Therrien v. Town of Jay, Civil No. 06-31-B-W.

483 F.Supp.2d 19

Scott C. THERRIEN, Plaintiff, v. TOWN OF JAY, et al., Defendants.

Civil No. 06-31-B-W.

United States District Court, D. Maine.

April 6, 2007.

Brett D. Baber, Law Office of Brett D. Baber, Bangor, ME, for Plaintiff.

Michael E. Saucier, Thompson & Bowie, Portland, ME, Peter T. Marchesi, Wheeler & Arey, P.A., Waterville, ME, for Defendants.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

WOODCOCK, District Judge.

Scott C. Therrien brings an action under 42 U.S.C. § 1983 against police officer Stephen J. Gould, alleging that the officer used excessive force in effecting his arrest by taking him down to the ground and by kicking and beating him unconscious while he was on the ground.¹ Concluding that, under Saucier v. Katz,² Officer Gould's initial takedown of Mr. Therrien was objectively reasonable under the circumstances, the Court grants the Officer's motion for summary judgment on that portion of the claim. However, as regards the allegations of a post-arrest beating, the Court, with considerable misgivings, concludes that viewing the evidence in the light most favorable to Mr. Therrien, he has survived — but just barely — the Officer's dispositive motion.

I. STATEMENT OF FACTS³

On February 27, 2004, Scott Therrien and Roger Baldridge were drinking at Ma Ducks Bar in Jay, Maine.⁴ Def's Statement of Material Facts ¶ 19 (Docket # 25) (DSMF); Pl.'s Opposing Statement of Material Facts ¶ 19 (Docket # 26) (POSMF). Mr. Baldridge had driven his pickup truck to Ma Duck's; Mr. Therrien was his passenger. DSMF ¶ 20; POSMF ¶ 20. They spent approximately ninety minutes at Ma Ducks and left around 7:30 p.m. DSMF ¶ 31; POSMF ¶ 31. Prior to his arrest shortly thereafter, Mr. Therrien had consumed five Budweiser beers. DSMF ¶ 26; POSMF ¶ 26. Before leaving for Ma Ducks, Mr. Baldridge had consumed a mixed drink and, while there, had four beers and a shot of alcohol. DSMF ¶ 27; POSMF ¶ 27. Mr. Therrien admits he was intoxicated and should not have been driving, but insists Mr. Baldridge was not intoxicated. DSMF ¶¶ 28-29; POSMF ¶¶ 28-29. Mr. Baldridge admits he was intoxicated and should not have been driving. DSMF ¶ 30; POSMF ¶ 30.

After leaving the bar, with Mr. Baldridge driving, the pair traveled south towards Livermore Falls. DSMF ¶ 32; POSMF ¶ 32. While en route, Mr. Baldridge was stopped and confronted by an individual concerned about his driving. DSMF ¶ 33; POSMF ¶ 33. Mr. Baldridge and Mr. Therrien switched seats after the confrontation. DSMF ¶ 34; POSMF ¶ 34. Although his license was under suspension, Mr. Therrien continued driving the pickup truck until he was stopped and arrested in Jay.⁵ DSMF ¶¶ 24, 35; POSMF ¶¶ 24, 35.

On the evening of February 27, 2004, Officer Stephen Gould was on patrol in Livermore Falls.⁶ DSMF ¶ 36; POSMF ¶ 36. At approximately 7:45 p.m., the Jay Police Department dispatch radioed officers that a pickup truck was swerving from side to side and driving erratically through Livermore Falls. DSMF ¶ 37; POSMF ¶ 37. Officer Gould was patrolling in a marked police car in Livermore Falls and heard a call for assistance from Jay police officers involving a motorist who was refusing to stop for them. DSMF ¶ 38; POSMF ¶ 38. After spotting the vehicle driven by Mr. Therrien, Officer Gould joined two Jay police cruisers in pursuit. DSMF ¶¶ 39-40; POSMF ¶¶ 39-40. Officer Gould was third in line behind Jay police officers Jeffrey Fournier and Paul Mingo. DSMF ¶ 41; POSMF ¶ 41.

During the pursuit, Officer Jeffrey Fournier went in front of Mr. Therrien in an attempt to force an end to the low speed chase. DSMF ¶ 46; POSMF ¶ 46. Mr. Therrien attempted to pass Officer Fournier's cruiser, but Officer Fournier prevented him from doing so. DSMF ¶ 47; POSMF ¶ 47. Mr. Therrien then stopped the vehicle and Officers Fournier and Mingo go left their cruisers to approach the truck. DSMF ¶ 48; POSMF ¶ 48. With Officers Fournier and Mingo out of their vehicles, Mr. Therrien drove off, evading the officers by going into a ditch and up a snow bank. DSMF ¶¶ 49-50; POSMF ¶¶ 49-50.

Officer Gould, who remained in his vehicle, immediately followed Mr. Therrien. DSMF ¶ 51; POSMF ¶ 51. Now Officer Gould was the only vehicle immediately pursuing Mr. Therrien. DSMF ¶ 53; POSMF ¶ 53. Officers Fournier and Mingo back-tracked to the intersection where they expected to encounter Mr. Therrien and Officer Gould. DSMF ¶¶ 52, 54; POSMF ¶¶ 52, 54. Officer Gould continued the pursuit until Plaintiff stopped the truck, at which time he radioed that the vehicle stopped. DSMF ¶¶ 55-56; POSMF ¶¶ 55-56. Officer Gould did not know where Officers Fournier and Mingo were at the time of the stop. DSMF ¶ 58; POSMF ¶ 58. On hearing that Officer Gould had the vehicle stopped, Officers Fournier and Mingo proceeded to the location of the stop. DSMF ¶ 57; POSMF ¶ 57.

For his own safety and consistent with his training, as Officer Gould came upon the stopped vehicle, he placed his vehicle in a "felony stop" position, at an angle and in front of Plaintiffs vehicle. DSMF ¶¶ 62-64; POSMF ¶¶ 62-64. This position commonly requires the officer to use a different approach to the vehicle other than that normally used in a traffic stop; however, the circumstances surrounding the stop dictate what is required of a police officer. DSMF ¶¶ 65-66; POSMF ¶¶ 65-66. Here, Officer Gould left his vehicle and drew his weapon because the individuals had failed to stop and were likely under the influence. DSMF ¶ 68; POSMF ¶ 68. Officer Gould stood behind his police car with his weapon drawn and ordered Mr. Therrien to show his hands. Pl.'s Statement of Additional Material Facts ¶¶ 128, 130 (Docket # 26) (PASMF); Def's Reply to Pl.'s Additional Material Facts ¶¶ 128; 130.⁷ (Docket # 29) (DR). Mr. Therrien made his hands visible to Officer Gould in accordance with his orders. PASMF ¶¶ 130; DR ¶ 130.

Officer Gould ordered the occupants to shut off the truck engine and remove the keys from the ignition. DSMF ¶ 69; POSMF ¶ 69. Because Officer Gould had ordered him to keep his hands in the air, Mr. Therrien did not turn the engine off. DSMF ¶ 70; POSMF ¶ 70. Mr. Baldridge reached over and turned the engine off. DSMF ¶ 72; POSMF ¶ 72. Officer Gould ordered the occupants to take the keys out of the ignition, which Mr. Baldridge did. DSMF ¶ 75; POSMF ¶ 75. Officer Gould demanded that Mr. Therrien raise his hands and exit the vehicle. DSMF ¶ 76; POSMF ¶ 76.

Officer Gould left the area behind his police car, holstered his gun, and walked up to the vehicle. PASMF ¶ 131; DR ¶ 131. He would not have done so and would have stopped his approach to the vehicle if either occupant had moved his hands to where he could not see them. PASMF ¶ 132; DR ¶ 132. Officer Gould ordered Mr. Therrien to exit the vehicle with his hands up and Mr. Therrien complied with these instructions. PASMF ¶¶ 133-134; DR ¶¶ 133-134.⁸ However, it seemed to Officer Gould that Mr. Therrien was taking a long time to exit the vehicle and it appeared to Officer Gould that Mr. Therrien was not immediately complying with his orders because he thought it was "funny." PASMF ¶¶ 135-136; DR ¶¶ 135-136. Mr. Baldridge, upon exiting the vehicle, got on the ground in response to Officer Gould's orders. DSMF ¶ 100; POSMF ¶ 100.⁹

Except for a narrow area of critical disagreement, the parties substantially agree to what occurred after Mr. Therrien exited the vehicle.¹⁰ Officer Gould made a split-second decision to take Mr. Therrien down to the ground quickly and forcefully. DSMF ¶ 93; POSMF ¶ 93. Officer Gould took two steps toward Mr. Therrien and made contact. DSMF ¶ 94; POSMF ¶ 94. Officer Gould grabbed him by the left wrist, went to Mr. Therrien's left side, keeping him on the officer's right, and he executed a takedown maneuver placing Mr. Therrien's left arm behind his back and forcing him down. DSMF ¶ 95-96; POSMF ¶ 95-96. Officer Gould recently learned this takedown technique at the Police Academy. DSMF ¶ 97; POSMF ¶ 97.

The major areas of disagreement are: (1) the number of officers present when Mr. Therrien and Mr. Baldridge exited the vehicle; (2) what else, if anything, happened when Mr. Therrien was on the ground and who, if anyone, did it; and, (3) what injuries Mr. Therrien sustained as a result. First, Mr. Therrien and Mr. Baldridge claimed that at least three officers were present at the scene when they got out of the truck. DSMF ¶ 116; POSMF ¶ 116. They further claimed that all the police officers had their guns drawn and pointed at them. DSMF ¶ 117; POSMF ¶ 117. Second, Mr. Therrien claims that when he was on the ground he received blows, kicks, and/or punches from at least two other officers. DSMF ¶ 118; POSMF ¶ 118; PASMF ¶ 138; DR ¶ 138. Officer Gould contends that he was the only officer on the scene until he had taken Mr. Therrien down and handcuffed both Mr. Therrien and Mr. Baldridge. DSMF ¶ 100; POSMF ¶ 100. Officer Gould denies punching or kicking Mr. Therrien when he was on the ground, but he admits that, in keeping with the police technique, he placed his knees on both sides of Mr. Therrien's shoulders so that he could not move. DR ¶ 138; Gould Dep. at 40:16-23 (Ex. 4 Docket # 25). Third, the parties agree that Mr. Therrien sustained facial abrasions, a broken tooth, a fat lip, and an inability to move his jaw. PASMF ¶ 143; DR ¶ 143. However, Mr. Therrien says that after he was taken down he also lost consciousness. DSMF ¶ 110; POSMF ¶ 110. He says that he recalls being struck two times while on the ground and that his next memory is being seated on the pavement leaning against the truck he had been driving. DSMF ¶ 111; POSMF ¶ 111. Mr. Therrien testified that once he was on the ground, he received blows, kicks, and/or punches from at least two other officers, whom he could not identify. DSMF ¶ 118; POSMF ¶ 118. He said he was knocked unconscious after the second blow. DSMF ¶ 119; POSMF ¶ 119. At the emergency room, Mr. Therrien was found to have a swollen lip, a...