A witnesses version of events is important in police brutality cases

Holding that it did not have jurisdiction to decide the issue of qualified immunity as to plaintiff's § 1983 excessive force claim because the defendants-officers based their claim for immunity on disputed factual findings, the court dismissed the defendants' appeal as to qualified immunity. However, the court affirmed the district court's decision denying summary judgment on defendants' claim of governmental immunity as to plaintiff's claims of assault and battery and gross negligence. Plaintiff was arrested for resisting and opposing a police officer and failing to obey the lawful commands of a police officer. The charges against him were later dropped, and he sued the defendants. He asserted that the court did not have jurisdiction to decide the issue of qualified immunity as to his § 1983 excessive force claim because defendants based their claim for immunity on disputed factual findings. The court agreed. While defendants contended that they based their claim for immunity on issues of law, a review of the record on appeal clearly revealed that they were relying on disputed issues of fact. They argued that they were entitled to summary judgment because no reasonable jury could conclude that they used excessive force against plaintiff. They contended that plaintiff "physically prevented [them] from arresting him" and "physically prevented officers from searching him," while also "[making] repeated furtive movements with his hands . . . actively resist[ing] through the entire encounter." Defendants maintained that, based on plaintiff's behavior, they "used only the amount of force necessary to subdue and handcuff him." They asserted that "until Plaintiff was handcuffed and stopped resisting, they clearly had a reason to be fearful." They also argued that the use of the taser was not excessive under the circumstances. Defendants stated "[i]n direct response to Plaintiff's physical resistance and his complete refusal to comply with officers' orders and demands, Officer Krakowski resorted to a higher degree of force." While both plaintiff and defendants acknowledged that plaintiff initially ran, defendants failed to take into account the rest of the facts as stated by plaintiff, such as his non-resistance, and his acquiescence to the officers' commands that he stop. They did not credit plaintiff's statement that he surrendered and voluntarily laid on the ground with his arms extended. In arguing that their conduct was reasonable and their use of force was not excessive, they took "little, if any, account of the evidence offered by" plaintiff. The court has stated that "[m]ere conclusory statements that the officers construe the facts in the light most favorable to the plaintiff cannot confer jurisdiction upon this Court." Defendants failed to construe the evidence in the light most favorable to plaintiff, which indicated that, contrary to their statements, he did not resist arrest and obeyed their commands. Thus, because defendants' arguments as to their claim that they were entitled to qualified immunity were based on contested facts that were relevant to that determination, the court did not have jurisdiction to decide this issue. As to plaintiff's state law claims, the court held that the district court properly concluded that there was a genuine issue of material fact as to whether defendants' actions "were objectively reasonable under the circumstances," and whether their conduct "was so reckless as to demonstrate a substantial lack of concern as to whether an injury resulted."