Opinion
NNHCV116023483S
12-30-2015
Nicholaus Sinon v. Town of Wolcott et al
Filed Date December 31, 2015
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Jon M. Alander, Judge of the Superior Court.
The plaintiff has filed this action for damages against the defendants town of Wolcott and Bryan Spiotti, a Wolcott police officer, asserting that he suffered injuries when he was unlawfully tased by Spiotti. The plaintiff asserts that the use of the taser by Spiotti constituted excessive force in violation of the fourth amendment and was the result of a policy or custom of the town of Wolcott that sanctioned the use of tasers where less forceful means of detaining a suspect were available.
The police department of the town of Wolcott was also named as a defendant in this action. The defendant has conceded in response to the defendants' motion for summary judgment that the police department is not a legal entity with the capacity to be sued and has agreed to withdraw the action against the police department.
The plaintiff's complaint also contains claims that the defendants' actions constitute violations of the fifth, eighth and fourteenth amendments to the United States Constitution. The plaintiff abandoned those claims in response to the defendants' motion for summary judgment.
The defendants have moved for summary judgment. Spiotti asserts that the plaintiff's excessive force claims fails as his actions were objectively reasonable under the circumstances and, alternatively, he is entitled to qualified immunity. Wolcott asserts the claim against it must fail because no excessive force was used and there is no evidence of the existence of any unconstitutional policy or custom regarding the use of tasers. The plaintiff argues that there are disputed issues of material fact as to all these legal issues, that is whether the force used by Spiotti against the plaintiff was excessive, whether Spiotti is entitled to qualified immunity and whether Wolcott had a policy or custom encouraging the improper use of tasers by its police officers. The plaintiff contends that these factual disputes preclude the entry of summary judgment in favor of either defendant.
The law governing the defendants' motion for summary judgment is well established. " Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450, 627 A.2d 1329 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575, 626 A.2d 1306 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535, 626 A.2d 244 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158, 698 A.2d 938 (1997).
" It is not enough for the opposing party merely to assert the existence of such a disputed issue. The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence. If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks and citations omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06, 639 A.2d 507 (1994).
The following facts are undisputed. During the evening hours of August 31, 2008, a party with approximately 20 individuals in attendance was occurring at 8 Roosevelt Avenue in Wolcott. Ultimately, physical altercations erupted between multiple partygoers in the front yard as well as the street. The police were called with a report that a group of youths was fighting in the street. Officer Spiotti was the first police officer to respond to the scene. Spiotti observed approximately five to ten males arguing and struggling in the street. Donald Paquin and another individual were arguing face-to-face. After Spiotti separated the two, the plaintiff Nicholaus Sinon came running from Spiotti's left, jumped in the air at Paquin and pushed Paquin toward Spiotti. Paquin then turned and pushed Sinon away, which resulted in both of them falling to the ground.
The facts are taken from that portion of the defendants' memorandum in support of their motion for summary judgment which the plaintiff in his memorandum in opposition expressly agreed are not disputed.
At this point, the parties' views of the facts diverge. What follows are the facts viewed in a light most favorable to the plaintiff. After, Sinon and Paquin fell to the ground, Spiotti pulled out his taser and said " stay on the ground." Despite the officer's order, Sinon stood up. He was immediately tased by Spiotti and fell back down, striking his head on the ground.
The plaintiff relies in his opposition to the motion for summary judgment on the deposition testimony of Paquin and Chelsey Donaldson, who was present at the scene. The plaintiff has no memory of the incident.
A taser is a type of controlled electronic weapon capable of firing wires tipped with a pair of barbed darts to deliver a paralyzing electric charge. State v. Daniel G., 147 Conn.App. 523, 573 n.11, 84 A.3d 9 (2014) (citing Bryan v. MacPherson, 630 F.3d 805, 824 (9th Cir. 2010)).
There is conflicting evidence as to whether the plaintiff was already on the ground and was told by Spiotti to stay on the ground or whether the plaintiff was standing and told by Spiotti to " drop to the ground" which the plaintiff did. In either case, the plaintiff subsequently stood up in violation of the police officer's order. I have adopted the rendition of facts urged by the plaintiff in his memorandum. The distinction does not make a difference to the court's analysis.
In his objection to the defendants' motion for summary judgment, the plaintiff does not address the defendants' claim that, prior to firing his taser at the plaintiff Spiotti warned the plaintiff to comply with his orders or he would be tased. The uncontradicted evidence offered by the defendants, both in the form of Spiotti's affidavit and the deposition testimony of Chelsey Donaldson, establishes that Spiotti warned the plaintiff prior to firing his taser.
I
CLAIMS AGAINST POLICE OFFICER
A
Excessive Force
Officer Spiotti contends that his use of his taser was objectively reasonable under the circumstances and therefore not excessive. The plaintiff asserts that summary judgment is not appropriate as there exists a genuine issue of material fact regarding the reasonableness of Spiotti's actions. Construing the facts in a light most favorable to the plaintiff, I find that Spiotti's actions were objectively reasonable given the situation he confronted at the time he fired his taser.
The place to start with any excessive force analysis is the seminal case of Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In Graham, the court held that a claim that law enforcement officials used excessive force in the course of making any arrest, investigatory stop, or seizure of a person is governed by the fourth amendment's " objective reasonableness" standard. Id., at 388. " [T]he question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id., at 397. The analysis concerning excessive force requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Id., at 396. Fourth amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion to effect it. Id. " The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight . . . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." Id., at 396-97.
In this case, the plaintiff's actions made him subject to arrest for breach of peace and possibly assault on Paquin as well as interfering with an officer for his failure to obey the officer's command to stay on the ground. It was also reasonable for Officer Spiotti to believe that the plaintiff posed a threat to him and to Paquin. A physical melee was occurring around the officer. The plaintiff had just jumped on Paquin, physically assaulting him. After falling to the ground, the plaintiff stood up in contravention to the officer's command to stay on the ground and despite a warning that he would be tased if he got up. These facts would lead a reasonable police officer to conclude that the plaintiff may well intend to continue his physical assault on Paquin or direct his aggression toward the officer. See Davis v. Callaway, 2007 WL 1079988 (D.Conn. Apr. 9, 2007) (It was objectively reasonable for a police officer to believe that a person who jumped up in violation of a direct order would attempt to physically interfere with the officer.)
The third Graham factor--whether the individual is actively resisting arrest or attempting to evade arrest by flight--also supports the reasonableness of the officer's response. The plaintiff was ordered to stay on the ground and was warned that he would be tased if he failed to do so. Despite the order and warning, the plaintiff stood up. Under circumstances that were " tense, uncertain, and rapidly evolving, " Graham v. Connor, supra, 490 U.S. 397, it was reasonable for Officer Spiotti to suspect that nothing good would come from that act--that the plaintiff intended to continue his assault, resist arrest or possibly flee. Under the totality of circumstances facing the officer, his onetime use of his taser, after warning the plaintiff that disobedience would result in its use, was objectively reasonable and did not constitute excessive force.
This conclusion finds support in other cases. In MacLeod v. Town of Brattleboro, 548 Fed.Appx. 6 (2d Cir. 2013), the court ruled that the use of a taser by a police officer on an individual, who had previously engaged the officer in a high speed chase and who disobeyed an order to kneel on the ground by rising to his feet, was not excessive force. In Brown v. Cwynar, 484 Fed.Appx. 676 (3rd Cir. 2012), the firing of a taser by a police officer after issuing a warning against an individual who refused to release his hands from beneath his body after being ordered to do so was found to be objectively reasonable and not excessive force. The Sixth Circuit Court of Appeals has determined that it is not an excessive use of force for the police to tase someone when the person is actively resisting arrest. Rudlaff v. Gillispie, 791 F.3d 638, 641 (6th Cir. 2015). " Active resistance includes physically struggling with, threatening, or disobeying officers." (Citations and internal quotation marks omitted.) Id. Specifically, in Rudlaff , the court found that it was not excessive force for an officer to tase, after warning, a person under arrest for driving with a suspended license who refused to provide his hands to be handcuffed.
The plaintiff concedes in his objection to the defendant's motion for summary judgment that a finding that Officer Spiotti's actions did not constitute excessive force also resolves his assault and battery claim under state law. Accordingly, summary judgment is granted both as to the plaintiff's claim of excessive force in violation of the fourth amendment in Count One and his claim of assault and battery in Count Three.
B
Qualified Immunity
Even if the Officer Spiotti's conduct had violated the Fourth Amendment, he would still be entitled to summary judgment based on qualified immunity. Government actors are entitled to qualified immunity " insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The principle of qualified immunity ensures " that before they are subjected to suit, officers are on notice their conduct is unlawful." Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). " If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate." Id., at 202.
Examination of a qualified immunity claim involves a two-part inquiry: (1) whether the facts shown by the plaintiff establish a violation of a constitutional or statutory right and (2) whether that right was clearly established at the time of the defendant's alleged misconduct. Saucier v. Katz, supra, 533 U.S. 201. See also Papineau v. Parmley, 465 F.3d 46, 55 (2d Cir. 2006). This test means that, even if a defendant violates the plaintiff's constitutional rights, the defendant will receive qualified immunity unless the right violated was clearly established at the time of the incident. Luna v. Pico, 356 F.3d 481, 490 (2d Cir.2004) (" [E]ven assuming a state official violates a plaintiff's constitutional rights, the official is protected nonetheless if he objectively and reasonably believed that he was acting lawfully.")
" The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, supra, 533 U.S. 202. " A Government official's conduct violates clearly established law when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear that every 'reasonable official would have understood that what he is doing violates that right.' Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. See id. ; Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)." Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011). " Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects 'all but the plainly incompetent or those who knowingly violate the law.' Malley, 475 U.S. 335, at 341, 106 S.Ct. 1092, 89 L.Ed.2d 271." Ashcroft v. al-Kidd, supra, 563 U.S. at 731, 131 S.Ct. at 2085. " [Q]ualified immunity is lost when plaintiff's point either to 'cases of controlling authority in their jurisdiction at the time of the incident' or to 'a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.' These standards ensure the officer has 'fair and clear warning' of what the Constitution requires. (Citations omitted.) Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2086-87, 179 L.Ed.2d 1149 (2011) (Kennedy, J., concurring). To determine whether the relevant law was clearly established, this court should look to the existence of Supreme Court or Court of Appeals case law on the subject, including the decisions of the Second Circuit and other circuit court of appeals. Terebesi v. Torreso, 764 F.3d 217, 231 (2d Cir. 2014) cert. denied sub nom. Torresso v. Terebesi, 135 S.Ct. 1842, 191 L.Ed.2d 723 (2015).
The right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established. Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Courts have been repeatedly told " not to define clearly established law at a high level of generality. The dispositive question is 'whether the violative nature of particular conduct is clearly established.' This inquiry 'must be undertaken in light of the specific context of the case, not as a broad general proposition.' Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that '[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.'" (Citations omitted.) Mullenix v. Luna, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015).
The appropriate question here is whether it was clearly established that it was unlawful for a police officer, confronting a fluid situation involving multiple persons engaged in physical altercations, to tase, after warning, an aggressive individual who disobeyed an order to stay on the ground. Officer Spiotti was the first officer on the scene in response to a complaint of a group of youths fighting in the street. Upon arrival, he observed five to ten males engaged in physical altercations. After Spiotti separated two sparring individuals, the plaintiff physically assaulted one of them by jumping into him and falling to the ground. Spiotti pointed his taser at the plaintiff, told him to stay on the ground and warned him that he would tase him if he did not. Despite the warning and order, the plaintiff got up from the ground and was immediately tased. The issue is whether existing case law made it clear to a reasonable officer that such conduct was unlawful. I conclude that it did not.
The U.S. Supreme Court has not issued any decisions outlining the instances in which the use of tasers constitutes excessive force. The Second Circuit has issued two such opinions, neither of which is helpful to the plaintiff here. In Crowell v. Kirkpatrick, 400 F.Appx. 592 (2d Cir. 2010), the court held that police officers' use of stun guns on protestor arrestees did not constitute excessive force in violation of the fourth amendment, where arrestees were actively resisting their arrest at time officers used stun gun by chaining themselves to several hundred pound barrel drums and officers expressly warned arrestees that they would use stun guns if they did not release themselves from the barrels. As noted previously, in MacLeod v. Town of Brattleboro, 548 Fed.Appx. 6 (2d Cir. 2013), the use of a taser by a police officer on an individual who disobeyed an order to kneel on the ground by rising to his fee was held not to be excessive force. These Second Circuit cases do not make it clear to an officer in Spiotti's situation that the use of a taser would constitute excessive force. In fact, they support the contrary position--that an officer facing active resistance can utilize his taser.
Courts from other circuits have concluded that it has not been clearly established by case law that the use of a taser in situations of active resistance constitutes excessive force. The decision in Lash v. Lemke, 786 F.3d 1 (D.C. Cir. 2015) is instructive. In Lash, the individual who was tased had run away from the officers and had pulled his arms away when they attempted to handcuff him. The court faced the question of whether it was clearly established that the singe use of a taser by arresting officers violated the fourth amendment rights of a person actively resisting arrest. Id., at 7. The court concluded no such clearly established right existed. Id. After surveying the law from its sister circuits, the court concluded that, while the use of a taser against a person who is not resisting arrest or merely passively resisting may violate that person's rights, see, e.g., Brown v. City of Golden Valley, 574 F.3d 491, 499 (8th Cir. 2009), the use of a taser against an actively resisting suspect does not violate clearly established law. Lash v. Lemke, supra, 786 F.3d 7. As support for this proposition the court cited Goodwin v. City of Painesville, 781 F.3d 314, 325 (6th Cir. 2015), Abbott v. Sangamon Cnty., Ill., 705 F.3d 706, 727 (7th Cir.20 13); Hagans v. Franklin Cnty. Sheriff's Office, 695 F.3d 505, 509-10 (6th Cir. 2012); Aldaba v. Pickens, 777 F.3d 1148, 1158 (10th Cir. 2015); De Boise v. Taser Int'l, Inc., 760 F.3d 892, 897 (8th Cir. 2014); Buchanan v. Gulfport Police Dep't, 530 Fed.Appx. 307, 314 (5th Cir. 2013); and Hoyt v. Cooks, 672 F.3d 972, 979-80 (11th Cir. 2012). The court concluded that, given the state of the law, a reasonable officer in January 2012 would certainly have been justified in believing that he could use a Taser a single time against a resisting suspect. Lash v. Lemke, supra 786 F.3d 8.
The plaintiff has not and cannot point to U.S. Supreme Court cases or Second Circuit decisions or to a consensus of cases of persuasive authority such that a reasonable officer faced with the situation confronting Officer Spiotti could not have believed that his actions were lawful. Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). Because the law did not put Officer Spiotti on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. Saucier v. Katz, supra, 533 U.S. 202.
II
CLAIMS AGAINST THE MUNICIPALITY
In his complaint, the plaintiff makes a cavalcade of claims against the town of Wolcott related to its liability for Officer Spiotti's alleged use of excessive force. The plaintiff claims that Spiotti's excessive use of force was pursuant to a custom, practice or policy of the town, the town failed to properly screen employees as to their propensity to resort to force, failed to properly train police officers in the proper use of force, and failed to sanction or discipline police offers for the improper use of force.
A municipality is subject to liability for damages pursuant to 42 U.S.C. § 1983 for the unconstitutional acts of its employees. Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The municipality cannot be liable under Monell where the plaintiff cannot establish a violation of his constitutional rights. Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013). In light of my determination that the actions of Officer Spiotti did not violate the plaintiff's fourth amendment rights, the plaintiff's claims against the town of Wolcott also fail.
III
CONCLUSION
The evidence and proof submitted by the parties show that there is no genuine issue as to any material fact and that the defendants are entitled to judgment as a matter of law. Accordingly, the defendants' motion for summary judgment is hereby granted and judgment may enter in favor of the defendants as to Counts One, Two and Three of the plaintiff's complaint.
BY THE COURT
Jon M. Alander
Judge of the Superior Court