component--malice--it too has been supplanted by applying an objective reasonableness standard to an officer's conduct, a standard ratified post-Lester by the ultimate authority in Graham, 490 U.S. at 397 ("the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation").
In those terms it is clear that Frigo's excessive force claim is one that can be properly addressed only by a jury. Frigo says that Stevens clubbed him with a gun and then kicked him (Frigo Dep. 16-20, 77-78). Stevens categorically denies all such allegations. It is simply not possible to reconcile those contradictory accounts without making determinations as to the relative credibility of those witnesses, something that is impermissible for a judge ruling on a Rule 56 motion ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)).
Defendants' R. Mem. 6 advances the position that Frigo "makes no argument the totality of the circumstances would not have allowed him to be subdued with a gun to the head." But that variant again asks this Court to decide whether the officer's conduct was "objectively reasonable" in light of all the facts--by its very nature the type of determination that a judge is in no position to undertake on the current motion. This Court must credit Frigo's version for present purposes, and that includes accepting his statement that he was whacked just as he stepped out of the car. Once Frigo abandoned his flight and left the Thunderbird to give himself up, with no show of force on his part, it surely cannot be said as a matter of law that such a degree of officers' force (or perhaps any force at all) was reasonable (cf. Brownell v. Figel, 950 F.2d 1285, 1292 (7th Cir. 1991), holding that whether a suspect is trying to escape is a relevant factor in assessing whether the force used was excessive).
One final argument offered on Stevens' behalf concerns Frigo's lack of absolute certainty as to the identity of his alleged attacker. Although at one point Frigo says that he did not actually see the person who delivered the blow, there are a number of other places in his deposition testimony from which inferences can reasonably be drawn that Stevens was that culprit (see, e.g., Frigo Dep. 16-21 and 78). And as to the alleged kicking that ensued, Frigo not only identified Stevens as one of those involved (Frigo Dep. 19-20, 78), but in addition Stevens' unquestioned presence on the scene and his status as the officer in charge create a factual matrix for the potential application of cases such as Byrd v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972) and Rascon v. Hardiman, 803 F.2d 269, 276 (7th Cir. 1986)).
Defendants' Mem. 8-9 and R. Mem. 5 paint a misleading picture in urging that it was Frigo's lawyer and not Frigo himself who identified Stevens. Fairly read (indeed, even without the necessary inferences in Frigo's favor), Frigo's testimony is that Frigo described the claimed perpetrator to his lawyer, who in turn informed him that the description matched that of Stevens (Dep. 16, 17-18).
In sum, Frigo has proffered sufficient evidence from which it can reasonably be inferred that Stevens exercised an excessive degree of force in arresting Frigo. That issue must be left to a jury to resolve.
There is no genuine issue of material fact, and the respective defendants are entitled to a judgment as a matter of law, as to (1) all of Frigo's claims against Guerra and (2) Frigo's claim against Stevens stemming from an asserted lack of probable cause to have arrested Frigo. Consequently Guerra is dismissed as a defendant. But Stevens' motion must be and is denied as to Frigo's excessive force claim, on which this case will go to trial.
Milton I. Shadur
Senior United States District Judge
Date: July 12, 1994