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Barcomb v. Kraeger

United States District Court, D. Connecticut

May 5, 2016




Plaintiff Wendy Barcomb brought this § 1983 action alleging excessive force[1] in violation of the Fourth Amendment against Defendants Officer Robert Kraeger and Officer DiMassa of the Middletown Police Department. Defendants now move [Doc. # 31] for summary judgment. Oral argument was held on April 6, 2016. For the following reasons, Defendants' motion is denied.

I. Background [2]

Wendy Barcomb is a 45-year old woman who suffers from post-traumatic stress disorder, bipolar disorder, severe learning disabilities, and epilepsy. (Barcomb Dep., Ex. 2 to Opp'n Mot. Summ. J. [Doc. # 32] at 18, 75-76, 110.) In 2012, when the incident underlying this lawsuit occurred, Ms. Barcomb was itinerantly homeless and struggling with alcoholism. (See Id. at 152, 143.) She had been arrested on four prior occasions for creating public disturbances and had received multiple citations for drinking in public, jaywalking, and trespassing. (Id. at 31-32, 54-66.)

On June 19, 2012, at about 3:45 p.m., Ms. Barcomb walked into Spear Park in Middletown, Connecticut and sat down at a concrete table. (Id. at 160-61.) She put her head down on the table, and after about twenty minutes, she fell asleep. (Id. at 172.) Twenty or twenty-five minutes later, she awoke to the sound of a police officer calling her name. (Id. at 173, 179, 186-87.) When she looked up, she saw Officers Kraeger and DiMassa approaching her. (Id. at 186-87.) Upon seeing that one of the officers was writing her a ticket, Ms. Barcomb stood up and asked the officer why she was getting a ticket. (Id. at 180, 184, 186-88.) The officer responded that she was being cited for drinking in public. (Id. at 180.) Ms. Barcomb, insisting that she was not drinking in public, [3] became upset and began to yell at the officers, protesting the ticket using some rather colorful language, and gesturing with her hands. (Id. at 181, 184, 188, 207.)

When the officer handed Ms. Barcomb the ticket, she exclaimed either "F**k this ticket" or "I'm going straight to the f**king mayor with this, " and proceeded to rip the ticket up. (Id. at 180, 182, 188, 189.) Officer Kraeger responded by telling Ms. Barcomb that she was going to be charged with littering for throwing the ticket on the ground. (Id. at 180.) At some point during this exchange, Ms. Barcomb began to slowly walk away from the officers. (Id. at 205.) As she was walking away, one of the officers commanded her to stop. (Id. at 188, 205.) She did. (Id. at 188, 205.) It is unclear from the record whether this occurred before or after Ms. Barcomb received and tore up the ticket. (Compare Id. at 187-88, 205 with Id. at 197.) Whatever the order of events, at some point, both Ms. Barcomb and the officers moved to another part of the park, where they stood facing one another. (Id. at 189, 191, 198.) Then, without giving Ms. Barcomb any command to stop or calm down or any warning of what he was about to do, Officer Kraeger took her down to the ground and handcuffed her.[4] (Id. at 207.)

In Ms. Barcomb's account of the incident, Officer Kraeger grabbed her shoulders and "thr[e]w[] her to the ground, aggressively, " striking her right knee and the upper left part of her face against the ground. (Id. at 190-92, 207.) In witness David Hill's telling, however, "[i]t looked like [Officer Kraeger] was intentionally trying not to hurt her, " and "her face never touched the ground." (Hill Dep. at 4.)

Once Ms. Barcomb was on the ground, Officer Kraeger handcuffed her and moved her onto her stomach.[5] (Barcomb Dep. at 193.) Ms. Barcomb did not struggle with the officer, but she continued to yell. (Id. at 192-94.) At that point, Officer DiMassa warned Plaintiff that if she did not stop yelling he was "going to have to taser" her. (Id. at 192.) Ms. Barcomb reports that she told the officers repeatedly that the handcuffs were too tight, and she asked them to loosen them, but they refused, responding "We're just going from here to the station. You can make it." (Id. at 103, 193.) The officers transported Ms. Barcomb to the police station and placed her in a holding cell, later calling an ambulance to take her to the hospital. (Id. at 194.) Ms. Barcomb was charged with disorderly conduct, to which she pled guilty on July 3, 2012. (Id. at 23-24.)

Ms. Barcomb claims that she sustained bruises and scrapes to both wrists from the handcuffs, as well as to her right knee and left temple from hitting the ground. (Id. at 102-05.) All of these injuries resolved within about a week. (Id.) In addition, Ms. Barcomb asserts that the event exacerbated pre-existing anxiety, for which she has received and continues to receive psychiatric treatment. (Id. at 105-07.)

II. Discussion [6]

As clarified at oral argument, Plaintiff alleges that Officer Kraeger utilized excessive force, in violation of her Fourth Amendment rights, by forcefully bringing her down to the ground and by putting excessively tight handcuffs on her, and Officer DiMassa failed to intervene after Officer Kraeger handcuffed her.[7] Defendants respond that: (1) Officer Kraeger did not utilize excessive force; (2) Officer DiMassa cannot be held liable for failing to intervene; and (3) Defendants are entitled to qualified immunity. Each of these arguments is discussed in turn below.

A. Officer Kraeger's Conduct

"[A p]olice officer's application of force is excessive, in violation of the Fourth Amendment, if it is objectively unreasonable 'in light of the facts and circumstances confronting [him], without regard to [his] underlying intent or motivation.'" Maxwell v. City of New York, 380 F.3d 106, 108 (2d Cir. 2004) (quoting Graham v. O'Connor, 490 U.S. 386, 397 (1989)). Although police officers are entitled to use some degree of force when an arrestee is resisting arrest, the mere fact that a suspect resists does not render an excessive use offeree objectively reasonable. See Sullivan v. Gagnier, 225 F.3d 161, 165-66 (2d Cir. 2000) ("The fact that a person whom a police officer attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer's use of some degree of force, but it does not give the officer license to use force without limit.").

Determining whether an officer's conduct was objectively reasonable requires balancing a plaintiffs Fourth Amendment rights against competing governmental interests and considering the circumstances "from the perspective of a reasonable officer on the scene." See Graham, 490 U.S. at 396-97. "This balancing, " the Supreme Court explained in Graham, "'requires careful attention to the facts and circumstances of each particular case, including'" (1) the severity of the underlying crime; (2) "'whether the suspect poses an immediate threat to the safety of the officers or others'"; and (3) "'whether [s]he is actively resisting arrest or attempting to evade arrest by flight.'" Brown v. City of New York, 798 F.3d 94 (2d Cir. 2015) (quoting Graham, 490 U.S. at 396). "Given the fact-specific nature of the inquiry, granting summary judgment against a plaintiff on an ...

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