CLARKEN v. SWEENEY

RULING ON THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

This case arises out of the shocking murders of a young boy and hismother by a Bridgeport drug dealer named Adrian Peeler in January of1999. Adrian Peeler killed Leroy "B.J." Brown, Jr. and Karen Clarke toprevent them from testifying against his brother, Russell Peeler, who wasawaiting trial for the murder of Karen Clarke's boyfriend in theConnecticut Superior Court.

The plaintiff, Pearline Clarke, is B.J.'s grandmother and Karen'smother,1 and brought this action individually and as theadministratrix of Karen and B.J.'s estates. The defendants are the Cityof Bridgeport and its former police chief, Thomas J. Sweeney. PearlineClarke alleges that by failing to adequately protect Karen and B.J. fromthe Peeler brothers, utilizing flawed witness protection practices, andinstituting a policy of encouraging minorities to cooperate with thepolice, the defendants violated Karen and B.J.'s federal constitutionalrights to due process and equal protection. She alsoPage 2asserts the state law causes of action of negligence, gross negligence,and fraudulent misrepresentation.

This opinion considers the Defendants' Motion for Summary Judgment. Thedefendants argue that they are entitled to summary judgment on each ofthe plaintiff's claims, and they also argue that the defendant ThomasSweeney is entitled to qualified immunity on the claims arising underfederal law. For the following reasons, the motion is GRANTED as to thefederal claims.

I. Summary Judgment Standard

In a summary judgment motion, the burden is on the moving party toestablish that there are no genuine issues of material fact in disputeand that it is entitled to judgment as a matter of law. See Fed.R.Civ.P.56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A courtmust grant summary judgment "`if the pleadings, depositions, answers tointerrogatories, and admissions on file, together with the affidavits, ifany, show that there is no genuine issue as to any material fact.'" Minerv. City of Glens Falls, 999 F.2d 655, 661 (2d Cir. 1993) (citationomitted). A dispute regarding a material fact is genuine "`if theevidence is such that a reasonable jury could return a verdict for thenonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520,523 (2d Cir. 1992) (quoting Andersoa 477 U.S. at 248). After discovery,if the nonmoving party "has failed to make a sufficient showing on anessential element of [its] case with respect to which [it] has the burdenof proof," then summary judgment is appropriate. Celotex Corp. v.Catrett, 477 U.S. 317, 323 (1986).

The Court resolves "all ambiguities and draw[s] all inferences in favorof the nonmoving party in order to determine how a reasonable jury woulddecide." Aldrich, 963 F.2d at 253. "Only when reasonable minds could notdiffer as to the import of the evidence is summary judgment proper."Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991); see also SuburbanPropane v. Proctor Gas,Page 3Inc., 953 F.2d 780, 788 (2d Cir. 1992). "To prevail on a motion forsummary judgment, the moving party must show that there are no genuineissues of material fact, and that when any disputed facts are viewed inthe light most favorable to the non-moving party, the moving party isentitled to judgment as a matter of law." Cowan ex rel. Estate of Cooperv. Breen, 352 F.3d 756, 760 (2d Cir. 2003). Thus, "where the versions ofthe facts differ, [the court] must consider [the non-moving party's]version and make all possible inferences in her favor." Id. at 763."Nevertheless, the nonmoving party must come forward with specific factsshowing that there is a genuine issue of material fact for trial. . . .Conclusory allegations, conjecture, and speculation . . . areinsufficient to create a genuine issue of fact." Shannon v. New York CityTransit Authority, 332 F.3d 95, 99 (2d Cir. 2003) (citations and internalquotation marks omitted).

II. Factual Background2

A. Undisputed Facts

On September 2, 1997, Russell Peeler attempted to kill Rudolph Snead ina drive-by shooting in Bridgeport while Snead sat in his car. Snead wasshot by Peeler but recovered from his injuries. Apparently, the shootingwas related to a dispute between Snead and Peeler regarding illegal drugtrafficking. B.J. Brown, the eight-year old son of Karen Clarke,3 wasa passenger in Snead's car at the time of the shooting. Peeler wassubsequently arrested on a charge of attempted murder of Snead.Page 4

After posting bond on the attempted murder charge, Peeler threatenedSnead to prevent him from testifying against him. Apparently unsatisfiedwith Snead's response to this threat, Peeler shot and killed Snead whilehe was on the telephone in a barbershop in Bridgeport on May 29, 1998.

Approximately one week after Snead's murder, BJ. Brown and Karen Clarkegave statements to the Bridgeport Police Department ("BPD"), whichidentified Russell Peeler as the person who had attempted to kill Sneadin the drive-by shooting. Karen brought BJ. to the police departmentwithout any prior contact or encouragement by the police. On the basis ofthe statements given to the BPD by Karen and B J., and other informationset forth in the arrest warrant application,4 Russell Peeler wasarrested on June 15, 1998 for the murder of Snead. Peeler was released onbond on July 1, 1998. On that date, Sergeant Michael Kerwin of the BPDauthored an internal memo which indicated that Karen was a witness to themurder of Snead, that the alleged murderer had been released, and that hehad a history of retaliating against witnesses. Kerwin's memo suggestedthat Karen's address should be "flagged for an appropriate response" inthe event of a call for help. On the next day, July 2, 1998, the BPD,after a request from the Bridgeport State's Attorney's office, placedmarked police cars in front of Karen and B.J.'s home on Garfield Avenuein Bridgeport to protect them from possible retribution by Peeler.However, the police cars were removed on July 8, 1998, the day thatPeelerPage 5was returned to jail after his bond was increased from $250,000 to$400,000 and he failed to post the additional amount. Peeler was againreleased on bond on July 13, 1998, but there were no police cars assignedto Karen and B.J.'s residence after they were removed on July 8, 1998.Also in July of 1998, Karen and B.J. moved to a new residence on EarlAvenue in Bridgeport. In August 1998, upon the request of Karen Clarke,Sergeant Kerwin arranged for B.J. to be transferred to a different schoolbecause Peeler's children attended B.J.'s former school.

On December 23, 1998, the State's Attorney's Office turned over itswitness list and witness statements for Peeler's murder trial to Peeler'slawyer (which apparently included Karen and B.J.'s police statements),but the Superior Court ordered that the names of the witnesses and theirstatements not be disclosed to Peeler by defense counsel.5

On January 7, 1999, Karen and B.J. were murdered at their Earl Streetresidence by Russell Peeler's brother, Adrian Peeler, at the direction ofRussell to prevent them from testifying at the SneadPage 6murder trial. Adrian Peeler entered Karen Clarke's home on Earl Avenueand shot both her and BJ. Adrian Peeler was subsequently convicted ofconspiracy to commit the murders of B.J. and Karen. Russell Peeler wasconvicted of two counts of capital felony murder.6

There was no police protection afforded to Karen and B.J. between thetime the police cars were removed from in front of their home on July8, 1998, and the time that they were killed in January 1999.

B. Disputed Facts

As noted above "where the versions of the facts differ, [the court]must consider [the non-moving party's] version and make all possibleinferences in her favor." Cowan, 352 F.3d at 763. However, although theCourt considers all factual disputes in a light most favorable to thenon-moving party, in order to create a genuine issue of material fact,Fed.R.Civ.P. 56 requires that supporting affidavits "be made on personalknowledge [and] shall set forth such facts as would be admissible inevidence. . . ." The Second Circuit has held that while this Rule doesnot prevent a party from relying on affidavits that would themselvesconstitute hearsay, it does require an indication that the party will beable to present those facts in a form that is admissible at trial. SeeSantos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001) ("Affidavitssubmitted to defeat summary judgment must be admissible themselvesPage 7or must contain evidence that will be presented in an admissible form attrial."). See also H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55(2d Cir. 1991) ("hearsay testimony . . . that would not be admissible iftestified to at . . . trial may not properly be set forth in [a Rule 56]affidavit") (internal quotation marks omitted); Burlington Coat FactoryWarehouse Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985) (aparty "cannot rely on inadmissible hearsay in opposing a motion forsummary judgment . . . absent a showing that admissible evidence will beavailable at trial").

Pearline Clarke claims that there are genuine issues of material factthat 1) a subpoena was issued by the prosecutors for BJ. and/or Karen totestify at Russell Peeler's murder trial; 2) that Karen made severalrequests for police protection from the Peelers after the marked policecars were removed on July 8, 1998, in the form of 911 calls, that wereignored by the BPD, and 3) that Karen never told the police that she didnot want their protection, but only that she believed that the presenceof marked police cars in front of her residence put her in increaseddanger. The defendants argue that the only evidence of the alleged 911calls is inadmissible hearsay. Moreover, the defendants claim that theyhave submitted evidence establishing that Karen never made a 911 callafter July 8, 1998 requesting protection from the Peelers. Regarding theissue of the alleged subpoenas, the defendants claim that "no proof hasbeen provided to establish that such subpoena was ever actually issued bythe prosecutor. . . ." Each of these evidentiary claims will beconsidered below as well as the purported evidence concerning KarenClarke's view on the type of police protection she sought.

1. Subpoenas Issued for Karen Clarke and B.J. Brown by the State'sAttorney's Office

The defendants claim that Clarke has not submitted any evidence toestablish that a subpoena for Karen Clarke or B.J. was issued. However,in her deposition, Janet Gordon (a friend and cousin ofPage 8Karen's) indicated both that Karen told her that she received a subpoenafor B.J., and that Gordon actually saw the subpoena: [Gordon]: [S]he [Karen] called me crying. She received a subpoena to bring B.J. into court. She asked me what did that mean. And I told her it meant that she would have to bring him in. It's the law. If she didn't, she'd be breaking the law. Q. Karen said to you that she actually received the subpoena? A. [Gordon]: She did. Q. She in fact did? A. [Gordon]: Yes, she did. I saw it. She did receive the subpoena. To tell you the exact date on it, I wouldn't be able to do it. But she did receive the subpoena. Q. Did you see it in Bridgeport? A. [Gordon]: Yes, she showed it to me when I came home.Pl's Opp. to Def.'s Mot. for Summ. J. [Doc. # 54], Ex. A (emphasisadded). If Clarke's only evidence for the existence of a subpoena wereGordon's testimony that Karen told her that one had issued, such evidencewould not satisfy the evidentiary standard of Rule 56, stated above,because it would be inadmissible hearsay at trial. However, Gordon alsoindicates that she saw the subpoena. If Gordon were to so testify attrial, such testimony would not be hearsay, but a statement withinGordon's personal knowledge.7

The defendants have presented evidence that suggests that no subpoenawas ever issued for B.J. or Karen. They note that no subpoena was foundamong Karen's belongings after her death andPage 9that the lead state prosecutor in the Snead murder trial did notknow when the case was to be tried at the time of Karen and B.J.'s deathand therefore could not have issued a subpoena. While the jury mightcredit such testimony over the testimony of Janet Gordon and concludethat no subpoena was issued, that is not an appropriate determination forthe Court on summary judgment. Viewing all the facts in a light mostfavorable to the plaintiff, the Court finds that a jury could creditGordon's claim that a subpoena had issued for BJ. Brown and Karen Clarke.

2. Karen Clarke Requesting Continued Police Protection

Pearline Clarke has presented evidence that would likely be admitted attrial that Karen Clarke did not tell the police that she did not wantfurther protection, but rather that she wanted the marked police cars tobe removed from in front of her residence because she believed theirpresence placed her in greater danger by indicating that she wascooperating with the police. Clarke has offered the deposition testimonyof Jeffrey Grice, one of the officers assigned to protect Karen betweenJuly 2 and July 8, 1998. In his deposition, Grice indicates that whileKaren indicated that she was "uncomfortable with the police," she neverdid or said anything that led him to believe that she did not want to beprotected by them, and that she seemed to accept the protection beingoffered. If Grice were to so testify at trial, his testimony regardingKaren's statements would not be considered for their truth because oftheir hearsay nature-i.e., that Clarke was uncomfortable with markedcruisers, but still wanted police protection. Rather, the statementswould be admitted for the limited purpose of showing that the BPDreceived notice that Karen was at least not opposing continued protectionfrom the Peelers. See Fed.R.Evid. 801; Cary Oil Co., Inc. v. MG Refining& Marketing. Inc., 257 F. Supp.2d 751, 762 (S.D.N.Y. 2003) ("Statements. . . offered for their effect on [a party's] state of mind are notPage 10considered hearsay."). However, it is also important to note thatClarke has submitted no evidence from which a jury could infer thatSweeney had any personal knowledge of such statements.

3. 911 calls by Karen Clarke

Pearline Clarke also claims that Karen made numerous calls to thepolice requesting protection from Russell Peeler after the police carswere removed from in front of her Garfield Avenue residence on July 8,1998. However, the only evidence offered are the depositions of JanetGordon and Karen's cousin Kerry Clarke ("Kerry"), and Gordon's statementto the BPD on January 12, 1999. Both Gordon and Kerry Clarke claim thatKaren told them she called the police after seeing Russell across thestreet from her Earl Avenue apartment. See Pl's Opp. to Def.'s Mot. forSumm. J. [Doc. # 54], Ex. A (Aff. of Janet Gordon) ("Karen said shecalled 911"); Pl's Opp. to Def.'s Mot. for Summ. J. [Doc. # 54], Ex. J(Aff. of Kerry Clarke) ("[E]ach time she [Karen] saw him [Peeler], shecalled the police. Q. Is that what she told you? A. Yes."). However, ifKerry or Gordon were to testify at trial that Karen told them she hadcalled the police and requested protection from Russell Peeler, suchstatements would be inadmissible hearsay. Even the "residual exception"of Rule 807 would not permit these statements to be considered, as Clarkehas not identified any "circumstantial guarantees of trustworthiness."Fed.R.Evid. 807. Indeed, other evidence suggests that the statements arenot reliable. The defendants have produced evidence of the records of the911 calls to the BPD by Karen Clarke in this time period, which indicatesthat while Karen made several calls to the police between July 8, 1998and the time of her death, none of those calls was about the Peelers, herfears of Russell Peeler, or any matters related to this case. Inaddition, unlike the proposed testimony of Officer Grice, which would beadmissible to show that the BPD had notice of Karen's position on policeprotection,Page 11testimony by either Kerry Clarke or Janet Gordon regarding the alleged911 calls would be hearsay even for the purpose of demonstrating that theBPD had notice of the calls. Thus, in reviewing the defendants' summaryjudgment motion, the Court cannot consider that Karen made calls to thepolice after July 8, 1998 indicating that she felt threatened by RussellPeeler and requested police protection from him.

As stated above, "any disputed facts are viewed in the light mostfavorable to the non-moving party . . ." Cowaa, 352 F.3d at 760.Therefore, for the reasons stated above, in addition to the undisputedfacts, the Court will assume for purposes of summary judgmentconsideration that Karen and B.J. were the subjects of a subpoena totestify in the Rudolph Snead murder case, and that Karen Clarke did notask that the police protection afforded to her and B.J. between July 2and July 8, 1998 be withdrawn. However, the Court will not assume thatKaren made calls to the police after July 8, 1998 requesting protectionfrom Peeler.

C. Additional Disputed and Undisputed Facts Regarding Defendant Sweeney

The parties also dispute how much personal knowledge Defendant Sweeneyhad regarding the events and information described above. Pearline Clarkeseems to claim that Sweeney knew of the Peeler murder prosecution, andtherefore of the threat that the Peelers posed to Karen and B.J. However,in his deposition testimony, Sweeney indicated that until he learned ofthe deaths of Karen and B.J., he had no knowledge of the Russell Peelermurder prosecution, that B.J. Brown had given the police a statementimplicating Russell Peeler in that case, or that some police protectionhad been afforded Karen and B.J. While Clarke has submitted evidence fromwhich the jury could find that other members of the BPD were certainlyaware of the Peeler murder prosecution and of the threat thatPage 12the Peelers posed to Karen and Brown, and were involved in the decisionsto at first afford police protection to them, she has not submitted anyevidence that Sweeney had any personal knowledge of these facts prior tothe homicides.8

Although the parties have not raised this issue, there may also be aconsiderable question about whether Sweeney or the City of Bridgeport hadany role in issuing the subpoenas for B.J. and Karen. It appears that theissuing authority for such trial subpoenas would be the State ofConnecticut State's Attorney's Office for the Judicial District ofFairfield. However, because the defendants have not pressed this issueand because the BPD may have had a role in the issuance or service ofsuch subpoenas, the Court will consider the subpoenas in its substantivedue process analysis below. However, there is no evidence that ChiefSweeney had a role in the subpoena process or knew of them.

As the basis for her equal protection claim, detailed below, Clarkealso alleges Sweeney, as the Chief of the Bridgeport Police Department,developed a policy of "encourag[ing] minority citizens like [Karen]Clarke to cooperate in pursuing criminals by coming forward aswitnesses." Pl.'s Opp. to Mot. for Summ. J. [Doc. # 53], at 12. Sheclaims that even though Sweeney "knew that for a witness from theminority community to be seen in their neighborhoods with police officerswould create a danger of retaliation against that witness" id. at 6, henevertheless failed to establish procedures to protect the witnesses thatwere encouraged to come forward under this policy. Clarke also makes aPage 13"selective enforcement" equal protection claim, claiming that theBPD under Sweeney had a "facially neutral" witness protection policy thatwas applied differently to minority witnesses than to non-minorities.

Clarke has submitted evidence, in the form of Sweeney's deposition,from which a jury could find that Sweeney did work to encouragecooperation from the minority community in Bridgeport in coming forwardas witnesses to crimes. However, Clarke has not presented any evidencethat Karen and B. J. were aware of such a policy or that theircooperation with the BPD was motivated by such a policy.9 Thus, forpurposes of considering the summary judgment motion, the Court will assumethat Sweeney initiated such a policy of encouraging minority cooperationwith law enforcement, but it will not consider that Karen and B.J. wereaffected by that policy or that their cooperation was a product of it.Clarke has also failed to submit any evidence that non-minority witnesseswere treated any differently than minority witnesses.

III. Summary of Complaint

The complaint contains nine counts. The first eight counts are assertedagainst Chief Sweeney. The first three are based on 42 U.S.C. § 1983and are directed against Chief Sweeney in his individual and officialcapacities. Count one asserts a substantive due process claim againstSweeney, alleging that by failing to protect B.J. and Karen from thePeelers Sweeney violated Karen and B.J.'s right toPage 14due process as guaranteed by the Fifth and Fourteenth Amendments tothe U.S. Constitution. Count two asserts that Sweeney's acts weremotivated by racial animus and therefore deprived Karen and BJ. of equalprotection under the Fourteenth Amendment. Count three alleges thatSweeney failed to properly train and supervise the officers under hiscommand despite being aware of policies and practices that led to thedenial of equal protection of the laws for African Americans, and thatthis failure to train and/or supervise led to the deaths of Karen and BJ.

Counts four through eight are based on Connecticut law. Count foursounds in fraud and asserts that Sweeney made "numerous representations"to Karen and B J. that they would be afforded police protection from thePeelers and that those representations were made with knowledge that theywere false and in order to induce Karen and B J.'s cooperation. Countfive makes the same allegations as count four, except that it allegesthat the misrepresentations were made negligently, rather thanintentionally. Count six asserts that Sweeney's actions violated Conn.Gen. Stat. § 52-555 (Connecticut's Wrongful Death statute). Counts sevenand eight assert claims of common law negligence and gross negligence.

The ninth and final count is asserted against the City of Bridgeport; italleges that B J. and Karen were deprived of their right to due processunder the Fifth and Fourteenth Amendments to the Constitution inviolation of 42 U.S.C. § 1983 as the result of a "policy, practice,custom or usage" of the City, under Monell v. Dept. of Social Services,436 U.S. 658 (1978).

The defendants claim they are entitled to summary judgment on each ofthe nine counts. They also assert that Sweeney is entitled to qualifiedimmunity for the alleged violations of Karen and B J.'s federalconstitutional rights asserted in counts one, two and three.Page 15

IV. Analysis

A. Counts One and Three — Substantive Due Process

Title 42 U.S.C. § 1983 provides that any person who, acting under colorof state law, "subjects or causes to be subjected, any Citizen of theUnited States or other person within the jurisdiction thereof to thedeprivation of any rights, privileges, or immunities secured by theConstitution and the laws" of the United States shall be liable to theinjured party in actions at law. 42 U.S.C. § 1983. In count one of thecomplaint, Clarke asserts that Sweeney violated B.J. and Karen'sconstitutional rights under the Fifth and Fourteenth Amendments to theU.S. Constitution by "his failure to take appropriate steps to protectB.J. and [Karen] from the known threat that the Peelers posed to them, totake appropriate steps to monitor Russell Peeler and to take appropriatesteps to apprehend Adrian Peeler" (prior to the murders).10 Thedefendants claim both that the failure to protect a witness under thecircumstances here does not constitute a violation of the Fifth andFourteenth Amendments and, in the alternative, even if Sweeney's actionsand omissions did violate B.J. and Karen's constitutional rights, he isentitled to qualified immunity for his actions.11

In DeShaney v. Winnebago County Department of Social Services,489 U.S. 189 (1989), the United States Supreme Court considered when agovernment official's failure to protect an individual from private harmcould constitute a denial of due process. In that case, the defendantWinnebagoPage 16

County Department of Social Services ("DSS") received complaints thatJoshua DeShaney, a four-year old child, was being severely abused by hisfather, with whom he lived. 489 U.S. at 192. Approximately a year afterthese initial complaints, Joshua was admitted to the hospital withbruises and abrasions. Id. The examining physician suspected child abuseand notified the DSS. Id. After the juvenile court placed Joshua in thetemporary custody of the hospital, the DSS decided-after consultationwith a "Child Protection Team" that included a pediatrician, apsychologist, and a police detective-that there was insufficient evidenceof child abuse to warrant keeping Joshua in state custody. Id. The DSSdid recommend, however, placing Joshua in a special preschool program andproviding counseling for his father. Id The juvenile court, following theDSS recommendation, returned Joshua to his father's custody. Id. Over thenext several months, Joshua was admitted to the hospital for treatment of"suspicious injuries" twice and his DSS caseworker observed a number ofindicia of abuse during visits to his home, but the DSS did not take anyaction to remove him from his father's custody. Id at 192-93.Ultimately, Joshua was beaten by his father so severely that he sufferedpermanent brain damage. Id at 193. Joshua and his mother filed suitagainst the DSS and certain of its employees alleging that "by failing toprotect him against a risk of violence at his father's hands of which theyknew or should have known," the defendants deprived Joshua of his libertywithout due process of law. See DeShaney, 489 U.S. at 193.12 Afterthe Seventh Circuit rejected the due process claim, the SupremePage 17

Court granted certiorari to decide "when, if ever, the failure of astate or local governmental entity or its agents to provide an individualwith adequate protective services constitutes a violation of theindividual's due process rights." Id. at 194. The Court held that thestate's failure to remove Joshua from his father's custody, despiteknowledge of previous abuse, did not constitute a violation ofsubstantive due process: [N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means . . . . If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.Id. at 195-197.

The defendants here argue that, pursuant to DeShaney. Sweeney and theCity were under no obligation to provide increased protection to KarenClarke and B.J. Brown from the Peelers. However, the Court in DeShaney,in dicta that has generated considerable commentary and been applied inmany lower court decisions, suggested that certain factual situationsmight justify exceptions to the general principle that the Due ProcessClause does not give rise to a constitutionally protected right ofprotection from the conduct of private actors. The plaintiff argues thattwo of these exceptions-the "state-created danger" exception and the"special relationship exception"-apply to Sweeney's conduct here. Each isexamined below.

1. The "state-created danger" exception

In its opinion in DeShaney, the Supreme Court noted that the State hadplayed no role inPage 18creating the dangers to Joshua, "nor did it do anything to render him anymore vulnerable to them." Id. at 201. Citing this language, the SecondCircuit, in Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993),stated that "[w]e read the DeShaney Court's analysis to imply that,though an allegation simply that police officers had failed to act uponreports of past violence would not implicate the victim's rights underthe Due Process Clause, an allegation that the officers in some way hadassisted in creating or increasing the danger to the victim would indeedimplicate those rights." 985 F.2d at 99 (emphasis added). Clarke claimsthat this case falls within this exception to DeShaney and that thedefendants had an affirmative obligation to provide better protection toKaren and B.J. from the Peelers because Sweeney and the City renderedKaren and B.J. more vulnerable to harm from the Peelers by providing themwith visible police protection (thereby "announcing" their cooperationwith the authorities) and then withdrawing that protection.13

In Dwares, the plaintiff was involved in a flag-burning demonstrationwhen he was beaten by counter-demonstrators. The complaint

went well beyond allegations that the defendant [police] officers merely stood by and did nothing . . . It alleged that the officers conspired with the `skinheads' to permit the latter to beat up the flag burners with relative impunity. . . . It requires no stretch to infer that such prior assurances would have increased the likelihood that the `skinheads' would assault demonstrators. . . . Such a prearranged official sanction of privately inflicted injury wouldPage 19 surely have violated the victim's rights under the Due Process Clause.

Dwares, 985 F.2d at 99. However, the allegations in Dwares-and the basisfor the Second Circuit's decision-are distinguishable from the case hereas there is nothing in the record indicating that Chief Sweeney or any ofhis subordinates encouraged the Peelers in any way or affirmativelypermitted them to victimize Karen Clarke and B. J. Brown.

The Second Circuit has not specifically considered whether the "statecreated danger exception" to DeShaney applies to fact witnesses for whomvisible police protection was provided and then withdrawn. This questionalso does not appear to have been addressed in any other circuit, but anexamination of similar "state created danger" cases from other circuitsand from district courts in the Second Circuit is useful in analyzing theboundaries of that exception. In Kallstrom v. City of Columbus,136 F.3d 1055 (6th Cir. 1998), for example, the Sixth Circuit considereda § 1983 action by undercover police officers alleging that the releaseof personal information from their personnel files such as homeaddresses, photographs, and information about other family members tocounsel for the drug conspirators they had investigated violated theirsubstantive due process rights. The Court held that, applying the statecreated danger exception to DeShaney. "the City's actions placed theofficers and their family members in `special danger' by substantiallyincreasing the likelihood that a private actor would deprive them oftheir liberty interest in personal security." Kallstrom, 136 F.3d at1067. The Court reasoned that

[l]iability under the state-created-danger theory is predicated upon affirmative acts by the state which either create or increase the risk that an individual will be exposed to private acts of violence. . . . However, because many state activities have the potential to increase an individual's risk of harm, we require plaintiffs alleging a constitutional tort under § 1983 to showPage 20 "special danger" in the absence of a special relationship14 between the state and either the victim or the private tortfeasor. The victim faces "special danger" where the state's actions place the victim specifically at risk, as distinguished from a risk that affects the public at large. . . . The state must have known or clearly should have known that its actions specifically endangered an individual.

Id. at 1066. Clarke argues that, as in Kallstrom, by placing markedcruisers in front of Karen and B.J.'s home the state created, or at leastenhanced, the danger that the Peelers posed to them. Also, Clarkeargues, as in Kallstrom, the "danger" that the state allegedly created orenhanced was specific to Karen and B.J., rather than "a risk to thepublic at large." However, an important distinction is that in Kallstrom,the potential victims of private violence were undercover law enforcementofficers who, because of the nature of their government job assignments,were required to be in close contact with the individuals who posed thepotential threat if the officers' identities were exposed In contrast,Karen and B. J. were simply fact witnesses in a criminal investigation,and the government had no role in creating the situation which resultedin the danger to them.

In Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), the plaintiff was apedestrian who had been stopped by the police while she was walking homefrom a bar with her husband on a cold winter evening. After directing theplaintiff's husband to walk home alone, the police officers left theseverely intoxicated plaintiff alone in the street. Id. at 1202.15The plaintiff was unable to find her way home and was found unconsciousseveral hours after the police had left her. Id at 1203. Her exposure tothe extreme cold caused hypothermia which led to permanent brain damage.Id. After thePage 21district court granted summary judgment to the defendant policeofficers, the Third Circuit reversed and held that the plaintiff's case"presents the right set of facts which, if believed, would trigger theapplication of the state-created danger theory." Id at 1205. The Courtapplied a four part test it had developed in Mark v. Borough of Hatboro,51 F.3d 1137 (3d Cir. 1995): We found that cases predicating constitutional liability on a state-created danger theory have four common elements: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur. [citing Mark, 51 F.3d at 1152.] We further noted that "[t]he cases where the state-created danger theory was applied were based on discrete, grossly reckless acts committed by the state or state actors leaving a discrete plaintiff vulnerable to a foreseeable injury." Id. at 1153. Those courts which have recognized the state-created danger theory have employed a deliberate indifference standard [citations omitted].Kneipp, 95 F.3d at 1208. The Court found there were at least genuineissues of material fact as to each of the four elements and held that the"police officers used their authority as police officers to create adangerous situation or to make [the plaintiff] more vulnerable to dangerhad they not intervened . . . It is conceivable that, but for theintervention of the police, [the plaintiff's husband] would havecontinued to escort his wife back to their apartment where she would havebeen safe." Id. at 1209.

Here, looking at the facts in a light most favorable to Clarke, shefails to satisfy several of the Kneipp factors if they were to be adoptedby the Second Circuit. First, the harm here was not "fairly direct." InKneipp, the harm to the plaintiff occurred the very same night as thepolice intervention, while here it is undisputed that the homicides tookplace nearly six months after the police cars hadPage 22been removed from in front of Karen Clarke's apartment.16 As to thesecond element, there is no evidence that Sweeney "wilfully disregarded"the safety of Karen and B.J. or created an opportunity for the Peelers toharm Karen and B.J. Also, the temporary assignment of the police cruiserswould not satisfy the third prong of Kneipp that there be some"relationship between the state and the plaintiff."17 Finally, theuse of the police cruisers are also not enough to satisfy the elementthat "the state actors used their authority to create an opportunity thatotherwise would not have existed for the third party's crime to occur;"there is no evidence that the BPD made it easier for the Peelers tovictimize Karen or B.J. Their vulnerability to the Peelers was no greaterthan before the limited police protection was provided on July 2, 1998.

In Estate of Rosenbaum v. City of New York, 975 F. Supp. 206 (E.D.N.Y.1997), the District Court for the Eastern District of New York deniedsummary judgment on the basis of this aspect of DeShaney, holding thatthere were genuine issues of material fact as to whether the defendantshad created or increased the danger to the plaintiffs.18 InRosenbaum, the plaintiffs were members of the Crown Heights HasidicJewish community that were injured in the riots that followed anautomobile accident in which a young African-American boy was killedafter being struck by a car containingPage 23members of the Hasidic Community. 975 F. Supp. at 209. The plaintiffsbrought an action against the City, the mayor, and the police chiefalleging that "by failing to arrest individuals for unlawful assembly andby ignoring pleas for assistance . . . the Police Department emboldenedparticipants in the violence and increased the danger to the HasidicCommunity." Id at 216. The Court held that there were genuine issues ofmaterial fact as to whether the state created danger exception toDeShaney applied: If the plaintiffs contended simply that the City had failed to respond to requests from the Hasidic community for additional police protection during the Crown Heights disturbances, such a claim would arguably be barred by DeShaney. . . . However, the thrust of plaintiffs' argument is quite different: plaintiffs allege that defendants, by the inappropriate implementation of a policy of restraint, actually exacerbated the danger to the Hasidic community and rendered the community more vulnerable to violence by private actors.Id at 217. Unlike the allegations in Rosenbaum, the police here did notchoose not to enforce the law against the Peelers, thus encouraging theirviolence, but rather merely withdrew the limited police protectionafforded B.J. and Karen, leaving them in the same position as existedbefore July 2, 1998.

In Pietrowski v. City of Houston, 237 F.3d 567 (5th Cir. 2001), theplaintiff was shot by a "hit man" hired by her ex-boyfriend 237 F.3d at572. After the plaintiff's relationship with her ex-boyfriend had ended,the ex-boyfriend convinced some of his friends on the Houston Police andFire Departments to threaten the plaintiff with false charges of arsonand theft if she did not agree to release her ex-boyfriend from allcommon law marriage and paternity claims. The plaintiff also alleged thatthe Houston Police Department was aware that a man had been hired by herex-boyfriend to murder her, but that her ex-boyfriend's friends in theDepartment used their influence to prevent her from being warned and thenattempted to shield her ex-boyfriend from the investigation after theshooting. Id. at 574. After trial, the jury found in favor of theplaintiff on her state created danger claim. Id. at 576.Page 24

The Fifth Circuit reversed, holding that the facts could not supportapplication of the state created danger exception to DeShaney, The Courtheld that the state created danger exception requires the plaintiff todemonstrate "that the state actors increased the danger to her . . .[and]that the state actors acted with deliberate indifference." Id. at 584(citations omitted). The Court reasoned that "the City actors did notcreate the danger she faced. . . . The record clearly demonstrates that[the plaintiff] was aware of [her ex-boyfriend's] propensity forviolence. . . . [and] knew [he] was trying to kill her. Unlike othercases in which government officials placed persons in danger, the City atmost left her in an already dangerous position." Id. Nor had the actionof the government officials increased the danger to the plaintiff: [S]ome cases interpret the state-created danger theory to result in § 1983 liability if government actors increase the danger of harm to a private citizen by third parties. Measured by this standard, the assistance provided [to the private investigator working for the plaintiffs ex-boyfriend] consisted of furnishing [the plaintiff's] mug shot and failing to warn her. . . . Neither of these circumstances, however, actually increased the danger to her.Id at 584-85.

As the review of these decisions suggests, the boundaries of the statecreated danger exception to DeShaney are not entirely clear and decisionssuch as Piotrowski may not be altogether consistent with other decisionsapplying the language of DeShaney which is the basis for the "statecreated danger" cause of action under the Due Process Clause. However, itseems clear that this exception requires that the state actors do morethan simply temporarily assign marked police cars for the protection ofwitnesses to crimes. This exception requires that the governmentdefendant either be a substantial cause of the danger the witness facesor at least enhance it in a material way. Certainly, the BPD could haveprovided better protection for B. J. Brown and Karen Clarke. However, thatdoes notPage 25mean that a violation of the U.S. Constitution occurred.19 Here, thedanger posed by the Peelers was not the creation of the state. Nor didthe actions of the police provide the Peelers with an opportunity to harmKaren or B.J. Thus, the Court finds that the state created dangerexception to DeShaney is inapplicable based on the undisputed facts ofthis case as well as the disputed facts considered in a light mostfavorable to the plaintiff.20

2. "Special Relationship"

DeShaney has also been interpreted as recognizing another exception tothe general rule that the Due Process Clause does not impose on the statean affirmative obligation to protect its citizens from privatetortfeasors-the so-called "special relationship" exception:

[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. . . . The rationale for this principle is simple enough: when the State byPage 26 the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic needs-e.g. food, clothing, shelter, medical attention, and reasonable safety-it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.

DeShaney, 489 U.S. at 200 (citations omitted). The Supreme Court heldthat this "special relationship" exception did not apply there, notingthat "[t]he affirmative duty to protect arises not from the State'sknowledge of the individual's predicament or from its expressions ofintent to help him, but from the limitation which it has imposed on hisfreedom to act on his own behalf." Id.

Pearline Clarke argues that, unlike Joshua DeShaney, Karen Clarke andB. J. Brown had limitations on their movement imposed by the State, andtherefore the special relationship exception applies. Specifically,Clarke claims that Karen and BJ. were not free to leave the Bridgeportarea because they had been subpoenaed to testify in the criminal trial ofRussell Peeler. No court appears to have considered whether the issuanceof a subpoena to a fact witness to testify in a criminal trial satisfiesthe "special relationship" exception giving rise to an affirmativeconstitutional obligation for the state to provide protection to thesubpoenaed individual. Although it pre-dates DeShaney, Doe v. New YorkDep't of Social Servs., 649 F.2d 134 (2d Cir. 1981) is of some guidance.In Doe, the plaintiffs were foster children that alleged they had beenabused by their foster parents. They brought an action against the NewYork Department of Social Services, claiming that its employees had notproperly supervised and monitored their foster care placements. Inassessing this claim, the Second Circuit held that "[w]hen individualsare placed in custody or under the care of the government, theirgovernmental custodians are sometimes charged with affirmative duties,the nonfeasance of which may violate the constitution." 649 F.2d at 141.Page 27

In G-69 v. Degnan, 745 F. Supp. 254 (D.N.J. 1990), the New JerseyDistrict Court specifically considered the special relationship exceptionto DeShaney in a situation closer to the one here, involving undercoverwitnesses. In that case, the plaintiffs, confidential governmentinformants, alleged that state prosecutors and police officers hadviolated their due process rights by failing to honor an agreement toplace them in a witness protection program if their identities werecompromised. The plaintiffs claimed that the "defendants' actions inplacing plaintiffs in a dangerous situation created a special relationshipwhich carried with it a duty to protect plaintiffs." Id. at 262-63. Inassessing the claim, the court noted that "[s]ince DeShaney, courts havestruggled with whether state conduct short of actually taking a personinto physical custody is sufficient to create a special relationship suchthat an affirmative duty is owed" Id. at 264. However, the District Courtheld that [t]his court agrees with plaintiffs that an informant such as [the plaintiff] is in a "special relationship" with the state where, as here, both parties anticipate that the informant's activities, if discovered, could result in a threat to the life of the informant. It is difficult to imagine that a person would enlist for such a dangerous position absent some guarantee of personal safety. Having made such a guarantee, when there is so clear a risk to an individual's life and liberty, the state may not, consistent with the Constitution, walk away from the bargain. Plaintiffs have presented evidence sufficient for a finder of fact to conclude that the state induced [the plaintiff] to work as an undercover informant, and that the state promised [the plaintiff] protection and a new identity in the event that his identity was discovered, a promise upon which G-69 relied.Id. at 265.

G-69 is different from this case for several reasons, however. First,there is no evidence that Karen and B.J. were promised protection inexchange for their statements or their testimony. Second, the state didnot cause Karen or B.J. to interact with the Peelers in order to obtainevidence against them; in G-69 the witnesses were placed by the governmentin dangerous situations to develop the evidence against the targets.Clarke essentially asks this Court to expand upon the reasoning of G-69Page 28to include not just confidential informants enlisted by the government,but fact witnesses subject to a subpoena whose involvement as witnesseswas not caused by any police encouragement.

Most courts to have considered the special relationship exception havefocused on the rationale articulated in DeShaney that "the state sorestrains an individual's liberty that it renders him unable to care forhimself." DeShaney, 489 U.S. at 200. See, e.g., Christiansen v. City ofTulsa, 332 F.3d 1280 (10th Cir. 2003) ("The affirmative duty to protectarises not from the State's knowledge of the individual's predicament. . . but from the limitation which it has imposed on his freedom to act onhis own behalf); Brown v. Pennsylvania Department of Health EmergencyMedical Training Institute. 318 F.3d 473 (3d Cir. 2003) ("The `specialrelationship' exception is applicable `when the State takes a person intoits custody and holds him there against his will' or, where `the State,by the affirmative exercise of its power, so restrains an individual'sliberty that it renders him unable to care for himself") (citationsomitted). However, any restraints on Karen and B.J.'s freedom of movementand ability to protect themselves posed by the subpoenas or even thepresence and later removal of marked police cars did not rise to the levelof a "limitation . . . on [Karen and B.J.'s] freedom to act on [their]own behalf and therefore did not satisfy the requirements of the specialrelationship exception.

As with the state created danger exception to DeShaney, the contours ofthe special relationship exception are not well defined. However, itwould not seem to apply when a fact witness to a crime that has alreadybeen committed voluntarily approaches the police and makes a statement,and then a subpoena is issued for that witness-even if the police providethe witness with visible police protection that is later withdrawn. Sucha circumstance does not constitute a situation where the "state restrainsan individual's freedom to act to protect himself or herself through arestraint on thatPage 29individual's personal liberty." Thus, even looking at the facts ina light most favorable to Clarke, the special relationship exception toDeShaney is also inapplicable here.

3. Personal Involvement and Supervisory Liability of Sweeney

Liability under § 1983 requires that the defendant have some "personalinvolvement" in the alleged constitutional deprivation. See Wright v.Smith 21 F.3d 496, 501 (2d Cir. 1994) ("It is well settled in thisCircuit that personal involvement of defendants in alleged constitutionaldeprivations is a prerequisite to an award of damages under § 1983.")(citation and internal quotation marks omitted). As noted above, there isnothing in the record from which the jury could conclude that ChiefSweeney had any personal involvement in-or had any direct knowledgeof-the actions of the BPD that Clarke alleges resulted in the homicidesof Karen and B.J. For example, there is no indication that Sweeney wasaware of a subpoena for either Karen or B. J. or that he was aware thatshe or the prosecutors requested that police protection be provided toKaren and B.J. (and that this protection was provided and then laterwithdrawn). Indeed, there is no evidence to suggest that Sweeney had anypersonal knowledge that B.J. and Karen were to be fact witnesses at theSnead murder trial until after their homicides.

However, "[i]n certain situations, a supervisor may be held liableunder Section 1983 for a constitutional violation committed by asubordinate." Santana v. City of Hartford, 283 F. Supp.2d 720, 728 (D.Conn. 2003).21 Yet because of § 1983's requirement of "personalinvolvement,"Page 30supervisory liability cannot rest on a theory of respondeat superior. SeeHayut v. State University of New York, 352 F.3d 733, 753 (2d Cir. 2003)("It is well settled . . . that the doctrine of respondeat superiorstanding alone does not suffice to impose liability for damages undersection 1983 on a defendant acting in a supervisory capacity."); Wright.21 F.3d at 144 ("supervisor liability in a § 1983 action depends on ashowing of some personal responsibility, and cannot rest on respondeatsuperior"); Stewart v. John Dempsey Hosp., No. 303CV1703WWE, 2004 WL78145, at *3 (Jan. 9, 2004 D. Conn.) ("Section 1983 imposes liabilityonly on the official causing the violation. Thus, the doctrine ofrespondeat superior is inapplicable in section 1983 cases."). Rather,supervisory liability under § 1983 requires a plaintiff to demonstratesome "personal involvement" by the supervisory defendant regarding thechallenged conduct. See Id. ("Evidence of a supervisory official's`personal involvement' in the challenged conduct is required") (citationsomitted); Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987) ("[W]hensupervisory liability is imposed, it is imposed against the supervisoryofficial in his individual capacity for his own culpable action orinaction in the training, supervision, or control of hissubordinates.").

The Second Circuit articulated the "personal involvement" requirementin the supervisory liability context in Hayut: "Personal involvement" is not limited to direct participation by the supervisor in the challenged conduct, but may also be established by evidence of an official's (1) failure to take corrective action after learning of a subordinate's unlawful conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the unlawful conduct of subordinates.Hayut, 352 F.3d at 753 (citing Johnson v. Newburgh Enlarged Sch. Dist,239 F.3d 246, 254 (2d Cir.Page 312001)).

In Poe v. Leonard, 282 F.3d 123 (2d Cir. 2002), the plaintiff allegedthat a Connecticut State Trooper violated her constitutional right toprivacy by improperly videotaping her changing her clothes during a breakfrom filming a police training video. Id. at 129. The trooper'ssupervisor was also named as a defendant under a theory of supervisoryliability under § 1983. The District Court denied the supervisor's motionfor summary judgment based on qualified immunity. The Second Circuitreversed and held that a theory of supervisory liability must

raise a triable issue of fact as to whether [the defendant] knew or should have known that there was a high degree of risk that [his subordinate] would behave inappropriately with a woman during his assignment, but either deliberately or recklessly disregarded that risk by failing to take action that a reasonable supervisor would find necessary to prevent such a risk, and that such failure caused a constitutional injury to [the plaintiff].Id. at 142.

Here, Clarke has not submitted evidence creating a genuine issue ofmaterial fact under a theory of supervisory liability against ChiefSweeney. As there is no evidence that Sweeney was aware of the eventspreceding Karen and B.J.'s homicides, he could not be held liable for"failing to take corrective action after learning of a subordinate'sunlawful conduct" or for "failing to act on information regarding theunlawful conduct of subordinates." Also, because he did not haveknowledge of their alleged unlawful acts, Sweeney may not be held liablefor "gross negligence in supervising subordinates who commit unlawfulacts." See Jones v. City of Hartford, 285 F. Supp.2d 174, 187 (D. Conn.2003) ("The Second Circuit has equated gross negligence withrecklessness, and have defined it as the kind of conduct . . . where[the] defendant has reason to know of facts creating a high degree ofrisk of physical harm to another and deliberately acts or fails to act inconscious disregard or indifference to that risk")Page 32(citing Poe, 282 F.3d at 140 & n. 14). Finally, Clarke has not presentedevidence that would put Sweeney on notice (either actual or constructive)of other situations where witnesses were not adequately protected by hisDepartment. As Poe points out, notice of misconduct is a necessaryantecedent to supervisory liability for this type of § 1983 case. SeePoe, 282 F.2d at 146.

While Clarke has alleged that "Sweeney failed to train and supervisehis officers in connection with proper procedures and techniques forprotecting individuals who were being compelled to testify in criminalmatters," Compl. at ¶ 11, which could arguably fall into the category ofthe "creation of a policy or custom fostering the unlawful conduct," oneof the requirements of supervisory liability, noted above, is that thesupervisor's action (or inaction) must have led to a deprivation ofconstitutional rights. See Blyden v. Mancusi, 186 F.3d 252, 265 (2d Cir.1999) ("Of course, for a supervisor to be liable under Section 1983,there must have been an underlying constitutional deprivation."); Santanav. City of Hartford, 283 F. Supp.2d 720, 728 (D. Conn. 2003) ("However,in order for [the defendant] to be liable as a supervisor, plaintiffsmust first establish that one of [the defendant's subordinates] committeda constitutional tort."). Here, as the Court has stated above, there wasno constitutional deprivation arising from the BPD's failure to protectKaren and B.J. from the Peelers. As there was no underlying deprivationof constitutional rights, accordingly there can be no supervisoryliability for Sweeney based on the inadequacies of the BPD's witnessprotection program. It bears repeating, though, that although the standardfor imposing supervisory liability under § 1983 for a constitutionalviolation has not been met by the facts presented here, that is not tosay that liability under a different or lesser standard of conduct couldnot be found. For example, the Court leaves to another day-and perhaps,another court-the question of whether the BPD was negligent in the lackof protection provided B.J. and KarenPage 33Clarke. The issue here, though, is whether the U.S. Constitutionprovides a remedy under the circumstances, and it does not.

4. Qualified Immunity

Even if the Court had determined that there were genuine issues ofmaterial fact as to whether Sweeney's actions or inactions led to adeprivation of Karen and B.J.'s constitutional rights under theoriesbased on his direct involvement or supervisory liability, he would beentitled to qualified immunity.22 The law of qualified immunity iswell settled in the Second Circuit:

Qualified immunity shields government officials from liability for civil damages as a result of their performance of discretionary functions, and serves to protect government officials from the burdens of costly, but insubstantial lawsuits. Government actors performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Even where the plaintiff's federal rights and the scope of the official's permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act. The objective reasonableness test is met-and the defendant is entitled to qualified immunity-if officers of reasonable competence could disagree on the legality of the defendant's actions.Page 34

Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (citations and internalquotation marks omitted). The Lennon Court "recogniz[ed] the apparentanomaly of holding that summary judgment is appropriate when a trier offact would find that reasonable officers could disagree." Id. at 421.However, the Second Circuit reasoned, "in qualified immunity cases, weare not concerned with the correctness of the defendants' conduct, butrather the `objective reasonableness' of their chosen course of action."Id.; see also Brogdon v. City of New Rochelle, 200 F. Supp.2d 411, 424(S.D.N.Y. 2002) ("On a motion for summary judgment, the issue is whethera reasonable police officer would have known that what he was doing wasclearly illegal based on the facts before him."). Indeed, because one ofthe articulated purposes of qualified immunity is to prevent "fear ofpersonal monetary liability and harassing litigation" from interferingwith government officials' duties, "the identification and disposal ofinsubstantial claims by summary judgment is encouraged." Lee v.Sandberg, 136 F.3d 94, 101-02 (2d Cir. 1997) (quoting Anderson v.Creighton, 483 U.S. 635, 638 (1987) (internal quotation marks omitted));see also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (the qualifiedimmunity entitlement is an "immunity from suit rather than a mere defenseto liability . . .[it] is effectively lost if a case is erroneouslypermitted to go to trial.").

In determining whether a particular right was "clearly established" forpurposes of assessing a claim of qualified immunity, the Second Circuithas instructed District Courts to consider three factors: (1) whether the right in question was defined with `reasonable specificity'; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991). Here, for thereasons set forth above in thePage 35Court's analysis of the state created danger and special relationshipexceptions to DeShaney, it was not clearly established that factwitnesses under a subpoena in a criminal prosecution are constitutionallyentitled to police protection, or that providing temporary visibleprotection of such individuals gives rise to such a right.23

Thus, defendant Sweeney is entitled to summary judgment on count oneand the due process aspect of count three of the complaint.

B. Counts Two and Three — Equal Protection

The Equal Protection Clause is "essentially a direction that allpersons similarly situated should be treated alike." City of Cleburne v.Cleburne Living Ctr., Inc., 473 U.S. 432 (19851 Although it is notentirely clear from the complaint, Pearline Clarke's opposition to themotion for summary judgment indicates that she is asserting two types ofequal protection claims against Chief Sweeney based on two separatepolicies of the BPD she claims he established. First, she asserts that theBPD had a policy of encouraging the cooperation of minorities in criminalinvestigations and that Karen Clarke and B.J.Page 36

Brown's cooperation was encouraged by Sweeney pursuant to this policy.Second, she makes a "selective enforcement" equal protection claim basedon the alleged discriminatory application of the BPD's "facially neutral"policy regarding the protection of witnesses. Each is addressed below.

1. Discriminatory "Community Outreach" Policy

"[A] law or policy is discriminatory on its face if it expresslyclassifies persons on the basis of race or gender." Hayden v. County ofNassau, 180 F.3d 42, 48 (2d Cir. 1999). Clarke claims that the BPD had apolicy of community outreach, designed to encourage cooperation with thepolice in minority neighborhoods, which "selectively targeted the minoritycommunity. . . . This policy expressly classified persons on the basis ofrace. . . ." Pl's Mem. in Opp. to Mot. for Summ. J., at 28. As previouslymentioned, Clarke has submitted evidence, specifically Sweeney'sdeposition testimony, from which a jury could conclude that such a policyexisted. However, the fact that the policy existed is not sufficient.Clarke also must demonstrate that the policy caused the allegeddeprivation. "Article III requires the party who invokes the court'sauthority to `show that he personally has suffered some actual orthreatened injury as a result of the putatively illegal conduct of thedefendant . . . and that the injury `fairly can be traced to thechallenged action."" Valley Forge Christian College v. American Unitedfor Separation of Church and State. 454 U.S. 464, 472 (1982); VermontRight to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 381 (2d Cir. 2000)(same).

Pearline Clarke has not submitted any evidence from which the jurycould conclude that Karen Clarke or B.J. Brown had any knowledge of thealleged minority outreach program or that their cooperation with theprosecution was a result of such a policy. When a motion for summaryjudgmentPage 37is supported by documentary evidence and sworn affidavits, the nonmovingparty must present "significant probative evidence to create a genuineissue of material fact." Soto v. Meachum, Civ. No. B-90-270 (WWE), 1991WL 218481, at *6 (D. Conn. Aug. 28, 1991). A party may not rely "on merespeculation or conjecture as to the true nature of the facts to overcome amotion for summary judgment." Knight v. U.S. Fire Ins. Co., 804 F.2d 9,12 (2d Cir. 1986), cert. denied, 480 U.S. 932 (1987). The claimed linkbetween the challenged BPD policy of encouraging the cooperation ofminority residents and the alleged constitutional deprivation has notbeen shown and therefore cannot survive summary judgment.

2. Selective Enforcement of Witness Protection Policy

"In order to establish a violation of equal protection based onselective enforcement, the plaintiff must ordinarily show (1) theperson, compared with others similarly situated, was selectively treated;and (2) that such selective treatment was based on impermissibleconsiderations," such as race. LaTrieste Restaurant and Cabaret,188 F.3d 65, 69 (2d Cir. 1999). Pearline Clarke alleges that "underSweeney BPD had some informal policies in place to protect itswitnesses, but none were followed in this case" and that a jury couldpermissibly infer that this non-enforcement was because of "discriminatoryanimus as applied to minorities" or that "it [the informal policy] wasapplied in an intentionally discriminatory manner." See Pl's Mem. of Lawin Opp. to Mot. for Summ. J., at 28-29. However, even viewing the factsmost favorably to the plaintiff, there is no indication that similarlysituated non-minorities were treated differently pursuant to the"informal policies" regarding witness protection. The only evidenceoffered by the plaintiff in support of her selective enforcement claim isSweeney's deposition testimony to the effect that, in some previoussituations, the BPD helpedPage 38cooperating witnesses relocate. This is not sufficient to support a claimof selective enforcement because the record does not contain anyindication of the circumstances of these other cases from which a jurycould infer that those witnesses were "similarly situated in all materialrespects." See Shumway v. UPS, 118 F.3d 60, 64-65 (2d Cir. 1997) ("To be`similarly situated,' the individuals with whom [the plaintiff] attemptsto compare herself must be similarly situated in all material respects.")(employment discrimination case). Moreover, Clarke has not submittedevidence to meet the second prong of the selective enforcement test thatthe alleged "selective treatment" was based on an impermissibleconsideration, such as race. There is no indication in the statements bySweeney relied upon by Clarke that indicate that the witnesses offeredgreater protection were of a different race than Karen Clarke and B. J.

Thus, looking at the facts in a light most favorable to the plaintiff,Sweeney is entitled to summary judgment as to counts two and three24of the complaint.25

C. Count Nine — Monell Claim Against the City of Bridgeport

Pursuant to Monell v. Dept. of Social Servs., 436 U.S. 658 (1978), amunicipality may be liable under § 1983 if the alleged constitutionaldeprivation was made pursuant to a policy or custom ofPage 39the municipality. 436 U.S. at 690-91.26 In Monell, the Courtacknowledged that the text of the statute indicated that Congressintended to include municipalities among those subject to liability under§ 1983. Id. at 690. However, the Court reasoned that "[t]he language of§ 1983 . . . compels the conclusion that Congress did not intendmunicipalities to be held liable unless action pursuant to officialmunicipal policy of some nature caused a constitutional tort." Id. at691,27 In order to assert a § 1983 claim against a municipalitypursuant to Monell, the plaintiff must demonstrate (1) the existence of amunicipal custom or policy, and (2) a direct causal link between thecustom or policy and the violation alleged See City of Canton v. Harris,489 U.S. 378, 385 (1989).

In count nine of the complaint Pearline Clarke points to a number of"policies, practices, customs, or usages" established by Sweeney asPolice Chief and by the City of Bridgeport that she asserts resulted inthe deprivation of Karen and B.J.'s constitutional rights. They are: (1)"not properly protecting witnesses who were being compelled to testify incriminal matters"; (2) "not properly supervising employees to make surethat they protected" such witnesses; (3) "not properly training employeesas to how to protect" such witnesses; and (4) "hiring and retainingpolice officers withoutPage 40properly screening such employees as to racial animus." Compl., at ¶¶68-71. Count nine also asserts that these various policies and practicescaused Bridgeport police officers to believe that their actions,omissions, and misconduct would not be investigated, but would betolerated. See id. at ¶ 72. In Amnesty America v. Town of WestHartford, ___ F.3d ___, 2004 WL 491647 (2d Cir. 2004), the Second Circuitrecently recognized that "[m]ore often than not . . . plaintiffs allegeconstitutional deprivations at the hands of the lower-level municipalemployees to whom some authority has been delegated, rather than at thehands of those officials with final policymaking authority." Amnesty,2004 WL 491647, at *10. However, because § 1983 does not permit liabilitypursuant to respondeat superior,28 a plaintiff asserting such a claimmust "prov[e] that `the authorized policymakers approved a subordinate'sdecision and the basis for it.'" Id. (citing City of St. Louis v.Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion)). Here, as notedabove, there is no evidence that Sweeney or any other identifiedpolicymaker for the City of Bridgeport was aware of any of the events setforth above until after the homicides of B.J. and Karen. Thus, there isno basis on which a jury could conclude that they "approved [theofficers'] decision [not to afford protection to Karen and B.J.] and thebasis for it." Id29Page 41

Also, while Monell permits claims for the failure to have an adequatetraining program or to adequately supervise employees, such claims alsorequire a showing of "deliberate indifference." See City of Canton v.Harris, 489 U.S. 378, 387 (1989) ("[T]he inadequacy of police trainingmay serve as the basis for section 1983 liability only where the failureto train amounts to deliberate indifference to the rights of persons whomthe police come into contact"). Deliberate indifference in this contextmay be demonstrated by evidence that there were "foreseeable seriousconsequences" that could result from the absence of an adequate trainingpolicy or that the municipality "fail[ed] to act in response to repeatedcomplaints or constitutional violations by its officers." ErwinChemerinsky, Federal Jurisdiction, § 8.5 (4th ed. 2003) (citing City ofCantoa, 489 U.S. at 390, 398 and Farmer v. Brennan, 511 U.S. 825, 840(1994)). There was no evidence submitted that the City of Bridgeport orany of its policymakers ever received any complaints about failures toprotect witnesses or about related constitutional violations that couldhave been remedied by instituting a better witness protection policy.

Moreover, even if Clarke could establish that it should have beenreasonably foreseeable that the failure to train officers to betterprotect witnesses would have resulted in harm to individual witnesses, itwas not foreseeable that it would result in a constitutionaldeprivation. In Monell, the Supreme Court held that "Congress did notintend municipalities to be held liable unless action pursuant toofficial municipal policy of some nature caused a constitutional tort."Monell, 436 U.S. at 691. Although City of Canton made clear that themunicipal policy itself need not be unconstitutional, see City ofCanton, 378 U.S. at 387, courts interpreting Monell and City of Cantonhave concluded that anPage 42underlying constitutional deprivation is a requirement for a Monellclaim: [The plaintiff's] Monell claim requires an underlying constitutional deprivation, which [the plaintiff] is unable to demonstrate based on the record before this court. See Quintanilla v. City of Downey, 84 F.3d 353, 356 (9th Cir. 1996) (plaintiff could not recover on § 1983 claim against city or police chief absent showing that individual arresting officers violated his constitutional rights); Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994) (municipality's liability under § 1983 pursuant to City of Canton, 489 U.S. at 389, was contingent on underlying violation of constitutional rights).Cloninger v. Porter, 52 Fed. Appx. 333, at **2 (9th Cir. 2002). See alsoPearl v. City of Long Beach, 296 F.3d 76, 87 (2d Cir. 2002) ("[Monellheld] that a municipality could be held liable for constitutional tortscommitted pursuant to a municipal custom or policy."); Tatum v. City ofNew York, 104 F.3d 351, at **1 (2d Cir. 1996) ("A municipality may besued, pursuant to 42 U.S.C. § 1983, when it is alleged to have caused aconstitutional tort through a policy statement, ordinance, regulation, ordecision officially adopted and promulgated by that body's officers.")(citations and internal quotation marks omitted) (unpublished decision);Scott v. County of Nassau, No. 94CV4291, 1998 WL 874840 *6 (E.D.N.Y.1998) ("`[T]he touchstone of the § 1983 action against a government bodyis an allegation that official policy is responsible for a deprivation ofrights protected by the Constitution.' Monell, 436 U.S. at 690. Plaintiffhas not established the existence of an underlying constitutionaldeprivation, and therefore, plaintiffs allegations of municipal liabilitymust be dismissed") (unpublished decision). As noted above, witnessesunder subpoena who have received police protection for a brief period arenot denied a constitutional right to substantive due process if notprovided with continued protection. Therefore, the failure of the City tohave a better witness protection policy, or its failure to trainemployees to ensure that they protected witnesses under subpoena, did notresult in the violation of Karen or B.J.'s constitutional rights, andtherefore cannotPage 43serve as the basis for a Monell claim. Finally, the claim that the Cityfailed to properly screen its employees for racial animus is insufficientbecause Clarke has not submitted any evidence from which the jury couldinfer that any BPD officer was hired or retained in such a way that theCity knew or should have known that the individual harbored racialanimus, or that it caused any wrong here.

Therefore, the defendants' motion for summary judgment is also grantedas to count nine of the complaint.

V. Conclusion

In granting summary judgment to the defendants on Clarke's federalclaims, the Court finds no wrongs of constitutional dimensionattributable to Chief Sweeney or the City of Bridgeport. It may very wellbe that the witness protection efforts of the Bridgeport PoliceDepartment, the State's Attorney's office, and others failed B.J. Brownand Karen Clarke.30 However, every loss does not involveconstitutional rights and every failure by law enforcement does notimplicate substantive due process. See Hernandez v. City of Goshen324 F.3d 535, 538 (7th Cir. 2003) ("As the Supreme Court held inDeShaney. . . police departments have no constitutional duty to protectprivate persons from injuring each other, at least where the policedepartment has not itself created the danger. Thus, no matter howegregious [plaintiff] might find [the defendants' response to] threats ofprivate violence . . . the [defendants'] conduct was notunconstitutional."). While the homicides of Karen Clarke and B.J.Page 44

Brown were tragic-and are made even more so because they might havebeen preventable-the failure to provide more protection to Karen and B.J.was not a violation of their rights under the United States Constitution.

Thus, for the preceding reasons, the defendants' motion for summaryjudgment [Doc. # 44] is GRANTED as to counts one, two, three, and nine ofthe complaint.

The Court further declines to exercise supplemental jurisdiction overthe plaintiff's Connecticut state law claims on the ground that it hasdismissed all claims over which it has original jurisdiction. See28 U.S.C. § 1367(c)(3); Spear v. Town of West Hartford, 771 F. Supp. 521,530 (D. Conn. 1991) ("[A]bsent unusual circumstances, the court wouldabuse its discretion were it to retain jurisdiction of the pendant statelaw claims on the basis of a federal question claim already disposed of.. . ."), aff'd. 954 F.2d 63 (2d Cir.), cert. denied. 506 U.S. 819(1992). Accordingly, the clerk is directed to close the case.

SO ORDERED.

1. To avoid confusion between Karen Clarke and Pearline Clarke, theCourt will refer to them at times as "Karen" and "Pearline."

2. The facts are taken from the parties' motion papers and LocalRule 9(c) statements and discovery materials filed by the parties. Afterthe parties filed their Local Rule 9(c) statements, the Local Rules wererenumbered. Previous Rule 9(c) is now Local Rule 56(a). Disputed factsare indicated in subsections II.B. and II.C., infra.

3. Karen Clarke was Snead's fiancee.

4. The arrest warrant application of June 11, 1998 identified a numberof witnesses to the murder as well as to previous threats made by RussellPeeler to Snead. Although the statements of these witnesses were notattached to the application, it summarized the statements. See Pl's Opp.to Mot. for Summ. J. [Doc. # 54], Ex. F (arrest warrant application).Karen Clarke was identified in the application as a witness to twothreats made by Peeler to Snead. The application indicated that thepolice also had a statement from an unnamed witness to the drive-byshooting of September 2, 1997. That witness was B. J. Brown.

5. Although the Connecticut Supreme Court indicated in its opinion inState v. [Adrian] Peeler, No. 16571, 2003 WL 23221559, at *2 (Feb. 24,2004 Conn.) (ruling on Adrian Peeler's appeal of his conspiracy to commitmurder conviction arising from Karen and B.J.'s murders) that RussellPeeler did not know of the police statements of both Karen Clarke andB.J. Brown until December 23, 1998, the record here does not indicate thearrest warrant application had been sealed. As a result, Karen Clarke'spotential witness status was a matter of public record and thereforeavailable to Peeler in the summer of 1998. However, it is not clear whenPeeler first learned that the anonymous witness described in the warrantapplication was B.J. Brown or how he learned of that information. SeeState v. [Russell] Peeler. 265 Conn. 460 (2003) (ruling on RussellPeeler's appeal of the Snead murder conviction and related charges).Although it is likely Peeler knew of B.J.'s identity before then, theCourt will assume that it was no later than December 23, 1998, as theConnecticut Supreme Court stated. See [Adrian] Peeler. No. 16571. 2003 WL23221559. at *2. Even if Russell Peeler learned of B.J.'s identitythrough disclosure of the witness list or the disclosure of B.J.'sstatement, in violation of the trial court's December 1998 protectiveorder, or through some other means, there has been no evidence presentedthat Sweeney ever disclosed that B.J. or Karen had given statements tothe police or would be witnesses at Russell Peeler's trial.

6. Adrian Peeler's conviction was affirmed by the Connecticut SupremeCourt. See State v. [Adrian] Peeler. No. 16571, 2003 WL 23221559, at *2(Feb. 24, 2004 Conn.). Russell Peeler's appeal is still pending beforethe Connecticut Supreme Court. See State v. [Russell] Peeler. DocketNos. SC 16354/SC 16362. Russell Peeler was also convicted of murder andthe attempted murder of Snead and risk of injury to B.J. and anotherchild in Snead's car during the drive-by shooting, but those convictionswere reversed by the Connecticut Supreme Court. See State v. [Russell]Peeler, 265 Conn. 460 (2003).

7. If Gordon were to testify as to the contents of the subpoena,such testimony may constitute inadmissable hearsay. However, theexistence of the subpoena is within her personal knowledge.

8. Sweeney testified at his deposition that he was generally aware ofthe Peeler brothers and their propensity for violence and of RussellPeeler's arrest for the attempted murder of Snead. See Pl.'s Opp. toDef.'s Mot. for Summ. J., [Doc. # 54], Ex. D, at 96-97, 135 (Dep. ofThomas J. Sweeney).

9. While it is true the Court must view any disputed facts "in thelight most favorable to the non-moving party," Cowan, 352 F.3d at 760,here there is no genuine dispute. "[T]he nonmoving party must comeforward with specific facts showing that there is a genuine issue ofmaterial fact for trial. . . . Conclusory allegations, conjecture, andspeculation . . . are insufficient to create a genuine issue of fact."Shannon, 332 F.3d at 99 (citations and internal quotation marksomitted).

10. Count three appears to assert a supervisory liability claimagainst Sweeney on a similar basis and is discussed below.

11. Although the plaintiff's complaint also cites the Fourth Amendmentas the basis for her DeShaney claims, the courts have generally agreedthat both DeShaney exceptions-'state-created danger" and the "specialrelationship"-are rooted in the Fifth and Fourteenth Amendmentsubstantive due process for state officials, as more fully discussedbelow.

12. The Court in DeShaney noted that "[t]he claim is one invoking thesubstantive rather than the procedural component of the Due ProcessClause; petitioners do not claim that the State denied [plaintiff]protection without according him appropriate procedural protections."DeShaney, 489 U.S. at 195. Here, too, the plaintiff invokes substantive,rather than procedural, due process.

13. The defendants claim that the police protection was withdrawn atKaren Clarke's request, while the plaintiff claims that Karen merelyasked that the marked police cars be withdrawn. As noted above, forpurposes of this summary judgment motion, which requires the Court toview the facts in a light most favorable to the plaintiff, the Courtassumes that Karen did not ask for all police protection to be withdrawn. The plaintiff's papers also appear to assert that Sweeney and the BPD"created" or "enhanced" the danger to B.J. and Karen through their policyof minority outreach. However, as noted above, there is nothing in therecord to indicate Karen or B.J.'s cooperation was caused by such apolicy.

14. The Court will address the special relationship exception toDeShaney, infra.

15. The police officers were still with the plaintiff when herhusband left the scene, and her husband testified that he assumed thepolice were going to take his wife to either the hospital or the policestation.

16. There has been no evidence presented that the Peelers everlearned of the issuance of the trial subpoenas to B.J. and Karen, whichwould have occurred closer in time to their murders. There also has beenno evidence presented that Sweeney knew of the issuance of the subpoenasor of the disclosure of B.J. and Karen's witness status on December 23,1998. See fn.5, supra.

17. This third prong of Kneipp appears to be similar to the "specialrelationship" exception to DeShaney that is more fully addressed below.

18. However, the Court granted summary judgment to the defendantpolice chief on the basis of qualified immunity. See Rosenbaum, 975 F.Supp. at 226.

19. There is now a Connecticut statutory right to such protectionprecipitated by the Karen Clarke and B.J. Brown situation. See Conn. Gen.Stat. §§ 54-82s — 54-82u ("The Leroy Brown, Jr. and Karen Clarke WitnessProtection Program.").

20. Some courts have held that, even in situations where the statecreated danger exception gives rise to an obligation to provideprotection, state actors will only be held to have breached thatobligation if their affirmative actions "shock the conscience": This obligation to protect persons from harm inflicted by third parties, however, does not automatically render state officials liable for the injuries that an individual suffers due to the actions of these private actors. Instead where such a duty exists, state actors are liable for breaching their obligation to the plaintiff only if they engaged in conduct that was so egregious that it can be said to be arbitrary in the constitutional sense. . . . [T]he Fourteenth Amendment protects only against abuse of executive power which shocks the conscience.May v. Franklin County Bd. of Comm'rs, 59 Fed. Appx. 786, 793 (6th Cir.2003) (citing Sperle v. Mich. Dep't of Corrections, 297 F.3d 483, 491(6th Cir. 2002). Here, because there was no constitutional obligation toprotect Karen and B.J., the Court need not reach the issue of whether thedefendants' actions or inactions "shock the conscience."

21. As mentioned, count three of the complaint appears to assertsupervisory liability against Sweeney for the § 1983 claims in countsone and two. That aspect of count three concerning substantive dueprocess is addressed here. That aspect of count three concerning equalprotection is addressed below.

22. As mentioned above, Clarke has sued Sweeney in his individual andofficial capacities. The individual/official capacity distinction may nothave significance in this case. That distinction has arisen as a means toavoid Eleventh Amendment immunity when suing state officials. SeeKentucky v. Graham, 473 U.S. 159 (1985). However, the Eleventh Amendmentdoes not usually apply to municipalities or their officials. See Mt.Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977). Thus,Sweeney and the City of Bridgeport may not assert Eleventh Amendmentimmunity. It may be, though, that Clarke has made that official capacitydesignation to indicate a Monell claim against both the City andSweeney, the latter as a "policymaker," and that analysis is set forthbelow. At any rate, the qualified immunity analysis applies to counts onethrough three against Sweeney, including the supervisory claim. Seefn.23, infra. It does not apply to count nine to the extent that Sweeneyis named as a policymaker under Monell. See fh.26, infra.

23. Moreover, to defeat a claim of qualified immunity asserted by asupervisory defendant, a plaintiff must not only demonstrate that the lawcontrolling the alleged deprivation caused by the subordinate was clearlyestablished, but that the theory of supervisory liability was clearlyestablished as well. See Poe, 282 F.3d at 134 ("We conclude that [theplaintiffs] must show that both laws were clearly established to lay thepredicate for demonstrating that [the supervisory defendant] lackedqualified immunity: the law violated by [the subordinate] and thesupervisory liability doctrine under which [the plaintiff] wishes to hold[the supervisory defendant] liable."). Here, because it is not clearlyestablished that Sweeney's subordinates violated Karen and B.J.'sconstitutional rights, the Court need not specifically address whetherthe theory of supervisory liability asserted was clearly established.However, it would also seem that supervisory liability under thesecircumstances was not "clearly established."

24. That aspect of the supervisory claim in count three that allegesviolations of Karen and BJ's rights to equal protection also failsbecause the underlying constitutional claim of count two isunsupported.

25. Sweeney has also asserted qualified immunity as to the equalprotection claim, but because evidence of causation to support this claimis so clearly lacking, the Court need not reach the issue of qualifiedimmunity.

26. Although it is not clear from the complaint, Clarke clarifies inher opposition to the motion for summary judgment that the Monell claimin count nine is also asserted against Chief Sweeney in his "officialcapacity" as a policymaker for the BPD. To the extent that count nine isasserted against Chief Sweeney as a policymaker for the City ofBridgeport, it will be treated as a claim against the City ofBridgeport. As it is well-settled that municipalities cannot availthemselves of qualified immunity, the qualified immunity analysis aboveis inapplicable to count nine of the complaint See Leatherman v. TarrantCounty Narcotics Intelligence and Coordination Unit, 507 U.S. 162, 166(1993) ("[M]unicipalities do not enjoy immunity from suit-either absoluteor qualified-under § 1983").

27. The relevant portions of § 1983 state that "Every person who . .. subjects or causes to be subjected, any citizen . . . to thedeprivation of any rights, privileges, or immunities. . . ."42 U.S.C. § 1983.

28. A plaintiff suing a municipal authority under § 1983 must prove that the constitutional wrong complained of resulted from the municipal authority's official policy. See Monell v. Department of Soc. Servs., 436 U.S. 658, 691 (1978). As a result, the theory of respondeat superior does not apply to make municipalities liable when one of their officials commits a constitutional tort. See id. at 694.Clue v. Johnson, 179 F.3d 57, 62 (2d Cir. 1999).

29. Also, "a failure to supervise claim requires allegations as to theviolation itself and policymakers' reaction to it." Amnesty. 2004 WL491647, at *10, fn.8. There is no evidence of any reaction by Sweeney orany other policymaker for the BPD regarding the failure of the BPD toprovide a higher level of protection to Karen and BJ.

30. As mentioned, the Connecticut legislature has already responded tothe Clarke-Brown homicides by requiring greater protection of witnesses.See Conn. Gen. Stat. §§ 54-82s — 54-82u ("The Leroy Brown, Jr. and KarenClarke Witness Protection Program.").