001. Id. ¶ 16.

At the time Smith applied for the job with Ockenfels’ department in 2001, Smith was a graduate of the Maine Criminal Justice Academy and had approximately five years’ experience as a law enforcement officer with Knox County and the Town of Rockport. Id. ¶ 17. Ockenfels was not aware of anything about Smith that would have made him unacceptable for the position of patrol officer. Defendants’ SMF ¶ 18; Ockenfels Aff. ¶ 3. In evaluating Smith’s application for employment, Ockenfels confirmed that Smith had left each of his two prior jobs in law enforcement voluntarily, not as a result of termination by his employers. Defendants’ SMF ¶ 19; Plaintiffs’ Opposing SMF ¶ 19. Ockenfels received no information in Smith’s background check that would have indicated that Smith had a history of making unlawful arrests, using excessive force, or knowingly violating the rights of citizens. Defendants’ SMF ¶ 20; Ockenfels Aff. ¶ 3.

During the approximately four years that Ockenfels was Smith’s supervisor, he found Smith to be very capable in carrying out his duties as a patrol officer. Defendants’ SMF ¶ 21; Plaintiffs’ Opposing SMF ¶ 21. Smith was far more active in carrying out his duties than most other officers and, as a result, made significantly more arrests than some other officers in the department. Id. ¶ 22. Ockenfels believed that, as a result of Smith’s education, intelligence, and experience, Smith had all of the attributes needed to be a good patrol officer. Id. ¶ 23.

During Ockenfels’ tenure as chief of police, Rockland officers were required to complete mandatory education specified by the Maine Criminal Justice Academy in order to maintain their certification as law enforcement officers. Id. ¶ 24. It was Ockenfels’ responsibility, as the department head, to ensure that the officers serving under him completed all required education courses and maintained their certifications. Id. ¶ 25.

Rockland officers also had opportunities to take additional training that would enhance their ability to perform their duties and/or fulfill the needs of the department, including Crisis Intervention Training, which Smith completed prior to June 25, 2006. Id. ¶ 26. Smith testified that he took a weeklong Crisis Intervention Team course with the National Association of the Mentally 111, but that it did not deal directly with situations in which a violent encounter takes place. Plaintiffs’ Additional SMF ¶ 9 (incorporating Plaintiffs’ Opposing SMF ¶ 26; Smith Dep. at 10-13). At deposition, he testified that he had learned through that training that “[t]he first thing in every situation is officer safety and the safety of anybody around.” Plaintiffs’ Additional SMF ¶ 9 (incorporating Plaintiffs’ Opposing SMF ¶ 26; Smith Dep. at 15).

Department officers also received training on the department’s standard operating procedures, including its policy on dealing with persons exhibiting deviant behavior, among them mentally ill persons or persons with other mental disabilities. Defendants’ SMF ¶ 27; Plaintiffs’ Opposing SMF ¶27. That policy authorizes Rockland officers to take into custody a person who exhibits deviant behavior who has committed a crime, but the officer must then determine the most appropriate confinement condition to protect the public as well as satisfy the treatment needs of the deviant person. Id. ¶ 28. Neither the Response to Deviant Behavior policy nor the Arrest Procedures policy addresses how to distinguish mental health incidents from criminal acts, how to deal with persons with mental retardation, deafness, or disabilities, or how an officer on the beat ought to approach such individuals prior to making confinement decisions or decisions to use force. Plaintiffs’ Additional SMF ¶¶ 10-11 (incorporating Plaintiffs’ Opposing SMF ¶¶ 27-28; Exhs. 2-3 to Tower Dep.).

Legal issues that arise in police interaction with persons with mental disabilities are also part of the training on the Americans with Disabilities Act (“ADA”) that all officers receive in the basic law enforcement course at the Maine Criminal Justice Academy. Defendants’ SMF ¶ 29; Ockenfels Aff. ¶ 5. Smith graduated from the Maine Criminal Justice Academy in November 1997. Plaintiffs’ Additional SMF ¶ 12 (incorporating Plaintiffs’ Opposing SMF ¶ 29; Affidavit of William Smith (“Smith Aff.”) (Docket No. 37) ¶ 1).

Prior to June 25, 2006, Ockenfels was not aware of any facts that would have provided notice to the City of Rockland that there existed a problem with its officers, including specifically Smith, using excessive force against arrestees. Defendants’ SMF ¶ 39; Ockenfels Aff. ¶ 7.

In the five-year period preceding Ames’ arrest in 2006 during Ockenfels’ tenure as chief of police, the only lawsuit alleging excessive force by Rockland police officers, Dimmitt v. Ockenfels, resulted in a summary judgment ruling in favor of the city and the officers involved. Defendants’ SMF ¶ 40; Plaintiffs’ Opposing SMF ¶ 40. While chief of police, Ockenfels also was aware of no facts to support a contention that the city’s police officers discriminated against persons with disabilities in providing law enforcement services to the public. Defendants’ SMF ¶ 41; Ockenfels Aff. ¶ 7. At the time of Ames’ arrest on June 25, 2006, Ockenfels was no longer the chief of police, having retired a year earlier. Defendants’ SMF ¶ 42; Plaintiffs’ Opposing SMF ¶ 42.

In Ockenfels’ deputy’s opinion, “his management style was authoritarian and all those below him were subjects.” Plaintiffs’ Additional SMF ¶ 8 (incorporating Plaintiffs’ Opposing SMF ¶ 25; Deposition of Wallace Tower (“Tower Dep.”), Exh. 4 to Plaintiffs’ Opposing SMF, at 59). This had a “very negative impact on moral[e] in the agency” and “[cjreated an atmosphere of distrust, an atmosphere of individualism, a lack of team effort, reduced moral[e], excessive sick time, et cetera, et cetera.” Plaintiffs’ Additional SMF ¶ 8 (incorporating Plaintiffs’ Opposing SMF ¶ 25; Tower Dep. at 60).

B. Boucher

Boucher has been employed by the City of Rockland as the chief of police of the Rockland Police Department since 2005. Defendants’ SMF ¶43; Plaintiffs’ Opposing SMF ¶43. He held that position on June 25, 2006, the date of the arrest giving rise to the instant lawsuit. Id. ¶ 44. Boucher is a graduate of the Maine Criminal Justice Academy and is certified as a law enforcement officer in the State of Maine. Id. ¶ 45. He is familiar with policies and procedures concerning arrest powers, the use of force in connection with arrests, and the training given to Rockland police officers in these areas since his employment there in 2005. Id. ¶ 46.

Before any police officer hired by the City of Rockland is allowed to patrol on his or her own, he or she must first graduate from the Maine Criminal Justice Academy and be certified by the State of Maine to perform the duties assigned to a patrol officer. Id. ¶ 47. In addition, all new Rockland officers must complete the department’s field training program. Id. ¶48. The Rockland Police Department’s field training program is overseen by supervisory personnel, who review the officers’ performance. Id. ¶ 49. A full-time Rockland police officer oversees all new officers’ activities as patrol officers during the field training period. Id. ¶ 50. It is only after the field training program is successfully completed that a newly-hired Rockland police officer may work patrol duties on his or her own. Defendants’ SMF ¶ 51; Affidavit of Bruce Boucher (“Boucher Aff.”) (Docket No. 39) ¶ 2.

The Rockland Police Department has a policy concerning the response of its officers to persons exhibiting deviant behavior, which frequently includes persons suffering from mental illness or a mental disability. Defendants’ SMF ¶ 52; Boucher Aff. ¶ 3. Wallace Tower, deputy chief and training officer, testified that, depending on the circumstances, there are differences in dealing with persons with mental retardation. Plaintiffs’ Additional SMF ¶ 20 (incorporating Plaintiffs’ Opposing SMF ¶ 52; Tower Dep. at 31). In arresting persons with mental retardation, “it would depend on the circumstances” whether factors not present in dealing with a rational adult would apply. Plaintiffs’ Additional SMF ¶ 20 (incorporating Plaintiffs’ Opposing SMF ¶ 52; Tower Dep. at 32). Similarly, in dealing with a 10-year-old child rather than an adult, whether a different approach applies “depends on the circumstances.” Id. Whether, when officers deal with those with mental retardation or who are mentally or emotionally challenged, it makes sense for them to move slowly and not excite the disturbed person again “[d]epends on the circumstances.” Plaintiffs’ Additional SMF ¶20 (incorporating Plaintiffs’ Opposing SMF ¶ 52; Tower Dep. at 41).

The Rockland Police Department’s officers are trained on the requirements of departmental policies. Defendants’ SMF ¶ 53; Boucher Aff. ¶ 3. The Rockland Police Department also has a Use of Force policy, which was in effect on June 25, 2006. Defendants’ SMF ¶ 54; Boucher Aff. ¶3; Use of Force policy, Exh. A thereto. This policy defines force as excessive “when its application is inappropriate to the circumstances, which may result in serious physical injury or death to a suspect.” Plaintiffs’ Additional SMF ¶ 22 (incorporating Plaintiffs’ Opposing SMF ¶ 54; Use of Force policy § 111(F)). The policy provides that, “[i]n evaluating the reasonable application of force, officers must consider factors such as: age, size, strength, skill level with Department weapons, state of health, and the number of officers opposing the number of suspects.” Id. It does not address techniques for dealing with persons who are mentally ill or retarded. Plaintiffs’ Additional SMF ¶ 22 (incorporating Plaintiffs’ Opposing SMF ¶ 54; Use of Force policy). Per the policy, “[w]here lesser levels of force appear ineffective, officers may employ hands, fists, feet, knees, and so on in striking an adversary according to methods sanctioned through training.” Plaintiffs’ Additional SMF ¶ 22 (incorporating Plaintiffs’ Opposing SMF ¶ 54; Use of Force policy § IV(C)).

Coverage for Rockland and its police officers for liability arising out of their law enforcement duties in 2006 was provided by the town’s membership in the Maine Municipal Association (“MMA”) Property & Casualty Pool, a self-insured municipal risk pool. Defendants’ SMF ¶ 55; Plaintiffs’ Opposing SMF ¶ 55. Under the pool agreement, coverage for claims arising under state law is only available if the entity or the officers do not enjoy immunity under state law. Defendants’ SMF ¶ 56; Boucher Aff. ¶ 5. Coverage provided by the MMA is the only coverage available to the defendants in the instant matter. Defendants’ SMF ¶ 57; Boucher Aff. ¶ 5.

C. Smith

Smith was hired as a Rockland police officer in 2001. Defendants’ SMF ¶ 59; Smith Aff. ¶ l. Prior to his employment with the Rockland Police Department, Smith was employed by the Knox County Sheriffs Office and the Town of Rockport Police Department. Defendants’ SMF ¶ 60; Plaintiffs’ Opposing SMF ¶ 60. Prior to becoming a law enforcement officer, Smith was employed as a firefighter/paramedic with the Rockland Fire Department. Id. ¶ 61. Smith graduated from the Maine Criminal Justice Academy in November 1997. Id. ¶ 62. On June 25, 2006, he had been certified by the State of Maine to work as a law enforcement officer with the Rockland Police Department. Id. ¶ 63.

While at the Criminal Justice Academy, Smith was provided training on arrest powers, the lawful use of force in connection with arrests, and dealing with persons with various disabilities, including mental illness or mental disability. Id. ¶ 64. Additionally, all officers attending the Maine Criminal Justice Academy’s basic course receive training regarding the ADA, which would also include dealing with persons with mental disabilities. Id. ¶ 65. Prior to June 25, 2006, the only training provided to Rockland officers on dealing with persons with mental disabilities was provided by the Maine Criminal Justice Academy. Plaintiffs’ Additional SMF ¶ 24 (incorporating Plaintiffs’ Opposing SMF ¶ 24; Tower Dep. at 28-29).

Prior to June 25, 2006, and while employed by the Rockland Police Department, Smith received training regarding the department’s Use of Force policy and its policy on responding to persons exhibiting deviant behavior. Defendants’ SMF ¶ 66; Smith Aff. ¶ 2. Prior to June 25, 2006, Smith also received Crisis Intervention Training that was sponsored by the Rockland Police Department through a course provided by an outside agency, designed to provide additional skills to law enforcement officers dealing with persons in crisis, who frequently include persons with diminished mental capacity or mental illness. Defendants’ SMF ¶ 67; Smith Aff. ¶ 2; Ockenfels Aff. ¶ 5. As a result of his training in crisis intervention, Smith is a member of the Crisis Intervention Team, a group of certified officers specifically trained in the identification, handling, and disposition of individuals exhibiting signs of mental health crisis. Defendants’ SMF ¶ 68; Plaintiffs’ Opposing SMF ¶ 68 Smith is also licensed as a paramedic and, because of that, probably has more training in medicine and medical conditions than any other Rockland police officer. Defendants’ SMF ¶ 69; Boucher Aff. ¶ 3.

Prior to June 25, 2006, Boucher was not made aware of problems that existed involving Smith and Smith’s knowledge of Maine’s laws governing arrest and/or the use of force. Defendants’ SMF ¶ 70; Boucher Aff. ¶ 4. Prior to June 25, 2006, Boucher had not received information that he considered credible that Smith unlawfully exercised his arrest powers, needlessly used force against arrestees, or required additional training and/or supervision in those areas. Defendants’ SMF ¶ 71; Boucher Aff. ¶ 4. Prior to June 25, 2006, Boucher also had not received information that he considered credible indicating that there was any widespread problem with other Rockland police officers concerning the use of their arrest powers or their use of force in connection with arrests. Defendants’ SMF ¶ 72; Boucher Aff. ¶ 4.

D. Smith’s Acquaintance with Ames and Kavanaugh

Prior to June 25, 2006, Smith was familiar with two people whom he regularly saw while patrolling downtown Rockland. Defendants’ SMF ¶73; Plaintiffs’ Opposing SMF ¶ 73. These persons familiar to Smith, later identified as Gary Ames and Marie Kavanaugh, frequently walked around the downtown area holding hands and giving all of the appearances of being a domestic couple. Defendants’ SMF ¶ 74; Smith Aff. ¶ 3. As of June 25, 2006, Smith believed that Ames and Kavanaugh were a couple with a long-standing romantic relationship. Defendants’ SMF ¶ 76; Plaintiffs’ Opposing SMF ¶ 76. Kavanaugh considers Ames her boyfriend of almost eight years, id. ¶ 77, although the relationship is not sexual, Plaintiffs’ Additional SMF ¶ 33 (incorporating Plaintiffs’ Opposing SMF ¶ 77; Deposition of Marie Kavanaugh (“Kavanaugh Dep.”), Exh. 3 to Plaintiffs’ Opposing SMF, at 35-36). She and Ames have been engaged for many years. Defendants’ SMF ¶ 78; Plaintiffs’ Opposing SMF ¶ 78. However, Smith did not take into consideration whether Ames and Kavanaugh were domestic partners in taking the action in question. Plaintiffs’ Additional SMF ¶¶ 30, 32, 92 (incorporating Plaintiffs’ Opposing SMF ¶¶74, 76, 132; Smith Dep. at 50-51).

Although Smith regularly saw the couple walking downtown, it was usually from his cruiser while on patrol and, therefore, he had no real interaction with them. Defendants’ SMF ¶ 75; Smith Aff. ¶ 3. Ames’ and Kavanaugh’s appearance led Smith to believe that they may suffer from some type of mental condition, although he had no information regarding any formal diagnosis or reliable characterization of their level of cognitive functioning. Defendants’ SMF ¶ 79; Smith Aff. ¶ 3. Kavanaugh is a person with a mental handicap and has only a fourth-grade education. Plaintiffs’ Additional SMF ¶ 117 (incorporating Plaintiffs’ Opposing SMF ¶ 157; Kavanaugh Dep. at 5-6).

Smith used to see Ames almost daily. Plaintiffs’ Additional SMF ¶ 31 (incorporating Plaintiffs’ Opposing SMF ¶ 75; Smith Dep. at 38). During a taped conversation with Ames’ sister, plaintiff Judith Steeves, following the incident in question, Smith told her: “You have always been good to me[,]” and “You guys have always been sweet to me.” Plaintiffs’ Additional SMF ¶ 31 (incorporating Plaintiffs’ Opposing SMF ¶ 75; Track 3, undated recording of Smith conversation with Steeves (“Track 3”), CD attached as Exh. A to Smith Aff. (“CD”), at 1:00, 1:17). Smith also told Ames on the day of the incident in question: “I’ve never seen you that way before.” Plaintiffs’ Additional SMF ¶ 31 (incorporating Plaintiffs’ Opposing SMF ¶ 75; Track 1, recording of Smith interview of Ames on June 26, 2006 (“Track 3”), CD, at 7:04). Ames testified that he told Smith following the incident, “Billy Smith, you broke my leg.” Plaintiffs’ Additional SMF ¶ 36 (incorporating Plaintiffs’ Opposing SMF ¶ 81; Deposition of Gary W. Ames (“Ames Dep.”), Exh. 2 to Plaintiffs’ Opposing SMF, at 20)

Although Smith denies knowing that Ames was a person with mental retardation, he admits that it seemed to him that Ames and Kavanaugh were “mentally slow or challenged.” Plaintiffs’ Additional SMF ¶¶ 31, 34 (incorporating Plaintiffs’ Opposing SMF ¶¶ [75], 79; Smith Dep. at 42, 45, 65). Smith had seen Ames wearing hearing aids. Plaintiffs’ Additional SMF ¶¶ 31, 34-35 (incorporating Plaintiffs’ Opposing SMF ¶¶ 75, 79-80; Smith Dep. at 48). In response to a comment by Steeves following the incident in question that Ames could “hear nothing,” Smith stated: “I know.” Plaintiffs’ Additional SMF ¶¶ 31, 35 (incorporating Plaintiffs’ Opposing SMF ¶¶ 75, 80; Track 3, CD, at 3:41). Smith also can be heard on tape agreeing with Steeves following the incident that Ames has the mind of a 10-year-old. Plaintiffs’ Additional SMF ¶¶ 30, 34 (incorporating Plaintiffs’ Opposing SMF ¶¶ 74, 79; Track 3, CD, at 1:54).

Smith previously had been advised by Sergeant Dan Brown of the Rockland Police Department that, on one occasion, Brown had been dispatched to Ames’ residence after his family reported Ames being violent and breaking things there. Defendants’ SMF ¶ 82; Smith Aff. ¶ 3. Smith was advised that, in the mid-1980s, there was an incident in which Ames had broken things at the house, although Ames was not violent against people. Plaintiffs’ Additional SMF ¶ 37 (incorporating Plaintiffs’ Opposing SMF ¶82; Deposition of Sergeant Daniel Brown (“Brown Dep.”), Exh. 6 to Plaintiffs’ Opposing SMF, at 11-12). Brown told Smith that Ames’ demeanor caused him to leave his firearm outside of the residence to avoid introducing it into that volatile situation. Defendants’ SMF ¶ 83; Smith Aff. ¶ 3. However, Brown described Ames as a peaceful person in general who did not have a reputation for violent behavior. Plaintiffs’ Additional SMF ¶¶ 37, 49 (incorporating Plaintiffs’ Opposing SMF ¶¶ 82, 96; Brown Dep. at 12). Brown warned Smith to be cautious because Ames was a big man and there had been some prior history of smashing furniture, although Brown had “been able to talk with Gary.” Plaintiffs’ Additional SMF ¶ 39 (incorporating Plaintiffs’ Opposing SMF ¶ 84; Brown Dep. at 13). Brown’s information was conveyed to Smith prior to Smith’s arrest of Ames on June 25, 2006. Defendants’ SMF ¶ 85; Plaintiffs’ Opposing SMF ¶ 85.

E. Incident of June 25, 2006

On June 25, 2006, Smith had just begun his shift as a bicycle patrol officer in the downtown Rockland area. Id. ¶ 86. Smith later told deputy chief Tower that passing motorists were yelling toward the direction of Ames and sounding their horns. Plaintiffs’ Additional SMF ¶ 41 (incorporating Plaintiffs’ Opposing SMF ¶ 87); Letter dated August 17, 2006, from Boucher to Ames & attachments thereto (“Boucher Report”) (Docket No. 51) at [10]. Smith observed Ames dragging, or attempting to drag, Kavanaugh across a parking lot. Plaintiffs’ Additional SMF ¶ 42 (incorporating Plaintiffs’ Opposing SMF ¶ 88; Smith Dep. at 51). Kavanaugh was clearly trying to resist being pulled in the direction in which Ames was pulling her. Defendants’ SMF ¶ 89; Smith Aff. ¶ 4; Kavanaugh Dep. at ll.

Kavanaugh testified that Ames “was just pulling me a little bit[,j” approximately four inches, and that she had no fear that he would pull her to the ground. Plaintiffs’ Additional SMF ¶¶ 42^3, 46, 50, 82 (incorporating Plaintiffs’ Opposing SMF ¶¶ 88-89, 92, 99, 131; Kavanaugh Dep. at 41-42). She also testified that she could have pulled her wrist away if she wanted to. Plaintiffs’ Additional SMF ¶¶ 43, 46, 51, 82 (incorporating Plaintiffs’ Opposing SMF ¶¶ 89, 92, 100, 131; Kavanaugh Dep. at 38). Ames had hold of her wrist by his finger, forefinger, and thumb. Plaintiffs’ Additional SMF ¶¶42, 45, 82 (incorporating Plaintiffs’ Opposing SMF ¶¶ 88, 91,131; Kavanaugh Dep. at 43).

Ames was pulling Kavanaugh because he wanted her to go to a family member’s house. Defendants’ SMF ¶ 90; Kavanaugh Dep. at ll. Kavanaugh did not consider Ames to be forcing her to do anything physically but rather to be “just holding” her. Plaintiffs’ Additional SMF ¶¶ 44, 123 (incorporating Plaintiffs’ Opposing SMF ¶¶ 90, 165; Kavanaugh Dep. at 39). She might have agreed to go with Ames, and nothing would have prevented the two from talking out the situation. Plaintiffs’ Additional SMF ¶¶44, 82, 123 (incorporating Plaintiffs’ Opposing SMF ¶¶ 90,131,165; Kavanaugh Dep. at 40-41). Ames did not feel that he was “forcing her to do anything” and did not believe that he was hurting her. Plaintiffs’ Additional SMF ¶¶ 44, 46, 82 (incorporating Plaintiffs’ Opposing SMF ¶¶ 90, 92, 131; Ames Dep. at 52, 59).

•Ames appeared enraged, and Kavanaugh appeared very frightened. Defendants’ SMF ¶ 93; Smith Aff. ¶ 4. Because Smith had seen Ames and Kavanaugh acting as a couple for such a long time, he believed that what he observed between them was a domestic dispute that had escalated into a physical confrontation. Defendants’ SMF ¶ 132; Smith Aff. ¶ 6.

When Ames had hold of Kavanaugh’s wrist and was pulling her to go, she said words to the effect, “you are hurting me,” or “don’t hurt me.” Defendants’ SMF ¶ 94; ■ Kavanaugh Dep. at 11, 65-66. Smith testified that Kavanaugh did not have a chance to say anything at that time. Plaintiffs’ Additional SMF ¶ 48 (incorporating Plaintiffs’ Opposing SMF ¶ 94; Smith Dep. at 59-60). Kavanaugh testified that she said something like that, but said it in a nice way, that Ames did not hurt her, and that he never has hurt her. Plaintiffs’ Additional SMF ¶48 (incorporating Plaintiffs’ Opposing SMF ¶ 94; Kavanaugh Dep. at 11, 43, 56). She and Ames are good to each other. Plaintiffs’ Additional SMF ¶ 110 (incorporating Plaintiffs’ Opposing SMF ¶ 148; Kavanaugh Dep. at 6).

Ames is a large man, weighing more than 200 pounds, and probably has a 100-pound weight advantage over Kavanaugh, who is very petite. Defendants’ SMF ¶ 96; Plaintiffs’ Opposing SMF ¶ 96. Ames is middle-aged and not in the best physical condition. Plaintiffs’ Additional SMF ¶ 49 (incorporating Plaintiffs’ Opposing SMF ¶ 96; Deposition of Benjamin Marr (“Marr Dep.”), Exh. 5 to Plaintiffs’ Opposing SMF, at 30). Kavanaugh weighs 110 pounds. Defendants’ SMF ¶ 97; Plaintiffs’ Opposing SMF ¶97. Ames pulled Kavanaugh some distance from where she was standing. Id. ¶ 99.

Ames admitted to his sister and guardian, Steeves, that he should not have taken Kavanaugh by her wrist. Id. ¶ 101. Within an hour of the incident, Ames did not remember pulling on Kavanaugh. Plaintiffs’ Additional SMF ¶¶ 46, 52 (incorporating Plaintiffs’ Opposing SMF ¶¶92, 101; Track 1, CD, at 2:17). He admitted to Smith only that he did “a little something wrong.” Plaintiffs’ Additional SMF ¶ 52 (incorporating Plaintiffs’ Opposing SMF ¶ 101; Track 1, CD, at 2:50).

Smith approached the couple and got off of his bicycle. Defendants’ SMF ¶ 102; Plaintiffs’ Opposing SMF ¶ 102. He threw his helmet and his bike down. Plaintiffs’ Additional SMF ¶53, 93 (incorporating Plaintiffs’ Opposing SMF ¶¶ 102, 133; Ames Dep. at 14). As he ran over to Ames, Kavanaugh asked Smith nicely not to hurt him, but Smith paid no attention. Plaintiffs’ Additional SMF ¶ 53 (incorporating Plaintiffs’ Opposing SMF ¶ 102; Kavanaugh Dep. at 16). Smith observed Ames let go of Kavanaugh momentarily but then take hold of her arm again as Smith approached them. Defendants’ SMF ¶ 103; Smith Aff. ¶ 5. Only about 15 seconds had passed since Smith dismounted his bicycle. Plaintiffs’ Additional SMF ¶ 54 (incorporating Plaintiffs’ Opposing SMF ¶ 103; Smith Dep. at 62). Smith admits that neither he nor Kavanaugh was in danger at that time. Plaintiffs’ Additional SMF ¶¶ 54, 56 (incorporating Plaintiffs’ Opposing SMF ¶¶ 103, 105; Smith Dep. at 61).

Smith ordered Ames to let go of Kavanaugh, and he did. Defendants’ SMF ¶ 104; Plaintiffs’ Opposing SMF ¶ 104. This indicated to Kavanaugh ■ that Ames heard Smith’s command. Id. ¶ 105. Ames does not recall any “order.” Plaintiffs’ Additional SMF ¶¶ 55, 58 (incorporating Plaintiffs’ Opposing SMF ¶¶ 104, 107; Ames Dep. at 15). Smith did not know the extent of Ames’ deafness. Plaintiffs’ Additional SMF ¶ 56 (incorporating Plaintiffs’ Opposing SMF ¶ 105; Smith Dep. at 48). Smith did not ask Kavanaugh anything at the scene.. Plaintiffs’ Additional SMF ¶ 56 (incorporating Plaintiffs’ Opposing SMF ¶ 105; Smith Dep. at 59-60). Ames denies that he was ever angry at Smith or said anything angry to him. Plaintiffs’ Additional SMF ¶¶ 47, 57 (incorporating Plaintiffs’ Opposing SMF ¶¶ 93, 106; Ames Dep. at 56). Ames did not initially see Smith approaching him. Plaintiffs’ Additional SMF ¶ 57 (incorporating Plaintiffs’ Opposing SMF ¶ 106; Kavanaugh Dep. at 10, 44).

Ames yelled something incomprehensible and began running away from Smith, going around a building. Defendants’ SMF ¶ 108; Smith Aff. ¶ 5; Kavanaugh Dep. at 10. Ames stated that Smith jumped off his bike, threw his hat down, and ran after him. Plaintiffs’ Additional SMF ¶¶ 60, 93 (incorporating Plaintiffs’ Opposing SMF ¶¶ 109, 133; Ames Dep. at 15). He testified that he did not hear Smith say anything, and “I runned [sic] and he chased me.... I was scared ... of Billy Smith.” Plaintiffs’ Additional SMF ¶¶ 47, 60, 93 (incorporating Plaintiffs’ Opposing SMF ¶¶ 93, 109, 133; Ames Dep. at 15-16). Ames ran because he was afraid that Smith believed that he had hurt Kavanaugh and would arrest him. Defendants’ SMF ¶ 110 Ames Dep. at 16-17. Smith yelled for Ames to stop, however Ames kept running. Defendants’ SMF ¶ 111; Smith Aff. ¶ 5. Kavanaugh heard Smith order Ames to stop as he was running from Smith. Defendants’ SMF ¶ 168; Plaintiffs’ Opposing SMF ¶ 168. Ames says that he never heard Smith. Plaintiffs’ Additional SMF ¶ 62 (incorporating Plaintiffs’ Opposing SMF ¶ 111; Ames Dep. at 15). When Steeves later told Smith that Ames could hear nothing, Smith responded, “I know.” Plaintiffs’ Additional SMF ¶ 62 (incorporating Plaintiffs’ Opposing SMF ¶ 111; Track 3, CD, at 3:41).

Ames ran around the Unicel Store across the street. Defendants’ SMF ¶ 112; Kavanaugh Dep. at 17. Kavanaugh stated that Ames went “[j]ust around the corner a little bit, where the cell phone place was.” Plaintiffs’ Additional SMF ¶ 66 (incorporating Plaintiffs’ Opposing SMF ¶ 115; Kavanaugh Dep. at 48). Although Kavanaugh lost sight of Ames at some point, she stated that she “was there and I watched [Smith] slam him down and jump on him.” Plaintiffs’ Additional SMF ¶ 66 (incorporating Plaintiffs’ Opposing SMF ¶ 115; Kavanaugh Dep. at 49). Smith took a flying leap at Ames “through the air” and “diving[.]” Plaintiffs’ Additional SMF ¶ 64 (incorporating Plaintiffs’ Opposing SMF ¶ 113; Marr Dep. at 11). Bystander Benjamin Marr described Smith as having “jumped and wrapped his arms around” Ames’ neck and “tackled him.” Plaintiffs’ Additional SMF ¶ 73 (incorporating Plaintiffs’ Opposing SMF ¶ 122; Marr Dep. at 15).

Ames is a large man and was strong-enough to have nearly carried Smith on his back as Smith struggled to stop him. Defendants’ SMF 1Í138; Smith Aff. ¶6. Ames took approximately three steps with Smith hanging on to his upper body. Defendants’ SMF ¶ 116; Smith Aff. ¶ 5. According to Marr, Smith was neither running nor walking when taken down by Smith but was maintaining a middle pace. Plaintiffs’ Additional SMF ¶¶ 64, 73 (incorporating Plaintiffs’ Opposing SMF ¶¶ 113, 122; Marr Dep. at 11). However, Ames did appear to Marr to be running away from Smith. Defendants’ SMF ¶ 122; Marr Dep. at 15.

Kavanaugh and Ames state that Smith kicked Ames. Plaintiffs’ Additional SMF ¶¶ 68, 75, 101, 103-04, 115 (incorporating Plaintiffs’ Opposing SMF ¶¶ 117, 124, 139, 141, 155; Ames Dep. at 46, 54; Kavanaugh Dep. at 18-19). Smith later told Steeves that witnesses who said that they allegedly saw him kick Ames on the day of the incident could be liable for making false statements. Plaintiffs’ Additional SMF ¶ 68 (incorporating Plaintiffs’ Opposing SMF ¶ 117; Track 1, CD, at 15:43). Kavanaugh also observed Smith knee Ames in the back. Plaintiffs’ Additional SMF ¶ 115 (incorporating Plaintiffs’ Opposing SMF ¶ 155; Kavanaugh Dep. at 50).

Two observers, Marr and William Eustice, did not see Ames resisting Smith. Plaintiffs’ Additional SMF ¶¶ 69, 97, 103-04 (incorporating Plaintiffs’ Opposing SMF ¶¶ 118, 137, 141); Marr Dep. at 30; Victim/Witness Statement of William K. Eustice, Boucher Report at [37]. Smith was able to pull Ames’ hands back and cuff them. Defendants’ SMF ¶ 119; Plaintiffs’ Opposing SMF ¶ 119. According to Marr:

[Smith] tackled [Ames] to the ground. His glasses came off, and also rather aggressively when he handcuffed him[, Smith] put his knee on his back pretty hard, I thought way too hard, actually, and pulled his arms back, handcuffed him. [Ames] was crying, he had some blood on his face. To me it looked like a malicious attack.

Plaintiffs’ Additional SMF ¶ 70 (incorporating Plaintiffs’ Opposing SMF ¶ 119; Marr Dep. at 6). Smith denied the kneeing. Plaintiffs’ Additional SMF ¶ 70 (incorporating Plaintiffs’ Opposing SMF ¶ 119; Smith Dep. at 69). Ames’ glasses fell off, and his false teeth came out. Plaintiffs’ Additional SMF ¶ 70 (incorporating Plaintiffs’ Opposing SMF ¶ 119; Kavanaugh Dep. at 55). Ames was not handcuffed standing up and then taken to the ground, as alleged in the complaint. Defendants’ SMF ¶ 123; Marr Dep. at 18.

When Smith collided with Ames as he caught up with him, Smith’s momentum caused the two men to go down hard onto the pavement, with Smith on Ames’ back. Defendants’ SMF ¶ 125; Marr Dep. at 19. Marr testified that “Smith’s momentum [took Ames] down[.]” Plaintiffs’ Additional SMF ¶¶ 76,101 (incorporating Plaintiffs’ Opposing SMF ¶¶ 125, 139; Marr Dep. at 19). Marr did not observe anything before seeing Ames running and Smith chasing and tackling him. Defendants’ SMF ¶ 126; Plaintiffs’ Opposing SMF ¶ 126.

Ames immediately stated that Smith had broken his leg. Defendants’ SMF ¶ 120; Plaintiffs’ Opposing SMF ¶ 120. Smith, a trained paramedic, immediately recognized at the scene of arrest that Ames’ leg was broken. Defendants’ SMF ¶ 129; Smith Aff. ¶ 7. As soon as Times was secured, Smith got up and looked around, putting his hands on his hips. Plaintiffs’ Additional SMF ¶¶ 72, 81 (incorporating Plaintiffs’ Opposing SMF ¶¶ 121, 130; Marr. Dep. at 25-26, 30). He looked like he was laughing. Plaintiffs’ Additional SMF ¶¶ 72, 78, 81 (incorporating Plaintiffs’ Opposing SMF ¶¶ 121, 127, 130; Kavanaugh Dep. at 50; Vietim/Witness Statement of Charity Wentworth, Boucher Report at [34]; Victim/Witness Statement of Jennifer Hall, Boucher Report at [35]). Smith did not deny laughing. Plaintiffs’ Additional SMF ¶ 72 (incorporating Plaintiffs’ Opposing SMF ¶ 121; Smith Dep. at 70). Smith called an ambulance. Defendants’ SMF ¶ 121; Smith Aff. ¶ 5.

The ambulance arrived very quickly. Defendants’ SMF ¶ 128; Plaintiffs’ Opposing SMF ¶ 128. Smith kept Ames handcuffed, with his arms behind his back, while waiting for the ambulance to arrive and did not remove the handcuffs until Ames was in the ambulance. Plaintiffs’ Additional SMF ¶ 80 (incorporating Plaintiffs’ Opposing SMF ¶ 129; Smith Dep. at 87). Smith intended to take Ames into custody for assault, but because of Ames’ injury, Ames was instead transported directly to the hospital. Defendants’ SMF ¶ 135; Smith Aff. ¶ 6. Smith accompanied Ames in the ambulance and went into the emergency room with him. Plaintiffs’ Additional SMF ¶ 95 (incorporating Plaintiffs’ Opposing SMF ¶ 135; Smith Dep. at 71-72). Consideration was given to charging Ames with domestic assault. Plaintiffs’ Additional SMF ¶ 40 (incorporating Plaintiffs’ Opposing SMF ¶ 85; Boucher Report at [20]). However, Ames was not charged with any crime. Plaintiffs’ Additional SMF ¶ 83; Defendants’ Reply SMF ¶ 83.

As Ames and Smith fell to the ground, Smith also struck the pavement very hard because of the awkward way they fell. Defendants’ SMF ¶ 142; Smith Aff. ¶ 6. Smith received cuts and scrapes to his knee and elbow when he fell to the pavement with Ames. Defendants’ SMF ¶ 143; Plaintiffs’ Opposing SMF ¶ 143. Smith was seen at the hospital for what at first was thought to be a broken elbow. Id. ¶ 144.

After Smith was treated for his injuries at the hospital on June 25, 2006, he went to Ames’ room to check on him. Defendants’ SMF ¶ 145; Smith Aff. ¶ 7. Ames was accompanied in his room by his mother and his sister, Steeves. Defendants’ SMF ¶ 146; Plaintiffs’ Opposing SMF ¶ 146. Smith had a tape recorder with him, and activated it to record their conversation just before stepping into the hospital room. Defendants’ SMF ¶ 147; Smith Aff. ¶ 7. When Smith spoke to Ames in his hospital room, Ames stated that he knew he had done something “a little wrong” and was running because he did not want to get arrested. Defendants’ SMF ¶¶ 134, 149; Smith Aff. ¶ 6; Track 1, CD, at 2:49. Ames admitted that he and Kavanaugh were having problems. Defendants’ SMF ¶ 148; Track 1, CD, at 1:20.

During the interview, when Smith told Ames that he was a big, strong guy, strong enough to carry Smith on his back for a few steps, Ames’ only reply was to concede that he was “pretty rugged.” Defendants’ SMF ¶ 150; Plaintiffs’ Opposing SMF ¶ 150. When Smith told Ames that he knew that Ames and Kavanaugh lived together as boyfriend/girlfriend and began explaining the domestic violence law, nobody in the room corrected his mistaken belief about their living arrangement. Id. ¶ 151. Ames admitted that he tried to force Kavanaugh to go to his mother’s house. Defendants’ SMF ¶ 152; Track 1, CD, at 9:19. Ames admitted that Kavanaugh was scared. Defendants’ SMF ¶ 153; Plaintiffs’ Opposing SMF ¶153. Ames said that Kavanaugh had slapped him in the face a month earlier and that “she gets angry, too.” Id. ¶ 154.

During the course of Smith’s interview of Ames, Steeves asked Ames if Smith had kicked him, as she was told by someone that he had, and Ames replied that he did not remember. Defendants’ SMF ¶ 155; Track 1, CD, 14:07. Steeves stated that she was told by four people that they saw Smith kicking Ames. Plaintiffs’ Additional SMF ¶ 115 (incorporating Plaintiffs’ Opposing SMF ¶ 155; Track 1, CD, at 13:47). Smith told Steeves that it was “not good that those people are saying false stuff’ and that they could be held liable for false allegations. Plaintiffs’ Additional SMF ¶ 115 (incorporating Plaintiffs’ Opposing SMF ¶ 155; Track 1, CD, 14:25, 15:50). Steeves told Smith that Ames is bipolar. Defendants’ SMF ¶ 156; Plaintiffs’ Opposing SMF ¶ 156.

Ames’ leg was broken in two places in the incident, and he was in a rehabilitation facility for a year. Plaintiffs’ Additional SMF ¶ 71 (incorporating Plaintiffs’ Opposing SMF ¶ 120; Ames Dep. at 34-35; Boucher Report at [23]-[24] ).

When Ames made a complaint about the use of force in connection with his arrest on June 25, 2006, Boucher had the matter investigated by the deputy chief of police, Tower, who reported his findings. Defendants’ SMF ¶ 174; Plaintiffs’ Opposing SMF ¶ 174. Boucher reviewed witness statements, narrative reports, and recorded interviews of Ames and Kavanaugh and concluded that the broken leg suffered by Ames as he was being arrested by Smith was inadvertent and not the result of any unlawful use of force against him. Id. ¶ 175. Notwithstanding that deputy Tower is a training officer who considers “confrontation” the same thing as “de-escalation,” Boucher adopted the report. Plaintiffs’ Additional SMF ¶ 130 (incorporating Plaintiffs’ Opposing SMF ¶ 175; Tower Dep. at 69, 80).

By all accounts, Ames was involved in a physical altercation with his girlfriend that was witnessed by Smith. Defendants’ SMF ¶ 176; Plaintiffs’ Opposing SMF ¶ 176. Ames and his girlfriend both apparently have diminished mental capacity, although Boucher does not know their exact level of cognitive functioning. Id. ¶ 177. Tower considered whether Smith had used excessive force, not whether he had violated Ames’ rights as a disabled person under the Maine Human Rights Act or the ADA. Plaintiffs’ Additional SMF ¶ 132 (incorporating Plaintiffs’ Opposing SMF ¶ 177; Tower Dep. at 23-24). Ames’ complaint to the Rockland Police Department, completed by Peggy D. Rice, a disability advocate who listed her reasons for assisting Ames as his hearing impairment and mental retardation, alleged, inter alia, that Smith had known Ames for a long time and knew that he was disabled. Plaintiffs’ Additional SMF ¶ 132 (incorporating Plaintiffs’ Opposing SMF ¶ 177; Boucher Report at [4]-[5] ).

Ames has had problems at times controlling his anger and getting angry with people. Defendants’ SMF ¶ 180; Ames Dep. at 25. However, Brown was unaware of any instance in which Ames had directed violence against a person, as opposed to smashing furniture. Plaintiffs’ Additional SMF ¶ 136 (incorporating Plaintiffs’ Opposing SMF ¶ 180; Brown Dep. at 10-14). Ames recalls times when he had to be taken to the hospital because of how angry and threatening to people he had been. Defendants’ SMF ¶ 182; Plaintiffs’ Opposing SMF ¶ 182. He heard voices for a long time and saw spots. Id. ¶ 185. The voices never told him to hurt somebody, himself, or his family. Plaintiffs’ Additional SMF ¶ 141 (incorporating Plaintiffs’ Opposing SMF ¶ 185; Ames Dep. at 30).

Kavanaugh believes that Ames putting his hand on her arms when she did not want to go was wrong. Defendants’ SMF ¶ 191; Plaintiffs’ Opposing SMF ¶ 191. Kavanaugh and Ames are still boyfriend and girlfriend today. Id. ¶ 192. Kavanaugh loves Ames and would do anything to help him, including helping him in this lawsuit. Defendants’ SMF ¶ 193; Kavanaugh Dep. at 67.

F. Testimony of Plaintiffs’ Expert

Depositions were taken, inter alia, of the plaintiffs’ designated expert, Detective Sergeant Gilbert Turcotte. Plaintiffs’ Additional SMF ¶ 1; Defendants’ Reply SMF ¶ 1. The defendants have presented no challenge to the designation of Turcotte as an expert in the form of a Kumho/Daubert motion and have not qualified any expert in rebuttal. Id. ¶ 86. During his deposition, Turcotte applied the lodestar principle that “excessive force is never acceptable.” Id. ¶ 89.

Turcotte served for 22 years in the United States Army, retiring as a sergeant major in 1987, having served in demolitions, operations, and intelligence. Id. ¶ 91. He worked for 39 months as a patrol officer for the Winthrop Police Department, then 12 years with the Kennebec Sheriffs Department as a patrol deputy, investigator, and criminal investigation department sergeant until 2002, at which time he worked for the Hallowell Police Department and as a hospital security guard. Id. From 2003 to the present, he has been a detective sergeant for the Winthrop Police Department. Id. He is a graduate of the Maine Criminal Justice Academy and takes mandatory education every year. Id. Both in the military and in the policing profession, he has exercised supervision over others, including patrol officers. Id. He has made more than 100 arrests. Id. He has been educated in the area of dealing with persons with disabilities. Id.

In response to the plaintiffs’ counsel’s description of Ames’ conduct on June 25, 2006, Turcotte testified: “I’m not sure there has been a crime committed. Does this person with mental retardation have the culpable state of mind to know that what he may be doing is criminal, but from what—the scenario you gave me, I don’t see a crime having been committed.” Plaintiffs’ Additional SMF ¶ 82 (incorporating Plaintiffs’ Opposing SMF ¶ 131; Deposition of Gilbert Turcotte (“Turcotte Dep.”), Exh. 8 to Plaintiffs’ Opposing SMF, at 21); see also Plaintiffs’ Additional SMF ¶ 85. Turcotte testified that, if he came upon a scenario such as that described, he would have talked to Kavanaugh before making an arrest or proceeding. Plaintiffs’ Additional SMF ¶ 96 (incorporating Plaintiffs’ Opposing SMF ¶ 136; Turcotte Dep. at 20-21, 39-40).

Turcotte also testified that use of force would not be justified in a hypothetical situation in which a mentally retarded man and woman were walking down the street and the man was tugging at her wrist. Plaintiffs’ Additional SMF ¶ 103 (incorporating Plaintiffs’ Opposing SMF ¶ 141; Turcotte Dep. at 14-15).

III. Discussion

The plaintiffs bring the following claims:

1.Count I (42 U.S.C. § 1983): that, in violation of Ames’ Fourth, Fifth, and Fourteenth Amendment rights, prior to June 25, 2006, the City of Rockland, Ockenfels, and Boucher developed and maintained policies or customs in their discipline, supervision, and training of police officers that exhibited deliberate indifference to civilians’ constitutional rights and were the moving forces behind Ames’ injuries. See Complaint for Violations of Civil Rights and Pendent State Claims (“Complaint”) (Docket No. 1) ¶¶ 39-56.

2. Count II: that the Maine Tort Claims Act, 14 M.R.S.A. § 8101 et seq. (“MTCA”), does not provide immunity to Smith for his actions, which were made in bad faith and exceeded his discretionary authority. See id. ¶¶ 57-62.

3. Count III (42 U.S.C. § 1983): that Smith used excessive force against Ames in violation of Ames’ Fourth Amendment rights. See id. ¶¶ 63-70.

4. Count IV: that Smith’s use of excessive force constitutes an intentional tort under Maine law, with respect to which no MTCA immunity is available, and that the City of Rockland had a policy or custom of employing inadequately trained police officers, amounting to approval of the use of excessive force and causing Ames’ injuries. See id. ¶¶ 71-77.

5. Count V: that, in violation of the Maine Civil Rights Act, 5 M.R.S.A. § 4682, Smith interfered with Ames’ rights under the laws and constitution of the State of Maine to be secure in his person, to be free from unreasonable searches and seizures, to be free from excessive force, and to be free from false arrest and imprisonment. See id. ¶¶ 78-81.

6. Count VI: that Smith violated the rights of Ames, a person with mental retardation, in contravention of 34-B M. R.S.A. § 5601 et seq. See id. ¶¶ 82-89.

7. Count VII: that Smith’s charging of Ames with domestic assault and resisting arrest constituted malicious prosecution. See id. ¶¶ 90-101.

8. Count VIII: that Smith arrested Ames in the absence of reasonable grounds to do so and used force disproportionate to that necessary to perform his duties, constituting false arrest and assault. See id. ¶¶ 102-10.

9. Count IX: that Smith’s arrest and confinement of Ames without probable cause constituted false imprisonment. See id. ¶¶ 111-13.

10. Count X: that Smith negligently inflicted emotional distress on Ames. See id. ¶¶ 114-20.

11. Count XI: that Smith intentionally inflicted emotional distress on Ames. See id. ¶¶ 121-25.

12. Count XII (42 U.S.C. § 1983): that the City of Rockland maintained a policy or custom of deliberate indifference to the supervision and discipline of police officers and inadequate training, and a custom of abuse of the mentally retarded, the elderly, and men and women of color and of sexual abuse of the young and defenseless, all of which was “closely related” to Ames’ injuries. See id. ¶¶ 126-48.

13. Count XIII: that the defendants’ actions justify an award of punitive damages. See id. ¶¶ 149-51.

A. Municipal Liability (Counts I, IV, and XII)

The defendants first seek summary judgment as to all municipal liability counts (Counts I, IV, and XII). See Motion at 7-13. In so doing, they construe the Complaint to name Ockenfels and Boucher only in Count I and only in their official capacities. See id. at 8. Suit against Ockenfels and Boucher in their official capacities is effectively a suit against the City of Rockland, not against Ockenfels and Boucher personally. See, e.g., Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office.”); Bisbal-Ramos v. City of Mayagüez, 467 F.3d 16, 20 n. 1 (1st Cir.2006) (“[A] claim against Pérez in his official capacity is essentially a claim against the City[.]”).

Although the plaintiffs indicate, in the caption of the Complaint, that Ockenfels and Boucher are sued in both their official and individual capacities, see Complaint at 1-2, they do not take issue with the plaintiffs’ interpretation in their response, see Response at 10-20. Accordingly, I deem any suit against Ockenfels and Boucher in their individual capacities waived. See, e.g., Grenier, 70 F.3d at 678; Shapiro, 222 F.Supp.2d at 44.

1.Federal Claims (Counts I and XII)

With respect to the plaintiffs’ federal municipal liability claims (Counts I and XII), the defendants argue that:

1. The plaintiffs’ municipal liability theory, especially as articulated in Count XII, is based on incorrect and/or unsubstantiated beliefs about Smith and perhaps other Rockland officers and incorrect inferences regarding the Dale Report, which had nothing to do with police interaction with citizens, disabilities, abuse of arrest powers, or the use of excessive force in connection with arrests. See Motion at 8-9.

2. Rockland police officers must graduate from the Maine Criminal Justice Academy and be certified by the State of Maine to perform the duties of patrol officers before they are allowed to patrol in their own ears. See id. at 9. Training continues after graduation, as required by the state to maintain their certifications, on arrest powers, use of force, and the ADA. See id. Prior to 2006, Smith, a trained and certified paramedic as well as a police officer, had also received specialized crisis intervention training and was a member of the Crisis Intervention Team. See id.

3. To the extent that any claim is made concerning Smith’s hiring, although none can be discerned from the Complaint, it cannot lie against the chiefs because hiring authority in Rockland is vested in the city manager, not in the police chief. See id. Moreover, any such claim has no merit. See id. At the time of Ames’ arrest in 2006, Smith had completed five years of employment as a Rockland police officer without any evidence coming to the attention of either Ockenfels or Boucher that he posed a danger to the rights of the citizens of the city. See id. Nor did other officers’ conduct afford notice of problems with arrest, use of force, or failure to accommodate disabilities. See id. at 9-10.

4. To the extent that the plaintiffs intended to make a claim under the ADA, no such claim is discernible in the Complaint. See id. at 10. In any event, even if such a claim had been properly pled, the only potentially viable theory would be that of a denial of reasonable accommodation. See id. In the circumstances presented, such a claim fails. See id. at 10-11. Smith did not use physical force against Ames because he misconstrued his disability as unlawful activity, but rather because Ames assaulted Kavanaugh in Smith’s presence and then refused to submit to arrest. See id. at 11. The city therefore cannot be held liable under the ADA. See id. at 11-12. To the extent that the plaintiffs seek to hold the individual defendants liable for ADA violations, the ADA pertains only to governmental entities and not to individual city employees. See id.

5. There is no basis in fact or law to impose liability on a failure-to-train theory against the chiefs or the City of Rockland under 42 U.S.C. § 1983. See id. at 13. There has been no lack of training or supervision generally or of Smith in particular. See id.

The plaintiffs counter that:

1. The testimony of Smith and Tower establishes “a deliberate and conscious failure to adopt policies or to train on any criteria and procedures to determine how and when to arrest and when to accommodate the mentally retarded or hearing impaired.” Response at 17 (emphasis omitted). Smith’s much-vaunted CIT training taught him nothing about dealing with the deaf and mentally retarded on the street beyond protecting himself. See id. Deputy Chief Tower taught officers only that “everything depends on the circumstances.” See id. at 17-18. Smith did not take into consideration that Ames was hearing impaired or retarded, check with Kavanaugh to see if she was assaulted, or question whether Ames was capable of having a culpable state of mind, as he would have done with proper training and supervision. See id.

2. They adduce sufficient facts to reveal a pattern of failure to adopt effective policies or training or to exercise supervisory responsibility for treatment of minorities. See id. at 19. Their evidence tending to show that the training program as a whole was faulty includes that concerning Smith’s arrest of 71-year-old Janice Hamilton, the Donnelly Complaint’s allegations concerning treatment of women of color, Jazman Nash’s evidence concerning harassment of young women, and David Dean’s evidence concerning the Rockland Police Department’s ignoring of a complaint. See id. at 19-20 & n. 6.

8. They state a triable claim under the ADA on a “wrongful arrest” theory, ie., that Smith arrested Ames because of disability-related, non-criminal bipolar conduct. See id. at 14-16.

a. Section 1983 Municipal Liability

As the First Circuit has observed:

The Supreme