On November 9, 2018, the Third Circuit Court of Appeals decided Damiani v. Duffy et al.[i], in which the court examined whether officers were entitled to summary judgment regarding a claim of excessive force when making an arrest for armed robbery. The relevant facts of Damiani are as follows:
After a series of related armed robberies in New Castle County, Delaware, several law enforcement agencies met on December 6, 2010, in a coordinated effort to catch the perpetrators, who used a dark-colored Honda Civic as their getaway car. Defendants Morrissey and Bouldin, county law enforcement officers serving as task force officers with the Bureau of Alcohol, Tobacco, Firearms and Explosives, were stationed at a liquor store that night. They saw an individual who was later identified as Damiani enter the store and, soon after, run out into a dark-colored Honda Civic and quickly drive away.
Bouldin and Morrissey began following the car in their undercover vehicles after a radio dispatcher announced that that liquor store had just been robbed at gunpoint. Morrissey lost sight of the car, but Bouldin continued his pursuit; numerous other law enforcement vehicles joined him. Damiani led the growing number of cars on a high-speed chase as he attempted to lose them.
Officers eventually caught up to Damiani and surrounded him. Damiani’s car windows, other than his windshield, were heavily tinted, preventing officers from seeing clearly into his vehicle. His car doors were locked. Officers ordered Damiani to put his hands up, which he did not immediately do. Damiani maintains that he put his hands up and moved them to his open driver’s side window, as commanded, within two minutes of the stop, after some officers came out of their vehicles with police vests and weapons.
Defendant Bouldin handcuffed Damiani through his car window. According to defendants Potts and Daniels, Damiani lowered his hands out of sight below the window and refused orders to stop moving around in his seat and get out of the car for several minutes. Other officers also noted that Damiani refused to comply with orders. Damiani claims that he was fully compliant throughout the handcuffing process.
Officers then opened the driver’s side door and tried to extract Damiani, whose shoe was stuck on a seat adjustment lever. As Damiani was quickly pulled out of the car, he cut his heel on the lever. Before he was removed, Damiani was ordered to fall to the ground face-first and Damiani stated that he would. Once Damiani landed on the ground, officers searched him, as they knew the robbery suspect was armed. A loaded gun was later found in the car.
At this point, Damiani’s narrative diverges substantially from the officers. Damiani has testified that once he was on the ground, between two and four officers kicked him in the face, head, chest, stomach, and legs for between thirty seconds and a minute. Damiani asserts that officers then transferred his handcuffs from the front of his body to the back while he was fully compliant, searched him, and moved him face-down to a grassy area where two or three officers again kicked and hit him for some short unspecified period of time. Officers then held him down with their knees until he was placed into a police cruiser. Damiani claims that his left elbow was beaten with a metal rod at some point during his arrest; he has alternately stated that it occurred when he was first removed from his car or that it occurred when he was moved to the grassy area.
Damiani has been unable to describe any officer who allegedly assaulted him. He has repeatedly claimed that certain officers participated in the beating based on his review of discovery materials but has also confused many officers’ names in his various accounts. Damiani has provided contrary approximations of how many individuals were involved in the assault and how it occurred. In his complaint, Damiani alleged that all eighteen named defendants assaulted him.
Defendants Bouldin, Potts, Daniels, and Dudzinski have all indicated that they were involved to some extent in the physical process of taking Damiani into custody. They have all stated that they did not kick or strike Damiani and that they did not see anyone else do so. According to Potts, Damiani moved around for several minutes after he was removed from his vehicle. Potts maintains that Damiani struggled to break free from the officers while they transferred his handcuffs and that it took several officers to complete the process. Potts stated that he ordered Damiani to stop resisting and that he used his body weight to get Damiani’s unsecured arm behind his back.
Daniels also stated that Damiani was struggling while his handcuffs were transferred and noted that Damiani landed face-first on hard asphalt when he was removed from his car. Dudzinski described physically assisting in the process of extracting Damiani from his car. Bouldin initially handcuffed Damiani but claims that he let go of the handcuffs once other officers opened the driver’s side car door. After performing a visual inspection on the other side of Damiani’s car, Bouldin walked away and did not participate further in the arrest.
Defendant Galbreath used a metal tool to break out the passenger side window of Damiani’s vehicle but stated that he had no contact with Damiani. Defendant Parton also stated that he had no contact with Damiani but that he had approached Damiani’s vehicle with his rifle until other officers handcuffed Damiani. All other defendants have provided sworn statements indicating that they were never at the scene of Damiani’s arrest, arrived after Damiani had been taken into custody, or were present at the scene but did not see Damiani being taken into custody.[ii]
Damiani was taken to the police station after his arrest and photographed. The photographs showed several abrasions on his face, but no other injuries. He later claimed the photographs were digitally altered. Damiani was transported from the police station to the Newark Emergency Center. Medical records documented three abrasions on his face, one on the back of his head, and that Damiani reported pain in his foot, heel and knee. He made no complaint regarding his elbow. An x-ray revealed no fractures to his foot. Damiani later claimed that he reported other injuries to the hospital staff but they failed to document the injuries.
Two days after the arrest, Damiani telephoned his fiancé from jail, discussed the incident with her, but made no mention of being assaulted by the police. Four days after the arrest, Damiani was interviewed by detectives and made no mention of being assaulted by the police. Approximately seven months after the arrest, while negotiating a plea bargain, Demiani sent a letter to the Delaware State Police Internal Affairs Unit and complained that he was assaulted during his arrest.
Approximately two years after the arrest, Damiani filed suit in federal district court and alleged that the officers used excessive force in violation of the Fourth Amendment during his arrest. He alleged that that all eighteen officers that responded to his arrest used excessive force. The district court granted summary judgment for all defendant officers and dismissed the case. Damiani appealed to the Third Circuit Court of Appeals.
On appeal, Damiani alleged that the factual dispute between the defendant’s versions of events and his version of events prevent the court from granting summary judgment. This is because at this stage of litigation, the court is required to view the facts in a light most favorable to the plaintiff. The specific factual questions to which Damiani referred in his appeal were as follows:
1) whether defendants were wearing identifying clothing and had marked police cars when he was stopped; 2) the length of time it took him to put his hands up after he was stopped; 3) whether he resisted following commands and struggled during the course of his arrest; 4) when his handcuffs were transferred from the front of his body to the back; and 5) whether his elbow was injured in the course of his arrest.[iii]
The court noted that Damiani did not raise the conflict between his version and the officer’s versions of events regarding the specific amount of force used in the course of his arrest.
With the above five points raised by Damiani in mind, the court examined the relevant legal principles that apply to the officer’s use of force. The court stated
[A]ll claims that law enforcement officers have used excessive force . . . in the course of an arrest . . . should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Id. at 396 (internal quotation marks omitted). An analysis of the reasonableness of an officer’s actions “requires careful attention to the facts and circumstances of each particular case, including  the severity of the crime at issue,  whether the suspect poses an immediate threat to the safety of the officers or others, and  whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.; see also Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997) (abrogated on other grounds by Curley v. Klem, 499 F.3d 199 (3d Cir. 2007)) (“Other relevant factors include the possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time.”).[iv] [emphasis added]
The court also noted that summary judgment for the defendant officers is appropriate when, if viewing the record and evidence as a whole, no reasonable jury could find in favor of the plaintiff.
The court then applied the facts of Damiani’s case to the principles above. The court noted that the record reflects that (1) Damiani was a the suspect in an armed robbery that had just occurred, as well as numerous other armed robberies, (2) he had just led the police on a dangerous car chase, (3) he remained in his car with the doors locked after the chase, and (4) his windows were heavily tinted which obstructed the officers view. The court stated
Even if Damiani immediately put up his hands and complied with all commands, the undisputed facts show that he was extracted from his vehicle, had his handcuffs placed behind his back, was searched, and was in custody within a matter of minutes. The minor injuries sustained by Damiani that are supported by the record are consistent with the way that he was quickly extracted from his vehicle, given the immediate risk he posed to officers before they searched and secured him.[v]
The court also considered Damiani’s versions of events, and noted that no evidence supported his version(s) of events. The only support is found in his own deposition and the complaint he filed with the Delaware State Police approximately seven months after the arrest. The court also noted that his version of events changed and conflicted substantially each time he was asked to describe what took place during his arrest. The court held that Damiani’s claims are insufficient, standing alone with no other evidence, to prevent the grant of summary judgment in favor of the defendant officers. Specifically, the court stated
The only record evidence that lends support for Damiani’s account is his own deposition testimony and documents from his internal complaint with the Delaware State Police. However, Damiani’s divergent and conflicting narratives — accounts that changed substantially every time he was asked to describe what transpired during his arrest — are insufficient, standing alone, to permit his claims to survive summary judgment. See Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005) (concluding that summary judgment for the law enforcement defendants was proper where a plaintiff’s “testimony — which was largely unsubstantiated by any other direct evidence — was so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in his complaint”).[vi] [emphasis added]
Therefore, the court of appeals affirmed the grant of summary judgment in favor of the officers.
[i] No. 17-3725 (3rd Cir. Decided November 9, 2018 Unpublished)
[ii] Id. at 2-5
[iii] Id. at 9
[iv] Id. at 8-9
[v] Id. at 10