Wierzbic v. Cnty. of Erie, 13-CV-978S

• Decision Date: 25 January 2018
• Docket Number: 13-CV-978S
• Parties: RAYMOND WIERZBIC, et al., Plaintiffs, v. COUNTY OF ERIE, et al., Defendants.
• Court: U.S. District Court — Western District of New York

RAYMOND WIERZBIC, et al., Plaintiffs, v. COUNTY OF ERIE, et al., Defendants.

13-CV-978S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

January 25, 2018

DECISION AND ORDER

I. INTRODUCTION

Plaintiffs Raymond Wierzbic, Bernice Wierzbic, Brian Wierzbic, and Angelene Wierzbic¹ bring this action against Defendants the County of Erie, the Erie County Sheriff's Department, Erie County Sheriff Timothy Howard, Deputy Erie County Sheriff Michael Hoock, Deputy Erie County Sheriff Jason Weisser, Deputy Erie County Sheriff Thomas Was, Deputy Erie County Sheriff James Flowers (together, the "Erie County Defendants"), as well as the East Aurora Police Department, East Aurora Police Chief Ronald Krowka, and East Aurora Police Officer Robert Braeuner (together, the "East Aurora Defendants"). Presently before this Court are motions for summary judgment from the Erie County Defendants, the East Aurora Defendants, and Plaintiffs. For the following reasons, the East Aurora Defendants' motion is granted, the Erie County Defendants' motion is granted in part and denied in part, and Plaintiffs' motion is denied.

II. BACKGROUND²

On July 2, 2012, Erie County Deputy Sheriff Michael Hoock arrived at 49 Willis Road in the Town of Aurora, New York, to serve process in a civil action on Plaintiff Raymond Wierzbic. Deputy Hoock testified during Plaintiffs' criminal trial that, on the day in question, he was in uniform and driving a marked "civil" Sheriff's vehicle. (See Docket No. 84-5 ("Hoock Testimony") at 84, 128.) He had reviewed the papers he was carrying and believed the property to be owned by Raymond Wierzbic.³ (Id. at 152.)

When Deputy Hoock exited his car at 49 Willis Road, he observed Brian, Raymond, and Bernice on the property. (Id. at 84-85.) Deputy Hoock approached Plaintiffs and asked, "Who is Raymond Wierzbic? Is he here?" and Brian responded by stating that Raymond did not live on the property and telling Deputy Hoock to get out. (Id. at 87.) Deputy Hoock "explained to [Plaintiffs that he] needed to find out who Raymond is . . . and they proceeded to tell [him] that, to get out of here, and they're not going to cooperate." (Id. at 88-89.) Deputy Hoock testified that Plaintiffs became "more and more hostile" and that "no matter what [he] said to try to diffuse [sic] the situation, it didn't seem to make a difference." (Id. at 89.) He then made a "demand" to see identification, which they "pretty much ignored." (Id.)

After Deputy Hoock had been told repeatedly to leave the property, and had made a "demand" for identification, he noticed Raymond pick up a pair of pliers. (Id.) At that point, he was approximately 10 yards away from Raymond, who raised the pliers up to "head-level" and waved them while shouting "get out of here[, y]ou've got no right to be here, et cetera." (Id. at 89-90.) Although Raymond did not move toward him, Deputy Hoock felt "very threatened" because Raymond refused to put the pliers down and said "I don't have to do that" when Deputy Hoock instructed him to do so, saying that it was "an officer safety issue." (Id. at 90-91.) On cross-examination, when asked why he did not comply with the Plaintiffs' requests that he leave the property immediately, Deputy Hoock testified: "It wasn't initially said to me, right away. And, the pliers became an incident at that point." (Id. at 139.) This appears to be at odds with Deputy Hoock's earlier testimony that Brian's initial response to him was an instruction to leave (id. at 87), and that he did not notice the pliers until after he had been told to leave several times (id. at 89). He later confirmed on cross-examination that Raymond "told [him] numerous times to get off the property, even before he picked up the pliers." (Id. at 166.)

After Raymond had waved the pliers for "about a good minute" without coming any closer, Deputy Hoock radioed for backup. (Id. at 92.) Raymond and Brian had walked away from him, toward a barn farther back on the property, and he followed at a safe distance. (Id. at 93-94.) As Raymond approached the barn, he threw the pliers inside and turned to face Deputy Hoock. (Id. at 94.) Deputy Hoock told Raymond that he had radioed for backup and that Raymond was under arrest for menacing. (Id. at 95-96.) Brian then approached Deputy Hoock and "bumped" or shoulder-checked him, seemingly trying to stop him from walking toward Raymond. (Id. at 95-96.) Deputy Hoock told Brian to "back off" or he would be arrested for obstruction; Brian responded that he "didn't care" and that Deputy Hoock was "not arresting anybody." (Id. at 96.) Deputy Hoock then told Raymond to put his hands behind his back and, when Raymond refused, he attempted to use pepper spray to "subdue" Raymond. (Id. at 97-98.) However, the pepper spray failed and Raymond walked toward Deputy Hoock and grabbed his sunglasses and vest, at which point Brian began grabbing Deputy Hoock as well. (Id. at 99.) As the three were pushing and shoving each other, Brian yelled, "that's it, we're calling the police" and Deputy Hoock broke apart from them and said, "That's a good idea. Let's call the East Aurora P-D [sic]." (Id. at 100-01.)

Deputy Hoock, Raymond, and Brian ceased fighting and proceeded back toward the driveway. (Id. at 102.) While the timeline is not clear from Deputy Hoock's testimony, it appears that after he radioed for backup, and before the backup arrived, Brian provided his identification to Deputy Hoock and the service of process was completed. (See id. at 163-65; Docket No. 83-10 ("Criminal Appeal") at 5.) Three Erie County Sheriff's Deputies, Defendants Weiss, Was, and Flowers, arrived on the scene soon after Deputy Hoock's radio call (id. at 102), while Bernice was still on the line with 911 attempting to get aid from the East Aurora Police (Docket No. 81-16 ("Bernice Wierzbic EBT") at 51). Deputy Hoock pointed to Raymond and Brian and told the Sheriff's Deputies that the men were under arrest. (Hoock Testimony at 103.) East Aurora Police Officer, Defendant Braeuner, arrived after the Sheriff's Deputies. He was responding to a call from dispatch reporting that the Sherriff's Department was requesting backup at 49 Willis Road. (Docket No. 81-9 ("Braeuner Aff.") at ¶ 7.) He affirmed that had no knowledge of the events that had transpired there or why he was summoned as backup but, based on his experience, "when an officer calls for backup, he is in trouble and needs immediate assistance." (Id.)

Deputy Hoock testified that, when the Sheriff's Deputies approached and attempted to make an arrest, "Raymond started throwing punches." (Hoock Testimony at 104.) Deputy Hoock put Raymond in a headlock, but Raymond put Deputy Hoock in a headlock as well, at which point the Deputy "felt like [he] was in trouble" and couldn't breathe. (Id.; see also Docket No. 81-17 ("Raymond Wierzbic EBT") at 57-58.) Eventually Raymond broke his hold, and the Sheriff's Deputies subdued him with a functioning canister of pepper spray. (Id. at 111.) Officer Braeuner states that, when he arrived, he observed Deputies Hoock and Flowers in a verbal altercation with Raymond and heard them tell Raymond that he was under arrest. (Braeuner Aff. at ¶ 8.) He confirmed that Raymond began to fight with the Sheriff's Deputies as they attempted to handcuff him, and that he saw Brian and Bernice trying to pull the deputies away from Raymond. (Id. at ¶¶ 8-9.) Brian and Bernice were yelling that they wanted the East Aurora Police, and Officer Braeuner approached them and attempted to explain that he was an East Aurora Police Officer. (Id. at ¶ 10.) He also attempted to move Bernice away from the area where the Sheriff's Deputies were struggling with Raymond. (Id.)

Bernice did not comply with Officer Braeuner's instructions to stay clear of the altercation and, as she tried to get past him, she struck or shoved him in the chest, after which he arrested her. (Id.) He then helped restrain Raymond by assisting the Sheriff's Deputies to put his arm into a handcuff. (Id. at ¶ 11.) Officer Braeuner contends that this—touching Raymond's arm to assist in cuffing him—was his only physical contact with Raymond. Plaintiffs do not dispute that Raymond physically resisted Deputy Hoock during the arrest (see Raymond Wierzbic EBT at 57-58), that Bernice either hit or pushed Officer Braeuner after he had led her away from the altercation (see Bernice Wierzbic EBT at 51), and that Officer Braeuner's only physical contact with Raymond was holding his arm during the arrest. Chief Krowka was not present at the scene and did not confer with or direct Officer Braeuner as to how to respond to the call. (Braeuner Aff. at ¶ 17.)

Raymond was charged with violations of New York Penal Law sections 205.30 (resisting arrest), 195.05 (obstructing governmental administration), 120.15 (menacing in the 3rd degree), and 240.26 (harassment in the 2nd degree). (Docket No. 83-10 ("Criminal Appeal") at 2.) Brian was charged with violation of New York Penal Law sections 120.00(1) (assault in the 3rd degree), 195.05 (obstructing governmental administration), and 205.30 (resisting arrest). (Id.) Bernice was charged with violation of New York Penal Law sections 205.30 (resisting arrest) and 195.05 (obstructing governmental administration). (Id.) After a non-jury trial before Town of Aurora Judge Jeffrey Markello on June 12 and 13, 2013, Raymond was convicted on all counts, Brian was convicted of obstructing governmental administration, and Bernice was acquitted. (Docket No. 83-9.) On December 4, 2013, Raymond and Brian were each sentenced to a conditional discharge, fined $750.00 and ordered to perform 20 hours of community service. (Criminal Appeal at 2.)

On September 30, 2014, Erie County Court Judge Michael Pietruszka reversed the convictions. (Id.) Judge Pietruszka found that "Erie County Sheriff's Deputy Michael Hoock entered upon the [Wierzbics'] property in order to serve lawful process on [Raymond], in accordance with his obligations under ...