WILLIAM E. SMITH, United States District Judge.
After a confrontation between the police and Mark Jackson, Jackson died in police
Defendants Kelley, Lukowicz, and the Town moved for partial summary judgment on the assault and battery claim and the constitutional claims relating to the events leading up to Jackson's arrest. After considering the parties' arguments, the Court concludes that there are disputed issues of material fact, and therefore the case must proceed to trial.
The following facts are gleaned from the parties' recitation of the facts. It is indicated where facts are disputed. Because this matter is before the Court on a motion for summary judgment, the facts are viewed in the light most favorable to Plaintiff, the non-moving party. See Morelli v. Webster, 552 F.3d 12, 15 (1st Cir.2009).
On June 27, 2008 at around 11 p.m., forty-seven-year-old Mark Jackson went to Joyal's Liquors in West Warwick to buy tobacco products. Jackson had struggled with mental illness over the previous twenty or so years.
At about the same time that evening, West Warwick Police Officers Kelley and Lukowicz (collectively "the officers") received a dispatch call indicating that two vandals had damaged a sign in front of Joyal's. Officer Kelley was quite familiar with the area, having regularly patrolled the neighborhood during the previous two and a half years and pulling into Joyal's parking lot at least once every shift. The officers drove to the liquor store, and upon arriving Officer Kelley "looked quickly" at the sign in front and saw no damage. (Kelley's Dep. at 132, ECF No. 63-3.)
The officers proceeded around the rear of the building to the well-lit parking lot,
Apparently not satisfied to let Jackson go on his way, the officers got within a couple of feet of Jackson, and Kelley reached out for Jackson's right arm. Jackson "swatted" or "flailed" in response, deflecting the contact. Notably, neither Kelley's reach nor Jackson's "flail" or "swat" made contact.
The officers testified at their depositions that it was at this point that they decided to arrest Jackson for assault or assault on a police officer.
Before the officers could handcuff Jackson, he got back up. The officers again tried to gain control to no avail; they were all sent to the ground for a second time. According to Officer Lukowicz, Jackson stood up a second time, this time starting toward Lukowicz. Officer Lukowicz pulled out his baton, and ordered Jackson to the ground; Jackson continued to move toward Lukowicz. With Jackson still resisting, Kelley sprayed Jackson with pepper spray, but it apparently had no effect. Lukowicz and Kelley then each struck Jackson twice in the thigh area with their batons. The struggle continued, and the officers grabbed hold of Jackson's wrists again and brought him to the ground for a third time. At around the time three other officers arrived to provide backup, Lukowicz and Kelley successfully placed Jackson in handcuffs.
Throughout the struggle, the officers repeatedly instructed Jackson to stop resisting them and to lie on the ground. After Jackson was handcuffed, he continued to ignore the officers' commands and to resist their efforts. Eventually, the officers got Jackson in the back of Officer Lukowicz's cruiser. He was transported to the police
Defendants argue that partial summary judgment should enter in their favor with respect to the assault and battery, false arrest, and excessive force claims because Jackson's Fourth Amendment rights were not violated, and even if there was a violation, Defendants are protected by qualified immunity.
Summary judgment may be granted only where there are no genuine issues of material fact. Dávila v. Corporación de P.R. Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.2007). There is a genuine issue of material fact where "a reasonable jury could resolve the point in favor of the nonmoving party" in a way that would be outcome determinative. Velez-Rivera v. Agosto-Alicea, 437 F.3d 145, 150 (1st Cir. 2006) (quoting United States v. One Parcel of Real Prop., 960 F.2d 200, 204 (1st Cir. 1992)).
Qualified immunity shields officers 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." Estrada v. Rhode Island, 594 F.3d 56, 63 (1st Cir.2010) (quoting Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 526 (1st Cir.2009)). In deciding whether qualified immunity is appropriate, a court must determine "(1) whether the facts alleged or shown by the Plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was `clearly established' at the time of the defendant's alleged violation." Estrada, 594 F.3d at 62-63 (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.2009)). The second inquiry is made up of two prongs: (1) "the clarity of the law at the time of the alleged civil rights violation," and (2) given the actual facts of the case, whether "a reasonable defendant would have understood that his conduct violated the Plaintiffs' constitutional rights." Id. at 63.
Because qualified immunity is not merely a defense from liability but a defense from suit, courts are called upon to decide the issue of qualified immunity as early in the litigation as possible. See Morelli, 552 F.3d at 18. Recently, the First Circuit addressed the tension underlying a court's resolution of qualified immunity at the summary-judgment stage. Id. at 18-19. The court noted that on one hand, the facts must be viewed in the light most flattering to the non-moving party, but on the other hand, qualified immunity requires deference to defendant-movant's "reasonable, if mistaken, actions." Id. at 19. To pay due respect to both directives, a court must proceed by "first identifying the version of events that best comports with the summary judgment standard and then asking whether, given that set of facts, a reasonable officer should have known that his actions were unlawful." Id.
In this case, it is clear that Jackson was not seized for purposes of the Fourth Amendment until Officer Kelley effectuated contact with him by placing him in an arm-bar hold. See California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that a "seizure" has occurred when there has been either application of physical force or submission to authority, and that police pursuit
The parties approach the analysis from two different angles. Defendants suggest that the officers had probable cause to arrest Jackson on account of his "swat" or "flail," and even if they did not, they had reasonable suspicion to detain Jackson to question him about the vandalism. And, Defendants say that even if they fail on both of those arguments, the qualified immunity inquiry must be decided in their favor. Plaintiff, taking the events chronologically, argues that the officers did not have reasonable suspicion to detain Jackson in the first place, and that Jackson's gesture did not create probable cause justifying an arrest. In part, Plaintiff refutes probable cause by arguing that the officers provoked Jackson's gesture and that probable cause cannot exist where it was manufactured by police action. Plaintiff also argues that Jackson was acting in self-defense when he "flailed" or "swatted" at the officers, because he was resisting the officers' unlawful detention.
Plaintiff's argument no doubt raises an interesting question about a citizen's right to walk away,
Because there was no seizure until Kelley executed the arm-bar hold, the Court begins this discussion with the question of whether the officers had probable cause to arrest Jackson at the time of the seizure. If so, the seizure was lawful; if not, the Court must determine whether even if the officers were mistaken, qualified immunity protects the officers from suit.
An officer has probable cause to arrest where, at the time of the arrest, the "facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Holder v. Town of Sandown, 585 F.3d 500, 504 (1st Cir.2009) (quoting Michigan
Here, Defendants argue that the officers had probable cause to arrest Jackson for assault.
Viewing the facts in the light most favorable to Plaintiff, the Court concludes that a jury could find that Jackson's "flail" or "swat" did not provide the officers with probable cause to arrest him for assault. It is not entirely clear to the Court what this "flail" or "swat" looked like. It could have been a sweeping movement with a closed fist, or a very slight movement with an open palm. His arm could have barely left his side, or it could have been moving all about. It is difficult (maybe even impractical) to describe precisely such a gesture using words, and although the question was asked in the officers' depositions, the answers left things unclear and created a question of fact. Given this disputed issue of material fact, a reasonable jury could conclude that the movement was neither "of a threatening nature" nor "an offer of corporal injury" that would put a reasonable person in reasonable fear of imminent bodily harm.
Defendants next argue that even if the officers did not have probable cause to arrest Jackson, they had reasonable suspicion to forcibly detain him for questioning about the vandalism.
Here, assuming Plaintiff's version of the disputed facts, a reasonable jury could conclude that the officers did not have reasonable suspicion to detain Jackson. The jury could find the following facts: the dispatch indicated that two individuals were responsible for the vandalism; Officer Kelley looked at the sign and saw no damage; the parking lot was well-lit; Joyal's was not in a high-crime area;
It is well settled that the "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 v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). However, where an officer uses greater than reasonable force during an arrest or investigatory stop, the Fourth Amendment is implicated. Raiche v. Pietroski, 623 F.3d 30, 36 (1st Cir.2010) (citing Graham, 490 U.S. at 394-95, 109 S.Ct. 1865). To determine whether force was reasonable under the circumstances, a court should consider "three non-exclusive factors: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight." Raiche, 623 F.3d at 36 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865).
Here, the officers subdued Jackson by bringing him to the ground, hitting him four times with their batons, and spraying him with pepper spray. Plaintiff argues that this was excessive.
Reasonableness is the touchstone of the excessive force analysis and here, reasonableness cannot be determined in light of the disputed material facts. See Morelli, 552 F.3d at 25. If the jury resolved the probable cause and reasonable suspicion inquiries in favor of Plaintiff, the jury could also find that officers in Officers Kelley and Lukowicz's positions applied excessive force. Accordingly, as with the other constitutional claims, the Court must defer its judgment on the officers' qualified immunity argument as to excessive force.
In sum, there are too many disputed material facts to allow the Court to make a qualified immunity determination at this time as to Plaintiff's Fourth Amendment and assault and battery claims. Once the facts have been presented at trial, the Court will be in a better position to do so.
For the reasons stated herein, Defendants' motion for partial summary judgment is DENIED.
IT IS SO ORDERED.
The Court believes that the facts of this case indeed present an intriguing question. The officers here did more than just ask Jackson to speak to them, and Jackson in response did less than push the officers. The facts appear troublesome, but the Court does not need to resolve here whether the police provocation must be considered in the Fourth Amendment analysis. Cf. United States v. Yang, 345 F.3d 650, 660 (8th Cir.2003) ("Courts should be wary of relying on ambiguous conduct that law enforcement officers have provoked."); Wong Sun v. United States, 371 U.S. 471, 484[, 83 S.Ct. 407, 9 L.Ed.2d 441] (1963) (warning against a result that "would mean that a vague suspicion could be transformed into probable cause for arrest by reason of ambiguous conduct which the arresting officers themselves have provoked.").
