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Galipeau v. Stemp

United States District Court, D. Vermont

June 6, 2016


          OPINION AND ORDER (DOCS. 89, 90)

          Geoffrey W. Crawford, Judge United States District Court

         In this 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.


         The 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).

         Galipeau 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.

         I. Parties and Involved Persons

         Officer Joshua Stemp is employed as a police officer with BPD.[1] 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.

         Officer 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 Vermont.

         Among 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.

         Andy 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.

         Paul 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.

         Lloyd 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 internal investigations.

         Joel 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.

         At the 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 Galipeau's father.

         Stuart 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.

         Thomas 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 incident.

         Paula 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.

         II. Prior Interactions Between Galipeau and Officer Stemp

         On 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.)[2] 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.)

         On or 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.

         III. The August 24, 2012 Incident

         On 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.

         The 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.)

         As the 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.

         Stemp 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.

         Unbeknownst 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 recording device.

         With 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.

         After 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.

         Deputy 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.

         Galipeau 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.)

         Deputy Howard encountered Stemp and Galipeau as the two ran onto Gage Street.[3]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 run away.

         Stemp 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.

         Galipeau 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.)[4] 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 30-31.)

         The 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 31.)[5] 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.").)

         According 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. at 34.)

         Stemp 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.

         It is 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.)[6] He contends that the injuries he sustained (described below) are not consistent with a closed-fist strike. (Doc. 97-12 at 6.)[7]

         There 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.)[8]

         The following exchange is undisputed, except to the extent that it conflicts with Galipeau's timeline about being handcuffed before he was struck.[9] 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 3.)

         Returning 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 Galipeau.

         Stemp 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 19.)

         Galipeau 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 face.

         Howard 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 lot.

         According 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 injuries.

         Galipeau 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 ...

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