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Jackson v. Tellado

United States District Court, E.D. New York

February 15, 2017



          PAMELA K. CHEN, United States District Judge

         On February 3, 2016, after a seven-day trial, the jury returned a verdict on Plaintiff Larry Jackson's claims under 42 U.S.C. § 1983 against New York City Police Department Officers Jesus Tellado, Stanley MacNear, John Czulada, James Gherardi, Ryann Dunn, Robert Deferrari, Kenneth Braumann, Ben Kurian, Peter Boneta, Thomas Reo, Michael Failla, and Brian Heerey (collectively, “Individual Defendants”). The jury determined that Jackson had been falsely arrested and subjected to excessive force, and awarded Jackson $12, 500, 000 in compensatory damages, as well as punitive damages against each Defendant in varying amounts.[1]

         Individual Defendants now move for qualified immunity as to each Defendant and each claim. For the reasons set forth below, Defendants' motion is GRANTED in part and DENIED in part.[2]


         The Court assumes the parties' familiarity with the procedural history of this case and the trial record, and discusses them only to the extent they are relevant to the resolution of the instant motions.


         On June 24, 2011, Jackson filed his complaint against the City of New York and 20 John Doe defendants. (Dkt. 1.) After some initial discovery, Jackson filed his Amended Complaint on March 1, 2013, naming Individual Defendants, as well as Officers Patrick D'Onofrio and Robert E. Russo. (Dkt. 30.)[3] Defendants moved for summary judgment on August 20, 2013 (Dkt. 56), and the Court granted that motion in part on March 17, 2014, dismissing Defendant D'Onofrio and the City of New York. (Dkt 67.) The parties proceeded to trial on January 25, 2016, but during trial, stipulated to the dismissal of Defendant Russo on February 1, 2016 (dkt. 92), which the Court so ordered the next day.


         A. Testimony of Plaintiff and Several of His Witnesses[5]

         On August 21, 2010, Plaintiff, an off-duty police officer, hosted a party for his daughter's twenty-first birthday at his home. (1/27/16 Tr. 17-18, Jackson.) Late in the evening, partygoers congregating in front of Plaintiff's house were approached by a group of people, including a man who appeared to have a gun. (Id. at 23-24; 1/26/16 Tr. 92-93, Strong.) Plaintiff came out of his house to move the group away from his home, but at some point, there was at least one call to the police, placed by Plaintiff's fiancée Charlene Strong, informing them that a man with a gun was outside of their home. (1/26/16 Tr. 14-15, Strong; 1/27/16 Tr. 24, Jackson.)

         As Plaintiff returned to his house, two police officers-Defendants Czulada and MacNear-arrived at the home in response to the 911 call. (1/27/16 Tr. 29-31, Jackson.) Plaintiff approached Czulada and MacNear and said to MacNear, “hey, Sarge, I'm MOS” meaning he was a member of the police service. (Id. at 36.) While Plaintiff, Czulada, and MacNear were talking outside, Plaintiff's niece, Tiffanie Johnson, ran out from Plaintiff's home and stated that there were people fighting inside, at which point Plaintiff, Czulada, and MacNear all entered the home. (Id. at 39; 1/28/16 Tr. 78-79, MacNear.)

         When Plaintiff got inside, he saw two of the male party guests, Taimar Bonaparte and Jason Wilkinson, on the floor. (1/27/16 Tr. 39-40, Jackson.) After Plaintiff walked into the kitchen to determine what was going on, he turned around to see Czulada “standing there with [an] ASP baton held in both hands.” (Id. at 41.) Czulada told Plaintiff to “back the fuck up, ” to which Plaintiff responded by “put[ting] [his] hands up” and telling Czulada that he (Plaintiff) was a police officer and that it was his house. (Id.) According to Plaintiff, Czulada responded by pushing him back with the baton. (Id.) Plaintiff lost his balance. (Id. at 42.) When he got back up, Plaintiff asked Czulada what he was doing, saying “I'm a cop, too.” (Id. at 42.) In response, Czulada punched him in the face. (Id.) When Czulada hit him a second time, Plaintiff “grabbed him by his shoulders” to prevent Czulada from hitting him again. (Id. at 43.) When Plaintiff let go, Czulada stepped back and tripped over a cooler. (Id. at 44.) Plaintiff tried to help him up, at which point Czulada “took another swing” at him. (Id. at 45.)

         Someone Plaintiff could not see then lifted him up with an ASP baton around his neck. (Id. at 46.) Plaintiff later learned that the person was Defendant Kurian. (Id. at 105.) Kurian kept telling Plaintiff to relax, and Plaintiff kept responding that he was relaxed, but that he couldn't breathe. (Id. at 47.) Plaintiff and Kurian fell over the arm of the couch onto the couch and onto Iris Strong, Plaintiff's 79-year-old mother-in-law who was sitting on the couch at that moment and who “passed out.” (1/27/16 Tr. 48-49, 51, Jackson.) While Plaintiff and Kurian were on the couch, Plaintiff felt another officer trying to grab Plaintiff's hands. (Id. at 49.)

         Charlene Strong, testified that when she entered the house, she saw Jackson being choked with a baton, and that Jackson's “eyes [were] rolling to the back of his head.” (1/26/16 Tr. 107- 08, Strong.) She testified that people were yelling, “He's an officer, ” “He's an officer, ” “get off of Larry”, and “Why are you choking him?” (Id. at 108-09.) Strong observed that none of the officers in the house were trying to intervene, and were “allowing this process to happen.” (Id. 112.) Tiffanie Johnson, Plaintiff's niece, testified that the cops inside were “yoking [Plaintiff] up, ” and “attacking him.” (1/29/16 Tr. 18-20, T. Johnson). She testified that one officer “grabbed his right side, another one grabbed [Plaintiff's] left side, ” and “[a]nother one came behind and choke[d] him.” (Id. at 20.) Marcus Johnson, Plaintiff's nephew, testified that an officer, presumably Kurian, ran in during Plaintiff's altercation with Czulada, “jumped up and threw his baton around [Plaintiff's] neck and pretty much choked him with it to bring him down.” (1/29/16 Tr. 85-86, M. Johnson.)

         The officers let Plaintiff go, at which point he saw two other officers taking Bonaparte out of the house and slamming him against the trunk of a car. (1/27/16 Tr. 53, Jackson.) Plaintiff went to the front door of his house and, from the doorway, said, “Wait a minute, guys”. Plaintiff was “then…hit in the back of the head with something” by someone he could not see. (Id. at 54-55.) In response to being struck in the head, Plaintiff ran out of his house and to the street curb. (Id.) He ran past six or seven officers, and knelt down near the curb. (Id. at 56.) As Plaintiff went to reach into his pocket to get his ID, officers started hitting him with batons in the back of his legs and on his back, hitting him “upward of 20, 30 times.” (Id. at 56-57.) Bonaparte observed “more than ten” officers around Plaintiff in the street, “swinging and hitting [him].” (1/25/16 Tr. 26-27, Bonaparte.) Plaintiff could tell by the pants and shoes of the people hitting him that they were officers. (1/27/16 Tr. 57, Jackson.) Plaintiff lay on his stomach in the street while a semicircle of officers proceeded to hit him with batons and to roll the batons over the back of his ankles. (Id. at 58-60.) Two officers were positioned with their knees on his back, while the officers tried to get his arms. (Id. at 60.) One officer was poking him in the side with a baton and kicking him, saying “give me your arm, stop resisting me, give me your arm.” (Id.) Plaintiff told the officer that he could not give him his arms because they were underneath him and there was too much weight on his back. (Id. at 61.)

         Strong testified that she saw the officers in a circle around Plaintiff, with their hands linked together, and that they were hitting him in the head, back, and side with their batons. (1/26/16 Tr. 128-29, Strong.) Marilyn Murphy, Plaintiff's sister-in-law, testified that a “whole swarm of police officers . . . were beating [Plaintiff] down” and “wouldn't stop beating on [him]” with billy clubs. (1/29/16 Tr. 57-58, Murphy.) She also testified that she saw the officers use a taser on him. (Id. at 65.) Marcus Johnson testified that the officers pulled Plaintiff outside in handcuffs and started beating him. (1/29/16 Tr. 91, M. Johnson.)

         When the officers got off of him, Plaintiff “stuck [his] arm out” and “let them put the cuffs” on because he “figured it would be over” and they could “straighten this out.” (1/27/16 Tr. 62, Jackson.)

         After he was handcuffed, Plaintiff “looked up to one of the officers” and said “Guys, this was unnecessary….I'm a fellow cop, too.” In response, they pepper sprayed him. (Id. at 62.) The officers proceeded to search Plaintiff, at which point Czulada ran over to Plaintiff, called him a “fucking dirt bag”, and said, “If you're really a cop, where's your ID?” (Id. at 64.) After Plaintiff told Czulada that the ID was in his right front pocket, an officer pulled it out of Plaintiff's pocket. (Id. at 64.) As the officer was retrieving the ID, Plaintiff looked up and noticed Defendant Tellado, a captain, standing there, with between seven and nine officers standing around. (Id. at 64-65.) Plaintiff testified that when Captain Tellado looked at the ID, he made a “facial gesture” like “oh, shit.” (Id. at 66-67.) Plaintiff then heard Captain Tellado tell one of the officers to get Plaintiff up and take the handcuffs off. (Id. at 67.) At that point, all of the officers left except Captain Tellado and the officer Captain Tellado had told to take the handcuffs off, presumably MacNear. (Id. at 68.) MacNear did not remove Plaintiff's handcuffs, and Tellado again told him to do so. (Id. at 68-70.) Tellado then left, saying that he would be back, but was going to check on the lady that needed assistance. (Id. at 70.)

         Two additional non-defendant officers arrived at the scene, and the officer with Plaintiff asked them to put Plaintiff in the police car. (Id. at 70.) Plaintiff told the two officers that Captain Tellado had directed the other officer to take off the handcuffs, but the two officers responded that they had not been told that. (Id. at 71.) The two officers put Plaintiff in the back of the police car without removing the handcuffs. (Id.)

         Plaintiff was taken to the police station, where he remained for several hours before being released. (Id. at 96.)

         B. Defendant MacNear's Testimony

         Defendant MacNear testified that he responded to Plaintiff's house with Czulada after receiving a dispatch call for a man with a gun, followed by a call stating that an officer needed assistance. (1/28/16 Tr. 67, 73, 77, MacNear) MacNear heard screams coming from inside the house and followed Czulada inside. (Id. at 78-79.) As MacNear entered the home, he observed ten to fifteen people inside, including three different individuals “pushing and shoving” each other, and Czulada trying to break things up. (Id. at 84, 90.) Having decided that the scene was “getting out of hand, ” MacNear requested that additional units come to the location. (Id. at 84- 85.) MacNear observed Plaintiff standing between the two individuals who were fighting-the same men Czulada was trying to separate. (Id. at 92.) MacNear did not know whether Plaintiff was trying to break up the fight. (Id.) MacNear, who was trying to break up a different fight, did not “continuously” observe Czulada and Plaintiff. (Id. at 94.) When he next saw Czulada, Czulada was “on the ground, ” with Plaintiff “standing above him” “swinging his arms” with his “fists cocked.” (Id. at 95-97, 99.) MacNear then saw Plaintiff strike Czulada in the head while Czulada was on the floor. (Id. at 100, 115.) MacNear did not know what had happened before he saw Plaintiff strike Czulada. (Id. at 104.)

         The next time MacNear saw Plaintiff, he was outside of the house in handcuffs. (Id. at 103, 106; 2/1/16 Tr. 134, Czulada.) Czulada told MacNear he had been struck in the head and pointed to Plaintiff as the person who had hit him. (Id. at 104, 105.) MacNear assumed Plaintiff was in handcuffs for hitting Czulada. (Id. at 106.) MacNear told Captain Tellado that Plaintiff had struck Czulada, at which time Tellado explained that Plaintiff was an off-duty officer. (Id. at 111.) Tellado told MacNear to remove Plaintiff's handcuffs, but MacNear “didn't have the key” on him. (Id. at 113.) Tellado also ordered MacNear to move the police vehicles so that the ambulances could pull up, and MacNear moved the vehicles, leaving Plaintiff in handcuffs. (Id. at 113-14.)

         C. Defendant Czulada's Testimony

         Defendant Czulada arrived at Plaintiff's home with MacNear, in response to a radio transmission of a man with a gun, which turned into a report of an officer in need of assistance. (2/1/16 Tr. 79-80, Czulada). He heard someone calling for help inside the house and ran inside. (Id. at 85-86.) Once inside, Czulada saw people “pushing, yelling, screaming” at each other, and “got in between [Plaintiff] and the pile of people that were fighting.” (Id. at 90, 92.) Czulada “kind of pushed [Plaintiff] back a little bit, ” at which time Plaintiff “turned toward [him] and “pushed [him] with both hands.” (Id. at 90.) After Czulada “nudged” Plaintiff back from the crowd, Plaintiff “pushed” Czulada. (Id. at 95-96.) Czulada's back was against a wall and Plaintiff, appearing to be angry, approached “in a threatening manner”. (Id. at 95-96.) Czulada responded by punching Plaintiff in the face. (Id. at 96-97.) Plaintiff then punched Czulada in the head multiple times, and Czulada fell and hit the back of his head on a doorknob. (Id. at 100.) Plaintiff continued to punch Czulada while he was on the floor. (Id. at 100-01.)

         Czulada then went outside and told MacNear that he had been assaulted, and identified Plaintiff, who, at that point, was lying in the street in handcuffs, as the person who had assaulted him. (Id. at 134.) Czulada admitted on cross-examination that the reason he didn't tell anyone that he had punched Plaintiff in the face was because he “knew that [he had] operated outside the [police] department guidelines.” (Id. at 109.) When Czulada saw Plaintiff handcuffed in the street, Czulada called him a “liar.” (Id. at 112.)

         D. Defendant Gherardi's Testimony

         Defendant Gherardi arrived at Plaintiff's home with his partner Defendant Dunn in response to a radio call of a man with a firearm. (2/2/16 Tr. 184, Gherardi.) Before they arrived, he heard MacNear yelling over the radio for additional units. (Id. at 185.) After arriving at the scene and entering the house, Gherardi saw a “large group” of people inside, and Plaintiff “holding Officer Czulada up against the wall with his left hand.” (Id. at 187.) He saw Plaintiff “striking” Czulada “in the face” with “hard” force. (Id. at 188, 196.) Gherardi “placed [his] hand” on Plaintiff's shoulder to get him to move away from Czulada. (Id. at 191.) Gherardi then turned away, in an effort to “set a perimeter” around Plaintiff and Czulada, but “one of the civilians from the home grabbed [him] from behind and threw [him] to the floor.” (Id. at 193.) Gherardi then got up and helped clear the house. (Id. at 194.)

         E. Defendant Dunn's Testimony

         Defendant Dunn arrived with Gherardi in response to radio transmissions about a man with a gun, shots fired, and an officer in need of assistance. (2/1/16 Tr. 26, Dunn.) When Dunn arrived, he heard an officer inside the house call for assistance. (Id. at 28.) While standing at the doorway, he saw a “big fight” in the house, “people pushing, cursing at each other, some people throwing punches.” (Id. at 30.) Once he entered the house, he saw Plaintiff punching Czulada against a wall. (Id. at 30, 33.) He also saw Plaintiff “[t]hrowing punches while Czulada was in the fetal position.” (Id. at 36.) He made his way to Czulada and Plaintiff, “got behind [Plaintiff][, ] . . . put [his] arms around [Plaintiff's]. . . waistline and just leaned backwards, to try to get him off Officer Czulada.” (Id. at 36.) Dunn and Plaintiff “fell over the couch.” (Id. at 37.) At that point, Dunn “scurried out from underneath” Plaintiff, and “that was that.” (Id. at 42.) That was the last time Dunn saw Plaintiff. (Id. at 44.)

         F. Defendant Braumann's Testimony

         Defendant Braumann arrived at Plaintiff's home with his partner, Kurian, in response to a radio dispatch that started out as a dispute with a firearm, and then switched to officer in need of assistance. (2/2/16 Tr. 10, Braumann.) When Braumann and Kurian were a block or two from the location, Braumann “heard an on-duty officer, which was either Sergeant MacNear or Officer Czulada[, ] scream over the radio for additional units.” (Id. at 11.) When they arrived, Braumann and Kurian ran to the front door. (Id. at 13.) Braumann testified that he saw a “giant fight inside the house”, and observed both MacNear and Czulada inside. (Id. at 14.) Braumann did not see Plaintiff inside the house, and did not know if Plaintiff was inside when Braumann entered. (Id. at 17-18.) Braumann testified that he had his ASP baton in his hand when he walked into the house, because he “felt there was a threat of some sort in the house, ” but when he saw the large crowd, he put it back in his holster because he “didn't want [it] to be taken out of [his] hands.” (Id. at 20.) Soon after Braumann entered the house, a “pile of people fell down on top of [him]”, causing him to fall to the ground. (Id. at 14.) Captain Tellado then entered the living room, and told everyone to leave the house. (Id. at 22.)

         G. Defendant Kurian's Testimony

         Defendant Kurian entered the house with Braumann. (2/2/16 Tr. 47, Kurian.) The first thing Kurian saw when he entered was MacNear on top of a broken coffee table. (Id. at 47-48.) He also saw Czulada “pinned” up against the wall by Plaintiff. (Id. at 50.)[6] Kurian saw Plaintiff “striking” Czulada “[u]p above the face or the neck/chest area.” (Id. at 52.) Kurian ran over and “grabbed [Plaintiff's] right arm, ” “wrapped both [his] hands around [Plaintiff][, ] and . . . was trying to pull [Plaintiff] [to] prevent him from striking Officer Czulada.” (Id. at 53.) Kurian grabbed Plaintiff “with both . . . hands, as if in a bear hug around [Plaintiff's] right arm.” (Id. at 54.) Kurian had his ASP baton with him, but did not have it out. (Id. at 55.) As Kurian was wrapped around Plaintiff's arm, Dunn “had come around to the other side and grabbed [Plaintiff] either by his hand, his other arm or the other part of his body . . . and was trying to pull him off [of Czulada].” (Id. at 58.) Then Kurian, Dunn, and Plaintiff all fell back onto the sofa. (Id.) Kurian did not recall if Plaintiff was saying that he was an officer. (Id. at 62.)

         Kurian's attention was diverted by a teenage girl who assaulted him and started clawing at his face. (Id. at 63-65.) After he attempted to arrest her, Captain Tellado arrived and told everyone to get out of the house. (Id. at 69-70.) Kurian met up with Braumann, and they got in their duty car and left the scene. (Id. at 73-74.)

         H. Defendant Reo's Testimony

         Defendant Reo arrived at Plaintiff's house in response to a call for additional units from someone he thought was MacNear. (1/29/16 Tr. 179, Reo). He arrived to see four police cars and about twenty to thirty people outside. (Id. at 179-80.) In order to protect the officers inside the house, Reo placed himself in the entrance to the house and blocked people from entering. (Id.) Plaintiff approached Reo in the doorway and tried to enter the house, but Reo would not let him through. (Id. at 182.)[7] Suddenly, Reo heard Jackson yelling, while looking past Reo, “You all can't fucking do that, you all can't do that, ” in the direction of two officers who were taking a shirtless man in handcuffs out of the house. (Id.) Reo told Plaintiff, who was trying to push past him, “You're not getting by me.” (Id. at 182-83.) Plaintiff “g[ave] [Reo] a two-handed shove to [his] chest.” (Id.) At that point, “two, maybe three officers grabbed [Plaintiff] and tried to place him in handcuffs.” (Id. at 185.) When Reo regained his footing, he attempted to arrest Plaintiff for having shoved him. (Id. at 185-86.) He approached and “tried to grab [Plaintiff's] arm” and “tried to grab a leg.” (Id. at 190.) Plaintiff “went down to the ground.” (Id. at 190-91.) “[M]aybe four, five, six officers were trying to pull [Plaintiff's] arms [to] get them behind his back to handcuff him, ” and “[e]ventually, he was handcuffed.” (Id. at 191.) Reo was the arresting officer. (Id. at 196-97.) Captain Tellado arrived and gave an order to un-handcuff Plaintiff. (Id. at 192.)

         Reo did not see any ASP batons out, and did not see any officers strike Plaintiff. (Id. at 191.) However, he did not have an “unobstructed view” of Plaintiff while Plaintiff was in the street and he “[didn't] know what everybody else was doing.” (Id. at 192-93.)

         I. Defendant Boneta's Testimony

         Defendant Boneta arrived at the scene as an officer was bringing a shirtless man out of the house in what Boneta assumed were handcuffs. (2/1/16 Tr. 10, 13, Boneta). Boneta heard someone say, “you can't do that, I'm on the job.” (Id. at 10.) He turned and saw a person he later came to believe was Plaintiff[8] “push[]” Reo “right in front of me.” (Id. at 10-11.) Before Boneta could confront Plaintiff, other officers did so, “box[ing] [Boneta] out”. (Id. at 10, 14.) Thinking that the other officers “got this”, Boneta “turned around and . . . exercised crowd control.” (Id. at 10, 14.) Boneta did not look to see what was happening between the officers and Plaintiff. (Id. at 14.) After a few minutes, Captain Tellado advised the officers to resume patrol, and Boneta left the scene with his partner. (Id. at 13, 16-17.)

         J. Defendant Tellado's Testimony

         Defendant Tellado, the duty captain present at the scene, testified that when he arrived at the house, he saw upward of 50 people outside. (2/1/16 Tr. 171-72, Tellado.) When he entered the house, he saw people lying on the floor handcuffed with police officers next to them, and heard yelling and screaming. (Id. at 173-75.) He did not see Plaintiff inside the house. (Id. at 178.) Tellado ordered officers to take the two handcuffed individuals out of the house. (Id.) Tellado then realized that an ambulance was needed for two individuals inside the house-the elderly woman and an individual who might have been injured. (Id. at 178.) Tellado then left the house because the situation was “calming down.” (Id. at 180.)

         Once outside, Tellado walked to the street because he saw “a certain commotion” with three or four officers struggling with somebody. (Id. at 183.) He saw three or four officers standing around an individual lying on the ground handcuffed. (Id. at 183-84.) At some point, an officer told Tellado that “the reason [Plaintiff] was in handcuffs is because he hit a police officer.” (Id. at 187.) At that time, none of the officers had weapons in their hands. (Id. at 184.) After Plaintiff told Tellado that Plaintiff was a police officer, and that the other officers had pulled his badge out of his pants, Tellado “asked the officers to assist [Plaintiff] and lift him up on his own two feet”, and “asked them to remove the cuffs.” (Id. at 190.) After giving that order, Tellado did not stay there to see if anyone removed the handcuffs because he heard screaming from inside the house and “went [to] the person that needed medical attention . . . .” (Id. at 196-97.)

         K. Defendant Deferrari's Testimony

         Defendant Deferrari testified that while en route to the scene, he heard over the radio that there was “possibly an MOS” at the location, as well as an officer screaming for assistance. (2/2/16 Tr. 109-11, Deferrari.) When Deferrari arrived, he ran toward the house. (Id. at 113.) From the doorway, he saw people “fighting, pushing, shoving, [and] throwing people to the ground” inside. (Id.) He briefly entered the house, and then was “pulled from the house by an unknown person” and “punched in the face, ” after which he “barricaded [him]self at the doorway.” (Id. at 113-14.) Deferrari could not see exactly what was going on inside the house and “wasn't able to see any officers inside the house.” (Id. at 119.)

         Later, Deferrari saw Plaintiff exiting the house with an officer following him and pointing at him, yelling, “he's under . . . arrest, he's a collar, he's a collar.” (Id. at 121.) Plaintiff kept walking, and “officers approached [Plaintiff] to place him in handcuffs. (Id. at 124.) Plaintiff “pulled his arms away from them, [and] swung his arms to keep them from arresting him.” (Id. at 124-25.)

         Deferrari saw “about five or 10” officers surround Plaintiff, “grabbing at his arms trying to pull them behind his back, ” and “[s]ome had their ASPs out hitting him in the legs trying to get him down to the ground.” (Id. at 131-32.) Deferrari did not see the officers striking Plaintiff on other parts of his body. (Id. at 132.) Deferrari did not tell the officers to stop “because it wouldn't have made a difference” since Plaintiff was resisting arrest. (Id. at 134-35.)

         L. Defendant Failla's Testimony

         When Defendant Failla arrived on the scene, he saw Plaintiff standing in the middle of the street with a circle of police officers around him. (1/29/16 Tr. 156-58, Failla.) He saw Plaintiff “flailing and punching with closed fists at the other officers.” (Id.) Failla was trying to “assess the whole situation”. (Id. at 159.) He did not see “anybody with anything in their hands.” (Id.) He saw Plaintiff “punch at a police officer.” (Id. at 160.) At some point thereafter, Defendant Heerey, Detective Russo, and a “couple of other police officers” brought Plaintiff to the ground. (Id. at 160-61.) Plaintiff was still “rolling and flailing his arms, ” so Failla, rather than help to restrain Plaintiff, “thought it better to spray [Plaintiff] in the face with pepper spray” in order to stop Plaintiff from “resisting arrest.” (Id. at 161.) Failla testified that after he pepper-sprayed Plaintiff, “miraculously . . . [Plaintiff] put his hands behind his back.” (Id. at 162.) At that point, “they were able to get [Plaintiff] handcuffed and then he [lay] . . . on the ground for a minute.” (Id. at 163.)

         Although Failla had been trained that when he pepper-sprayed someone, he was supposed to give them water to wash out their eyes, he did not give Plaintiff any water, because he “didn't have [it] at the scene” and because he knew an ambulance would be going to the stationhouse. (Id. at 167.) He walked away “shaking [his] head in disgust” because he had “never seen an individual who calls himself a police officer act that way to on-duty police officers.” (Id.)

         M. Defendant Heerey's Testimony

         Defendant Heerey arrived at the scene with Failla. (1/29/16 Tr. 121, Heerey.) Heerey saw a group of officers “trying to apprehend” Plaintiff, and Plaintiff was “waving his arms and indicating that he was not going to be apprehended. (Id. at 122.) Heerey did not know what had transpired before he arrived. (Id. at 123.) He “ran up . . . [and] grabbed one arm, ” another officer[9] “had the other arm”, and they “took [Plaintiff] to the ground and . . . attempted to . . . handcuff[] him.” (Id.) Heerey attempted to arrest Plaintiff because he “appeared to be irrational, not compliant.” (Id. at 123-24.) Plaintiff “was face first and his hands were underneath him and [Heerey and Russo] were instructing him to give [them] his hands behind his back and he would not do so.” (Id. at 125.) Heerey grabbed and struggled with Plaintiff for a while, attempting to handcuff him. (Id. at 128.) Once Plaintiff was handcuffed, Heerey frisked him for weapons, and discovered his ID, which identified Plaintiff as an officer. (Id. at 136-38.) Czulada arrived and yelled angrily at Plaintiff. (Id. at 138.) Heerey helped lift Plaintiff up, and turned Plaintiff and his property over to another officer, who “knew what was going on.” (Id. at 139-40.)


         A. ...

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