Arnold v. Buck, et al

Filing 101

ORDER granting in part and denying in part 73 Motion for Summary Judgment. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on August 2, 2013. (Butler, Ayanna)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

WILLIAM ARNOLD,
Plaintiff,
v.
DAVID BUCK, et al.,
Defendants.

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CASE NO. 3:11-cv-1343 (VLB)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Doc. #73]
The plaintiff, William Arnold, brings claims against the defendants, Meriden
Police Officers David Buck and Jeffrey Selander, for use of excessive force
during his arrest. The defendants have filed a motion for summary judgment on
the grounds that their actions were reasonable and that they are protected by
qualified immunity.1 For the reasons that follow, the defendants’ motion is
granted in part.
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I. Standard of Review
A motion for summary judgment may be granted only where there are no

issues of material fact in dispute and the moving party is therefore entitled to
judgment as a matter of law. See Rule 56(a), Fed. R. Civ. P.; In re Dana Corp., 574
F.3d 129, 151 (2d Cir. 2009). The moving party may satisfy his burden “by
showing–that is pointing out to the district court–that there is an absence of

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The court has considered the defendants’ motion for summary judgment
and supplemental memorandum and the plaintiff’s three memoranda in
opposition to the motion for summary judgment.
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evidence to support the nonmoving party’s case.” PepsiCo, Inc. v. Coca-Cola
Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam) (internal quotation marks and
citations omitted). Once the moving party meets this burden, the nonmoving
party must set forth specific facts showing that there is a genuine issue for trial.
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). He must present such evidence
as would allow a jury to find in his favor in order to defeat the motion for
summary judgment. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
Merely verifying the allegations of the complaint in an affidavit, however, is
insufficient to oppose a motion for summary judgment. Zigmund v. Foster, 106 F.
Supp. 2d 352, 356 (D. Conn. 2000) (citing cases).
When reviewing the record, the court resolves all ambiguities and draws all
permissible factual inferences in favor of the party against whom summary
judgment is sought. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 274 (2d
Cir. 2009). If there is any evidence in the record on a material issue from which a
reasonable inference could be drawn in favor of the nonmoving party, summary
judgment is inappropriate. Security Ins. Co. of Hartford v. Old Dominion Freight
Line Inc., 391 F.3d 77, 83 (2d Cir. 2004). However, the existence of a mere
“scintilla” of evidence supporting the plaintiff’s position is insufficient to defeat a
motion for summary judgment. Harvey v. Homebound Mortgage, Inc., 547 F.3d
158, 163 (2d Cir. 2008).
II. Facts2

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The facts are taken from the parties’ Local Rule 56(a) Statements and the
exhibits submitted in support of and in opposition to the motion for summary
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The defendants are officers with the Meriden Police Department. On
November 27, 2009, they received a report that the plaintiff was a suspect in a
domestic tire slashing incident. The officer investigating the incident sent out a
description of the suspect and indicated that he was driving a white Ford
Expedition. The defendants went to Unit 31 of a condominium complex, the
address provided to them for the plaintiff. When no one answered the door and
the unit appeared unoccupied, the defendants returned to their vehicles and
started to leave the condominium complex.
As they were leaving the driveway, each defendant observed a man, the
plaintiff, fitting the suspect’s description. Defendant Selander, in the second car,
stopped the plaintiff. Defendant Buck, backed up and exited his vehicle to assist
defendant Selander. At this time, the plaintiff was carrying keys, a cell phone and
a knife. When defendant Selander stopped him, he put the items in his pockets.
Defendant Selander told the plaintiff that he matched the physical
description of a suspect and directed him to the front of the police cruiser. The
plaintiff was agitated and questioned the officers. The defendants state that the
plaintiff eventually followed their instructions and placed his hands on the
cruiser’s hood but did not keep them there. The plaintiff states that he never
complied with this instruction.
Defendant Selander prepared to pat down the plaintiff. Before he could do
that, the plaintiff removed his hands from the hood of the cruise. The defendants
state that the plaintiff repeatedly attempted to put his hands in his pockets.

judgment.
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Defendant Buck lightly pushed on the plaintiff to get him to return his hands to
the cruiser. The plaintiff stated in his deposition that he kept his hands raised at
the level of the defendants’ heads at all times.
The plaintiff stepped back from the cruiser and started running away. The
defendants chased the plaintiff with drawn tasers. Defendant Selander fired his
taser at the plaintiff. The plaintiff was wearing a “puffy coat.” The taser hit the
plaintiff in the back of his coat and had no effect. Defendant Selander then
abandoned his taser and drew his pistol. Both defendants continued to chase the
plaintiff.
Defendant Buck fired his taser toward the plaintiff’s buttocks. The plaintiff
stumbled, but did not stop. The plaintiff had reached the middle of the road.
Defendant Selander shot the plaintiff in the leg. The plaintiff spun around but did
not fall to the ground. Defendant Buck again fired his taser. When the taser did
not stop the plaintiff, defendant Selander shot him a second time.
III. Discussion
A.

Use of Excessive Force

The use of excessive force by police officers prior to arraignment violates
the Fourth Amendment’s prohibition against unreasonable seizures. See Graham
v. Connor, 490 U.S. 386, 395 (1989). To prevail on his excessive force claim
against the defendants, the plaintiff must show that the amount of force used was
objectively unreasonable, either as to when or how the force was applied, and
that, as a result of the use of force, he suffered some compensable injury. See
Graham at 396; Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004).
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“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather that with the 20/20 vision
of hindsight.” Graham, 490 U.S. at 396. The inquiry must consider that officers
often are required to make split-second decisions in rapidly changing situations
when determining appropriate conduct, including the amount of force required.
See id. at 397. Thus, the court must consider the totality of the circumstances
and balance “the nature and quality of the intrusion on an individual’s Fourth
Amendment interest against countervailing governmental interests at stake.” Id.
at 396 (internal quotation marks omitted; citation omitted). In performing this
analysis, the court considers the severity of the crime underlying the arrest,
whether the suspect poses an immediate threat to the safety of the officers or
others, and whether the suspect is actively resisting arrest or attempting to flee.
See id.; Jones v. Parmley, 465 F.3d 46, 61 (2d Cir. 2006) . Thus, for the court to
grant the defendants’ motion for summary judgment, it must conclude that there
is no genuine issue of material fact regarding the objective reasonableness of the
force used by the defendants.
1.

Deadly Force

The plaintiff contends that defendant Selander used deadly force when he
shot the plaintiff twice. Defendant Selander argues that his use of force was
objectively reasonable.
When determining objective reasonableness in a claim involving the use of
deadly force, the court considers only “the officer’s knowledge of circumstances
immediately prior to and at the moment that he made the split-second decision to
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employ deadly force.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36-37
(2d Cir. 2003). “It is not objectively reasonable for an officer to use deadly force
to apprehend a suspect unless 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.” Id. at 36. “The objective reasonableness test is met if ‘officers
of reasonable competence could disagree’ on the legality of the defendant's
actions.” Salim v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996) (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)).
In other cases in this district, police officers using deadly force have been
granted summary judgment. See Greenwald v. Town of Rocky Hill, No.
3:09cv211(VLB), 2011 WL 4915165 (D. Conn. Oct. 17, 2011); Estate of Chipwata v.
Rovinetti, No. 3:02CV858(DJS), 2004 WL 722166 (D. Conn. Mar. 31, 2004).
In Chipwata, the police officer went to an apartment in response to a report
that a man was armed with a knife and that a woman had been injured. When he
arrived, he asked the suspect to show him the knife and to show his hands. The
suspect did not immediately comply with the order. The suspect then rose, went
into the kitchen, grabbed the knife and pointed it at the police officer. The parties
disagree whether the suspect was pointing the knife at the police officer in a
threatening manner or holding it out to give it to the officer. Both sides agree,
however, that the suspect followed the police officer out of the apartment with the
knife blade pointing toward the officer. The police officer and a neighbor stated
that the suspect advanced toward the officer and ignored orders to drop the
knife. The police officer shot the suspect once before he raised the knife and at
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least twice more afterwards. The suspect was killed. 2004 WL 722166, at *1-2. In
light of the undisputed facts, the court concluded that a reasonable police officer
could have believed that he was about to be attacked by the suspect of a violent
assault. Thus, the court found the police officer’s actions objectively reasonable.
Id. at *6.
In Greenwald, the plaintiff’s girlfriend reported to police that he was
planning to commit suicide. The police found the plaintiff in his backyard holding
a loaded rifle. The police officers stated that, when they attempted to speak to
the plaintiff, he pointed the rifle at them, ran deeper into the yard toward a large
parking lot in the next property and failed to comply with orders to drop the rifle.
The plaintiff stated that the police were shining a light into his face and speaking
at the same time, so he could not see any police identification or hear what was
said. The police stated that when they finally located the plaintiff he was running
toward them with the rifle pointed at them. When the plaintiff did not comply with
an order to drop the rifle, one officer fired two shots at the plaintiff. The plaintiff
dropped to the ground and was secured. He did not have any gunshot wounds.
The plaintiff states that he never directly pointed the rifle at the police officers
and never intended to harm anyone but himself. 2011 WL 4915165, at *1-4. The
court concluded that a reasonable officer could not comprehend what the plaintiff
was thinking and would understand that the plaintiff was an immediate threat to
the safety of the officers and others. Thus, the court determined that the officer
acted reasonably in responding to the threat. Id. at *11.
The defendants argue that if the record blatantly contradicts the plaintiff’s
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verison of the facts, the court should adopt the record version of the facts when
ruling on a motion to for summary judgment. See Scott v. Harris, 550 U.S. 372,
380-81 (2007) (district court should have credited verison of events on videotape
rather than accept the plaintiff’s contrary statements). Here, however, neither
party has submitted a videotape of the incident.
Defendant Selander was aware that the plaintiff was suspected of slashing
the tires on his girlfriend’s car a short time earlier. The plaintiff expounds on his
deteriorating relationship with his girlfriend and the reasons why she would have
fabricated the claim. This is irrelevant to the defendants’ understanding of the
situation they encountered. The plaintiff has provided no evidence that either
defendant was aware of the history of his relationship with his girlfriend.
The plaintiff and defendants present contradictory descriptions of the
incident. The plaintiff stated in his complaint that he had a knife, albeit closed, in
his hand as he approached the defendants. See Doc. #1 at 6, 8. When he was
stopped, he put the knife in his pocket. See Doc. #95-1 at 51, 53, 67. Defendant
Selander informed the plaintiff that he matched the description of a suspect they
were seeking and directed the plaintiff to go to the front of his cruiser and place
his hands on the hood. The defendants state that the plaintiff kept removing his
hands from the hood and trying to reach into his pockets. The plaintiff stated in
his deposition that he never placed his hands on the hood; he held them at the
height of the defendants faces. He concedes that he repeatedly challenged the
defendants about why he was stopped. See Doc. #95-1 at 49-50, 54, 55, 56.
Although one civilian witness appears to support the defendants’ verison
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of events, that the plaintiff was brandishing a knife, the witness states in the
transcript of his interview with the police that he saw an object in the plaintiff’s
hand, but could not positively identify it as a knife. See Doc. #73-5 at 9. Later,
after describing numerous orders by the defendants to drop the knife, he speaks
of the plaintiff brandishing a knife. See Doc. #73-5 at 10. Two other civilian
witnesses to at least part of the incident do not mention seeing a knife. See Doc.
#85-4 at 19-21, 22-25.
Defendant Selander states that, at the time he used deadly force, the
plaintiff was advancing toward defendant Buck brandishing a knife. When the
plaintiff did not comply with repeated orders to drop the knife, defendant
Selander fired the first shot. See Selander Aff. ¶¶ 18-22, Doc. #73-4 at 3-4. The
plaintiff states that he had a cell phone in his hand and that he was trying to
record the incident. See Doc. #85-3 at 35; Doc. #95-1 at 65. The plaintiff spun
around but did not stop. Defendant Buck deployed his taser but it did not cause
the plaintiff to fall to the ground. When the plaintiff continued to advance,
defendant Selander fired the second shot. See Selander Aff. ¶ 23. The plaintiff
states that the electrical charge from the taser prevented him from falling to the
ground. See Doc. #85-3 at 36; Doc. #95-1 at 70-71.
Based on the evidence submitted by the parties, the court concludes that
there is a genuine issue of material fact regarding whether the plaintiff was
brandishing a knife at the time defendant Selander fired his pistol. The record
does not blatantly contradict the plaintiff’s verison of events. Accordingly, the
court cannot, at this time, determine whether defendant Selander’s actions were
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objectively reasonable.
2.

Nonlethal Force

The plaintiff also argues that the defendants used excessive force against
him by repeatedly using their tasers, an exercise of nonlethal force. The
defendants contend that the use of tasers was objectively reasonable as a means
to effect his arrest and protect themselves from serious injury. As with the use of
deadly force, the court applies the objective reasonableness test in evaluating a
Fourth Amendment claim for use of excessive nonlethal force. See Scott v.
Harris, 550 U.S. at 383.
Courts considering the use of tasers have found no constitutional violation
where the suspect was resisting the police officers. For example, in Crowell v.
Kirkpatrick, 667 F. Supp. 2d 391 (D. Vt. 2009), the plaintiffs were unlawfully
trespassing on private property as a protest over their mistaken belief that the
property would be commercially developed. The plaintiffs ignored repeated
orders to leave and chained themselves to a barrel they had brought onto the
property. After repeated warnings, the police officers used tasers to get the
plaintiffs to disengage from the barrel. Id. at 398-400. The court found that the
officers acted reasonably in using tasers as a last resort to arrest suspects who
are resisting and ignoring lawful orders compliance with which would have
obviated the need for force. Id. at 409-10. See also, e.g., Meyers v. Baltimore
County, Md., ___ F.3d ___, 2013 WL 388125, at *6 (4th Cir. Feb. 1, 2013) (holding
that use of taser three times against suspect acting erratically and advancing on
police in confined space while holding baseball bat was constitutional but
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additional seven uses of taser after suspect had been subdued was not); Buckley
v. Haddock, 292 F. App’x 791, 792-94 (11th Cir. 2008) (finding no Fourth
Amendment violation where taser used against suspect who resisted arrest by
laying on the ground and refusing to stand); Schumacher v. Halverson, 467 F.
Supp. 2d 939, 943-45 (D. Minn. 2006) (finding no Fourth Amendment violation
where taser used against suspect who was intoxicated, resisting arrest by
grabbing basketball pole and refusing all orders to release pole); Devoe v.
Rebant, No. 05-71863, 2006 WL 334297, at *1-2, *6 (E.D. Mich. Feb. 13, 2006)
(finding no Fourth Amendment violation where taser used to subdue suspect
who, although handcuffed, was refusing to provide identification and get into
patrol car). If, however, the suspect is not actively resisting arrest, use of a taser
is not warranted. See Orell v. Muckle, No. 3:11-CV-97(WWE), 2012 WL 3231017, at
*3-4 (D. Conn. Aug. 6, 2012) (denying summary judgment on Fourth Amendment
claim where taser used on person not suspected of committing a crime or being
armed and who was not actively resisting medical responders or police officer in
a violent or threatening manner); Towsley v. Frank, NO. 2010 WL 5394837, at *10
(D. Vt. Dec. 28, 2010) (summary judgment not warranted where police officer used
taser when suspect, who had fallen through window and landed on pavement,
was not resisting or fleeing arrest and might be seriously injured).
Even assuming, for purposes of deciding this claim, that the plaintiff was
not brandishing a knife, the court concludes that the use of the tasers during the
pursuit was objectively reasonable. The defendants were aware that the plaintiff
possessed a knife. He was argumentative. He fled from the police officers and
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failed to comply with all orders to stop. In light of the plaintiff’s flight and refusal
to comply with orders, the use of nonlethal force to subdue him was objectively
reasonable. The defendants’ motion for summary judgment is granted as to all
claims for excessive force regarding the use of the tasers during pursuit.
The plaintiff argues, however, that many taser deployments occurred after
he had been shot and subdued. He points to the various police reports which
indicate that the incident occurred before 10:00 p.m. For example, one patrol
officer was dispatched to the scene at 10:06 p.m. in response to a report that
shots already had been fired. See Doc. #75-1 at 56. Another officer reported
being dispatched to the scene at 9:55 p.m. in response to a report of a man down.
See Doc. #75-1 at 57. The report of taser deployments, however, shows five
deployments all after 10:00 p.m. See Doc. #75-2 at 10-11. To the extent that some
of the taser deployments occurred after the plaintiff had been subdued, summary
judgment is not warranted. The case will proceed on the claims for use of the
taser after the plaintiff had been subdued.
B.

Qualified Immunity

The defendants also argue that they are protected by qualified immunity
regarding the use of force. The doctrine of qualified immunity protects
government officials from liability for damages caused by the performance of
discretionary official functions if their conduct does not violate a clearly
established right of which a reasonable person would have been aware. See
Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir. 2007).
When considering a claim of qualified immunity, the Court considers two
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questions: first, whether, construing the facts in favor of the non-moving party,
there is a violation of a constitutionally protected right; and second, whether,
considering the facts of the case before it, that right was clearly established at
the time of the incident. Qualified immunity is warranted unless the state
official’s conduct violated a clearly established constitutional right. See Pearson
v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 813, 815-16 (2009) (setting forth qualified
immunity test and holding that a court need not consider the questions in any
particular order). To evaluate whether a right is clearly established, the Court
must determine whether it would be clear to a reasonable correctional official that
his conduct in these circumstances was unlawful. See Saucier v. Katz, 533 U.S.
194, 202 (2001). The analysis focuses on cases from the Supreme Court and
Second Circuit. See Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir. 1996).
The use of objectively unreasonable force violates the Fourth Amendment.
See Graham, 490 U.S. at 395. The court determined above that there is a genuine
issue of material fact regarding whether defendant Selander actions regarding
use of deadly force and both defendants actions regarding use of nonlethal force
after the plaintiff had been subdued were objectively reasonable. The inability to
resolve these issues also prevents the court from determining whether a
reasonable police officer would understand that defendants’ actions were
unlawful. Thus, at this time, the court cannot determine whether the defendants
are protected by qualified immunity.
C.

State Law Claim - Assault and Battery
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The plaintiff asserts state law claims of assault and battery against the
defendants. The defendants argue that these claims must fail because their
actions were justified.
The defense of self-defense is available in a claim for the intentional torts
of civil assault and battery. See Brown v. Robishaw, 202 Conn. 628, 636, 922,
A.2d 1086, 1092 (2007). Connecticut General Statutes § 53a-22(b) provides that a
police officer may use physical force against another person if the officer
reasonably believes the force to be necessary to prevent the escape from
custody of a person believed to have committed an offense. Subsection (c)
allows a police officer to use deadly force against another person under certain
circumstances only if the police officer reasonably believes that use of deadly
force is necessary.
The court has concluded above that issues of fact preclude a determination
that the use of force was reasonably necessary. Accordingly, the defendants’
motion for summary judgment is denied as to the claims for assault and battery.
D.

State Law Claim - Constitutional Violations

Finally, the plaintiff includes claims for violation of his rights under Article
I, section 8 of the Connecticut Constitution. The defendants contend that these
claims are not cognizable because there is no private right of action for money
damages.
There is no “all-encompassing damages action for any and all alleged
violations of state constitutional provisions.” ATC Partnership v. Town of
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Windham, 251 Conn. 597, 613, 741 A.2d 305, 315 (1999). The state court
determines whether to recognize such a cause of action on a case-by-case basis.
In making that determination, the court considers factors including the nature of
the constitutional provision, the allegedly unconstitutional conduct, the nature of
the harm, and other reasons set forth in Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388, 390-97 (1971). See ATC Partnership.
251 Conn. at 313-14, 741 A.2d at 315. With regard to Article I, section 8, the
Connecticut Supreme Court has specifically declined to create a private right of
action. See Kelley Property Development, Inc. v. Lebanon, 226 Conn. 314, 339-40
627 A,2d 909, 922 (1993) (no private cause of action for violation of due process
clause of state constitution, Article I, section 8); see also Bazzano v. City of
Hartford, No. CV 980584611S, 1999 WL 1097174 (Conn. Super. Ct. Nov. 18, 1999)
(no claim for money damages for violation of Article I, sections 7, 8 and 9 in claim
for use of excessive force in connection with stop, detention and arrest; plaintiff
afforded adequate redress under state tort law). In the absence of state cases
establishing a private right of action, the court declines to create one here. The
defendants’ motion for summary judgment is granted as to these claims.
IV. Conclusion
The defendants’ motion for summary judgment [Doc. #73] is GRANTED as
to the claims arising from the defendants use of tasers against the plaintiff during
pursuit and DENIED as to the claims arising from defendant Selander’s use of
deadly force and the use of tasers against the plaintiff after he had been subdued.
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The motion for summary judgment also is granted on the claims for violation of
the Connecticut Constitution. The case will proceed against the defendants on
the federal claims for use of excessive force and the state law claim of assault
and battery.
It is so ordered.
_____________/s/____________
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: August 2, 2013.

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