15-3764

Soto v. Gaudett

1 UNI TED STATES COURT OF A PPEAL S 2 FOR THE SECOND CI RCUI T 3 - - - - - - 4 August Term, 2016 5 (Arg

ued: Octobe r 19, 2016 Dec ided: J uly 5, 2017) 6 Docke t No. 15-3764 7

____________________________________________________________ 8 ORLANDO SOTO , Conservator of the Estate of

I srae l Soto, 9 Plaintif f-Appellee , 10 - v. - 11 Chief of Police J OSEPH GAUDE TT, individually and in his officia l capa city ; Offic er 12 MARTI

N HEANU E, individually and in his officia l capa city ; Offic er DAMI EN CSEC H, 13 individually and in his officia l capa city ; Offic er CHRI S ROBI NSON, individually and in 14 his officia l capa city ; Serg eant CHRI STOPHER STEPNI EWS KI , individually and in his 15 officia l capa city ; CI TY OF BRI DGEPORT, 16 Defendants-A ppellants , 17 Offic er J ANE DOE, individually and in her o ff i ci al capa city ; Offic er J OHN DOE, 18 individually

and in his officia l capa city , 19 Defendants

. * 20

____________________________________________________________

21 Be fore : KEARSE, J ACOBS, and POOL ER, Circuit Judges

.

* The Clerk of

Court is directed to ame nd the offic ial caption to conf orm with the above.1 Appea l by defe ndants police office rs, chief of police, and the City of Br idgeport 2 (" City ") from so much of an order of the United States District Court for the District of Connecticut, 3 Warren W. Eg inton, Judge , as denie d their motions for fsummary judgme nt dismi ssing on grounds 4 of qualified immunit y , claims broug ht under 42 U.S.C. § 1983 by plaintiff as conser vator of the estate 5 of his brother I srae l Soto (" Soto") for use of excessive forc e by the office rs in connec tion with Soto's 6 flig ht from police. The district court ruled principally that there wer e g enuine issues of materia l fac t 7 prec luding the g rant of the motions of three office rs who deployed tasers ag ainst Soto, including one 8 office r whose police cruiser was involved in a collis ion with Soto. On ap peal, those office rs arg ue 9 that th ei r m o tions should have been g rante d beca use their taser deploy

ments wer e objectively 10 rea sonable and beca use the collision of the police cruiser with Soto was acc idental; the City and the 11 police chief argue that they are entitled to qualified immunit y on the g round that Soto's constitutional 12 rig hts wer e not violated. We conclude that the court err ed in denying summ ar y j u d gment to one 13 office r for his taser deploy ment; we dismiss the appea ls of the other defe ndants for lack of appellate 14 jurisdiction. See Soto v. Gaudette , 2015 WL 6453083 (D. Conn. Oct. 23, 2015)

. 15 Reverse d in part and dismissed in part. 16 MI CHAEL P. FOL EY, J r., Cheshire, Connecticut (David K. J aff e, 17 Br own Paindiris & Scott, Har tford, Connecticut, on the brief) , 18 for Plainti ff-Appellee

. 19 20 J OHN J ERRY GL AS, New Orlea ns, L ouisiana (De utsch Ker rig an, 21 N e w O r le a n s , L o u isia

na; Richard G. Kasc ak, J r., Associate City 22 Attorney for the City of Br idge port, Br idge port, Connecticut, 23 on the brief ), for Defendants-Appe llants

.

21 KEARSE, Circuit Judge : 2 Def endants J oseph Gaude tt, Martin Hea nue, Damien Csech, Chris Robinson, 3 C h ri s topher Stepniewski, and City of Br idge port (the "City " or "B ridg eport" ) (collec tiv el y 4 "D efe ndants" ) appea l from so much of an order of the United States District Court for the District of 5 Connecticut, Warren W. Eg inton, Judge , as denied their motions for summary judgme nt dismiss ing, 6 on the basis of qualified immunit y , claims broug ht under 42 U.S.C. § 1983 by plaintiff as conser vator 7 of the estate of his brother I srae l Soto (" Soto") for use of excessive forc e in the deploy ment of tasers 8 and in striking Soto with a police cruiser , in connec tion wi t h S o t o 's fl ight from police. Csech, 9 Stepniewski, and Robinson contende d that their t aser deploy ments wer e objectively rea sonable; 10 Robinson contende d that his vehicle' s striking Soto was acc idental; and Gaude tt and the City soug ht 11 summary judgme nt on the g round that Soto's constitutional rig hts wer e n o t v i o l ated. Def endants 12 pursue these arguments on appea l. The district court de nied these moti ons on the ground that ther e 13 are g enuine issues of materia l fac t to be tried. For the rea sons that follow, we conclude that the court 14 err ed in denying summary judgme nt to Csech and that its other denials of summary judgme nt are not 15 immediately

appea lable.

16 I . BA CKGROUND

17 The prese nt litigation arises out of events in Br idge por t, Co nn e c ti c ut, b e g inning shortly 18 afte r 2 a.m. on J anuar y 23, 2008, that commence d as a car -cha se, beca me a foot-cha se, and culminated 19 in the captur e and arr est of Soto. Hea nue, Csech, and Robinson, Br idge port police officers, and

31 Stepniewski, a police serg eant (collec tively the " O f f ic e r s " ) , w e r e in

v olved in the pursuit and/or captur e 2 of Soto. Gaudett, not alleg ed to have been pe rsonally involved, was B ridg eport' s chief of police. 3 The injuries suff ere d by Soto in t he cour se of those e vents included a fra cture d skull 4 and sever e traumatic brain damag e. The complaint alleg es that he lost the ability to spe ak, walk, or 5 otherwise act as a functional human being , and require s around- the-c lock car e and life support. The 6 fac tual evidentiar y re co rd in the district court thus consists principally of police rec ords, including 7 repor

ts filed by the Offic ers, deposition testimony of the Offic ers, and transcripts of interviews of the 8 Offic ers by the Bridg eport P olice Department' s Offic e of Interna l Affa irs (" OIA" ). The recor d also 9 includes OI A' s interview of Carl Young , one of the other occupa nts of the p u rs u ed v eh i cle. The 10 g ener al seque nce of events is not seriously disputed; the followingdescr iption, ex cept a s indicated, 11 reflects t hat s equenc e in the l ight most favor able to the pl aintiff. Var ious details as t o the Offi ce rs ' 12 repor

ts and sworn stateme nts are a dded in Part I I .C.

13 A. The Eve nts 14 At approximately 2:18 a.m. on J anuar y 23, 2008, Hea

nue, driving a marke d police car , 15 observe d a vehicle- -eve ntually identified as a Toy ota Camry (the "Camry ") --tra v el i n g without 16 headl ights, and making a turn without signa ling. When Hea nue beg an to follow the Camry and 17 activate d his car' s siren and flashing lights in a n attempt to stop the Camry , the Camry , occupie d by 18 three men, acc eler ated and sped throug h sever al red lights. Hea nue radioe d on a police channe l that 19 he was in pursuit, and soon sever al other police vehicles, with strobe lights and sirens activate d, wer e 20 involved.

41 Wit h Hea nue following , the Camry made sever al turns; sped the wrong way on a one2 way s t re et--F airfie ld Avenue --ne arly colliding with at least one police car coming toward it; and 3 eventua lly turned south onto Park Avenue , following it to Waldemere Avenue (" Waldemere ") , which 4 border ed the north end of Seaside Park (" Seaside" ). The Camry went over the curb, onto the g rass 5 inside the park, and befor e it came to a stop the occupa nts jumped out. Hea

nue saw the driver fall and 6 be run over by the Camry ' s left rea r tire, and saw one passeng er- -later identified as Carl Young --e x it 7 a re ar door

and run de eper

into the park. The driver of the Camry , afte r the car rolled over him, g ot 8 up immediately . Hea nue drove into the park to follow Young , whom he ca ptured. 9 I n the meantime, Soto--who acc ording to Young was the other passeng er in the Camry , 10 not the dri v er -- h ad ex i ted the car and had run in the opposite direc tion from that taken by Young

. 11 Csech (driving one of the polic e ca rs n ea rl y hit by the Camry on Fa irfield Avenue ) had proce eded 12 down Park Avenue and turned onto Waldemere , wher e he parke d and exit ed. Csech saw Soto running 13 throug h the park and y elled at hi m t o s t op. Soto continued to run toward the intersec tion of Park 14 Avenue and Waldemere

. Robinson was then slowly driving south on Park Avenue in the northbound 15 lane, scanning the are a for suspects. As Soto was running acr o s s P ar k Av enue, Robinson's cruiser 16 struck Soto. 17 Soto was thrown backw ards from the collision and hit his head on the g round, but he 18 immediately g ot up and resumed running

. Csech ag ain y elled to Soto to stop; when he did not, Csech, 19 then some 25 fee t awa y , shot Soto with a taser. Soto fell on the paveme nt, flat on his fac e, unable to 20 brac e himself. 21 Stepniewski did not see Soto's collision with Robinson's cruiser

. He h ad p recede d 22 Csech and Robinson down Park Avenue and had turned east on Waldemere ; Stepniewski was about

51 1,000 fee t east of Park Avenue when he saw Soto running throug h the park toward Waldemere

. When 2 Soto had resumed running afte r his collision with Rob inson's cruiser , Stepniewski and Robinson 3 followed C s ec h i n t h e foot-cha se of Soto; they saw Csech tase Soto, and saw Soto fall. Csech, 4 Stepniewski, and Robinson continu ed t o run toward the fallen Soto. When Soto, entang led in the 5 wires of Csech' s taser, appea red to be trying to rise fr o m h i s prone position, both Robinson and 6 Stepniewski, at or about the same time, shot Soto with their tasers, from a distance of two-to-five fee t. 7 After these subsequent taser shots, Soto fell to the g round, did not move ag ain, and was 8 unresponsive. A medical tea

m was summoned and took him to the hospital with serious injuries. 9 I n the meantime, the Offic ers did not catc h the t hird occupa nt of t he C amry , and the 10 vehicle itself had disappea red. I t was quickly rec overe d in a near by neig hborhood, howeve r. I t w as 11 d et er m ined t hat t he C amry had been s tolen some wee ks ear lier, and that its contents on J an u ar y 2 3 12 i n cl u ded numerous items of st olen property

. Soto was charg ed with multipl e traffic violati o n s an d 13 with sever al crimes, including attempted assault of a police office r. Given his continued phy sical 14 condition, he has ne ver be en convic ted, tried, or a rra igne d on those cha

rg es.

15 B. The Present Ac tion and Defendants' Summary Judgme nt Motions 16 I n 2010, plaintiff Orlando Soto commence d t he prese nt action on behalf of Soto 17 principally under 42 U.S.C. § 1983. The complaint alleg ed that the Officer s violated S oto's Fourth 18 Amendment rig hts by arr esting him without probable cause --a ppare ntly on the premise that Soto was 19 not the d ri v er o f t h e Camry (the false arr est claim (count 3))- -and by using excessive forc e in 20 connec tion with his arr est, to wit, the use of tasers by Cs ec h , Stepniewski, and Robinson, and the 21 collision of Robinson's cruiser with Soto (count 1); it alleg ed that Gaude tt and the City wer e liable for

61 those violations by rea son of maintaining p o l i cies, prac tices, and customs amounting to deliberate 2 indiffer ence to constituti onal rights (count 2). The complaint also alleg ed seve ral state- law cla ims. 3 Following discovery , Def endants moved i n 2015 for summary judgme nt dismiss ing 4 the complaint in its entirety

. Wit h respe ct to the § 1983 claims, Def endants principally contende d that 5 they

wer e entitled to qualified immunit y . Csech, R obinson, and S tepniewski arg ued that it was not 6 "c lear ly established" that taser deploy ments ag ainst "f

leeing suspects" wer e unconstitutional 7 (Memora

ndum in Support of Def

endants' Motion for Summary J udg ment and Motion for Qualified 8 Immunity (" Def endants' SJ /QI Mem." ) at 9) an d , alternatively , that their deploy ments wer e 9 "obje cti v ely rea sonable" ( id

. at 19). Robinson also stated t hat t he collis ion of hi s cruiser with Soto 10 had been unintentional and argued that he was thus entitled to qualified immunit y on the g round that 11 "a ccide ntally striking a flee ing suspect with a police vehicle does not constitute a Four th Amendment 12 seizure" ( id

. at 27). Gaude tt a nd the City claimed that they wer e entitled to qualified immunit y ( see 13 id . at 36) on the g round that plaintiff had "f ailed to pr ove that the ( alleg ed) c onstitut ional violations 14 by the City of Br id g eport Offic ers wer e based on a municipal policy , custom or prac tice" or a 15 "de liberate choice " on the part of policy maker s ( id

. at 37-38) and "fa iled to prove that the (alleg ed) 16 failure to train was the c ause of Mr. Soto's injuries" ( id . at 38).

17 C. The Dec ision of t he District Court 18 The district court g rante d Def endants' motions to dismiss the claim ag ainst Hea nue for 19 use of excessive forc e and the claims ag ainst all of the Offic ers for false arr est. I t denied the motions 20 to dismi ss (a) the claims that excessive force was us ed by Csech, Stepniewski, and Robinson in the 21 deploy

ment of their tasers, (b) the excessive forc e claim based on the collision of Robinson's cruiser

71 with Soto, and (c) the claims ag ains t Ga u d et t and the City

. See Soto v. Gaudette [ sic ], No. 2 3:10-cv-106, 2015 WL 6453083 (D. Conn. Oct. 23, 2015)

. 3 The court discussed the g ener al principles that on a motion for summary judgme nt, the 4 moving party has the burden of demonstrating the absenc e of any g enuine issue to be tried as to a ny 5 materia l fac t; that in ruling on such a motion, the court is require d to resolve all ambiguities and draw 6 all rea sonable infere nces ag ainst the moving party , viewing the rec ord in the light most fa vorable to 7 the party ag ainst whom summary judgme nt is soug ht; and that the court cannot p ro p er ly resolve a 8 d i sputed issue of fac t by making cre dibilit y deter minations. See 2015 WL 6453083 at *3-*6. T h e 9 court noted tha

t, in the present c ase, 10 [d] ue to plaintiff' s asser ted inability to communicate, the Court has only the 11 defe ndants' testimony and police re p o rt s and rec ords to assess the 12 circ umstances of the allege d violations. "[ T ] h e court may not simply acc ept 13 what may be a self-se rving ac co u n t b y t h e police

. . . but must also consider 14 circ umstantial evidenc e that, if believed, would tend to discredit t he police 15 office r' s story , and consider whe t h er this evidenc e could convince a rational 16 fac tfinder that the office r acte d unrea sonably ." O'Bert ex rel[.] Estate of 17 O'Bert v. Vargo , 331 F.3d 29, 37 ( 2d Cir. 2003). 18 2 0 1 5 W L 6 4 5 3 0 8 3 , at *3; see also id

. at *5 (it would be "e rror if [t he court] acc epted the office rs' 19 version of events without considering any potential fac tual infere nces arising from t h e d es cribed 20 circ umstances c onstrued most liberally for plaintiff" ). 21 Turningto the taser c laims, the district court stated a s follows: 22 This Court has found n o Second C ircuit or S upreme Court prec edent 23 establishing that a fleeing suspect had a rig ht not to be subjected to non-lethal 24 forc e of a taser as of J anuar y 23, 2008. See Cockrell v. City of Cincinnati , 468 25 Fe d.Appx. 491, 494-97 (6th Cir. 2 0 12) (as of J uly 3, 2008, fleeing 26 misdemeana nt did not have "c lear ly established rig ht" to be fre e of taser while 27 fleeing). As of J anuar y 23, 2008, Four

th Amendment jurisprudenc e had "long 28 re co g nized that the rig ht to make an arr est or investigatory stop nece ssarily 29 carries with it the rig ht to use some degree of phy sical coer cion or th re at

81 there of to eff ect it" and that the rea sonablene ss of a particula r use of forc e must 2 be judge d from the perspe ctive of a rea sonable office r on the scene rathe r than 3 with the 20/20 vision of hindsight. Graham [ v. Connor ], 490 U.S. [386,] 396 4 [(1989)]. 5 At the same time, acc ording to Se co n d C ircuit prec edent, it was also 6 clea rly established law as of J anuar y 23, 2008, that use of signific ant non-lethal 7 forc e-- such as a taser or pepper spray --a g ainst a compliant or non-threatening 8 suspect would violate the Four th Amendment. Tracy v. Freshwater , 623 F.3d 9 90, 98-99 (2d Cir. 2010) ( consideringincident occ urring in April 2000) . . . . 10 2015 WL 6453083, at * 5 (e m phases added)

. The court conclude d that there must there fore be "a 11 fac tual deter

mination whether eac h o ff icer ' s taser deploy

ment repr esente d a response to a non12 compliant individual's eff orts to resist arr est or a gra t uitous use of forc e ag ainst an incapa citated 13 individual who posed no immediate threa t" of forc e or f light. Id

. 14 "[M]i ndful that the office rs' testimony and police repor ts comprise the evidentiar y 15 basis" for such a deter mination, id ., thus making the resolution of the fac tual issue depend o n 16 assessments of cre dibilit y , the court conclude d that "[a] jury will be require d to deter mine whether to 17 acc ept as cre dible Offic er Csech' s depiction of the events leading to his taser deploy ment," id

. at *6. 18 The court rea ched the same conclusion with respe ct t o the taser deploy ments by Robinson and 19 Stepniewski, stating that 20 the Court cannot rely without question up o n defe ndant Robinson's and 21 Stepniewski' s repor ts tha t th e y d e p lo y ed their tasers without knowledg e of eac h 22 other' s actions when they both observe d plaintiff pushing up off the g round. 23 Questions of fact remain r el a t ive to whether plaintif f presented a threat or 24 resistence [ sic ] when he was lying face down on the ground after having been 25 hit by a car and tased in the back ; and whether either Robinson or Stepniewski 26 perc eived one another ' s conduct prior to resolving to deploy

a tase r. 27 Id . (empha sis added).

91 Wit h respe ct to the claim that the collision betwee n Ro b i n s o n 's cruiser and Soto 2 constituted the use of excessive forc e, the district court simil arly conclude d that the matter of whether 3 that collision was acc idental or intentional depe nded on asse ssment of Robinson's cr edibility : 4 [ Robinson] asser ts that he did not commit a constitutional viola t i o n o f 5 plaintiff' s rig hts beca use he did not intentionally strike plaintiff. He also 6 contends that he is entitled to qualified immunit y . Consist ent with its previous 7 discussion, the Court cannot determine credibility or intent on summary 8 judgment. The motion for summary judgment will be denied on this basis

. 9 Id . (empha sis added). 10 Finally , in denying the summary judgme nt motions of Gaude tt and the City , the court 11 stated as f

ollows: 12 Defen d ants maintain that Br idge port' s policies conce rning the use of 13 forc e and tasers wer e consistent with o t h er p olice depar tments' compar able 14 policies at t he ti me. Def endants a ssert further that plaintiff has not raised an 15 infere nce that Br idge port, throug h its policy maker , made a "de liberate choice " 16 not [t o] train its police office rs or that there was any defic ient training that was 17 likely to result i n a viol ation of constit utional rig ht s . P l ai ntiff has submitt ed 18 evidenc e, including an expert repor t, that raises an infere nce of officer 19 noncompliance with Br idgeport police proce dures, deficient police 20 investigations , failure to provide additional training or counseling despite 21 notice of deficienc ies , and inadequate internal investigations

. The Court will 22 leave plaintiff to his proof that such policies or prac t ices resulted in a police 23 depar tment that was deliber ately indiffer ent to excessive forc e violations. 24 2015 WL6453083, at *8 (e mphases adde d).

25 I I . DI SCUS SI ON

26 On appea l, Def endants contend principally (a) that Csech, Stepniewski, and Robinson 27 should have been g rante d summary judgme nt o n the basis of qualified immunit y beca use taser

101 deploy

ments ag ainst a flee ing or th re at en i ng suspect did not violate any clea rly established 2 constitutional rig ht; (b) that Robi n s o n wa s entitled to such a judgme nt with respe ct to his cruiser ' s 3 collision with Soto beca use that collision wa s ac ci d en t al; and (c) that Gaude tt and the City wer e 4 entitled to qualified immunity on the g round that none of Soto's constit utional rig hts wer e viol ated. 5 Although Hea

nue also was desig nated as an appellant in this appea l, the district court had dismiss ed 6 all of the § 1983 c laims ag ainst him, and no arguments are prese nted on his behalf. 7 For the rea sons that follo w, we conclude that, g iven the pertinent alleg ations in the 8 complaint, the district court err ed in failing to apply the flee ing- suspect principle to Csech and should 9 have g rante d his qualified-immunity -b ased motion for summary judgme nt. Wit h reg ard to 10 Stepniewski and Robinson, we lac k jurisdiction to entertain their a ppeals, be cause the district court 11 denied their motions on the g round that there wer e g enuine issues of materia l fac t to be re s o l v ed 12 befor e their entitlement to qualified immunit y could be known, and beca use the rec ord, when viewed 13 in the light most favor able to the plaintiff, does not entitle them to qualified immunit y as a matter of 14 law. The appea ls by the Cit y an d Ga u dett in his officia l capa city --e ntities to which principles of 15 qualified immunity are inapposite--a

re a lso dismi ssed for la ck of a ppellate jurisdiction.

16 A. Qualified Immunity, Summ ary Judgm ent, and Appealability 17 "T he doct r in e o f ' [q ]u a li f

ie d im mu nity shields g overnme nt officia ls from civil damag es 18 liability unless the official violated a stat u t o ry o r constitutional rig ht that was clearly established at 19 the time of the chal l eng ed conduct.' " Rogoz v. City of Hartford , 796 F.3d 236, 247 (2d Cir. 2015) 20 (" Rogoz ") (quoting Reichle v. Howards , 566 U.S. 658, 664 (2012)) ; see , e.g. , Tracy v. Freshwater , 623 21 F.3d 90, 95-96 (2d Cir. 2010) (" Tracy ") ; Papineau v. Parmley , 465 F.3d 46, 55 (2d Cir. 2006). When

111 a defe ndant officia l seeks summary judgme nt on the g round that he is entitled to qualified immunit y , 2 the motion should be g rante d if either the evidenc e, viewed in the light most favor able to the plaintiff, 3 is insufficient to establish the vi olation of a statutory or constit u t i o n al ri g ht, or i f t hat right was not 4 clea

rly established at the t ime of t he alleg ed violation. See , e.g. , Tracy , 623 F.3d at 96; Rogoz , 796 5 F.3d a

t 247. 6 A motion for summary judgme nt may be g rante d "if the movant shows that there is no 7 g enuine dispute as to any materia l fac t and the movant is en t i t l ed t o judgme nt as a matter of law." 8 Fe d

. R

. C iv. P. 56(a)

. Summary judgme nt is appropr iate when "the re can be but one rea sonabl e 9 conclusion as to the verdic t," Anderson v. Liberty Lobby, Inc. , 477 U. S

. 2 4 2 , 250 (1986) (" Liberty 10 Lobby ") , i.e. , "it is quite clea r what the truth is," Poller v. Columbia Broadcasting System, Inc. , 368 11 U.S. 464, 467 (1962) (interna l quotation marks omitted), and no rational fac tfinder could find in favor 12 of the nonmovant. I n deciding such a motion, the co u rt ca n n o t proper ly make cre dibilit y 13 deter

minations or weigh the evidenc e. "Cre dibilit y deter minations, the weig hing of the evidenc e, and 14 the draw ing of leg itimate inf ere nces from the fac ts a

re jury functions, not those of a judge ." Liberty 15 Lobby , 477 U.S. at 255; see , e.g. , Agosto v. INS , 436 U.S. 748, 756 (1978) (" a district court g ener ally 16 cannot g rant summary judgme nt based on its assessment of the cre dibilit y of the evidenc e prese nted" ). 17 Summary judgme nt should be denied if, when the party ag ainst whom summary judgme nt is soug ht 18 is g iven the benef it of all permissible infere nces and all cre dibilit y assessments, a rational fac tfinder 19 could re s o l v e al l m aterial fac tual issues in favor of that party

. See , e.g. , Liberty Lobby , 477 U.S. 20 at 248. 21 I n case s in which office rs have used deadly forc e, leaving "the witness most likely to 22 contra dict" the office rs' version of the events "una ble to testify [,]

. . . . the court may not simply acc ept

121 what may be a self-se rving acc ount by the pol ice officer " but must inst ead " consider c ircumstantial 2 evidenc e that, if believed, would t en d t o discredit the police officer ' s" version and mus t "unde rtake 3 a fa i rl y critica l assessment of, inter alia , the office r' s orig inal repor ts or statements

. . . to deci d e 4 whether the office r' s testimony could rea sonably be reje cted at a trial." O'Bert ex rel. Estate of O'Bert 5 v. Vargo , 331 F.3d 29, 37 (2d Cir. 2003) (" O'Bert ") (interna l quotation marks omitted). As the district 6 court here noted, the rec ord should be g iven th e same car eful scrutiny wher e the alleg ed victim of 7 excessive forc e is alive, but the e vents have left him incapa ble of c ommunicating. 8 Ordinar ily , the denial of s u m m ary judgme nt is not immediately appea lable beca use 9 such a decision is not a "f inal" judgme nt, 28 U.S.C. § 1291. See generall y Co hen v. Bene

ficial 10 Industrial Loan Corp. , 337 U.S. 541 (1949). Howeve r, wher e a summary judgme nt motion is based 11 on a substantial c laim of qualified immunit y , the district c ourt' s denial of the motion is immediately 12 appea lable under the Cohen doctrine to the extent that the denial turned on an issue of law, see , e.g. , 13 Mitchell v. Forsyth , 472 U.S. 511, 530 (1985), althoug h not to the extent that the merits of the defe nse 14 depend on the resolution of questions of fac t, see , e.g. , id. ; Behrens v. Pelletier , 516 U.S. 299 , 313 15 (1996); Johnson v. J ones , 515 U.S. 304, 313-18 (1995); O'Bert , 331 F.3d at 38; Salim v

. Proulx , 93 16 F.3d 86, 89 (2d Cir. 1996) (" Salim ") ); In re State Police Liti gation , 88 F.3d 111, 124 (2d Cir. 1996). 17 The "por

tion of a dis t ri ct co u rt 's summary judgme nt order that, though enter ed in a ' qualified 18 immunit y ' case , deter mines only a question of ' evidenc e sufficie ncy ,' i.e. , which fac ts a party may , or 19 may

not, be able to pr ove at tria l . . . . is not appealable ." Johnson , 515 U.S. at 313. 20 Thus, "a fter the denial of the defe ndants' motions for summary judgm ent, ' we have 21 jurisdiction to revie w a denial of q ualified immunit y to the extent it can be resolved on stipulated 22 fac ts, or on the facts that the plaintif f alleges are true , or on the fac ts favor able to the plaintiff that the

131 trial judge conclude d the jur y m i gh t find.' " Terebesi v. Torreso , 764 F.3d 217, 222 (2d Cir. 2014) 2 (quoting Escalera v. Lunn , 361 F.3d 737, 743 (2d Cir. 2004) (empha sis ours)), cert. denied 135 S. Ct. 3 1842 (2015). "What we may not do, afte r Johnson and Behrens , is e ntertain an interlocutory appea l 4 in which a defe ndant contends that the district court committed an err or of law in ruling that the 5 plaintiff' s evidenc e was sufficie nt to cre ate a jury issue on the fac ts rele vant t o t h e d ef en d ant's 6 immunit y

defe nse." Salim , 93 F.3d at 91.

7 B. Claims of ExcessiveForce 8 "F ourth Amendment jurisprudenc e has long rec og nized that the rig ht to make an arr est 9 or i nvestig atory stop nece ssarily car ries with it the right to use some degree of phy sical coercion or 10 threa

t there of to eff

ect it." Graham v. Connor , 490 U.S. 386, 396 (1989) (empha sis added)

. Howeve r, 11 it is also well established that law enfor ceme nt office rs violate the Four th Amendment if the amount 12 of forc e they used was not "' objectively rea sonable' in light of the fac ts and circ umstances confr onting 13 them." Id . at 397. " [P ]roper application" of " [t ]he test of rea sonablene ss" in this context 14 require s car eful attention to the fac ts and circ umstances of eac h particula r case , 15 including the seve rity of the crime at issue , whether the suspect poses an 16 immedi ate threat to the safe ty of the office rs or others, and whether he is 17 actively resisting arr est or attempting to evade arrest by flight

. See Tennessee 18 v. Garner , 471 U.S.[ 1], 8-9 [(1985)] ( the question is " whether the totality

of 19 the circ umstances justifie[s] a par ticular sort of . . . se izure")

. 20 Graham , 490 U.S. at 396 (other internal quotation marks omitted) (empha ses ours); see , e.g. , Rogoz , 21 796 F.3d a

t 246; Salim , 93 F.3d at 91. 22 Thoug h the use of forc e may be rea sonable ag ainst a suspect who is flee ing, it may be 23 objectively unrea sonable ag ainst that suspect when he has been stopped and no longe r poses a risk of

141 flig ht. See , e.g. , Tracy , 623 F.3d at 96-98 (o ff i ce r entitled to qualified-immunity -base d summary 2 judgme nt with respec t to claim t hat he jumped on a suspect who admit tedly was attempting to flee , 3 but not with respe ct to claim that--on the plaintiff' s version of the events-- he sprayed the suspect with 4 pepper spray from inches awa y , when the suspect was in ha ndcuff s). Thus, we have not applied the 5 flee ing- suspect princ iple to one who is no long er f leeing

. 6 The calc ulus of rea sonablene ss must embody allowanc e for the fac t that police 7 o f f ic e r s are often forc ed to make split-second judgme nts--in circ umstances th a t 8 are tense, uncer tain, and rapidly evolving

-- ab o u t the amount of forc e that is 9 nece ssary in a par ticular situation. 10 Graham , 490 U.S. at 396-97. "T he ' rea sonablene ss' of" the amount of forc e used thus "must be judge d 11 from the pe rspec tive of a r easona ble offic er on the scene . . . . at t he mom ent" the force is used. Id

. 12 at 396; see , e.g. , Rogoz , 796 F.3d at 246-47; Tracy , 623 F.3d at 96; O'Bert , 331 F.3d at 37, 40.

13 C. The Appeals of the Prese nt Defendants 14 Wit hin the above framework, we conclude that Csech' s appea l from the denial of his 15 motion for summ ary judgme nt on the basis o f q u ali fied im munity is proper ly befor e us but that the 16 other a

ppeals a re not, a nd that Csech wa s entitled to summary judgme nt.

17 1. Csech's Deployme nt of His T aser 18 The complaint alleg es without qualification--and Def endants admit--that Csech "f ired 19 his taser g un, from behind, striking Mr. Soto," "while chasing Mr. Soto." (Compl ai n t ¶ 1 7 ; see 20 Answer ¶ 17.) There is thus no dispute as to the fac t that when Csech shot Soto with his taser, Soto 21 was fle eing

.

151 As the district court noted, no prec edent as of J anuar y 23, 2008, established that a 2 suspect who was flee ing had a rig ht not to be stopped by means of a taser. There being no rema ining 3 materia l fac ts to be deter mined with respe ct to the excessive forc e claim ag ainst Csech, the undisputed 4 fac t that Soto was flee ing when Csech tased him was there fore dispositi ve. Csech should have been 5 g rante d summary judgme nt on the basis of qualified immunity , dismiss ing this cla im ag ainst him.

6 2. The Taser Deployme nts by Stepniewski and Robinson 7 Although Stepniewski and R o b i n s on argue that they too wer e entitled to summary 8 judgme nt based on qualified immunit y beca use it was not clea

rly established that taser deploy ments 9 ag ainst "f

leeing " suspects wer e unconstitutional ( e.g. , Def endants' brief on appea l at 2, 41-53), there 10 is no alleg ation in the complaint simil ar to the ¶ 17 alleg ation about Csech. Rather than alleg ing that 11 Stepniewski and Robinson, when they fired their tasers, wer e chasing Soto o r t h at S o t o was still 12 flee ing, the complaint alleg es that Soto had fallen to the g round upon beingtased by Csech and that 13 Stepniewski and Robinson then tased Soto "[w]hen Mr. Soto, who po s ed no phy sical threat to the 14 office rs pursui n g h i m , at t empted to return to his fee t" (Complaint ¶ 18). Whil e denying that Soto 15 posed no threat, Def endants in their answe r admitted that Stepniewski and Robinson tased Soto while 16 he wa s "attempting to re turn to his feet." (Answe r ¶ 18.) 17 Def endants argue that Stepniewski and R o binson tased Soto beca use he had been 18 flee ing and they believed he might be about to attempt to resume flig ht or might pose a threat of harm 19 to the Officer s. I n aid of their arg ument, Def endants maintain, as t hey di d i n the di strict court, that 20 Soto was the driver of the C amry ( see , e.g. , Def endants' brief on appea l at 9, 10; Def endants' SJ /QI 21 Mem. at 1, 3, 34), that the drive r had soug ht to f lee in the Camry , and that on Fa irfield Avenue they

161 believed he had attempted to hit the police ca rs co m i n g toward him. ( See , e.g. , Def endants' SJ /QI 2 Mem. at 3 (" For the sake of clar ity , Def endants note Mr. Soto was the driver of the stolen Camry who 3 committ ed t h e felony crime of assaulting a police office r when he swerve d the Camry at Offic er 4 Csech' s vehicle." (empha sis added) ).) Howeve r, whether Soto was the Camry ' s d ri v er --which is 5 disputed, and which Def endants' Rule 56.1 Statement, see D. Conn. L ocal Rule 56(a) (1), did not asser t 6 was undisputed-- is far from clea r. Young , the ot her capture d occupa nt, stated t hat t he driver of the 7 Camry was a man named "Jose," not I srae l Soto. (Tra nscript of Young OIA interview, sworn to April 8 17, 2009 (" Young Aff." ), at 2, 9.) Fur ther, any notion that Stepniewski might have assumed that Soto 9 had been the driver of the Camry on the theory that there wer e no other occupa nts is dispelled by the 10 fac t that during the chase , Stepniewski radioe d that he had seen something thrown from the Camry ' s 11 window by "the front passeng er" (Tra nscript of Stepniewski OIA interview, sworn to J uly 31, 2008, 12 at 2). Finally , althoug h Hea nue-- who had once arr ested Soto some eig ht y ear s ear lier-- told OIA in 13 Fe bruar

y 2008 that he had thought the Camry driver might be Soto, he did not mention that thoug ht 14 in his radio transmissions ( see Deposition of Martin Hea nue at 217); he testified that when he saw the 15 Camry , he "did not have enoug h

. . . visual contac t to make a posi t i v e I D on any of the individuals 16 within that car " ( id .); and h e t o l d OIA that "when we g ot to Seaside, y ou couldn' t see squat" 17 (Tra

nscript of He anue O I A interview , sworn to J uly 17, 2008, at 8). 18 Def endants also sug g est that Sot o may have posed a threat of injury to the Offic ers 19 beca

use he may have had a g un. But none of the Offic ers said they observe d any sign of a wea pon or 20 any g esture by Soto that sug g ested a wea pon. ( See , e.g. , Deposition of Chris Robinson, J uly 31, 2013 21 (" Robinson 7/31 Dep." ), at 145 (" I never saw a wea pon on him" and never saw him make a movement

171 as if he had a wea po n ); Deposit ion of Damien Csech (" Csech Dep." ), at 101 (Csech "ne ver saw a 2 wea

pon on the per son who [he] TASERed" ).) 3 Finally , Def endant s , a r g u in g r e le ntl e s s ly th a

t th e r e w a s no established law ag ainst using 4 their tasers on a "f leeing " suspect ( e.g. , Def

endants' brief on appea l at 2, 20, 21, 22, 41, 42, 43, 44, 46, 5 47), have not acc epted for purposes of this appea l plaintif f's v iew that Soto, at the moment 6 Stepniewski and Robinson tased him, was neither threatening nor flee ing, and they do not they 7 descr ibe the rec ord in the light most favor able to the plaintiff. For example, there was testimony from 8 Young that Soto had become both inc apac itated and compliant. In his OIA interview, Young stated 9 that at some point afte r he fled from the Camry he saw that Soto, having run in the opposite direc tion, 10 had fa llen and had not g otten up. ( SeeYoungAff. at 10.) 11 T h e r e c o r d a ls o in c lu d e s d e p o s ition testimony from Csech, Stepniewski, and Robin s o n , 12 indicating that when Stepniewski and Robinson tased Soto, they wer e within arm' s rea ch of him and 13 he was on the g round, in no position to flee

. After Csech tased Soto, all three of t hose Officer s ran 14 toward Soto--with Stepniewski and Robinson three -to-five fee t from eac h other ( see , e.g. , Robinson 15 7/31 Dep. at 40-41, 44) and Csech betwee n them ( see , e.g. , Csech Dep. at 199, 201)-- and Stepniewski 16 and Robinson tased Soto from as close as t wo feet awa y . ( See , e.g. , Deposition of C hris Robinson, 17 J uly 30, 2013 (" Robinson 7/30 Dep." ), at 100 (" Q. And the two of y ou . . . TASERed I srae l Soto from 18 behind? A. No. He was laying on the g round, g etting up.") ; id

. at 138 (" he hadn' t g otten up y et" ; "his 19 hands wer e still on the g round" ); Transc ript of Robinson OIA interview, sworn to Fe bruar y 19, 2009 20 (" Robinson Aff." ), at 1 3 (" W h en I tased him, he was down; he was . . . trying to like push up, g et 21 up.") ; Robinson 7/ 31 Dep. at 128 (when he saw S oto make that movement, R obinson was " three to 22 five fee t" awa

y from Soto); id

. at 39 (" Q. [S tepniewski]

. . . and y ou wer e both a couple of fee t awa y

181 from the person that was TASERed? A. Yes."); Robinson 7/30 Dep. at 105 (" I know I tased him 2 once," "f

rom about two fe et awa

y ") .) 3 I n light of this evidence, a rational juror could find that, when Stepniewski and 4 Robinson fired their tasers, Soto had never g iven any indication of possessing a wea pon and was not 5 flee ing; that Soto was on the gro und, completely entang led in taser wires ( see Robinson Aff. at 5 6 (" there wer e wires ever y wher e")) , s trug g ling even to g et into a push-up position; and that with 7 Stepniewski and Robinson in such close proxi mity to Soto in those circ umstances, the firing of their 8 tasers c onstitut ed objec tively unrea sonable use of

forc e. 9 The district court' s ruling that the evidenc e, taken in the light most favor able to the 10 plaintiff, was sufficie nt to cre ate triable issues rele vant the entitlement of Stepniewski and Robinson 11 to qualified immunity is not im mediately

appea lable.

12 3. Robinson's Collision wit h Soto 13 Def endants argued that Robinson was en t i tled to qualified immunit y and summary 14 judgme nt "a

rising out of his accide ntal collision with Mr. Soto beca use accide ntally striking a flee ing 15 suspect with a police vehicle does not c onstitut e a Four th A mendment seizure." (De fenda nts' SJ /QI 16 Mem. at 26-27 (empha ses added) .) The district cour t d i d n o t reje ct the principle that the Four th 17 Amendment does not encompa ss a use of forc e that was not intentional. See generally Brower v. 18 County of

Inyo , 489 U.S. 593, 596-97 (1989) (" a Four th Amendment seizure [occurs]

. . . when there 19 is a g overnme ntal terminat i o n o f fre edom of movement through means intentionally applied " 20 (empha sis in orig inal)). Rather, the court ruled that there was a g enuine issue of fac t to be tried as to 21 whether or not Robinson hit Soto intentionally ; and the applicability o f th e a c c id e nta l- c o nta ct principle

191 would depend on an assessment of Robinson' s cre dibilit y , a matter for a fac tfinder, not f or the court 2 on a motion for summary judgme nt. ( SeePart I .C. above.) 3 Def endants argue that plaintiff "pr oduced no direc t or circ um s t antial evidenc e that 4 Robinson intentionally struck Soto" (De fenda nts' brief on appea l at 24); but a fac tfinder' s assessment 5 of a pa

rty ' s cre dibilit y

may be influenc ed by internal inconsist encie s in his factual pre sentation, and 6 there are sever al here i n the defe nse descr iptions of the collision. Robinson's OIA interview with 7 respe ct to the coll i s ion betwee n his car and Soto contained appar ent inconsistencies, as Robinson 8 descr ibed what happene d afte r Soto "g ot hit by " the cruiser (Robinson Aff. at 13) but also stated that 9 Soto ins tead r an into the cr uiser. Robinson's state ments to OI A included the f ollowing: 10 # "[OIA Question:] [W ]hen y ou struck the suspect, he fell backw ards, hitting 11 his head, is that your conc lusion? ROBI NSON: Yes." (Robinson Aff. at 13); 12 # Soto fell backwa rds " afte r he g ot hit by

the vehicle " ( id . at 13); 13 # "[OIA Question:] When y ou hit him, y ou said he fell back? ROBI NSON: He fell 14 back" ( id . at 15); 15 # "When I hit him, he went back" ( id . at 17). 16 But then Robinson also stated: 17 # "[OIA Question:] You ran into him? ROBI NSON: The vehicle...he ran into 18 me ac tually " ( id .); 19 # "H e ra n into me. Iwas c oming to a stop" ( id .); 20 # "I come to a stop" ( id .); 21 # "H e . . . hit[] the ca r" ( id . at 17-18); 22 # "[H]e ran into me. I didn't r un into him" ( id . at 18). 23 Robinson's deposition testimony underw ent a simil ar revision. He at first testified that "a s soon as I

201 basica lly hit him, the car stopped" (Robinson 7/30 Dep. at 184); but he there afte r testified that "Soto 2 ran into [my ] cruiser" (Robinson 7/31 Dep. at 26). 3 I n sum, with respe ct to the moment of the collision, Robinson testified that his car was 4 stopped, or was coming to a st op, or st opped as soon as i t hit Soto; and that the c ru i s er h i t S o t o , o r 5 Soto ran into the cruiser

. 6 Csech was a witness to the collision, and the path of his descr iption rese mbled that of 7 Robinson, b eginni ng with statements that Soto was struck by Robinson's cruiser and ending with 8 statements that Soto had not in fac t been struck but instead had run into the cruiser

. In his 2008 OIA 9 interview, Csech testified that Soto ran in front of Robinson's car and "g ot hit by the car " (Tra nscript 10 of Csech OI A interview, sworn to Fe bruar y 23, 2009, at 3). He said, "I observe d the male run in front 11 of the Police vehicle" and "[g ]et hit. Get knocked to the g round." ( Id

. at 6.) And in his 2013 12 deposition, Csech initially testified similarly : 13 # Soto " ran in f ront of the police vehicle and was struck and knocked to the g round" 14 (Csech D ep. at 161) ; 15 # Csech "sa w [S oto] get hit by the car , knocked to the g round," knocked back "a 16 couple f eet" ( id . at 181). 17 Howeve r, Csech later maintaine d instead that 18 # Soto "didn' t g et hit by the police car "; "he ran into the police car " ( id

. at 213); 19 # "he ran into it" ( id . at 214); 20 # "Soto ra n into the police vehicle " ( id . at 227). 21 L ieutenant Thomas L u l a, a s u pervisor of the Officer s, testified i n his OIA i nterview 22 that, shortly afte r the final tasing of Soto, Lula was informed by a serg eant other than Stepniewski that 23 Robinson had "struc k this individual with his patrol car " (Tra nscript of Lula OIA interview, sworn to

211 J une 25, 2009, at 4). When Lula inquired of Stepniewski, the response was that "Robinson came up 2 to Stepniewski and told him l isten, y ou know[,] Ihit the guy ." ( Id .) 3 A s n o te d in Gr aham , "police office rs are often forc ed to make split-second judgme nts

- - 4 in circ umstances that are tense, uncer tain, and rapidly evolving ." 490 U.S. at 397. Robinson, driving 5 down P ark Avenue looking for suspects, fa ced the need to make just such a judgment when he saw 6 a fleeing suspect suddenly appea r i n front of his car . Did he brake a nd swerve in an effort to avoid 7 hitting the suspect and strike him acc identally ? Or did he stop the cruiser , only to have Soto run into 8 it? Or did he decide to take advanta g e of the opportunity to stop the suspect by hitting him with the 9 cruiser ? 10 Robinson's own statements support an infere nce that his cruiser struck Soto. And the 11 revisions of that aspec t of his ear liest statements may cast doubt on the cre dibilit y of his asser tions that 12 his collision with Soto was acc idental. The district court' s ruling that the rec ord evidenc e is sufficie nt 13 to require a trial on these iss ues affec ting th e ap p l i cabilit y of t he accidenta l-contac t principle is not 14 immediately

appea lable.

15 4. The Qualified Immunity Contentions of Gaudett and the City 16 Both Gaude tt--who was not alleg ed to have had any persona l involvement in the events 17 conce rning Soto--and the City also soug ht summary judgme nt dismiss ing the claims alleg ing 18 delibera

te municipal indiffer ence enabling the Offic ers' alleg ed constitutional violations. The district 19 court denied their motions beca use of the prese nce of g enuine issues of materia l fac t to be tried. On 20 appea l the City and Gaude tt argue that they should have been g ra n t ed summary judgme nt on the 21 g round of qua lified immunit y . We dismi ss their appe als for la ck of a ppellate jurisdiction.

221 The defe nse of qualified immunit y protec ts a g overnme nt officia l, sued for actions he 2 took under color of state law, from cla ims for damag es ag ainst him in hi s individual capac ity . That 3 defe nse does not belong to the g overnme ntal entity ; the entity itself is not allowed to asser t that 4 defe nse. See Owen v. City of Indepe ndence , 445 U.S. 622, 638 (1980); id

. at 657 (" mun i ci p al i ties 5 have no immunit y from damag es l i ab i l i t y fl owing from their constitutional violations"); Morris v. 6 Lindau , 196 F.3d 102, 111 (2d Cir. 1999) (" municipalities have no immunit y defe nse, either qualified 7 or absolute, in a suit under § 1983")

. And since a suit ag ainst a g overnme nt o ff i cial in his officia l 8 capa city is the equivalent of a suit ag ainst the g overnme nt entity , see generally Kentucky v. Graham , 9 473 U.S. 159, 165-66 (1985), the defe nse of qualified immunit y is also unavailable to the individual 10 sued in his officia l capa city , see , e.g. , Lore v. City of Syracuse , 670 F.3d 127, 164 (2d Cir. 2012); Y ing 11 Jing Gan v. City of New Y ork , 996 F.2d 522, 529 ( 2d Cir. 1993). 12 An immediate appea l from the denial of a qualified-immunity -b ased motion for 13 summary judgme nt is permitted only if the defe ndant' s claim of qualified immunit y is " substantial." 14 E.g. , In re State Pol i ce L i t i g a t i o n , 88 F.3d at 124; see Mitchell , 472 U.S. at 525-27 (principles 15 allowing immediate appea l o f the denial of a "substantial" defe nse of absolute immunit y are applicable 16 to the defe nse of qualified immunit y ). The claims of Gaude tt and the City of entitlement to qualified 17 immunit y , a defe nse that is doctrinally inapplicable to them, are not "substantial." Their appea ls are 18 dismiss ed for

lack of appellate jurisdiction.

231 CONCL USI ON

2 We have considere d all of Def endants' ar gu m en t s on this appea l and, except as 3 indicated above, have found in the m no basis for a ppellate jurisdiction. To the e x tent that the order 4 of the district court denied summary judgme nt to Csech, it is appea lable and is reve rsed. I n all other 5 respe cts, the appe al is dismis sed.

24