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Kapuscinski v. City of Gibralter

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

April 25, 2019

David Kapuscinski, Plaintiff,
City of Gibraltar, et al., Defendants.

          Anthony P. Patti U.S. Magistrate Judge


          Arthur J. Tarnow Senior United States District Judge

         Two police officers responding to a domestic violence call deployed their tasers against David Kapuscinski early in the morning of April 16, 2015. Mr.

         Kapuscinski died of cardiac arrythmia shortly thereafter. The incident is an unfortunate reminder that tasers are less-lethal, not non-lethal, weapons. Plaintiff, the personal representative of Mr. Kapuscinski's estate, alleges excessive force and false arrest under 42 U.S.C. § 1983 and Michigan tort law.

         Factual Background

         Born on July 8, 1975, David Kapuscinski was 39-years-old at the time of his death. By all accounts he had a hard life, but he had been in a relationship with Christina[1] since October 17, 2014. Christina later told officers that Kapuscinski was good to her two children and had watched them while she was in a psychiatric hospital. (Pl. Ex. B).

         The night of the incident, however, April 15/16, 2015, was marked by uncharacteristic levels of violence on the part of Mr. Kapuscinski. Christina told police how Mr. Kapuscinski assaulted her before the incident with such force that she vomited. (Pl. Ex. B pg. 8). She also told an interviewing officer that Mr. Kapuscinski struck her and shouted at her several times. (Id.). He also hit Christina's son and placed his foot or knee on his neck. (Pl. Ex. J pg. 54-57). Christina's April 16, 2015 witness statement read: “He woke sexually violent. I don't know why this happened. It is completely out of his character. He was forcibly sexual w/ me. He went after my son a bit hit him.” (Id.).

         At 3:22 a.m. Officer Nicholas Mitchell of the Rockwood Police Department and Officer Gary Robinson of the Gibraltar Police Department were dispatched to a “domestic in progress” complaint made by a twelve-year-old boy from a residence on Gibraltar Road. (Compl. ¶ 15). They had no knowledge of Mr. Kapuscinski or any of the events that had transpired that night. The dispatcher had told the boy to wait outside the apartment, and when the officers arrived at around 3:28 a.m. they met the boy outside the apartment building. The boy gave the officers little information save that his apartment number was 16. According to Officer Mitchell's testimony to Michigan State Police (“MSP”), the boy let the officers into the apartment building and pointed to the door. (Pl. Ex. G. at 5:20). The officers went up to the apartment and knocked on the door. A crying young girl answered the door. (Rockwood Def. Ex. B).

         The officers quickly reached a bedroom from which commotion could be heard. There they observed an entirely naked man and a half-naked woman lying down on the bed, head to toe, with the man choking the woman with his thighs. (Mitchell Dep. 61; Robinson Dep. 49). Mr. Kapuscinski was rocking back and forth repeating “I'm going to kill her.” (Id.). It appeared that Christina could not breath, and that she was trying to say something but only gasping. (Id.). There were feces on the floor from the aforementioned sexual assault. (Robinson Dep. 117).

         Both officers pulled out their tasers.[2] According to Officer Mitchell's audio recording, Officer Robinson yelled “Stop” three times and then “Get off” or Get off of her” five times. (Rockwood Dep. Ex. B). The sound of Officer Robinson's taser discharge is then audible on the recording. (Id.). Officer Robinson's taser struck Mr. Kapuscinski in the elbow. Christina and Mr. Kapuscinski immediately separated; Christina ran out of the room, and Mr. Kapuscinski fell from the bed to the floor and began “thrashing” and “kicking” (Robinson Dep. 80-83; Mitchell Dep. 101-02).

         Officer Robinson deployed his taser for three more cycles, but he testified that it was ineffective because only one barb was attached. When asked why he kept compressing the trigger, Officer Robinson said, “I don't know probably just the stress, pull again not working pull again not working.” (Robinson Dep. 71). Officers Robinson and Mitchell both testify that Robinson's first taser deployment only resulted in one prong being attached to Mr. Kapuscinski. (Id. at 73-75).

         Plaintiff disputes this characterization of the tasing. Werner Spitz, M.D, opined that based on the autopsy report, both prongs struck Mr. Kapuscinski's elbow. (Pl. Ex. N). Officer Robinson testifies that he thought he made contact with both prongs for a second, but then realized he did not when nothing happened. (Robinson Dep. 65-70). “He went down, started rolling around like he's getting back up again, I try to tase him again, but it wasn't working.” (Robinson MSP Interview, Ex. H 3:54).

         Since this motion comes under Fed.R.Civ.P. 56, the Court will assume that Officer Robinson's taser had full effect on Mr. Kapuscinski. It will not assume that there was a third taser deployment, however, as suggested by Dr. Spitz's interpretation of the autopsy photographs, because Officer Mitchell's uncontroverted taser report logged only a single taser deployment (Pl. Ex. K), and Officer Robinson's taser, the X-26, had only a single cartridge (Robinson Dep. 60). In the face of such undisputed evidence, no “rational trier of fact” could find that there was a third taser deployment based only on an errant cut on Mr. Kapuscinski's abdomen. See Scott v. Harris, 550 U.S. 372, 380 (2007).

         While Officer Robinson was attempting to tase Mr. Kapuscinski, he commanded him twice to get on the ground, twice to stop moving, and seven times to roll over. (Rockwood Def. Ex. B). After he exclaims, “roll over or I'm going to tase you again, ” Officer Mitchell matter-of-factly observes, “you only got one barb in him.” (Id.). Officer Mitchell then fired his taser and hit Mr. Kapuscinski in the chest with one barb and the abdomen with the other. (Pl. Ex. N). Mr. Kapuscinski immediately fell back to the ground. Though he aimed at the “preferred target areas” per his training, which included “arms, ...

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