Sanders v. Jersey City

JONATHAN SANDERS, Plaintiff, v. JERSEY CITY; JERSEY CITY POLICE DEPARTMENT;OFFICER M. OTUNDO, OFFICER F. A. MONTERO,OFFICER BAUER, OFFICER SALEH, and JOHN DOES 1-10, individuallyand in their official capacities as Officers with the Jersey City Police Department; Defendants.

Civ. No. 18- 01057 (KM) (JBC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

April 23, 2021

OPINION

KEVIN MCNULTY, U.S.D.J.:

Jersey City Police Officers Morton Otundo, Francisco Montero, Albert Bauer, and John Saleh responded to calls about a dog chasing people on the street and the dog's drunk owner, Jonathan Sanders. When the officers confronted Mr. Sanders, a physical altercation ensued, concluding with Sanders's arrest. Having suffered serious injuries, Sanders sued the officers, Jersey City, and the Jersey City Police Department, alleging constitutional and tort claims. Officer Otundo (DE 65) and the other Defendants (DE 66) separately move for summary judgment.¹

I am as always respectful of the mission of the police, who are called upon to make rational judgments with respect to persons who are not always acting rationally—and, unlike a judge, to do so without the benefit of hindsight and leisurely deliberation. Still, the summary judgment standard requires that I withhold judgment when the evidence presents material, disputed issues of fact. Finding such triable issues, I must deny defendants' motions for summary judgment in many respects. For the following reasons, then, the motions (DE 65, 66) are GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

There is no genuine dispute regarding how the events unfolded pre- and post-altercation. But there are different versions of what occurred during the altercation. I therefore trifurcate my discussion of the facts.

A. Pre-Altercation Events

On May 5, 2017, after drinking four or five margaritas with friends, Mr. Sanders returned to his apartment building in Jersey City. (Sanders Dep. at 22:2-3, 24:1-16, 25:5-22.) Soon after, his dog (Magoo, a 65-pound Staffordshire Terrier) escaped from his apartment. (Id. at 28:4-8, 31:18-19, 32:15-19, 34:19.) Sanders followed and found Magoo outside the doors to the building. (Id. at 39:6-21.) Running from the doors to the street is a long walkway flanked by greenery. (Id.) Magoo proceeded to the street, and Sanders followed. (Id. at 43:23-42:8.) Magoo then chased or came frighteningly close to some local residents. (DE 65-6.) These residents called 911 to report an uncontrollable dog and intoxicated owner. (Id.)

Officers Bauer and Saleh responded. (Bauer Dep. at 41:21-25.) By then, Mr. Sanders had gotten Magoo back near the door. (Sanders Dep. at 47:19-21, 50:4-22.) The officers proceeded up the walkway while yelling to Sanders to leash his dog. (Azem Video 1 at 0:07-42; see also Saleh Rep at 1.) Sanders yelled back at them, with a perceivable slur and combative tone, "he's not doing anything," "he's playing," and—repeatedly—"shut the fuck up." (Id.; Azem Video 3 at 0:20, 0:38; Azem Video 4 at 0:00-20.) As the officers came further up the walkway, Sanders approached them, saying "If you touch my dog—" while the officers told him to sit down. (Azem Video 5 at 0:27-47.) Then, one officer pushed him to sit down on a retaining wall. (Id.)

The officers talked with Mr. Sanders, as Magoo trotted around them. (Bauer Dep. 44:9-12; Saleh Dep. at 62:5-12.) The officers did not observe Magoo to be threatening. (Saleh Dep. at 42:11-15.) Nor did the officers then observe anything suggesting that Sanders would get physical with them. (Id. at 43:15-23; Bauer Dep. at 44:13-45:10.)

Officers Otundo and Montero soon arrived and joined the conversation. (Otundo Dep. at 74:6-16, 75:2-8; Bldg. Video at 0:00-0:30.) As Mr. Sanders's obstinacy continued, Otundo retrieved from his vehicle a citation book and power cord to use as an improvised leash. (Otundo Dep. at 75:24-76:1, 77:6-10.) Upon returning, Otundo said that he was going to issue a summons for violating the City's leash ordinance. (Otundo Rep. at 2.)

Considering the situation to be "safe," Officers Bauer and Saleh walked back to the street to speak with residents congregating there. (Saleh Dep. at 47:11-20, 51:6-53:20; see also Bauer Dep. at 45:11-19.) That left Officers Otundo and Montero with Mr. Sanders and Magoo. (Id.)

B. Altercation

Between video footage and the participants' accounts, no clear, complete picture emerges of what happened next.

1. Video Footage

There is video footage (images, but no sound) from the building's security cameras. (Bldg. Video; IA Rep. at 14-15.) The video shows Mr. Sanders standing and talking with Officers Otundo and Montero. (Bldg. Video at 0:00-0:30.) Otundo attempted to leash Magoo, exciting the dog, who began jumping around the three men. Sanders tried to gain control of Magoo with his right hand, but with his left began pointing in Otundo's direction. (Id. at 3:25-4:00). Sanders bent to grab Magoo, while the officers stood calmly. (Id. at 4:00-4:40.) While bent over, Sanders raised his left arm a foot or two. Otundo immediately and forcibly pushed Sanders away, and Sanders fell to the ground. (Id. at 4:42-48.)

Officer Otundo then attempted to restrain Mr. Sanders. At this point, however, the video picture is partially obstructed by foliage. From what can be seen, Otundo attempted to get Sanders's hands behind his back. There was some struggle between the two, and at one point, it can be seen that Sanders's hand was outstretched towards Otundo's shoulder and neck area. (Id. at 4:40-5:35.) Officer Montero walked around them calmly the entire time, snappinghis fingers at Magoo. Eventually, Otundo handcuffed Sanders, and Officers Saleh and Baur returned. (Id. at 6:20-38.)

2. Officer Otundo's Account

Officer Otundo described the event in a report written the same day and later in a deposition.

According to the report, after Officer Otundo attempted to leash Magoo, Mr. Sanders "brought his hand towards [Otundo's] face . . . in a threatening manner," so Otundo "shoved his arm back towards his torso to create distance and due to his highly intoxicated state, [Sanders] lost balance." Otundo then attempted to handcuff Sanders, but "he pulled the arm away and grabbed [Otundo's] neck in a choke hold." Sanders used "his left arm to clutch [Otundo's] uniform shirt over the right shoulder." Both officers gave commands to stop, but Sanders kept his grip. He then let go and "rapidly punched" Otundo in the face. During this altercation, both officers were in "a physical struggle" with Magoo as well. Otundo then "punched [Sanders] three times" in the face; as a result, "he was temporarily stunned"; and the two officers were able to summon Officers Saleh and Baur. (Otundo Rep. at 2.)

According to the deposition, after Officer Otundo attempted to leash Magoo, Mr. Sanders reached for Otundo's gun, prompting Otundo to push him away. (Otundo Dep. at 78:24-79:3.) When Otundo attempted to restrain him on the ground, Sanders tried to "jab[]" him in the face a few times, so Otundo "hit" him in response. Then, Sanders grabbed Otundo's neck, and Otundo responded with punches. (Id. at 79:4-12.) Sanders returned several punches. (Id. at 84:16-17.) Otundo acknowledged that those punches cannot be seen on video. Otundo also acknowledged that he never told Officer Montero he was being choked or punched. (Id. at 153:23-25, 90:18-22, 191:14-23.)

3. Mr. Sanders's Account

Mr. Sanders recalled having a conversation with the two officers and suddenly "getting hit in the face." (Sanders Dep. at 63:22-25.) He then remembers being face down, "punched repeatedly," and "called a 'fuckin'faggot.'" (Id. at 67:17-22.) He denies that he was told he was under arrest or that he choked Officer Otundo. (Id. at 70:1-23, 74:4-8.) The next thing he remembers is waking up in the hospital. (Id. at 71:7-10.)

4. Officer Montero's Account

In a report provided a few months after the incident, Officer Montero recounted the incident in terms similar to Officer Otundo's. He stated that Mr. Sanders "brought his hand towards P.O. Otundo's face in a threatening manner," Otundo "shoved his arm back," and, while on the ground, Sanders "grabbed P.O. Otundo by the neck and used his left arm to clutch his uniform." (IA Rep. at 5.) Later, in a deposition for this case, Montero testified that he did not recall the incident. (E.g., Montero Dep. at 55:1-9.)

C. Post-Altercation Events

1. Mr. Sanders's Medical Treatment

Once Officer Otundo subdued and handcuffed Mr. Sanders, he was placed under arrest and brought to a police station for processing by Officers Otundo and Montero. (Otundo Dep. at 123:21-24:23.) It became clear, however, that Sanders had serious facial injuries, so he was taken to a hospital by ambulance, accompanied by the two officers. (Id. at 124:3-125:8; Montero Dep. at 60:9-24.) He was handcuffed to a bed for the first 24 hours of what would be a six-day hospital stay involving surgery. (Sanders Dep. at 71:7-10, 77:13-14.)

Mr. Sanders suffered a blowout fracture of his right eye socket as a result Officer Otundo's direct blow to the bone there, as well as a nasal fracture. (Torchinsky Rep. at 3.) A mesh was implanted to prevent his eyeball from falling into the sinus. (Id.) Besides physical injury, Sanders now has crippling fears of the police or even walking his dog, requiring psychotherapy. (Gardere Rep. at 8.) He received diagnoses of post-traumatic stress disorder ("PTSD"), major depressive disorder, anxiety disorder, and body dysmorphic disorder due to the trauma of the event and his changed appearance. (Id. at 22-23.)

2. Criminal Charges

Officers Otundo and Montero left the hospital and went to the police station. (Montero Dep. at 60:9-24.) There, the two prepared an investigation report and a criminal complaint. (Otundo Dep. at 73:14-17, 117:8-12.) Montero swore out the criminal complaint, which charged Mr. Sanders with aggravated assault, resisting arrest, and disorderly conduct. (Crim. Compl. at 3.) Otundo wrote an...