Third Circuit Affirms Dismissal of Excessive Force Claim Because Plaintiff Cannot Identify Police Officer Who Kicked Him

Two police officers from the Riverdale Police Department and three troopers from the New Jersey State Police encountered Plaintiff Emil Jutrowski, who was heavily intoxicated, after he crashed his vehicle along the shoulder of a highway and sustained injury.  While the officers were escorting Jutrowski to an ambulance, he struck one of the troopers who was trying to steady him, so the officers brought him to the ground and tried to put him in handcuffs.  During the ensuing scuffle, one of the officers kicked Jutrowski on the right side of his face, breaking his nose and eye socket.  The issues in the published decision of Jutrowski v. Twp. of Riverdale, 2018 U.S. App. LEXIS 25806 (3d Cir. 2018), were: (1) whether Jutrowski could survive summary judgment on his excessive force claim when he could not identify which of the four officers named in the complaint had kicked him, and (2) whether Jutrowski could survive summary judgment on his civil conspiracy claim based on the officers’ alleged after-the-fact cover-up of the events giving rise to the case.  The District Court answered both questions in the negative and dismissed Jutrowski’s claims with prejudice.

On appeal, the Third Circuit agreed that the officers were entitled to summary judgment on Jutrowski’s excessive force claim.  Relying on the core principle of § 1983 litigation that a plaintiff resisting summary judgment must produce evidence supporting each individual defendant’s personal involvement in the alleged constitutional violation in order to bring that defendant to trial, the Court found that the record was insufficient for any reasonable jury to identify which, if any, of the officers had used excessive force.  Indeed, while Jutrowski had narrowed the potential universe of actors to those that were in his immediate vicinity, he admittedly sought to proceed to trial against at least three officers who were free of liability without ever ascertaining which officer was the perpetrator of the constitutional deprivation.  Like the District Court, the Third Circuit was thus unwilling to have a jury “guess” as to which officer had kicked Jutrowski.

However, the Third Circuit reversed the order granting the officers’ motion for summary judgment on Jutrowski’s after-the-fact civil conspiracy claim, which was not dependent on Jutrowski’s ability to identify the officer who had kicked him.  Jutrowski’s theory was that the officers had conspired with one another to cover up the use of force during the arrest and thus to deprive him of his constitutional right of access to the courts to be heard on his underlying excessive force claim.  The Court found that there were material omissions in contemporaneous police reports from which a jury could infer a conspiracy – namely, the fact that none of the reports mentioned that Jutrowski suffered significant injuries during the course of his arrest.  The Court also pointed to inconsistent accounts of the vantage point of one of the officer’s vehicles, the absence of that officer’s dashcam footage from the record when all of the other officers’ vehicles recorded the encounter, and the fact that several officers acknowledged having discussed the case with each other while they were writing their reports.  Further, the Court relied on Jutrowski’s expert report, which concluded that his injury most likely resulted from a kick or a punch and not from a face-first fall to the ground.  Thus, the Court remanded Jutrowski’s conspiracy claim for further proceedings.

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