The opinion of the court was delivered by: Hillman, District Judge
Before the Court is defendants' motion for summary judgment seeking to dismiss plaintiff's excessive force claim, and plaintiff's motion for reconsideration of this Court's Order dismissing his conspiracy claims. For reasons set forth below, defendants' motion will be granted in part and denied in part, and plaintiff's motion will be denied.
Plaintiff has alleged that during his arrest, defendants used excessive force in violation of his Fourth Amendment rights and, therefore, this Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction).
On November 17, 2007, at approximately 4:00 a.m., plaintiff Bruno Gibson, an African-American male, was driving his 1998 white convertible on New Freedom Road, a two-lane road, in Winslow Township, New Jersey.*fn1 He was driving behind a Winslow Township police vehicle operated by defendant Patrolman Carl Mueller. In order to pass Mueller, Gibson entered into the oncoming traffic lane, over a dotted line, and reentered into the right lane.*fn2 Gibson testified that he was not aware that it was a police car he was passing.
Mueller put on his police siren and Gibson pulled his car to the side of the road and stopped. At this time the video camera was turned on in Mueller's police vehicle.*fn3 Mueller got out of his vehicle and approached Gibson's driver side window. Although the camera shows the events, at this time, there is no sound recording outside of the police car, and therefore, the statements are based on testimonial evidence. Mueller asked Gibson for his license, registration, and insurance card. After Gibson gave them to Mueller, Mueller told Gibson to "get the fuck out of the car." Gibson testified that Mueller had one hand on his flashlight and the other on his gun which was part way out of the holster. The video depicts Mueller using a flashlight with his left-hand to see into the car and shows his right hand resting on the holster but Mueller does not unholster the gun. Mueller states that he smelled alcohol on Gibson's breath, but Gibson maintains that he had consumed only two beers hours earlier and had eaten and had drunk water since then.
Mueller then instructed Gibson to walk over to the front of the police vehicle, in between the two cars. The video shows that Gibson placed his hands on his head while Mueller checked Gibson's coat pockets and behind his back, and then Gibson removes his coat and places it on the trunk of his car. Mueller then conducts a field sobriety test. Gibson states he gave him sloppy instructions to stand on one leg, and also told him to walk in a straight line. The video depicts Mueller demonstrating standing, with arms at his side, and lifting his foot. It is unclear from the video tape whether Gibson fails to follow Mueller's example but a reasonable juror could conclude that Mueller repeated the instruction for some reason. The video then depicts Mueller demonstrating how to walk heel-to-toe, putting one foot in front of the other in a straight line. Gibson appears to walking in the manner demonstrated by Mueller, albeit more slowly and with less precision.
Mueller then approaches Gibson from behind, takes his left arm and places a handcuff on his left wrist. The video depicts Gibson then turning around and backing up while Mueller tries to grab Gibson's right arm. Mueller then gets a hold of Gibson's arm, pulls him over to the back of the Firebird and forces him, head first, onto the back on the trunk in order to handcuff Gibson. At that time, Winslow Township police officer Lucas Mitchell arrived and ran over to assist handcuffing Gibson. The video depicts that the officers struggled for some time before finally securing Gibson in handcuffs.
After he was handcuffed, Mueller then walked Gibson to the police car where he hits the side of the hood with force loud enough to make a pronounced "thud' in the audiotape. Mueller appears on the video to be frisking Gibson's pants pockets. Mueller then walks Gibson to the side of the police car. At this point, Mueller and Gibson are no longer visible on the camera. Gibson testifies that the officers slammed him against the police car, then put him on the ground and started kicking him and hitting him with closed fists. He testified that at first, two officers were punching him and then around seven officers joined in. He said he did not hear the officer say he would be sprayed with a "cap-stun"*fn4 or pepper spray, but that he was sprayed about five or six times in the eyes. He states he was dragged into the back seat of the police car where he had an asthma attack and a seizure. Gibson stated that after twenty minutes he was drug on the ground, with his face on the ground "like an animal" and put on a stretcher.
Although it is not possible to see the events that occurred after Gibson was taken to the side of police car, it is possible to hear their verbal exchange. The videotape was left running and their voices could be heard. Gibson can be heard yelling "oh my God, you broke my back" and one or more officers can be heard shouting "get in the car." An officer then shouts "get in the car, or you're going to get sprayed," to which Gibson answers "what's going on?" Gibson is then instructed to get on the ground and if he gets up again, he will get sprayed. Gibson states "Sir, I didn't do nothing; trying to break my back; I have back problems." Mueller then keeps shouting for Gibson to stop moving. It then sounds as if an altercation occurs, with the officers continuing to yell at Gibson to get in the car, and Gibson screaming "oh my back; oh my head; what did I do." During this exchange, it appears that Gibson was sprayed with cap-stun. Again, we hear voices yelling for Gibson to get in the car or he will get sprayed again. One of the officers then inquires about shackles and yells at Gibson to stop trying to get up.
Gibson can be heard coughing and complaining that he cannot move and cannot breath. Someone asks Gibson if he will get into the car willfully. Gibson is shortly thereafter in the backseat of the police vehicle. Gibson can be heard breathing, and yelling, "oh my God" a few times. Later in the recording he sounds as if he is spitting or coughing and intermittently yelling, "aaahhhh." Then the door to the police car opens and Gibson states, "my face is on fire, man, oh my God; I'm having an asthma attack; I'm going to die." Asked if he had his inhaler, Gibson responded that he did not. Gibson continues to repeat that he cannot breathe and that he is going to die. One of the officers on the scene calls for an ambulance. There is also a voice that states, "here, breathe the oxygen; relax, keep the mask on."
Gibson testified that he was put in the ambulance, but denies that he spit on the EMT or that he tried to knock the oxygen mask off. Gibson also testified that he arrived at the hospital "half dead" and denies that he was yelling, cursing, or spitting at anyone, or that he had to be sedated.
Several members of Gibson's family also testified as to the events that occurred during the arrest. The spot where Mueller pulled Gibson over happened to be in front of his parent's home in Sicklerville, New Jersey. Gibson's sister, father, mother and brother came out after hearing their dog barking. Gina Gibson, plaintiff's sister, testified that she saw Gibson on the ground, handcuffed and shackled, and that he was surrounded by at least four police officers. She testified that she saw the police officers kicking Gibson's legs, below the knee. She said that it was very cold outside and Gibson did not have his jacket on and his pants and underpants had fallen down so that his buttocks was visible. She testified that she did not see any of the officers punching or hitting Gibson. Gina stated that she heard her brother screaming that he could not breathe.
Gina also testified that she witnessed the police drag Gibson onto a stretcher and put him on the stretcher face down.
She stated that after arriving at the hospital where Gibson was taken, she saw that his face was bruised and cut with dried blood, and that his wrists were swollen. She also testified that his eyes were really red and that she believed it was from the mace which she could smell. She testified that Gibson was handcuffed to the hospital bed.
Gibson's father, Robert Gibson, testified that the police had Gibson on the ground "with a knee in the back." He heard Gibson yelling that he could not breathe and heard the police yelling for Gibson to get in the car. Robert testified that several police "grabbed him up" but that Gibson was unable to move to get into the car. Robert testified that he saw the police officers kick Gibson about eight times around his legs and back while he was on the ground. He testified that the officers had Gibson upside down and were slamming his head on the car and on the ground. After the ambulance arrived, Robert testified that the police had Gibson upside down and dragged him to the ambulance. At the hospital, Robert testified that Gibson's face was swollen and cut, and that he was handcuffed to the bed.
Gibson's mother, Gloria Gibson, testified that she saw a police officer giving Gibson a sobriety test. She testified that she saw the officer handcuff Gibson and then slam his head on the hood of the car. She testified that the police officers wanted him to get in the car and that Gibson "wondered why [he] was getting into the car." She stated that the officers dragged Gibson and pinned him down. She heard Gibson say that he could not breathe and that he had asthma. She also testified that the officers dragged Gibson from the car and onto the stretcher to be put inside the ambulance. She stated that at the hospital, Gibson was handcuffed to the hospital bed and his face was swollen with cuts.
Gibson's brother, Gary Gibson, testified that he saw about five officers surrounding Gibson, pulling, grabbing, and kicking him, and that one officer was on top of Gibson with his knees in his back. He said he heard his brother screaming he could not breathe and that he had pain in his back. Gary testified that the officers continued to hold Gibson down after Gibson said that he was hurt. He testified that after the ambulance arrived, they took his limbs and dragged him on the ground over to the stretcher. Gary testified that Gibson was not resisting treatment but was screaming because he was in pain. He also testified that at the hospital, Gibson was bruised, swollen and could barely talk. None of plaintiff's family testified that they saw any of the officers punch Gibson with closed fists or use a baton or other weapon to strike Gibson.
Joseph Weber, Sr., the EMT who arrived with the ambulance testified that Gibson was "agitated and combative," meaning "a little bit violent." He testified that Gibson was re- handcuffed in order put Gibson's arms in front of him, but that Gibson started "wailing his arms" and he was re-handcuffed with his arms behind him. Weber testified that Gibson kept shaking his head and knocking his oxygen mask off. He also testified that Gibson was spitting at him while in the ambulance.
Rajinder Chugh, M.D. treated Gibson after he was taken to the hospital. Dr. Chugh testified that Gibson was "combative and screaming" when he was brought into the ER which required that he be given two doses of the medication Haldol to sedate him. Dr. Chugh testified that Gibson was restrained while in the hospital due to risk of harm to the hospital staff. He stated that Gibson's blood alcohol level was 190, which is considered high.
Gibson was discharged from the hospital and charged with aggravated assault on a police officer, resisting arrest, throwing bodily fluids at a law enforcement officer, and possession of drug paraphernalia. He was also charged with the traffic offenses of driving while intoxicated, failure to signal and reckless driving. Gibson pleaded guilty to aggravated assault in exchange for dismissal of the ...