(CN) - Police officers must face claims that they assaulted partygoers after the DJ complained on the loudspeaker about the event being shut down, a federal judge ruled.
Barry Turkowitz served as a DJ for a July 2007 birthday party at a private home in Provincetown, R.I.
At approximately 10 p.m., the police responded to a third noise complaint concerning the residence and ordered the party shut down.
Turkowitz complied with the police by turning off the music. While announcing the officers' decision over the public-address system, he said: "It's a shame as taxpayers we cannot have a private get-together in a private backyard."
The police said Turkowitz's comment "wound up" the crowd and created a dangerous situation for the officers. They then arrested Turkowitz for disorderly conduct.
Turkowitz claimed that after his arrest, Officers Anthony Bova and Michael Barone slammed his head into the side of the house, injuring his nose, and kicked him several times, bruising his leg. The defendants countered that Turkowitz received these injuries because he resisted arrest.
Bryan Richardson, another party attendee, said he asked two other officers, Thomas Steele and Monica Himes, why they allowed their colleagues to beat Turkowitz. Steele and Himes allegedly responded by arresting Richardson and confiscating his walking cane. Richardson claimed the officers dragged him to their police cruiser and slammed him into the trunk.
The police said they arrested Richardson because he also made inflammatory announcements over the PA system.
A jury found Turkowitz guilty of resisting arrest, but an appeals court later cleared him of disorderly conduct.
After Turkowitz and Richardson filed a federal complaint in Boston, U.S. District Judge Nathaniel Gorton refused to dismiss their claims for assault and battery, excessive force, and state-law false arrest against the individual officers.
Though Bova said that he was justified in using force against Turkowitz because the DJ was resisting arrest, Turkowitz could show that his treatment was unreasonable under the 1989 decision Graham v. Connor, according to the ruling.
"Turkowitz easily satisfies the three Graham factors: disorderly conduct is hardly a severe crime, plaintiff was unarmed and, in spite of allegedly 'wiggling' his arms to avoid being handcuffed, even defendant concedes that he made no threatening gestures," Gorton wrote.
Richardson likewise may be able to show that officers slammed him into the trunk of the cruiser and tightened their grip on him when he complained about his back pain.
"Applying the Graham factors, Richardson posed no threat and committed no crime, so a jury could reasonably find that any amount of force was excessive under the circumstances," the decision states,
In addition, Gorton held that "plaintiffs have raised a genuine issue of material fact as to whether Richardson's arrest was based upon probable cause or was in retaliation for protected speech. If a jury credited the plaintiffs' account, Officers Steele and Himes arrested him solely because he questioned why they were not intervening in the other officers' attack on Turkowitz."
The court dismissed claims against Officers Warren Tobias, Jeff Jaran and Carrie Lopes, who were not directly involved in the arrests. It also found that Provincetown cannot be held liable for any wrongdoing because there is no evidence that the municipality acted with "deliberate indifference."
"There is no evidence of civilian complaints based upon false arrest or excessive force against Officer Bova (or Officers Barone, Himes, or Steele)," Gorton wrote (parentheses in original). "This falls far short of the pattern of similar constitutional violations demanded by the standard."
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