Crowell v. Kirkpatrick, File No. 2:08-CV-55.
| Decision Date | 14 September 2009 |
| Docket Number | File No. 2:08-CV-55. |
| Parties | Jonathan CROWELL, Samantha Kilmurray, Plaintiffs, v. Robert KIRKPATRICK, Michael Gorman, Chuck Aleck, Peter DiMarino, Defendants. |
| Court | U.S. District Court — District of Vermont |
David C. Sleigh, Sleigh & Williams, St. Johnsbury, VT, for Plaintiffs.
(Doc. 43)
Plaintiffs Jonathan Crowell and Samantha Kilmurray bring this civil rights action under 42 U.S.C. § 1983 against Robert Kirkpatrick, Michael Gorman, Chuck Aleck, and Peter DiMarino, all of the Town of Brattleboro, VT Police Department ("BPD"). They allege that the officers used excessive force and made unlawful arrests in violation of the Fourth Amendment and Vermont state law when they arrested the Plaintiffs to end a protest on private property on July 24, 2007. (Doc. 1). Presently before the Court is the Defendants' Rule 56 Motion for Summary Judgment, in which they assert qualified immunity from suit. Fed.R.Civ.P. 56; (Doc. 43). For the reasons stated below, the Defendants' motion is GRANTED.
Summary judgment should be granted when the record shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also City of Burlington v. Hartford Steam Boiler Inspection and Ins. Co., 190 F.Supp.2d 663, 669 (D.Vt.2002). To decide such a motion, the trial court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party, and decide whether a rational juror could decide in favor of that party under applicable law. Id.; Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). In qualified immunity cases, this generally requires the Court to adopt the Plaintiffs' version of the facts. Id.
To preclude summary judgment, however, the non-moving party must offer more than "mere speculation and conjecture[.]" Harlen Assoc. v. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir.2001). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, only Id. at 249, 106 S.Ct. 2505.
Finally, under this Court's Local Rules, all material facts that are set forth in the movant's statement of undisputed facts (filed here by the Defendants as Doc. 43-3) are deemed to be admitted unless controverted by the non-movant's statement of disputed facts (filed here by Plaintiffs as Doc. 46-2). L.R. 7.1(c)(1)-(3).
On the morning of July 23, 2007, a group of people including Plaintiffs Crowell and Kilmurray gathered on a recently cleared lot at the corner of Black Mountain Road and Putney Road in Brattleboro, VT. (Doc. 47-2 ¶ 6). The group intended to protest what they mistakenly believed to be impending commercial development by the lot's owner, Cheshire Oil. The Plaintiffs knew that the lot was private property. Id. ¶¶ 7-8.
Shortly after the group arrived, a passerby informed the BPD that a group of protesters was trespassing on private property, and provided the protesters' location. (Doc. 46-2 ¶ 7). The BPD dispatcher then contacted the President of Cheshire Oil who said that while he did not "want to start a war with them," he wanted the protesters off of the land and asked that trespass orders be issued. (Doc. 46-3 at 9-10).
In response to the landowner's request, Lt. Kirkpatrick and Officer Gorman went to the scene and advised the protesters that there was no actual plan to develop the property, that the landowner would not allow the group to remain on the property, and that they would have to leave. The officers said they would return in approximately one hour and arrest any remaining protesters. (Doc. 43-3 ¶ 10).
At about 2:30 p.m., Brattleboro Police Chief John Martin and Police Captain Gene Wrinn held a meeting with Lt. Kirkpatrick about the protest. There, Martin and Wrinn told Kirkpatrick not to be "heavy handed" with, and to take no action against, the protesters. (Doc. 46-2 ¶¶ 16-17).2
Later that afternoon Lt. Kirkpatrick and Officer Jeremy Evans returned to the protest site and discovered that a number of protesters, including the Plaintiffs, remained on the property. (Doc. 47-2 ¶ 11; Doc. 46-2 ¶ 19). The Officers directed BPD dispatch to contact the landowners once again to suggest that the protesters be permitted additional time to leave on their own. (Doc. 46-3 at 11-12). This time Cheshire Oil said that the protesters were free to remain on the property overnight, but added that "if they're still there [in the morning], then we got to do something different." (Doc. 46-2 ¶¶ 19-22; Doc. 46-3 at 14).
At approximately 7:02 a.m. the next morning, July 24, 2007, Officers Kirkpatrick and Gorman returned to the property and found only the two Plaintiffs remaining. (Doc. 46-2 ¶ 28). They also found that the Plaintiffs had each chained themselves to a barrel that the group had brought to the property the day before. Id. The officers could see that the Plaintiffs were each on opposite sides of the barrel, and that they each had one arm in a piece of PVC pipe that extended through the side of the barrel. But because the barrel was filled with dirt, string, chicken wire, screws, and nails, the officers could not see inside to discern exactly how the Plaintiffs were attached. (Doc. 47-2 ¶ 18).
Later it was learned that each Plaintiff had a chain wrapped around their respective wrists inside the barrel, with a carabiner at the end of the chain clipped to a reinforcing steel bar—or "rebar"—which extended up from concrete poured into the base of the barrel. Id. ¶ 17. This barrel contraption, which is commonly known in the nomenclature of contemporary protesters as a "bear claw" or "sleeping dragon," weighed at least 300 pounds and was therefore too heavy for the officers to move. Id. ¶¶ 18-19, 36.
It is undisputed that throughout the entire July 24 encounter the Plaintiffs could have freed themselves from the barrel and walked off the property at any time. They could also have explained to the officers how they were attached to the barrel in order to facilitate their removal. (Doc. 47-2 ¶¶ 30-31; Doc. 46-2 ¶ 32).
Upon observing both Plaintiffs attached to the barrel, the officers initially tried persuasion to induce the Plaintiffs to leave. Officer Gorman told the Plaintiffs that their obstinance was pointless since the local newspaper had already published an article about their activity, and, in any case, no commercial development was about to occur. (Doc. 47-2 ¶ 14). When this tactic failed the officers verbally placed both Plaintiffs under arrest for criminal trespass. Nonetheless, the Plaintiffs persisted in their refusal to unchain themselves from the barrel and leave the property. (Doc. 47-2 ¶ 20).
At this point, Officers Kirkpatrick and Gorman called Lt. Chuck Aleck and Officer Peter DiMarino to the scene. (Doc. 47-2 ¶ 21). With both Aleck and DiMarino present, the officers again advised both Plaintiffs that they were under arrest, and ordered them to leave the property. The Plaintiffs again refused to either leave or explain how the barrel could be disassembled. (Doc. 47-2 ¶ 22). The officers then attempted to dig the dirt out of the barrel, but with little success. Lt. Kirkpatrick tried to remove dirt by using a shovel that Plaintiff Crowell had brought to the site. And in what may have been an attempt to inject some levity into the situation, Crowell complained to Kirkpatrick that "the shovel belonged to [him], that it was private property, and that [Kirkpatrick] was not allowed to use it." (Doc. 46-6 at 3).
The officers also tried to pull the Plaintiffs' arms out of the PVC piping because they believed that they were holding hands inside the barrel, but abandoned this approach when the Plaintiffs complained of pain. (Doc. 47-2 ¶ 26).
After failing to remove the barrel's contents, the officers called the Brattleboro Department of Public Works ("DPW") for assistance with disassembling the barrel and/or detaching the Plaintiffs without the use of force. (Doc. 47-2 ¶ 25; Doc. 46-2 ¶ 35). DPW employees responded, but their efforts were likewise unsuccessful. Id. Throughout these efforts, obviously, the Plaintiffs refused to leave the property under their own volition.
Next, the officers explored tipping the barrel as a means to disengage the Plaintiffs, but rejected that option when the Plaintiffs expressed fear that such action could break their arms or otherwise result in serious injury. (Doc. 47-2 ¶ 29).
At some point while the officers were trying to either disassemble the barrel or persuade the Plaintiffs to leave, Plaintiff Kilmurray yelled to a friend standing nearby and told him to "call members of the [protester] group so that they would return to the property." (Doc. 43-9 ¶ 23; Doc. 46-6 at 4).
After all of the aforementioned means of removing the Plaintiffs proved ineffectual, and after Kilmurray signaled for more protesters to return to the property, the officers decided to use their Tasers in the "drive-stun" mode as a pain compliance tool that would force the Plaintiffs to release themselves. (Doc. 47-2 ¶ 35). When used in the drive-stun mode, the Taser is placed directly against a suspect's clothing or skin. An electrical charge is delivered that causes significant localized pain in the area touched by the taser, and may also cause "significant redness"...
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