KEARSE, Circuit Judge:
Plaintiff David Rogoz appeals from a final judgment entered in the United States District Court for the District of Connecticut, Vanessa L. Bryant, Judge, summarily dismissing all of his claims
Most of the facts are undisputed; and certain other facts have been admitted by the police officer defendants for the purpose of defending summary judgment on this appeal.
It is undisputed that on May 8, 2009, shortly after 11:00 a.m., Rogoz drove to the vicinity of Lawrence Street in Hartford, Connecticut (hereafter the "Lawrence Street area"), "a hot spot area for illegal drug activity," D.Ct.Op., 2013 WL 3816580, at *3 (internal quotation marks omitted), and, through the window of his vehicle, bought $50 worth of heroin. Rogoz then turned onto a one-way street and pulled over to the curb. A red Honda pulled in directly behind him. Rogoz promptly drove on and pulled over to the curb farther down the street. The red Honda then pulled in front of Rogoz, and a man exited. In an attempt to get away from the Honda man, Rogoz began to back his car up the one-way street, and the man began running toward him. When Rogoz saw a car coming behind him, he ceased backing up; drove forward over the curb and onto the sidewalk to pass the Honda man before reentering the roadway; and drove off at an unreasonably high rate of speed. He eventually reached a highway, the scene of his arrest.
Rogoz's brief on appeal describes the events after he reached the highway in flight from the Honda man, and the police officer defendants have "no material disagreements" (Brief on appeal for defendants-appellees Watson and the other officers ("Watson brief on appeal") at 5) with the following description:
(Rogoz brief on appeal at 5-6 (internal quotation marks omitted) (emphases ours).) Watson and the other officers state in their brief on appeal that they "accept for the purpose of this Motion for Summary Judgment Plaintiff's characterization that Detective George Watson jumped on Mr. Rogoz's back, landing knees first, and fracturing Mr. Rogoz's ribs and spine." (Watson brief on appeal at 5-6 (emphases added).)
Rogoz was charged with three state-law crimes: possession of narcotics, reckless driving, and disobeying an officer's signal to stop in order to escape. He pleaded guilty to the narcotics charge and was fined $300; the other two charges were dismissed.
Rogoz commenced the present § 1983 action in 2011 against the City, its Chief of Police, and the police officer defendants, asserting various claims under, inter alia, the Fourth Amendment and state law in connection with his arrest, including false arrest, false imprisonment, and use of excessive force. To the extent pertinent to this appeal, which pursues only the excessive-force-related claims against the police officer defendants and the City, the complaint included allegations that, at the Lawrence Street area, the man who exited the red Honda had "charged toward the Plaintiff's vehicle" and "failed to identify himself as a police officer in any respect" (Complaint ¶ 15 (emphasis added)); that Rogoz had fled the area "[b]elieving himself to be in imminent danger" (id. ¶ 16); that when Rogoz became aware on the highway that he was being pursued by police officers, he immediately stopped his vehicle on the shoulder of the highway (see id. ¶¶ 17-18); and that he "complied with the Defendant Officers' commands to show his hands, exit his vehicle and lie face down with his hands behind his back, offering no resistance of any sort" (id. ¶ 19 (emphasis added)). Then,
(Complaint ¶¶ 20-22.)
In his deposition, Rogoz testified that when he was in the Lawrence Street area he had no idea who the man who exited
As to his arrest, Rogoz testified that when he had lain face down on the ground as instructed,
(Rogoz Dep. at 79.) "It felt like he like jumped, you know.... [I]t seemed like, you know, he just like jumped on me is what it felt like, just hit so hard." (Id. at 80.) "It seemed like he ran up and jumped with his weight onto my back...." (Id. at 81.) The officer who jumped on Rogoz's back then handcuffed him; since a police report said that Rogoz was handcuffed by Watson, Rogoz inferred that the officer who jumped on his back was Watson. (See id. at 84-85.)
In an affidavit opposing defendants' motion for summary judgment, Rogoz's description of the scene of his arrest on the highway was similar to the allegations in his complaint:
(Affidavit of David Rogoz dated December 24, 2012 ("Rogoz Aff."), ¶¶ 10-13.) Rogoz said that "although [he] was in horrible pain from [his] injuries [he] initially did not ask for medical treatment because [he] was afraid of the police." (Id. ¶ 14.)
Defendants' motion for summary judgment dismissing Rogoz's excessive force claims was accompanied by, inter alia, a Statement pursuant to Local Rule 56(a) of the facts defendants contended were undisputed ("Defendants' Rule 56(a) Statement"), by documents including a police incident report filed by Watson on the date of Rogoz's arrest ("Watson Report" or "Report"), and by a memorandum of law ("Defendants' Summary Judgment Memorandum"). In his Report, Watson stated that he had been surveilling the Lawrence Street area and observed what appeared to be a purchase of narcotics by Rogoz, followed by Rogoz's parking nearby at "a common location where drug users pull over and ingest the recently purchased drugs." (Watson Report at 2.) Watson stated, "I parked my vehicle in front of Rogoz and approached the passenger side of his vehicle. I had my badge displayed while verbally identifying myself as Hartford Police." (Id.) The Report contains a description of Rogoz's ensuing flight that is similar, although not identical, to Rogoz's own description. With regard to Rogoz's arrest on the highway, Watson stated in the Report that, after being "stopped by marked Hartford police vehicles[,].... Rogoz was taken out at gun point and laid onto the ground at which time I approached
In their Rule 56(a) Statement, defendants described Rogoz's actions in the Lawrence Street area much as those actions had been recounted by Rogoz and the Watson Report. Defendants stated that after Watson exited the red Honda and "approach[ed] Rogoz's" car, "Rogoz tried to get away" (Defendants' Rule 56(a) Statement ¶¶ 7-8); but their Rule 56(a) Statement did not assert that Watson had identified himself to Rogoz as a police officer. Defendants' Rule 56(a) Statement stated that on the highway, Rogoz had complied with officers' directions to exit his car and to lie face down on the ground with his hands behind his back (see id. ¶¶ 16-17); it made no mention of any injury to Rogoz's back.
In their accompanying memorandum of law, defendants argued that "[i]rrespective of whether Detective Watson," as Rogoz alleged, "`jumped' on him with his weight and knee placed on the plaintiff's back which caused him to suffer a back injury," Watson was entitled to summary judgment on the merits because "it was objectively reasonable for Detective Watson to have used force" (Defendants' Summary Judgment Memorandum at 14) on the basis that Rogoz was charged with serious crimes (see id. at 16), "posed an immediate threat to the safety of the officers or others" (id.), and had "attempted to evade arrest by flight" (id. at 17). Defendants also argued that "[e]ven assuming plaintiff's version of events is true [for purposes of] summary judgment," Watson would be entitled to summary judgment on the basis of qualified immunity because Rogoz did not have "a clearly established right not to be subject to having the force employed by Detective Watson to effectuate his arrest under these circumstances presented to Detective Watson." (Id. at 18 n. 1.) And defendants argued that the police officer defendants other than Watson were entitled to summary judgment because Rogoz was unable to show any "personal involvement" in the use of force against Rogoz "by any of the defendant officers[] aside from Detective Watson." (Id. at 11.)
In his affidavit opposing defendants' summary judgment motion, Rogoz denied having knowingly fled from, or having intended to flee from, law enforcement. He stated:
(Rogoz Aff. ¶¶ 4-6 (emphases added).)
The district court granted the motion to dismiss Rogoz's excessive force claims, adopting the arguments put forth by defendants. See D.Ct.Op., 2013 WL 3816580, at *12. The court rejected Rogoz's contention that Watson's use of force was unreasonable because Rogoz was unaware in the Lawrence Street area that Watson was a police officer, and that Rogoz had fled only from an unidentified man who he reasonably suspected was threatening him, not from law enforcement officials. Noting that "Watson recounted in his Report that he `approached the passenger side of [the] vehicle' with his badge displayed and verbally identified himself as Hartford Police," id. at *3, the court found it "eminently reasonable for Detective Watson to believe... that Rogoz had fled after Watson
Id. (internal quotation marks omitted) (emphases ours).
The district court also concluded that Watson was entitled to qualified immunity. It stated that
D.Ct.Op., 2013 WL 3816580, at *16 ("not" emphasized in original; other emphases added).
The court also stated that it was not clearly established law "that a use of force to subdue an individual in circumstances akin to those in this case, after the individual has fled from police but prior to the individual being placed in handcuffs on the side of a highway, would violate such an individual's Fourth Amendment rights." Id. at *17 (emphases in original). It stated that
D.Ct.Op., 2013 WL 3816580, at *17 (citing Davis v. Callaway, 3:05-CV-00127, 2007
"On the other hand," the district court noted, "courts often find to be excessive similar force used against an arrestee ... where the arrestee offered no resistance." D.Ct.Op., 2013 WL 3816580, at *17 (emphases added). See, e.g., id. (noting that summary judgment has been found inappropriate in a case involving the use of "gratuitous force beyond what [wa]s necessary to subdue" (internal quotation marks omitted)).
The court granted summary judgment dismissing Rogoz's failure-to-intercede claims against the police officers other than Watson on the ground that Rogoz had presented no evidence that the other officers had an opportunity to intervene. It noted that Rogoz claimed that Watson ran and jumped on his back, a single instantaneous application of force, and it concluded that no reasonable jury could "conclude that the officers on the scene of Rogoz's arrest had a realistic opportunity to prevent the injuries he allegedly sustained." Id. at *19 (internal quotation marks omitted).
Having concluded that Rogoz's federal excessive-force-related claims against all of the police officer defendants lacked merit, the court dismissed on the merits Rogoz's analogous state-law claims, declined to exercise supplemental jurisdiction over other state-law claims, and found it unnecessary to address his state-law claims against the City for negligent infliction of harm or for indemnification, see Conn. Gen. Stats. §§ 52-557n, 7-465. See D.Ct.Op., 2013 WL 3816580, at *18, *24-25.
On appeal, Rogoz contends principally that the district court failed to view the record in the light most favorable to him and to draw all reasonable inferences in his favor, and thereby erred in ruling (a) that Watson's jumping on Rogoz's back with sufficient force to break his rib and break his spine in two places was reasonable as a matter of law, (b) that Watson was entitled to qualified immunity as a matter of law with respect to the use of such force, and (c) that the other police officer defendants had no reasonable opportunity to prevent the use of excessive force by Watson. For the reasons that follow, we conclude that the district court erred in granting summary judgment in favor of Watson.
"A motion for summary judgment may properly be granted — and the grant of summary judgment may properly be affirmed — only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir.2010) ("Kaytor"); see Fed.R.Civ.P. 56(a); see, e.g., Jasco Tools, Inc. v. Dana Corp., 574 F.3d 129, 151 (2d Cir.2009) ("Jasco"). "The function of the district court in considering the motion for summary judgment is not to resolve disputed questions of fact but only to determine whether, as to any material issue, a genuine factual dispute exists." Kaytor, 609 F.3d at 545; see, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Liberty Lobby").
Kaytor, 609 F.3d at 545-46.
"Summary judgment is inappropriate when the admissible materials in the record `make it arguable' that the claim has merit," id. at 545 (quoting Jasco, 574 F.3d at 151 (other internal quotation marks omitted)), "for the court in considering such a motion `"must disregard all evidence favorable to the moving party that the jury is not required to believe,"'" Kaytor, 609 F.3d at 545 (quoting Jasco, 574 F.3d at 152 (quoting Reeves, 530 U.S. at 151, 120 S.Ct. 2097 (emphasis in Jasco))). And in light of "the fact-specific nature of the inquiry" on an excessive force claim (see Part II.B. below), "granting summary judgment against a plaintiff on [such a claim] is not appropriate unless no reasonable factfinder could conclude that the officers' conduct was objectively unreasonable," Amnesty America v. Town of West Hartford, 361 F.3d 113, 123 (2d Cir.2004) ("Amnesty America").
In sum, summary judgment is proper only when, if all permissible inferences and credibility questions are resolved in favor of the party against whom judgment is sought, "there can be but one reasonable conclusion as to the verdict," Liberty Lobby, 477 U.S. at 250, 106 S.Ct. 2505, i.e., "it is quite clear what the truth is," Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (internal quotation marks omitted).
"Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion 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, it is also well established that law enforcement officers violate the Fourth Amendment if the amount of force they use is "`objectively [un]reasonable' in light of the facts and circumstances confronting them." Id. at 397, 109 S.Ct. 1865. "[P]roper application" of "[t]he test of reasonableness" in this context
Graham, 490 U.S. at 396, 109 S.Ct. 1865 (internal quotation marks omitted) (emphases ours). Further,
Id. at 396-97, 109 S.Ct. 1865. "The `reasonableness' of" the amount of force used thus "must be judged from the perspective of a reasonable officer on the scene.... at
The doctrine of "[q]ualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012); see, e.g., Tracy v. Freshwater, 623 F.3d 90, 95-96 (2d Cir. 2010); Papineau v. Parmley, 465 F.3d 46, 55 (2d Cir.2006). Officials are "entitled to qualified immunity [when] their decision was reasonable, even if mistaken," Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991); the doctrine "`gives ample room for mistaken judgments' by protecting `all but the plainly incompetent or those who knowingly violate the law,'" id. (quoting Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). "[W]hen a defendant official invokes qualified immunity as a defense in order to support a motion for summary judgment, a court must consider two questions: (1) whether the evidence, viewed in the light most favorable to the plaintiff, makes out a violation of a statutory or constitutional right, and (2) whether that right was clearly established at the time of the alleged violation." Tracy v. Freshwater, 623 F.3d at 96 (emphasis added).
In the present case, we have several problems with the grant of summary judgment to Watson, both on the merits of the excessive force claim — as to which Rogoz of course has the burden of proof — and on the issue of qualified immunity — an affirmative defense on which Watson has the burden of proof either at trial or on a motion for summary judgment, see, e.g., Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). As to the merits, at least two of the Graham factors that must be considered in determining whether the force used was necessary or was instead excessive could not properly be found to have been established as a matter of law. Defendants stated as undisputed facts that on the highway, when Rogoz "noticed two Hartford Police cruisers with lights activated," he "pulled over"; that "Rogoz was directed by an officer to exit his vehicle with his hands up, and he complied"; and that "Rogoz was directed by officers to lay face down on the ground with his hands behind his back, and he complied." (Defendants' Rule 56(a) Statement ¶¶ 15-17.) Accordingly, the police officer defendants expressed in their brief on appeal "no material disagreements" (Watson brief on appeal at 5) with Rogoz's assertions that, before Watson broke his back and rib, Rogoz had "complied with each of the officers' commands" and had "not resist[ed] in any way" (Rogoz brief on appeal at 6). Based on these facts a jury could easily infer that Rogoz — out of his car, prone on the ground, and compliant when Watson jumped on his back — did not "pose[] an immediate threat to the safety of the officers or others" and was not "actively resisting arrest or attempting to evade arrest by flight," Graham, 490 U.S. at 396, 109 S.Ct. 1865. That permissible
The police officer defendants contend that it is "[im]material" that Rogoz "was complying with officers' directions at the very moment in time that force was used against him." (Watson brief on appeal at 7.) This contention is meritless for two reasons. First, it is contrary to the Graham principle that, in the assessment of "[t]he `reasonableness' of a particular use of force ... from the perspective of a reasonable officer on the scene" in light of the particular circumstances, a "standard of reasonableness at the moment applies," 490 U.S. at 396, 109 S.Ct. 1865. While the district court found that "the totality of the circumstances sp[oke] to a level of urgency that preclude[d] a finding in Rogoz's favor," D.Ct.Op., 2013 WL 3816580, at *15, we cannot agree that that is so as a matter of law. Given the undisputed facts that on the highway, Rogoz had pulled over when he noticed the police vehicles, had complied with officers' orders to exit his car, and had complied with their orders to lie face down on the ground with his hands behind his back, and had done so without any show of resistance, a jury could find that, by that time, there was no urgency that necessitated jumping on Rogoz's back. And if the jury were to find that Watson in fact proceeded to jump on Rogoz's back with such force that he broke Rogoz's rib and/or his spine, it could well find that Watson had used more force than was necessary. Of course, the jury is not compelled to find either that Watson jumped on Rogoz's back — an assertion by Rogoz that is conceded by the police officer defendants only "for the purpose of" defending "Summary Judgment" (Watson brief on appeal at 5-6) — or that the amount of force used by Watson in fact broke Rogoz's spine and rib, an issue that remains in dispute. But if Watson jumped on the back of the prone, compliant Rogoz, breaking his spine and rib, it is surely at least arguable that the force used was excessive.
Second, in seeking to divert focus from the undisputed fact that Rogoz was compliant and prone on the ground with his hands behind him at the moment Watson jumped on his back, the police officer defendants argue that we must consider "the undisputed facts that led up to the moment of his arrest," which they describe as "including ... Rogoz's attempt to evade a law officer" (Watson brief on appeal at 7 (emphasis added)). And indeed, this view of Rogoz as having previously tried to escape capture by law enforcement was a major premise of the district court's grant of summary judgment in favor of Watson. See, e.g., D.Ct.Op., 2013 WL 3816580, at *15 (stating that "Rogoz had actively resisted Watson's attempt to apprehend him after he had purchased heroin" (emphasis added); referring to "Rogoz's urgent flight from law enforcement through Hartford's streets" (emphasis added); stating that Watson's use of force was reasonable "to assure that Rogoz did not resume this flight" (emphasis added); stating that force is reasonable "where the suspect has previously refused to comply with the officers' orders" (internal quotation marks omitted) (emphases ours)). The court also found, in concluding that Watson was entitled to qualified immunity, that "it was ... reasonable for Watson to believe that Rogoz had attempted to flee from law enforcement...." Id. at *16 (emphases added). Thus, both as to the merits of Rogoz's excessive force claim and as to Watson's defense of qualified immunity, the district court's conclusion that the force Watson used was warranted, or was reasonably believed to be warranted, rested on the premise that Rogoz, in fleeing from the Lawrence Street area, was knowingly fleeing from law enforcement.
The district court nonetheless found that it was "eminently reasonable for Detective Watson to believe ... that Rogoz had fled after Watson had identified himself as a police officer verbally and by displaying his badge," D.Ct.Op., 2013 WL 3816580, at *14 (emphasis added). But if in fact Watson, in the Lawrence Street area, did not identify himself as a police officer in any way, there was no basis in the record for the district court's findings (a) that Rogoz had previously resisted arrest, or (b) that he had knowingly fled from law enforcement officers, or (c) that Watson could reasonably believe Rogoz had resisted arrest or fled from law enforcement.
The district court disregarded the dispute as to whether Watson had identified himself in the Lawrence Street area, apparently finding Rogoz's affidavit and deposition testimony not credible. The court said that,
D.Ct.Op., 2013 WL 3816580, at *16 (emphasis added). This may explain why the court itself would not credit Rogoz's statement that Watson did not identify himself. But Rogoz's assertions as to this material fact, made under oath in his affidavit and his deposition, clearly created a genuine dispute. The question of Rogoz's credibility was a matter for the factfinder; it was not a matter that the court could properly resolve on a motion for summary judgment.
In addition to making a credibility determination and resolving against Rogoz the material factual issue of whether Watson had identified himself to Rogoz as a police officer, the district court failed in other
The court also failed to view the evidence in the light most favorable to Rogoz in analyzing the amount of force that was employed against him. In discussing excessive force principles, the court referred neither to any break or fracture of any of Rogoz's bones, nor to any violent conduct such as a jump onto Rogoz's back. Rather, it referred, for example, to the propriety of using "[s]ome degree of physical force," id. (internal quotation marks omitted) (emphasis added); to whether "[i]t was reasonable for Watson to employ some force against Rogoz," id. (emphasis added); to "plac[ing] a knee (or knees) on [Rogoz's] back," id. at *9 (emphasis added); to Watson's "putting his knee or knees on Mr. Rogoz's back," id. at *15 (emphasis added); to "put[ting] his weight on Rogoz's back to effectuate his arrest," id. at *17 (emphasis added). The question was not whether "some" force was unnecessary, or whether Watson's "put[ting]" his "weight" and "plac[ing]" his "knee" on Rogoz's back was acceptable; it was whether, with the record viewed in the light most favorable to Rogoz, with Rogoz prone on the ground and compliant, Watson's jumping on his back with such force as to break his spine and rib was excessive.
Having framed the issue as whether "[s]ome degree of force" and "plac[ing]" "weight" on a suspect's back could be reasonable, the court found that Watson was entitled to qualified immunity on the basis that the law was not clearly established that such force would violate a suspect's rights under the Fourth Amendment. However, actions by officers far less extreme than jumping on the back of a prone and compliant suspect, and apparently resulting in injuries far less serious than broken spines and ribs, had long been held sufficient to support a Fourth Amendment claim of use of excessive force. See, e.g., Maxwell, 380 F.3d at 109 (a 2004 decision reversing a grant of summary judgment dismissing an excessive force claim where an officer shoved the plaintiff into the back seat of a police car and the plaintiff's head "struck a hard surface of the car" causing "pain in[] her arm and lower back and ... a post-concussive syndrome"
Finally, had the district court properly disregarded defendants' contention that Watson had identified himself to Rogoz as a police officer in the Lawrence Street area — as it was required to do on a summary judgment motion, since a jury would be entitled to discredit such trial testimony by Watson — the court could not have found that the law was insufficiently clear for Watson to know he was violating Rogoz's Fourth Amendment rights. Without Watson's identifying himself as an officer, there was no evidence whatever that Rogoz had disobeyed any police order or had in any way resisted arrest. As the court itself noted, "courts often" have found the "gratuitous" use of "similar force" against an arrestee "where the arrestee offered no resistance," to be "excessive." D.Ct.Op., 2013 WL 3816580, at *17 (emphases added).
For the foregoing reasons, we conclude that Watson was not entitled to summary judgment either on the merits of Rogoz's excessive force claim or on Watson's defense of qualified immunity to that claim. We vacate so much of the judgment as dismissed Rogoz's Fourth Amendment claim against Watson for the use of excessive force.
Given the reinstatement of that claim, we also vacate the district court's dismissals of Rogoz's state-law claims that were related to it, including the analogous state constitutional claim that the court found meritless, the state-law claims as to which the court declined to exercise supplemental jurisdiction because all federal claims were being dismissed, and the claims against the City under Conn. Gen. Stats. §§ 52-557n, 7-465, for negligent infliction of harm or for indemnification, which the court found it unnecessary to address.
We affirm the entry of summary judgment in favor of the defendant police officers other than Watson substantially for the reasons stated in the district court's opinion. In order for a law enforcement officer to be held liable for another officer's use of excessive force, "there must have been a realistic opportunity [for the former] to intervene to prevent the harm from occurring." Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994).
As Rogoz described his arrest, when he placed himself prone on the ground as instructed, "that was when" Watson "ran up and jumped ... onto my back" (Rogoz Dep. at 79, 81). As Rogoz's counsel stated at oral argument of this appeal, Rogoz described Watson's jumping on his back as "fairly immediate." Rogoz did not proffer any evidence from which a juror could rationally infer that the officers who were present had a realistic opportunity to prevent Watson's jump.
We have considered all of the parties' arguments on this appeal, and, except as indicated above, have found them to be without merit. The judgment of the district court is vacated to the extent that it dismissed Rogoz's § 1983 claim against Watson for the use of excessive force and his state-law claims related to the use of excessive force; in all other respects the
Costs to plaintiff.
