Cops May Be Liable for Phone-Inspired Beating

(CN) - A New Jersey man can pursue claims that police kicked, choked and pepper-sprayed him for answering his cellphone against their orders, a federal judge ruled.

Richard Marshall Jr. sued Keansburg Borough, N.J., five police officers and 10 anonymous defendants in December 2012.

The federal complaint stems from an incident in which Marshall's cellphone allegedly started ringing as Sgt. Wayne Davis and Detectives Bryan King and Jillian Kohler approached him on the sidewalk of Beachway Avenue in Keansburg on Dec. 18, 2010.

Although King said not to "fucking answer that phone," Marshall answered, at which point King and Davis grabbed him from both sides of his arm and threw him face first against their unmarked police vehicle, the complaint states.

"I fucking told you not to answer your phone," King allegedly screamed at Marshall.

The officers proceeded to kick out Marshall's legs, tackle him to the ground, and knee him in his ribs and back, according to the complaint.

As King allegedly choked him with his forearm, Marshall said he managed to gasp out: "I can't breathe; why are you doing this?"

Kohler then allegedly pepper-sprayed Marshall in the face as he lay handcuffed on the ground.

Though Marshall ultimately pleaded guilty to and paid fines for disorderly conduct on Feb. 2, 2012, the charges for resisting arrest were dismissed.

His complaint asserts claims for excessive force under federal and state law; failure to intervene in his unjustified assault and arrest; supervisory liability; and unlawful custom, practice, policy, or inadequate training; as well as common-law claims for assault and battery, emotional distress, and negligence. Marshall also seeks injunctive relief.

The defendants moved to dismiss for failure to state a claim, arguing that Marshall's guilty plea demonstrates that their conduct was per se reasonable.

U.S. District Judge Joel Pisano nixed the defense last week in an unpublished opinion.

"Not only is this claim based on the false premise that plaintiff pled [sic] guilty to resisting arrest (while he actually pled to disorderly conduct), it also fails to consider that a defendant police officer who is justified in using 'substantial force' in making an arrest 'does not mean that he was justified in using an excessive amount of force,'" Pisano wrote (parentheses in original). "As alleged, defendants' conduct gave rise to an unconstitutional seizure of plaintiff when they approached him and 'restrain[ed] his freedom to walk away.' The facts alleged by plaintiff regarding the amount of force used by defendants were not objectively reasonable, and therefore plaintiff has sufficiently alleged that the 'officer's conduct violated [his] constitutional right.'"

Pisano agreed to dismiss only the claims for unlawful policy, custom, or practice against Police Chief Raymond O'Hare and Deputy Chief Michael Pigott, who were not personally involved in the incident, and for punitive damages against the borough.

"Accepting the facts as alleged in the complaint, as the court must at this stage of the proceedings, the court concludes that no reasonable officer in the defendant officers' positions would have believed that that throwing plaintiff into their police vehicle, kicking plaintiff's legs out from him, tackling plaintiff to the ground, kneeing plaintiff in his ribs and back, and choking plaintiff was a lawful, reasonable amount of force to use under the circumstances," Pisano wrote. "There are simply no allegations in the complaint that show plaintiff posed a threat to the defendants or that demonstrate plaintiff was resisting arrest or attempting to evade arrest. Consequently, reasonable officers in this particular situation would have known that the use of such physical force as alleged here was impermissible."

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