Christian Nolan, The Connecticut Law Tribune
Claim police broke man's back during arrest will proceed
The U.S. Court of Appeals for the Second Circuit in New York has reinstated an excessive force lawsuit against Hartford police after a man's back was allegedly broken in two places during a 2009 arrest.
The appeals court's three-judge panel ruled that U.S. District Judge Vanessa Bryant in Hartford was wrong to dismiss David Rogoz's lawsuit.
Rogoz's lawyer, A. Paul Spinella of Spinella & Associates in Hartford, said Bryant's ruling to dismiss the case was "one of the most outrageous decisions I've ever seen." Spinella said it was rare for the 2nd Circuit to overturn a district court judge's ruling in an excessive force case.
On May 8, 2009, shortly after 11:00 a.m., Rogoz drove to Lawrence Street in Hartford, considered a hot spot for illegal drug activity, according to court documents, and bought $50 worth of heroin through his vehicle's window.
Rogoz next pulled to the curb on a nearby one-way street when a red Honda pulled up behind him. Rogoz noticed this and drove further up the road and again pulled over. Again the red Honda approached Rogoz, this time parking in front of him and a man exited the car.
Rogoz then backed up his car, and the man began running toward him. A car was coming so Rogoz drove onto the sidewalk to get away from the man and then got back onto the roadway, driving off at high speed.
Rogoz fled through the city of Hartford and onto Route 2. It finally became clear it was the police that were after him for the drug deal. Once he heard sirens and saw the flashing lights to pull over, he did so.
Rogoz was ordered to exit the vehicle with his hands up, which he did. He was next ordered to lay face down on the ground with his hands behind his back, which he did.
While Rogoz was lying face down with his hands behind his back, he claims Detective George Watson jumped onto his back, knees first. The impact fractured Rogoz's spine in two places and cracked a rib.
"These were pretty horrible injuries," said Spinella. "He has a severe spinal injury. He's living at home with his parents who help care for him. He's been severely handicapped as a result of this."
Rogoz was charged with possession of narcotics, reckless driving and disobeying an officer's signal to stop in order to escape. He pleaded guilty to the narcotics charge and was fined $300; the other two charges were dismissed.
Rogoz then later pursued the excessive force claim against the city of Hartford, the police chief and various officers, including Watson.
The city is defended by Nathalie Feola-Guerrieri, senior assistant corporation counsel in Hartford. William J. Melley III of Hartford represents the defendant officers, including Watson.
The city filed a motion for summary judgment that Bryant granted in 2013. Bryant rejected Rogoz's contention that Watson's use of force was unreasonable because Rogoz was unaware that the unidentified man was actually a police officer. The officer, however, claims he displayed his badge as he approached the vehicle before Rogoz sped off.
"Some degree of physical force is incident, and even necessary, to making an arrest, especially in situations where the suspect has previously refused to comply with the officers' orders," wrote Bryant. "Here, Rogoz had actively resisted Watson's attempt to apprehend him after he had purchased heroin. It was reasonable for Watson to employ some force against Rogoz after Rogoz's traffic stop given that Watson had witnessed first-hand Rogoz's earlier volatility in response to his attempt to stop Rogoz."
The circuit panel, in a decision by Judge Amalya Kearse, disagreed with Bryant's ruling to dismiss the lawsuit. She said Bryant should have applied the facts as the plaintiff alleged and it will be up to the officers to testify at trial about their version of events, including whether a badge was ever displayed to Rogoz before he fled.
"Viewed in that light, there was no resistance by Rogoz to the officers' orders, no history of crimes of violence, and no disobedience," wrote Kearse. "He was entirely compliant; he was already subdued."
Kearse also opined that the detective's behavior may be construed as excessive force by a jury.
"No officer in 2009 could reasonably have believed it permissible under the Fourth Amendment to jump on the back of a prone and compliant suspect gratuitously, with sufficient force to break his spine and rib," wrote Kearse.
Despite the decision, the circuit upheld Bryant's decision with regard to all of the named defendants besides Watson. The trial will simply be Rogoz against Watson on the claim of excessive force.
Feola-Guerrieri, who represents the city of Hartford, said so far all the court really has before it is Rogoz's version of events.
"The city is confident at a jury trial the plaintiff's story will not likely be supported by the evidence or believed," said Feola-Guerrieri. "Obviously we're not happy we have to go to trial, but based on these facts we'll be in good shape."
Feola-Guerrieri said Watson was justified in using force to apprehend Rogoz, even if the plaintiff's version of events is true because he knowingly fled from police. Feola-Guerrieri said the defense also intends to make the plaintiff prove that his back was injured as a result of this incident.
"If he did have a broken back it must've happened at a different time," Feola-Guerrieri said.
Christian Nolan can be contacted at Cnolan@alm.com.
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