Huertas v. Ivanko et al
Filing
30
ORDER granting 22 Motion for Summary Judgment. See the attached memorandum of decision. The Clerk is directed to enter judgment in favor of Defendants as to Plaintiff's federal law claims. The Plaintiff's state law claims are dismissed without prejudice as the Court declines to exercise supplemental jurisdiction over these claims. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 3/25/13. (Ives, D)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JUNIOR HUERTAS,
PLAINTIFF,
v.
JAMES IVANKO and OMAR JIMENEZ,
DEFENDANTS.
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CIVIL ACTION NO.
3:11-cv-00528 (VLB)
MARCH 25, 2013
MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT [DKT. 22]
I.
Introduction
The Plaintiff, Junior Huertas (“Huertas”), brings this action against
Defendant Bridgeport Police Officers James Ivanko (“Ivanko”) and Omar Jimenez
(“Jimenez”) in their individual capacities stemming from an incident that resulted
in Huertas’s arrest. Plaintiff alleges claims for: (1) Ivanko’s and Jimenez’s use of
excessive force in violation of his Fourth Amendment rights pursuant to 42 U.S.C.
§ 1983; (2) violations of his First Amendment rights pursuant to 42 U.S.C. § 1983;
(3) common law reckless infliction of emotional distress; (4) common law assault;
(5) common law battery; and (6) common law invasion of privacy. Currently
pending before the Court is Defendants’ Motion for Summary Judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. The Defendants contend that
their alleged use of excessive force was not unreasonable and that, even if it was,
they are entitled to qualified immunity. Additionally, the Defendants argue that
the claims against Officer Jimenez must be dismissed as Plaintiff has neither
alleged nor provided any evidence in the record that Officer Jimenez applied any
1
force against the Plaintiff during the incident in question. For the reasons stated
hereafter, the Defendants’ Motion for Summary Judgment as to Plaintiff’s federal
claims is GRANTED.
II.
Factual Background
The following facts relevant to the Defendant’s Motion for Summary
Judgment, taken in the light most favorable to the Plaintiff, are undisputed unless
otherwise noted.
This case arises from an incident that took place on July 12, 2009 at
approximately 8:45 pm between the Plaintiff and members of the Bridgeport
Police Department. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 1]. On July 12, Junior Huertas
attended a party at a friend’s home at 358 Park Avenue1 in Bridgeport,
Connecticut, to watch the annual Puerto Rican Day Parade taking place along
Park Avenue. [Id. at ¶ 2]. Approximately thirty people attended the party and
alcohol was provided for guests, including beer in cans and on tap. [Id. at ¶ 17].
There was a DJ at the party named Fano who was playing music which was
broadcast into the street by two speakers positioned facing the street, one in the
left porch corner and one in the center (viewed from a position facing the home).
[Dkt. 28-1, Huertas Depo. pp. 44, 69]. Mr. Huertas arrived with his fiancée at the
party around 1:00 pm, when the parade was about halfway done, and consumed
“like ten beers” between 1:00 pm and 8:45 pm, the time of the incident at issue in
this case. [Dkt. 24, Ds’ 56(a) Stmnt. ¶¶ 16, 18; Dkt. 28-1, Huertas Depo. p. 38].
1
The parties variably report this address as 358 and 360 Park Avenue. The
Court will refer to the address as 358 Park Avenue for ease of reference.
2
Huertas and his fiancée had an understanding that she would drive the couple
home that night because “she’s the one that drives home . . . because she
doesn’t drink.” [Dkt. 24, Ds’ 56(a) Stmnt. at ¶ 18]. Between the time he arrived at
the party and the time of the incident Huertas consumed at least 10 beers,
including two beers less than an hour before the incident, and his fiancé
consumed approximately 4 beers. [Dkt. 28-1, Huertas Depo. pp. 40, 44, 95-97].
Approximately fifteen to thirty minutes before the incident at issue, an
unnamed Bridgeport police officer or officers walked through the gate in front of
358 Park Avenue to the front yard and told Fano to lower the volume of the music
he was playing. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 20; Dkt. 28-1, Huertas Depo. p. 44-45].
At the time the officers told the DJ to lower the volume, the DJ’s music had drawn
a crowd in the street; people had gathered outside of the home and, according to
Huertas, they had “stay[ed] [after the conclusion of the parade] and they dance[d]
in the street and dance[d] on the sidewalk.” [Dkt. 24, Ds’ 56(a) Stmnt. ¶¶ 21-22].
Mr. Huertas recounted that “there [were] more people than traffic” on the street
as the music was “keeping them there,” forming a sort of social area in the street.
[Id. at ¶¶ 20, 22-23]. After the officers asked the DJ to lower the volume, the DJ
complied, but screamed at the police in protest, prompting the people in the
street to join in protest and his wife to caution him to calm down. [Dkt. 28-1,
Huertas Depo. pp. 59-63]. Other residences along Park Avenue also lowered their
music at the officers’ direction and the officers continued to walk up the street,
clearing the park area and telling the people gathered along Park Avenue to
disperse. [Dkt. 24, Ds’ 56(a) Stmnt. ¶¶ 23, 25; Dkt. 28-1, Huertas Depo. pp. 49-50].
3
The police proceeded down the street to the park. [Dkt. 28-1, Huertas Depo. p.
64].
According to Huertas, after the officers left the yard of 358 Park Avenue, he
and others at the party “were kind of upset because this never happened to us
before then” and “it became a conversation that [the officers] were being unfair
because actually the event [at 358 Park Avenue] wasn’t even finished then,” as in
previous years the party was allowed to continue until around 9:00 pm. [Dkt. 24,
Ds’ 56(a) Stmnt. ¶¶ 24, 25; Dkt. 28-1, Huertas Depo. p. 50]. Fano left the porch and
walked across the street to the store after the officers asked him to lower the
volume; he was not present later for the incident that prompted this lawsuit. [Dkt.
28-1, Huertas Depo. p.64].
At approximately 8:45 pm, several officers from the Bridgeport Police
Department were attempting to clear the northbound and southbound travel lanes
and sidewalks of Park Avenue, including the sidewalk directly in front of 358 Park
Avenue where a large crowd had gathered. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 3; Dkt. 231, Jimenez Incident Report]. These officers included Officer Alterio and
Defendant Officers Jimenez and Ivanko. [Dkt. 23-1, Jimenez Incident Report; Dkt.
23-3, Alterio Incident Report; Dkt. 23-4, Ivanko Use of Force Report]. According
to a Use of Force Report prepared by Defendant Officer Ivanko, the larger crowd
consisted of “approximately 2500 to 3000 individuals in the streets and blocking
sidewalks northbound on Park Avenue.” [Dkt. 23-4, Ivanko Use of Force Report].
4
Mr. Huertas and the Defendant Officers disagree and Huertas’ deposition
testimony is inconsistent on the details of what then transpired. Mr. Huertas, who
was on the porch of 358 Park Avenue where the speakers – which were still
broadcasting music – were located, alleges that no interactions or verbal
exchanges took place between the officers clearing the crowd and any occupant
of 358 Park and asserts that he did not hear the officers yell or say anything to
anybody on the porch or on the premises of 358 Park Avenue. [Dkt. 24, Ds’ 56(a)
Stmnt. ¶ 27; Dkt. 28-1, Huertas Depo. pp. 68-69]. Instead, Mr. Huertas alleges that
three officers then entered the yard of the home and began arresting people
without reason; “one of the officers just started pointing fingers [at people] like:
You’re going. You’re going.” [Dkt. 28-1, Huertas Depo. p. 55]. Huertas alleges
that two police officers then came up on the porch with the intention of arresting
Wilmer Garcia, who was also on the porch.2 [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 29]. One
of the officers pointed at Mr. Garcia and ordered: “come with me” and/or “you’re
under arrest.” [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 32; Dkt. 28-1, Huertas Depo. pp. 70, 93].
The officers, on the other hand, allege the opposite. Officer Alterio, in an
Incident Report completed on July 12, reported that he “observed officer Jimenez
walk over to the porch of 358 Park Ave and start to talk to a party later identified
as Garcia, Wilmil . . . after O. Jimenez talked to him the party started to yell at the
officer and said that ‘you can’t do shit’.” [Dkt. 23-3, Alterio Incident Report].
2
The Complaint alleges Mr. Garcia’s first name to be Wilmer, as does
Plaintiff’s opposition to Defendants’ motion for summary judgment. Defendants’
motion for summary judgment and 56(a)(1) statement, as well as Officers
Jimenez’s and Alterio’s Incident Reports, refer to him as Wilmil. For ease of
reference, the Court will refer to this individual as Mr. Garcia or Garcia.
5
Officer Jimenez reported in his own Incident Report that as he was attempting to
clear the crowd “Garcia started to yell out, ‘They can’t do shit! They can’t do shit!
F*** you!’” at which point “the large crowd in front of and on the porch of 358
Park Ave. began to agree with Garcia and did not want to disperse.” [Dkt. 23-1,
Jimenez Incident Report]. Jimenez reports that he “notified Garcia to stop
talking” but Garcia “refused to keep quiet,” so Jimenez ordered Mr. Garcia to step
down from the porch. [Dkt. 23-1, Jimenez Incident Report].
Huertas contends that he then approached and “intervened asking the
officer, you know, what is the cause for the arrest? . . . [Garcia] was with me here.
He didn’t do anything.” [Dkt. 24, Ds’ 56(a) Stmnt. at ¶ 31; Dkt. 28-1, Huertas Depo.
at pp. 70, 92]. Defendant Officer Jimenez reported that as he approached the
steps of the house, Mr. Huertas stood in front of him with an alcoholic beverage
in his hand and stated “You ain’t touching him,” at which point Jimenez advised
Huertas to step aside. [Dkt. 23-1, Jimenez Incident Report]. Officer Alterio
reported that as Officer Jimenez walked up the stairs to arrest Mr. Garcia, Mr.
Huertas “stood up and got in the face of officer O. Jimenez” and then began to
argue with Officer Alterio as he approached in order to cover Officer Jimenez.
Alterio further reported that he then told Mr. Huertas to stop or he would be
arrested, at which point Huertas walked back to where Officer Jimenez was
standing and “caused a scene yelling and screaming ‘you can’t touch me in the
yard it’s private property’ getting the crowd of approximately 40 to 50 people
wound up.” [Dkt. 23-3, Alterio Incident Report].
6
At the time Huertas attempted to intervene, Mr. Garcia and the officers3
were facing one another and Huertas was eight to ten inches from the officers,
facing the officers and Garcia in profile. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 33]. Huertas
admits that before he attempted to intervene he had had a beer in his hand, which
he set down on a table immediately before questioning the officers. [Id. at ¶ 33].
He also admits that he had consumed “like ten beers” between 1:00 pm and 8:45
pm, two of which he consumed between the time the officers first asked the DJ at
358 Park to turn down the music volume and the time of the incident. [Id. at ¶¶
18, 26]. In their respective police reports, Officers Alterio and Ivanko described
Mr. Huertas as “intoxicated.” [Dkt. 23-3, Alterio Incident Report; Dkt. 23-4, Ivanko
Use of Force Report]. Huertas, however, denies that he was inebriated. [Dkt. 29,
P’s 56(a)(2) Stmnt. at Disputed Issues of Material Fact ¶ 1]. The following
dialogue transpired at Huertas’ deposition:
Q [Counsel]. Can you say to me, sir, that you were sober at
the moment in time you were talking with the police officer
[attempting to arrest Mr. Garcia]?
A [Huertas]. When I was talking to him, I was normal.
Q. I didn’t ask you if you were normal. I asked you: Were you
sober?
A. Oh, to be honest, sober would have be [sic] having no
beers.
Q. Right. So you weren’t sober when you were talking to the
officer?
3
At deposition, Mr. Huertas and counsel examining him spoke both about an
“officer” and two “officers” who approached the porch and proceeded to engage
with Wilmer Garcia. It is unclear from the testimony whether Mr. Huertas initially
engaged with one or two officers on the porch. As such, the Court leaves intact
both the admitted facts in Defendants’ 56(a)(1) statement and the quotes from Mr.
Huertas’ deposition testimony and allows them to speak for themselves.
7
A. I wasn’t drunk.
Q. I didn’t ask whether you were drunk. I asked whether you
were sober?
A. I could say I was sober.
Q. Your testimony is that after drinking ten beers, at least ten
beers all day long from 1:00, at the time you talked to these
officers you were sober?
A. That was ten beers in a couple hours. That didn’t do
nothing to me.
Q. Okay.
A. If I knew I was in a position where I couldn’t talk to the
officer, I wouldn’t approach the officer.
[Dkt. 28-1, Huertas Depo. pp. 95-96].
The parties agree that the officer attempting to arrest Mr. Garcia – Officer
Jimenez – told Huertas to step back and mind his own business or he would be
arrested. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 34]. Mr. Huertas contends that Officer
Jimenez slapped him and poked him in the chest as Jimenez was directing him to
step back. [Dkt. 28-1, Huertas Depo. at p. 97]. As a result, Huertas “stepped back
to a certain point. . . . Like two feet,” placing Mr. Huertas approximately two to
three feet from the officer and Mr. Garcia.4 [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 34; Dkt. 281, Huertas Depo. p. 98]. After he stepped back, Huertas continued to interfere,
questioning the officers about why Mr. Garcia was being arrested and continuing
to tell the officer arresting Mr. Garcia not to place Mr. Garcia under arrest. [Dkt.
24, Ds’ 56(a) Stmnt. ¶ 35; Dkt. 28-1, Huertas Depo. pp. 98-99]. In response, the
officer arresting Mr. Garcia warned Huertas at least twice to step back and not get
4
Contradictorily, Mr. Huertas also testified that, after the officer told him to
step back, that he “wasn’t stepping back.” [Dkt. 28-1, Huertas Depo. p. 70].
8
involved or he would be arrested. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 36; Dkt. 28-1,
Huertas Depo. pp. 98-100]. Mr. Huertas did not step back any further and did not
follow the officer’s instruction to not get further involved; instead, he testified
that “I didn’t stop talking. I kept on asking him why” even though the officer
arresting Mr. Garcia “just kept on saying to step back” or Huertas would be
arrested. [Dkt. 24, Ds’ 56(a) Stmnt. ¶¶ 37, 38]. As Mr. Garcia was being
handcuffed, Huertas continued to tell the officers not to do so. [Id. at ¶ 39].
Huertas recounts that by the third time the officer arresting Mr. Garcia told
him to step back, “two cops came up on the porch and started pushing [Huertas]
away” and told him that he was under arrest. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 40; Dkt.
28-1, Huertas Depo. p. 100]. Huertas, who did not want to be arrested or
handcuffed, testified that when the officers then attempted to handcuff him, he
resisted, demanding that the officers inform him of the reasons for his arrest and
did not willingly tell the officers that they could cuff him. [Dkt. 24, Ds’ 56(a)
Stmnt. ¶ 41; Dkt. 28-1, Huertas Depo. pp. 101-102]. According to Officer
Jimenez’s Incident Report, he was the officer responsible for taking Mr. Garcia
into custody. [Dkt. 23-1, Jimenez Incident Report]. His report also noted the
presence of Officers Alterio and Ivanko on the porch, and further reported that
“Huertas got into a physical altercation with the two assisting Officers.” [Dkt. 231, Jimenez Incident Report]. Further, Officer Alterio’s Incident Report states that
Alterio was the officer who then advised Huertas to “turn around and place his
hands to his back as I was going to hand cuff him.” [Dkt. 23-3, Alterio Incident
9
Report]. Huertas denies that he became involved in a physical altercation with
the officers. [Dkt. 29, P’s 56(a)(2) Stmnt. at ¶5].
Huertas testified that these two officers then put their hands on him and
forcefully pushed him toward the porch column, which Huertas missed, causing
him to push up against the railing and fall over it backwards. [Dkt. 24, Ds’ 56(a)
Stmnt. ¶ 42; Dkt. 28-1, Huertas Depo. p. 104]. Mr. Huertas admitted that it was his
understanding that the officers pushed him toward the column in order to
separate him from the area where Mr. Garcia and the third officer were located so
they could effectuate Mr. Huertas’s arrest. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 43; Dkt. 281, Huertas Depo. pp. 101-102]. Additionally, he admitted that he did not want to
go in the direction of the railing when pushed, and thus did not voluntarily take a
step backwards toward the railing; Mr. Huertas admitted that the officers
continued to have to push him toward the railing and that he was resisting their
efforts to do so. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 45]. Huertas also concedes that
although the officers pushed him in the direction of the porch railing, they did not
literally push him over the porch railing, nor did they push him over the railing
intentionally. [Id. at ¶ 44].
Huertas contends that the officers “were not trying to stop [him] from
falling” over the porch railing. [Dkt. 28-1, Huertas Depo. p. 105]. However,
Huertas admitted that he “felt bodies against [his] legs,” felt force being exerted
against his legs between the railing and a person or persons on the other side of
the railing who were exerting the force, and testified that “I felt the bodies, felt like
arms trying to grab me.” [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 48; Dkt. 28-1, Huertas Depo.
10
pp. 109-110]. Huertas did not identify during deposition who exerted this
pressure against his legs. [Dkt. 28-1, Huertas Depo. p. 109]. This admission,
though, comports with Officer Alterio’s report, in which he stated that as Huertas
was falling over the railing, he “tried to grab the suspect but (S1) fell off the
porch, I was able to hold on to the suspect from the first floor porch
approximately 6 feet off ground so he didn’t hit the ground when he fell off the
porch.” [Dkt. 23-3, Alterio Incident Report]. Officer Ivanko similarly reported that
he “observed the suspect . . . being held by Officer Alterio in an effort to prevent
him from falling off the porch.” [Dkt. 23-4, Ivanko Use of Force Report].
Further, Alterio reported that as he was holding Huertas from falling off the
porch, “an unknown female came from behind me and started to punch me in the
back. At that point I let the suspect go, and he fell to the ground. I turned to get
the female party to stop hitting me . . .” [Dkt. 23-3, Alterio Incident Report].
Ivanko similarly reported that “Officer Alterio appeared to have been hit in the
back and let go of the suspect in front of my position,” which resulted in Huertas
being “let down easy” from the porch. [Dkt. 23-4, Ivanko Use of Force Report].
Huertas testified that as he was going over the railing he observed his fiancée
“coming up to the officer, behind the officer;” and that he “just saw her
approaching behind the officers. And then after that, that’s when I fell.” [Dkt. 281, Huertas Depo. pp. 76, 79]. As he was falling backwards, Huertas states that he
“grabbed somebody’s shirt” with his right hand, but that the shirt “broke or
something,” and he “[j]ust felt like a button popped. Something popped, had to
11
be a button.”5 [Id. at pp. 71-73]. Officer Alterio noted in his report that “[d]uring
the struggle with the suspect [sic] grabbed my shirt pulling and ripping the
buttons off.” [Dkt. 23-3, Alterio Incident Report].
5
Plaintiff, in his Local Rule 56(a)(2) Statement [Dkt. 29], states that “Huertas
did not grab the officers [sic] shirt, but felt a button pop off as he was failing
[sic].” [Dkt. 29, P’s 56(a) Stmnt. at ¶ 46]. This is not, however, an adequate
reflection of Huertas’ deposition testimony, which does not support this denial:
Q: Well, when you went over, did you actually go over or were you held in
place at some point?
A: I went over completely. I was trying to hold on to something, trying to
grab something, because I already had all the weight falling. All my weight
was already going toward that pitch. I was trying to grab on to something.
And that’s when I grabbed somebody’s shirt. And I felt that the shirt - - I
don’t know - - broke or something, but it was too late. I was already on the
ground.
Q: You mean the person’s shirt that you grabbed was on the porch?
A: Was on the porch, yes.
Q: And when you went back, you felt the shirt give way?
A: I grabbed on to somebody’s shirt. I wasn’t looking at the time.
Q: You mean you felt the shirt tear or the buttons tear or what did feel?
[sic]
A: I felt something just giving way, because only this hand grabbed, my
right hand grabbed something.
Q: Okay. As you were going backwards, your right hand was grabbing an
officer’s shirt, because you felt the shirt give way when you went
backwards over the railing?
A: Over the railing.
Q: Okay. So prior to that moment of you going back over the railing, your
hand was in the shirt enough to actually grab hold of it and for the shirt to
give way as you fell backwards?
A: I didn’t really have a grab on it. I think if I would have, I would have torn
the shirt. I let go at the time.
Q: Okay. But you just said you felt the shirt give way?
A: Yeah, like something popping.
Q: Okay. Like buttons popping?
A: Could have been a button.
Q: All right. Did you feel the shirt tear?
A: No.
Q: Or did you just feel buttons pop?
A: Just felt like a button popped. Something popped, had to be a button.
[Dkt. 28-1, Huertas Depo. at pp. 71-73].
12
After Huertas hit the ground, he alleges that he was able to rise to his feet
before any officers arrived at his location. [Dkt. 24, Ds’ 56(a) Stmnt. ¶¶ 49, 50].
Thereafter, Huertas recounts that three officers who had been in the street came
into the yard and were “getting their arms around” him.6 [Dkt. 28-1, Huertas
Depo. pp. 111, 113]. At this point, Huertas testified, “all the neighbors came.
They were surrounding the officers, surrounding the porch. There was loud
screaming and hollering.” [Id. at 111]. The interaction with the three officers
lasted for approximately two minutes, during which time the officers kneed and
elbowed Huertas in an attempt to make him go to the ground from his standing
position. [Dkt. 29, P’s 56(a) Stmnt. ¶¶ 52, 53]. During this interaction the officers
repeatedly told Huertas to get on the ground; Huertas, however, did not comply
with this directive because, as he testified, “I feel they could have cuffed me
where I was standing. Why should I get on the ground?” [Id. at ¶ 53]. As a
consequence of this disagreement between the officers and Mr. Huertas, Huertas
resisted the officers’ efforts to put him on the ground to be handcuffed. [Dkt. 281, Huertas Depo. p. 121]. He further relates that during the interaction he “was
waving [his] arms . . . just trying to explain to them . . . Why this? Why now?
Why is this happening?” [Dkt. 28-1, Huertas Depo. p. 114]. At one point during
the interaction Huertas’ arm came into contact with the mid-section of one of the
officers. Huertas testified that “I remember putting my arm out and, yeah,
grabbing on to one of [the officers]. . . . Because they were pushing me so hard - I just felt my arm. I didn’t really grab him.” [Id. at p. 114]. Huertas qualified this
6
Huertas does not identify these officers anywhere in the record.
13
statement with the further explanation that he did not grab the officer, but rather
he exerted force with his left forearm on the “mid back” area of one of the
officers, above the belt, because he was falling as a result of the officers pushing
him. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 51; Dkt. 28-1, Huertas Depo. pp. 115-116].
While Huertas was resisting the officers’ attempts to put him on the
ground, he claims that Defendant Officer Ivanko jumped from the porch, over the
railing and onto the ground, and struck Huertas in the face near his right eye.
[Dkt. 28-1, Huertas Depo. pp. 75, 122-124; see also Dkt. 24, Ds’ 56(a) Stmnt. ¶ 54;
Dkt. 29, P’s 56(a) Stmnt. ¶ 56]. Huertas concedes that at the point at which he felt
the officer strike him in the face he was still refusing the officers’ commands to
go down to the ground. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 55]. After he was struck in the
face, Huertas alleges that he was pushed against the building located
approximately two feet away and then pushed to the ground, where the officers
handcuffed him. [Dkt. 28-1, Huertas Depo. pp. 124-125].
The officers’ reports recount what transpired on the ground differently,
including which officer interacted with Huertas on the ground and which leapt
from the porch. Officer Ivanko reported that, once Huertas had gotten to his feet,
he “grabbed at me and put me in a head lock, I was able to reverse the position
and place Huertas in a head lock while telling him to stop resisting stop fighting
he continued to fight and would not stop and grabbed onto my belt and weapon.”
[Dkt. 23-4, Ivanko Use of Force Report]. Ivanko noted that there were other
people “grabbing at me trying to pull me off” of Mr. Huertas, and that Ivanko was
able to take Huertas to the ground with a front leg sweet “as he continued to fight
14
with me attempting to remove my weapon.” [Dkt. 23-4, Ivanko Use of Force
Report]. Ivanko further reported that he attempted to strike Huertas with his right
fist as they “were still entangled” and was “able to land one strike to Huertas [sic]
right shoulder facial area,” at which point other officers came to Ivanko’s
assistance and subdued and handcuffed Huertas. [Dkt. 23-4, Ivanko Use of Force
Report]. Officer Alterio, who remained on the porch immediately after Mr. Huertas
fell from the railing, similarly observed Huertas “grab officer J. Ivanko who was
off the porch grab him around the neck,” at which point Alterio “let the female
[who had been punching him from behind] go and jump off the porch railing to
get the suspect off of officer J. Ivanko at this time other officers immediately ran
over due to the line of officers being all in the same area.” [Dkt. 23-3, Alterio
Incident Report]. Alterio also reported that “[t]he suspect wouldn’t let officer
Ivanko go and I struck the suspect hitting him in the face to get the suspect off of
officer J. Ivanko and to get control of him.” [Dkt. 23-3, Alterio Incident Report].
Huertas denies hitting or grabbing any officer, and denies attempting to remove
any officer’s weapon. [Dkt. 29, P’s 56(a) Stmnt. ¶¶ 10, 11].
Huertas sustained a right orbital floor fracture for which he underwent
surgery on July 27, 2009, during which an anatomic titanium orbital floor plate
was inserted and secured to Huertas’ orbital rim. [Dkt. 28-3, Dr. Yan Operative
Report]. Huertas alleges that he sustained this injury as a result of Defendant
Ivanko’s blow to his face. [Dkt. 29, P’s 56(a) Stmnt. at ¶ 8]. Huertas also alleges
that he sustained pinched nerves in his neck as a result of the fall from the porch,
astigmatism in his right eye, and emotional repercussions, as well as facial and
15
body contusions, a subconjunctival hemorrhage, and a sprained shoulder. [Dkt.
28-1, Huertas Depo. pp. 131, 139, 141; Dkt. 1, Compl. ¶ 25].
Mr. Huertas was charged with violations of Conn. Gen. Stat. § 53a-181,
Breach of the peace in the second degree; Conn. Gen. Stat. § 53a-178, Inciting to
riot; Conn. Gen. Stat. § 53a-167a, Interfering with an officer; and Conn. Gen. Stat.
§ 53a-167c, Assault of public safety personnel. [Dkt. 23-3, Alterio Incident
Report]. Huertas testified that the State entered a nolle as to these charges after
he participated in an accelerated rehabilitation program, performed 200 hours of
community service, made a $250 donation to charity, and completed two years of
probation. [Dkt. 28-1, Huertas Depo. p. 145]. Wilmer Garcia was likewise
charged with Breach of peace and Inciting to riot. [Dkt. 23-1, Jimenez Incident
Report].
III.
Legal Standard
Summary judgment should be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of
proving that no factual issues exist. Vivenzio v. City of Syracuse, 611 F.3d 98,
106 (2d Cir.2010). “In determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91
L.Ed.2d 202 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S.
16
574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986)). “If there is any evidence in the
record that could reasonably support a jury's verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd
Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir.2006) (internal quotation
marks and citation omitted).
“A party opposing summary judgment cannot defeat the motion by relying
on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible. At the summary
judgment stage of the proceeding, Plaintiffs are required to present admissible
evidence in support of their allegations; allegations alone, without evidence to
back them up, are not sufficient.” Welch–Rubin v. Sandals Corp., No.3:03cv481,
2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (internal quotation marks and
citations omitted); Martinez v. State of Connecticut, No. 3:09cv1341 (VLB), 2011
WL 4396704 at *6 (D. Conn. Sept. 21, 2011). Where there is no evidence upon
which a jury could properly proceed to find a verdict for the party producing it
and upon whom the onus of proof is imposed, such as where the evidence
offered consists of conclusory assertions without further support in the record,
summary judgment may lie. Fincher v. Depository Trust and Clearance Co., 604
F.3d 712 (2d Cir. 2010).
IV.
Discussion
a. Retaliation in Violation of the First Amendment
17
Plaintiff alleges that the Defendant Officers’ intentions in arresting him
were to prevent Plaintiff from speaking out about the officers’ conduct in violation
of the First Amendment as it related to the arrest of his friend, Mr. Garcia, and to
his own seizure. [Dkt. 1, Compl. ¶¶ 35-36]. The Defendants counter that probable
cause to arrest Mr. Huertas existed and furthermore, Mr. Huertas has failed to
raise a challenge to probable cause, thereby nullifying Plaintiff’s First
Amendment retaliation claim brought pursuant to 42 U.S.C. § 1983. [Dkt. 23, Ds’
MSJ p. 27]. The Court agrees with the Defendant Officers. Probable cause
existed to arrest Mr. Huertas; as such, his First Amendment retaliation claim must
be dismissed.
To prevail on a First Amendment retaliation claim, “plaintiff must prove: (1)
he has an interest protected by the First Amendment; (2) defendants’ actions
were motivated or substantially caused by his exercise of that right; and (3)
defendants’ actions effectively chilled the exercise of his First Amendment right.”
Curley v. Vill. of Suffern, 268 F.3d 65, 73 (2d Cir. 2001); see also Oglesby v.
Eikszta, No. 11–4349–cv, 2012 WL 4478772 (2d Cir. Sept. 28, 2012) (quoting same);
Marshall v. Town of Middlefield, 3:10-CV-1009 (JCH), 2012 WL 601783 (D. Conn.
Feb. 23, 2012) recon. denied, 3:10-CV-1009, 2012 WL 1118950 (D. Conn. Apr. 3,
2012) (quoting same).
Huertas has not satisfied the first prong of his First Amendment claim.
Huertas contends that he was arrested in retaliation for asking the officers why
they were arresting Mr. Garcia and, later, for repeatedly questioning his own
arrest. “[P]rovocative speech directed at police officers is protected against
18
censorship or punishment, unless shown likely to produce a clear and present
danger of a serious substantive evil that rises far above public inconvenience,
annoyance, or unrest.” Anderson v. City of New York, 817 F. Supp. 2d 77, 96
(E.D.N.Y. 2011) recon. denied, 06-CV-5363 KAM VVP, 2011 WL 5175600 (E.D.N.Y.
Oct. 31, 2011). “Pure, non-obscene speech is protected unless the words, by
their very utterance, inflict injury or tend to evoke immediate violence or other
breach of the peace.” Smith v. Metro N. Commuter R.R., 98 CIV. 2528 RWS, 2000
WL 1449865 (S.D.N.Y. Sept. 29, 2000).
Huertas’ conduct created a clear and present danger to the safety of the
police and to the members of the public present in the vicinity of 358 Park
Avenue. He admits that after having consumed ten beers, two of which he
consumed thirty minutes before the altercation, and while he was upset, he
interposed himself between the police and Mr. Garcia, who an officer was
attempting to arrest. He admitted telling the officer not to arrest Garcia and
demanding an explanation for the arrest. Huertas was, by his own estimation,
standing only eight to ten inches from the officer arresting Garcia and he refused
to move when the officer asked him to do so twice. After the third request, he
stepped back to approximately two to three feet from the officer, which was
within arms’ length, and continued to intercede. He further admitted that there
was a large crowd of people on the scene: more people in the street than there
were cars (such that the crowd restricted all traffic from passing) plus thirty
people at the party who were angry about the fact that the officers had told the DJ
to turn down the music and the crowd to disburse a half hour earlier. He further
19
admitted that the crowd did not disburse and remained partying to the music
being broadcast from the porch. Considering the totality of the circumstances,
Huertas’ questions together with his actions in the presence of the disgruntled
crowd of revelers are not protected speech under the First Amendment, nor are
the questions Huertas claims he directed at the officers attempting to arrest him.
Huertas’ speech, coupled with his actions and refusals to comply with the
officers’ commands, posed an immediate risk of harm to the officers on the scene
and to bystanders, in that his words and actions were likely to invoke violence in
the crowd. See Anderson, 817 F. Supp. 2d 77, recon. denied, 06-CV-5363 KAM
VVP, 2011 WL 5175600 (finding that plaintiff had satisfied the first prong of his
First Amendment claim where plaintiff repeatedly requested that police officers
arrest hospital security guard for assault after altercation between plaintiff and
guard and where plaintiff insisted security camera would validate his claim of
assault, where police officers arrived on scene after altercation had ended and
advised plaintiff to leave the hospital rather than requesting arrest, and where
there appeared to be no present danger to police officers, guard, or hospital
visitors); Smith v. Metro N. Commuter R.R., 2000 WL 1449865 (on motion to
dismiss, plaintiff satisfied first prong where he alleged that he was arrested for
questioning why he was ejected from a MetroNorth train and where he had
consumed only one beer that day, where he was not disorderly, and where he
posed no immediate threat to the officers or others).
Even assuming Huertas’ speech was protected, he has failed to satisfy the
second element of his First Amendment claim. “Specific proof of improper
20
motivation is required in order for plaintiff to survive summary judgment on a
First Amendment retaliation claim.” Curley, 268 F.3d at 73 (citing Blue v. Koren,
72 F.3d 1075, 1082–83 (2d Cir. 1995)). However, where probable cause to arrest
exists, “an inquiry into the underlying motive for the arrest need not be
undertaken.” Curley, 268 F.3d at 73. Probable cause to arrest exists where an
officer has “knowledge or reasonable trustworthy information sufficient to
warrant a person of reasonable caution in the belief that an offense has been
committed by the person to be arrested.” Panetta v. Crowley, 460 F.3d 388, 395
(2d Cir. 2006) (internal quotation marks and citations omitted). See also Walczyk
v. Rio, 496 F.3d 139, 156 (2d Cir. 2007) (“[F]ederal and Connecticut law are
identical in holding that probable cause to arrest exists when police officers have
‘knowledge or reasonably trustworthy information of facts and circumstances
that are sufficient to warrant a person of reasonable caution in the belief that the
person to be arrested has committed or is committing a crime.”) (quoting Weyant
v. Okst, 101 F. 3d 845, 852 (2d Cir. 1996)). “Whether probable cause existed is a
question that may be resolved as a matter of law on a motion for summary
judgment if there is no dispute with regard to the pertinent events and knowledge
of the officer.” Weinstock v. Wilk, 296 F. Supp. 2d 241, 256 (D. Conn. 2003) (citing
Weyant, 101 F.3d at 852). Moreover, “a claim for false arrest turns only on
whether probable cause existed to arrest a defendant, and . . . it is not relevant
whether probable cause existed with respect to each individual charge, or,
indeed, any charge actually invoked by the arresting officer at the time of arrest.”
Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006). See also Johnson v. Ford, 496
21
F. Supp. 2d 209, 213 (D. Conn. 2007) (AWT) (“Because the existence of probable
cause depends on the probability, rather than the certainty, that criminal activity
has occurred, the validity of an arrest does not require an ultimate finding of
guilt.”).
“Probable cause is to be assessed on an objective basis.” Zellner v.
Summerlin, 494 F.3d 344, 369 (2d Cir. 2007). “Whether probable cause exists
depends upon the reasonable conclusion to be drawn from the facts known to the
arresting officer at the time of the arrest.” Devenpeck v. Alford, 543 U.S. 146, 152
(2004) (citation omitted). “Other than the facts known to the arresting officer at
the time of arrest, an officer’s state of mind is irrelevant.” Id. at 153. Thus, “the
fact that the officer does not have the state of mind which is hypothecated by the
reasons which provide the legal justification for the officer’s action does not
invalidate the action taken as long as the circumstances, viewed objectively,
justify that action.” Id. (internal quotation marks omitted). The Second Circuit
has explained that “probable cause is a fluid concept . . . not readily, or even
usefully, reduced to a neat set of legal rules . . . While probable cause requires
more than a mere suspicion of wrongdoing, its focus is on probabilities, not hard
certainties.” Walczyk, 496 F.3d at 156 (internal quotation marks and citation
omitted). “In assessing probabilities, a judicial officer must look to the factual
and practical considerations of everyday life on which reasonable and prudent
men, not legal technicians, act.” Id. In sum, probable cause “requires only such
facts as make wrongdoing or the discovery of evidence thereof probable.” Id. at
157.
22
Mr. Huertas was charged with violations of (1) Conn. Gen. Stat. § 53a-181,
Breach of the peace in the second degree; (2) Conn. Gen. Stat. § 53a-178, Inciting
to riot; (3) Conn. Gen. Stat. § 53a-167a, Interfering with an officer; and (4) Conn.
Gen. Stat. § 53a-167c, Assault of public safety personnel. Under Connecticut law
[a] person is guilty of breach of the peace in the second
degree when, with intent to cause inconvenience,
annoyance or alarm, or recklessly creating a risk
thereof, such person: (1) Engages in fighting or in
violent, tumultuous or threatening behavior in a public
place; or (2) assaults or strikes another; or (3) threatens
to commit any crime against another person or such
other person's property; or (4) publicly exhibits,
distributes, posts up or advertises any offensive,
indecent or abusive matter concerning any person; or
(5) in a public place, uses abusive or obscene language
or makes an obscene gesture; or (6) creates a public
and hazardous or physically offensive condition by any
act which such person is not licensed or privileged to
do.
Conn. Gen. Stat. § 53a-181. “A person is guilty of inciting to riot when he
advocates, urges or organizes six or more persons to engage in tumultuous and
violent conduct of a kind likely to cause public alarm.” Conn. Gen. Stat. § 53a178. “A person is guilty of interfering with an officer when such person
obstructs, resists, hinders or endangers any peace officer, special policeman . . . ,
motor vehicle inspector . . . or firefighter in the performance of such peace
officer's, special policeman's, motor vehicle inspector's or firefighter's duties.”
Conn. Gen. Stat. § 53a-167a. Finally, “[a] person is guilty of assault of public
safety, emergency medical, public transit or health care personnel when, with
intent to prevent a reasonably identifiable peace officer [et al.] . . . from
performing his or her duties, and while such peace officer . . . is acting in the
23
performance of his or her duties, (1) such person causes physical injury to such
peace officer . . .” Conn. Gen. Stat. § 53a-167c. The Court finds that probable
cause for Huertas’ arrest existed for at least one – if not more – of these
violations based on the facts known to the officers at the time of Huertas’ arrest.
The officers involved in Huertas’ arrest were aware of the following relevant
facts and observations at the time of the incident: First, as detailed previously,
Mr. Huertas repeatedly disobeyed commands from the officers arresting Mr.
Garcia to step back and not involve himself in Mr. Garcia’s arrest. At the time the
first command was given Mr. Huertas was a mere eight to ten inches from the
officers. He then stepped back only two to three feet, after which the officers
continued to tell him to step back – a command that Huertas did not heed.
Second, as two officers then attempted to arrest Huertas, Huertas physically
resisted the officers’ attempts to have him step back toward the porch railing in
order to distance himself from Mr. Garcia and Garcia’s arresting officer (Officer
Jimenez). As a result, the officers were forced to push Mr. Huertas toward the
porch column, which he missed, causing him to fall backwards over the railing
and off the porch. Third, when he landed on the ground in the front yard of 358
Park Avenue, Mr. Huertas got to his feet and refused to follow the repeated
commands of the officers who instructed him to get on the ground in order to be
handcuffed. Mr. Huertas also physically resisted the officers’ attempts to place
him on the ground. He continued to question the officers about his own arrest
throughout the incident in the yard, which lasted approximately two minutes.
Fourth, this incident transpired in the midst of a larger crowd of 2500 to 3000
24
people who had attended the festivities attendant to the Puerto Rican Day Parade.
This larger crowd consisted in part of a crowd of people who had gathered on the
sidewalk and in the street in front of 358 Park Avenue and who were enjoying the
party’s music and using the space as a social area. There were more people than
traffic on Park Avenue and Bridgeport police officers had been ordered to
disperse the crowds along the street in order to restore traffic flow. Further,
thirty people attended the party on the private premises of 358 Park Avenue and
were agitated at the officers’ commands to lower the volume of the music.
Finally, two of the officers involved in the altercation with Mr. Huertas observed
that he appeared to be intoxicated. While Huertas denies that he was drunk, he
admits that he had consumed two beers between the time that the officers first
asked the party’s DJ to lower the music volume and 8:45 pm, a space of fifteen to
thirty minutes, and that he had consumed approximately ten beers in total
between 1:00 and 8:45 pm. The officers observed Huertas with a beer in his hand,
which he contends he placed on a table before initially intervening in Mr. Garcia’s
arrest. It is not unreasonable given these admissions and Mr. Huertas’ proximity
to the officers involved in this incident for the officers to have believed, at the
least, that Mr. Huertas had been drinking.
The totality of the above circumstances – known to the officers involved in
the incident at issue and even when taken in the light most favorable to the
Plaintiff – are enough to warrant the reasonable conclusion that Mr. Huertas,
when he attempted to intervene in Mr. Garcia’s arrest and refused to step back
more than approximately two feet despite repeated warnings to do so, was guilty
25
of obstructing or hindering Officer Jimenez (who was arresting Mr. Garcia) in the
performance of his duties. Further, because Huertas actively and physically
resisted the commands of the officers to step back toward the railing and later to
get on the ground after the officers instructed him that he was under arrest, all
while within the area in which a crowd of potentially thousands of people had
gathered, it was reasonable for the officers to believe that probable cause existed
that Huertas was resisting their attempts to perform their duties – namely, to
arrest Mr. Huertas – in violation of Conn. Gen. Stat. § 53a-167a. See, e.g., State v.
Peruta, 24 Conn. App. 598, 599 (Conn. App. Ct. 1991) (upholding conviction of
defendant pursuant to § 53a–167a where defendant refused to comply with
officer’s direct order to move further away from the scene of a fatal automobile
accident); Acevedo v. Sklarz, 553 F. Supp. 2d 164, 168 (D. Conn. 2008) (noting that
“Connecticut courts most frequently find illegal interference with a police officer
where the officer makes a direct request, which the defendant refuses to comply
with, and it is that refusal that hinders or impedes the course of the investigation
of the defendant or the performance of the officer's duties”); White v. Wortz, 66 F.
Supp. 2d 331, 334 (D. Conn. 1999) (finding probable cause to arrest pursuant to §
53a–167a where plaintiff “resisted the officers and struggled with them while they
were in line of duty in handcuffing him”); United States v. Crump, 62 F. Supp. 2d
560, 567 (D. Conn. 1999) (finding probable cause to arrest pursuant to § 53a–167a
where suspect resisted pat-down and struggled with officer); Cruz v. Reilly, CIV.
3:05-CV-1524(CFD), 2007 WL 2815151, at *4 (D. Conn. Sept. 26, 2007) (finding
probable cause to arrest pursuant to § 53a–167a where suspect stood and raised
26
his arm to separate officers from individual who officers desired to question and
where suspect repeatedly directed individual not to talk to police). Moreover,
passive resistance of the type that Huertas claims he offered may constitute a
violation of Conn. Gen. Stat. § 53a-167a. For instance, the district court in Herpel
v. Joyce, CIV. B:89-669(JAC), 1992 WL 336765 (D. Conn. Sept. 30, 1992) explained
that
The plain meaning of these terms [‘hindering’ or
‘obstructing’ pursuant to Conn. Gen. Stat. §53a-167a]
indicates that a person can violate this statute through
passive resistance as well as through active
obstruction. For that reason, a person could interfere
with the performance of an officer's duties merely by
refusing to leave an area that the officer was attempting
to seal off.
The refusal to leave constitutes an
interference because it creates a distraction that draws
the officer's attention away from his other duties at the
scene. This is particularly true where the officers at the
scene are greatly outnumbered by onlookers, and
evidence of the crime remains at the scene in the
custody of the officers.
Id. at *5 (holding that probable cause to arrest an individual for interfering with an
officer existed where “the plaintiff was asked three times to leave the crosswalk,
and each time he declined to do so—insisting, instead, on engaging the officers
in a discussion about his reasons for remaining there”). See also State v. Silano,
CR020180647, 2003 WL 949856, at *1 (Conn. Super. Ct. Feb. 24, 2003) (holding that
defendant “committed the crime of Interfering with an Officer when she offered
passive resistance to being arrested i.e. sitting down and putting her hands
behind her back,” and where her actions thus “hindered and delayed the police in
removing her from the premises and thereby caused the situation to escalate”).
Here, where the officers were outnumbered by the angry crowd which they were
27
trying to disperse, by arresting one of the people ostensibly responsible for
playing the music which was attracting them, Huertas’ refusal to heed several
commands to step away from the person being arrested constituted probable
cause for Plaintiff’s arrest on the charge of interfering with an officer.
In sum, where Plaintiff offers no challenge to the existence of probable
cause for his arrest and where such probable cause existed, summary judgment
must be granted in favor of Defendants on Plaintiff’s First Amendment retaliation
claim. See Golodner v. City of New London, 443 F. App’x 622, 624 (2d Cir. 2011)
(upholding district court’s dismissal of plaintiff’s First Amendment claim where
plaintiff’s arrests were based on probable cause and holding that “the existence
of probable cause is a complete defense to a claim of retaliatory arrest”);
Simmons v. Love, 3-09-CV-1218 WWE, 2012 WL 113665 (D. Conn. Jan. 12, 2012)
(dismissing First Amendment claim where plaintiff’s arrest was supported by
probable cause).
Although it is unnecessary to do so, the Court notes that the Plaintiff has
also failed to satisfy the third prong of his First Amendment claim. A “plaintiff
must show, with respect to the third element, that his First Amendment rights
were ‘actually chilled.’” Curley, 268 F.3d at 73. “[A]llegations of a subjective
‘chill’ are not an adequate substitute for a claim of specific present objective
harm or a threat of specific future harm.” Id. (quoting Laird v. Tatum, 408 U.S. 1,
13–14 (1972)). Here, Plaintiff has failed to provide any evidence in the record that
his First Amendment rights were actually chilled. Contrarily, Huertas admitted at
deposition that after his arrest he was placed into a police van with Mr. Garcia
28
and that the two spoke with one another about how they “had no idea how could
this be happening” and about the physical actions of the police officers during
their interaction with Mr. Huertas, which is “all [they] talked about until [they] got
to the precinct.” [Dkt. 28-1, Huertas Depo. p. 127]. Huertas further concedes that
when he arrived at the precinct the officers at the station asked him how he had
sustained various injuries, to which Huertas replied that their fellow officers had
caused the injuries. [Id.]. Huertas admits that he did not know any of the officers
to whom he spoke at the precinct. Given Huertas’ testimony and the lack of
evidence in the record of an actual chilling effect (aside from the conclusory
allegation in Plaintiff’s complaint that his First Amendment rights were violated),
the Court concludes that Huertas’ First Amendment rights were not chilled and
thus not violated. Huertas concedes that he spoke about the circumstances
surrounding his arrest with Mr. Garcia in the police van and with unknown
officers at the precinct. Given this apparent lack of reticence in speaking about
the incident or the officers’ conduct after his arrest, the Court cannot conclude
that Mr. Huertas’ First Amendment rights were actually chilled.
Accordingly, the Court GRANTS summary judgment in favor of Defendants
as to Plaintiff’s First Amendment claim.
b. Excessive Force and Qualified Immunity
Plaintiff alleges that Defendant Officers Ivanko’s and Jimenez’s conduct
in arresting him – including (1) the force used to push him toward the porch
railing, allegedly causing him to fall off the porch backwards and (2) the
29
subsequent blow to the face applied to subdue and arrest him in the front yard of
358 Park – violated the Fourth Amendment’s mandate against unreasonable
searches and seizures. The Defendant Officers seek dismissal on three grounds:
first, that their alleged use of excessive force was not unreasonable; second, that,
even if it was, they are entitled to qualified immunity; and third, that the claims
against Officer Jimenez must be dismissed as Plaintiff has neither alleged nor
provided any evidence in the record that Officer Jimenez applied force against
the Plaintiff during the incident in question.
Claims that law enforcement officers have used excessive force “in the
course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should
be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.”
Graham v. Connor, 490 U.S. 386, 395 (1989); see also Jones v. Parmley, 465 F.3d
46, 61 (2d Cir. 2006). “[T]he right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or
threat thereof to effect it.” Graham, 490 U.S. at 396. “Determining whether the
force used to effect a particular seizure is reasonable under the Fourth
Amendment requires a careful balancing of the nature and quality of the intrusion
on the individual's Fourth Amendment interests against the countervailing
governmental interests at stake.” Id. Accordingly, a court must examine “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. (internal quotation marks and citations omitted). The
30
reasonableness of a particular use of force must be judged objectively under the
totality of the circumstances and “from the perspective of a reasonable officer on
the scene, rather than with the 20/20 vision of hindsight.” Id.; see also Jones, 465
F.3d at 61 (“We are, of course, mindful that the reasonableness inquiry does not
allow us to substitute our own viewpoint; we must judge the officer's actions
from the perspective of a reasonable officer on the scene”). Furthermore, “[t]he
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.” Graham, 490 U.S. at 396-97. “Not every push
or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers . . . violates the Fourth Amendment.” Id. at 396 (internal quotation
marks and citations omitted).
It is well established that “[t]he doctrine of qualified immunity protects
government officials 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.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (internal quotation marks and citation omitted); Tracy v. Freshwater, 623
F.3d 90, 95-96 (2d Cir. 2010) (holding same). “Accordingly, when a defendant
official invokes qualified immunity as a defense in order to support a motion for
summary judgment, a court must consider two questions: (1) whether the
evidence, viewed in the light most favorable to the plaintiff, makes out a violation
of a statutory or constitutional right, and (2) whether that right was clearly
31
established at the time of the alleged violation.” Tracy, 623 F.3d at 96. Put
another way, “[a] police officer performing a discretionary function enjoys
qualified immunity from an excessive force claim unless (1) she ‘violated a
constitutional right’ (2) that was ‘clearly established’ at the time of the alleged
violation.” Hodge v. City of Long Beach, 425 F. App’x 33, 34 (2d Cir. 2011)
(internal quotation marks and citations omitted). It is within the sound discretion
of a federal court to analyze the two qualified immunity factors in the order of its
choosing, in light of the circumstances of the case at hand. Pearson, 555 U.S. at
236.
As to the “clearly established” prong of this analysis, “[t]he right the
official is alleged to have violated must have been ‘clearly established’ in a more
particularized, and hence more relevant, sense: The contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202 (2001) (overturned on
other grounds) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The
right to be free from the use of excessive force under the Fourth Amendment is
clearly established. Green v. Montgomery, 219 F.3d 52, 59 (2d Cir. 2000); Carey v.
Maloney, 480 F. Supp. 2d 548, 556 (D. Conn. 2007). Thus, the issue is whether it
was objectively reasonable for the officers to believe that their particular actions
did not violate Plaintiff’s right to be free from the excessive use of force. Further,
“the objective reasonableness test is met – and the defendant is entitled to
immunity – if officers of reasonable competence could disagree on the legality of
the defendant's actions.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995)
32
(internal quotation marks and citation omitted); Crowell v. Kirkpatrick, 400 F.
App'x 592, 594 (2d Cir. 2010) (“even if the right at issue was clearly established in
certain respects, ... an officer is still entitled to qualified immunity if ‘officers of
reasonable competence could disagree’ on the legality of the action at issue in its
particular factual context.”). Accordingly, “the question for the purposes of
qualified immunity is whether a reasonable officer could have believed that the
use of force alleged was objectively reasonable in light of the circumstances.”
Lennon, 66 F.3d at 425.
i. Excessive Force as to Officer Jimenez
Defendants argue that the excessive force claim against Defendant Officer
Jimenez must fail because Plaintiff has proffered no facts on the record that
Officer Jimenez applied any force against Plaintiff in effectuating his arrest. The
Plaintiff has neither directly addressed the validity of this argument in his
opposition nor withdrawn this claim, thus requiring the court to address the
claim.
The Court agrees that the claims against Jimenez must fail because the
record indicates that Defendant Jimenez did not apply the force complained of
against the Plaintiff. Plaintiff’s complaint alleges that Officer Jimenez entered the
porch of 358 Park Avenue, where “the defendants” arrested Wilmer Garcia. [Dkt.
1, Compl. ¶¶16-17]. The complaint further alleges that Huertas inquired why
Garcia was being arrested, to which “Jimenez then aggressively responded that
the plaintiff was also being arrested, and then grabbed the plaintiff by the shirt
33
while he was on the porch. . . . and then Defendant Jimenez pushed the plaintiff
off the porch.” [Id. at ¶¶16-17]. No evidence in the record provided to the Court,
however, supports the contention that Jimenez pushed Huertas off the porch. At
his deposition, Mr. Huertas testified that, after the third time Officer Jimenez –
who was arresting Mr. Garcia – told Huertas to step back, “two cops came up on
the porch and started pushing [Huertas] away” and told him that he was under
arrest. [Dkt. 24, Ds’ 56(a) Stmnt. ¶ 40; Dkt. 28-1, Huertas Depo. p. 100]. Huertas
further testified that these two officers then put their hands on him and forcefully
pushed him toward the porch column, which Huertas missed, causing him to
push up against the railing and fall over it backwards. [Dkt. 24, Ds’ 56(a) Stmnt. ¶
42; Dkt. 28-1, Huertas Depo. p. 104]. Thus, Huertas has expressly denied Officer
Jimenez’s physical involvement in his fall from the porch. Similarly, Officer
Jimenez noted in his Incident Report that he was the officer responsible for
placing Mr. Garcia into custody and further noted the presence of Officers Alterio
and Ivanko on the porch, reporting that “Huertas got into a physical altercation
with the two assisting Officers.” [Dkt. 23-1, Jimenez Incident Report]. Further,
Officer Alterio, who is not a defendant in this action, corroborated that he was the
officer who attempted to keep Mr. Huertas from falling off the porch. [Dkt. 23-3,
Alterio Incident Report]. Lastly, nothing in the record indicates that Officer
Jimenez was involved with subduing Mr. Huertas in the front yard of 358 Park
Avenue after he had fallen from the porch.
As noted, “[a] party opposing summary judgment cannot defeat the
motion by relying on the allegations in his pleading, or on conclusory statements,
34
or on mere assertions that affidavits supporting the motion are not credible. At
the summary judgment stage of the proceeding, Plaintiffs are required to present
admissible evidence in support of their allegations; allegations alone, without
evidence to back them up, are not sufficient.” Welch–Rubin v. Sandals Corp.,
No.3:03cv481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (internal quotation
marks and citations omitted). Here, Mr. Huertas relies only on the conclusory
allegations in his complaint that Officer Jimenez pushed him off the porch but
has failed to substantiate this claim with even a scintilla of evidence in the record
that would allow the Court or a jury to conclude that this allegation is true. In
fact, Mr. Huertas’ deposition testimony expressly conflicts with the allegation of
excessive force against Officer Jimenez. As there is no evidence in the record
upon which a jury could properly find in favor of Plaintiff – who has the burden to
present such evidence – summary judgment is proper. Fincher v. Depository
Trust and Clearance Co., 604 F.3d 712 (2d Cir. 2010).
Furthermore, although Plaintiff has argued in his opposition to the
Defendants’ motion for summary judgment that the force that propelled him over
the porch railing was excessive, he has failed to address the argument that
nothing ties Officer Jimenez to this use of force. Thus, this claim has been
abandoned and may be dismissed. See Coltin v. Corp. for Justice Mgmt., Inc.,
542 F. Supp. 2d 197, 206 (D. Conn. 2008) (“Federal courts may deem a claim
abandoned when a party moves for summary judgment on one ground and the
party opposing summary judgment fails to address the argument in any way.”)
35
(internal quotation marks and citation omitted); Ferraresso v. Town of Granby,
646 F. Supp. 2d 296, 305 (D. Conn. 2009) (same).
The Court, therefore, GRANTS summary judgment in favor of Defendant
Jimenez as to Plaintiff’s allegation of excessive force. This count is thus
dismissed as to Defendant Jimenez. See also Gallo v. Prudential Residential
Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (“the moving party may
obtain summary judgment by showing that little or no evidence may be found in
support of the nonmoving party's case”); Kern v. Heimerdinger, 3:09-CV-1000
PCD, 2010 WL 5069883 (D. Conn. Dec. 6, 2010) (citing Parker v. Sony Pictures
Entm't, Inc., 260 F.3d 100, 111 (2d Cir. 2001) (“A defendant need not prove a
negative when it moves for summary judgment on an issue that the plaintiff must
prove at trial. It need only point to an absence of proof on the plaintiff's part, and,
at that point, plaintiff must designate specific facts showing that there is a
genuine issue for trial.”)).
ii. Excessive Force as to Officer Ivanko
The Plaintiff alleges that genuine issues of material fact preclude summary
judgment on Plaintiff’s excessive force claim, in that Plaintiff alleges and
Defendants dispute that (1) Mr. Huertas was not intoxicated; (2) Huertas did not
provoke or physically confront the officers; (3) Huertas did not resist arrest; (4)
Huertas did not grab, punch, push or place in a headlock any of the officers
during the interaction on the ground in the front yard; and (5) Huertas did not
reach for any officer’s weapon. [Dkt. 29, P’s 56(a)(2) Stmnt. ¶11; Disputed Issues
36
of Material Fact ¶¶1-3, 5-7]. The Defendants argue that the officers’ use of force
was reasonable and justified in light of the circumstances and that, even if it was
not, the Defendant Officers are entitled to qualified immunity. The Court agrees
with the Defendant Officers and concludes that Officer Ivanko is entitled to
qualified immunity.
Here, the Defendants were detailed to work the Puerto Rican Day Parade,
which had drawn a large crowd and which the officers had been ordered to
disperse in order to restore traffic along Park Avenue to normal. At the time of
the incident, Officer Ivanko noted in his report that the crowd consisted of
“approximately 2500 to 3000 individuals in the streets blocking sidewalks
northbound on Park Avenue.” In addition to the thirty people who attended the
party at 358 Park Avenue, the music played by the party’s DJ – which emanated
from two speakers on the porch and projected toward the street – had drawn a
large crowd in the street in front of the residence. Huertas testified that the
crowd “stay[ed] [after the conclusion of the parade] and they dance[d] in the
street and dance[d] on the sidewalk” and that “there [were] more people than
traffic” on the street as the music was “keeping them there.” He further testified
that there were more people than cars in front of the home at that time and that it
would have been difficult if not impossible for cars to drive on that portion of
Park Avenue due to the crowd. [Dkt. 28-1, Huertas depo. pp. 47, 57]. Huertas also
testified that Fano, the person playing the music when the police stopped at the
house the first time, yelled at the police complaining about being told to lower the
volume of the music.
37
Huertas contends the officers who instructed Fano to turn down the music
returned to 358 Park a half hour after instructing Fano to turn down the music,
found the crowd still assembled in front of the house, walked up the steps and
onto the porch to arrest Mr. Garcia. He further testified that Mr. Garcia had left
the porch moments before, but that he did not know where he went or what he
did. [Dkt. 28-1, Huertas Depo. pp. 89-91]. He testified that the police came on the
porch and began to arrest Mr. Garcia for no reason and that no verbal
interactions took place between the officers and the party’s attendees.
Contrarily, the officers contend that Mr. Garcia hurled expletives in their direction
and yelled that they could do nothing to disperse the crowd, which resulted in the
crowd beginning to agree with Mr. Garcia and not wanting to disperse.
Regardless of whether any interaction took place between Mr. Garcia or any other
party attendee and the officers attempting to clear the streets, there is no dispute
that Mr. Huertas then attempted to intervene in Mr. Garcia’s arrest. Huertas
admits that he was physically only eight to ten inches from the officers
confronting Mr. Garcia at the time he attempted to intervene. He also concedes
that the officer attempting to arrest Mr. Garcia – Officer Jimenez – told him at
least three times to step back or he would be arrested. Huertas complied with
Jimenez’s second entreaty by backing up two to three feet, which the Court notes
is roughly an arm’s length, but did not comply with the officer’s further demands
to step back. In addition, Huertas admits that he continued to verbally challenge
the officer throughout, demanding to know why he was arresting Mr. Garcia and
insisting that Mr. Garcia had done nothing to warrant an arrest. After stepping
38
back two to three feet, Huertas still continued to question Jimenez and direct him
not to arrest Mr. Garcia. Jimenez continued to advise Mr. Huertas to step back
and not get involved or he would be arrested as well.
By the third time Officer Jimenez told Huertas to step back and not involve
himself, Huertas admits that two officers approached him and told him that he
was under arrest. Huertas questioned these two officers about the reasons for
his arrest and, as they attempted to handcuff him, did not give his consent for
them to do so. According to Huertas, the officers then pushed him toward the
porch column in order to separate him from the area where Officer Jimenez was
arresting Mr. Garcia. Huertas, who did not want to move in that direction,
contends that he did not physically resist arrest, but contrarily testified that he
did not voluntarily take a step backwards toward the railing; instead, he admitted
that the officers continued to have to physically push him toward the railing at the
same time that he was resisting their efforts to do so. Huertas missed the porch
column and was pushed instead against the porch railing, where he felt someone
exerting pressure on his legs so that he would not fall over the railing. Officer
Alterio’s Incident Report states that he held Huertas from falling over until an
unknown female approached him from behind and began to punch him in the
back, forcing Alterio to let go of Huertas. Huertas admits that he saw his fiancée
approach the officers from behind but did not see what she did because he fell
immediately thereafter. [Dkt. 28-1, Huertas Depo. pp. 76, 79].
After Huertas landed in the front yard of 358 Park, he rose to his feet.
Again, despite contending that he did not resist the officers’ attempts to arrest
39
him, Huertas concedes that he did not comply with the officers’ directives for him
to get on the ground and resisted their physical efforts because, as he testified, “I
feel they could have cuffed me where I was standing. Why should I get on the
ground?” The interaction with the officers in the yard lasted approximately two
minutes, during which time the officers repeatedly told him to get on the ground
and kneed and elbowed Huertas in an attempt to make him go to the ground from
a standing position. Huertas admits that, at one point during the interaction, his
left arm came into contact with the mid-back region of one of the officers, just
above his belt, and at which point he exerted pressure on the officer. In either
event, Huertas admits that after falling off the porch he continued to refuse to
comply with the officers’ directives and both physically and verbally impeded
their attempts to subdue him.
Huertas alleges that as he was resisting the officers’ attempts to force him
to the ground, Officer Ivanko leapt from the porch and struck him near his right
eye, causing the injuries of which he complains. Huertas was still standing at the
time he was struck in the face. Contrarily, Officer Ivanko alleges that he was on
the ground before this punch was thrown and that Huertas was actively engaging
him and had put him in a headlock, which he was able to reverse. Ivanko alleges
that Huertas was attempting to remove his service weapon and that he struck Mr.
Huertas in his right shoulder facial area while the two were still entangled. Officer
Alterio, who is not a defendant in this action, reported that it was he who jumped
from the porch and struck Huertas in the face in order to make Huertas let go of
Officer Ivanko.
40
The force used by an officer against a suspect who is attempting to resist
arrest, threatening, or assaulting an officer “must be reasonably related to the
nature of the resistance and the force used, threatened, or reasonably perceived
to be threatened, against the officer.” Sullivan v. Gagnier, 225 F.3d 161, 166 (2d
Cir. 2000). Based on the totality of the circumstances, it was objectively
reasonable for the officers on the porch (one of whom may have been Ivanko) to
believe that pushing Mr. Huertas toward the porch railing did not violate Mr.
Huertas’ right to be free from the use of excessive force. Likewise, it was
objectively reasonable for Officer Ivanko to believe that striking Mr. Huertas in the
face area during a physical confrontation in which Mr. Huertas was resisting
arrest did not violate Mr. Huertas’ rights. This is particularly true under the
circumstances present here, where the police were substantially outnumbered by
a disgruntled crowd sympathetic to the expressed interests of the person being
arrested, as the crowd wanted the music to continue. Thus, the officers have
committed no constitutional violation and are entitled to qualified immunity.
The record plainly indicates that, while he was barely an arm’s length from
the officers on the porch, Mr. Huertas repeatedly ignored the officers’ commands
to step back further and not involve himself in Mr. Garcia’s arrest, even despite
the officers’ warnings that Huertas himself would be arrested if he did not
comply. In response to Huertas’ repeated noncompliance, the officers (including
Officer Alterio and possibly Officer Ivanko)7 attempted to arrest Huertas, who
7
The Court notes that although Huertas alleges that one or two officers were
on the porch effecting the arrest of Mr. Garcia and that two other officers stepped
onto the porch to arrest Huertas, he failed to identify any of these officers at his
41
then actively resisted their efforts to physically distance him from Mr. Garcia,
forcing the officers to continually push him in the direction of the porch railing.
Even if the force used to push Huertas in the direction of the railing caused
Huertas to fall over the railing, Huertas’ active refusal to move in the direction
ordered by the officers led to the officers’ need to physically coerce him to move.
In order to force Mr. Huertas to comply with their directive to move away from Mr.
Garcia, the amount of force used by the officers needed to exceed the
countervailing force exerted by the defendant. In the face of a suspect resisting
arrest and physically resisting the officers’ entreaties to step back, it is not
unreasonable for the officers on the porch to have believed that pushing Huertas
deposition. Based on the record, the Court may infer that Officers Alterio and
Jimenez were present on the porch; Officer Jimenez was Mr. Garcia’s arresting
officer and Officer Alterio admits that he attempted to arrest Mr. Huertas on the
porch and subsequently attempted to hold Huertas from falling over the porch
railing. Officer Alterio (who is not a defendant in this action) noted that Officer
Ivanko was on the porch as an assisting officer, although Officer Ivanko’s Use of
Force Report does not necessarily place him on the porch. Ivanko and Alterio
both reported that Huertas engaged Ivanko on the ground once Huertas had
fallen from the porch. Further, Officer Alterio reported that he was the officer who
jumped from the porch and struck Mr. Huertas in the face, although Huertas
contends that Ivanko jumped from the porch and struck him. Although Huertas’
account of which officer jumped from the porch and struck him in the face differs
from the accounts of the officers, the Court – as noted previously – finds it
unnecessary to untangle the specifics of which officer jumped from the porch
and threw the suspect punch. Because the Court finds that this force was
objectively reasonable, and because even if it were not the officer who threw it
would be entitled to qualified immunity, and lastly because Officer Ivanko has
admitted striking Huertas in the face while he was engaged with Huertas on the
ground, the Court finds it unnecessary to delve further into the identity of the
officer who jumped from the porch and struck Huertas. As Defendant Officer
Ivanko is the only remaining defendant in this action, the only uses of force at
issue in this action are (1) the force allegedly used by Ivanko in pushing Huertas
toward the railing of the porch, and (2) the punch thrown by Officer Ivanko
(regardless of whether Ivanko jumped off the porch in order to deliver the blow).
42
in the direction of the railing was necessary to overcome Huertas’ resistance and
to effectuate his arrest.
Furthermore, the officers’ actions speak to a level of urgency that
precludes a finding for the Plaintiff. Officer Jimenez was engaged in effectuating
the arrest of Mr. Garcia on the porch of a private residence at which a party with
thirty attendees was in effect and at which music was playing from two speakers
placed on the porch. The party was in a neighborhood awash in 2500 to 3000
people, many of whom were milling about in the street or on the sidewalks, and a
large crowd of whom were directly in front of 358 Park Avenue and were impeding
traffic. The potential danger inherent in such a large crowd would have militated
against a lazy approach to apprehending Mr. Garcia and, later, Mr. Huertas. To
quickly and effectively arrest Mr. Garcia such that the officers would not draw the
attention or ire of any hostile elements in such a large crowd, Mr. Huertas – who
was challenging the officers’ actions and openly resisting their commands to
step back – needed to be distanced from Mr. Garcia’s immediate area. While
“[p]ushes and shoves, like other police conduct, must be judged under the
Fourth Amendment standard of reasonableness,” courts in this circuit have held
that pushing a suspect in order to effectuate an arrest does not necessarily
constitute excessive force. Saucier, 533 U.S. at 209 (affirming grant of qualified
immunity where officer shoved into police van a suspect who approached vice
president in order to protest, and where officer did not know the extent of threat
posed nor number of individuals potentially involved in threat); Massaro v. Town
of Trumbull, 525 F. Supp. 2d 302, 308 (D. Conn. 2007) aff'd sub nom. Massaro v.
43
Jones, 323 F. App'x 68 (2d Cir. 2009) (granting qualified immunity to officer where,
although the officer “may not have needed to push [the suspect] to the ground in
order to arrest him, [the officer] was faced with a tense and uncertain situation
involving a convicted felon and had to make a split-second decision”); Elufe v.
Aylward, 09-CV-458 KAM LB, 2011 WL 477685 (E.D.N.Y. Feb. 4, 2011) (granting
qualified immunity to defendant officers who shoved suspect against window
where suspect admitted he was kicking his feet during arrest and where suspect
had run from scene of crime with knife).
It was thus reasonable for the officers to believe that pushing Mr. Huertas
away from Officer Jimenez and Mr. Garcia while Mr. Huertas was actively
protesting Mr. Garcia’s arrest and refusing to move away from him and the officer
as directed did not constitute a violation of Mr. Huertas’ rights. Although it is
doubtful that Huertas has shown that Officer Ivanko used excessive force in
attempting to arrest him on the porch, even if the push toward the railing were
excessive, such push did not violate a clearly established right such that a
reasonable officer would have known that this conduct violated Huertas’ Fourth
Amendment rights. Defendant Ivanko is entitled to qualified immunity on
Plaintiff’s charge that he used excessive force in pushing the Plaintiff while on
the porch.
The Court likewise holds that Officer Ivanko is entitled to qualified
immunity with respect to the blow he struck to plaintiff’s facial/shoulder area.8
8
While Huertas contends that he was elbowed and kneed during the
interaction with officers, he has only attributed the strike to his face to Officer
44
After falling from the porch, Huertas rose to his feet and for two minutes actively
physically resisted several unnamed officers’ attempts to put him on the ground
despite their repeated commands for Huertas to get down from a standing
position. Huertas alleges that the officers were only able to bring him to the
ground after Officer Ivanko struck him in the face, where the officers then
handcuffed him and completed his arrest. Furthermore, as described previously,
the yard incident occurred in the midst of a larger crowd of between 2500 and
3000 people on Park Avenue which the officers were attempting to clear,
approximately 30 of whom were on the porch where the Defendant Officer were
attempting to arrest Mr. Garcia, and another large crowd of whom were on the
sidewalk and in the street adjacent to the front yard of that residence.
Additionally, Huertas testified that the home’s neighbors “were surrounding the
officers, surrounding the porch” during the altercation, and “there was loud
screaming and hollering.” [Dkt. 28-1, Huertas Depo. p. 111].
In addition, the Court notes that although Huertas contends that he was
not intoxicated, he admits that alcohol was provided for the guests at the party,
that he had consumed ten beers between 1:00 pm and 8:45 pm, that he had
consumed two of those beers in the time between when the party’s DJ turned the
music down and when the Bridgeport police officers entered the yard of 358 Park
the second time (a span the parties concede was only about fifteen to thirty
minutes), that he had put his alcoholic beverage down on a table immediately
Ivanko, who is the only defendant with claims remaining in this action. Because
Huertas does not contend that Ivanko caused any further physical injury, this
Court will only consider Officer Ivanko’s strike to Huertas’ facial/shoulder area in
analyzing Huertas’ claim of excessive force dealt to him while in the yard.
45
before he intervened in Mr. Garcia’s arrest, and that he and his fiancée had an
agreement that she would drive the couple home in anticipation of Mr. Huertas
drinking more than would she. Coupled with Huertas’ admission that he was
initially only eight to ten inches from the officers on the porch while he was
attempting to intervene in Mr. Garcia’s arrest, plus Huertas’ necessary proximity
to the officers in the yard, it was reasonable for the officers at the scene to
believe that Mr. Huertas was intoxicated or, at least, not sober.
As with the push used against a resisting Mr. Huertas on the porch,
Ivanko’s blow to the Plaintiff’s facial/shoulder area was not unreasonable given
that (1) Huertas rose to his feet and actively resisted going to the ground despite
the officers’ commands to do so because he felt the officers could have
handcuffed him standing up,9 thus making it difficult if not dangerous to handcuff
him; (2) there was a large crowd in the immediate vicinity of 358 Park Avenue,
increasing the officers’ urgency and the potential for danger to either Huertas, the
officers, or the public; (3) Huertas immediately prior had physically resisted the
officers’ commands on the porch; (4) Officer Ivanko claimed that Huertas was
actively reaching for Ivanko’s service weapon; and (5) Huertas admitted that
during the altercation his left forearm exerted pressure on an officer’s mid-back
area, near the belt. Ivanko’s single strike to Huertas’ facial/shoulder area, which
was the catalyst that forced Huertas to the ground and terminated the altercation,
was thus reasonable based on the circumstances confronting Officer Ivanko at
9
The Court notes that “[a] person being placed under arrest has no right to
prescribe the conditions under which he will comply with an officer's orders [.]”
Crowell, 667 F. Supp. 2d at 410, aff'd, 400 F. App'x 592 (2d Cir. 2010) (internal
quotation mark and citations omitted).
46
the time and in light of the force necessary to bring him to the ground. See, e.g.,
Husbands ex rel. Forde v. City of New York, 335 F. App'x 124, 129 (2d Cir. 2009)
(“One punch causing no injury to a suspect who is resisting being put in
handcuffs does not rise to the level of excessive force.”); Rafter v. Bank of Am.,
04 CIV. 3341 JSRKNF, 2009 WL 691929 (S.D.N.Y. Mar. 12, 2009) (concluding that it
was not objectively reasonable for officer effecting arrest of non-threatening bank
customer who neither attempted to flee nor actively resisted arrest to strike the
arrestee about the head; but also granting qualified immunity to officer); Jaffe v.
Fitzgerald, CV-06-0317 DGT/WDW, 2009 WL 804740 (E.D.N.Y. Mar. 27, 2009)
(granting qualified immunity to officers who physically tripped suspect in order to
bring her to the ground where suspect physically resisted officers, was
attempting to disobey a court order instructing her that she could not have
contact with her son, and was acting in a disruptive manner). See also Massaro,
525 F. Supp. 2d 302, supra, and Elufe, 2011 WL 477685, supra.
The Court therefore finds that Officer Ivanko is entitled to qualified
immunity. Because Mr. Huertas actively and physically resisted arrest, the
Bridgeport police officers involved in this incident made the determination that
they needed to use force to subdue and seize Mr. Huertas. Given the sheer
volume of the crowd of people gathered on Park Avenue and the potential for the
crowd to turn against the police officers, who were outnumbered, posing a
danger to the officers and to the public, it was not objectively unreasonable for
Defendant Ivanko to conclude given the totality of the circumstances that striking
Mr. Huertas in the face did not violate Mr. Huertas’ Fourth Amendment rights. At
47
the very least, officers of reasonable competence could disagree on the legality
of Officer Ivanko’s actions under these circumstances.
Furthermore, “claims that an officer made a reasonable mistake of fact that
justified the use of force are considered” at the qualified immunity stage of an
excessive force analysis. “The protection of qualified immunity applies
regardless of whether the government official's error is a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and fact.”
Pearson, 555 U.S. at 231 (internal quotation marks and citations omitted). Here,
Officer Ivanko reported that Huertas physically interacted with him in the front
yard of 358 Park after Huertas had fallen off the porch. Although Huertas denies
doing so, Ivanko reported that that Huertas had put him in a headlock and, while
the two were entangled, was attempting to remove Ivanko’s service weapon.
Ivanko struck Huertas in the in the right shoulder facial area before other officers
came to his assistance, where Huertas was then subdued and handcuffed.
Huertas denies reaching for Officer Ivanko’s service weapon but admits that he
exerted force with his left forearm on the “mid back” area of one of the officers,
above the belt. He testified “I remember putting my arm out and, yeah, grabbing
on to one of [the officers in the mid-back region]. . . . Because they were pushing
me so hard - - I just felt my arm. I didn’t really grab him.”
Given Huertas’ admission that his forearm came into contact with the belt
area of the officer with whom he was engaged on the ground, the Court
concludes that it was a reasonable mistake of fact, given the circumstances and
the observations of the Defendant Officer during this incident (enumerated
48
above), for Officer Ivanko to conclude that Mr. Huertas was attempting to remove
his service revolver. Accordingly, reasonable officers would also agree that
Huertas – if he had indeed gained possession of Ivanko’s service weapon – would
have posed an immediate danger to himself, to the officers on the ground, to the
party-goers, and to the larger crowd of people gathered around the residence. In
fact, a reasonable officer could have concluded that Mr. Huertas, if in fact he was
attempting to remove an officer’s service weapon based upon the location of
Huertas’ forearm on the officer’s belt area, posed an immediate threat of death or
serious bodily injury to the officer or to others in the nearby crowd, thus meriting
the use of deadly force, especially if the officer had reason to velieve the person
was intoxicated and thus had reduced inhibitions. Cowan ex rel. Estate of
Cooper v. Breen, 352 F.3d 756, 762 (2d Cir. 2003) (“an officer's decision to use
deadly force is objectively reasonable only if the officer has probable cause to
believe that the suspect poses a significant threat of death or serious physical
injury to the officer or others”). Thus, given the foregoing circumstances and the
officer’s reasonable beliefs, Defendant Ivanko’s decision to strike Huertas in the
face was at best objectively reasonable and at worst a reasonable mistake of fact
nonetheless entitling Ivanko to qualified immunity. See, e.g., Greenwald v. Rocky
Hill, No. 3:09cv211(VLB), 2011 WL 4915165 (D. Conn. Oct. 17, 2011) (officers were
entitled to qualified immunity where their belief that suspect was aiming shotgun
at them was a reasonable mistake of fact); Cowan, 352 F.3d at 761 (qualified
immunity analysis acknowledges that “reasonable mistakes can be made as to
the legal constraints on particular police conduct” and “ensures that all but the
49
plainly incompetent or those who knowingly violate the law are protected from
suit”).
The Court GRANTS summary judgment in favor of Defendant Ivanko on
Plaintiff’s excessive force claim.
c. State Law Claims for Reckless Infliction of Emotional Distress,
Assault, Battery, and Invasion of Privacy
Having granted summary judgment as to the federal law claims against the
Defendants, the Court declines to exercise its supplemental jurisdiction over the
Plaintiff’s state law claims. “Supplemental or pendent jurisdiction is a matter of
discretion, not of right. Thus, the court need not exercise supplemental
jurisdiction in every case.” Nicholson v. Lenczewski, 356 F. Supp. 2d 157, 165-66
(D. Conn. 2005) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 715-26 (1966)).
“The federal court should exercise supplemental jurisdiction and hear a state
claim when doing so would promote judicial economy, convenience and fairness
to the litigants. The court should decline to exercise supplemental jurisdiction,
however, when state law issues would predominate the litigation or the federal
court would be required to interpret state law in the absence of state precedent.
In addition, the court may decline to exercise supplemental jurisdiction where the
court has dismissed all claims over which it has original jurisdiction.” Id. (citing
28 U.S.C. § 1367(c)(3)); Carnegie Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988) (“in the usual case in which all federal-law claims are eliminated before
trial, the balance of factors to be considered under the pendent jurisdiction
50
doctrine-judicial economy, convenience, fairness, and comity-will point toward
declining to exercise jurisdiction over the remaining state-law claims”).
Because this Court has granted summary judgment for Defendants Ivanko
and Jimenez on Plaintiff’s 42 U.S.C. § 1983 claims, over which it has original
jurisdiction, this Court declines to exercise supplemental jurisdiction over
Huertas’ remaining claims, all of which are state law claims. See Zito v. Fried,
Frank, Harris, Shriver & Jacobson LLP, 09 CIV. 9662, 2012 WL 2333303 (S.D.N.Y.
June 19, 2012) (citing Purgess v. Sharrock, 33 F.3d 134, 138 (2d. Cir.1994) (“Under
28 U.S.C. 1367(a)(c), a Court has the discretion to exercise supplemental
jurisdiction over pendent state law claims. If, however, ‘the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional sense, the
state claims should be dismissed as well.’”)).
V.
Conclusion
For the foregoing reasons, Defendants’ Motion for Summary Judgment is
GRANTED as to Plaintiff’s federal law claims. The Court declines to exercise
supplemental jurisdiction over Plaintiff’s state law claims. The Clerk is directed
to close this file.
IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: March 25, 2013
51
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