United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti U.S. Magistrate Judge
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS
FOR SUMMARY JUDGMENT [22 & 25]
J. Tarnow Senior United States District Judge
police officers responding to a domestic violence call
deployed their tasers against David Kapuscinski early in the
morning of April 16, 2015. Mr.
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
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 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).
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
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).
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).
officers pulled out their tasers. 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.
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).
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).
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).
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