Case 1:11-cv-03028-PKC-SMG Document 111 Filed 02/15/17 Page 1 of 52 PageID #: 3161
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`MEMORANDUM & ORDER
`11-CV-3028 (PKC)
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`-------------------------------------------------------x
`LARRY JACKSON,
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`Plaintiff,
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` -
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` against -
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`JESUS TELLADO, STANLEY MACNEAR,
`JOHN CZULADA, JAMES T. GHERARDI,
`RYANN DUNN, ROBERT J. DEFERRARI,
`KENNETH BRAUMANN, BEN KURIAN,
`PETER BONETA, THOMAS E. REO,
`MICHAEL FAILLA, AND BRIAN E.
`HEEREY,
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`
`Defendants.
`-------------------------------------------------------x
`PAMELA K. CHEN, United States District Judge:
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`On February 3, 2016, after a seven-day trial, the jury returned a verdict on Plaintiff Larry
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`Jackson’s claims under 42 U.S.C. § 1983 against New York City Police Department Officers
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`Jesus Tellado, Stanley MacNear, John Czulada, James Gherardi, Ryann Dunn, Robert Deferrari,
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`Kenneth Braumann, Ben Kurian, Peter Boneta, Thomas Reo, Michael Failla, and Brian Heerey
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`(collectively, “Individual Defendants”). The jury determined that Jackson had been falsely
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`arrested and subjected to excessive force, and awarded Jackson $12,500,000 in compensatory
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`damages, as well as punitive damages against each Defendant in varying amounts.1
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`1 The jury awarded $300,000 in punitive damages against Tellado; $300,000 against
`MacNear; $275,000 against Czulada; $150,000 against Gherardi; $150,000 against Dunn;
`$250,000 against Deferrari; $50,000 against Braumann; $400,000 against Kurian; $125,000
`against Boneta; $275,000 against Reo; $350,000 against Failla; and $50,000 against Heerey, for
`a total of $2,675,000 in punitive damages. (Dkt. 95 (“Verdict Sheet”).)
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`Individual Defendants now move for qualified immunity as to each Defendant and each
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`claim. For the reasons set forth below, Defendants’ motion is GRANTED in part and DENIED
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`in part.2
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`BACKGROUND
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`The Court assumes the parties’ familiarity with the procedural history of this case and the
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`trial record, and discusses them only to the extent they are relevant to the resolution of the instant
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`motions.
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`I.
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`PROCEDURAL HISTORY
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`On June 24, 2011, Jackson filed his complaint against the City of New York and 20 John
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`Doe defendants. (Dkt. 1.) After some initial discovery, Jackson filed his Amended Complaint
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`on March 1, 2013, naming Individual Defendants, as well as Officers Patrick D’Onofrio and
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`Robert E. Russo. (Dkt. 30.)3 Defendants moved for summary judgment on August 20, 2013
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`(Dkt. 56), and the Court granted that motion in part on March 17, 2014, dismissing Defendant
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`D’Onofrio and the City of New York. (Dkt 67.) The parties proceeded to trial on January 25,
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`2016, but during trial, stipulated to the dismissal of Defendant Russo on February 1, 2016 (dkt.
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`92), which the Court so ordered the next day.
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`II.
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`FACTUAL OVERVIEW4
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`2 Following the issuance of this Memorandum and Order, judgment will issue, and
`Defendants will have 28 days in which to file their proposed motion for judgment as a matter of
`law under Federal Rule of Civil Procedure (“FRCP”) 50 and/or for a new trial under FRCP 59.
`(See 2/4/16 Dkt. Order.)
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` 3
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` Both in his original and amended complaints, Jackson named multiple John Doe
`defendants, but Plaintiff’s counsel affirmed at the beginning of the trial that no such defendants
`remained in the case. (1/25/16 Tr. at 61.)
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` 4
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` When a defendant seeks judgment as a matter of law after trial on the basis of qualified
`immunity, the Court “must view all disputed facts in the light most favorable to…the prevailing
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`A. Testimony of Plaintiff and Several of His Witnesses5
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`On August 21, 2010, Plaintiff, an off-duty police officer, hosted a party for his daughter’s
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`twenty-first birthday at his home. (1/27/16 Tr. 17–18, Jackson.) Late in the evening, partygoers
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`congregating in front of Plaintiff’s house were approached by a group of people, including a man
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`who appeared to have a gun. (Id. at 23–24; 1/26/16 Tr. 92–93, Strong.) Plaintiff came out of his
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`house to move the group away from his home, but at some point, there was at least one call to the
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`police, placed by Plaintiff’s fiancée Charlene Strong, informing them that a man with a gun was
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`outside of their home. (1/26/16 Tr. 14–15, Strong; 1/27/16 Tr. 24, Jackson.)
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`As Plaintiff returned to his house, two police officers—Defendants Czulada and
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`MacNear—arrived at the home in response to the 911 call. (1/27/16 Tr. 29–31, Jackson.)
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`Plaintiff approached Czulada and MacNear and said to MacNear, “hey, Sarge, I’m MOS”
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`meaning he was a member of the police service. (Id. at 36.) While Plaintiff, Czulada, and
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`MacNear were talking outside, Plaintiff’s niece, Tiffanie Johnson, ran out from Plaintiff’s home
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`and stated that there were people fighting inside, at which point Plaintiff, Czulada, and MacNear
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`all entered the home. (Id. at 39; 1/28/16 Tr. 78–79, MacNear.)
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`When Plaintiff got inside, he saw two of the male party guests, Taimar Bonaparte and
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`Jason Wilkinson, on the floor. (1/27/16 Tr. 39–40, Jackson.) After Plaintiff walked into the
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`kitchen to determine what was going on, he turned around to see Czulada “standing there with
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`party.” O’Hara v. City of New York, 570 Fed. App’x 21, 23 (2d Cir. 2014) (summary order).
`See also Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007) (explaining that the district
`court “must draw all reasonable inferences in favor of the nonmoving party . . . and . . . must
`disregard all evidence favorable to the moving party that the jury is not required to believe”)
`(quoting Reeves v. Sanderson Plumbing, 530 U.S. 133, 150–51 (2000)).
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` 5
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` Plaintiff’s trial testimony was substantially corroborated by the testimony of his friends
`and family members—Taimar Bonaparte, Derrick Collins, Charlene Strong, Quinton Thomas,
`Tiffanie Johnson, Marilyn Murphy, and Marcus Johnson.
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`[an] ASP baton held in both hands.” (Id. at 41.) Czulada told Plaintiff to “back the fuck up,” to
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`which Plaintiff responded by “put[ting] [his] hands up” and telling Czulada that he (Plaintiff)
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`was a police officer and that it was his house. (Id.) According to Plaintiff, Czulada responded
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`by pushing him back with the baton. (Id.) Plaintiff lost his balance. (Id. at 42.) When he got
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`back up, Plaintiff asked Czulada what he was doing, saying “I’m a cop, too.” (Id. at 42.) In
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`response, Czulada punched him in the face. (Id.) When Czulada hit him a second time, Plaintiff
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`“grabbed him by his shoulders” to prevent Czulada from hitting him again. (Id. at 43.) When
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`Plaintiff let go, Czulada stepped back and tripped over a cooler. (Id. at 44.) Plaintiff tried to
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`help him up, at which point Czulada “took another swing” at him. (Id. at 45.)
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`Someone Plaintiff could not see then lifted him up with an ASP baton around his neck.
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`(Id. at 46.) Plaintiff later learned that the person was Defendant Kurian. (Id. at 105.) Kurian
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`kept telling Plaintiff to relax, and Plaintiff kept responding that he was relaxed, but that he
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`couldn’t breathe. (Id. at 47.) Plaintiff and Kurian fell over the arm of the couch onto the couch
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`and onto Iris Strong, Plaintiff’s 79-year-old mother-in-law who was sitting on the couch at that
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`moment and who “passed out.” (1/27/16 Tr. 48-49, 51, Jackson.) While Plaintiff and Kurian
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`were on the couch, Plaintiff felt another officer trying to grab Plaintiff’s hands. (Id. at 49.)
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`Charlene Strong, testified that when she entered the house, she saw Jackson being choked
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`with a baton, and that Jackson’s “eyes [were] rolling to the back of his head.” (1/26/16 Tr. 107–
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`08, Strong.) She testified that people were yelling, “He’s an officer,” “He’s an officer,” “get off
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`of Larry”, and “Why are you choking him?” (Id. at 108–09.) Strong observed that none of the
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`officers in the house were trying to intervene, and were “allowing this process to happen.” (Id.
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`112.) Tiffanie Johnson, Plaintiff’s niece, testified that the cops inside were “yoking [Plaintiff]
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`up,” and “attacking him.” (1/29/16 Tr. 18–20, T. Johnson). She testified that one officer
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`“grabbed his right side, another one grabbed [Plaintiff’s] left side,” and “[a]nother one came
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`behind and choke[d] him.” (Id. at 20.) Marcus Johnson, Plaintiff’s nephew, testified that an
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`officer, presumably Kurian, ran in during Plaintiff’s altercation with Czulada, “jumped up and
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`threw his baton around [Plaintiff’s] neck and pretty much choked him with it to bring him
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`down.” (1/29/16 Tr. 85–86, M. Johnson.)
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`The officers let Plaintiff go, at which point he saw two other officers taking Bonaparte
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`out of the house and slamming him against the trunk of a car. (1/27/16 Tr. 53, Jackson.)
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`Plaintiff went to the front door of his house and, from the doorway, said, “Wait a minute, guys”.
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`Plaintiff was “then…hit in the back of the head with something” by someone he could not see.
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`(Id. at 54–55.) In response to being struck in the head, Plaintiff ran out of his house and to the
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`street curb. (Id.) He ran past six or seven officers, and knelt down near the curb. (Id. at 56.) As
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`Plaintiff went to reach into his pocket to get his ID, officers started hitting him with batons in the
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`back of his legs and on his back, hitting him “upward of 20, 30 times.” (Id. at 56–57.)
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`Bonaparte observed “more than ten” officers around Plaintiff in the street, “swinging and hitting
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`[him].” (1/25/16 Tr. 26–27, Bonaparte.) Plaintiff could tell by the pants and shoes of the people
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`hitting him that they were officers. (1/27/16 Tr. 57, Jackson.) Plaintiff lay on his stomach in the
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`street while a semicircle of officers proceeded to hit him with batons and to roll the batons over
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`the back of his ankles. (Id. at 58–60.) Two officers were positioned with their knees on his
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`back, while the officers tried to get his arms. (Id. at 60.) One officer was poking him in the side
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`with a baton and kicking him, saying “give me your arm, stop resisting me, give me your arm.”
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`(Id.) Plaintiff told the officer that he could not give him his arms because they were underneath
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`him and there was too much weight on his back. (Id. at 61.)
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`Strong testified that she saw the officers in a circle around Plaintiff, with their hands
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`linked together, and that they were hitting him in the head, back, and side with their batons.
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`(1/26/16 Tr. 128–29, Strong.) Marilyn Murphy, Plaintiff’s sister-in-law, testified that a “whole
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`swarm of police officers . . . were beating [Plaintiff] down” and “wouldn’t stop beating on
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`[him]” with billy clubs. (1/29/16 Tr. 57–58, Murphy.) She also testified that she saw the
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`officers use a taser on him. (Id. at 65.) Marcus Johnson testified that the officers pulled Plaintiff
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`outside in handcuffs and started beating him. (1/29/16 Tr. 91, M. Johnson.)
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`When the officers got off of him, Plaintiff “stuck [his] arm out” and “let them put the
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`cuffs” on because he “figured it would be over” and they could “straighten this out.” (1/27/16
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`Tr. 62, Jackson.)
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`After he was handcuffed, Plaintiff “looked up to one of the officers” and said “Guys, this
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`was unnecessary….I’m a fellow cop, too.” In response, they pepper sprayed him. (Id. at 62.)
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`The officers proceeded to search Plaintiff, at which point Czulada ran over to Plaintiff, called
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`him a “fucking dirt bag”, and said, “If you’re really a cop, where’s your ID?” (Id. at 64.) After
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`Plaintiff told Czulada that the ID was in his right front pocket, an officer pulled it out of
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`Plaintiff’s pocket. (Id. at 64.) As the officer was retrieving the ID, Plaintiff looked up and
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`noticed Defendant Tellado, a captain, standing there, with between seven and nine officers
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`standing around. (Id. at 64–65.) Plaintiff testified that when Captain Tellado looked at the ID,
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`he made a “facial gesture” like “oh, shit.” (Id. at 66–67.) Plaintiff then heard Captain Tellado
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`tell one of the officers to get Plaintiff up and take the handcuffs off. (Id. at 67.) At that point, all
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`of the officers left except Captain Tellado and the officer Captain Tellado had told to take the
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`handcuffs off, presumably MacNear. (Id. at 68.) MacNear did not remove Plaintiff’s handcuffs,
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`and Tellado again told him to do so. (Id. at 68–70.) Tellado then left, saying that he would be
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`back, but was going to check on the lady that needed assistance. (Id. at 70.)
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`Two additional non-defendant officers arrived at the scene, and the officer with Plaintiff
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`asked them to put Plaintiff in the police car. (Id. at 70.) Plaintiff told the two officers that
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`Captain Tellado had directed the other officer to take off the handcuffs, but the two officers
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`responded that they had not been told that. (Id. at 71.) The two officers put Plaintiff in the back
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`of the police car without removing the handcuffs. (Id.)
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`Plaintiff was taken to the police station, where he remained for several hours before being
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`released. (Id. at 96.)
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`B. Defendant MacNear’s Testimony
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`Defendant MacNear testified that he responded to Plaintiff’s house with Czulada after
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`receiving a dispatch call for a man with a gun, followed by a call stating that an officer needed
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`assistance. (1/28/16 Tr. 67, 73, 77, MacNear) MacNear heard screams coming from inside the
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`house and followed Czulada inside. (Id. at 78–79.) As MacNear entered the home, he observed
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`ten to fifteen people inside, including three different individuals “pushing and shoving” each
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`other, and Czulada trying to break things up. (Id. at 84, 90.) Having decided that the scene was
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`“getting out of hand,” MacNear requested that additional units come to the location. (Id. at 84–
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`85.) MacNear observed Plaintiff standing between the two individuals who were fighting—the
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`same men Czulada was trying to separate. (Id. at 92.) MacNear did not know whether Plaintiff
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`was trying to break up the fight. (Id.) MacNear, who was trying to break up a different fight, did
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`not “continuously” observe Czulada and Plaintiff. (Id. at 94.) When he next saw Czulada,
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`Czulada was “on the ground,” with Plaintiff “standing above him” “swinging his arms” with his
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`“fists cocked.” (Id. at 95–97, 99.) MacNear then saw Plaintiff strike Czulada in the head while
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`Czulada was on the floor. (Id. at 100, 115.) MacNear did not know what had happened before
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`he saw Plaintiff strike Czulada. (Id. at 104.)
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`The next time MacNear saw Plaintiff, he was outside of the house in handcuffs. (Id. at
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`103, 106; 2/1/16 Tr. 134, Czulada.) Czulada told MacNear he had been struck in the head and
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`pointed to Plaintiff as the person who had hit him. (Id. at 104, 105.) MacNear assumed Plaintiff
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`was in handcuffs for hitting Czulada. (Id. at 106.) MacNear told Captain Tellado that Plaintiff
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`had struck Czulada, at which time Tellado explained that Plaintiff was an off-duty officer. (Id. at
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`111.) Tellado told MacNear to remove Plaintiff’s handcuffs, but MacNear “didn’t have the key”
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`on him. (Id. at 113.) Tellado also ordered MacNear to move the police vehicles so that the
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`ambulances could pull up, and MacNear moved the vehicles, leaving Plaintiff in handcuffs. (Id.
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`at 113–14.)
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`C. Defendant Czulada’s Testimony
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`Defendant Czulada arrived at Plaintiff’s home with MacNear, in response to a radio
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`transmission of a man with a gun, which turned into a report of an officer in need of assistance.
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`(2/1/16 Tr. 79–80, Czulada). He heard someone calling for help inside the house and ran inside.
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`(Id. at 85–86.) Once inside, Czulada saw people “pushing, yelling, screaming” at each other, and
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`“got in between [Plaintiff] and the pile of people that were fighting.” (Id. at 90, 92.) Czulada
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`“kind of pushed [Plaintiff] back a little bit,” at which time Plaintiff “turned toward [him] and
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`“pushed [him] with both hands.” (Id. at 90.) After Czulada “nudged” Plaintiff back from the
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`crowd, Plaintiff “pushed” Czulada. (Id. at 95–96.) Czulada’s back was against a wall and
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`Plaintiff, appearing to be angry, approached “in a threatening manner”. (Id. at 95–96.) Czulada
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`responded by punching Plaintiff in the face. (Id. at 96–97.) Plaintiff then punched Czulada in
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`the head multiple times, and Czulada fell and hit the back of his head on a doorknob. (Id. at
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`100.) Plaintiff continued to punch Czulada while he was on the floor. (Id. at 100–01.)
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`Czulada then went outside and told MacNear that he had been assaulted, and identified
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`Plaintiff, who, at that point, was lying in the street in handcuffs, as the person who had assaulted
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`him. (Id. at 134.) Czulada admitted on cross-examination that the reason he didn’t tell anyone
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`that he had punched Plaintiff in the face was because he “knew that [he had] operated outside the
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`[police] department guidelines.” (Id. at 109.) When Czulada saw Plaintiff handcuffed in the
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`street, Czulada called him a “liar.” (Id. at 112.)
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`D. Defendant Gherardi’s Testimony
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`Defendant Gherardi arrived at Plaintiff’s home with his partner Defendant Dunn in
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`response to a radio call of a man with a firearm. (2/2/16 Tr. 184, Gherardi.) Before they arrived,
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`he heard MacNear yelling over the radio for additional units. (Id. at 185.) After arriving at the
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`scene and entering the house, Gherardi saw a “large group” of people inside, and Plaintiff
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`“holding Officer Czulada up against the wall with his left hand.” (Id. at 187.) He saw Plaintiff
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`“striking” Czulada “in the face” with “hard” force. (Id. at 188, 196.) Gherardi “placed [his]
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`hand” on Plaintiff’s shoulder to get him to move away from Czulada. (Id. at 191.) Gherardi then
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`turned away, in an effort to “set a perimeter” around Plaintiff and Czulada, but “one of the
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`civilians from the home grabbed [him] from behind and threw [him] to the floor.” (Id. at 193.)
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`Gherardi then got up and helped clear the house. (Id. at 194.)
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`E. Defendant Dunn’s Testimony
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`Defendant Dunn arrived with Gherardi in response to radio transmissions about a man
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`with a gun, shots fired, and an officer in need of assistance. (2/1/16 Tr. 26, Dunn.) When Dunn
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`arrived, he heard an officer inside the house call for assistance. (Id. at 28.) While standing at the
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`doorway, he saw a “big fight” in the house, “people pushing, cursing at each other, some people
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`throwing punches.” (Id. at 30.) Once he entered the house, he saw Plaintiff punching Czulada
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`against a wall. (Id. at 30, 33.) He also saw Plaintiff “[t]hrowing punches while Czulada was in
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`the fetal position.” (Id. at 36.) He made his way to Czulada and Plaintiff, “got behind
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`[Plaintiff][,] . . . put [his] arms around [Plaintiff’s]. . . waistline and just leaned backwards, to try
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`to get him off Officer Czulada.” (Id. at 36.) Dunn and Plaintiff “fell over the couch.” (Id. at
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`37.) At that point, Dunn “scurried out from underneath” Plaintiff, and “that was that.” (Id. at
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`42.) That was the last time Dunn saw Plaintiff. (Id. at 44.)
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`F. Defendant Braumann’s Testimony
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`Defendant Braumann arrived at Plaintiff’s home with his partner, Kurian, in response to a
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`radio dispatch that started out as a dispute with a firearm, and then switched to officer in need of
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`assistance. (2/2/16 Tr. 10, Braumann.) When Braumann and Kurian were a block or two from
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`the location, Braumann “heard an on-duty officer, which was either Sergeant MacNear or Officer
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`Czulada[,] scream over the radio for additional units.” (Id. at 11.) When they arrived, Braumann
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`and Kurian ran to the front door. (Id. at 13.) Braumann testified that he saw a “giant fight inside
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`the house”, and observed both MacNear and Czulada inside. (Id. at 14.) Braumann did not see
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`Plaintiff inside the house, and did not know if Plaintiff was inside when Braumann entered. (Id.
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`at 17–18.) Braumann testified that he had his ASP baton in his hand when he walked into the
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`house, because he “felt there was a threat of some sort in the house,” but when he saw the large
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`crowd, he put it back in his holster because he “didn’t want [it] to be taken out of [his] hands.”
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`(Id. at 20.) Soon after Braumann entered the house, a “pile of people fell down on top of [him]”,
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`causing him to fall to the ground. (Id. at 14.) Captain Tellado then entered the living room, and
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`told everyone to leave the house. (Id. at 22.)
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`G. Defendant Kurian’s Testimony
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`Defendant Kurian entered the house with Braumann. (2/2/16 Tr. 47, Kurian.) The first
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`thing Kurian saw when he entered was MacNear on top of a broken coffee table. (Id. at 47–48.)
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`He also saw Czulada “pinned” up against the wall by Plaintiff. (Id. at 50.)6 Kurian saw Plaintiff
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`“striking” Czulada “[u]p above the face or the neck/chest area.” (Id. at 52.) Kurian ran over and
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`“grabbed [Plaintiff’s] right arm,” “wrapped both [his] hands around [Plaintiff][,] and . . . was
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`trying to pull [Plaintiff] [to] prevent him from striking Officer Czulada.” (Id. at 53.) Kurian
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`grabbed Plaintiff “with both . . . hands, as if in a bear hug around [Plaintiff’s] right arm.” (Id. at
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`54.) Kurian had his ASP baton with him, but did not have it out. (Id. at 55.) As Kurian was
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`wrapped around Plaintiff’s arm, Dunn “had come around to the other side and grabbed [Plaintiff]
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`either by his hand, his other arm or the other part of his body . . . and was trying to pull him off
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`[of Czulada].” (Id. at 58.) Then Kurian, Dunn, and Plaintiff all fell back onto the sofa. (Id.)
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`Kurian did not recall if Plaintiff was saying that he was an officer. (Id. at 62.)
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`Kurian’s attention was diverted by a teenage girl who assaulted him and started clawing
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`at his face. (Id. at 63–65.) After he attempted to arrest her, Captain Tellado arrived and told
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`everyone to get out of the house. (Id. at 69–70.) Kurian met up with Braumann, and they got in
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`their duty car and left the scene. (Id. at 73–74.)
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`H. Defendant Reo’s Testimony
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`Defendant Reo arrived at Plaintiff’s house in response to a call for additional units from
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`someone he thought was MacNear. (1/29/16 Tr. 179, Reo). He arrived to see four police cars
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`and about twenty to thirty people outside. (Id. at 179–80.) In order to protect the officers inside
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`6 Kurian admitted that he might have missed some of the interaction between Plaintiff
`and Czulada. (Id. at 50–51.)
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`the house, Reo placed himself in the entrance to the house and blocked people from entering.
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`(Id.) Plaintiff approached Reo in the doorway and tried to enter the house, but Reo would not let
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`him through. (Id. at 182.)7 Suddenly, Reo heard Jackson yelling, while looking past Reo, “You
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`all can’t fucking do that, you all can’t do that,” in the direction of two officers who were taking a
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`shirtless man in handcuffs out of the house. (Id.) Reo told Plaintiff, who was trying to push past
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`him, “You’re not getting by me.” (Id. at 182–83.) Plaintiff “g[ave] [Reo] a two-handed shove to
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`[his] chest.” (Id.) At that point, “two, maybe three officers grabbed [Plaintiff] and tried to place
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`him in handcuffs.” (Id. at 185.) When Reo regained his footing, he attempted to arrest Plaintiff
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`for having shoved him. (Id. at 185–86.) He approached and “tried to grab [Plaintiff’s] arm” and
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`“tried to grab a leg.” (Id. at 190.) Plaintiff “went down to the ground.” (Id. at 190–91.)
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`“[M]aybe four, five, six officers were trying to pull [Plaintiff’s] arms [to] get them behind his
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`back to handcuff him,” and “[e]ventually, he was handcuffed.” (Id. at 191.) Reo was the
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`arresting officer. (Id. at 196–97.) Captain Tellado arrived and gave an order to un-handcuff
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`Plaintiff. (Id. at 192.)
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`Reo did not see any ASP batons out, and did not see any officers strike Plaintiff. (Id. at
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`191.) However, he did not have an “unobstructed view” of Plaintiff while Plaintiff was in the
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`street and he “[didn’t] know what everybody else was doing.” (Id. at 192–93.)
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`I. Defendant Boneta’s Testimony
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`Defendant Boneta arrived at the scene as an officer was bringing a shirtless man out of
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`the house in what Boneta assumed were handcuffs. (2/1/16 Tr. 10, 13, Boneta). Boneta heard
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`someone say, “you can’t do that, I’m on the job.” (Id. at 10.) He turned and saw a person he
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`7 Reo’s testimony, placing Plaintiff outside the house at that moment, is contradicted by
`all of the other testimony and evidence introduced at trial.
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`later came to believe was Plaintiff8 “push[]” Reo “right in front of me.” (Id. at 10–11.) Before
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`Boneta could confront Plaintiff, other officers did so, “box[ing] [Boneta] out”. (Id. at 10, 14.)
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`Thinking that the other officers “got this”, Boneta “turned around and . . . exercised crowd
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`control.” (Id. at 10, 14.) Boneta did not look to see what was happening between the officers
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`and Plaintiff. (Id. at 14.) After a few minutes, Captain Tellado advised the officers to resume
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`patrol, and Boneta left the scene with his partner. (Id. at 13, 16–17.)
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`J. Defendant Tellado’s Testimony
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`Defendant Tellado, the duty captain present at the scene, testified that when he arrived at
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`the house, he saw upward of 50 people outside. (2/1/16 Tr. 171–72, Tellado.) When he entered
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`the house, he saw people lying on the floor handcuffed with police officers next to them, and
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`heard yelling and screaming. (Id. at 173–75.) He did not see Plaintiff inside the house. (Id. at
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`178.) Tellado ordered officers to take the two handcuffed individuals out of the house. (Id.)
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`Tellado then realized that an ambulance was needed for two individuals inside the house—the
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`elderly woman and an individual who might have been injured. (Id. at 178.) Tellado then left
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`the house because the situation was “calming down.” (Id. at 180.)
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`Once outside, Tellado walked to the street because he saw “a certain commotion” with
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`three or four officers struggling with somebody. (Id. at 183.) He saw three or four officers
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`standing around an individual lying on the ground handcuffed. (Id. at 183–84.) At some point,
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`an officer told Tellado that “the reason [Plaintiff] was in handcuffs is because he hit a police
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`officer.” (Id. at 187.) At that time, none of the officers had weapons in their hands. (Id. at 184.)
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`After Plaintiff told Tellado that Plaintiff was a police officer, and that the other officers had
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`pulled his badge out of his pants, Tellado “asked the officers to assist [Plaintiff] and lift him up
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`8 Boneta’s belief was based on seeing Plaintiff’s photograph subsequently in the
`newspaper. (2/1/16 Tr. 11, Boneta.)
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`on his own two feet”, and “asked them to remove the cuffs.” (Id. at 190.) After giving that
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`order, Tellado did not stay there to see if anyone removed the handcuffs because he heard
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`screaming from inside the house and “went [to] the person that needed medical attention . . . .”
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`(Id. at 196–97.)
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`K. Defendant Deferrari’s Testimony
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`Defendant Deferrari testified that while en route to the scene, he heard over the radio that
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`there was “possibly an MOS” at the location, as well as an officer screaming for assistance.
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`(2/2/16 Tr. 109–11, Deferrari.) When Deferrari arrived, he ran toward the house. (Id. at 113.)
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`From the doorway, he saw people “fighting, pushing, shoving, [and] throwing people to the
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`ground” inside. (Id.) He briefly entered the house, and then was “pulled from the house by an
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`unknown person” and “punched in the face,” after which he “barricaded [him]self at the
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`doorway.” (Id. at 113–14.) Deferrari could not see exactly what was going on inside the house
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`and “wasn’t able to see any officers inside the house.” (Id. at 119.)
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`Later, Deferrari saw Plaintiff exiting the house with an officer following him and
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`pointing at him, yelling, “he’s under . . . arrest, he’s a collar, he’s a collar.” (Id. at 121.) Plaintiff
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`kept walking, and “officers approached [Plaintiff] to place him in handcuffs. (Id. at 124.)
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`Plaintiff “pulled his arms away from them, [and] swung his arms to keep them from arresting
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`him.” (Id. at 124–25.)
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`Deferrari saw “about five or 10” officers surround Plaintiff, “grabbing at his arms trying
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`to pull them behind his back,” and “[s]ome had their ASPs out hitting him in the legs trying to
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`get him down to the ground.” (Id. at 131–32.) Deferrari did not see the officers striking Plaintiff
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`on other parts of his body. (Id. at 132.) Deferrari did not tell the officers to stop “because it
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`wouldn’t have made a difference” since Plaintiff was resisting arrest. (Id. at 134–35.)
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`L. Defendant Failla’s Testimony
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`When Defendant Failla arrived on the scene, he saw Plaintiff standing in the middle of
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`the street with a circle of police officers around him. (1/29/16 Tr. 156–58, Failla.) He saw
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`Plaintiff “flailing and punching with closed fists at the other officers.” (Id.) Failla was trying to
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`“assess the whole situation”. (Id. at 159.) He did not see “anybody with anything in their
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`hands.” (Id.) He saw Plaintiff “punch at a police officer.” (Id. at 160.) At some point
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`thereafter, Defendant Heerey, Detective Russo, and a “couple of other police officers” brought
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`Plaintiff to the ground. (Id. at 160–61.) Plaintiff was still “rolling and flailing his arms,” so
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`Failla, rather than help to restrain Plaintiff, “thought it better to spray [Plaintiff] in the face with
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`pepper spray” in order to stop Plaintiff from “resisting arrest.” (Id. at 161.) Failla testified that
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`after he pepper-sprayed Plaintiff, “miraculously . . . [Plaintiff] put his hands behind his back.”
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`(Id. at 162.) At that point, “they were able to get [Plaintiff] handcuffed and then he [lay] . . . on
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`the ground for a minute.” (Id. at 163.)
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`Although Failla had been trained that when he pepper-sprayed someone, he was supposed
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`to give them water to wash out their eyes, he did not give Plaintiff any water, because he “didn’t
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`have [it] at the scene” and because he knew an ambulance would be going to the stationhouse.
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`(Id. at 167.) He walked away “shaking [his] head in disgust” because he had “never seen an
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`individual who calls himself a police officer act that way to on-duty police officers.” (Id.)
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`M. Defendant Heerey’s Testimony
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`Defendant Heerey arrived at the scene with Failla. (1/29/16 Tr. 121, Heerey.) Heerey
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`saw a group of officers “trying to apprehend” Plaintiff, and Plaintiff was “waving his arms and
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`indicating that he was not going to be apprehended. (Id. at 122.) Heerey did not know what had
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`transpired before he arrived. (Id. at 123.) He “ran up . . . [and] grabbed one arm,” another
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`officer9 “had the other arm”, and t