United States District Court, D. Vermont
JOHN C. BRAYSHAW, JR., Plaintiff,
CITY OF BURLINGTON and OFFICER JASON BELLAVANCE, Defendants.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 52)
CHRISTINA REISS, Chief District Judge.
Plaintiff John Brayshaw, Jr. brings this action against Defendant City of Burlington ("Burlington") and Defendant Officer Jason Bellavance ("Officer Bellavance") under 42 U.S.C. § 1983, asserting a claim of excessive force in violation of Plaintiffs Fourth Amendment rights, and claims under Vermont law for assault and battery, excessive force, and intentional infliction of emotional distress. Pending before the court is Defendants' motion for summary judgment in which they argue Officer Bellavance applied a reasonable amount of force under the circumstances and is protected by qualified immunity.
On January 22, 2015, the court heard oral argument on this motion and took it under advisement. Plaintiff is represented by Russell D. Barr, Esq. and Jennifer J. Lajoie, Esq. Defendants are represented by Pietro J. Lynn, Esq.
I. Factual and Procedural Background.
A. Undisputed Facts.
On December 31, 2011, Plaintiff attended a New Year's Eve celebration with his sister, Jade Brayshaw. After midnight on January 1, 2012, Plaintiff and Ms. Brayshaw patronized Red Square, a bar on Church Street in Burlington, Vermont. They remained at the bar until it closed, at approximately 3:00 a.m. At the time, Ms. Brayshaw was intoxicated and Plaintiff admits to being "a little buzzed." (Doc. 52-3 at 20, Plaintiffs Dep. at 100:19.)
A kebab stand and a hot dog stand were stationed across the street from Red Square. When Plaintiff and Ms. Brayshaw left the bar, they joined the line for the kebab stand. A group of males in the line were loud and causing a commotion. Amir Jusafagic, who was the vendor of the kebab food cart, refused to serve the males, Plaintiff, and his sister, and sent them all to a nearby hot dog stand. Shortly thereafter, Jacqueline Bartko, the hot dog stand vendor, approached Mr. Jusafagic and complained that customers were not allowing her to work and asked him to get the police. Mr. Jusafagic summoned Officer Bellavance, who was on foot patrol, to advise him of the disturbance in the food cart lines, telling him that another vendor was having difficulty working because of it. In the hot dog line, Officer Bellavance observed Ms. Brayshaw playfully punching Plaintiffs stomach. He approached and asked Ms. Brayshaw to stop her behavior and leave the line and she did so. Officer Bellavance then asked Plaintiff to leave the line. When Plaintiff refused, Officer Bellavance radioed for back-up and removed Plaintiff from the line by taking hold of Plaintiffs left arm. At the time, Plaintiff was not under arrest and remained free to leave.
Thereafter, a bystander began to video record the interaction between Plaintiff and Officer Bellavance. The video depicts Officer Bellavance and Plaintiff surrounded by a small crowd of individuals who appear to be actively participating in the exchange between them. Officer Bellavance is seen moving Plaintiff away from the crowd by taking his left arm and walking him up the street in an escort position.
Officer Bellavance did not advise Plaintiff he was under arrest as he escorted Plaintiff up the street. Although it is not clear that Plaintiff "squar[ed] off' with Officer Bellavance as Defendants contend (Doc. 52-1 at 3, ¶ 18), it is clear that Plaintiff does not fully cooperate with Officer Bellavance's escort. Instead, the video depicts Plaintiff turning to face Officer Bellavance so that Plaintiff is walking backwards which impedes their progress away from the crowd. Plaintiff is considerably taller than Officer Bellavance and appears somewhat unsteady on his feet and his body is moving freely except for his left arm which Officer Bellavance is grasping. As they continue up the street, Plaintiff appears to make several attempts to break free of Officer Bellavance. The video depicts Plaintiff swinging his right arm into the air. It is not clear from the video whether Plaintiff is merely flailing his free arm or attempting to strike Officer Bellavance. Officer Bellavance responds by taking Plaintiff to the ground, using what he describes as an "arm bar takedown, " which caused Plaintiff's head to strike the pavement. The video ends at this point.
Corporal Philip Small arrived at the scene shortly after Officer Bellavance took Plaintiff to the ground. The officers handcuffed Plaintiff with some difficulty as Plaintiff continued to move his body and as Ms. Brayshaw attempted to intervene. Plaintiff was transported to the Fletcher Allen Health Care Emergency Department ("Fletcher Allen"), where he was diagnosed with a "Head Laceration and Alcohol Intoxication." (Doc. 52-5 at 4.) Plaintiff was held at a correctional facility and, when released, returned to Fletcher Allen on January 1, 2012. An emergency room staff member, Paul Jerard, PA, noted Plaintiff"smells of etoh [(alcohol)]." !d. at 8. Plaintiffwas diagnosed with fractures to his left orbit bone, frontal and ethmoid sinus, teeth, and right occipital condyle, as well as pneumocephalus.
After Plaintiff was taken into custody, Officer Bellavance returned to the scene and interviewed witnesses. In a sworn statement, Mr. Jusafagic stated that:
[H]is sister was constantly around me and in the front of me and I was not able to work.... I was thinking they are boyfriend and girlfriend. It ended up that's a brother and sister. I told them like-can you move your sister please away. And then he says, well what the f**k, here's money. And then I said, I am not going to serve you. Just leave. And she kept coming-she didn't let me work.
(Doc. 52-4 at 3:8-3:13.) "The guy was out of control. He was too drunk to think clear and he was totally out of control." !d. at 3:21-3:22.
I have seen coming here in the cart, going in the face and then [Officer Bellavance] tried to just tell [Plaintiff] to go away but he was kept coming back to you, kept coming back to [Officer Bellavance]. And then [he] tried to, I don't know, tried to make him quiet. To listen to [Officer Bellavance].
Id at 4:9-4:11.
Jacqueline Bartko, the operator of the hot dog stand, provided a sworn statement, asserting that:
[Plaintiff and his sister] came up to the hot dog stand and he was leaning into me drunkenly and not able to stand up straight, and was using me as his crutch. And so I asked him to move back more than once and then I proceeded to bump him back in self-defense almost, and then I looked at my partner and asked her to get rid of them because I was on the grill working food. And so the last that I experienced them at the stand they were making a mess with her. And then to my knowledge [Mr. Jusafagic] came down to get rid of them and then [Mr. Jusafagic]... got the cop.
Id at 5:2-5:8.
When I looked down [Officer Bellavance was] alone and at first [he] had been just to the left of the hotdog stand, and as a crowd was forming, which seemed to be [Plaintiff's] buddies because they were getting involved. I saw [Officer Bellavance] in defense sort of push him away and then as [Officer Bellavance] got further down the street I was actually concerned for [Officer Bellavance] because there was no back up and there was a crowd of at least a half a dozen people that were sort of mobbing [Officer Bellavance] for a good long time. About as long as it took me to make 3 cheese steaks.
Id. at 5:12-5:17.
On March 20, 2012, Plaintiff was arraigned in state court on charges of disorderly conduct, in violation of 13 V.S.A. § 1026(a)(l), and resisting arrest, in violation of 13 V.S.A. § 3017(a)(l). On April 18, 2012, the State of Vermont dismissed the resisting arrest charge and Plaintiff thereafter entered and successfully completed a diversion program for the disorderly conduct charge.
B. Disputed Facts.
The parties dispute the degree to which Plaintiff was intoxicated. Plaintiff contends that although the medical records indicate that he was intoxicated, they are unreliable because no testing of his blood alcohol concentration was performed. Defendants, in turn, rely on Mr. Jusafagic's and Ms. Bartko's post-incident sworn statements as evidence of the degree of Plaintiffs intoxication, as well as medical records that indicate Plaintiff was intoxicated upon his arrival at Fletcher Allen and still smelled of alcohol when he returned there after he was released from the correctional center.
Defendants contend that both Plaintiff and Ms. Brayshaw were engaged in play boxing behavior, but Plaintiff asserts that only Ms. Brayshaw engaged in this behavior. Although Defendants claim that Mr. Jusafagic identified Plaintiff and Ms. Brayshaw as the cause of the disturbance in the food cart lines, as Plaintiff points out, Mr. Jusafagic did not identify who was causing the disturbance when he initially sought Officer Bellavance's assistance.
The parties dispute how Plaintiff responded to Officer Bellavance's order to leave the hot dog line. Officer Bellavance contends Plaintiff stated he "[w]as getting his f**king hot dog[, ]'" (Doc. 52-6 at 2, ¶ 3), while Plaintiff contends he merely stated: "No, I want to get my food." (Doc. 52-3 at 16; Plaintiffs Dep. at 84:2.) Although it is undisputed that Officer Bellavance never advised Plaintiff he was under arrest as he escorted Plaintiff up the street, the parties acknowledge that Officer Bellavance testified in his deposition that, as he escorted Plaintiff away from the crowd, he "told [Plaintiff] he needed to go home or that he could be arrested[.]" (Doc. 67-2 at 17; Officer Bellavance's Dep. at 62:13-62:14.) Because this testimony is not included in the parties' factual submissions, it is not clear whether Officer Bellavance's testimony is contested.
Defendants claim Officer Bellavance employed an appropriate arm bar takedown when he forced Plaintiff to the ground. In contrast, Plaintiff contends that Officer Bellavance did not correctly apply the arm bar takedown because Officer Bellavance did not control Plaintiffs fall or direct him to the ground. Thomas Buda, Plaintiffs expert witness and a former officer with the New York City Police Department, opined that Officer Bellavance did not properly apply the arm bar takedown and "it was inappropriate to throw [Plaintiff] down to the ground that way." (Doc. 67-4 at 27; Mr. Buda's Dep. at 105:15-105:16.)
The parties dispute whether Officer Bellavance interviewed witnesses immediately after the incident or hours later. Plaintiff does not dispute the existence of sworn statements made by Mr. Jusafagic and Ms. Bartko, but he contests their accuracy. He cites Mr. Jusafagic's deposition wherein he testified that Ms. Bartko was not working for him, he did not "see any interaction between" Plaintiff and Officer Bellavance, and he did not "see [Plaintiff] fight with Officer Bellavance[.]" (Doc. 67-7 at 28; Mr. Jusafagic's Dep. at 108:16-108:18.) He also offers an affidavit from Aaron Scowcroft, who avers that he witnessed Officer Bellavance's encounter with Plaintiff. According to Mr. Scowcroft, Plaintiff did not threaten Officer Bellavance, throw any punches at Officer Bellavance, raise his hands, or pose a threat to Officer Bellavance or the crowd. Instead, Officer Bellavance "began to man-handle Mr. Brayshaw away[, ]" and Plaintiff was stumbling as he was dragged down Church Street. (Doc. 67-8 at 2, ¶ 19.) From Mr. Scowcroft's perspective, "[w]ithout any warning or provocation, the Officer then flipped Mr. Brayshaw to the ground where he landed face first." !d. at 2, ¶ 21. Mr. Scowcroft's perception of the events is contradicted, in material respects, by the video.
Plaintiff contests several of Officer Bellavance's statements in his affidavit of probable cause, including: (1) a statement that Mr. Jusafagic "told me that there was a male and a female that had tried to fight with him[, ]" (Doc. 52-6 at 2, ¶ 1), and that "[t]he male and female that [Mr. Jusafagic] pointed out appeared to be engaged in some sort of fighting[, ]" id. at 2, ¶ 2; (2) a statement that Plaintiff's "behavior appeared to be escalating.... [Plaintiff] started to push against the people holding him back and he continued to reach for me through their arms[, ]" id. at 2-3 at ¶ 5; and, (3) that Ms. Brayshaw "came over and tried to push me off' of ...