Bitten or Not, Cop’s Force May Have Been Excessive

(CN) - An excessive-force lawsuit will advance despite claims from the officer that the leaf-blower-toting cyclist he beat had bitten him first, a federal judge ruled.

The city of Paterson, N.J., and its officer, Jason English, have spent nearly three years fighting a lawsuit filed pro se by Robert Kwiatkowski, a current inmate at South Woods State Prison in Bridgeton, N.J.

The complaint alleges that Kwiatkowski had just left a restaurant with a cup of coffee, placed his leaf blower on his back, and was preparing to ride his bicycle on Sept. 9, 2010, when English began questioning him from his police car.

Fearing he had a warrant or some old fines that would send him to jail, Kwiatkowski allegedly biked down the sidewalk, ignoring the officer's commands to pull over.

Kwiatkowski eventually got off of his bike, dropped his leaf blower and ran, while English chased him on foot and cut his hand on the fence the runner hopped, according to the complaint.

When Kwiatkowski hid under a tarp on a car in a vacant lot, English allegedly knocked him to the ground by hitting his head with his police radio or nightstick twice without warning.

Another officer then told English to stop hitting Kwiatkowski, whom they then handcuffed and dragged a couple of feet before lifting him up, scraping his knees on the rocky ground, according to the complaint.

English maintains, however, that Kwiatkowski resisted arrest, knocked them both to the ground, and bit the officer's wrist and scratched his arm while attempting to escape his grasp.

After paramedics bandaged Kwiatkowski's head, another officer took him to St.

Joseph's Hospital, where doctors placed staples in his head, and English threatened him, demanding that he admit to biting him, the complaint states.

Kwiatkowski was taken to the county jail the next day and was charged with aggravated assault, resisting arrest, and trespassing.

U.S. District Judge Jose Linares granted the city summary judgment last week, but denied such relief to the officer, finding that Kwiatkowski's admission that he ran away from English does not mean he attempted to evade arrest by flight.

"Plaintiff's attempt to flee certainly did not afford Officer English the right to restrain plaintiff by any and all means," the unpublished ruling states.

It is of note that the 3rd, 6th and 11th Circuits have all suggested that it is excessive to hit an arrestee's head twice with a blunt instrument, according to the ruling.

Furthermore Kwiatkowski has sworn to five facts that imply that he posed no threat to the officers.

"First, plaintiff testified that he did not touch Officer English and that there was no physical struggle between them," Linares wrote. "Relatedly, there is no evidence in the record suggesting that Officer English had a reason to believe that plaintiff was armed. Second, plaintiff testified that Officer English provided no warning before striking his head. Third, the magnitude of Officer English's strikes to plaintiff's head caused severe lacerations that required stitches. Fourth, Officer Otero was available as backup at the scene at the time. Thus, help was then available to Officer English had he resorted to less intrusive means to apprehend plaintiff. Finally, plaintiff testified that Officer English resorted to a particularly jarring method to restrain plaintiff - striking his head twice with a police radio or nightstick. Plaintiff testified that Officer English's first strike to his head left him dazed and on the ground and that Officer English, nonetheless, struck his head a second time. This testimony, if credited, could lead a reasonable jury to conclude that Officer English's second strike to plaintiff's head was unnecessary and, therefore, excessive."

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