United States District Court, D. Vermont
OPINION AND ORDER (DOCS. 89, 90)
Geoffrey W. Crawford, Judge United States District Court
police use-of-force case-removed from Vermont Superior
Court-Plaintiff Tyler Galipeau claims that on August 24, 2012
he was viciously beaten by Officer Joshua Stemp of the
Bennington Police Department. (See Doc. 1-1.) The
court previously denied Galipeau's motion to remand the
case to state court (see Doc. 30), and granted the
Bennington Police Department's (BPD) Motion to Dismiss
(see Doc. 40), leaving as Defendants only Stemp and
the Town of Bennington (the Town). Currently pending are
Defendants' respective motions for summary judgment
(Docs. 89, 90). The court heard argument on the motions on
May 5, 2016. For the reasons that follow, Defendants'
motions for summary judgment are GRANTED.
court begins with a few remarks about the presentation of the
facts for summary judgment purposes. Although Officer Stemp
and the Town have filed separate summary judgment motions,
Stemp adopts the Town's statement of facts. (See
Doc. 89-1 at 1.) The following single background statement is
therefore drawn from the Rule 56 statements filed by Galipeau
and by the Town. The court has also reviewed the summary
judgment record, including the audio and video recordings
made on the night of August 24, 2012 and the morning of
August 25, 2012 (Docs. 91-5, 91-6, 91-22, 91-25). In
addition, the court has considered Galipeau's Verified
Complaint (Doc. 8), which is treated as an affidavit for
summary judgment purposes. See Bennett v. Goord, 343
F.3d 133, 139 (2d Cir. 2003).
asserts a "dispute" for 147 paragraphs of
Defendants' 320-paragraph statement of undisputed facts
(Doc. 91). (See Doc. 97-12.) Many of Galipeau's
objections fail to properly dispute the fact that Defendants
allege. The court applies the Rule 56 standard (discussed
below) to determine which facts are indeed properly in
dispute. Therefore, except where noted, the following facts
are undisputed for present purposes.
Parties and Involved Persons
Joshua Stemp is employed as a police officer with
He has worked for the Town since 2005. Prior to his
employment with the Town, he was employed as a deputy sheriff
with the Bennington County Sherriff s Department.
Stemp graduated from the Part-Time Vermont Police Academy in
spring 2001 and the Full-Time Academy in November 2001. At
the time of the August 24, 2012 incident, Stemp had
successfully completed the basic training mandated by the
Vermont Criminal Justice Training Council (VCJTC) for all
full-time law enforcement officers at the Vermont Police
Academy (VPA) in Pittsford, Vermont. He had also been
certified by the VCJTC as a full-time police officer in the
State of Vermont. The VCJTC is the agency created by Vermont
statute to establish the standards for the certification of
full and part-time law enforcement officers in the State of
the trainings that Officer Stemp has received are firearms
training, training in the use of force, first aid training,
tactical emergency medical specialist training, special
response team training, training in the detection of persons
under the influence of alcohol, training in advanced roadside
impaired driving enforcement, and training in motor vehicle
stops and pursuits.
Hunt is also a police officer with BPD. Officer Hunt
graduated from the Alaska Department of Public Safety Academy
in 2007 and has been waivered certified by the VCJTC as a
full-time law enforcement officer in the State of Vermont
since December 2009. Hunt has received training in the use of
force, DUI (driving while under the influence) detection, and
accident investigations. Since January 1, 2012, Hunt has been
a certified drug recognition expert, having received advanced
training to enable him to recognize impairment in drivers
under the influence of alcohol as well as drivers under the
influence of drugs other than alcohol.
Doucette is the Chief of Police and Public Safety Director
for the Town of Bennington. Doucette has worked for BPD since
January 1990 and is a graduate of the FBI National Academy.
Dean was employed by BPD from June 1982 to June 26, 2015. He
retired from BPD at the rank of lieutenant. One of his
responsibilities while employed with the Town was to conduct
Howard is a sergeant with the Bennington County Sherriff s
Department. Howard is trained in the detection of individuals
who are under the influence of alcohol. He also has advanced
use-of-force training and is a use-of-force instructor. In
addition to first aid training, he has had emergency first
responder training and is a certified firearms instructor.
time of the August 24, 2012 incident, Plaintiff Tyler
Galipeau was 30 years old and resided in Bennington County.
He had two prior convictions for DUI. When he was three years
old, he lost vision in his left eye as a result of being
poked in the eye with a pair of scissors. Galipeau attended
grade school and high school in Bennington. He was an
accomplished wrestler in high school. Ted Galipeau is Tyler
DuBoff is a board certified ophthalmologist who has treated
Galipeau since his childhood injury. Gregory King is
certified by the American Board of Family Medicine and works
at Mt. Anthony Primary Care. Dr. King has treated Galipeau
through a program in which Galipeau was prescribed Suboxone
to treat his opioid abuse.
Sterling is board certified in emergency medicine and works
for Dartmouth-Hitchcock at Southwestern Vermont Medical
Center (SVMC). Dr. Sterling treated Plaintiff following the
August 24, 2012 incident. Christine Mroz is a registered
nurse and former employee of SVMC. Nurse Mroz was the triage
nurse who treated Galipeau following the incident. Paul
Vinsel is board certified in emergency medicine and works at
SVMC. Dr. Vinsel saw Galipeau a day after the August 24, 2012
Shulman is a social worker and a drug and alcohol counselor.
She began working with Galipeau in 2009 in connection with
his family life, anxiety, and his disability due to his eye
injury. At that time, Shulman concluded that Galipeau
suffered from post-traumatic stress disorder (PTSD)
specifically related to the childhood injury to his eye.
Prior Interactions Between Galipeau and Officer
October 25, 2003, Stemp was working for the Bennington County
Sheriffs Department as a Deputy Sheriff. On that date, he
attempted to stop a vehicle being operated by Galipeau for
driving erratically. Galipeau pulled into a parking lot,
jumped out of his car, and fled the scene of the car stop.
Galipeau claims that the next day he went to the Sheriffs
office with his father, Ted Galipeau, and told Stemp that he
was sorry. Then, according to both Tyler and Ted Galipeau,
Stemp told Tyler that he was going to "get" him.
(See Doc. 91-7 at 13; Doc. 91-8 at 6.) Neither Tyler nor
Ted Galipeau ever reported what Stemp allegedly said. Ted
Galipeau was not bothered by what Stemp allegedly said. Stemp
issued Tyler Galipeau two tickets in connection with the
October 25, 2003 incident. (Doc. 91-3 at 2-3.)
about March 10, 2004, Stemp stopped a vehicle that Tyler
Galipeau was operating in Pownal, Vermont. Galipeau says that
he did not understand why he was being pulled over because he
was only traveling two miles per hour over the speed limit.
(See Doc. 91-7 at 22.) It is undisputed that Stemp
issued Galipeau a ticket for operating on a suspended
license. (See Doc. 91-3 at 4.) Galipeau asserts that
Stemp "knew exactly where [Galipeau] was" because
Galipeau's passenger's friend was a law enforcement
officer. (See Doc. 91-7 at 23.) Galipeau asserts
that Stemp was polite at the beginning of the traffic stop,
but at the end Stemp was trying to get him "to say
something." (Id.) Stemp had never arrested
Galipeau prior to August 24, 2012. After the 2003 and 2004
traffic stops, Galipeau had no further interactions with
Stemp until the August 24, 2012 incident.
The August 24, 2012 Incident
Friday, August 24, 2012, shortly before 11:00 p.m., Officer
Stemp was working for BPD running stationary radar in the
parking lot of Bennington Tire located on Benmont Avenue in
the Town of Bennington. Stemp was in a fully marked Town of
Bennington police cruiser. The cruiser was equipped with a
mobile recording device, which began to record when the
cruiser's lights and siren were activated. Also on that
date, Deputy Sheriff Howard was on duty for the Bennington
County Sheriffs Department. Shortly before 11:00 p.m., he was
in his cruiser, which was parked next to Stemp's in the
parking lot of Bennington Tire. The two cruisers were parked
in opposite directions as they both ran stationary radar.
posted speed limit on Benmont Avenue in the area of
Bennington Tire was 30 mph. At approximately 10:55 p.m.,
Stemp observed a truck traveling southbound on Benmont Street
at a speed greater than the posted speed limit. The operator
of the truck was later identified as Galipeau, although the
truck did not belong to him. Stemp visually estimated the
speed of the track at approximately 40 mph, and his radar
device indicated a speed of 43 mph. The truck was not being
driven erratically, according to Stemp. (See Doc.
91-1 at 46.)
truck passed the cruiser, Stemp pulled onto Benmont Avenue.
Stemp followed the truck as it turned onto County Street, at
which time he activated the cruiser's blue lights. The
truck turned onto Lincoln Street and pulled to the side, just
north of the Bennington Village Fire Department.
pulled in behind the truck and exited his cruiser to approach
the driver. After Stemp took one or two steps toward the
truck, Galipeau drove off at a high rate of speed. Galipeau
claims that he drove off because he recognized Officer Stemp
and was scared of him because of the 2003 and 2004
encounters. (See Doc. 91-7 at 20-21.) Stemp could
not see the driver and did not know his identity. Stemp
returned to his cruiser and radioed dispatch that the driver
had taken off.
to Officer Stemp, when he left the parking lot at Bennington
Tire, Deputy Howard saw a passenger in the truck and decided
to provide backup for the motor vehicle stop. As Howard came
to the scene of the motor vehicle stop on Lincoln Street, he
saw Stemp walking towards the truck. Howard then saw Stemp
return to his cruiser. When Galipeau drove off, Stemp gave
chase with the lights and siren activated. Deputy Howard
followed the pursuit with his lights and siren activated.
Howard also activated his cruiser's mobile video
Stemp in pursuit, and with other motorists on the road,
Galipeau drove through a stop sign at the intersection of
Lincoln Street and River Street without stopping. Galipeau
was exceeding the speed limit, and failed to stop at the stop
sign as he drove through the four-way intersection at River
and Depot Streets. Galipeau also drove onto the sidewalk in
front of The Pharmacy building and struck a bench. Galipeau
drove along the sidewalk and turned onto Gage Street without
stopping. Galipeau then pulled into the parking lot of C.L.
White, a local business on Gage Street, coming to a stop in
the middle of the parking lot.
pulling into the parking lot of C.L. White, Galipeau exited
the truck and ran off on foot. Stemp did not recognize
Galipeau when he exited the truck. Stemp began to chase
Galipeau on foot. Stemp instructed Galipeau to show his hands
and yelled repeatedly for Galipeau to stop, but Galipeau kept
running. Galipeau says that he does not recall hearing anyone
say anything at that time. (Doc. 91-7 at 28.) Stemp
instructed Galipeau to show his hands in case Galipeau was
carrying a weapon. Stemp had received training highlighting
the danger that individuals fleeing from police can pose to
officers and the public. Stemp did not know if Galipeau was
fleeing a crime scene or whether he was a fugitive from
justice who was trying to avoid being caught.
Howard pulled into the parking lot and observed the foot
chase. He saw Stemp chasing Galipeau around the right side of
a garage as Stemp yelled at Galipeau to stop. Howard yelled
at the passenger in the truck to remain inside. Howard then
ran to the side of the garage in an effort to possibly
intercept Galipeau from a different angle.
says that Stemp caught up to him and grabbed the back of his
shirt, but then fell down while Galipeau kept running.
(See Doc. 91 -7 at 28.) Stemp says that he
"tackled" Galipeau on the pavement, and that he and
Galipeau both fell to the ground. (Doc. 91-1 at 30.) Stemp
was injured in the fall, scraping his knee and sustaining
"road rash" on both forearms. (Id. at 31.)
Howard encountered Stemp and Galipeau as the two ran onto
Gage Street.Howard states that, as Stemp was tackling
Galipeau, he (Howard) grabbed Galipeau's arm, and all
three men went down onto the pavement. (Doc. 91-4 at 3.)
Stemp was focused on Galipeau and was not aware of
Howard's presence. Galipeau broke free and continued to
and Howard continued chasing Galipeau. Stemp caught up to
Galipeau and tackled him behind a house on the corner of Gage
and School Streets. Stemp did not recognize Galipeau when he
tackled him. Howard saw Stemp tackle Galipeau and saw both
men go to the ground.
was lying face down on the ground and Stemp was off to his
right side. It was dark. Galipeau's hands were underneath
his body, and Stemp could not see them. Galipeau asserts that
his hands were "pinned" beneath him. (Doc. 8 at 3.)
Stemp had been trained that it is an immediate threat to
police officers when a suspect's hands are not visible.
Galipeau said, "You got me dude. You got me." (Doc.
91-5, 22:56:30-32.) According to Galipeau, he felt the
pressure of what he thought were Stemp's knees on the
back of his head or on his back. (See Doc. 91-7 at
parties have diverging versions of the next sequence of
events, all of which occurred within a matter of seconds.
According to Galipeau, he continued to say "I give up,
" and-while his hands were behind his back and he was
being handcuffed-he turned his head to look over his right
shoulder, saying "I give up." (Doc. 91-7 at
Galipeau's testimony is ambiguous as to whether the
handcuffs had been applied before he turned his
head. (See Id. at 34 ("I put my hands behind my
back and then they cuffed me... . [Then] I kept saying,
'I give up, ' because I was getting, you know, knees
and stuff into the back.").)
to Stemp, Galipeau continued to yell "you got me, you
got me, " and then- before Stemp had gained control of
Galipeau's hands-Galipeau "turn[ed] around" to
face him. (Doc. 91-1 at 33.) When asked whether Galipeau
rolled over on to his back, Stemp testified that Galipeau
"was rolling over to face me." (Id. at
34.) Stemp testified that Galipeau did not say "I give
up, " (id. at 34), and that Galipeau's
hands did not grab him, his legs did not kick him, and that
the event happened so quickly that he could not tell if
Galipeau's body had tensed up (id. at 36-37).
However, according to Stemp, Galipeau's "head and
his body" were turning toward him. (Id. at 36.)
Stemp states that he believed that Galipeau was trying to
"get a position of advantage" and was going to try
to fight him. (Id. at 35-36.) At that moment,
according to Stemp, he was not leaning or kneeling on
Galipeau, but was off to Galipeau's right. (Id.
had been trained that when a subject has committed several
serious offenses and is actively resistant, the subject poses
an immediate threat of physical injury to officers and to the
general public. Officers, including Stemp, are trained that
when a suspect rolls to their back, the officer loses a
position of advantage and is faced with the danger of ground
fighting. Officers are also trained that once a subject rolls
to his back, the subject is in a position to utilize the
ground for stability in order to kick the officer. Stemp was
concerned because he did not know if Galipeau had any weapons
on him or within his reach. Stemp does not carry a baton and
has never carried a baton while working for BPD.
undisputed that Officer Stemp struck Galipeau; it was a
downward strike across the right side of Galipeau's face.
Stemp asserts that he struck Galipeau once using a bare,
closed left fist. (Id. at 37; see also Doc.
91-2 at 6.) Stemp says that he was not holding any implement
in his hands. (Doc. 91-1 at 37; see also 91-2 at 6.)
Galipeau has testified that he does not know what he was
struck with. (Doc. 91-7 at 35.) However, he asserts that that
it was a "heavy-blunt instrument, " and that he was
struck several times. (Doc. 8 at 3.) He contends that the
injuries he sustained (described below) are not consistent
with a closed-fist strike. (Doc. 97-12 at 6.)
is a dispute about whether Galipeau lost consciousness as a
result of the strike. In the Complaint and in deposition
testimony, Galipeau asserts that he did briefly lose
consciousness. (See Doc. 8 at 3; see also
Doc. 91-7 at 32 ("I went unconscious for three or four
seconds.").) Stemp maintains that Galipeau did not lose
consciousness because he "was verbal with us."
(Doc. 91-1 at44.)
following exchange is undisputed, except to the extent that
it conflicts with Galipeau's timeline about being
handcuffed before he was struck. After Stemp struck Galipeau,
he told Galipeau to "give me your hand." (Doc.
91-5, 22:56:39-10.) Galipeau said, "You broke my face,
dude." (Id., 22:56:41-42.) Stemp again ordered
Galipeau to "give me your hand. Doit now."
(Id., 22:56:43-14.) Ultimately, Officer Stemp and
Deputy Howard succeeded in grabbing Galipeau's hands.
Howard then assisted Stemp in handcuffing Galipeau.
(See Doc. 91-1 at 44; see also Doc. 91-4 at
to the question of when the handcuffs were applied, the court
notes that, after Galipeau said "You broke my face,
dude" (and thus after Stemp had struck Galipeau), there
are sounds on the audio recording-"clicking" sounds
separated by a few seconds-that are consistent with handcuffs
being applied. (Doc. 91-5, 22:56:52; id. at
22:56:59.) Plaintiff insists that the sounds are
"unrecognizable." (Doc. 97-12 at 9.) BPD Lieutenant
Lloyd Dean describes the sounds as being "clearly
audible" sounds of handcuffs being applied. (Doc. 91-14
at 5, ¶ 22.) The court concludes that there is no
triable issue on the issue of the timing of the application
of the handcuffs. As noted above, Galipeau's testimony
is, at best, ambiguous. The sounds of the handcuffs being
snapped shut are clearly discernable on the audio recording.
Moreover, the audio recording plainly establishes that Stemp
was asking for Galipeau to give him his hand after
striking him. Those facts establish that the handcuffs were
not successfully applied until after Stemp had struck
asserts that, during the struggle, he could smell "a
strong odor of alcohol" on Galipeau's breath. (Doc.
91-2 at 8, ¶ 59.) Galipeau concedes that he was taking
Klonopin (an anti-anxiety/panic disorder medication)
(see Doc. 97-1 at 5), but he says that he does not
recall drinking any alcohol on August 24, 2012. (Doc. 91-7 at
repeatedly complained that his "eye socket is out."
The officers rolled him on his side and Stemp and Howard
could see that Galipeau was bleeding above his right eye.
Based upon his experience as an Emergency Care
Attendant-First Responder, Howard concluded that the cut was
likely to continue to bleed heavily for a short time but was
not life-threatening. Based upon his experience and his
training in first aid, Stemp knew that cuts to the face
generally bleed for a short time, but are not
life-threatening. Even minor cuts on someone's face or
head can bleed profusely because facial vasculature is
significant in terms of the number of blood vessels in the
radioed for an ambulance. Galipeau repeated that his eye
socket was out. As the officers walked Galipeau back to the
parking lot, Galipeau complained that he could not see, and
Howard told him to stop running his mouth and just walk. In
the meantime, BPD Officers Andrew Hunt, Thomas Bull, and
Sergeant Michael Plusch arrived at the C.L. White parking
to Deputy Howard, Galipeau was "not cooperating" as
Howard attempted to escort him back to the cruisers. (Doc. 91
-4 at 4.) Howard states that Galipeau "kept trying to
pull away from me and was spitting at me."
(Id.) Galipeau notes that he verbalized his
cooperation, telling Howard, "Dude, I'm walking with
you." (Doc. 91-5, 22:57:49-51.) There is a dispute about
whether Galipeau was spitting blood at Howard-as
noted below, Galipeau needed to spit out blood due to his
kept spitting and Howard finally told him something to the
effect of, "You spit at me one more time and you're
going to be spitting the rest of your . .. teeth out, you
understand me?" (Id., 22:58:22-25.) Howard
walked Galipeau to his cruiser and bent Galipeau over the
hood. Galipeau accused Howard of hitting him in the face with
Howard's gun. Howard told Galipeau that no one had a gun
out. Galipeau then said, "So you're ...