TEEL v. ELIASEN

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

___________________________________

:

KAMERON TEEL, :

:

Plaintiff, :

:

v. : Civil No. 17-02253 (RBK/AMD)

:

SERGEANT ELIASEN, BOROUGH OF : OPINION

GLASSBORO, et al, :

:

Defendants. :

___________________________________

KUGLER, United States District Judge:

THIS MATTER comes before the Court upon the Summary Judgment Motion (Doc.

No. 44) of the Borough of Glassboro, Chief Alex Fanfarillo of the Glassboro Police Department

(“GPD”), Sergeant Daniel Eliasen of the GPD, Lieutenant Robert Highly of the GPD, and

Officer Dominic Visceglia of the GPD (Collectively “Defendants”). This Motion seeks to

dismiss Count VI (Failure to Intervene) of Plaintiff Kameron Teel’s Amended Complaint (Doc.

No. 21). Count VI alleges that Defendants Eliasen and Visceglia “violated Mr. Teel’s rights

when they failed to stop each other from exerting excessive force and fail[ed] to intervene and

stop the civil rights violations. . .” Am. Compl. at ⁋ 86. The Motion turns largely on one

question: did Defendants Eliasen and Visceglia act reasonably? Because material facts in

dispute bear on that question, Defendants’ Motion is DENIED.

I. BACKGROUND

Plaintiff Kameron Teel is a five-foot-ten, twenty-five-year-old African American male

and an accomplished athlete. Pl. Statement of Material Fact (“P. SMOF”) [Doc. No. 52] ⁋⁋ 1–4.1

In 2016, he trained avidly as a martial artist. He won both the state championship for Judo and,

at the time of his deposition, seventy-five consecutive bouts. He also hoped to enter a police

academy in Philadelphia.

On June 24, 2016, Plaintiff rode his bicycle to New Street Park (“Park”) for an evening

workout. New Street Park had closed at sunset, but Plaintiff entered anyway around 8pm. That

evening, Plaintiff donned dark athletic clothes and wore headphones. P. SOMF at ⁋⁋ 15–17. He

biked a mile or so and then engaged in various exercises on playground equipment. At the time

he entered the park it was classified as a high-crime area by the GPD. Defs.’ St. of Mat. Facts

(“SOMF”) [Doc. No. 44-2] ⁋ 11. In 2016 alone, GPD received more than two thousand calls

from the Park’s two neighboring apartment complexes. Id.

The Glassboro Police Department (“GPD”) received a report that a woman was missing

from from a nearby group home that same evening. GPD Sergeant Daniel Eliasen and Officer

Dominic Visceglia (collectively “Defendants”) entered New Street Park. When Sergeant Eliasen

first entered on foot to look for the missing woman, he observed someone approximately 50-100

feet away. This person, later determined to be Plaintiff Kameron Teel, had climbed on top of the

1 The Court notes that Plaintiff has failed to comply with Local Rule 56.1(a) (“The opponent of

summary judgment shall furnish, with its opposition papers, a responsive statement of material

facts, addressing each paragraph of the movant’s statement, indicating agreement or

disagreement . . .”) There is no specific, paragraph-by-paragraph reference to Defendants’

statements of material fact that admit or deny each fact. The Court has therefore been left to

comb through the record, focusing on the sworn testimony of the parties involved.

playground equipment to engage in various workout activities. After seeing Plaintiff use what

appeared to be a lighter, Sergeant Eliasen decided to investigate whether the trespasser was using

illegal drugs. Sergeant Eliasen then radioed Officer Visceglia, who along with his K-9

“Charlie,” entered the Park in a marked police vehicle and shined a light on the individual. The

suspect, now on his bicycle, stopped and put his hands up. Both officers communicated

directions for him to get down on the ground and keep his hands out.

While the parties dispute the events that occurred, their body-worn cameras show that the

two police officers used some force in the arrest. Defs. Br., Ex. K (“Body Worn Camera”).

Specifically, during the arrest Sergeant Eliasen attempted to grab and control Plaintiff and used

OC Spray to subdue him. In addition, Officer Visceglia assisted Eliasen in the arrest and brought

his K-9 “Charlie” to the scene. While in handcuffs, Plaintiff suffered a concussion from two

contacts with a squad car. During the first contact, Officer Eliasen was responsible for guiding

Plaintiff to the car. During the second contact, Officer Visceglia assisted Eliasen in guiding

Plaintiff to the car. Ultimately, the parties debate whether the use of force was necessary and

how the events unfolded. The Court therefore provides an overview of each party’s account

based on the sworn testimony submitted to the Court.

1. Plaintiff’s Account

Plaintiff entered New Street Park between 8 and 9 pm to bike the two-mile park loop and

do various exercises on playground equipment. Plaintiff admits that the Park was closed at the

time he entered. Def. Deposition (“Teel Dep.”) [Doc. No. 44-5], 63. During his workout, he

listened to music on his cell phone, which lights up when turned on. Id. at 67.

Plaintiff claims that he heard sirens but initially believed they were in the distance. Id. at

70. Plaintiff then got back on his bike to ride in the opposite direction from which entered.

Plaintiff heard a police officer, Sergeant Eliasen, as he approached the exit. A second officer,

Officer Visceglia, shined a light on him and said, “Get on the ground, canine police.” Id. at 67.

Plaintiff admits this directive was “loud and clear.” Id. at 72.

Plaintiff is terrified of dogs and claims Officer Visceglia’s K-9 barked aggressively at

him. Plaintiff put his hands up even though the officers did not inform him why he was stopped.

Plaintiff then laid flat on the ground like he was “doing a push up.” Id. at 60. Plaintiff insists

that he complied with the Officers’ commands, but admits it may have taken him a “split

second” because of the shock of the K-9’s barking. Plaintiff stated that “the dog looked like it

was about to come off the leash,” and Officer Visceglia “used force” to stop the dog from

attacking. Id. at 78. Plaintiff explained that he feared for his life.

Plaintiff admits that he did not fully comply with the Officers’ orders. For example,

while his stomach remained flat on the ground, he lifted his chest off the ground. He likened the

movement to a yoga position called “a cobra position” — where his stomach was flat on the

ground, but he lifted his chest up. Id. at 79. At this point, the Officers said, “stop resisting, stop

resisting.” Id. at 60. Plaintiff insists he did not resist.

Plaintiff asserts that the Officers used force in arresting him. For example, he testified

that Eliasen “came over and flipped me towards my back, put his knee on my chest, and hands

toward my throat.” Id. at 83. Officer Visceglia also told him that K-9 Charlie is “going to bite

you” for resisting. Id. at 61. Sergeant Eliasen then sprayed Plaintiff with OC Spray. And for

thirty seconds or so, Sergeant Eliasen remained on top of him as Plaintiff screamed in fear of his

life. Id. at 101. Sergeant Eliasen then handcuffed Plaintiff and took him toward the police car.

Plaintiff then asked if Eliasen’s body worn camera recorded the incident. Plaintiff claims one of

the Officers “slammed [him] down on the hood of the vehicle” and once again before putting

him in the back seat of the police car. Id. at 120. He suffered a concussion. Id. at 114.

Plaintiff later filed a complaint with the Internal Affairs Department of the GPD. While

he signed this complaint, he admits that he did not personally file it. Id. at 185. Plaintiff

explained that the Officers targeted him because of his race. “[T]hey saw a black man and acted

accordingly. . .” Id. at 188.

2. Sergeant Eliasen’s Account

On June 24, 2016, GPD had only four officers on active duty. Eliasen Deposition

(“Eliasen Dep.”) [Doc. No. 44-6], 31. Daniel Eliasen, a Sergeant with twenty-two years on the

force, supervised these officers. That day, GPD received reports of a runaway female. A fellow

GPD Patrolman located her with some other individuals near the Park and Park Crest Village

Apartments (“Village Apartments”). Sergeant Eliasen sent one GCP officer to take an initial

report at the group home. Id. at 31. He then traveled to the Park to look for her.

Sergeant Eliasen entered the closed Park shortly after sunset. Eliasen believed the female

may have entered through one of the many holes in the fence. Now on foot, he “decided a

stealthy approach would be advantageous.” GPD Incident Report [Doc. No. 44-13]. He then

observed a shadowy figure between fifty and one-hundred feet away. Eliasen Dep. at 24. The

figure appeared to be a person riding a bike. The person rode toward Eliasen but “veer[ed]

toward a little kid’s play set. . .” Id. at 24.

Sergeant Eliasen found this activity highly suspicious and decided to investigate. He felt

there was no legitimate reason for someone to be by “a little kids’ playset [] at nighttime” in a

closed park. Id. at 30. He then noticed a light flicker from the top of the children’s play set. Id.

at 26. He believed that the light was coming from a flame, indicating illegal drug use. Id. at 38,

40. He first called Officer Visceglia, one of two officers who could have responded. Officer

Visceglia approached the Park from another entrance in his marked police car. Id. at 30. As

Visceglia entered the Park, Eliasen activated his body worn camera. Eliasen then instructed

Visceglia to shine a spotlight from his car on the play area in question. Id. at 45.

Eliasen then observed movement. Id. at 50. He saw the person “trying to make it

towards the back of the park.” Id. The person was “now trying to get away or evade or avoid

being seen by that marked police car.” Id. at 53. The now-suspect headed toward Eliasen.

Eliasen then decided to make his presence known for the first time. Id. He turned on his

flashlight, shined it at the suspect, and gave loud, verbal commands. He said, “Police. Get off

the bike.” Id. at 50. Initially, the suspect got off the bike and put his hands up. Id. at 57. The

suspect then “got back up again.” Id. at 59.

Eliasen then ordered the suspect to the ground and saw him reach inside his belt. Id. at

60. Eliasen approached and attempted to physically engage the moving suspect. The minute he

touched the man’s hand, the suspect pulled Eliasen, who was only 5’6”, to the ground. Id. at 61.

A physical struggle ensued. Eliasen remained physically on top of the suspect, who was now

face down on the ground. Eliasen then put his hands on the base of the man’s chest and neck to

“gain control.” Id. at 70. While the man did not strike Eliasen or go for his weapon, the two

engaged in a physical struggle on the ground for nearly five minutes. Id. at 66. Eliasen’s radio

became dislodged and he “got knocked around a little bit.” Id. at 64–68. Eliasen, still on top of

the man, then grabbed the front of his chest, turned him around, and sprayed him with OC Spray.

Eliasen handcuffed the suspect, Plaintiff Kameron Teel, and prepared to bring him in. He

guided Teel, who was hand-cuffed, to Officer Visceglia’s patrol car, the closest “rally point.”

On the way to the car, Teel screamed at the officers and claimed mistreatment. Id. at 91. Teel

then turned toward Eliasen and asked whether his body worn camera was recording. Id. Eliasen

explained, “You’re being audio and video recorded.” Id. at 92. Teel then inexplicably “threw

and lunged himself on the hood of that police car.” Id. at 92. The impact caused a dent in

Officer Visceglia’s police car. Id. Eliasen ordered Teel to stop trying to hurt himself. Teel was

then placed in the squad car and taken to the GPD.

3. Officer Dominic Visceglia’s Account

Officer Dominic Visceglia responded to a radio call from Sergeant Eliasen during the

night in question. Visceglia Deposition (“Visceglia Dep.”) [Doc. No. 44-7], 29. Visceglia, a six-

year veteran of the GPD, was not in the Park, but rather was nearby in a marked K-9 police car.

Id. The call did not identify the subject by name or race. Id. at 30. Instead, Eliasen instructed

Visceglia that there was “a subject in the park. He’s in the area of the playground. Just pull in

through the main entrance.” Id. With the gate closed, Officer Visceglia drove over the curb to

get closer to the playground. Id. at 31. He drove to a spot between 75 and 100 feet from the

individual, parked, and used his spotlight to illuminate the area. Id. at 31, 33, 56.

Officer Visceglia saw the individual and exited his vehicle with K-9 Charlie. He then

saw and heard Sergeant Eliasen addressing the suspect. Id. at 33. Sergeant Eliasen directed the

individual to get on the ground numerous times. Id. at 154. As Visceglia and Charlie started

closing in, the suspect got up and took a couple steps back. Id. at 60. The suspect engaged in

“passive resistance” and pulled his arms away from Sergeant Eliasen. Id. at 59. The suspect also

did not comply with Eliasen’s command to get on the ground. Id. at 61. As a result, Officer

Visceglia gave loud commands. He also warned that if the suspect did not stop resisting arrest,

K-9 Charlie would bite him. Id. at 59. Officer Eliasen, still on top of the suspect, sprayed OC

Spray in order to gain control and put the suspect in handcuffs. Id. at 162.

The suspect was then arrested. Visceglia heard him say at least five times that he could

not breathe. Id. at 161. None of these statements were made prior to Eliasen’s use of OC Spray.

As Officer Eliasen took the suspect to Visceglia’s squad car, he asked whether he was being

recorded on a body worn camera. Id. at 163. After Eliasen said he was, the suspect “threw

himself into the police vehicle.” Id. at 162. Visceglia then came back around the car to assist

Eliasen in helping the suspect stand upright and ordering him to stop. Id. Again, the suspect

threw his head into the vehicle. Id. at 163.

4. Aftermath and Procedural History

As a result of this incident, Plaintiff was charged with resisting arrest, obstruction of

administration of law, criminal mischief, and trespassing in a park after dark. All charges against

Plaintiff were dismissed on July 28, 2016. Pl.’s Am. Compl. at ¶ 42.

Plaintiff filed a complaint on April 4, 2017 against Defendant Eliasen, the Borough of

Glassboro, and various unknown persons. He subsequently amended his complaint on January

27, 2018, naming as Defendants Eliasen, Viscenglia, the Borough of Glassboro, Robert Highly,

and Alex Fanfarillo. Pl.’s Am. Compl. In his Amended Complaint, Plaintiff brings six claims:

malicious prosecution (Count I); false arrest (Count II); false imprisonment (Count III);

excessive force and assault (Count IV); failure to supervise, train, adopt needed policy (Count

V); and failure to intervene (Count VI). While the Amended Complaint does not cite specific

statutes for each Count, the Court notes that all of these Counts include analogous federal claims.

Defendants then filed a motion for judgment on the pleadings. See Def. Motion for

Judgment on the Pleadings (“Defs. First Motion”) [Doc. No. 27]. There, Defendants argued that

the Court should dismiss “all of Plaintiff’s state law claims in the Amended Complaint for failure

to satisfy the notice requirements under New Jersey Tort Claims Act.” Id. at 2. The Court

granted this motion in part. Teel v. Eliasen, 2018 U.S. Dist. LEXIS 183853, at *4-5, 2018 WL

5307806 (D.N.J. Oct. 26, 2018). Specifically, the Court’s Order dismissed the “state claims

within Counts 1, 2, 3, 4, and 5.” Oct. 26, 2018 Order [Doc. No. 43] (emphasis added). Because

Plaintiff’s First Motion only focused on the state law claims within Plaintiff’s Amended

Complaint, the Court’s October 26, 2018 Order did not dismiss any federal claims asserted.2

Defendants filed the instant motion for summary judgment “dismissing the remaining

count (Count 6) of Plaintiff Kameron Teel’s Amended Complaint.” Defs. Motion for Summary

Judgment (“Defs. MSJ”) [Doc. No. 44]. While all of Plaintiff’s federal claims remain,

Defendants’ Motion for Summary Judgment does not provide any arguments on the other federal

claims subsumed within Counts I through V. The Court therefore considers the Motion for

Summary Judgment, as the Defendants submit, and focuses only on Count VI, failure to

intervene.

II. LEGAL STANDARD

2 Defendants mistakenly think the First Motion challenged Plaintiff’s federal claim. The Court’s

Order clearly only dismissed state claims within the first five counts. Furthermore, in the papers

currently before the Court, Defendants mistakenly assert, “There is only one remaining claim in

Plaintiff’s Amended Complaint – Count 6 – for alleged Failure to Intervene. . .” Def. Reply Br.

[Doc. No. 56] at 1. This is simply incorrect. Defendants seem to misconstrue their previous

motion and ignore the fact that they specifically asked the Court to consider only the state law

claims within the Amended Complaint. As such, the Motion for Summary Judgment at issue

only focuses on one of the six remaining Counts and therefore improperly asks the Court to

dismiss the entire case. Put simply, Defendants have a duty to read and consider the motions

they submit and certify to the Court. See Fed. R. Civ. P. 11.

Summary judgment is appropriate if “there is no genuine dispute as to any material fact”

and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is

“material” if it will “affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if a “reasonable jury

could return a verdict for the nonmoving party.” Id. The movant bears the burden of showing

the absence of a “genuine issue of material fact.” Aman v. Cort Furniture Rental Corp., 85 F.3d

1074, 1080 (3d Cir. 1996). The party may satisfy its burden by “produc[ing] evidence showing

the absence of a genuine issue of material fact” or “by ‘showing’—that is, pointing out to the

district court—that there is an absence of evidence to support the nonmoving party’s case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If the movant makes this showing, the nonmovant must “do more than simply show that

there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmovant must “point to concrete

evidence in the record that supports each and every essential element of his case.” Orsatti v.

New Jersey State Police, 71 F.3d 480, 484 (3d Cir. 1995). “When opposing summary judgment,

the nonmovant may not rest upon mere allegations, but rather must ‘identify those facts of record

which would contradict the facts identified by the movant.’” Corliss v. Varner, 247 Fed. App’x.

353, 354 (3d Cir. 2007) (citation omitted). The Court’s role is not to weigh the evidence and

decide the truth, but to determine if there is a genuine issue for trial. Anderson, 477 U.S. at 249.

In making that decision, “[a]ll facts and inferences are construed in the light most favorable to

the nonmoving party,” Boyle v. Cnty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998), and

credibility determinations are for the fact finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc.,

974 F.2d 1358, 1363 (3d Cir. 1992).

III. DISCUSSION

Defendants present several arguments to support their motion. They argue that

Defendants are entitled to summary judgment based upon qualified immunity. They also state

that the record shows no dispute of material fact as to whether Defendants used excessive force.

Finally, they produce an expert report to further argue that Defendants acted reasonably in

arresting Plaintiff. Plaintiff, however, argues that the Officers failed to intervene in the use of

excessive force. Specifically, Plaintiff claims the Officers choked him and slammed his head

into the squad car. The Court considers these arguments in turn.

1. Qualified Immunity

The doctrine of qualified immunity shields government officers from civil liability under

Section 1983 “so long as their conduct ‘does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, 136

S. Ct. 305, 308 (2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009) ). The analysis

has two steps, which courts may decide in either order. See Giles v. Kearney, 571 F.3d 318, 325

(3d Cir. 2009) (citing Pearson, 555 U.S. at 232). At the first step, courts “decide whether the

facts ... make out a violation of a constitutional right.” Pearson, 555 U.S. at 232. At the second

step, courts “decide whether the right at issue was ‘clearly established’ at the time of [the]

defendant’s alleged misconduct.” Id. If the answer to either question is “no,” immunity shields

a defendant. Pitman v. Ottehberg, No. 10-cv-2538, 2015 WL 6445872, at *6 (D.N.J. Oct. 23,

2015) (citations omitted).

At summary judgment, qualified immunity is a question of law but is precluded by

genuine disputes of material fact. See Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002). Here,

Sergeant Eliasen and Officer Visceglia are not entitled to summary because there is a question of

material fact as to whether a constitutional violation occurred on Count VI. The constitutional

violation at issue is the failure to intervene in the use of excessive force.

2. Failure to Intervene

A failure to intervene claim is cognizable when an officer “fails or refuses to intervene

when a constitutional violation ... takes place in his presence.” Smith v. Mensinger, 293 F.3d

641, 650 (3d Cir. 2002). Plaintiff focuses on the constitutional violation of excessive force in his

Amended Complaint. Specifically, Plaintiff alleges that each Defendant “had a duty to intervene

to prevent the use of excessive force by a fellow officer, each Defendant had a reasonable

opportunity to intervene, and each Defendant failed to intervene.” Pl. Am. Compl. at ⁋ 86. The

Court must therefore consider whether there is a question of material fact as to whether Sergeant

Eliasen and Officer Visceglia used excessive force against Plaintiff.

Excessive force claims are analyzed under the Fourth Amendment’s objective

“reasonableness” standard. See Graham v. Connor, 490 U.S. 386, 395 (1989). Although

reasonableness is often a factual question, summary judgment is appropriate “if the district court

concludes, after resolving all factual disputes in favor of the plaintiff, that the officer’s use of

force was objectively reasonable under the circumstances.” Kopec v. Tate, 361 F.3d 772, 777

(3d Cir. 2004) (citation omitted). In making that determination, courts consider the totality of the

circumstances, judged “from the perspective of the officer at the time of the incident and not

with the benefit of hindsight.” Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015). The

calculus must allow “for the fact that police officers are often forced to make split-second

judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the

amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396–97.

In assessing the totality of the circumstances, courts may consider “all of the relevant

facts and circumstances leading up to the time that the officers allegedly used excessive force,”

not just the facts and circumstances at the “precise moment that excessive force is applied.”

Rivas v. City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004). Under Graham, relevant factors

include “the severity of the crime at issue, whether the suspect poses an immediate threat to the

safety of the officer or others, and whether he is actively resisting arrest or attempting to evade

arrest by flight.” Graham, 490 U.S. at 396. Other relevant considerations include “the

possibility that the persons subject to the police action are themselves violent or dangerous, the

duration of the action, whether the action takes place in the context of effecting an arrest, the

possibility that the suspect may be armed, and the number of persons with whom the police

officers must contend at one time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997). Courts

may also consider whether the “physical force applied was of such an extent as to lead to injury.”

Id.

Here, Plaintiff argues that Sergeant Eliasen and Officer Visceglia used excessive force in

choking him and slamming his head against the hood of the police vehicle. The Court finds

factual disputes in both instances. Plaintiff first claims he was choked by Defendant Eliasen.

Teel Dep. at 84. This use of force query focuses on Sergeant Eliasen’s actions while on top of

Plaintiff. Plaintiff also states that he “came over and flipped me towards my back, put his knee

on my chest, and hands toward my throat.” Id. at 83. Sergeant Eliasen, however, denies this

characterization, and instead swears that he did not choke Plaintiff. He also states that choking a

suspect is “never” appropriate. See Eliasen Dep. at 70. Still, Sergeant Eliasen admits that he put

his hands near “the base of his neck by his chest to gain some type of control . . .” Id. Taken

collectively, the testimony of the Officers and Plaintiff clearly shows a dispute of material fact.

Plaintiff next claims that Defendants used excessive force in slamming his head into the

police vehicle. Pl. Opp’n Br. at 9. Plaintiff states that Defendants pushed him into the squad car.

Specifically, he testified that one of the Officers “slammed [him] down on the hood of the

vehicle” and again before putting him in the back seat. Id. at 120. He then suffered a

concussion. Id. at 114. Defendants, however, argue that Plaintiff willfully threw himself onto

the police vehicle (Def. Br. at 10), and only after asking if the body worn cameras were on. This

conflicting testimony clearly shows a fact dispute on the issue of excessive force.

Finally, the Court rejects Defendants’ argument that the Body Worn Camera shows no

question of material fact as to whether the use of force was reasonable. Body Worn Cameras,

much like other evidence presented to a court, may only defeat a Plaintiff’s version of events if

the video “blatantly contradicts” Plaintiff’s version of events. See Scott v. Harris, 550 U.S. 372,

378 (2007) (holding that if “opposing parties tell two different stories, one of which is blatantly

contradicted” or “so utterly discredited” by the record, a court should not adopt the fiction at

summary judgment). The video at issue, however, while clear in some instances, does not

“blatantly contradict” Plaintiff’s version of events that the use of force was excessive. Not only

is it unclear whether Sergeant Eliasen choked Plaintiff, but the video also does not clearly show

the degree of force he used when he sat on top of Plaintiff. In addition, the body worn camera

does not clarify the amount of force used when Plaintiff’s head hit the squad car. Because the

video is filmed at chest-level, the footage does not provide a clear view of either Officers’ lower

extremities. Relatedly, following the initial contact with the police car, Officer Visceglia’s body

worn camera is largely obstructed when he uses his hands to allegedly assist the Plaintiff. As

such, the Court is simply unable to determine whether a second contact occurred during this

obstructed moment. Again, a question of fact remains for the jury.

Finally, the Court rejects Defendants’ attempts to win on summary judgment by

producing an expert. As courts elsewhere have explained, the proper inquiry is not whether the

incident could have been handled differently, but rather whether the Defendants’ conduct

violated the Fourth Amendment. See Lane v. City of Camden, No. 11-cv-5584, 2015 WL

5603039, at *7 (D.N.J. Sept. 23, 2015) (stating that “a plaintiff cannot defeat summary judgment

‘by simply producing an expert’s report that an officer’s conduct leading up to a deadly

confrontation was imprudent, inappropriate, or even reckless’” and that “a jury does not

automatically get to second-guess these life and death decisions, even though the plaintiff has an

expert and a plausible claim that the situation could better have been handled differently”

(citation omitted)); McDougald v. Franklin Twp., No. 12-cv-3423, 2014 WL 1744772, at *5

(D.N.J. Apr. 30, 2014) (declining to “second-guess whether alternative actions by police officers

‘might conceivably have been available’” to avoid a shooting (citation omitted)). This too is a

question for the jury to consider.

IV. CONCLUSION

For the reasons articulated above, Defendants’ Motion for Summary Judgment as to

Count VI is DENIED.

Dated: 7/9/2019 s/ Robert B. Kugler

ROBERT B. KUGLER

United Stated District Judge