Cote v. Town of Millinocket (901 F. Supp. 2d 200, 2012)

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

Late Halloween afternoon in 2008, town of Millinocket Police Officers Kevin Ingersoll, Janet Theriault and Jerry Cox pulled over, tased, and arrested Wayne Cote for allegedly committing a criminal trespass. Concluding that there is a genuine issue of material fact as to whether the Officers had probable cause to stop and arrest Mr. Cote, the Court declines to grant summary judgment for arresting Officers. The Court grants summary judgment, however, in favor of the town of Millinocket and Chief Donald Bolduc because Mr. Cote has not generated a genuine issue of material fact regarding his claims against the Town and the Chief.

I. STATEMENT OF FACTS

A. Procedural History

On October 29, 2010, Wayne Cote filed a complaint in Maine Superior Court for Penobscot County against the town of Millinocket and four of its police officers, Kevin Ingersoll, Janet Theriault, Jerry Cox and Don Bolduc, alleging that the Defendants committed a series of civil violations against him when they arrested him on October 31, 2008. State Ct. Record Attach. 1 Compl. (ECF No. 3). On November 23, 2010, the Defendants removed the case to this Court and filed an answer. Notice of Removal (ECF No. 1); Defs.’ Town of Millinocket, Kevin Ingersoll, Janet Theriault, Jerry Cox and Donald Bolduc’s Ans., Defenses, and Affirmative Defenses to PI. Wayne Cote’s Compl. and Req. for Jury Trial (ECF No. 4). On February 24, 2011, Mr. Cote filed an amended complaint and on February 28, 2011, the Defendants filed an answer. First Am. Compl. (ECF No. 13) {Am. Compl); Ans., Defenses and Affirmative Defenses to PI. Wayne Cote’s First Am. Compl. and Req. for Jury Trial of Defs. Town of Millinocket, Kevin Ingersoll, Janet Theriault, Jerry Cox and Donald Bolduc (ECF No. 14) {Defs. ’ Am. Ans.).

On February 6, 2012, each Defendant moved separately for summary judgment. Def. Town of Millinocket Mot. for Summ. J. (ECF No. 57) {Town Mot.); Def. Kevin Ingersoll’s Mot. for Summ. J. (ECF No. 58) {Ingersoll Mot.); Def. Jerry Cox Mot. for Summ. J. (ECF No. 59) {Cox Mot.); Def. Donald Bolduc’s Mot. for Summ. J. (ECF No. 60) {Bolduc Mot.); Def. Janet Theriault’s Mot. for Summ. J. (ECF No. 61) {Theriault Mot.). They also filed a joint statement of material facts. Jt. Stip. Statement of Material Facts for Purposes of Defs.’ Mots, for Summ. J. (ECF No. 62) (JSSMF). On March 9, 2012, the Defendants filed a statement of material fact. Statement of Material Facts of Defs. Town of Millinocket, Donald Bolduc, Jerry Cox, Kevin Ingersoll and Janet Theriault (ECF No. 65) (DSMF).

On March 19, 2012, Mr. Cote separately responded to each motion. Pl.’s Reply to Def. Donald Bolduc’s Mot. for Summ. J. (ECF No. 68) {Pl.’s Bolduc Opp’n); Pl.’s Reply to Def. Jerry Cox’s Mot. for Summ. J. (ECF No. 69) {PL’s Cox Opp’n); PL’s Reply to Def. Kevin Ingersoll’s Mot. for Summ. J. (ECF No. 70) {Pl.’s Ingersoll Opp’n); PL’s Opp’n to Def. Janet Theriault’s Mot. for Summ. J. (ECF No. 71) {PL’s Theriault Opp’n); PL’s Reply to Def. Town of Millinocket’s Mot. for Summ. J. (ECF No. 72) {PL’s Town Opp’n). He also responded to the Defendants’ Statement of Material Facts and posited his own Statement of Additional Material Facts. Pl. ’s Opposing Statement and Statement of Additional Facts (ECF No. 73) (PRDSMF; PSAMF).

On April 2, 2012, each Defendant replied separately. Def. Don Bolduc’s Reply Mem. of Law (ECF No. 79) {Bolduc Reply ); Def. Jerry Cox’s Reply Mem. of Law (ECF No. 80) {Cox Reply); Def. Kevin Ingersoll’s Reply Mem. of Law (ECF No. 81) {Ingersoll Reply); Def. Town of Millinocket’s Reply Mem. of Law (ECF No. 82) {Toum Reply); Def. Janet Theriault’s Reply Mem. of Law (ECF No. 83) {Theriault Reply). On April 2, 2012, the Defendants filed a joint response to Mr. Cote’s statement of additional material facts. Reply to Material Facts and Additional Material Facts of Defs. Town of Millinocket, Kevin Ingersoll, Janet Theriault, Jerry Cox and Donald Bolduc (ECF No. 78) (DRPSAMF).

B. Statement of Facts

1. Wayne Cote

Wayne Cote is a resident of the town of Millinocket. JSSMF ¶ l. From elementary school through high school, Mr. Cote attended special education classes. JSSMF ¶ 2. Wayne Cote attended Stearns High School and was graduated in 1991. JSSMF ¶ 3. Mr. Cote has a history of back and neck injuries and a history of closed head injuries. JSSMF ¶ 4. Mr. Cote was prescribed medication used for attention deficit disorder and medication for chronic pain. JSSMF ¶ 5.

Wayne Cote has a lengthy arrest record with the Millinocket Police Department. JSSMF ¶ 6. Mr. Cote had numerous interactions with various Millinocket Police officers, and official records do not always reflect every officer who was present at each interaction. JSSMF ¶ 7. A number of the charges against Mr. Cote resulting from arrests by the Millinocket Police Department were dismissed. JSSMF ¶ 8. Mr. Cote was acquitted of at least two charges that were brought against him as a result of Millinocket Police Department arrests. JSSMF ¶ 9. The District Attorney declined to prosecute a number of the charges that were brought as a result of Millinocket Police Department arrests of Mr. Cote. JSSMF ¶ 10. Mr. Cote was anxious and fearful of the Millinocket Police Department. JSSMF ¶ 11. Sergeant Jerry Cox estimated Mr. Cote’s height at 5' 7" and his weight at from 145 to 170 lbs. JSSMF ¶ 12.

2. Jerry Cox

Jerry Cox was employed as a reserve officer by the town of Medway, Maine in June 1991. JSSMF ¶ 13. Before his initial employment as a police officer by the town of Medway, Sergeant Cox completed the 100 hour Reserve Officer Training Course at the Maine Criminal Justice Academy. JSSMF ¶ 14. In May 1992, Sergeant Cox accepted a position as a temporary full-time officer with the town of Medway. JSSMF ¶ 15. Before accepting full-time employment, Sergeant Cox had been enrolled in a law technology program at the University of Maine at Bangor for two years. JSSMF ¶ 16. During his tenure in Medway, no complaints were filed against Sergeant Cox. JSSMF ¶ 17.

In approximately September 1992, Sergeant Cox became employed by the town of Millinocket as a reserve officer/animal control officer. JSSMF ¶ 18. In February 1994, Sergeant Cox became a full-time officer for the town of Millinocket. JSSMF ¶ 19. In 1995, approximately one year after being hired, Sergeant Cox attended the Maine Criminal Justice Academy and received certification as a full-time police officer. JSSMF ¶20. In September 1998, Sergeant Cox voluntarily resigned his full-time position at the town of Millinocket but maintained his status as a reserve officer for the Town. JSSMF ¶ 21. Between 1992 and 1998, Sergeant Cox testified that only one citizen complaint came to mind; it was as a result of his use of handcuffs while effecting an arrest. JSSMF ¶ 22. Sergeant Cox could not recall any disciplinary action taken against him from September 1992 to September 1998. JSSMF ¶ 23.

In 2001, Sergeant Cox returned to full-time employment as a police officer for the town of Millinocket. JSSMF ¶24. In 2004, Sergeant Cox became acting sergeant and in 2005, he became sergeant in the Millinocket Police Department. JSSMF ¶ 25.

On June 4, 2008 by signing a sign-in sheet, Sergeant Cox acknowledged that he had read the Millinocket Police Depart-merit’s ECW Policy. JSSMF ¶ 109. One June 12, 2006, Sergeant Cox was certified as an End-User of the Taser X26. JSSMF ¶ 110. On November 25, 2008, Sergeant Cox received Taser X26 recertification. JSSMF ¶ 111.

The Millinocket Police Department requires its officers to undergo annual training. JSSMF ¶ 27. Sergeant Cox received a passing grade of 80% on fourteen quizzes between June 2007 and June 2009. JSSMF ¶ 28. Sergeant Cox was a superi- or officer in the Millinocket Police Department to Officer Ingersoll on October 31, 2008. JSSMF ¶ 29. Sergeant Cox is 5'9" tall and weighs 260 pounds. JSSMF ¶ 33.

Sergeant Cox did not recall any interactions with Mr. Cote as a police officer before October 31, 2008. JSSMF ¶ 30. The Millinocket Police Department records reflect that Sergeant Cox’s interaction with Mr. Cote before October 31, 2008 was limited to an arrest for Criminal Trespassing and Disorderly Conduct on April 21, 2008. JSSMF ¶31. Sergeant Cox estimated that as a police officer for the town of Millinocket, he has used takedown moves approximately 100 times. JSSMF ¶ 32; but see DSMF ¶ 32; PRDSMF ¶32; PSAMF ¶ 317; DRPSAMF ¶317. Sergeant Cox is 5' 9" tall and weighs 260 pounds. JSSMF ¶ 33.

3. Kevin Ingersoll

Officer Ingersoll graduated from the Maine Criminal Justice Academy’s 100 hour Part-Time Reserve Law Enforcement Officer Training Course in 1993. JSSMF ¶ 36. Officer Ingersoll worked as a part-time reserve police officer for the town of Bar Harbor from 1993 to 1997. JSSMF ¶ 37. Officer Ingersoll testified that he did not believe any complaints were filed against him while he was employed as a police officer by the town of Bar Harbor. JSSMF ¶ 38. Officer Ingersoll also testified that he did not believe he received any reprimands while employed as a police officer for the town of Bar Harbor. JSSMF ¶ 39. From 1997 until 1999, Officer Ingersoll was employed as a part-time reserve officer by the Mount Desert Police Department. JSSMF ¶ 40.

In 1999, the town of Millinocket hired Officer Ingersoll as a part-time reserve police officer and in April 2005 it hired him as a full-time police officer. JSSMF ¶ 41. In August 2005, Officer Ingersoll attended the eighteen week, Maine Criminal Justice Academy Law Enforcement Officer Certification Course and received certification as a full-time police officer. JSSMF ¶ 42. Officer Ingersoll was required to attend the Maine Criminal Justice Academy course as a condition of his full-time position. JSSMF ¶ 43. Officer Ingersoll’s training at the Maine Criminal Justice Academy included courses in traffic law, criminal law, civil law, firearms training, use of force, vehicle stops, dealing with the elderly and dealing with the mentally handicapped. JSSMF ¶44. Officer Ingersoll scored minimum passing grades on 22 quiz scores taken between December 2006 and June 2009. JSSMF ¶ 53. Officer Ingersoll scored a minimum grade on the “Awareness of People with Mental Retardation Quiz.” JSSMF ¶ 54. Officer Ingersoll is 6' 2" tall and weighs 225 pounds. JSSMF ¶ 69.

At the time of Mr. Cote’s arrest, on October 31, 2008, Chief Bolduc believed that Kevin Ingersoll was an honest person. JSSMF ¶ 96. Because of the facts gleaned from an unrelated internal investigation occurring after October 31, 2008, Chief Bolduc now. has reason to believe that Officer Ingersoll is not an honest person. JSSMF ¶ 97. In his deposition testimony, Defendant Bolduc states that with respect to Defendant Ingersoll, things were brought to Bolduc’s attention that he investigated; that through his investigations, a pattern of not being truthful and policy violations were found, and that Defendant Ingersoll resigned from the police department before the investigation was completed. PSAMF ¶ 326; DRPSAMF ¶ 326.

Officer Ingersoll knew Mr. Cote because he met him while in high school in Millinocket. JSSMF ¶ 34. Mr. Cote claims that Officer Ingersoll had a history of aggressive behavior directed at him, including police interactions reported to Chief Bolduc. JSSMF ¶ 35. Approximately three years prior to the events giving rise to this lawsuit, Officer Ingersoll was involved in a high speed chase where Mr. Cote was identified as the driver of the fleeing vehicle; the chase was terminated once Mr. Cote was identified. JSSMF ¶ 45. Mr. Cote instigated the high speed chase because he felt Officer Ingersoll was out of his jurisdiction. JSSMF ¶ 46. During the high speed chase, Mr. Cote stopped his vehicle to allow the five individuals in the car to leave. JSSMF ¶ 47. Officer Ingersoll stopped his car and drew his service weapon at the five individuals exiting the vehicle. JSSMF ¶ 48. Mr. Cote then fled the scene and later turned himself in to the State Police and was subsequently arrested by the other members of the Millinoeket Police Department, not including Officer Ingersoll, with the assistance of the Maine State Police. JSSMF ¶ 49. Mr. Cote subsequently complained to Chief Bolduc about Officer Ingersoll’s conduct during the high speed chase because Mr. Cote felt that Officer Ingersoll’s drawing of his weapon when faced with a fleeing car that had stopped and from which five people were exiting was reckless. JSSMF ¶ 50.

Mr. Cote alleges that he complained to Chief Bolduc about Officer Ingersoll’s conduct during a traffic stop relating to a cracked window and a loud exhaust on Mr. Cote’s truck. JSSMF ¶ 51. More specifically, Mr. Cote complained to Chief Bolduc that Officer Ingersoll was out of line and was being rude and disrespectful during this traffic stop. PSAMF ¶ 325; DRPSAMF ¶ 325. Mr. Cote felt that he was improperly ticketed by Officer Ingersoll because the crack in the windshield was not in his field of vision when operating his truck. JSSMF ¶ 52.

Officer Ingersoll has no medical training. JSSMF ¶ 55. Officer Ingersoll knew that Mr. Cote was fearful of the Millinocket Police. JSSMF ¶ 67. Mr. Cote believes that Officer Ingersoll had a history of aggressive behavior directed at him that included police interactions involving Officer Ingersoll reported to Chief Bolduc. PSAMF ¶ 329; DRPSAMF ¶ 329.

Officer Ingersoll has previously grabbed, pushed and slapped various suspects. JSSMF ¶ 56. On one prior occasion, Officer Ingersoll has struck a suspect who was refusing to submit to arrest and put his arms behind his back on the thigh with his baton. JSSMF ¶ 57. On one prior occasion, Officer Ingersoll deployed his Taser against a suspect who was using his vehicle as a battering ram and drove towards Officer Ingersoll, chasing him [Ingersoll] onto a porch. JSSMF ¶ 58. During the incident when Officer Ingersoll used a Taser, no other officers were present. JSSMF ¶ 59. There was no use of force investigation into his prior use of a Taser. JSSMF ¶ 60.

Officer Ingersoll believed that in either 2007 or 2008 a citizen complained against him for alleged harassment, a complaint Chief Bolduc found to have been unfounded. JSSMF ¶ 64; PSAMF ¶ 336; DRPSAMF ¶ 336. Officer Ingersoll believed that the Chief investigated the complaint but he is not sure. JSSMF ¶ 65. There was, however, no formal investigation of this citizen’s complaint. JSSMF ¶ 66. No use of force investigations were ever conducted regarding Officer Ingersoll’s admitted incidents of use of force beyond mere presence. PSAMF ¶328; DRPSAMF ¶ 328. Sergeant Cox testified that Officer Ingersoll may reach a higher anger level quicker than other officers. JSSMF ¶ 68.

4. Janet Theriault

On November 30, 2004, the town of Millinocket hired Janet Theriault as a reserve police officer and she was working in that capacity on October 31, 2008, the day of Mr. Cote’s arrest. JSSMF ¶ 74. Officer Theriault has known Mr. Cote since he was a young child. JSSMF ¶ 70. Officer Theriault grew up in the same neighborhood as Mr. Cote and, as a result, she had numerous casual but uneventful interactions with him during her lifetime. JSSMF ¶ 71. Officer Theriault did not have any contact with Mr. Cote in her position as a police office before the events giving rise to this lawsuit. JSSMF ¶ 72.

Janet Theriault has an Associate Degree in Criminal Justice from the University of Maine at Presque Isle, a Certificate in Community Policing from the University of Maine at Augusta, and she attended the Maine Criminal Justice Academy’s 100 hour pre-service training program in approximately 2002 for certification as a reserve police officer. JSSMF ¶ 73. During her tenure with the Millinocket Police Department, no complaints have been filed against Officer Theriault. JSSMF ¶75. Officer Theriault believes that there have been complaints against other officers since she has worked for the Millinocket Police Department. JSSMF ¶ 76. Officer Theriault has used the force necessary to apply handcuffs between ten and fifty times during her employment as an officer for the town of Millinocket. JSSMF ¶ 77.

5. Don Bolduc

Donald Bolduc is the Chief of Police for the Town of Millinocket. JSSMF ¶ 78. Chief Bolduc had interacted with Mr. Cote previously. JSSMF ¶ 87. Before October 31, 2008, Mr. Cote had a number of negative interactions with Defendant Bolduc. JSSMF ¶ 89; PSAMF ¶322; DRPSAMF ¶ 322. First, he interacted with Mr. Cote after a high speed chase in which Mr. Cote had been identified as the driver of the fleeing vehicle. JSSMF ¶ 88. Mr. Cote had reported the incident to Chief Bolduc as involving a high speed chase and, when Mr. Cote stopped to let his passengers out, Officer Ingersoll had pulled a gun on the vehicle occupants, who were screaming and ducking, and then pointed a gun at Mr. Cote and was running with the gun drawn; Mr. Cote reported that he fled and later turned himself in to the police. PSAMF ¶ 324; DRPSAMF ¶324. Second, the Chief was involved in an incident in which Mr. Cote had committed a hit and run. JSSMF ¶ 89.

Chief Bolduc attended University College in Bangor and obtained a two-year Law Enforcement Degree. JSSMF ¶ 80. Chief Bolduc began employment with the Millinocket Police Department in 1989 as a reserve dispatcher and reserve officer. JSSMF ¶ 81. In 1990, he graduated from the Maine Criminal Justice Academy’s 100 hour Part-time Reserve Law Enforcement Officer Training Course. JSSMF ¶ 82. Chief Bolduc began employment as a full-time officer with the Millinocket Police Department in August 1991. JSSMF ¶ 83. In 1992, he attended a twelve-week Maine Criminal Justice Academy Law Enforcement Course and received certification as a full-time police officer. JSSMF ¶ 84. Eight and a half years after starting full-time with the Millinocket Police Department, he was promoted to Sergeant. JSSMF ¶ 85. Chief Bolduc has been employed as the Chief of Police for Millinocket since 2004. JSSMF ¶ 86.

As Chief of Police, Chief Bolduc is a department head with the Town of Millinocket municipal government and responsible for policies and procedures within the Police Department. JSSMF ¶ 79. Apart from verbal complaints against Officer Ingersoll, Chief Bolduc received no other complaints during his tenure as Chief alleging the use of excessive force or arrest without probable cause by any of the officers involved with Mr. Cote. JSSMF ¶ 90. On one occasion, Officer Cox received a written reprimand for failing to follow police procedures during an arrest by failing to identify bail conditions on a suspect that was his nephew. JSSMF ¶ 26. Other than Sergeant Cox, none of the other officers involved in Mr. Cote’s case had been disciplined during Chief Bolduc’s tenure for violating police procedures involving the use of force, the use of electronic control weapons or arrest. JSSMF ¶ 91. During his tenure as Police Chief and pri- or to October 21, 2008, Chief Bolduc had no information that Sergeant Cox, Officer Ingersoll or Officer Theriault were engaged in conduct that would lead him to believe they were engaged in making arrests without probable cause or using force in making arrests that was excessive or in violation of Millinocket Police Department policy. JSSMF ¶ 92. With the exception of Mr. Cote’s lawsuit, no lawsuits alleging excessive force have been filed against the town of Millinocket or the officers named in this lawsuit during Chief Bolduc’s tenure as Chief. JSSMF ¶ 93.

There was, however, a pro se lawsuit filed against the Millinocket Police Department in 2004 involving an event in 2000 that Chief Bolduc was aware of and monitored. JSSMF ¶ 94. The pro se law suit was dismissed without any findings against the Millinocket Police Department in 2009, after Mr. Cote’s arrest. JSSMF ¶ 95.

6. Town of Millinocket

The town of Millinocket is a municipality in Penobscot County, Maine that has a Police Department with a Chief of Police and various subordinate officers and full-time and part-time reserve officers. JSSMF ¶ 98. On December 12, 2006, the Millinocket Police Department adopted an updated Use of Force Policy 2-1, which superseded prior versions. JSSMF ¶ 99. On June 15, 2008, the Police Department revised the Use of Force Policy 2-1. JSSMF ¶ 100. On September 21, 2007, the Department adopted a new Electronic Control Weapons (ECW) policy and revised this policy on May 30, 2008, effective June 15, 2008. JSSMF ¶ 102. The Millinocket ECW policy provides:

[A]ll policies mandated by statute herein meet the standards as prescribed by the Board of Trustees of the Maine Criminal Justice Academy.

JSSMF ¶ 103. Section 1 of the Use of Force policy states in part:

Law enforcement officers are confronted daily with situations requiring the use of force to effect an arrest or ensure public safety. The degree of force used depends on what the law enforcement officer perceives as reasonable and necessary under the circumstances at the time they decided to use force. Except for deadly force the application of any degree of force is only justified when the law enforcement officer reasonably believes that it is necessary:

To prevent the escape from custody, make an arrest or an investigation detention of a person the law enforcement officer believes has committed a crime.

JSSMF ¶ 104. Section 1 of the ECW policy states in part:

It is the policy of this agency that an officer may use Electronic Control Weapons (ECW), as a situational use of force option, when and to the extent that the officer reasonably and actually believes it necessary to effect an arrest or to prevent the escape from custody of an arrested person.

JSSMF ¶ 105. Section III of the ECW Policy states in part:

Electronic control weapons are to be used to lower the risk of suspect and officer injury when the use of physical force is legally justified.

ECW’s reduce the need for hands-on physical force to effect an arrest. ECW’s, when used properly, have the ability to reduce officer and suspect injury and reduce exposure to liability.

JSSMF ¶ 106. Sections V, C(l) and C(7) of the ECW policy state:

Deployment of Electronic Control Weapons: The decision to use the ECW involves the same justification in the situational use of force options as used in the deployment of chemical or pepper agents.

Officers shall not use the ECW: On individuals operating a motor vehicle, except where exigent circumstances are present.

JSSMF ¶ 107. The Millinocket Police Department ECW policy requires that officers must be properly trained before being issued or using an ECW. JSSMF ¶ 108.

Under Section VIII of the town of Millinocket Use of Force General Order dated December 18, 2006 and revised June 15, 2008, all serious applications of force shall be subject to two types of internal investigation. JSSMF ¶ 112. The Policy defines “serious applications of force” to begin usually with compliance techniques and to include more severe methods. JSSMF ¶ 113. Under the town of Millinocket Use of Force General Order, the first investigation is an administrative investigation conducted to determine whether agency standards were followed and the second investigation is a criminal review to detect law breaking. JSSMF ¶ 114; PSAMF ¶ 333; DRPSAMF ¶ 333. Under the Millinocket Use of Force Order, all reported uses of force will be reviewed by the Chief of Police to determine whether agency orders were violated, whether relevant agency policy was clearly understandable and effective to cover the situation, and whether the training was adequate. JSSMF ¶ 115; PSAMF ¶ 335.

7. Implementation of Policy

As of October 31, 2008, the Millinocket Police Department had in effect a policy concerning complaints against police officers. JSSMF ¶ 116. The Department adopted this policy from the recommendations of the Maine Criminal Justice Academy. JSSMF ¶ 117. In the last seven years, Chief Bolduc individually reviewed each and every use of force report and incident report filed by Millinocket Police officers and determined whether to investigate the officers’ use of force. JSSMF ¶ 119; PSAMF IT 332; DRPSAMF ¶332. Chief Bolduc has never filed a use of force report to any state agency under the town of Millinocket Use of Force Order dated December 12, 2006, revised June 15, 2008. JSSMF ¶ 121; PSAMF ¶330; DRPSAMF ¶ 330. Chief Bolduc has never reported an incident of excessive force on the annual mandatory Excessive Force Report to the Maine Criminal Justice Academy. JSSMF ¶ 123; PSAMF ¶ 331; DRPSAMF ¶ 331. Chief Bolduc has never convened a board of inquiry on any use of force incident perpetrated by a Millinocket Police Officer. JSSMF ¶ 120. Chief Bolduc testified that all written and verbal complaints that were followed up and became written complaints (other than anonymous complaints) would be reported to the Maine Criminal Justice Academy Annual Report on Excessive Force Complaints. JSSMF ¶ 122; PSAMF ¶337; DRPSAMF ¶ 337. The Maine Criminal Justice Academy Annual Report on Excessive Force contains no reference to any filed complaints of excessive force for the town of Millinocket for the years 1999 through 2009. JSSMF ¶ 124; PSAMF ¶ 339; DRPSAMF ¶339. From 1999 to 2010, there were no complaints of excessive forced lodged against the Millinocket Police Department pursuant to its Complaints Against Law Enforcement Agency Personnel Policy. JSSMF ¶ 118.

Other than use of force reports that he prepared, Officer Ingersoll has never seen a use of force report generated by the Millinocket Police Department. JSSMF ¶ 61. Officer Ingersoll is not aware of any officer being disciplined as a result of use of force similar to force that he (Officer Ingersoll) describes. JSSMF ¶ 62. Officer Ingersoll has seen no use of force investigations or inquiries through the Millinocket Police Department and is not aware of a single officer being disciplined as a result of his or her use of force against a suspect or arrestee. JSSMF ¶ 63. The Defendants considered physical presence alone to be a type of force. JSSMF ¶ 10Í.

8. The Events of October 31st, 2008

a. Initial Domestic Dispute

Ninety Rhode Island Avenue (90 Rhode Island Avenue) in the town of Millinocket is “unit one” in a single building housing five rental units; the building housing 90 Rhode Island Avenue sits on a triangular piece of property bounded by Cottage Road, Michigan Avenue and Rhode Island Avenue. JSSMF ¶ 125. The three apartments accessed on the Cottage Road side of the building have Cottage Road addresses; the remaining two units have Rhode Island Avenue addresses. JSSMF ¶ 126. The property is owned by Ralph Bragdon. JSSMF ¶ 127. Each apartment of the Bragdon apartment building has a discrete entrance and address. JSSMF ¶ 128.

Mr. Bragdon had rented “unit one”, 90 Rhode Island Avenue, to Karen Woodbury and she had occupied the unit for slightly over one year. JSSMF ¶ 129. Ms. Wood-bury and Mr. Cote had been in a relationship on and off since 2003 and had been living together at 90 Rhode Island Avenue for several months. JSSMF ¶ 130. Before October 31, 2008, Wayne Cote had given money to Karen Woodbury to give to Mr. Bragdon to pay her rent. JSSMF ¶ 131.

In the morning hours of October 31, 2008, Chief Bolduc and Detective Roland McCarthy responded to a call at 90 Rhode Island Avenue. JSSMF ¶ 132. Mr. Cote and Ms. Woodbury were arguing about approximately $1,000 in charges on a cellphone bill incurred by Ms. Woodbury and her adult daughter, Christina Woodbury, who also resided at 90 Rhode Island Avenue. JSSMF ¶ 133. Christina Woodbury called the Millinocket Police to report the argument. JSSMF ¶ 134. Chief Bolduc received a report of a verbal domestic disturbance and a request to remove someone from the premises. JSSMF ¶ 135. Chief Bolduc and Detective McCarthy arrived at 90 Rhode Island Avenue at 9:02:33 a.m. JSSMF ¶ 136. Upon arrival, Chief Bolduc and Detective McCarthy could hear an argument inside 90 Rhode Island Avenue. JSSMF ¶ 137. Upon his arrival, Chief Bolduc observed things being thrown out of an upstairs window at 90 Rhode Island Avenue. JSSMF ¶ 138. As he walked up a stairway to the second floor, Chief Bolduc witnessed Mr. Cote and Ms. Woodbury arguing and Mr. Cote pulling his mattress down the stairs. JSSMF ¶ 139.

Upon meeting Mr. Cote on October 31, 2008, Chief Bolduc asked him to accompany him outside to speak; Detective McCarthy remained inside to talk with Ms. Woodbury. JSSMF ¶ 140. After an extensive conversation with Mr. Cote, Chief Bolduc informed him that he would have to leave, that he was not to return, that he would be allowed to return to collect his belongings with a police escort, and that he was to bring help if he needed assistance to load mattresses and furniture. JSSMF ¶ 141. Chief Bolduc specifically told Mr. Cote that he could return to the residence at 4 p.m. to pick up his things with an officer present. JSSMF ¶ 142; PSAMF ¶ 320.

Chief Bolduc knew that Officer Ingersoll was scheduled to begin his shift at 4:00 p.m. later that day. JSSMF ¶ 143. Mr. Cote was warned for criminal trespass at 9:16 a.m. and again just before he left at about 10:43 a.m. JSSMF ¶ 144. Mr. Cote was again advised that he could come back to the house at 4:00 p.m. that evening and get his belongings, but he would be arrested if he came back to the apartment building or the area before then. JSSMF ¶ 145; PSAMF ¶320; DRPSAMF ¶320. During Defendant Bolduc’s interaction with Mr. Cote during the wanted-out call he responded to, Defendant Bolduc issued a verbal criminal trespass warning not to return to 90 Rhode Island Avenue or the area, but did not notify Mr. Cote that any criminal trespass warning extended to Michigan Avenue, Rhode Island Avenue, or Cottage Road. PSAMF ¶ 323; DRPSAMF ¶ 323. Chief Bolduc believed that the “area” of 90 Rhode Island Avenue extends to Rhode Island Avenue, Michigan Avenue, and Cottage Road. PSAMF ¶ 321; DRPSAMF ¶ 321.

Mr. Cote was not allowed to go back into the apartment to collect his personal belongings before Chief Bolduc and Detective McCarthy cleared the scene. JSSMF ¶ 146. Chief Bolduc did not leave the premises until 10:43 a.m., an hour and 42 minutes after his arrival. JSSMF ¶ 147. Mr. Cote did not believe he had the right to stay in the apartment at 90 Rhode Island Avenue. PSAMF ¶ 340; DRPSAMF ¶ 340.

Mr. Cote had called Ralph Bragdon, the owner of the building in which 90 Rhode Island Avenue is located and Ms. Wood-bury’s landlord, a day or two before October 31, 2008. JSSMF ¶ 148. Mr. Cote called Mr. Bragdon and Mr. Bragdon asked him to come to his house to pay rent and discuss the possibility of taking over the tenancy because Karen Woodbury was behind in the rent and had discussed moving out. JSSMF ¶ 149.

Mr. Cote later arrived at Mr. Bragdon’s Millinocket Lake home a day or two before October 31, 2008. JSSMF ¶ 150. According to Mr. Bragdon, Mr. Cote said that he was Karen Woodbury’s boyfriend and that he would like to pay her rent. JSSMF ¶ 151. Mr. Bragdon first learned that Mr. Cote had been living at the apartment when Mr. Cote arrived that day to pay the rent. JSSMF ¶ 152. Mr. Cote did not tell Mr. Bragdon about the morning’s interactions with the police or that Ms. Woodbury had asked him to leave her apartment. JSSMF ¶ 153. Mr. Bragdon and Mr. Cote discussed Mr. Cote renting the apartment should Ms. Woodbury leave. JSSMF ¶ 154. Mr. Bragdon made it very clear to Mr. Cote that the apartment was Ms. Woodbury’s until she gave notice of her intent to move, that she had not done so, and that Mr. Bragdon had not given her a notice to vacate. JSSMF ¶ 155. Mr. Bragdon provided Mr. Cote with a receipt for the payment of the November rent. JSSMF ¶ 156.

b. Return to 90 Rhode Island Avenue

On October 31, 2008, Sergeant Cox began work at approximately 3:40 to 3:45 p.m. and Officers Ingersoll and Theriault began work at about 4:00 p.m. JSSMF ¶ 157. Officer Theriault was working that evening because it was Halloween and they expected there would be extra activity; normally, the Millinocket Police Department schedules only two officers per shift. JSSMF ¶ 158. Sergeant Cox was the supervisor for the shift. JSSMF ¶ 159. Detective McCarthy briefed Sergeant Cox and Officers Ingersoll and Theriault on the morning’s call to the Woodbury residence and the conditions upon which Mr. Cote could collect his belongings. JSSMF ¶ 160.

A few minutes after starting his 4:00 p.m. shift, Officer Ingersoll received a telephone call from Mr. Cote asking if an officer was going to show up to assist him. JSSMF ¶ 161. Mr. Cote requested an officer so that he could pick up his things. JSSMF ¶ 162. At approximately 4:15 p.m., Officers Ingersoll and Theriault traveled together to 90 Rhode Island Avenue and Sergeant Cox decided to respond as well, arriving at the premises about two minutes after Officers Ingersoll and Theriault. JSSMF ¶ 163.

Officer Ingersoll’s cruiser was equipped with a properly functioning camera. JSSMF ¶ 164. Sergeant Cox testified that it was standard practice and procedure to turn on the cruiser cameras. JSSMF ¶ 165. Officer Theriault did not know whether the cruiser camera was properly functioning. JSSMF ¶ 166. Officers are responsible to ensure that their issued equipment is functioning properly. JSSMF ¶ 167. The cruiser camera in Officer Ingersoll’s cruiser produced no footage of the stop, arrest, or tasing of Mr. Cote on October 31, 2008 in violation of Millinocket Police Department practice and procedure. JSSMF ¶ 168.

When Officers Ingersoll and Theriault arrived on scene, Mr. Cote was sitting in his truck parked across from 90 Rhode Island Avenue. JSSMF ¶ 169. Officers Ingersoll and Theriault left the police cruiser and approached his vehicle. JSSMF ¶ 170. Prior to the arrival of Sergeant Cox, Mr. Cote asked Officers Ingersoll and Theriault if he could enter 90 Rhode Island Avenue to collect his belongings, and was told by Officer Ingersoll that he was not allowed into the apartment to retrieve anything. JSSMF ¶ 171; PSAMF ¶ 342; DRPSAMF ¶ 342. Officer Ingersoll instructed Mr. Cote to remove his belonging from the property and at some point threatened him with arrest. PSAMF ¶ 343; DRPSAMF ¶ 343. Officer Ingersoll testified: “I told Mr. Cote we were there and his stuff was in the driveway. Go ahead and pick up your stuff.” JSSMF ¶ 172. Mr. Cote responded that the items in the driveway were trash, were not his belongings, that this is not what he needed from the apartment, and that Chief Bolduc had told him earlier that day that he could return to the apartment and pick up his belongings. JSSMF ¶ 173; PSAMF ¶ 341; DRPSAMF ¶ 341. Officer Ingersoll instructed Mr. Cote to remove his belongings and told him that if he did not comply with his instructions, he would be arrested for criminal trespass. JSSMF ¶ 174.

Sergeant Cox arrived at 90 Rhode Island Avenue a couple of minutes after Officers Ingersoll and Theriault. JSSMF ¶ 175. When Sergeant Cox arrived, Mr. Cote’s truck was in the road in front of the apartment house and Officers Ingersoll and Theriault were standing in the road speaking to Mr. Cote through his open truck window. JSSMF ¶ 176. Upon arrival, Sergeant Cox positioned his cruiser on Rhode Island Avenue off the corner of Cottage Road, signed off, activated the incruiser camera and stepped out of his vehicle. JSSMF ¶ 177. As Sergeant Cox approached Mr. Cote, Mr. Cote and Officer Ingersoll were engaged in conversation; Officer Ingersoll informed Mr. Cote: ‘Well, you’ve got about five minutes and then you are going to jail.” JSSMF ¶ 178.

Sergeant Cox approached Mr. Cote and informed him through the open window that this was his opportunity to collect his belongings. JSSMF ¶ 179. Mr. Cote told Sergeant Cox that he wanted him to contact the landlord. JSSMF ¶ 180. Sergeant Cox replied that the substance of his request was a civil matter and it was not going to happen. JSSMF ¶ 181. Mr. Cote argued that it was not a civil matter and that someone was in the house who should not be there. JSSMF ¶ 182. Mr. Cote did not believe he had the right to stay in the apartment situated at 90 Rhode Island Avenue. PSAMF ¶ 340; DRPSAMF ¶340. Sergeant Cox reiterated that this was an opportunity for Mr. Cote to collect his belongings and that it was, in fact, what the police officers wanted him to do. JSSMF ¶ 183. After repeatedly telling the officers that the property in the driveway was not his, Mr. Cote drove away. JSSMF ¶ 184.

Approximately two minutes later, Mr. Cote returned to the premises and parked in the driveway. JSSMF ¶ 185. As Officers Ingersoll and Theriault approached his vehicle, Mr. Cote, who was having transmission problems with his truck, either attempted to place the vehicle in park or back up. JSSMF ¶ 186. Sergeant Cox approached Mr. Cote’s vehicle and told him that he must either get his belongings and leave or face arrest. JSSMF ¶ 187. Mr. Cote responded through a closed window that he did not want the items as they were not his. JSSMF ¶ 188. After Mr. Cote’s response, Sergeant Cox told Mr. Cote twice to leave or he would be arrested for criminal trespass. JSSMF ¶ 189. Sergeant Cox refused to argue the matter with Mr. Cote, and once again informed him that he had to leave or be arrested. JSSMF ¶ 190. Mr. Cote responded that he was not afraid of being arrested and he had been arrested “30 fucking times.” JSSMF ¶ 191. Officer Ingersoll remarked, “good,” and Sergeant Cox told him that there would be “one more” added to it, namely another arrest. JSSMF ¶ 192. The Officers repeatedly told Mr. Cote to leave. JSSMF ¶ 193. Mr. Cote responded to the Officers’ instructions by telling them to “fucking shut up and get out of my face” and saying “you go.” JSSMF ¶ 194.

During their last conversation with Mr. Cote in 90 Rhode Island Avenue, which took place about five minutes after Sergeant Cox turned on the cruiser videotape, Sergeant Cox told Mr. Cote: “Don’t come back. Come back and you’re going to get arrested.” JSSMF ¶195. While in the driveway directly in front of 90 Rhode Island Avenue, Sergeant Cox only told Mr. Cote, “Don’t come back; you come back, you’re going to get arrested;” he did not warn him to stay away from Michigan Avenue, Rhode Island Avenue, or Cottage Road. PSAMF If 318; DRPSAMF ¶318.

During his conversation with Mr. Cote, Officer Ingersoll warned Mr. Cote that if he did not leave, he would be arrested for criminal trespass. JSSMF ¶ 196. After about five minutes, Mr. Cote once again left the 90 Rhode Island Avenue property as instructed. JSSMF ¶ 196. At no time that day after the final warning to leave did Mr. Cote return to 90 Rhode Island Avenue and following his departure, Mr. Cote remained on public roadways. JSSMF ¶ 197.

Officer Ingersoll radioed dispatch and reported that Mr. Cote had been warned for criminal trespass at the location of 90 Rhode Island Avenue. JSSMF ¶ 198. Approximately two minutes later, Mr. Cote returned to the vicinity of 90 Rhode Island Avenue and drove down an adjacent street. JSSMF ¶ 199. Mr. Cote had several relatives living in a two block radius of the Bragdon apartment building and was attempting to drive around and find a relative to assist him in retrieving his belongings from 90 Rhode Island Avenue. JSSMF ¶ 200; PSAMF ¶¶ 344-45; DRPSAMF ¶¶ 344-45.

After Mr, Cote left, Officer Ingersoll commented that if they had a chance to stop him, they would “go hands-on” and “put the knuckles to him.” JSSMF ¶ 201. In response to Officer Ingersoll’s comment, Officer Theriault laughed. JSSMF ¶202. After Officer Ingersoll’s comment, Sergeant Cox did not immediately respond; however, within about three seconds, Sergeant Cox said: “No, I don’t want to give him a chance to take off so I would rather (inaudible).” JSSMF ¶ 203. After Officer Ingersoll replied, Sergeant Cox said further, “I would rather have him hit a tree or hit a car rather than I would give him a chance to get out here and hit a kid.” JSSMF ¶ 203. The Officers discussed the potential of using a Taser against Mr. Cote but the conversation assumed that he would not cooperate. JSSMF ¶ 204. The Officers’ statements were not a plan to deploy a Taser against Mr. Cote, rather a prediction as to how the events would unfold. JSSMF ¶ 205.

Sergeant Cox received a request from the dispatcher to call Chief Bolduc and Sergeant Cox spoke with Chief Bolduc by cellphone, advising the Chief of the events that had taken place with Mr. Cote. JSSMF ¶ 206. Sergeant Cox advised Chief Bolduc that things were not proceeding according to plan at 90 Rhode Island Avenue, which had anticipated that Mr. Cote would take his belongings and leave. JSSMF ¶ 207. Sergeant Cox reported to Chief Bolduc that Mr. Cote was faking a cellphone call to Ralph Bragdon. JSSMF ¶ 208. Sergeant Cox advised Chief Bolduc that Mr. Cote had left the area momentarily, would not take his belongings, and that he thought Mr. Cote would return. JSSMF ¶ 209. Sergeant Cox advised Chief Bolduc that it appeared Mr. Cote was circling the block, waiting for the Officers to leave. JSSMF ¶ 210. Sergeant Cox advised Chief Bolduc that he was concerned about the threat Mr. Cote posed to the public in this residential neighborhood on what was anticipated to be a busy evening of pedestrian traffic since it was Halloween night. JSSMF ¶ 211. Sergeant Cox advised Chief Bolduc that he expected Mr. Cote to attempt to elude the officers and public safety concerns would not permit that. JSSMF ¶ 212. Sergeant Cox also advised the Chief that the situation might come to the point where the officers would need to make a physical arrest of Mr. Cote by breaking a window in his truck and using a Taser to remove him and place him in custody. JSSMF ¶ 213. During the event while Mr. Cote was driving on the streets around 90 Rhode Island Avenue, Sergeant Cox stated: “He’s just circling around and around; nothing says he can’t do that.” JSSMF ¶ 214.

Sometime after Mr. Cote’s second departure from 90 Rhode Island Avenue, Officer Ingersoll received a report from a tenant of the building that Mr. Cote had returned to the building and he did not want him there. JSSMF ¶ 215. Specifically, the tenant, Mr. Wolfe, informed Officer Ingersoll that Mr. Cote had stopped in front of his apartment unit located in the same building as 90 Rhode Island Avenue on the Cottage Road side of the Bragdon building. JSSMF ¶ 216. Mr. Cote had spoken with Eugene Wolfe at his Cottage Road apartment in the morning, and got a coat hanger and things to get Mr. Cote’s truck unlocked. PSAMF ¶ 346; DRPSAMF ¶ 346. Mr. Cote does not recall seeing Eugene Wolfe in the afternoon and did not talk to him in the afternoon before Mr. Cote was arrested. PSAMF ¶ 347; DRPSAMF ¶347. Officer Theriault did not actually see Mr. Cote pull up in front of the Cottage Road entrance of Mr. Wolfe, but was later told at some point that, during the time period she was standing there, one of the tenants had expressed that to another Officer. PSAMF ¶ 348; DRPSAMF ¶ 348.

c. Initial Stop

About three and one-half minutes after his second departure from 90 Rhode Island Avenue, Mr. Cote again drove by 90 Rhode Island Avenue by proceeding on Michigan Street and turning left at the intersection of Michigan Street and Rhode Island Avenue. JSSMF ¶ 217. Sergeant Cox reported in his incident report that he noticed Officers Ingersoll and Theriault making for their cruiser; Sergeant Cox exited his cruiser and Officer Ingersoll advised that Wayne Cote had been circling the apartment around and around and “it was enough”; they took off to stop Mr. Cote. PSAMF ¶319; DRPSAMF ¶319.

Officers Ingersoll and Theriault pursued Mr. Cote’s vehicle. JSSMF ¶ 218. Officer Theriault testified that just before she and Officer Ingersoll pursued Mr. Cote, she noticed Mr. Cote pass by Rhode Island Avenue driving on Michigan Avenue and staring at the officers; at that point the officers got into the cruiser and stopped Mr. Cote. PSAMF ¶311; DRPSAMF ¶ 311. Officer Theriault testified that Mr. Cote’s actions — driving by and looking in the direction of the officers — were not criminal offenses. PSAMF ¶ 312; DRPSAMF ¶ 312. Officer Theriault testified that she did not know the reason for stopping Mr. Cote as she was on-looking and did not have an active role. PSAMF ¶ 313; DRPSAMF ¶ 313.

Sergeant Cox followed in his cruiser. JSSMF ¶ 219. It was Officer Ingersoll’s intention to arrest Mr. Cote for criminal trespass because, in his view, Mr. Cote had returned to “the area” or “the immediate area” of 90 Rhode Island Avenue after being warned not to do so. JSSMF ¶ 220. Officer Theriault testified that the meaning of “immediate area” is “a matter of opinion between individuals.” JSSMF ¶ 221.

Officer Ingersoll activated his takedown lights and Mr. Cote pulled off to the side of the road at the intersection of Forest Avenue and Cottage Avenue. JSSMF ¶ 222. Sergeant Cox arrived at the scene of the stop as Officers Ingersoll and Theriault exited their cruiser. JSSMF ¶ 223. Sergeant Cox testified that Mr. Cote had committed a criminal trespass by returning to 90 Rhode Island Avenue. JSSMF ¶ 224.

After stopping Mr. Cote, Officer Ingersoll approached the driver’s side of Mr. Cote’s vehicle and gave multiple instructions: roll the window down, unlock the door, and if he would not roll the window down, Officer Ingersoll would break the window, and to step out. JSSMF ¶ 225; PSAMF ¶ 351; DRPSAMF ¶351. At the same time, Sergeant Cox gave Mr. Cote overlapping instructions as Officer Ingersoll yelled commands and attempted to break Mr. Cote’s window. JSSMF ¶ 226; PSAMF ¶351; DRPSAMF ¶351. Mr. Cote did not comply with Officer Ingersoll’s commands. JSSMF ¶227. Officer Ingersoll and to a lesser extent Sergeant Cox repeatedly instructed Mr. Cote to unlock the door and get out of the truck. JSSMF ¶ 228. Mr. Cote did not comply with the Officers’ commands and instead remained inside his locked truck, repeatedly asking “What did I do wrong?” JSSMF ¶ 229. As Officer Ingersoll attempted to break his window, Mr. Cote continued to ask why he was stopped. JSSMF ¶ 230. Officer Ingersoll did not recall at his deposition whether he explained to Mr. Cote the reason the Officer had stopped him; however, the videotape of the encounter reveals that Officer Ingersoll told Mr. Cote he had stopped him for criminal trespass. JSSMF ¶ 231. Mr. Cote did not understand why he was pulled over, a fact never adequately explained to him. JSSMF ¶ 232.

Sergeant Cox, who was on the passenger’s side window, notified Officer Ingersoll that the Cote truck’s transmission was in “drive.” JSSMF ¶ 233. Mr. Cote was having transmission problems with his truck and may have attempted to place the vehicle into park. JSSMF ¶ 234. Mr. Cote called emergency 911 and requested assistance. PSAMF ¶ 353; DRPSAMF ¶353. Sergeant Cox believed that Mr. Cote was faking a cellphone call during the stop, but Mr. Cote was in fact on the phone with E-911 dispatch. JSSMF ¶235. Mr. Cote was on the phone to E-911 when Ralph Bragdon, the owner of the apartment building at 90 Rhode Island Avenue, arrived at the scene of the stop; Mr. Cote began to honk his horn and yell for Ralph Bragdon and continued to honk his horn for several seconds. JSSMF ¶ 236; PSAMF ¶ 354; DRPSAMF ¶ 354. At approximately 15:45:19, about the time Mr. Cote was honking his horn, Sergeant Cox broke the passenger side window of Mr. Cote’s truck. JSSMF ¶237. Mr. Cote was on his cellphone to E-911 dispatch at the time his window was broken. JSSMF ¶ 238; PSAMF ¶ 355; DRPSAMF ¶ 355.

During the three minutes before Sergeant Cox broke the window, the following events had taken place: Officer Ingersoll and Sergeant Cox had repeatedly demanded that Mr. Cote put his vehicle into park, unlock his doors, and exit the vehicle; Mr. Cote repeatedly asked why he was stopped, and why he was being arrested for criminal trespass when he had not returned to 90 Rhode Island Avenue. JSSMF ¶ 239. Mr. Cote continued to ask why he was stopped, and was anxious and confused by the stop itself and by the competing commands issues by both officers. JSSMF ¶ 240; PSAMF ¶352; DRPSAMF ¶ 352. Mr. Cote did not comply with the Officers’ orders; he says he did not do so because he did not understand why he had been pulled over and the Officers never explained to him why he was stopped. JSSMF ¶ 241.

Other than contributing by her physical presence to the show of authority from the police, Officer Theriault had no physical or verbal contact with Mr. Cote during the initial stop. JSSMF ¶242. At one point, Defendant Theriault handed Defendant Cox her baton. PSAMF ¶ 315. Although both Sergeant Cox and Officer Ingersoll were wielding collapsible batons, commonly referred to as an ASP, as they yelled at Mr. Cote, they did not draw their firearms or Tasers during this initial stop. JSSMF ¶ 243.

d. Second Stop and Arrest

After Sergeant Cox broke the passenger window, Mr. Cote was startled and pulled away from the scene. JSSMF ¶244; PSAMF ¶ 356; DRPSAMF ¶356. Mr. Cote pulled away from the scene of this stop because he was startled by the window being smashed by Sergeant Cox, but he almost immediately pulled over again as he continued his conversation with E-911. PSAMF ¶ 356; DRPSAMF ¶356. Mr. Cote pulled over a short distance away at the intersection of Cottage Avenue and Middle Street, stopped his truck, but kept his engine running; he was blocked in by Officer Ingersoll’s cruiser in the front and Sergeant Cox’s cruiser in the rear as he continued his conversation with E-911. JSSMF ¶ 245; PSAMF ¶356. After he was pulled over a second time, Mr. Cote made no attempts to flee or evade arrest by vehicle or on foot. JSSMF ¶246. Shortly before he was tased and arrested, Mr. Cote called Ralph Bragdon by cellphone and asked him to come to 90 Rhode Island Avenue. JSSMF ¶ 247.

At the second stop, Sergeant Cox went to the passenger side window with his Taser drawn and pointed it at Mr. Cote through the broken passenger side window. JSSMF ¶ 248. Sergeant Cox ordered Mr. Cote to open the door and Mr. Cote said, “no,” and asserted that he was not criminally trespassing. JSSMF ¶ 249. Sergeant Cox warned Mr. Cote to open the door or he would be tased. JSSMF ¶ 250. Over the space of the next 45 to 55 seconds, Sergeant Cox ordered Mr. Cote to open the door at least seven times but Mr. Cote did not do so. JSSMF ¶ 251. During this time and at the time he was tased, Mr. Cote was still on the phone, requesting assistance from E-911 dispatch. JSSMF ¶ 251; PSAMF ¶357; DRPSAMF ¶ 357. Mr. Cote was reluctant to consent to the officers because of his confusion, their lack of explanation, and his negative prior interactions with the police in general and these officers specifically. JSSMF ¶ 252. Mr. Cote heard the officers and understood that they were serious about getting him out of his truck, but he was determined that he was not going to exit the vehicle. JSSMF ¶ 253.

Sergeant Cox did not make any attempt to open the vehicle door or to enter the truck in an attempt to arrest Mr. Cote because the car was still in drive. JSSMF ¶ 254. Sergeant Cox felt that it would be unsafe for him or another officer to get inside the vehicle until Mr. Cote was incapacitated. JSSMF ¶ 255. Sergeant Cox deployed the Taser against Mr. Cox. JSSMF ¶ 256. At one point, Officer Theriault handed Sergeant Cox her baton. PSAMF ¶ 315; DRPSAMF ¶ 315. Officer Theriault did not lodge any objections to the suggested use of force against Mr. Cote. PSAMF ¶316; DRPSAMF ¶316.

From Mr. Cote’s perspective, Sergeant Cox deployed the Taser because less than ten minutes before he was stopped, Sergeant Cox and Officers Ingersoll and Theriault had spoken in derogatory terms about Mr. Cote, after which they decided to pull him over, bust out his window, “go hands on with him,” tase him, and put the knuckles to him, all the while Officer Theriault laughed at their comments. JSSMF ¶ 257; PSAMF ¶350; DRPSAMF ¶350. At no time from the beginning of their initial exchange with Mr. Cote until he was stopped, tased and arrested, did Mr. Cote use physical force or threaten the use of physical force against any of the Defendants. JSSMF ¶ 258.

As a result of his being tased, Mr. Cote was screaming in pain and agony and his truck rolled forward striking one of the police cars. JSSMF ¶ 259. Officer Ingersoll extracted Mr. Cote from his truck after it came to a stop and placed him on the ground for handcuffing. JSSMF ¶ 260. Sergeant Cox and Officers Ingersoll and Theriault were holding Mr. Cote down after he had been tased. JSSMF ¶ 261. Officer Theriault actively participated in the arrest and handcuffing of Mr. Cote by holding down Mr. Cote’s right arm. JSSMF ¶ 262; PSAMF IT 314; DRPSAMF ¶ 314. At no time did Officer Theriault kneel on Mr. Cote’s back. JSSMF ¶ 264. Officer Ingersoll kneeled on Mr. Cote’s back as he was handcuffing him for approximately thirty seconds. JSSMF ¶ 263. Sergeant Cox informed Officer Ingersoll that he was wrapped in Taser wire. JSSMF ¶ 265. Officer Ingersoll instructed Sergeant Cox “don’t pull the trigger” after he discovered that the Taser wire was caught on his leg. JSSMF ¶ 266. Officer Ingersoll placed his knee on Mr. Cote’s back while disengaging himself from the Taser leads. JSSMF ¶ 267. Officer Ingersoll took care and time to untangle himself from the Taser X26 wires in order to avoid potential exposure to himself and the other Officers. JSSMF ¶ 268.

After Officer Ingersoll applied handcuffs to Mr. Cote, he lifted him by the handcuffs, shoulders or arms, told him to shut up, put him back on the ground, knelt on his back for approximately 15 seconds to disengage the Taser wires while Mr. Cote complained that his back was broken, assisted Mr. Cote up, forced him against the truck, and patted him down while he was against the truck. JSSMF ¶ 269; PSAMF ¶ 358; DRPSAMF ¶ 358. As Officer Ingersoll knelt on Mr. Cote’s back and as the Taser effects diminished, Mr. Cote cried out to the Officers that his back was injured. PSAMF ¶ 359; DRPSAMF ¶ 359. Officer Theriault held down Mr. Cote’s right arm, assisted in pinning Mr. Cote against his vehicle after he was handcuffed, and assisted in frisking him. JSSMF ¶ 270; PSAMF ¶314. While against the truck, Mr. Cote complained that Officer Ingersoll was pulling him away from the truck. JSSMF ¶ 271.

After being tased, Mr. Cote stated, ‘You mother fuckers are going to be sued.” JSSMF ¶ 272. After being tased, Mr. Cote was verbally combative with the officers; he was in pain and agony and after he regained his faculties, he complained that Officer Ingersoll had injured his back by kneeling on it. JSSMF ¶273. Mr. Cote cried out to the officers that his back was injured as Officer Ingersoll knelt on it after the Taser effects diminished. JSSMF ¶ 274; PSAMF ¶359. Mr. Cote continued shouting that he had a bad back and stated that his back and neck were “broken.” JSSMF ¶275. Mr. Cote was pulled away from the truck fender and shoved back into the truck no fewer than seven times. JSSMF ¶276. Mr. Cote complained to the officers about being pulled away from the fender of the truck. JSSMF ¶ 277. Mr. Cote continued to yell, swear at the Officers, and allege that he had back and neck problems as well as nerve and brain damage. JSSMF ¶ 278. Mr. Cote repeatedly requested the aid of a state trooper. JSSMF ¶ 279.

After he was tased and handcuffed, Mr. Cote was placed in the police cruiser. JSSMF ¶ 280. Mr. Cote began shaking uncontrollably. JSSMF ¶ 281. Officer Ingersoll told Mr. Cote to sit still, grabbed his neck, and forced his head between his legs. JSSMF ¶ 282. Chief Bolduc received a dispatch request to respond to the scene of Mr. Cote’s arrest on October 31, 2008 and arrived at the arrest scene two to three minutes after the call. JSSMF ¶ 283. After Chief Bolduc arrived at the scene, Sergeant Cox briefed Chief Bolduc on the events that had taken place. JSSMF ¶ 284.

e. Post-Arrest Events

Sergeant Cox did not believe that Mr. Cote was having a seizure but requested an ambulance to the scene where he was arrested. JSSMF ¶ 285. Officer Ingersoll was aware that other Officers noticed seizure symptoms at the scene. JSSMF ¶ 286. While Mr. Cote was handcuffed in the cruiser, Officer Ingersoll remarked to Chief Bolduc: “He is trying to pull the, he’s been doing a seizure now for about five minutes.” JSSMF ¶ 287. Officer Theriault testified that some Officers thought that Mr. Cote was acting out, rather than experiencing actual seizure symptoms, and that no Officer discussed seizures at the scene of Mr. Cote’s arrest. JSSMF ¶ 288. Sergeant Cox testified that “had it not been probably for the seizure, he would have been transported by us to Millinocket Regional Hospital in our cruiser.” JSSMF ¶ 289. Officer Theriault believed that the ambulance was called to transport Mr. Cote to the hospital for Taser probe removal. JSSMF ¶ 290.

Because Sergeant Cox requested an extra officer go to the Hospital, Officer Theriault drove a cruiser to Millinocket Regional Hospital after Mr. Cote was transported there by ambulance. JSSMF ¶ 291. Sergeant Cox accompanied Mr. Cote in the ambulance to Millinocket Regional Hospital. JSSMF ¶ 292.

Mr. Cote complained of back pain and headache upon arrival at Millinocket Regional Hospital. JSSMF ¶ 293. Neither Sergeant Cox nor Officer Theriault notified medical personnel that Mr. Cote had a seizure after being tased. JSSMF ¶ 294.

Joseph Aquilina is a nurse practitioner who worked in the Emergency Department at Millinocket Regional Hospital and who treated Mr. Cote on October 31, 2008. JSSMF ¶ 295. Mr. Aquilina stated that a triage nursing note detailed Mr. Cote’s initial check-in when Pat Morin, R.N. performed an initial patient assessment. JSSMF ¶ 296. The triage note contains a patient assessment demonstrating the need for care that is used to assist the treating physician with diagnosis and treatment of medical conditions. JSSMF ¶ 297. Nurse Morin took a history that Mr. Cote had been tased and arrested and complained of back pain and headache, but Mr. Cote did not report that he had suffered a seizure after being tased. JSSMF ¶ 298. Mr. Aquilina testified that the police officers did not inform him that Mr. Cote had a seizure after being tased and arrested. JSSMF ¶ 299.

Officers Ingersoll and Theriault did not mention Mr. Cote’s apparent seizures in their incident reports following his arrest. JSSMF ¶ 300. Defendant Theriault did not lodge any objections to the suggested use of force against Mr. Cote. PSAMF ¶ 316.

Sergeant Cox informed Officer Ingersoll that Mr. Cote had $155.00 in cash in his possession. JSSMF ¶ 301. Officer Ingersoll noted in his report that the bail commissioner was contacted and advised as to the nature of the arrest. JSSMF ¶ 302. After speaking to the one of the Defendant Officers regarding Mr. Cote’s arrest on misdemeanor charges, the bail commissioner set Mr. Cote’s bail at $50,000 cash. JSSMF ¶ 303. After Mr. Cote spent the weekend in jail, his bail was reduced and he made bail. JSSMF ¶304. After he was booked, Sergeant Cox and Officer Theriault transported Mr. Cote to the Penobscot County Jail in Patrolman’s Car Number 2. JSSMF ¶ 305. Sergeant Cox did not activate the cruiser video camera when transporting Mr. Cote to Penobscot County Jail and did not videotape his transport to jail. JSSMF ¶ 306.

9. Town of Millinocket Insurance Coverage

Argonaut Insurance issued two liability policies to the town of Millinocket with effective dates of April 27, 2008 through April 27, 2009. JSSMF ¶ 307. They were a Law Enforcement Professional Liability Policy, MLE 7000045100 and a Commercial General Liability Policy, No. MGL 7000045100. JSSMF ¶ 308. Argonaut Insurance is providing for the town of Millinocket’s defense in this case under those policies. JSSMF ¶ 309. The Liability Coverage for these policies contains the following limits of liability:

$400,000 per occurrence, $1,000,000 General Aggregate Limit of Liability for causes