The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
MEMORANDUM DECISION AND ORDER*fn1
In this action, Plaintiff Sean E. McMahon contends that Defendant City of Syracuse Officers Patti, Fura, and Summers*fn2 arrested him for violating an unconstitutional city ordinance and used excessive force in effectuating that arrest in violation of state and federal law. (Dkt. No. 1.) Currently pending before the Court is Defendants' motion for summary judgment. (Dkt. No. 33.) Plaintiff has opposed the motion. (Dkt. Nos. 38-42.) Defendants have filed a reply. (Dkt. No. 45.) For the reasons discussed below, Defendants' motion is granted in part and denied in part.
I. FACTUAL AND PROCEDURAL SUMMARY
The facts in this case are, unless specifically noted, undisputed.
On June 15, 2009, the Syracuse Police Department assigned four units from the Crime Reduction Team to the evening shift on the west side of the City of Syracuse, specifically the area of Tallman and Rich Streets. (Dkt. No. 33-14 ¶ 1; Dkt. No. 39 ¶ 1.) The Crime Reduction Team is comprised of two-man units assigned to an area of the city where there is a need for increased police presence due to high crime. (Dkt. No. 33-14 ¶ 2; Dkt. No. 39 ¶ 1.) The four Crime Reduction Team units patrolling the west side of the City of Syracuse on June 15, 2009, were unit 524 (Officers Fura and Summers), unit 525 (Officers Patti and Copes), unit 527 (Officers Murphy and Novitsky), and unit 528 (Officers Carns and Tassini). (Dkt. No. 33-14 ¶ 4; Dkt. No. 39 ¶ 1.)
Defendant Officer Patti and Officer Cope responded to a gambling
complaint in the area of Onondaga Avenue and Rich Street.*fn3
(Dkt. No. 33-14 ¶ 5; Dkt. No. 39 ¶ 1.) After addressing the
gambling complaint, Defendant Patti and Officer Cope sat in their
police car and watched a crowd*fn4 of people on the
sidewalk of Tallman and Rich Streets. (Dkt. No. 33-14 ¶ 6; Dkt. No. 39
p 2.) Officers Carns and Tassini also responded to the crowd gathered
on Tallman Street. (Dkt. No. 33-14 ¶ 7; Dkt. No. 39 ¶ 2.) Defendant
Patti observed that a member of the One Ten gang was among the
crowd.*fn5 (Dkt. No. 33-14 ¶ 8; Dkt. No. 39 ¶ 2.)
Plaintiff was with the group. (Dkt. No. 33-14 ¶ 4; Dkt. No. 39 ¶ 1.)
Multiple units of the Crime Reduction Team approached the group gathered on the sidewalk on Tallman Street. (Dkt. No. 33-14 ¶ 9; Dkt. No. 39 ¶ 1.) When the officers approached the group, Plaintiff immediately started to run away. (Dkt. No. 33-14; Dkt. No. 39 ¶1.) Officer Cope, Officer Novitsky, and Defendant Patti chased Plaintiff, yelling at him to stop and that he was under arrest. (Dkt. No. 33-14 ¶ 13; Dkt. No. 39 ¶ 1.) Plaintiff ran from police*fn6 and the police chasing him on foot were five to six blocks behind. (Dkt. No. 33-14 ¶ 11; Dkt. No. 39 ¶ 3.) Plaintiff did not respond to the verbal commands to stop running. (Dkt. No. 33-14 ¶ 17; Dkt. No. 39 ¶ 1.)
Defendant Officers Summers and Fura were in their police car when they received a call over the radio about a foot pursuit. (Dkt. No. 33-14 ¶ 14; Dkt. No. 39 ¶ 1.) Defendants Summers and Fura saw a person running across Onondaga Street with police officers chasing behind him. (Dkt. No. 33-14 ¶ 15; Dkt. No. 39 ¶ 1.) Defendants Summers and Fura responded to the call. (Dkt. No. 33-14 ¶ 16; Dkt. No. 39 ¶ 1.)
Defendants Summers and Fura turned their police car down Onondaga Street. (Dkt. No. 33-14 ¶ 18; Dkt. No. 39 ¶ 1.) Defendant Fura gave Plaintiff verbal commands to stop running from the police car.*fn7 (Dkt. No. 33-14 ¶ 19.) On Fitch Street, Defendant Fura attempted to pull the police car onto the sidewalk to block Plaintiff's path and make him stop, however Plaintiff ran around the car and continued to run.*fn8 (Dkt. No. 33-4 ¶ 20.)
Defendants Fura and Summers exited their car and were able to catch Plaintiff. (Dkt. No. 33-14 ¶ 21; Dkt. No. 39 ¶ 1.) At his deposition, Defendant Fura testified that when he caught up with Plaintiff:
A: I grabbed the back of his shirt and attempted to pull him back.
He pulled forward, at which time I delivered a strike to his right jaw area, and we both ended up falling to the ground, forward.
Q: And did you say anything to him?
A: I told him to put his hands behind his back. He was under arrest.
Q: What was he under arrest for, if you know?
A: At this time he was going to be under arrest for disorderly crowd.
Q: But you didn't know that at the time?
A: I didn't know specifically what the charge was.
Q: You told him he was under arrest, but you didn't know for what violation? Is that your testimony?
A: Correct. (Dkt. No. 33-12 at 6:8-24.)
At his deposition, Defendant Summers testified that:
A: Officer Fura grabbed a hold of - - got close to Mr. McMahon and grabbed a hold of him, and he pulled, and when he did, from what I can tell, I seen Mr. McMahon spin around and then go to the ground.
Q: You say you saw Officer Fura grab Mr. McMahon?
A: Well, his shirt. Clothing. Something of that nature. Because he pulled, and then he spun around. Like, he slipped out of his grasp or slips out of - - but I just seen him spin around. Q: Did he get grabbed from the front or from behind or from the side?
A: As I'm coming around the car - - I coul[d]n't tell you. I know he was running. We were behind him, so it was either from the side, backside or something, because when he did, he went around like that, and he rolled into the - - so I'd say it would have to be from the backside area.
Q: And Mr. McMahon ended up on the ground?
Q: What action did you take then?
A: At that time I came around, and Officer Fura was trying to grab a hold of him. Mr. McMahon was pushing to get off the ground to get free again. He was advised to stop resisting and get on the ground and place his hands behind his back, at which time he didn't comply with that at all. I placed a strike to the shoulder blade to collapse the shoulder down to get on the ground so I can handcuff him. He continued to push off. I applied another strike. The strike hit the top of the shoulder, bounced off and cut his eyebrow.
A: At that point in time we were finally able to get him down on the ground and forcefully put his hands behind his back and get him cuffed, and that's when I noticed the weed in his hand, as I pulled his hand behind his back. I had to forcibly remove the marijuana from his hand.
Q: That was after he was handcuffed?
A: That was while he was handcuffed. Yes, sir. (Dkt. No. ...