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Hermiz v. Budzynowski

United States District Court, E.D. Michigan, Southern Division

June 13, 2017



          DAVID M. LAWSON United States District Judge

         Saint Patrick's Day 2016 did not bestow the Luck o' the Irish on plaintiff Travis Hermiz. While interceding on behalf of a woman in an argument with her male companion at Royal Oak, Michigan's Blackfinn's Pub, Hermiz threw a punch and was escorted from the bar by the establishment, into the hands of Royal Oak city police officers. In the course of effectuating the arrest, the police horse-collar tackled Hermiz, threw him to the ground, and Tased him eight times, at one point with officers deploying two separate Tasers against him simultaneously while he was on the ground. A police car dash camera and bystander videos captured segments of the event. Hermiz alleges that the force was applied during the arrest when he was cooperating and not offering any resistance, and therefore it was excessive and violated his rights under the Fourth Amendment. The police officers say that Hermiz was actively resisting, their actions were justified, and they are entitled to qualified immunity. The defendants all have moved for summary judgment. The conflicting testimony and other evidence, which is not resolved by video evidence from three separate sources, requires resolution by a jury. The motion for summary judgment will be denied.


         The defendant police officers - Sergeant David Budzynowski, Officer Kyle Knauss, Officer James Wern, and Officer Kristen Robinson - responded to a complaint of “multiple fights” at Blackfinn's Pub in downtown Royal Oak on the evening of March 17, 2016. They entered the bar, which was packed with 200 to 300 patrons, some of whom were engaged in a general melee. According to the defendants, several of those present identified Hermiz as the person who had started the fight. Bouncers employed by the bar restrained the plaintiff and immediately handed him over to the police. The officers then took Hermiz outside to the sidewalk, where a crowd of people from the bar and passers by had gathered. Those facts are mostly undisputed, although Hermiz contends that police mistook him for another person - “Steewart” - who actually started the fight.

         Once out on the sidewalk, the defendants assert that Hermiz resisted their efforts to handcuff him for about 25 seconds. That part of the encounter, they say, is not plainly depicted by the video record from the the police cruiser dash camera, because the view of the parties was blocked partially by the sidewalk crowd. After those first 25 seconds, the rest of the struggle on the sidewalk was captured by two bystanders who recorded the event using their cell phones. Those videos also are part of the record. The plaintiff focuses his claims on the force used by officers during the several minutes that were recorded in those videos. He maintains that he was cooperative throughout and did not resist.

         As noted, the parties' accounts of the struggle differ. Starting with the testimony, the competing versions are outlined below.

         A. Plaintiff

         Hermiz testified that he went out with friends for Saint Patrick's Day and, around 5:00 p.m., wound up at Blackfinn's Pub, where he was drinking. While he was in the pub, Hermiz saw another patron of the bar, Steewart Shaffou, arguing with a female friend of his and “dragging her by her hair.” When he saw Shaffou punch the woman, Hermiz went over to him and asked “What are you doing?” Shaffou responded by “head butting” Hermiz. Hermiz then pushed Shaffou. Bouncers quickly grabbed Hermiz, halting the fight. The bouncers began to escort Hermiz toward the door, and when they were near the exit, “handed him off” to police officers who were there.

         As they approached the door, one officer said to Hermiz “Put your hands behind your back, ” and Hermiz complied. The officers and Hermiz then exited the bar. Hermiz stated that as the officers “walked me out the door, I got a Taser in my back.” Once outside, Hermiz was “jammed up against the brick wall, ” and one officer “grabbed [him by his] neck.” Hermiz “turned” and said to the officers: “What are you doing? Calm down. I'm not doing nothing, ” and “Stop, I'm not resisting. What are you doing?” Hermiz stated that if he “didn't turn and avoid that brick wall, [his] face would have smashed [into it].” He also put his hands up, with his palms against the wall, to slow himself from hitting the wall. Hermiz then was elbowed, shoved, pushed, and pulled in different directions by several officers at once, had his legs pulled out from under him, and was shocked with a Taser several times. Hermiz stated that all he “was feeling at that point was pain, ” and that he was “was getting pulled and hit and dragged in every different direction.” Hermiz testified that he “was not moving [under his own power], ” but “was under their power, ” and was being “dragged” in whatever direction the officers were moving him. Hermiz stated that throughout the episode he “got pulled and dragged and [he] fell, because [he] just went wherever they took [him], and wherever [he] landed, ” was where he wound up, which eventually was on top of Sergeant Budzynowski on the sidewalk.

         B. Defendants

         1. Sergeant Budzynowski

         Budzynowski admits that he activated his Taser four times during the encounter, for a total of 33 seconds, in “drive stun mode” (where the weapon is held directly against the suspect's body or clothing). The first time Budzynowski used his Taser was when he was standing behind Hermiz, shown at the start of the video. The other usages were when the two were on the ground. Budzynowski contends that during all of the activations, Hermiz was struggling and resisting the attempts by officers to restrain and handcuff him. Budzynowski also asserts that his expert's analysis demonstrates, based on electrical signal details from the Taser's activation logs, that the device had a weak connection and was transmitting a minimal or reduced charge for some of the time when it was used. Budzynowski testified that he first used the Taser when he saw Hermiz “push off the wall, ” and “not put his hands behind his back, ” and “start proceeding to kind of walk with Officer Knauss [] down the sidewalk.” He shocked Hermiz with the Taser the first time because he heard Knauss tell Hermiz to put his hands behind his back and he “watched Mr. Hermiz push himself off the wall and resist Officer Knauss's attempts at doing that.” Budzynowski conceded that he did not see Hermiz try to “swing at, ” “head butt, ” “kick, ” or “otherwise injure” any of the officers.

         Budzynowski testified that when he Tased Hermiz, he was “trying to distract him” so that “officers could get his hands behind his back and get him handcuffed.” Budzynowski stated that Hermiz resisted the officers' attempts to handcuff him by “tightening his muscles” so his arms could not be put behind his back, ” and, before he used the Taser, Budzynowski said to Hermiz, “Stop resisting.”

         Budzynowski admitted that the attempt by the four officers to get Hermiz on the ground was “really sloppy” and “wasn't done very well in terms of the four officers working together as a team or unit, ” but he believed that the force used was not excessive. Budzynowski stated that even after the officers had Hermiz on the ground, he was “still pushing, trying to push himself up, move, twist and get out, ” and, even after he was handcuffed, Hermiz continued to “resist and wriggle, ” and “tried to sit up.”

         2. Officer Knauss

         Officer Knauss admits that he activated his Taser four times during the encounter; the first of those times was during a 16-second period when Budzynowski also was using his device. Knauss fired his Taser in “probe mode” (where the device fires darts trailed by wires into the suspects clothing and applies the charge through those wires to the probe darts). Officer Knauss used his Taser for a total of 20 seconds during the struggle. He testified that he used his Taser on Hermiz after the officers and the plaintiff exited the bar for several reasons:

Q. And what was your basis for triggering the Taser gun on that occasion?
A. The first time?
Q. Yes, sir.
A. For many ...

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