Perez v. The Borough of Johnsonburg

Decision Date23 July 2021
Docket Number1:18-cv-180
PartiesAngel Perez, Jr., Plaintiff v. The Borough of Johnsonburg, David Cuneo, Defendants
CourtU.S. District Court — Western District of Pennsylvania
MEMORANDUM OPINION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

ECF NO. 45

Hon Richard A. Lanzillo, United States Magistrate Judge

Defendants' motion for summary judgment (ECF No. 45) is pending before the Court. For the reasons discussed below, the motion will be granted in part and denied in part.

I. Introduction

The Fourth Amendment plays a major role in regulating how police officers interact with members of the public. It limits their authority to arrest individuals and evinces a general preference that such deprivations of liberty occur only upon the issuance of a warrant by an independent judicial official. The Fourth Amendment also limits the force officers may use in effectuating an arrest or other detention. While the law gives "a certain deference to police officers who employ reasonable means to effect the arrest of dangerous or resisting subjects” that deference does not extend to uses of force that are excessive or improperly motived. Kircher v. Pennsylvania State Police Department, 2016 WL 4379143, at *1 (M.D. Pa. Aug. 8, 2016). In determining whether an officer's use of force was reasonable, "the after acquired benefits of hindsight must yield to an objective sense of reasonableness” the boundaries of which are set by "the officer's observations in that particular moment” Id. The facts of this case implicate these principles and competing considerations.

II. Material Facts

This action arises out of a November 21, 2017 encounter between Plaintiff Angel Perez (Perez) and Defendant David Cuneo (Cuneo), a police officer employed by Defendant Borough of Johnsonburg, Pennsylvania. That encounter involved Cuneo's initial seizure of Perez, followed by his escalating use of force, which ultimately culminated in Cuneo's use of his service weapon to shoot Perez. The following facts are taken from the Defendants' Concise Statement of Material Facts (ECF No. 47), Perez' Responsive Concise Statement (ECF No. 57), and the exhibits thereto. Citations to record are omitted except where the Court refers to specific deposition testimony. Material disputes of fact are noted.

Perez was known to local law enforcement authorities, including Cuneo, prior to November 21, 2017. Cuneo had known Perez since joining the Johnsonburg Borough Police Department in 2007. Perez had a history of illegal drug use and previously had been charged with various criminal offenses, including burglary and theft; he had served time in state and local prisons.

In November 2017, the St. Marys, Pennsylvania, Police Department was investigating a burglary that occurred within its jurisdiction. On November 5, 2017, Sergeant Pistner of the St. Marys P.D. called Cuneo and told him that Perez was a suspect in the investigation of that burglary and that the St. Marys P.D. would be seeking a search warrant to obtain a DNA sample from Perez. Cuneo received a call from another St. Marys police officer the following week regarding his department's attempts to obtain a search warrant for Perez' DNA. The St. Marys P.D. ultimately secured the DNA search warrant at 12:50 p.m. on November 20, 2017. ECF No. 53-4. Although Cuneo had never been presented with a warrant for Cuneo's arrest, and no one had told Cuneo that the St. Marys Police had procured such a warrant, Cuneo erroneously assumed that both a warrant to arrest Perez and a search warrant for his DNA were outstanding. ECF No. 47-2 (Cuneo Deposition), p. 18 ("Well, I thought there was two warrants.. .That there was a body warrant for the burglary and they wanted his DNA and had a search warrant for that."). At least as of November 20, 2017 through the date of his deposition, Cuneo did not distinguish between the two types of warrants as far as how he dealt with individuals such as Perez. See id., p. 20. And, as of the date of his encounter with Perez, Cuneo also did not know that the search warrant that the St. Marys P.D. actually obtained for Perez' DNA expressly limited its execution to between the hours of 6:00 a.m. and 10:00 p.m.[1]

On November 20, 2017, Cuneo started his shift at 11:00 pm and was scheduled to conclude his shift at 7:00 a.m. He was the only officer on duty that night. Cuneo testified that, upon his arrival at the police department, he reviewed the daily log entries from the preceding shift and noted that the St. Marys Police Department was "looking for Perez" pursuant to "a search warrant for his DNA." The log included no reference to an arrest warrant but, as noted, Cuneo nevertheless assumed that the St. Marys P.D. had also secured a warrant for Perez' arrest. Based upon this erroneous assumption and his ignorance of the time limitation upon which officers were authorized to execute the DNA search warrant, Cuneo intended to arrest Perez if, and whenever, he encountered him. Id.

Shortly after Cuneo began his shift, he parked his police vehicle near a local convenience store. Just after midnight, Cuneo observed Perez walking down the street. Cuneo drove from the convenience store past Perez. As Perez approached, Cuneo exited his vehicle and stated he needed to talk to him. Perez recognized Cuneo, responding "what's up Cuneo?". Cuneo then told Perez that the St. Marys P.D. had a warrant for his arrest, and a warrant to collect a DNA sample, and that he would be taking him to the St. Marys P.D. pursuant to those warrants. Perez declined to go with Cuneo, stated that he was going home, and began to run or jog away. Cuneo pursued Perez and discharged his taser weapon, the leads or conducting prongs of which struck Perez in the back of the head. Cuneo contends that prior to deploying his taser, he warned Perez that "you better stop or I'm going to tase you." Perez asserts that Cuneo provided no warning before firing his taser. The parties do agree, however, that the shock of the taser caused Perez to fall to the ground and that as Perez fell his face struck a large rock. The impact of his fall broke Perez' nose. Cuneo approached Perez and instructed him to "stay down” At this point in the encounter, Perez was lying face-down on the ground. Cuneo testified that Perez repeatedly attempted to stand up and that each time Perez did so, he engaged his taser to shock him. Cuneo's taser was equipped with a camera that began recording when Cuneo first activated the weapon. See ECF No. 49.

The camera recorded that Cuneo discharged his taser on Perez five times during the encounter. The first discharge lasted approximately 5 seconds; the second, approximately 14 seconds, the third, approximately 40 seconds, the fourth, approximately 20 seconds, and the fifth, approximately 20 seconds. The video also shows Perez lying face-down on the ground with his hands initially beneath his chest, and Cuneo is heard repeatedly instructing Perez to place his hands behind his back. Between the second and third tasing, Cuneo is recorded threatening Perez, "I will light the fuck up" if Perez does not comply. Perez is recorded repeatedly telling Cuneo he is unable to comply because he is injured. It is clear from the video that Perez' hands were no longer concealed beneath his chest after the third tasing. Cuneo is also recorded advising Perez that he needed medical assistance.

After the last discharge of Cuneo's taser, Perez attempted to stand up, which prompted Cuneo to attempt to discharge his taser again. This time, however, the taser did not administer a shock to Perez. Apparently, Cuneo's prior uses of the taser had exhausted its charge. Cuneo and Perez disagree as to what happened next, and because Cuneo's taser had fallen or been dropped to the ground, it no longer recorded video of the interaction between the two.[2] Perez asserts that he did not aggress towards Cuneo but instead attempted to get off the ground and flee as Cuneo repeatedly struck him with his retractable police baton. In contrast, Cuneo maintains that Perez stood up, lunged at him, and punched him in the face. Cuneo claims that he and Perez traded blows for "over eight minutes" during which time he sustained more than 20 punches from Perez to his head. ECF No. 53-2, p. 111. As the fight went on, Cuneo says he fell to his knees and Perez continued to hit him. Id., p. 128. Perez denies lunging at Cuneo but admits to "rolling around on the ground" during the struggle. At some point during this struggle, a witness, Thomas Costanzo, arrived on the scene.

Costanzo told Perez to "just get on the ground" and to listen to Cuneo. At one point, Costanzo attempted to grab Perez' arm or coat to assist Cuneo, but he withdrew when he noticed significant amounts of blood on Perez, apparently from the injuries he had sustained during the encounter. Desiring to avoid possible contamination from Cuneo's blood, Costanzo returned to his car but remained in the area for the rest of the encounter. Cuneo asserts that Perez continued to strike him with his fists and wrestle with him while Perez contends that he was merely trying to escape Cuneo's blows. Both apparently agree that Cuneo struck Perez several times in the head with his collapsible baton in an effort to subdue him. Perez contends that he attempted to run away from Cuneo to escape his blows when Cuneo drew his firearm and shot him in the back. Perez asserts that he was approximately 12-20 feet away when Cuneo shot him. Costanzo, who remained at the scene, estimated that Perez was approximately 10-to-15 feet away when Cuneo shot him.

Cuneo's version of events leading to his shooting Perez differs materially from Perez' recounting. He testified that he told Perez, "Angel, if you hit me one more time, I'm going to shoot you." Cuneo asserts...

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