On any number of past cases we have discussed an officer’s use of force on a suspect and the court’s finding with respect to the officer’s use of force. In some cases, the courts have sided with the defendant officers and in some cases the courts have sided with the plaintiffs. But there has always been one common theme – in a Section 1983 claim the plaintiff must be able to prove that the individual officer’s actions resulted in the plaintiff’s injury. What happens in those cases where, in the fog of battle, the plaintiff cannot identify which officer actually inflicted the injury?
Jutrowski v. Township of Riverdale, etal,1 is such a case. In this case there are no less than four named officers – two New Jersey State Police troopers and two Riverdale police officers – involved in Emil Jutrowski’s arrest for OUI. There is no dispute that one of the officers kicked the plaintiff while he was lying on the pavement but none of the officers admit that they kicked him or saw who kicked him.
In June of 2010 the plaintiff, Emil Jutrowski, crashed his car into the highway guardrail in East Hanover, NJ and Riverdale PD officers and New Jersey State Police responded to the scene. Officers found Jutrowski pinned in the car and quickly deduced that he had minor injuries and was highly intoxicated. After refusing treatment from EMS personnel Jutrowski was able to climb over the back seat and step out of the car.
As officers attempted to control Jutrowski, he was taken to the ground and officers attempted to handcuff him. At some point during the struggle, one of the officers kicked Jutrowski in the face causing a broken nose and eye socket that required surgery. The plaintiff was finally handcuffed, transported to the hospital for treatment, and he eventually pled guilty to driving under the influence.
The plaintiff brought suit against the defendant officers alleging Section 1983 claims of excessive force and conspiracy to violate his constitutional rights along with a multitude of state claims. During the discovery phase, the following facts were uncovered:
- All of the officers claimed that they were in close proximity to the plaintiff during the scuffle
- All of the officers claimed that they did not kick the plaintiff, nor did they see any other officer kick Jutrowski
- None of the dashboard camera video recorded footage of the incident because they were all facing in different directions; and
- The one car video camera closest to the incident was not turned on.
Following Discovery, the defendants moved for Summary Judgment arguing that Jutrowski could not identify the officer who kicked him and, therefore, the claims must be dismissed. The District Court agreed, dismissing all seven counts against all of the defendants. This appeal followed.
3rd Circuit Findings
With respect to the excessive force claim, the 3rd Circuit agreed with the trial court that since the plaintiff could not identify the officer responsible for the kick, he could not prevail on his excessive force claim stating:
In the face of a Summary Judgment motion, a Section 1983 plaintiff must produce evidence supporting each individual defendant’s personal involvement in the alleged violation in order to proceed to trial.
The conspiracy claims were another matter, however. Here, the 3rd Circuit determined that “A conspiracy of silence among officers is actionable as a Section 1983 conspiracy because the coordinated officer conduct impedes an individual’s access to the courts.”
The court then listed a number of factors that could support the plaintiff’s conspiracy claims:
- None of the police reports indicated that Jutrowski suffered “significant injuries” in the course of his arrest, yet several officers testified at their depositions that Jutrowki’s injuries “noticeably worsened” after he was arrested;
- The lack of video footage from one officer’s camera “might infer evidence of a cover-up”; and
- The officers testified at their deposition that they discussed the incident with each other prior to writing their reports to “straighten out the sequence of events”.
Based on the circumstantial facts presented, the 3rd Circuit determined that Jutrowski had raised enough issues of material fact to send the case to a jury. The court overruled the District Court’s dismissal and sent the case back for trial on the conspiracy claims.
First and foremost, the 3rd Circuit is saying that “seeing nothing” is not a defense. When it comes to use of force incidents, it is incumbent on each officer to write a thorough report documenting the actions taken at the scene, the injuries to the subject and any injuries to officers or other civilians. While not raised in this case, we have also discussed “Bystander Liability” in previous cases. We each have a responsibility to assure our fellow officers do not commit constitutional violations and that we take appropriate action to prevent a violation from occurring.
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