Bongiorno v. Perilli

537 F.Supp.3d 367

Joseph BONGIORNO, Plaintiff,

v.Police Officer Christopher PERILLI in his individual capacity,¹ Defendant.

1:19-cv-00423 (BKS/CFH)

United States District Court, N.D. New York.

Signed May 7, 2021

For Plaintiff: Brian M. Dratch, Franzblau Dratch, P.C., 233 Broadway, Suite 1800, New York, New York 10279.

For Defendant: Louis U. Gasparini, Schwab & Gasparini, PLLC, 222 Bloomingdale Road, Suite 200, White Plains, New York 10605.

MEMORANDUM-DECISION AND ORDER

Brenda K. Sannes, United States District Judge:

I. INTRODUCTION

Plaintiff Joseph Bongiorno brings this action under 42 U.S.C. § 1983 alleging that Defendant subjected him to excessive force in violation of the Fourth Amendment. (Dkt. No. 2).² Defendant moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on the grounds that Defendant's use of force was objectively reasonable in light of Plaintiff's attempt to escape and resisting arrest, and that Defendant is entitled to qualified immunity. (Dkt. No. 24-17). Plaintiff opposes Defendant's motion. (Dkt. No. 28-4). For the reasons discussed below, Defendant's motion is granted.

II. FACTS³

On September 22, 2017, a warrant was issued for Plaintiff's arrest on two counts of Criminal Sale of a Controlled Substance in the Third Degree, a Class B felony, in violation of N.Y. Penal Law § 220.39(1), and two counts of Criminal Possession of a Controlled Substance in the Third Degree, a Class B felony, in violation of N.Y. Penal Law § 220.16(1). (Dkt. No. 24-7, at 12). Defendant, a police officer with the Glens Falls Police Department, learned of the warrant for Plaintiff's arrest on the four drug counts through his position with the police department. (Dkt. No. 24-13, at 21). Defendant knew Plaintiff through his prior employment at a correctional facility, where Plaintiff had been incarcerated. (Dkt. No. 24-13, at 23).

On September 28, 2017, at approximately 7:05 p.m., Defendant spotted Plaintiff driving a white Toyota Sienna minivan "in the Elm and Exchange Street parking lot" in Glens Falls, New York. (Dkt. No. 24-16, ¶ 17). Defendant turned on his emergency lights and stopped Plaintiff in the parking lot. (Id. ¶ 18; Dkt. No. 24-13, at 33; Dkt. No. 24-12, at 25). Defendant approached the driver's side of the white Toyota Sienna and asked Plaintiff to step out of the vehicle, at which point he placed Plaintiff under arrest. (Dkt. No. 24-16, ¶ 20). Defendant handcuffed Plaintiff's hands behind his back and placed him in the rear of Defendant's patrol car. (Id. ). Defendant searched the interior of Plaintiff's car, assisted by Glens Falls Police Officer Zachary Tanner, and the officers found marijuana. (Id. ¶ 21).

While in the rear of Defendant's patrol car, Plaintiff caught Defendant's attention and Defendant stopped searching the car to approach Plaintiff. (Dkt. No. 24-16, ¶¶ 22-23; Dkt. No. 28-3, ¶ 22).⁴ Plaintiff informed Defendant that the handcuffs were too tight, and Defendant allowed Plaintiff to get out of the patrol car so that Defendant could loosen them. (Dkt. No. 24-16, ¶ 23; Dkt. No. 28-3, ¶¶ 23-24). Defendant removed the left handcuff, and then "reapplied and double locked" the handcuff so that it "would not tighten up again." (Dkt. No. 24-16, ¶ 23).⁵ Defendant then removed the handcuff from Plaintiff's right wrist. The parties dispute what happened next.

Defendant testified that after he removed the handcuff from Plaintiff's right wrist, Plaintiff ran away. (Dkt. No. 24-16, ¶ 24). Plaintiff ran north in the parking lot, away from the police car, with a handcuff on one hand while Defendant was holding onto the other handcuff. (Dkt. No. 24-13, at 55, 57). Plaintiff went "10 yards maybe," with Defendant holding onto one of the handcuffs before Defendant was able to stop him. (Id. at 56-57). Defendant never lost possession of that handcuff. (Id. at 57). Defendant took Plaintiff "down to the ground" after catching up with him. (Id. at 58). When Defendant was asked how he took Plaintiff to the ground, Defendant explained "I believe I grabbed his arm and I just -- we both went to the ground. I ran him down to the ground." (Id. ). Defendant did not know whether Plaintiff's head struck the ground when he was brought to the ground. (Id. at 59). Defendant denies picking Plaintiff up to send him headfirst into the ground. (Id. at 58). Defendant testified that when they were both on the ground, Plaintiff initially "continued to resist," but that Plaintiff "started to comply" when Officer Tanner arrived. (Dkt. No. 24-13, at 60). In his police report, Defendant stated that when he caught up to Plaintiff, Plaintiff "continued to resist [Defendant's] efforts to be placed back into handcuffs by pulling and pushing away from [Defendant]," so Defendant "put [Plaintiff] on the ground where [Officer Tanner] assisted [him] with getting [Plaintiff] hand cuffed." (Dkt. No. 24-7, at 15).

Plaintiff testified that the patrol vehicle was "extremely hot," that the handcuffs were "severely tight," and that he "felt that he was going to die" if he stayed in the vehicle. (Dkt. No. 24-12, at 35). In a verified answer to interrogatories, Plaintiff asserted that "as the officer was loosening the handcuffs, plaintiff leaned over due to disorientation at which time the officer turned plaintiff upside down throwing plaintiff to the ground head first." (Dkt. No. 24-6, at 2) (emphasis added). During his deposition Plaintiff testified that once the handcuff was removed, he "walked away." (Dkt. No. 24-12, at 35, 39-40). In his deposition, Plaintiff denied that he tried to "sprint away" or "run away," and maintained that he "walked away." (Dkt. No. 24-12, at 40-46). Plaintiff agrees that he was attached to the handcuffs, and to Defendant, "the whole time." (Dkt. No. 24-12, at 39-40, 46; Dkt. No. 28-3, ¶ 26). Plaintiff testified that he never "went more than 2 feet," as he was still attached to the handcuff, and that Defendant "swung Plaintiff around and slammed Plaintiff down on his head." (Id. at 46). Plaintiff testified that he believed that he "was upside down and slammed on [his] head," and that Defendant did this by himself. (Id. at 53).⁶ Plaintiff testified that he "was tackled" after he was slammed on his head. (Id. at 54). Plaintiff testified that, after he was slammed to the ground, he felt like his neck was broken. (Id. at 46-47). When questioned during his deposition about whether he continued to resist arrest, Plaintiff testified that he does not "really remember much" after being brought to the ground. (Id. at 8).

Officer Tanner testified that he became aware of this incident while he was searching Plaintiff's car. (Dkt. No. 24-14, at 32). Officer Tanner heard "what sounded like a scuffle in the distance," and when he went toward the area where he heard the "scuffle," he saw Plaintiff "actively resisting," with handcuffs "only attached to his left wrist," and Defendant "attempting to place [Plaintiff] in custody." (Id. at 32, 33). Officer Tanner did not see Defendant and Plaintiff go to the ground. (Id. at 34). Officer Tanner helped Defendant take Plaintiff into custody by taking Plaintiff's free arm and bringing it "behind his back to reattach the handcuff." (Id. at 34).

Defendant and Officer Tanner were both wearing body cameras. Defendant's body camera was knocked off during the struggle when Plaintiff began to run. (Dkt. No. 24-10, ¶ 9). The audio portion of that body camera, which had not been working prior to that point, began working when the body camera fell down. (Dkt. No. 24-10, ¶ 9; Dkt. No. 24-13, at 59).

The body cameras reflect the following.⁷ (See generally Dkt. No. 25). At 7:25:40 p.m., while Tanner was standing by a patrol car, Defendant's voice can be heard in the background telling Plaintiff that he would "double lock [the handcuffs]" so they "won't tighten up." At 7:25:41 p.m., Defendant allowed Plaintiff to get out of the patrol car. Plaintiff got out of the vehicle, and turned with his back facing Defendant. Plaintiff's left arm was freed from the handcuff at 7:25:59 p.m., and resecured at 7:26:09 p.m. Defendant then removed the right handcuff at 7:26:24 p.m. Seconds later, at 7:26:39 p.m., Plaintiff suddenly ran forward; the video shows Defendant continuing to hold onto Plaintiff by the left handcuff before Defendant's body camera was dislodged in the commotion at 7:26:41 p.m. Defendant's body camera then stopped recording video and the audio began to work. Also at 7:26:41 p.m., Tanner's body camera depicted him abruptly stopping the search of Plaintiff's vehicle and running to Plaintiff and Defendant.

At approximately 7:26:45 p.m., Plaintiff said "I'm not going nowhere," and Defendant's body camera recorded a response of, "You f ... ing aren't." Although Tanner seemed to have stopped running and arrived at the scene at 7:26:46 p.m., his body camera only recorded muffled commotion between the time of Plaintiff's comment and 7:26:48 p.m., when both body cameras record Plaintiff being instructed to "turn over, turn over" and then to "turn the f ... over." It was dark outside and Tanner's body camera footage is too dark and pixelated to make out any visible image until approximately 7:26:50 p.m. At that time the body camera depicts Plaintiff face down on the ground, and officers were instructing him to "turn over, turn over."

At 7:26:54 p.m., one of the officers said, "let me get his hand." At 7:26:58 p.m., Plaintiff said that he "can't breathe" and that he has a "heart problem." At 7:27:04 p.m., Plaintiff was directed not to resist and told to roll over onto his stomach. At 7:27:10 p.m., Plaintiff is visibly handcuffed. Plaintiff was assisted into a standing position at 7:27:21 p.m., and he returned to the back of a patrol car at 7:28:12 p.m.

Neither of the body cameras depict how Plaintiff was brought to the ground. Defendant's body camera was dislodged at 7:26:41 p.m., when Defendant was pulled along with Plaintiff's attempt to run, and the first discernable image of Plaintiff in...