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Bombard v. Volp

United States District Court, D. Vermont

September 8, 2014

MARTIN BOMBARD, Plaintiff,
v.
RICHARD VOLP, BURLINGTON POLICE DEPARTMENT, AND CITY OF BURLINGTON, Defendants

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For Martin Bombard, Plaintiff: Mary P. Kehoe, Esq., The Kehoe Law Firm, P.C., Burlington, VT.

For Richard Volp, Burlington Police Department, Defendants: Pietro J. Lynn, Esq., Lynn, Lynn & Blackman, P.C., Burlington, VT.

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OPINION AND ORDER

William K. Sessions III, United States District Judge.

Plaintiff Martin Bombard brings this action claiming that Burlington Police Officer Richard Volp's use of a Taser[1] constituted excessive force. Defendants Volp, the Burlington Police Department (" BPD" ), and the City of Burlington have moved for summary judgment and, in the event summary judgment is not granted, to bifurcate the trial. For the reasons set forth below, the motion for summary judgment (ECF No. 25) is GRANTED in part and DENIED in part, the motion to bifurcate (ECF No. 27) is GRANTED, and the motion to stay discovery (ECF No. 27) is DENIED. Defendants' pending motion for a protective order (ECF No. 38) and Bombard's motion for an extension of time (ECF No. 35) are GRANTED.

Factual Background

On the evening of July 29, 2011, plaintiff Martin Bombard went out for drinks with a friend at Rasputin's bar in Burlington, Vermont. While at Rasputin's, Bombard encountered his sister, Cathleen. Bombard consumed between three and five alcoholic beverages at the bar, and it is undisputed that he became intoxicated.

Daniel Soons was also at Rasputin's that evening with a group of friends. At one point, Cathleen asked Soons to move away from the bar so that she could buy a drink. Soons responded profanely. Bombard overheard Soons speaking to Cathleen, moved toward him and told him he was out of line. Bombard and Soons continued to exchange words until a bouncer asked Bombard to leave.

Bombard left Rasputin's voluntarily, but remained outside on Main Street for ten to fifteen minutes while waiting for Cathleen and his friend to exit. Soons subsequently exited the bar with a group of friends and challenged Bombard to a fight. Bombard responded, " Yes, let's go. Let's do it right now." Bombard and Soons then walked to City Hall Park, accompanied by Soons's friends.

Once at the park, Bombard punched Soons in the face and Soons fell to the ground. Bombard has testified that, fearing retaliation from Soons's friends, he immediately fled through an alleyway and onto Church Street, a pedestrian street in downtown Burlington. Bombard believed at the time that he was being chased, but did not know the identity of the chaser.

Burlington Police Officers Richard Volp and Leanne Werner were on the opposite side of Main Street from City Hall Park when Bombard hit Soons in the face. Officer Volp witnessed the punch, and claims that he called to Bombard to " come here." Volp Dep. at 41-42. Contrary to Bombard's testimony, Officer Volp contends that Bombard did not flee the scene immediately, but instead walked fifteen or twenty feet toward him in an aggressive manner, then fled when he realized that Volp was a police officer. Officer Volp pursued Bombard and claims to have yelled several times for him to stop. Bombard testified that he heard only footsteps behind him. Bombard Dep. at 69-73.

After exiting the alleyway, Bombard ran north on Church Street, which was crowded with bystanders. Officer Volp, still in pursuit, aimed his Taser's laser site at the center of Bombard's back. Bombard disputes whether Officer Volp also yelled " Stop, or I'll tase you." Because the street was crowded, Officer Volp determined

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that it was unsafe to shoot his Taser at that moment.

Officer Volp claims that at one point in the chase, Bombard turned toward him in an aggressive manner. This behavior caused Officer Volp to be concerned that Bombard posed a threat of violence. Bombard disputes ever turning around, or that he was even aware of Officer Volp's presence behind him. Officer Volp also allegedly determined that given Bombard's intoxication and assault of Soons, any attempt to grab and subdue Bombard would pose a risk of injury to himself, Bombard, and bystanders. Bombard disputes whether Officer Volp made this precise assessment, as Volp stated in his Incident Report that he did not know whether Bombard was intoxicated. ECF No. 28-4 at 2.

Officer Volp contends that he fired his Taser when Bombard turned to run again. It is undisputed that Bombard and Officer Volp were approximately ten to fifteen feet away from each other when the Taser was fired. One of the Taser probes hit Bombard in the head. Bombard lost consciousness, fell to the ground, and hit the pavement face first. The fall resulted in four broken teeth, multiple lacerations to his face, a concussion, and a wrist injury.

Officer Volp asserts that although he aimed for the center of Bombard's back, the probe may have struck Bombard in the head because as Bombard was turning to run, his body was in a semi-crouched stance. Because Bombard disputes ever stopping and turning toward Officer Volp, he also disputes that he was in a semi-crouched position. Bombard further disputes whether Officer Volp aimed for the center of his back.

During the time period relevant to this case, the Burlington Police Department (" BPD" ) maintained a Use of Force Policy governing the use of Tasers and other police weapons. The Use of Force Policy states that:

A police officer is justified in using non-lethal force upon another person when, and to the extent that, he/she reasonably believes it necessary to arrest, detain or effect custody, or to defend himself/herself or a third person from what he/she reasonably believes to be the imminent use of non-deadly force.

With specific regard to a Taser, also known as an Electronic Control Device or ECD, the Policy provides that: " The ECD is designed as a tool to respond to threat levels, which place the Officer or other individuals in the threat of physical harm due to the actions and behaviors of a suspect. The suspect must be actively aggressive and presenting a risk of injury to the Officer(s), him/herself or others." Tasers are " not to be used in a punitive or coercive manner, and shall not be used to . . . gain compliance from passively resistant subjects." BPD officers are required to obtain certification and training before they can be armed with Tasers.

Officer Volp was trained and certified, and receives annual Taser training. The written certification test identifies the head as a " sensitive ECD target area[] of the body to be avoided." Volp. Dep. at 29. The test also specifies that running subjects are at " elevated risk." Id. at 30. Volp testified that he is familiar with these protocols, as well as with the BPD's Use of Force Policy. The BPD reviewed Officer Volp's use of force and concluded that it was justified.

The Complaint alleges that Officer Volp used excessive force in violation of the Fourth Amendment. The constitutional claim is brought against Officer Volp, the BPD, and the City of Burlington. The Complaint also brings state law claims of battery, intentional infliction of emotional

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distress, and negligence against Officer Volp. For relief, Bombard seeks compensatory and punitive damages.

Procedural Background

Defendants have moved for summary judgment on all claims. Defendants followed their summary judgment motion with a motion to bifurcate trial and stay discovery. The latter motion argues that Bombard's municipal liability claims against the BPD and City of Burlington should be tried separately from his claims against Officer Volp. Defendants have also moved to stay discovery on the municipal liability claims, reasoning that such discovery will be unnecessary if the claims against Officer Volp are dismissed.

Bombard has opposed Officer Volp's motion for summary judgment. As to the BPD and the City, Bombard claims that he has not yet received sufficient discovery responses, and has therefore moved for an extension of time in which to respond to their portion of the summary judgment motion. Since filing the above-referenced motions, the parties have stipulated to stay consideration of a portion of the summary judgment motion, specifically, Defendants' argument that any constitutional violation was not the result of an official policy or custom. The parties also agreed that Bombard would withdraw his motion to compel the discovery of excessive force ...


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