Echols v. Knoth

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

PAUL ECHOLS,

Plaintiff,

vs. 1:20-CV-00519

(MAD/CFH)

ROBERT KNOTH,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

SUSSMAN & ASSOCIATES MICHAEL H. SUSSMAN, ESQ.

1 Railroad Avenue, Suite 3 JONATHAN R. GOLDMAN, ESQ.

P.O. Box 1005

Goshen, New York 10924

Attorneys for Plaintiff

JOHNSON LAWS, LLC COREY A RUGGIERO, ESQ.

646 Plank Road, Suite 205 GREGG T. JOHNSON, ESQ.

Clifton Park, New York 12065

Attorneys for Defendant

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Paul Echols commenced this action on May 7, 2020, asserting a single cause of

action for excessive force in violation of the Fourth Amendment against Defendant Robert Knoth.

See Dkt. No. 1. Currently before the Court is Defendant's motion for summary judgment. See

Dkt. No. 34. For the reasons that follow, Defendant's motion is denied.

II. BACKGROUND

On the night of September 8, 2018, Plaintiff traveled to New Paltz, New York, to hang out

with friends. See Dkt. No. 46-1 at ¶ 1. Plaintiff and his friends arrived at P&G Restaurant & Bar

("P&G's") in New Paltz at approximately 11:30 p.m. See id. at ¶¶ 3-4. Plaintiff had already

consumed some beer before he departed for New Paltz, and consumed three additional beers at

P&G's. See id. at ¶¶ 2, 5, 8. After the third beer, Plaintiff stepped outside of P&G's and observed

four-to-five uniformed New Paltz police officers standing across the street. See id. at ¶ 9.

Plaintiff then approached two women who were also standing outside P&G's, "flirted" with them,

and "grabbed one of the two women around the waist." Id. at ¶¶ 10-11. During his interaction

with the two women, a nonparty named Nick Rosario approached Plaintiff from behind and

punched Plaintiff "square in the mouth area." Dkt. No. 34-2 at 23-24. Plaintiff stepped back from

"the force of the punch" but could not recall whether he was bleeding from his mouth or whether

he had blood on his clothing immediately after Rosario struck him. Id. at 26; see also Dkt. No.

46-1 at ¶ 21.

After Rosario struck Plaintiff, Kelly Sherman—one of Plaintiff's friends—immediately

struck Rosario in the left cheek causing Rosario to fall straight down, unconscious. See Dkt. No.

46-1 at ¶¶ 22-23. Plaintiff then observed that the four police officers had approached on foot

from across the street. See id. at ¶ 24. The officers walked past Plaintiff to arrest Sherman. See

id. at ¶ 25. While Sherman was arrested, Plaintiff stood within "two arms reach" of the officers

and attempted to explain to one of them that Rosario had assaulted him, and that Sherman had

only been sticking up for him. Id. at ¶¶ 27-28. Plaintiff was "frustrated and overwhelmed at the

time" and, upon being informed by a police officer that his mouth was bleeding, Plaintiff

exclaimed "look at my fucking mouth, look at my mouth." Id. at ¶¶ 29-30.

In response to this statement, one of the male police officers instructed Plaintiff to "back

the fuck up" while attempting to push Plaintiff back with one of his hands. See id. at ¶ 31. Upon

being pushed, Plaintiff "swatted downwards," coming into contact with the officer's arm, while

saying "don't touch me." Id. at ¶ 32. The officer then informed Plaintiff that he was being placed

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under arrest, handcuffed him, and two officers began to walk him to a patrol vehicle parked less

than fifty yards away. See id. at ¶ 34. Defendant—one of the police officers at the scene—was

on Plaintiff's right side as he was being walked over to the patrol vehicle, while the other officer

was on Plaintiff's left side. See id. at ¶ 39. When they reached the vehicle, the officer on

Plaintiff's left side released Plaintiff's arm and unlocked the rear driver's side door so that Plaintiff

could be placed in the vehicle. See id. at ¶ 40.

The parties' versions of the events begins to diverge at this point. Defendant asserts that

he used his right hand on Plaintiff's left arm and attempted to put Plaintiff into the vehicle, while

Plaintiff asserts that he voluntarily sat down in the vehicle without assistance. See id. at ¶ 44. In

either event, Plaintiff then called Defendant a "fat, racist bitch." See id. at ¶ 47. Defendant then

asserts that contact between Defendant's body and Plaintiff's left side caused Plaintiff to be

pushed over onto his right side, with Defendant on top of him and Defendant's right arm trapped

underneath Plaintiff. See id. at ¶¶ 49-50. Defendant then claims that Plaintiff spit blood into

Defendant's face and mouth area, whereupon Defendant struck Plaintiff three or four times in

rapid succession. See id. at ¶¶ 54-56. In contrast, Plaintiff asserts that, after he insulted

Defendant, Defendant jumped on him, pushed him down, and proceeded to repeatedly strike

Plaintiff in the mouth. See id. at ¶ 54. Plaintiff asserts that he only spit blood into Defendant's

face after Defendant struck him. See id.

The parties agree that the altercation ended with "blood everywhere in the car" and

Plaintiff saying, "How's that blood taste? How's that blood taste?" to Defendant after Defendant

had exited the vehicle. See id. at ¶¶ 71, 73. Plaintiff was subsequently taken to Kingston

Hospital, where he was told he had a broken jaw that required surgery. See id. at ¶ 42.1 Plaintiff

1 This citation is to Plaintiff's Counterstatement of Facts.

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was charged with (1) one count of resisting arrest, a Class A misdemeanor, see N.Y. Penal Law §

205.30; (2) one count of obstructing governmental administration in the second degree, a Class A

misdemeanor, see id. § 195.05; (3) one count of disorderly conduct, a violation, see id. §

240.20(1); and (4) two counts of harassment in the second degree, a violation, see id. § 240.26(3).

Plaintiff was ultimately convicted of one count of disorderly conduct and one count of harassment

in the second degree. See Dkt. No. 46-1 at ¶ 86.

Defendant now moves for summary judgment, arguing that Plaintiff's excessive force

claim must be dismissed because (1) Plaintiff is collaterally estopped from attempting to relitigate

certain facts that were previously determined as part of his criminal conviction for harassment in

the second degree; (2) the undisputed record establishes that Defendant used appropriate force

and caused only de minimis injuries to Plaintiff; and (3) Defendant is entitled to qualified

immunity. See Dkt. No. 34-38. Plaintiff opposes the motion. See Dkt. No. 46.

III. DISCUSSION

A. Standard of Review

A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue

warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43

F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the

court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at

36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a

motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the

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court is required to resolve all ambiguities and draw all reasonable inferences in favor of the

nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986)) (other citations omitted). "'Assessments of credibility and choices between

conflicting versions of the events are matters for the jury, not for the court on summary

judgment.'" Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005) (quotation

omitted). "However, '[t]he mere existence of a scintilla of evidence in support of the plaintiff's

position will be insufficient; there must be evidence on which the jury could reasonably find for

the plaintiff.'" Id. (quoting Anderson, 477 U.S. at 252). "To defeat summary judgment, therefore,

nonmoving parties 'must do more than simply show that there is some metaphysical doubt as to

the material facts,' ... and they 'may not rely on conclusory allegations or unsubstantiated

speculation.'" Id. (quotations omitted).

B. Plaintiff's Criminal Conviction and Collateral Estoppel

Defendant argues that "Plaintiff is collaterally estopped from denying that he spat blood

into the face and mouth of [Defendant] prior to any use of force upon him by [Defendant]"

because that finding was material and essential to Plaintiff's criminal conviction for harassment.

Dkt. No. 34-38 at 14-19. In opposition, Plaintiff argues that collateral estoppel does not apply

here because "the issue of the timing and sequence of events was neither material to nor actually

litigated or decided in the criminal proceeding." Dkt. No. 46 at 13.

"Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must apply New

York collateral estoppel law to New York state court judgments." Zappin v. NYP Holdings Inc.,

769 Fed. Appx. 5, 10 (2d Cir. 2019) (citing Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d

77, 93 (2d Cir. 2005)). Under New York law, collateral estoppel bars relitigation of a legal or

factual issue that was previously decided where:

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"(1) the issues in both proceedings are identical, (2) the issue in the

prior proceeding was actually litigated and actually decided, (3)

there was [a] full and fair opportunity to litigate in the prior

proceeding, and (4) the issue previously litigated was necessary to

support a valid and final judgment on the merits."

Washington v. N.Y. City Dep't of Educ., 740 Fed. Appx. 730, 732 (2d Cir. 2018) (quoting Grieve

v. Tamerin, 269 F.3d 149, 153 (2d Cir. 2001)). "Use of collateral estoppel 'must be confined to

situations where the matter raised in the second suit is identical in all respects with that decided in

the first proceeding and where the controlling facts and applicable legal rules remain unchanged.'"

Faulkner v. Nat'l Geographic Enters., Inc., 409 F.3d 26, 37 (2d Cir. 2005) (quoting Comm'r v.

Sunnen, 333 U.S. 591, 599-600 (1948)). Application of the doctrine of collateral estoppel "is

discretionary" and "depends upon 'general notions of fairness involving a practical inquiry into

the realities of the litigation.'" Russo v. Irwin, 49 A.D.3d 1039, 1041 (3d Dep't 2008) (quoting

Jeffreys v. Griffin, 1 N.Y.3d 34, 41 (2003)).

"For a question to have been actually litigated ... , it must have been properly raised by the

pleadings or otherwise placed in issue and actually determined in the prior proceeding."

Stegemann v. Rensselaer County Sheriff's Off., No. 20-3316-CV, 2021 WL 5492966, *4 (2d Cir.

Nov. 23, 2021) (quoting Halyalkar v. Bd. of Regents of State of N.Y., 72 N.Y.2d 261, 268 (1988)).

"An issue is 'necessary or essential only when the final outcome hinges on it.'" Bifolck v. Philip

Morris USA Inc., 936 F.3d 74, 82 (2d Cir. 2019) (quoting Bobby v. Bies, 556 U.S. 825, 835

(2009)) (emphasis omitted). "This requirement 'protect[s] against unfairness[ ] by ensuring that

the issue [was] really disputed and that the loser ... put out his best efforts.'" Id. (quoting S.E.C. v.

Monarch Funding Corp., 192 F.3d 295, 307 (2d Cir. 1999)); see also United States v. Hussein,

178 F.3d 125, 129 (2d Cir. 1999) (holding that when parties have issues unnecessary to a

judgment, parties may have "limited incentive to litigate [it] fully," and the issue may have been

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"less likely to receive close judicial attention") (citation omitted).

The order of the events that unfolded in the back of the police vehicle—i.e., whether

Plaintiff spit on Defendant before or after Defendant repeatedly struck Plaintiff—was never

actually decided during Plaintiff's criminal trial and was, in any event, unnecessary to support a

valid and final judgment on the merits. A person is guilty of harassment in the second degree

"when, with intent to harass, annoy or alarm another person: He or she engages in a course of

conduct or repeatedly commits acts which alarm or seriously annoy such other person and which

serve no legitimate purpose." N.Y. Penal Law § 240.26(3). Here, the criminal court summarily

concluded that Plaintiff was guilty of harassment without elaborating, at all, on the arguments it

credited or the facts it relied on when it made that determination. See Dkt. No. 34-4 at 686.

Despite that, Defendant argues that the criminal court could only have concluded that

Plaintiff was guilty by "rejecting Plaintiff's 'self-defense' theory based upon his false sequence of

events," and that this Court must therefore do the same. Dkt. No. 48-2 at 9. Although the Court

agrees with Defendant that "the issue of whether Plaintiff intentionally spat blood into

Defendant's face and mouth without justification" was essential to Plaintiff's criminal conviction

for harassment, id. (emphasis added), the criminal court could have validly found that Plaintiff

"intentionally" spat in Defendant's face after he hit Plaintiff, and still concluded that Plaintiff was

guilty of harassment. The mere fact that Defendant testified as to his version of events before the

guilty verdict was rendered does not, contrary to Defendant's arguments, "clearly establish[]" or

"confirm" that his version of events is true. Id. at 7.2

2 Defendant appears to argue that all findings of fact related to a conviction must be taken

as true in subsequent civil actions. See Dkt. No. 46-2 at 9 (citing Johnson v. Mauro, No. 5:16-

CV-00622, 2019 WL 2336070, *4 (N.D.N.Y. June 3, 2019) ("Under New York law, 'a judgment

of conviction is conclusive proof of the underlying facts in a subsequent civil action'")) (quotation

omitted). However, Defendant (1) has not established that the criminal court ever made a finding

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Accordingly, the Court declines to apply collateral estoppel under the circumstances of

this case.

C. Excessive Force

Defendant argues that the "undisputed record evidence before this Court makes it

abundantly clear that" Defendant used a "hard hand technique to free his right arm and prevent a

second blood and saliva-spitting attack upon him by Plaintiff, and facilitate his extrication from

the vehicle." Dkt. No. 34-38 at 21-23. Under those "undisputed" facts, Defendant asserts that

Plaintiff's excessive force claim must be dismissed because "it is clear that his measured use [of]

physical force was reasonable as a matter of law." Id. at 24. Defendant also argues that "the

record evidence before this Court clearly establishes that Plaintiff's only claimed physical

injury—an alleged broken jaw—is solely attributable to Plaintiff being struck by Rosario" and,

therefore, "any such injury claimed to be the product of Knoth's use of force upon him is

nonexistent (or, at the very least, de minimis in nature) and, hence, unactionable." Id. at 30. In

opposition, Plaintiff argues that Defendant is relying "upon his own version of the facts, which a

jury is not required to credit" and, "viewing the evidence in the light most favorably to [Plaintiff],

a reasonable jury could find that [Defendant] punched [Plaintiff] in the face without provocation

and for no legitimate purpose and, thus, his use of force was objectively unreasonable." Dkt. No.

46 at 14-15.

Claims that police officers used excessive force during an arrest are analyzed under the

Fourth Amendment's reasonableness standard. See Cugini v. City of New York, 941 F.3d 604, 612

(2d Cir. 2019) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). In order to establish a

with respect to the order of events, and (2) misapprehends Johnson, which still required that the

"underlying facts" were "actually litigated and necessarily decided" before being awarded

preclusive effect. See Johnson, 2019 WL 2336070, at *4.

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Fourth Amendment excessive force claim, an individual must demonstrate that the actions of the

arresting police officer were objectively unreasonable in light of the surrounding circumstances.

See Owens v. Colburn, 860 F. Supp. 966, 972 (N.D.N.Y. 1994) (citing Graham, 490 U.S. at 397).

"The test of 'reasonableness' is not capable of precise definition or mechanical application;

therefore, careful attention must be paid to the facts and circumstances of the case." Id. (citation

omitted).

The court's application of the reasonableness standard is guided by (1) the nature and

severity of the crime precipitating the arrest, (2) whether the suspect posed an immediate threat to

the safety of the officer or others, and (3) whether the suspect was actively resisting arrest or

attempting to flee. See Brown v. City of New York, 798 F.3d 94, 100 (2d Cir. 2015) (citing

Graham, 490 U.S. at 396). As to the third factor, "[t]he fact that a person whom a police officer

attempts to arrest resists, threatens, or assaults the officer no doubt justifies the officer's use of

some degree of force, but it does not give the officer license to use force without limit. The force

used by the officer must be reasonably related to the nature of the resistance and the force used,

threatened, or reasonably perceived to be threatened, against the officer." Sullivan v. Gagnier,

225 F.3d 161, 165-66 (2d Cir. 2000) (emphasis in original).

Moreover, to support an excessive force claim, the plaintiff must establish that the

defendant used more than de minimis force. See Feliciano v. Thomann, 747 Fed. Appx. 885, 887

(2d Cir. 2019). Even conduct that caused some physical pain and resulted in side effects need not

be compensated if a jury finds that such injuries were de minimis. See Kerman v. City of New

York, 374 F.3d 93, 123 (2d Cir. 2004). Nevertheless, while "not every push or shove constitutes

excessive force," Lennon v. Miller, 66 F.3d 416, 426 (2d Cir. 1995) (citing Graham, 490 U.S. at

396), a show of force by an officer that is overly disproportionate to the risk of harm may support

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a claim for excessive force. See Gersbacher v. City of New York, No. 1:14-CV-7600, 2017 WL

4402538, *11 (S.D.N.Y. Oct. 2, 2017) (denying the defendant police officers' motion for

summary judgment on the plaintiff's excessive force claim where evidence showed that the

plaintiff verbally opposed the arrest, but did not attempt to flee or attack the arresting officer,

calling into question whether the force used by the arresting officer, which caused relatively

minor injuries, was excessive). The "reasonableness of a particular use of force must be judged

from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight." Brown, 798 F.3d at 100-01.

After considering the record as a whole, the Court concludes that there are genuine issues

of material fact that preclude a finding that Defendant's use of force was reasonable as a matter of

law or that Plaintiff's injuries were de minimis. These issues of fact include whether (1)

Defendant's arm was trapped under Plaintiff in the back of the vehicle or Defendant jumped on

Plaintiff after Plaintiff insulted him; (2) Plaintiff spit in Defendant's face before or after Defendant

struck him; and (3) Plaintiff's injuries were caused by Rosario's initial punch or Defendant's

subsequent ones. Contrary to Defendant's characterization of the evidence, there is support in the

record for Plaintiff's version of events and, if a jury were to credit Plaintiff's evidence, they could

reasonably find that Defendant's use of force qualifies as excessive and that the injuries caused by

Defendant were more than de minimis.

Accordingly, Defendant's motion for summary judgment on Plaintiff's excessive force

claim as a matter of law is denied.

D. Qualified Immunity

Defendant argues that, "[e]ven if this Court were to determine that a constitutional right

had been violated by [Defendant] by his use of force ... such right was not clearly established" at

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the time of Defendant's conduct. Dkt. No. 34-38 at 28. In making this argument, Defendant

relies on his prior assertion that it is undisputed that he struck Plaintiff to facilitate his extrication

from the vehicle and prevent a second spitting attack by Plaintiff. See id. In opposition, Plaintiff

argues that Defendant's analysis is "premised on disputed facts" and his request for summary

judgment should be denied. Dkt. No. 46 at 21.

Qualified immunity is an affirmative defense and, as such, Defendants bear the burden of

proving that the privilege of qualified immunity applies. See Coollick v. Hughes, 699 F.3d 211,

219 (2d Cir. 2012). "Under the doctrine of qualified immunity, 'government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.'" Tracy v. Freshwater, 623 F.3d 90, 95-96 (2d Cir. 2010)

(quoting Kelsey v. County of Schoharie, 567 F.3d 54, 60-61 (2d Cir. 2009)). The Court is mindful

that qualified immunity is "'an entitlement not to stand trial or face the other burdens of

litigation,'" and that this privilege is '"effectively lost if a case is erroneously permitted to go to

trial.'" Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526

(1985)).

Courts engage in a two-part inquiry to determine whether the doctrine of qualified

immunity bars a suit against government officials. See Jones v. Parmley, 465 F.3d 46, 55 (2d Cir.

2006). First, a court must consider whether the facts, construed in favor of the party asserting the

injury, "demonstrate a violation of a constitutional right." Id. (citing Saucier v. Katz, 533 U.S.

194, 201 (2001)). Second, a court must also determine "whether the officials' actions violated

'clearly established statutory or constitutional rights of which a reasonable person would have

known.'" Id. (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). Courts may exercise their

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discretion in deciding which prong should be considered first. See Pearson v. Callahan, 555 U.S.

223, 243 (2009).

"It is well established that qualified immunity may operate as a defense to excessive force

claims." Betts v. Rodriquez, No. 15-CV-3836, 2017 WL 2124443, *4 (S.D.N.Y. May 15, 2017).

"Even if the force is objectively unreasonable, an officer may still be eligible for qualified

immunity if it was objectively reasonable for the officer to believe that her action did not violate

clearly established law." Keene v. Schneider, 350 Fed. Appx. 595, 596 (2d Cir. 2009). "The

Supreme Court has made clear that officers who have used excessive force may be

entitled—under the qualified immunity doctrine—to an extra layer of protection 'from the

sometimes hazy border between excessive and acceptable force.'" De Michele v. City of New

York, No. 09-CV-9334, 2012 WL 4354763, *17 (S.D.N.Y. Sept. 24, 2012) (quoting Saucier, 533

U.S. at 206).

Because material factual disputes remain as to the circumstances surrounding the use of

force in this case, summary judgment on qualified immunity is inappropriate. See, e.g., Kerman

v. City of New York, 261 F.3d 229, 240 (2d Cir. 2001) (holding that "summary judgment on

qualified immunity grounds is not appropriate when there are facts in dispute that are material to a

determination of reasonableness") (citation omitted). Construing the facts in Plaintiff's favor,

Defendant jumped on and repeatedly struck Plaintiff in the face—while he was restrained in the

back of a police vehicle—in response to an insulting remark. It is well established law that "the

First Amendment protects a significant amount of verbal criticism and challenge directed at

police officers." City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987) ("'Speech is often

provocative and challenging.... [But it] is nevertheless protected against censorship or

punishment, unless shown likely to produce a clear and present danger of a serious substantive

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evil that rises far above public inconvenience, annoyance, or unrest'") (quotation omitted); see

also Kerman, 261 F.3d at 242 ("Speech directed at police officers will be protected unless it is

likely to produce a clear and present danger of a serious substantive evil that rises far above

public inconvenience, annoyance or unrest"); Hagedorn v. Cattani, 715 Fed. Appx. 499, 506 (6th

Cir. 2017) (holding that calling a police officer an "asshole" was protected speech and did not

constitute fighting words); Sawyer v. Asbury, 537 Fed. Appx. 283, 297 (4th Cir. 2013) (holding

that the "'mere use of foul language ... does not justify an objectively reasonable police officer

knocking [an arrestee] down, jumping on him, and breaking his nose'") (quotation omitted);

Jackson v. Tellado, 236 F. Supp. 3d 636, 667 (E.D.N.Y. 2017) (holding that "it is clearly

established that verbal objections to police actions do not warrant use of physical force")

(collecting cases). Of course, if the jury were to fully credit Defendant's version of events,

Defendant might be entitled to qualified immunity—but that determination cannot be made until

the jury has resolved the multiple issues of material fact that surround the use of force in this case.

Accordingly, Defendant's motion for summary judgment under the doctrine of qualified

immunity is denied.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that the Defendant's motion for summary judgment (Dkt. No. 34) is DENIED;

and the Court further

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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: July 6, 2022 J) GP}

ated: July 6, ff LA | ft

Alban New York 7 Ya ee

y> Mae A. D’ Agostino~”

U.S. District Judge

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