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Elnicki v. City of Rutland

United States District Court, D. Vermont

January 8, 2019



          Christina Reiss, United States District Court District Judge

         Plaintiff 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, ¶ 16.)

         Pending 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.[1] 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.

         Plaintiff is represented by Matthew G. Hart, Esq. Kaveh S. Shahi, Esq. represents Defendants.

         I. The Undisputed Facts.

         On 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.

         Using a 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.

         As he 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 2.6 miles.

         Upon 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.)

         When 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 foot sweep.

         Once 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.

         At 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.

         Prior 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.").

         In 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 ...

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