United States District Court, D. Vermont
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC.
Christina Reiss, United States District Court District Judge
Kevin Elnicki brings this action against Rutland City Police
Officer Ryan Ashe and the City of Rutland (the
"City") (collectively, "Defendants") and
asserts claims of excessive force under the Fourth and
Fourteenth Amendments and 42 U.S.C. § 1983 and municipal
liability. He alleges that during a December 20, 2016 traffic
stop, Officer Ashe approached his driver's side window
with his firearm drawn, yelled obscenities, forcibly removed
Plaintiff from the truck, and "slam[med] him to the
frozen" ground, causing him "specific and serious
physical. .. pain and suffering[.]" (Doc. 1 at 4, ¶
before the court is Defendants' motion for summary
judgment contending that Officer Ashe's use of force was
reasonable and as a result the City has no liability because
there was no underlying constitutional
violation. On June 25, 2018, Plaintiff opposed the
motion. On June 28, 2018, Defendants filed their reply, at
which time the court took the motion under advisement.
is represented by Matthew G. Hart, Esq. Kaveh S. Shahi, Esq.
The Undisputed Facts.
December 20, 2016, Plaintiff was driving a Kenworth
three-axel flatbed truck with a forty-yard roll-off waste
container northbound on Route 7 in Rutland City, Vermont.
Plaintiffs truck had full length mirrors and other mirrors.
At that time, Officer Ashe was parked near Mac's
Convenience Store on North Street Extension in a white Ford
Crown Victoria which was equipped with emergency lights on
the grille, front dashboard, and mirrors, but which did not
have rooftop emergency lights or a dashboard video camera. As
a result, Officer Ashe's pursuit of Plaintiff s truck and
their initial contact was not video recorded.
speed detection system, Officer Ashe determined Plaintiff was
traveling in excess of forty-five miles per hour,
approximately ten miles per hour over the posted speed limit.
Officer Ashe activated his lights and pursued Plaintiff on
Route 7, activating his siren after approximately 500 feet.
Other vehicles pulled over but Plaintiff did not. Officer
Ashe utilized three different sirens and his air horn to
effectuate the stop. At 3:02:12, Officer Ashe radioed
dispatch that he was attempting to stop a truck that was
leaving Rutland City. He radioed again at 3:02:20 that he was
still attempting to stop Plaintiffs truck.
was driving northbound on Route 7 past Williams Farm,
Plaintiff observed southbound traffic pulling over and
noticed a "little white car" with "a little
blue light" behind his truck. (Doc. 30-1 at 43.)
Plaintiff stated at his deposition that he did not "know
if there's been an accident or what's going on. So I
look for a safe spot and I pull into Thomas's farm."
Id. Plaintiff contends that as soon as he saw
Officer Ashe's flashing blue lights, he began looking for
a place to pull over. He stated that he observed two or three
vehicles ahead of him in the northbound lane pull over in the
Thomas Dairy parking lot. He alternatively testified that he
first saw the emergency vehicle's blue lights behind him
before noticing other cars pulling over. The radio log
indicates that Plaintiff pulled over at 3:03:44, after
Officer Ashe had been pursuing Plaintiff for approximately
exiting his vehicle, Officer Ashe removed his firearm from
its holster and approached the driver's side of the
truck. Officer Ashe contends that he yelled at the driver to
show his hands, but he did not initially get a response. He
therefore "called out again, using foul language to get
his attention." (Doc. 23 at 3.) Plaintiff stated that
the first thing he saw after stopping was "a police
officer with a ... gun pointed at" him. (Doc. 30-1 at
57.) Plaintiff rolled down his window and heard Officer Ashe
"screaming and swearing for [him] to show his
hands." (Doc. 30 at 2.)
Officer Ashe reached Plaintiffs vehicle, he "pull[ed]
and snap[ped Plaintiffs] hands down and through the open
window[, ]" cursed and shouted at him, and instructed
Plaintiff to exit the vehicle. Id. Plaintiff
initially argued with Officer Ashe and failed to comply with
his order to step out of the truck, at which point Officer
Ashe opened Plaintiffs door, grabbed Plaintiffs arm, and
forcibly removed him from the truck. Plaintiff stated that
Officer Ashe "almost broke [his] wrist, snapping [his]
wrist on top of the bottom of the window" and that
Officer Ashe was "carrying on about shooting
[him.]" (Doc. 30-1 at 57.) When Plaintiff was outside of
his vehicle, Plaintiff alleges that Officer Ashe
unsuccessfully attempted to force him to the ground with a
Officer Ashe determined that the scene was secure, Plaintiff
was permitted to reenter his truck to obtain his license,
registration, and proof of insurance. Officer Ashe returned
to his cruiser to verify Plaintiffs information and issue
traffic tickets while Plaintiff remained in his truck. The
civil violation tickets charged Plaintiff with (1) exceeding
the local speed limit, in violation of 23 V.S A. § 1007;
(2) failing to obey an officer, in violation of 23 V.S.A.
§ 1012(b); and (3) operating a vehicle on approach of a
law enforcement vehicle, in violation of 23 V.S.A. §
1050. After receiving the tickets, Plaintiff drove away.
3:03:48, about four seconds after Plaintiff stopped his
truck, Rutland Police Officer Klementowski began driving
toward the Thomas Dairy parking lot in order to assist
Officer Ashe. While Officer Klementowski was en route, one
minute and eight seconds from Officer Ashe's dispatch
that Plaintiff had stopped his truck, Officer Ashe reported
at 3:04:52 that the situation was "secure." (Doc.
23 at 3) (internal quotation marks omitted). Officer
Klementowski arrived approximately two minutes later at
3:06:42, at which time the video from her cruiser shows
Plaintiff inside of his truck.
to his employment with the Rutland City Police Department,
Officer Ashe was employed as a police officer by the Hoosick
Falls Police Department in New York from 2007 to 2011. During
that time, he did not have any disciplinary issues.
See Doc. 30-2 at 12 ("Q. Did you have any
police disciplinary actions against you while you were at the
Hoosick Falls Police Department? A. No, I did not. Q. Any
complaints about you while you were serving at the Hoosick
Falls Police Department? A. No.").
2013, after his transfer to the Glens Falls, New York Police
Department, Officer Ashe was disciplined for using profane
language with an intoxicated driver who struck his police
cruiser. He was also disciplined for taking his girlfriend to
a shooting range owned by Glens Falls while he was off-duty.
Officer Ashe stated at his deposition:
Q. We'll break it down by years. During the year when you
were hired [by the Rutland Police Department], from March
2014 to we'll say the end of February 2015, did you ever
have to draw your service pistol?
A. Yes, I did.
Q. How many times did you do that?
A. I would say more than a handful.
Q. What necessitated that?
A. Specific cases; I don't remember off the top of my
head. lean remember there was a subject with knives, subject
with guns, there ...