17

‐ 3817

‐ cv

Muschette v. Gionfriddo



# United States Court of Appeals

**for the Second Circuit**

A UGUST TERM 2018

No. 17

‐ 3817

‐ cv

A UDLEY M USCHETTE

, ON BEHALF OF A.M.,

AND J UDITH M USCHETTE

, ON BEHALF OF A.M.,

Plaintiffs

‐ Appellees

,

v.

P AUL W. G IONFRIDDO

, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES

, Defendant

‐ Appellant

,

T OWN OF W EST H ARTFORD

, A MERICAN S CHOOL FOR THE D EAF

, C HRISTOPHER L YTH

,

IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES

, C HRIS H AMMOND

, IN HIS INDIVIDUAL

AND OFFICIAL CAPACITIES

, J OHN D OE

, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES

,

AND E LWIN E SPINOSA

, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES

, Defendants

.

A RGUED : S EPTEMBER 13, 2018

D ECIDED : D ECEMBER 7, 2018

Before: W ALKER

, J ACOBS

, P OOLER

, Circuit Judges

.

Plaintiffs Audley and Judith Muschette bring suit on behalf of their son,

A.M., who was tased twice at his school by the defendant

‐ appellant, Officer Paul

Gionfriddo, following an incident between A.M. and his teacher. The United

States District Court for the District of Connecticut (Eginton, J.) denied a

summary judgment motion by Officer Gionfriddo seeking qualified immunity.2 Because a reasonable officer could believe that, under the circumstances, the

tasing of A.M. was lawful, we reverse.

A NDREW R OZYNSKI

, E ISENBERG & B AUM

LLP, N EW Y ORK

, NY, FOR THE

P LAINTIFF

‐ A PPELLEE

.

S COTT M. K ARSTEN ( WITH D ENNIS M.

D URAO ON THE BRIEF ), K ARSTEN &

T ALLBERG

, LLC, R OCKY H ILL

, CT, FOR THE

D EFENDANT

‐ A PPELLANT

.

D ENNIS J ACOBS

, Circuit Judge :

Defendant

‐ Appellant Paul Gionfriddo, a police officer in the town of West

Hartford, appeals from the denial of his motion for qualified immunity in the

United States District Court for the District of Connecticut (Eginton, J.). A.M.

alleges that his Fourth Amendment right to be free from excessive force was

violated when he was tased by Officer Gionfriddo following an incident at his

school, the American School for the Deaf, in West Hartford, Connecticut. Officer

Gionfriddo argues that he reasonably believed that the use of the taser was

necessary to subdue A.M., because A.M. ignored his instructions, even after he

warned A.M. that he would use the taser if his instructions were ignored.

A.M.

‐‐ who is deaf and communicates primarily in American Sign Language

(“ASL”)

‐‐ disputes that he received the instructions and warnings. Officer

Gionfriddo responds that it was reasonable for him to believe that his verbal

instructions and warnings were translated to A.M. by the faculty members,

because he observed them signing to A.M. when he gave the instructions and

warnings.

Officer Gionfriddo moved for summary judgment on the ground of

qualified immunity. The district court denied the motion, ruling that questions

of fact precluded a ruling on qualified immunity. We reverse.3 BACKGROUND

The following facts are undisputed, unless otherwise noted.

The plaintiffs, Audley and Judith Muschette, are the parents of A.M., a

12

‐ year

‐ old boy who is profoundly deaf and communicates primarily in ASL.

On April 30, 2013, A.M. got into a confrontation over a takeout food order with a

teacher at his school. A.M. became angry, ran from the dorm, and entered a

nearby, fenced

‐ off construction area. The teacher, Christopher Hammond,

followed. When Hammond approached, A.M. picked up a stick and hit

Hammond. A.M. also threw rocks at Hammond, hitting him at least once. A.M.

picked up a large rock in the construction area, Hammond and the other faculty

who were gathered at the scene left the construction area, leaving A.M. sitting

alone and holding the rock.

The Dean, Ron Davis, called 911 and reported a student was “out of

control” and “making the situation dangerous”. App’x 345

‐ 47. Officer

Gionfriddo went to the school, and was soon joined by a second officer,

Christopher Lyth. Dean Davis advised Officer Gionfriddo that A.M. had gotten

into a disagreement with Hammond, and had been throwing things at staff

members.

After the briefing, Officers Gionfriddo and Lyth approached the

construction area with Hammond and Dean Davis, where A.M. remained sitting

with a large rock in his hands. Dean Davis, Officer Gionfriddo, and Officer Lyth

positioned themselves behind A.M., while Hammond stood approximately 15

feet in front of A.M., facing A.M., Dean Davis, and the officers. Officer

Gionfriddo gave verbal instructions to put down the rock. Dean Davis translated

the instructions into ASL, and Hammond, who was facing A.M., signed in A.M.’s

direction. When A.M. did not let go of the rock, Officer Gionfriddo verbally

warned A.M. that he would use the taser if A.M. did not put down the rock, and

Davis again translated this message to Hammond, who signed toward A.M.

When A.M. again appeared to ignore the warning, Officer Gionfriddo tased

A.M., and Officer Lyth unsuccessfully attempted to get A.M. into handcuffs.

After Officer Gionfriddo deployed the taser a second time, Officer Lyth was able

to secure the handcuffs.

A.M. does not dispute that Officer Gionfriddo gave verbal instructions and

warnings, or that Davis and Hammond were signing when those instructions4 and warnings were given. But he denies that he actually received and

understood any of those instructions or warnings, or even knew that police

officers were at the school until he was tased. A.M. argues that Officer

Gionfriddo’s belief that his instructions and warnings were being translated and

understood by A.M. was unreasonable, and therefore that Officer Gionfriddo’s

use of the taser was unreasonable.

Officer Gionfriddo moved for summary judgment on the ground of

qualified immunity. The district court denied the motion, finding that

“Gionfriddo’s entitlement to immunity depends on factual disputes that will

hinge on credibility determinations, which must be made by the jury.” App’x 31.

This appeal followed.

DISCUSSION

“Ordinarily, the denial of a motion for summary judgment is not

immediately appealable because such a decision is not a final judgment.” Cowan

ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 760 (2d Cir. 2003) (internal

quotation marks omitted). Jurisdiction nevertheless lies when (as here) the

appellant argues entitlement to qualified immunity “even under plaintiff’s

version of the facts.” Coons v. Casabella, 284 F.3d 437, 440 (2d Cir. 2002)

(internal quotation marks omitted). Accordingly, all disputed facts are construed

(and reasonable factual inferences are drawn) in A.M.’s favor.

We review the district court’s summary judgment decision de novo. Roe

v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). Summary judgment is

appropriate if “there is no genuine dispute as to any material fact” and “the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

I.

“Qualified immunity protects officials from liability for civil damages as

long as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.”

Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (internal quotation

marks omitted). When a defendant invokes qualified immunity, courts consider

whether the plaintiff has shown “(1) that the [defendant] violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of5 the challenged conduct.” Wood v. Moss, 572 U.S. 744, 757 (2014) (quoting

Ashcroft v. al

‐ Kidd, 563 U.S. 731, 735 (2011)). “A right is clearly established only

if its contours are sufficiently clear that ‘a reasonable official would understand

that what he is doing violates that right.’” Carroll v. Carman, 135 S. Ct. 348, 350

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Courts have

discretion to decide the order in which they consider whether the officers

violated a federal right and whether the right was clearly established. Tolan v.

Cotton, 572 U.S. 650, 656 (2014).

Officer Gionfriddo does not argue on appeal that the plaintiff has failed to

allege a constitutional violation (of the Fourth Amendment right to be free from

excessive force), and we therefore decline to address whether there was such a

violation. Instead, Officer Gionfriddo argues that he is entitled to qualified

immunity because his use of force in this case did not violate any clearly

established right or, alternatively, that it was objectively reasonable for him to

believe that his conduct was lawful.

The primary factual dispute identified by the district court is whether

Officer Gionfriddo’s instructions and warnings were successfully conveyed to

A.M. Officer Gionfriddo alleges that Hammond translated his verbal warnings

to A.M. and that the warnings were understood by A.M. A.M. disputes this

account. He argues that he was not disobeying the officer or resisting arrest,

because the officer’s instructions and warnings were not conveyed to him in

ASL, and that the use of a taser under those circumstances was excessive.

It is clearly established that officers may not use a taser against a compliant

or non

‐ threatening suspect. Tracy v. Freshwater, 623 F.3d 90, 96

‐ 98 (2d Cir.

2010); 1 see also Garcia v. Dutchess Cty., 43 F. Supp. 3d 281, 297 (S.D.N.Y. 2014)

(concluding that it is clearly established in the Second Circuit that “it [is] a

Fourth Amendment violation to use ‘significant’ force against arrestees who no

longer actively resisted arrest or posed a threat to officer safety”). Under A.M.’s

theory of the case, this clearly established right was violated. A.M. alleges that

1 Although in 2013 there were relatively few excessive force cases involving a taser,

“novel technology, without more, does not entitle an officer to qualified immunity.”

Edrei v. Maguire, 892 F.3d 525, 542 (2d Cir. 2018); see also Terebesi v. Torreso, 764 F.3d

217, 237 (2d Cir. 2014) (“An officer is not entitled to qualified immunity on the grounds

that the law is not clearly established every time a novel method is used to inflict

injury.” (internal quotation marks omitted)).6 his failure to comply with the instructions was not a choice to be non

‐ compliant

and threatening, but rather the result of his ignorance that any instructions were

given. Therefore, the right A.M. argues was infringed

‐‐ the right to be free from a

taser when one is compliant with an officer’s instructions and

non

‐ threatening

‐‐ was clearly established.

However, Officer Gionfriddo is entitled to qualified immunity because it

was objectively reasonable for him to believe that, given the undisputed facts, his

conduct complied with this clearly established law.

“To determine whether the relevant law was clearly established, we

consider the specificity with which a right is defined, the existence of Supreme

Court or Court of Appeals case law on the subject, and the understanding of a

reasonable officer in light of preexisting law.” Terebesi, 764 F.3d at 222. An

officer is entitled to qualified immunity if “ any reasonable officer, out of the wide

range of reasonable people who enforce the laws in this country, could have

determined that the challenged action was lawful”. Figueroa v. Mazza, 825 F.3d

89, 100 (2d Cir. 2016). “[O]ur inquiry [on qualified immunity] is not whether the

officer should have acted as he did. Nor is it whether a singular, hypothetical

entity exemplifying the ‘reasonable officer’

. . . would have acted in the same

way.” Id. (citations omitted).

Given the undisputed facts of this case, we cannot say that no reasonable

officer, situated as Officer Gionfriddo was, would have used a taser to secure

A.M.

On arrival at the American School for the Deaf, Officer Gionfriddo was

faced with a 12

‐ year

‐ old boy who had fled his dorm and hunkered down in a

restricted construction area, holding a large rock. Officer Gionfriddo had been

informed that A.M. had thrown a folding chair at a staff member, struck

Hammond with a stick, and hurled rocks at Hammond and other staff members.

Officer Gionfriddo therefore had a reasonable basis to believe that A.M. posed a

threat to himself or the other staff members and that there was a risk of further

flight over the terrain of a construction site.

Moreover, Officer Gionfriddo had a reasonable basis to believe that his

instructions and warnings were being conveyed to A.M. and that A.M. was

ignoring them. When Officer Gionfriddo approached A.M. in the construction

area, he gave verbal instructions to A.M. to put down the rock. Officer7 Gionfriddo observed Davis signing to Hammond, who in turn signed “very

animated[ly and] very purposeful[ly]” to A.M. The intermediary signers were a

teacher and a dean at a school for the deaf, who could be counted upon to

communicate with a deaf student. When A.M. did not comply, Officer

Gionfriddo verbally warned A.M. that he would use the taser if A.M. did not put

down the rock, and Officer Gionfriddo again observed Davis signing to

Hammond, who signed to A.M. It was only then

‐‐ when it appeared to Officer

Gionfriddo that A.M. was ignoring his instructions

‐‐ that Officer Gionfriddo

deployed the taser. Officer Gionfriddo deployed the taser a second time to allow

Officer Lyth to secure handcuffs on A.M.

A.M. makes no argument that is particular to the second deployment. He

argues that the second deployment was even more unreasonable, but he makes

the same arguments as to both. See, e.g., Appellee’s Br. 25

‐ 26 (arguing that

Officer Gionfriddo tased A.M. because he was impatient and noting that fact is

“solidified by the fact that he tasered A.M. a second time because P.O. Lyth was

not on top of him within 5 seconds”). He does not argue that the second taser

use was unreasonable even if the first was reasonable.

A.M. disputes whether he received Officer Gionfriddo’s instructions, but

“our focus is not on [A.M.’s] motivations but instead on the sequence of events

from the perspective of a reasonable officer at the scene.” Tracy, 623 F.3d at 97;

see id. (“[F]rom [the officer’s] perspective, Tracy appeared to fail to comply with

a direct order and to instead actively resist arrest, thus necessitating a forceful

response.”).

Under these circumstances, we cannot say that no reasonable officer would

have believed that the use of the taser to subdue A.M. was lawful. See id.

(concluding that the use of a flashlight to subdue a suspect was objectively

reasonable where suspect posed a “real and imminent” threat and “appeared to

fail to comply with a direct order and to instead actively resist arrest”). We have

repeatedly concluded in summary orders that it is not unreasonable for an officer

to use a taser in analogous circumstances. 2

2 See Penree by Penree v. City of Utica, 694 F. App’x 30, 33 (2d Cir. 2017) (“Our

precedents suggest that it is not excessive force to deploy tasers, after a warning,

against arrestees who are dangerous or resisting arrest.”); MacLeod v. Town of8 A.M. argues that it was unreasonable for Officer Gionfriddo to believe that

Hammond was conveying his instructions and warnings to A.M., because Officer

Gionfriddo admitted that A.M.’s head was down and that he could not tell if

A.M.’s eyes were open. But Officer Gionfriddo actually testified that he “saw

A.M. shaking his head with his head down” after Hammond signed to him.

App’x 158

‐ 59. In any event, one may be looking up even if one’s head is down.

And Officer Gionfriddo had a reasonable basis for presuming that his warnings

were being conveyed to A.M.: he observed Hammond signing to A.M. after he

gave verbal warnings (which supports an inference that Hammond believed that

A.M. was seeing him), and Hammond gave no indication that he believed his

communication to A.M. was unsuccessful.

A.M. also argues that Officer Gionfriddo’s reliance on Hammond to

accurately convey his instructions and warnings was unreasonable because

Hammond was the victim of A.M.’s stick

‐ hitting and rock

‐ throwing. But a

reasonable officer could believe that Hammond would fulfill his responsibility as

a teacher (and a translator) to accurately convey serious warnings from a police

officer, even if he had been the object of a student’s tantrum. A reasonable

officer need not assume that Hammond wished to harm a student in his charge,

and would act on that wish by purposefully mistranslating Officer Gionfriddo’s

warnings. Moreover, Dean Davis, who was translating the warnings to

Hammond, never indicated to Officer Gionfriddo that Hammond’s translation

was inaccurate.

Accordingly, because it was objectively reasonable for Officer Gionfriddo

to believe that his conduct was lawful, he is entitled to qualified immunity.

Brattleboro, 548 F. App’x 6, 8 (2d Cir. 2013) (concluding that the use of a taser “to

subdue an actively non

‐ compliant suspect

. . . who posed a real and imminent

threat to the safety of the officers and any bystanders” was objectively reasonable

where the officers gave “repeated, clear commands” to the plaintiff to return to

the ground); Crowell v. Kirkpatrick, 400 F. App’x 592, 595 (2d Cir. 2010)

(concluding that the use of a taser was objectively reasonable where the plaintiffs

were resisting arrest by refusing to unchain themselves from a barrel and the

officers warned the plaintiffs that they would be tased if they did not remove

themselves from the barrel).9 CONCLUSION

The district court’s decision denying Officer Gionfriddo’s motion for

summary judgment is reversed, and the case is remanded to the district court

with instructions to enter judgment for Officer Gionfriddo on the ground of

qualified immunity.