Bryant v. Meriden Police Department et al

Filing 144

ORDER granting in part and denying in part 141 Motion for New Trial. Signed by Judge Stefan R. Underhill on 3/31/2017. (Landman, M)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DERRICK BRYANT,
Plaintiff,

No. 3:13-cv-449 (SRU)

v.
MERIDEN POLICE DEPARTMENT, et
al.,
Defendants.

Ruling on Motion for New Trial
This case arises out of the arrest and subsequent search of Derrick Bryant by members of
the Meriden Police Department. Bryant alleges that the defendant police officers used excessive
force against him, in violation of state law and 42 U.S.C. § 1983 (“section 1983”). Following a
jury verdict in favor of all the remaining defendants, Bryant moved for judgment as a matter of
law or, in the alternative, a new trial.
For the following reasons, the motion (doc. # 141) is granted in part and denied in part.
I.

Standard of Review
A. Rule 50
Rule 50(a) of the Federal Rules of Civil Procedure allows for the entry of judgment as a

matter of law if a “party has been fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party
on that issue . . . .” Fed. R. Civ. P. 50(a). If the court does not grant the motion made under Rule
50(a), “the movant may file a renewed motion for judgment as a matter of law” within 28 days
from the entry of judgment or, if the motion concerns a matter not decided by a verdict, within
28 days after discharge of the jury. Fed. R. Civ. P. 50(b).

A party who fails to move for a judgment as a matter of law under Rule 50(a) is
procedurally barred from challenging the verdict through a Rule 50(b) motion after trial. See
Walling v. Holman, 858 F.2d 79, 82 (2d Cir. 1988) (“Appellants are precluded from challenging
the sufficiency of the evidence because they failed to move for a directed verdict at trial in
accordance with Fed. R. Civ. P. 50(b).”). The procedural requirement “may not be waived by
the parties or excused by the district court.” Bracey v. Bd. of Educ. of City of Bridgeport, 368
F.3d 108, 117 (2d Cir. 2004).1 Nevertheless, a party who has failed to comply with the
procedural requirements of Rule 50 is not foreclosed from challenging the verdict by means of a
Rule 59 motion. La France v. N.Y., N. H. & H. R. Co., 191 F. Supp. 164, 166 n.1 (D. Conn.),
aff’d, 292 F.2d 649 (2d Cir. 1961) (treating defendant’s motion as a motion made under Rule
59(a) because defendant was procedurally barred from bringing the motion under Rule 50(b)).
B. Rule 59
Under Rule 59, a court may “grant a new trial after a jury trial for any reason for which a
new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59.
Where the movant seeks a new trial “on the grounds that the verdict was against the weight of
the evidence,” the district court can “weigh the evidence” and is not required to “view it in the
light most favorable to the verdict winner.” DLC Management Corp. v. Town of Hyde Park, 163
F.3d 124, 133–34 (2d Cir. 1998) (internal quotation marks and citations omitted).

A new trial

should only be granted, however, if “the court is convinced that the jury has reached a seriously
erroneous result or that the verdict is a miscarriage of justice.” Kosmynka v. Polaris Indus., 462

1

The Second Circuit has recognized a limited exception to the procedural requirement when it is necessary in order
to correct “manifest injustice,” see Broadnax v. City of New Haven, 415 F.3d 265, 268 (2d Cir. 2005). The court
need not consider such an exception when there is no claim of manifest injustice. See Cotto v. City of Middletown,
2016 WL 223692, at *14 n.10 (D. Conn. Jan. 19, 2016) (internal citation omitted).

2

F.3d 74, 82 (2d Cir. 2006). In reviewing a jury’s verdict, the court “should rarely disturb a jury’s
evaluation of a witness’s credibility.” DLC Management Corp., 163 F.3d at 134 (internal
quotation marks and citations omitted). Principles of deference, however, do not “override the
trial judge’s duty to see that there is no miscarriage of justice.” Ruffin v. Fuller, 125 F. Supp. 2d
105, 109 (S.D.N.Y. 2000) (quoting United States v. Landau, 155 F.3d 93, 105 (2d Cir. 1998))
(granting plaintiff’s Rule 59 motion when no reasonable jury could have examined evidence and
found that plaintiff’s constitutional rights were not violated).
II.

Background
A. Procedural History
Derrick Bryant filed a complaint against the Meriden Police Department and nine of its

officers on April 2, 2013. On January 19, 2014, Bryant filed an amended complaint (doc. # 391). In his amended complaint, Bryant alleged state and federal claims relating to his arrest and
the subsequent search of his person that occurred on March 6, 2011.2 Bryant alleged that he was
falsely arrested without probable cause, subjected to the unconstitutional use of excessive force,
and unreasonably searched, both at the scene of the arrest and, later, in a holding cell at the
Meriden Police Department. Bryant also alleged a Monell claim against the Meriden Police
Department and Police Chief Jeffrey Cossette by asserting that they failed to institute adequate
policies and/or procedures in order to prevent the unconstitutional deprivation of civil rights.
On June 29, 2015, I granted in part, and denied in part, the defendants’ motion for
summary judgment. See Doc. # 86. I granted summary judgment in favor of the Meriden Police
Department and Police Chief Jeffrey Cossette on Bryant’s Monell claim, and I also dismissed

2

At trial the parties testified that the incident occurred on March 9, 2011. The disparity in dates is of no
consequence.

3

Officer Evan Cossette from the case. I denied summary judgment with respect to the section
1983 and related state law claims against John Slezak, Dexton Palmer, Kenneth Egan, John
Cerejo, Michael Merrigan, and Robert Pekrul, based on a violation of Bryant’s Fourth
Amendment rights. Finally, I allowed Bryant’s state law claim, filed under Conn. Gen. Stat. §
52-571c against “Officer John Doe,” to proceed to trial to the extent that Bryant could identify at
trial that Officer Doe was one of the remaining defendants. Bryant did not move for summary
judgment, so I had no occasion to consider whether the officers’ use of force against Bryant was
unreasonable as a matter of law.
B. Proceedings at Trial
Beginning on April 20, 2016, I conducted a jury trial of the claims against the remaining
defendants: Slezak, Palmer, Egan, Cerejo, Merrigan, and Pekrul. Following Bryant’s case-inchief, the defendants moved for a judgment as a matter of law in accordance with Rule 50(a). I
granted that motion with respect to Pekrul and Merrigan because Bryant had failed to provide
sufficient evidence for a reasonable jury to find that they participated in the alleged conduct,
either at the scene of the arrest or in the Meriden Police Department holding cell. See Doc. #
124-1. I reserved ruling on the remaining portion of the defendants’ motion. Following the
close of evidence, the defendants filed a renewed motion for judgment as a matter of law, under
Rule 50(b), which I took under advisement pending the jury verdict. See Doc. # 129. At no
point in the trial did Bryant move for a judgment as a matter of law.
On April 28, 2016, the jury found all of the remaining defendants—Egan, Cerejo, Palmer,
and Slezak—not liable for the alleged unconstitutional use of excessive force and unreasonable
search of Bryant. See Doc. # 134. Judgment entered on May 9, 2016. See Doc. # 137. On June

4

6, 2016, Bryant timely moved for a judgment as a matter of law or, in the alternative, a new trial.
See Doc. # 141.
C. Facts Elicited at Trial
The following is a summary of facts elicited at trial:
On March 9, 2011, Bryant was riding in the passenger seat of a car driven by his friend,
Kaonna Potts. Shortly after pulling into the parking lot of the Old Dutch Liquor Store in
Meriden, Connecticut, the car was surrounded by four officers of the Meriden Police
Department. The officers demanded that the passengers exit the vehicle and then proceeded to
take the passengers, including Bryant, into custody. Egan, Cerejo, and Palmer were the only
defendants who were involved in the arrest. The officers testified that Bryant was noncompliant
with their requests for him to exit the vehicle. While Palmer stood watch over the other
passengers who had exited the vehicle, Egan and Cerejo attempted to gain control over Bryant.
There was considerable conflicting testimony with regard to exactly how the officers interacted
with Bryant. Bryant and other plaintiff’s witnesses testified that he was compliant with the
officers and that the officers beat him for no reason. Furthermore, Bryant testified that the
officers pulled his pants down and strip searched him at the scene of the arrest.
The officers testified that Bryant resisted their attempts to remove him from the vehicle
and place him under arrest. Cerejo testified that he punched Bryant multiple times in order to
gain compliance. Those strikes were corroborated by other eyewitnesses and could be observed
via a partially-obstructed cellphone video that was shown to the jury. During the struggle,
Cerejo testified that he observed Bryant attempt to lodge a bag of crack cocaine into his anal
cavity. Cerejo also testified that Bryant was unsuccessful in that attempt, but had managed to
lodge the bag between the cheeks of his buttocks, where it remained in place until it was
5

removed by officers at the Meriden Police Department. The officers corroborated Bryant’s
testimony that, during the arrest, his pants had fallen below his knees, exposing his genitals.
They testified that it was the result of Bryant’s own attempts to resist arrest and was not, as
Bryant testified, the product of the officers’ attempt to conduct a strip search at the scene of the
arrest.
Following his arrest, Bryant was taken to the Meriden Police Department and placed in a
holding cell. His time in the holding cell was captured by closed-circuit video, which was shown
to the jury and used to complement the parties’ respective testimony. In the holding cell, Bryant
was handcuffed and had a “spit-mask” placed over his face. The video and the testimony
showed that multiple officers went in to speak with Bryant at various times, and that he was
subjected to multiple attempts to search his person. At times, only a single officer was in the
holding cell with Bryant; at other times, there were multiple officers. The video shows that
Bryant was not actively resisting the officers, but also shows the officers suddenly bringing
Bryant to the floor and tasing him.
Bryant testified that he was tased more than the single time that the officers admit.
Bryant also testified that one of the officers, Egan, stuck his fingers into Bryant’s anal cavity.
Egan and Slezak testified that no officer performed any type of anal cavity search. Rather, the
officers testified that they were able to retrieve the alleged bag of crack cocaine by reaching in
between the cheeks of Bryant’s buttocks and pulling the bag out without entering the anal cavity.
III.

Discussion
Bryant moves for judgment as a matter of law and, in the alternative, for a new trial.

Defendants contend that Bryant waived his right to move for a judgment as a matter of law, and

6

that Bryant is not otherwise entitled to a new trial because the jury’s verdict was not against the
weight of the evidence.
A. Rule 50
Bryant did not move for a judgment as a matter of law at the close of evidence and thus is
barred from making a Rule 50 motion following the jury verdict. See Walling v. Holman, 858
F.2d 79, 82 (2d Cir. 1988). Bryant provides no reason why he should be excused from his failure
to comply with Rule 50. Accordingly, his Rule 50 motion is denied. See Cotto, 2016 WL
223692, at *14 n.10.
B. Rule 59
Bryant alleges that he was subjected to excessive force and an unreasonable search both
at the scene of his arrest and subsequently in the holding cell at the Meriden Police Department
stationhouse. At trial Bryant supported those allegations with his own testimony to that effect.
He also called witnesses who corroborated his testimony regarding what occurred at the scene of
his arrest, and he supported his testimony of the conduct in the holding cell by showing a closecircuit video of Egan and Slezak present in the holding cell while he was tased and subjected to a
strip search. Bryant testified that he was tased notwithstanding the fact that he was compliant
with the officers’ orders, and that Egan subjected him to an anal cavity search in which Egan put
his fingers inside Bryant’s anal cavity.
The defendants, however, told a different story. Based on their account, they applied a
reasonable amount of force to accomplish the legitimate law enforcement objectives of (1)
securing Bryant’s arrest; and (2) forcing Bryant to submit to a search in the Meriden Police
Department holding cell.

7

It is within the province of the jury to weigh the credibility of the witnesses. Though
Bryant is correct that I am not required to examine a Rule 59 motion in the light most favorable
to the nonmovant, I also should avoid “disturb[ing] a jury’s evaluation of a witness’s credibility.”
DLC Management Corp., 163 F.3d at 134.
1. Location of Bag Containing Crack Cocaine
Bryant makes much of the fact that it is inconceivable that he could have placed a bag of
crack cocaine between the cheeks of his buttocks and could have kept it there throughout the
ensuing struggle between Bryant, Cerejo, and Egan. It is not my duty to assess the physical
possibility that such an event could occur; that is for the jury to determine. The jury apparently
determined that it was possible for Bryant to place a bag of crack cocaine in between the cheeks
of his buttocks while wrestling with and being punched by the defendants, and for that bag to
remain there throughout the encounter, which included Bryant standing naked in the parking lot,
surrounded by officers. I will not disturb that finding, as unlikely as it seems, because it is based
entirely on a credibility finding by the jury.
2. Excessive Force at Scene of Arrest
Bryant contends that Egan and Cerejo used excessive force when attempting to remove
him from the vehicle and bring him into custody. Bryant testified that he did not resist, yet the
officers continued to punch and kick him. Such testimony is corroborated by eyewitnesses who
testified that Bryant was not resisting, and that the officers punched and kicked Bryant multiple
minutes before picking him up and placing him in a police cruiser.
The officers told a different story. Cerejo and Egan both testified that they approached
the vehicle for the purpose of arresting the driver and passengers for what they understood to be
a drug transaction. They testified that Bryant was noncompliant with the officer’s requests to
8

exit the vehicle and submit to the arrest. Specifically, Egan testified that he struck Bryant when
he was resisting Egan’s attempts to remove him from the vehicle. Once removed from the
vehicle, Cerejo testified that Bryant was constantly trying to free his hands in order to conceal a
bag of crack cocaine between the cheeks of his buttocks. In an attempt to subdue Bryant, Cerejo
testified that he first utilized verbal commands, and then, when those commands were yielded no
results, he applied punches and kicks. A partially-obstructed cellphone video corroborated
accounts that at least one officer applied several punches to an individual, presumed to be
Bryant, lying on the ground. Palmer did not corroborate Cerejo’s and Egan’s account, but rather
testified that he was preoccupied on the other side of the car, watching over the other passengers
who had complied with the officers’ requests to exit the vehicle and sit on the ground. In light of
the officers’ testimony, a jury could reasonably make the credibility determination that Cerejo
and Egan were telling the truth regarding Bryant’s noncompliance, and that the officers’ use of
force against Bryant was not greater than necessary to obtain Bryant’s compliance.
3. Strip Search at Scene of Arrest
Bryant contends that he was subjected to a strip search at the scene of the arrest.
Specifically, he testified that officers pulled down his pants and exposed his genitals while he
was lying, and then subsequently standing on the street. The officers corroborated Bryant’s
testimony that his pants were down and his genitals were exposed. The officers contend that
Bryant’s pants were down because he had been attempting to reach into his waist area in order to
hide a bag of crack cocaine in between the cheeks of his buttocks. They testified that Bryant’s
numerous attempts to do so had resulted in his pants—and underwear—being pulled down below
his waist. When he was stood up, his pants and underwear were below his waist and his genitals
were exposed. The officers testified that, once Bryant was brought under control, they pulled up
9

his pants to avoid any further exposure. A jury could reasonably credit the officers’ testimony
that Bryant’s genitals were exposed as a result of his attempts to free himself from the grips of
the police and place a bag of crack cocaine between the cheeks of his buttocks. The likelihood
of events occurring as the defendants described is an issue of credibility for the jury.
4. Alleged Cavity Search in Holding Cell
Bryant argues that it was unreasonable, as a matter of law, to subject him to a body cavity
search while he was in the Meriden Police Department holding cell. The evidence does not
conclusively establish whether Bryant was subjected to a body cavity search. The officers
present in the holding cell testified that there was not a search of Bryant’s anal cavity. Egan
testified that they conducted a strip search of Bryant and were able to remove the bag of crack
cocaine from the cheeks of Bryant’s buttocks without entering his anal cavity. The jury was free
to believe the officers’ testimony that no cavity search occurred.
5. Taser Use in Holding Cell
Finally, Bryant argues that he was subjected to excessive force when officers tased him in
the holding cell.3 Like with the other uses of force in this case, the circumstances that gave rise
to the use of a taser are disputed by the parties. Bryant argues that he was gratuitously tased
multiple times when he was in the holding cell. The defendants contend that he was only tased a
single time, and that it was after Bryant had tried to resist being searched.

Though Bryant’s argument uses language that tracks the Rule 50 standard, I consider the issue in connection with
whether Bryant is eligible for a new trial under Rule 59. See La France, 191 F. Supp. at 166 n.1. Bryant is entitled
to a new trial if he can show that it was against the weight of the evidence for a jury to find that he was not subjected
to excessive force. See Ruffin, 125 F. Supp. 2d at 105 (granting Rule 59 motion on ground that “no reasonable jury
having examined the testimony and evidence could have concluded that plaintiff’s constitutional rights were not
violated”).
3

10

There are some facts, however, that were not in dispute. The jury was not free to
disregard the fact that Bryant was tased at least one time when he was being held in the holding
cell. At trial, both parties testified to the fact that Slezak tased Bryant (at least once),
approximately an hour after his initial arrest, and immediately after Bryant had been tackled to
the floor by Slezak and another officer. Further, the closed-circuit video showed that Bryant was
tased as two additional officers entered the room to assist in pinning an already-handcuffed
Bryant to the floor. Pl.’s Ex. 12 at 16:26:19. Based on those undisputed facts, I evaluate
whether it was against the weight of the evidence for the jury to find that Bryant was not
subjected to excessive force when he was tased while handcuffed in the holding cell.
To assess whether an officer’s conduct constitutes excessive force, I must first determine
the appropriate standard to apply. There is no blanket constitutional prohibition on the use of
force against an individual. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2477 (2015) (Scalia, J.,
dissenting). Rather, an individual is protected by different constitutional provisions depending
on his or her status at the time the force was used. See Graham v. Connor, 490 U.S. 386, 395
n.10 (1989). Everyone agrees that, after an individual has been convicted of an offense, an
individual may challenge the use of excessive force under the Eighth Amendment’s prohibition
against cruel and unusual punishment. See id. (citing Whitley v. Albers, 475 U.S. 312, 326
(1986)). Prior to conviction, the use of excessive force is prohibited by the Fourth Amendment’s
prohibition against unreasonable “seizures,” (i.e., arrests), see id., and the Fifth Amendment’s
“protection against deprivation of liberty without due process of law,” Bell v. Wolfish, 441 U.S.
520, 536 (1979).
In Graham v. Connor, the Supreme Court held that an arrestee is protected under the
Fourth Amendment and not “the more generalized notion of ‘substantive due process’” derived

11

from the Fifth Amendment. Graham, 490 U.S. at 395. The Court also noted that, at some point
after an individual’s arrest, the suspect’s status changes from an arrestee to a pretrial detainee.
See id. at 395 n.10. At that point, the individual may seek protections under the due process
clauses of the Fifth and Fourteenth Amendments. See id.; Kingsley, 135 S. Ct. at 2476
(discussing pretrial detainee’s excessive force claim in context of Fourteenth Amendment).
Accordingly, the period of time between arrest and conviction operates as “something of a legal
twilight zone” in which it is often difficult to determine the appropriate standard to apply.
Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000).
Though circuits remain split on the issue, the Second Circuit has held that “the Fourth
Amendment standard probably should be applied at least to the period prior to the time when the
person arrested is arraigned or formally charged, and remains in the custody (sole or joint) of the
arresting officer.” Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir. 1989); see also Bennett v.
Britton, 609 F. App’x 11, 12 (2d Cir. 2015) (quoting Graham, 490 U.S. at 395) (“A claim under
42 U.S.C. § 1983 that a law enforcement officer used excessive force on a suspect before
arraignment is ‘analyzed under the Fourth Amendment and its “reasonableness” standard.’”).4
Courts within the circuit generally apply the Fourth Amendment to all claims of excessive force
prior to the individual being arraigned or formally charged. See Lewis v. Clarkstown Police
Dep’t, 2014 WL 6883468, at *4 (S.D.N.Y. Dec. 8, 2014); Castellar v. Caporale, 2010 WL
3522814, at *6–7 (E.D.N.Y. Sept. 2, 2010); Thompson v. City of Meriden, 1999 WL 301693, at
*6 (D. Conn. Apr. 14, 1999).

This approach is supported by a recent Supreme Court decision in which the Court held that “the Framers ‘drafted
the Fourth Amendment’ to address ‘the matter of pretrial deprivations of liberty[.]’” Manuel v. City of Joliet, Ill., ––
U.S. –––, 2017 WL 1050976, at *6 n.8 (U.S. Mar. 21, 2017) (quoting Albright v. Oliver, 510 U.S. 266, 274 (1994)).
In the context of challenging the legality of a suspect’s pretrial detention, the Court held that the Fourth Amendment
“governs a claim for unlawful pretrial detention even beyond the start of legal process[.]” Id. at *7.
4

12

In the instant case, the alleged use of excessive force in the Meriden Police Department
holding cell occurred following Bryant’s arrest and before he was arraigned or formally charged.
Accordingly, Bryant’s excessive force claim is appropriately analyzed under the Fourth
Amendment.
The Fourth Amendment “prohibits the use of unreasonable force and therefore excessive
force by a police officer in the course of effecting an arrest.” Tracy v. Freshwater, 623 F.3d 90,
96 (2d Cir. 2010). The reasonableness inquiry is an objective standard that requires a court to
balance “the nature and quality of the intrusion on the plaintiff’s Fourth Amendment interests
against the countervailing governmental interests at stake.” Tracy, 623 F.3d at 96 (internal
citations and quotation marks omitted). A court evaluates the nature and quality of the intrusion
on the plaintiff’s Fourth Amendment rights by examining the effect that the use of force has on
the individual. Garcia v. Dutchess Cty., 43 F. Supp. 3d 281, 290–91 (S.D.N.Y. 2014), aff’d in
part, dismissed in part sub nom. Garcia v. Sistarenik, 603 F. App’x 61 (2d Cir. 2015). To
evaluate the governmental interests at stake, a court must consider: “(1) the nature and severity
of the crime leading to the arrest, (2) whether the suspect pose[d] an immediate threat to the
safety of the officer or others, and (3) whether the suspect was actively resisting arrest or
attempting to evade arrest by flight.” See Tracy, 623 F.3d at 96 (citing Graham, 490 U.S. at
396).5

5

The circumstances of Graham are such that these factors were devised in the context of an officer making an arrest
in the field. Nevertheless, courts have consistently applied the Graham factors to Fourth Amendment claims based
on officers’ conduct at the stationhouse. Blake v. Base, 1998 WL 642621, at *12 (N.D.N.Y. Sept. 14, 1998); Franks
v. New Rochelle Police Dep’t, 2015 WL 4922906, at *10 (S.D.N.Y. Aug. 18, 2015); Castellar, 2010 WL 3522814,
at *6–7. The primary differences between the use of force in the field and at the stationhouse is that, at the
stationhouse, the danger to the public and the threat of escape is significantly diminished. See Gerstein v. Pugh, 420
U.S. 103, 114 (1975) (possibility that individual will escape or commit further crimes diminished once he is
detained); but see Blake, 1998 WL 642621, at *13 (use of force while defendant was already detained is justified
when detainee is “extremely violent and a possible escape risk”).

13

Those three factors, known as the Graham factors, must be evaluated “from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Tracy, 623 F.3d at 96. Though an officer is not required to use the least amount of force
necessary to accomplish a law enforcement objective, the use of force must at least 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, 165–66 (2d
Cir. 2000).
a. Nature and quality of intrusion on Bryant’s rights
Generally speaking, a taser can be used in two different ways: drive-stun mode and dartstun mode. Dart-stun mode is used to describe a taser that shoots physical “barbs” (typically
made with a combination of aluminum and steel) into the subject’s body. Bryan v. MacPherson,
630 F.3d 805, 824 (9th Cir. 2010). Once the barbs have pierced the skin, an electrical current is
sent from the taser into the individual’s body, which causes pain and temporary paralysis
“throughout the body.” Id. “When a taser is used in [drive-]stun mode, an electrical current is
sent to the muscles in the area against which the weapon is pressed.” Garcia, 43 F. Supp. 3d at
290. The electrical current causes the subject pain and temporarily inhibits—or paralyzes—the
individual’s muscles in the affected area. See Whitfield v. City of Newburgh, 2015 WL 9275695,
at *11 (S.D.N.Y. Dec. 17, 2015); see also Bailey Jennifer Woolfstead, Don’t Tase Me Bro: A
Lack of Jurisdictional Consensus Across Circuit Lines, 29 T.M. Cooley L. Rev. 285, 292–93
(2012). The Ninth Circuit is the only circuit that has distinguished between the use of drive-stun
and dart-stun mode. See Woolfstead, supra, at 318.
Though the Second Circuit has yet to rule on the issue, district courts within the Circuit
have concluded that, regardless of whether it is in drive-stun or dart-stun mode, the use of a taser
14

constitutes a “significant degree of force” that is akin to pepper spray. Whitfield, 2015 WL
9275695, at *11; Garcia, 43 F. Supp. 3d at 290–91; Read v. Town of Suffern Police Dep’t, 2013
WL 3193413, at *8 (S.D.N.Y. June 25, 2013) (taser is a “serious intrusion into the core of the
interests protected”). Some courts have noted that the use of a taser constitutes a greater degree
of force than the use of pepper spray because tasers pose a greater risk of injury. Whitfield, 2015
WL 9275695, at *11; see also Beaver v. City of Fed. Way, 507 F. Supp. 2d 1137, 1146 (W.D.
Wash. 2007), aff’d, 301 F. App’x 704 (9th Cir. 2008).
b. Governmental interest in the use of force
In order to justify use of a taser, the governmental interest in the use of force must
outweigh a suspect’s interest in being free from the use of that degree of force. See Graham, 490
U.S. at 396. To evaluate the government’s interest in the use of force, the Graham Court
instructs courts to consider, inter alia, “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.
The severity of the crime of arrest is relevant to the officer’s decision to use force
because it often serves as a proxy for potential consequences arising out of the suspect’s refusal
to submit to an arrest. Whitfield, 2015 WL 9275695, at *12. Often officers arrive at an actively
unfolding scene in which they are unable to assess the dangerousness of the person except by
evaluating the nature of the crime that the police believe the person committed. Accordingly, an
officer’s use of force against a person suspected of committing a dangerous crime is more likely
to be deemed reasonable than the use of force against a person suspected of committing a minor
offense. Compare Whitfield, 2015 WL 9275695, at *12 (individual high on drugs and suspected

15

of domestic violence posed threat), with Crowell v. Kirkpatrick, 400 F. App’x 592, 594 (2d Cir.
2010) (individual arrested for trespass posed little threat).
A court must be careful, however, to avoid putting too much emphasis on the seriousness
of the suspected criminal activity. See Hemphill v. Schott, 141 F.3d 412, 417 (2d Cir. 1998).
Doing so “thwart[s] a central purpose of the Fourth Amendment limitations on use of force in
making arrests, which is to preserve determination of guilt and punishment for the judicial
system.” Id. The seriousness of the suspected crime as a proxy for the need to use force
becomes less helpful as more time passes between the initial interaction and the use of force. See
id. Although an officer may initially assume that an individual suspected of a dangerous crime
poses a threat to the officer and others, the officer may not ignore evidence that indicates the
threat has diminished. Id. (officer not justified shooting individual suspected of assault with
deadly weapon after officer observed individual stop and raise hands in air).
Though the Second Circuit has not yet ruled on the issue, many courts have viewed the
“immediate threat to the safety of the officers or others” as the most important Graham factor.
See A.K.H. v. City of Tustin, ––– F.3d ––––, 2016 WL 4932330, at *4 (9th Cir. Sept. 16, 2016)
(quoting Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc)). After all, it is the
“need for force which is at the heart of the Graham factors.” Blankenhorn v. City of Orange,
485 F.3d 463, 480 (9th Cir. 2007) (internal quotation marks omitted). In circumstances when a
suspect has already been subdued and there is no longer a serious risk of flight, the primary
justification for the use of force is to protect officers from any danger that the suspect poses.
Courts assessing the threat to officer safety look both to the officers’ statements about
their perception of a threat and objective factors that would justify such a fear. Mattos, 661 F.3d
at 441–42. The assessment must be made based on facts that existed at the moment of the tasing

16

itself. Garcia, 43 F. Supp. 3d at 291–92. The fact that the suspect is restrained or the presence
of other officers will often diminish a suspect’s objective threat to the officers. See Tracy, 623
F.3d at 99 (fact that suspect was handcuffed weighed against finding of immediate threat);
Whitfield, 2015 WL 9275695, at *11 (any previous threat to officers had “dissipated” when
suspect was “cornered in living room by several officers”); Garcia, 43 F. Supp. 3d at 291–92
(taser excessive when officers testified that it took “only seconds” to accomplish goal of forcing
suspect to ground and restraining him); Beaver, 507 F. Supp. 2d at 1146 (presence of additional
officer made use of taser excessive even though prior uses were justified); Roberts v. Manigold,
240 F. App’x 675, 677–78 (6th Cir. 2007) (“gratuitous use of force on a suspect who has already
been subdued and placed in handcuffs is unconstitutional”); see also Brown v. City of Golden
Valley, 574 F.3d 491, 498 (8th Cir. 2009) (presence of multiple officers diminished threat and
justification to use taser). Furthermore, the presence or absence of a weapon at the time of the
alleged use of force will help determine the level of threat that the officers faced. Garcia, 43 F.
Supp. 3d at 291–92 (tasing of suspect was excessive when there was no evidence that suspect
was in possession of weapon or could access one after being force by officers to the ground).
Finally, the location of the suspect—in rapidly unfolding and uncertain situations out in the
public as contrasted with a heavily regulated environment like a police station—will help assess
the level of threat that the officers faced. Compare Crowell, 400 F. App’x at 595 (tasing
reasonable when suspects’ compatriots were rapidly approaching, creating a “degree of urgency”
requiring officers’ to take them into custody quickly), with Vasquez v. Gempeler, 2008 WL
2953566, at *2 (W.D. Wis. July 29, 2008) (tasing unreasonable if defendants “fail to explain how
a fully restrained prisoner posed a danger requiring the use of a powerful electric shock”).

17

For example, in Beaver, a lone officer who caught a suspect fleeing the scene of a
burglary was justified in using a taser to subdue the suspect. Beaver, 507 F. Supp. 2d at 1140.
The Court held that the officer’s initial use of the taser was reasonable under the circumstances
because, at the time of the tasing, the officer was alone and the suspect attempted to flee,
appeared to be under the influence of drugs, and refused the officer’s commands to stop. Id. at
1145. The Court distinguished the first three uses of the taser from the two subsequent tasings,
which occurred after another officer had arrived at the scene. Id. The presence of the other
officer diminished the immediate threat to the first officer. Id. (“To the extent that [the suspect]
posed an ‘immediate threat’ to [the initial officer] . . . that threat was significantly diminished
when [the other officer] arrived to provide backup.”). The arrival of the other officer also gave
the officers multiple, less-invasive options for bringing the defendant into custody. Id. The
subsequent tasings were excessive because, after the arrival of the other officer, the suspect no
longer posed a threat that was significant enough to warrant the use of a taser. Id.
In Garcia, the Court held that a jury could reasonably find that an officer was not
justified in using a taser on a suspect who was tased after he had already been brought to the
floor. Garcia, 43 F. Supp. 3d at 292. The Court focused on the fact that the suspect was
cornered in a room by multiple officers who were able to bring him to the floor without the use
of a taser. Id. at 291–92. By the time the taser was used, the threat that the suspect could access
a weapon had dissipated and any claim of “immediate threat” was belied by the fact that the
officers had clear control over the situation. Id.

18

The final Graham factor that is used to analyze the reasonableness of an officer’s use of
force is the whether the suspect is actively resisting or attempting to evade arrest. 6 Like the other
factors, a suspect’s level of resistance must be viewed at the time of the use of force. Garcia, 43
F. Supp. 3d at 293 (“[R]egardless of whether [the suspect] actively resisted arrest such as
fighting back at some point before being brought to the kitchen floor, that conduct does not
necessarily justify the later use of the Taser once [the suspect] was on the floor.” (internal
quotation marks and citations omitted)); see also Bryans v. Cossette, 2013 WL 4737310, at *8
(D. Conn. Sept. 3, 2013) (unreasonable to tase subdued suspect).
When there is no evidence that a suspect was attempting to escape police custody at the
time he was tased, see Blake, 1998 WL 642621, at *13 (danger of escape from custody justified
taser use), the only relevant question is whether the suspect was otherwise actively resisting the
officers’ attempts to bring him within their control. Courts have distinguished between active
resistance and passive resistance. Compare Bryan, 630 F.3d at 832; Casey v. City of Fed.
Heights, 509 F.3d 1278, 1282 (10th Cir. 2007); Orell v. Muckle, 2012 WL 3231017, at *3 (D.
Conn. Aug. 6, 2012); and Nelson v. City of Stamford, 2012 WL 233994, at *6 (D. Conn. Jan. 25,
2012) (passive resistance does not justify taser use), with MacLeod, 548 F. App’x at 8; and
Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012) (active resistance
justifies taser use). The more active the resistance, the more likely that an officer will be
justified in using force to control the suspect. See Hagans, 695 F.3d at 509.
A suspect who tenses up his or her body, making it more difficult for law enforcement to
force the suspect to comply with its request, may be considered to be passively resisting arrest.

6

As discussed earlier, in the context of excessive force when the suspect is already at the stationhouse, the relevant
question is the extent to which the suspect is actively resisting officers or attempting to escape the conditions of his
confinement. See Blake, 1998 WL 642621, at *13.

19

See Garcia, 43 F. Supp. 3d at 293–94 (after officers were already on top of suspect, resistance
“limited to making it more challenging for the officers to handcuff him” does not constitute
actively resisting arrest). Without more, the frustration of an officer’s attempts to gain
compliance—such as forcing a suspect to exit a vehicle—does not constitute active resistance.
See Mattos, 661 F.3d at 445 (tasing excessive when suspect posed no threat and only resisted
officer’s requests to exit vehicle); Brown, 574 F.3d at 497 (taser unjustified when used for sole
purpose of forcing suspect to exit vehicle); see also Gravelet-Blondin v. Shelton, 728 F.3d 1086,
1092 (9th Cir. 2013), cert. denied, ––– U.S. ––––, 134 S. Ct. 1292 (2014) (suspect who
“continually ignored officer commands to remove his hands from his pockets” and to produce his
hands for handcuffing was not “particularly bellicose,” so “the third Graham factor offered little
support for the use of significant force against him”); Marzullo v. Onofrio, 2016 WL 4250224, at
*4 (D. Conn. Aug. 10, 2016) (jury could reasonably find that tasing violated Fourth Amendment
when plaintiff’s evidence showed that man was tased for refusing to comply with officer’s
requests to exit vehicle); Nelson, 2012 WL 233994, at * 6 (tasing potentially unreasonable if jury
determines that suspect was “merely passively resisting arrest when a Taser was applied to his
body”). In contrast, the use of a taser is appropriate in circumstances when an actively noncompliant suspect’s resistance “posed a real and imminent threat to the safety of the officers and
any bystanders.” MacLeod, 548 F. App’x at 8.
Finally, the use of a taser on a suspect who is already in police custody at the
stationhouse will be given more scrutiny. See Stephens, 509 F. Supp. 2d at 1112. In Stephens,
the Court held that multiple tasings of a confined suspect would be improper if it were done for
the purpose of forcing him to “change clothes in order to facilitate his incarceration.” Id. Unlike
a suspect who is detained out in the public, a noncompliant suspect inside the stationhouse and in

20

the presence of multiple officers is very unlikely to be able to get away or do any particular
harm. Id.
Though the Graham factors “guide the court’s inquiry,” the ultimate question of
“reasonableness” is fact-dependent. Garcia, 43 F. Supp. 3d at 290. Courts have endorsed
consideration of additional factors, including: (1) the existence of less intrusive means of
accomplishing the law enforcement objective, see Beaver, 507 F. Supp. 2d at 1146, (2) the nature
and quality of any warnings that preceded the use of force, see Crowell, 400 F. App’x at 595, and
(3) the law enforcement objective justifying the use of force, see Stephens, 509 F. Supp. 2d at
1112.
In Bryan, the Court held that an officer’s failure to warn a suspect prior to the use of a
taser and the existence of alternative means to effectuate the arrest both “militate[d] against” a
finding that the use of force was reasonable.” Bryan, 630 F.3d at 831. The Court held that a
warning was “feasible” and would have given the suspect an opportunity to submit to the
officer’s requests. Id. Moreover, additional officers arriving to the scene made it more likely
that the suspect’s compliance could be secured using something less than an intermediate use of
force, id., and the availability of alternative means of ensuring compliance made the officer’s
conduct less reasonable. See id.; see also Sullivan, 225 F.3d at 165–66 (officer not required to
use least intrusive means, but availability of alternative means makes greater degrees of force
appear less reasonable); Roberts, 240 F. App’x at 676 (tasing unreasonable in part because the
defendant did not wait to see if the other officer had successfully subdued the suspect before
using the taser, even though the defendant admitted that the other officer would have been able
to subdue the suspect without the defendant’s assistance).

21

In contrast, the Crowell Court affirmed the district court’s holding that the officer’s use
of a taser was objectively reasonable, specifically noting that the taser was employed only as a
“last resort.” Crowell, 400 F. App’x at 595. The officers had already warned the suspects and
had attempted to use other means to effectuate the arrest. Id. When faced with a rapidly
unfolding situation in which it was necessary to accomplish the arrest as soon as possible, the
officers were justified in raising the level of force applied to the suspects by tasing them. Id.
In situations in which a suspect is uncooperative but not dangerous or threatening, some
courts have held that officers cannot use a taser as a compliance mechanism. See Stephens v.
City of Butler, Ala., 509 F. Supp. 2d 1098, 1111–12 (S.D. Ala. 2007), aff’d sub nom. Stephens v.
Lovette, 261 F. App’x 240 (11th Cir. 2008); Mahamed v. Anderson, 2009 WL 873534, at *5 (D.
Minn. Mar. 30, 2009). Other courts have held that taser use can be permissible in the absence of
a threat to officers or others. See Pennington v. Terry, 2015 WL 998206, at *6 (M.D. Tenn. Mar.
6, 2015), aff’d on other grounds, 644 F. App’x 533 (6th Cir. 2016); Boyden v. Twp. of Upper
Darby, 5 F. Supp. 3d 731, 738 (E.D. Pa. 2014). For example, courts have held that officers may
use a taser in order to prevent an individual from secreting evidence into his body. Id. The use
of a taser in that context is often justified by the fact that the individual’s conduct, such as
swallowing dangerous narcotics, threatened his own safety. Id. Other times, courts have held
that taser use is permissible because the suspect has no constitutional right to destroy evidence.
Id.; see also Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 315 (S.D.N.Y. 1998) (officer not
unreasonable to spray pepper spray into suspect’s mouth when officer had reasonable belief that
suspect was about to swallow contraband).

22

c. Weighing the Competing Fourth Amendment Interests
Weighing the interests of Bryant to be free from unreasonable use of force with the
officers’ legitimate interest in securing him while protecting their safety, I begin with the
conclusion that the use of a taser constitutes a significant degree of force. Bryant testified that
the use of the taser caused him tremendous pain and the officers testified that it led to Bryant
relaxing his muscles—perhaps involuntarily—and ultimately complying with their controlled
strip search. That use of force will only be justified if, after weighing the Graham factors and
additional considerations, the officers’ legitimate interests outweigh Bryant’s interest in being
free from a significant degree of force.
Examining the first factor, I conclude that the seriousness of Bryant’s offense does not
support the government’s interest in tasing him. Bryant was arrested and eventually charged
with simple possession of narcotics, not with distribution or with possession with intent to
distribute. Even if it was reasonable for the officers to view Bryant as a danger to themselves
and others at the scene of the arrest, that danger had dissipated by the time Bryant was brought to
the Meriden Police Department holding cell. At that point, Bryant had not offered any resistance
since his arrest and the officers, having found nothing during the arrest, had no reason to believe
he was armed. Unlike a suspect on the street who is judged by the crime he committed (i.e., the
only thing that the officers on the scene know about him), Bryant had been in custody for a
substantial amount of time before he was tased. Accordingly, the arresting officers were able to
gauge Bryant’s level of dangerousness based on his conduct and not the crime of arrest.
Looking at the second factor, the videotape shows conclusively that Bryant posed no
immediate threat to the officers or others at the time of the tasing. At that time, Bryant had been
in the Meriden Police Department holding cell for approximately five minutes (according to the
closed-circuit video) and had been in police custody for approximately an hour. His hands were
23

handcuffed in the front of his body and he had a “spit-mask” on to prevent him from secreting
anything out of his mouth. The closed-circuit videotape of the holding cell shows that, prior to
the tasing, multiple officers had interacted with Bryant without incident. At various times,
officers walked into the cell, spoke with Bryant for a few seconds or minutes, and then walked
out. Some of those instances involved an individual officer who interacted with Bryant when the
two were alone in the holding cell. The video confirms that Bryant posed no threat to the
officers individually or collectively while handcuffed in the holding cell.
Approximately five minutes into the closed-circuit video, Slezak walked in and
approached Bryant who was standing up against the wall, restrained by one of the other officers.
Slezak testified that his purpose was to get Bryant to comply with a controlled strip search for
contraband on his person. Slezak testified that he brought a taser into the cell for the purpose of
encouraging Bryant to submit to the search. At one point, the video shows Slezak bring the taser
extremely close to Bryant’s body. Pl.’s Ex. 12 at 16:25:11. The video shows Slezak hold the
taser close to Bryant’s body for about twenty seconds, after which the video shows Bryant slump
over. Pl.’s Ex. 12 at 16:25:32. Slezak testified that he did not tase Bryant at that point, but that
he merely held the taser close to Bryant to threaten him. Bryant testified that he was tased at this
point. The videotape evidence is consistent with the testimony of both witnesses, so it is
impossible to know whether a tasing actually occurred at that point.
Regardless, what happened next is undisputed. After seeing Bryant make what the
officers described as a movement of his hands towards his groin area, Egan swiftly brought
Bryant to the ground. Pl.’s Ex. 12 at 16:26:18. Two other officers standing outside the holding
cell responded immediately and added additional assurance that Bryant could not move from his
pinned position. Id. As the two additional officers rushed into the cell, Slezak tased Bryant.

24

Pl.’s Ex. 12 at 16:26:19. When he was tased, Bryant had already been in custody for
approximately one hour. He was on the floor of a holding cell, handcuffed, and surrounded by
two—and what soon became four—officers.7 The closed-circuit video shows no evidence that
Bryant offered any degree of active resistance at any time. Though the officers testified that they
feared he had something in his pants that he was trying to access, there is no evidence that they
reasonably believed Bryant to be in possession of a weapon. None of the officers testified that it
was difficult to take Bryant to the ground, and there was no evidence that Bryant resisted after he
was brought to the floor and pinned by Egan and Slezak. As a result, there was no evidence that
Bryant posed any threat, let alone an immediate threat, to the officers at the time of the tasing.
This case is similar to Stephens v. City of Butler, Ala., in which the Court held that the
use of a taser would not be justified when, though the suspect was arguably noncompliant, he
was “unarmed, in the confines of a small room at the jail, surrounded by three police officers,”
and “made no physically threatening movement . . . .” 509 F. Supp. 2d at 1111–12. The Court
noted that the threat to the officers was diminished by the fact that he was not “actively resisting
arrest or attempting to flee from the interior room in the jail.” Id. at 1112. Similarly, in
Mahamed v. Anderson, the Court held that tasing was improper when a suspect held in a jail cell
“was uncooperative but not dangerous or threatening[.]” 2009 WL 873534, at *5.
This is not a case in which the officers encountered a rapidly unfolding and uncertain
situation. See MacLeod v. Town of Brattleboro, 548 F. App’x 6, 8 (2d Cir. 2013); Campos v.
City of Glendale, 2007 WL 4468722, at *4 (D. Ariz. Dec. 14, 2007). It was not reasonable to

7

The fact that a suspect is handcuffed does not necessarily preclude the use of a taser. See Buckley v. Haddock, 292
F. App’x 791, 795 (11th Cir. 2008). A suspect who is handcuffed yet posing a continuing threat to the officers—for
example, by violently kicking the officer—may still pose a sufficient threat to justify the use of a taser. Id.
However, in this case, the defendants produced no evidence that Bryant continued to resist after being taken to the
ground by the officers, and the video shows no such resistance.

25

believe that Bryant posed a threat to officer safety. Had officers feared that Bryant was armed,
they would have not walked into and out of the holding cell alone. Nor was this a situation in
which a single officer was faced with an actively noncompliant suspect. Rather, the defendants
faced a situation in which a suspect was in the custody of multiple officers and was, at worst,
passively resisting the officers’ efforts to conduct a controlled strip search for contraband.
Regarding the third factor, the videotape shows that Bryant was not offering any active
resistance at the time he was tased. During the few minutes that preceded the officers’ takedown
of Bryant, officers were walking in and out of the holding cell. At times, single officers were
alone with Bryant in the cell. Pl.’s Ex. 12 at 16:20:43, 16:23:46. At no point prior to the
moments immediately preceding Bryant’s takedown did Bryant make any movement that could
be construed as an attempt to actively resist his conditions of confinement. Though Slezak
testified that he only tased Bryant once, the videotape showed and Slezak admitted he activated
the taser prior to time he admits to tasing Bryant. Pl.’s Ex. 12 at 16:25:11. Perhaps
coincidentally, Bryant slumped over immediately after the activated taser drew close to his body.
Pl.’s Ex. 12 at 16:25:32. Whether or not he was tased at that moment, the fact that he slumped
over and then resumed his standing position is not the type of resistance that the Graham Court
contemplated when it used the phrase “actively resisting.”
A minute later, as Bryant was standing up against the wall, flanked by two officers, Egan
testified that Bryant began reaching into his pants. On the closed-circuit video, Bryant makes a
movement that could be interpreted as reaching into his pants. At that moment, Egan forcibly
took Bryant to the floor. Because he was already handcuffed and neither swinging his arms nor
kicking his legs, the takedown (in the presence of two trained officers) was swift and effective.
There was no evidence that Bryant continued to squirm or otherwise resist officer’s attempts to

26

subdue him after being taken to the ground. Nevertheless, Slezak used the taser just as additional
officers arrived to ensure that Bryant would be adequately restrained. This is not a case in which
the use of a taser was justified because lesser degrees of force had been unsuccessful. See
Campos, 2007 WL 4468722, at *4 (tasing reasonable when previous application of physical
force did not succeeded in bringing about suspect’s compliance). Rather, it is a case like
Stephens, in which a passively resisting individual was tased even though he was in a holding
cell, surrounded by multiple officers, and posed no threat of escape. 509 F. Supp. 2d at 1113.
Given those facts, a jury could at most find that Bryant was offering passive resistance to the
officer’s desire to search him.
Finally, the additional considerations—apart from the Graham factors—further weaken a
conclusion that the tasing was justified. First, there is no indication that the officers made any
serious attempts to force Bryant to submit to a search before the use of the taser.
Notwithstanding the fact that the closed-circuit video shows as many as four officers interacting
with Bryant in the holding cell, at no point did the officers attempt to physically force Bryant to
submit to a search. The presence of multiple officers made the alternative means more feasible
and made the failure to use such means less reasonable.
Second, the defendants admitted that the law enforcement objective of the taser use was
to gain compliance with the strip search—not to protect officers in a volatile situation. I need not
decide whether the use of a taser is justified to prevent the imminent destruction of evidence
because, in the instant case, there was no risk of such imminent destruction. The officers
testified that the bag of crack cocaine was lodged between the cheeks of Bryant’s buttocks. If so,
it had been in that position for more than an hour, and there was no testimony regarding any
immediate need to recover it. The closed-circuit video showed that the officers exhibited no

27

degree of urgency in the five minutes preceding the taser use. Even if a taser could be used for
the sole purpose of forcing a suspect to submit to a search, its use is not reasonable when there is
no degree of urgency to the search.
The taser is a powerful mechanism that enables officers to use significant, ordinarily nonlethal, force to protect themselves and others. Garcia, 43 F. Supp. 3d at 290. It is not a tool that
can be used to punish already-restrained individuals for refusing to accede to an officer’s
demands, especially when more reasonable alternatives exist. See Roberts, 240 F. App’x at 676;
Whitfield, 2015 WL 9275695, at *15; Stephens, 509 F. Supp. 2d at 1113. Furthermore, it is not a
tool that can be used to shield officers from “any possibility of harm”—no matter how slight.
Beaver, 507 F. Supp. 2d at 1146 (key inquiry is whether suspect poses “‘immediate’ threat, not
‘possible’ threat”).
At trial, the defendants made a point to emphasize that the use of the taser proved
successful because it led to the officers finding crack cocaine in between the cheeks of Bryant’s
buttocks. Def.’s Obj. to Rule 59 Mot. at 15 (doc. # 142). Egan testified that the taser caused
Bryant to relax his muscles, which caused the bag of crack cocaine to “fall out” of his backside.
In the defendants’ view, the taser was justified because it produced the officers’ desired result—
it led to the recovery of contraband. The fact that the officers ultimately found contraband after
the taser was used, however, does not help establish the existence of any one of the Graham
factors.
Furthermore, any contention that the taser was used for purely officer-safety purposes is
belied by the fact that, at the time the taser was initially brought into the cell, there was no
immediate threat to officer safety. Pl.’s Ex. 12 at 16:25:11. Immediately prior to the taser being
brought into the cell, an officer can be seen interacting with Bryant individually—without the

28

presence of other officers and without a taser or other instrument that would help protect the
officer if he encountered a threat. Had the officers truly believed that Bryant posed a serious
threat to their safety, they would not have casually entered the holding cell with him, often
without the assistance of an additional officer. Rather, Slezak testified that he brought the taser
into the cell to convince Bryant to submit to a search. The taser was wielded as a compliance
mechanism in the face of a suspect who did not want to submit to a search. It was not used as a
tool for officer protection.
Faced with a suspect who they believed had something secreted between the cheeks of
his buttocks, it would have been reasonable to place Bryant in a dry cell and wait until either he
submitted to a search or released the drugs on his own volition. It was not reasonable to tase
Bryant merely to speed up the process. Having evaluated the Graham factors and additional
considerations, I hold that it was against the weight of the evidence for a jury to find that
Slezak’s use of the taser was reasonable under the circumstances. For the same reason, it is also
against the weight of the evidence to find that Egan, unquestionably in a position to intervene, is
not liable for failing to intervene in Slezak’s unreasonable use of force. The jury verdict in favor
of those defendants represented a “seriously erroneous” result justifying a new trial.
C. Qualified Immunity
Even though it was against the weight of the evidence for a jury to find that Slezak’s use
of the taser was justified, I will only grant a new trial if Slezak’s use of a taser was in violation of
clearly established law. If not in violation of clearly established law, Slezak and Egan, the other
defendant officer present during the tasing, are protected by the doctrine of qualified immunity.
Qualified immunity enables governmental officials who perform discretionary functions
to be shielded from liability for civil damages so long as “their conduct does not violate clearly
29

established statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The defendant bears the burden of establishing
that he or she is entitled to qualified immunity. Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015)
(citing Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013)).
Courts typically frame the qualified immunity analysis by requiring the defendant to
establish one of two conditions: that “(a) the defendant’s action did not violate clearly
established law, or (b) it was objectively reasonable for the defendant to believe that his action
did not violate such law.” Garcia, 779 F.3d at 92 (quoting Russo v. City of Bridgeport, 479 F.3d
196, 211 (2d Cir. 2007)).
“To be clearly established, a right must be sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.” Taylor v. Barkes, 135 S. Ct.
2042, 2044 (2015) (quoting Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012)); see also
McGowan v. United States, 825 F.3d 118, 124 (2d Cir. 2016) (“For a right to be clearly
established, the contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”). Though there need not be a case directly
on point, “existing precedent must have placed the statutory or constitutional question beyond
debate.” Taylor, 135 S. Ct. at 2044 (internal quotation marks and citations omitted).
Even if a court determines that a right is clearly established, qualified immunity will
protect a government official “if it was objectively reasonable for the official to believe that his
acts did not violate those rights.” Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000) (quoting
Russell v. Coughlin, 910 F.2d 75, 78 (2d Cir. 1990)) (alterations omitted). The inquiry is “not
whether the [official] should have acted as he did . . . [i]t is instead whether any reasonable
[official], out of the wide range of reasonable people . . . could have determined that the

30

challenged action was lawful.” Figueroa v. Mazza, 825 F.3d 89, 100 (2d Cir. 2016) (emphasis in
original).
The events at issue took place on March 9, 2011. At that time, neither the Second Circuit
nor Supreme Court had published a decision regarding the use of force involving tasers. See
Woolfstead, supra, at 305. “[T]he absence of a decision by [the Second Circuit] or the Supreme
Court directly addressing the right at issue will not preclude a finding that the law was clearly
established so long as preexisting law clearly foreshadows a particular ruling on the issue.”
McGowan, 825 F.3d at 124 (quoting Garcia, 779 F.3d at 92 (internal quotation marks,
alterations, and citations omitted)). For that reason, “[a]n officer is not entitled to qualified
immunity on the grounds that the law is not clearly established every time a novel method is
used to inflict injury.” Terebesi v. Torreso, 764 F.3d 217, 237 (2d Cir. 2014). A defendant “can
still be on notice that [his] conduct violates established law even in novel factual circumstances.”
Hope v. Pelzer, 536 U.S. 730, 741 (2002); see also Anderson v. Creighton, 483 U.S. 635, 640
(1987).
On March 9, 2011, the clearest statement of the law in the Second Circuit regarding the
use of a level of force akin to that of a taser was Tracy v. Freshwater, 623 F.3d at 98. In Tracy,
the Second Circuit held that it was objectively unreasonable for an officer to use pepper spray
“mere inches away from the face of a defendant already in handcuffs and offering no further
active resistance.” Id. at 98. Like the officers in Tracy, Slezak was faced with a suspect who
was already in handcuffs and was no longer offering active resistance. If anything, Bryant posed
even less of a threat than the suspect in Tracy because he was in a holding cell and had not,
immediately prior to the challenged use of force, attempted to escape. See id. at 98. A
reasonable officer in Slezak’s position would be aware that he could not use a significant degree

31

of force on a confined individual who posed no threat and offered no active resistance. See
Powell, 891 F.2d at 1044 (officer’s use of force not objectively reasonable when pretrial detainee
was assaulted notwithstanding the fact that he made no effort to resist).
Like other courts before me, I hold as a matter of law that it was clearly established in
March 2011 that officers could not employ a significant degree of force, such as a taser, against a
suspect who was handcuffed, surrounded by multiple officers, in a police station holding cell,
and who did not pose either a threat to the officers or a threat of escape. See Casey, 509 F.3d at
1286 (officer not entitled to qualified immunity notwithstanding lack of published decision
holding taser use to be excessive because use of taser was unjustified in light of Graham);
Towsley v. Frank, 2010 WL 5394837, at *11 (D. Vt. Dec. 28, 2010) (holding that Tracy made it
clearly established that officer was not entitled to qualified immunity for taser use against
suspect who was neither resisting nor fleeing arrest). Accordingly, Slezak is not protected by
qualified immunity in his decision to tase Bryant, and Egan is not protected by qualified
immunity because a reasonable officer in his position would have known of his responsibility to
intervene to prevent Slezak from tasing Bryant.
IV.

Conclusion
For the foregoing reasons, Bryant’s motion for judgment as a matter of law or, in the

alternative, motion for a new trial (doc. # 141) is granted in part and denied in part. The jury’s
conclusion that Bryant’s Fourth Amendment rights were not violated at the scene of the arrest is
neither unreasonable nor against the weight of the evidence. The jury’s conclusion that Bryant’s
Fourth Amendment rights were not violated when he was tased in the holding cell is against the
weight of the evidence. Moreover, the involved officers, Egan and Slezak, are not entitled to

32

qualified immunity on that claim. A new trial of the claims against Egan and Slezak will be
scheduled at the earliest possible date. Judgment in favor of the other officers is undisturbed.
So ordered.
Dated at Bridgeport, Connecticut, this 31th day of March 2017.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

33