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Todd v. Bailey

United States District Court, M.D. Alabama, Eastern Division

April 6, 2018

MERRILL TODD, Plaintiff,
v.
JEROME BAILEY, in his individual capacity,, Defendants.

          ORDER

          MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE

         In this excessive-force case, plaintiff Merrill Todd sues defendants Jerome Bailey, Larry Clark, Terry Wood, and Steve Smith, all of whom are law enforcement officers.[1] Todd alleges that defendants beat and tased him and had a police dog attack him. Pursuant to 42 U.S.C. § 1983, Todd asserts that Bailey, Clark, and Wood violated his constitutional rights by using excessive force against him. They are sued in their individual capacities. Pursuant to Alabama law, Todd also contends that Bailey, Clark, Wood, and Smith committed a battery against him. Jurisdiction for the federal claim is proper under 28 U.S.C. §§ 1331 (federal question) and 1343 (civil rights), and the court has supplemental jurisdiction over the state claim pursuant to 28 U.S.C. § 1367.

         This case is currently before the court on defendants' motions for summary judgment. For the reasons discussed below, the motions will be denied in part and granted in part. Summary judgment will be denied as to the federal claim against Wood and the state claim against Smith, with these two claims against these two defendants going to trial. Summary judgment will be granted as to the federal claim against Bailey and Clark and the state claim against Bailey, Clark, and Wood, with these claims against these defendants not going to trial. Because no claims will remain against Bailey and Clark, they will be dismissed as parties.

         I. FACTUAL BACKGROUND

         On August 7, 2010, Todd's family members organized a party at an event space called Club Blaze in LaFayette, Alabama. Todd arrived at the building early to help set up for the party. One of his cousins advertised the event on her Facebook page.

         Officers from the enforcement wing of the Alabama Alcoholic Beverage Control (ABC) Board learned of the party and staged an undercover operation to determine if alcohol was being sold there without a liquor license, a misdemeanor. That night an undercover agent reportedly entered the club and was able to purchase alcohol. Law enforcement then decided to sweep the party in an enforcement action. A large group of law enforcement officers from the ABC Board, the City of LaFayette, and the Chambers County Sheriff's Department participated in the sweep. The defendants were among this group.

         Todd was in the parking lot in front of the building when he saw a line of law enforcement vehicles arriving. As he had two days left on parole, he decided to leave rather than risk being arrested. He and his cousin Brandon Story headed towards the area behind the building, with Todd ahead of Story. As Todd went around the back corner, he saw the headlights of a truck driving towards him from the opposite side of the building. He started running in the direction of the woods.

         The next thing Todd can remember is waking up in the hospital saying defendant Clark's name and seeking a gun. His family members told him that he had been beaten by the police. Todd surmised that he had been beaten, tased, and bitten by a police dog, based on what his family told him and, later, based on his own examination of his injuries and the clothing he was wearing that night.

         Paramedics who treated Todd found a one-inch cut above his eye, a bruise on his forehead, bruising and swelling around both eyes, and a 3/4 inch laceration to the side of his left thigh. His treating physician in the emergency room that night found two facial fractures--one to the bone surrounding his left eye and the other on the side of his face by his ear. The doctor described the fracture to the bone around his eye as a “comminuted fracture, ” Shiver Decl. (doc. no. 53-26) at ¶ 6, which means “splintered or crushed into numerous pieces.” Webster's Third New International Dictionary of the English Language 457 (2002). The doctor first assumed that the injury was caused by a beating. Five days later another physician noted the bruising on his face resembled “raccoon eyes.” Med. Records (doc. no. 53-31) at 3. Another doctor later concluded he had a concussion.

         Two months after the incident, Todd underwent surgery to relieve pressure resulting from an intracranial hemorrhage in the area where he had been injured that night; burr holes were drilled in his skull. He experiences severe headaches and facial numbness. He also suffers from blurred vision in his left eye, feels sharp pains in the eye, and fears he may go blind.

         Since the incident, Todd has had a marked drop in memory. During his deposition he had difficulty remembering what month during the past year he was married in. He stated that he can remember many things before the incident, but he has to try very hard to remember things that happened after it, and it hurts when he tries to do so.

         The parties offer two different versions of how Todd sustained his injuries. Defendants contend that Todd's injuries resulted from defendant Smith's accidentally hitting Todd with his truck. Todd argues that his injuries were caused not by the truck, but by defendants' beating him.

         A. Defendants' Version of Events

         On the night in question, defendant Smith, a member of the LaFayette Police Department, drove to the club with another officer, Jason Fuller, riding as his passenger. Their assignment was to catch anyone running from the back of the club when the sweep began. They had come around the back of club when they saw Todd in front of the truck. Todd slipped and fell, and then started to get back up. Smith swerved to miss him and applied his brakes, but the truck slid because the field was strewn with hay. Smith contended the truck's bumper hit Todd in the head. See Smith Report (doc. no. 63-3) at 9.

         Fuller, who was getting ready to jump out of the truck when the accident happened, saw Todd slip and fall but did not see the truck hit Todd. (He also did not report hearing or feeling it hit Todd.) When the truck stopped, Fuller got out of the truck and saw that Todd was lying on the ground, bleeding from a cut above his eye, and making a “snoring” sound. Fuller Statement (doc. no. 53-19). He told Smith to call an ambulance. While Fuller was checking him for injuries, Todd woke up and became “combative, ” trying to stand up and telling Fuller to let him go because he had not done anything. Id. Another officer came over, and they decided to handcuff Todd. They searched him for weapons. Then the ambulance arrived.

         Defendant Wood, a sheriff's deputy, was one of the first officers to pull into the parking lot. Although he is a canine handler, he says he did not bring his dog that night because the officers were not expecting to find drugs at the club.[2] From inside his patrol car, Wood noticed a man run behind the club and make a motion with his hand as if he were throwing something to the ground. Wood denies pursuing the man. Instead he parked his car and got out, told some people outside the club to lie on the ground, and went inside the club to check on what was happening there. After observing the party-goers lying on the ground inside, he walked back outside to his vehicle to turn off his lights, then walked towards Smith's truck. He saw Fuller kneeling on the ground near a man. Wood recognized the man on the ground as the same person he had seen make the throwing motion. Smith told Wood that he had hit the man with his truck. The ambulance arrived at this point. Wood returned to the general area where he had earlier seen the man make a throwing motion and found a bag of suspected marijuana. He handed the bag to defendant Clark and entered the building through the back door. See Wood Decl. (doc. 56-4).

         Defendant Clark was inside the club when Todd was injured. Clark was near the back door of the club, about ten minutes after the sweep began, when Wood approached him, gave him the bag of suspected marijuana, and told him about the truck accident. Clark then went outside, saw the ambulance personnel working on Todd, and re-entered the club.

         Defendant Bailey reports that he was inside the club when Todd was hurt. He was assigned to get control of the people in attendance and to search and interview them. He went outside after the back door to the club was opened and he saw an ambulance outside.

         When he went outside, Bailey was told that Todd had fallen and hit his head on a rock. His statements conflict as to whether a paramedic or Smith told him this: in his initial report on the incident, he wrote that Smith had said it, but he later said that a paramedic did. Compare Bailey Decl. (doc. no. 53-10) with Bailey Statement (doc. no. 63-2) at 7. Bailey looked on the ground, saw that it “was covered in hay and [that] blood was on the ground, ” and checked for a rock but could not find one in the area. Bailey Statement (doc. no. 63-2) at 7. After making this observation, Bailey (perhaps for a second time) asked Smith what happened, and Smith said that Todd “ran in the path of his truck” and he accidentally hit Todd with his truck. Id. Bailey then called the City of LaFayette's police chief to inform him of what had happened and to advise him that the department would need to begin an investigation. After the call, he went back inside the club to assist with processing the people who had been detained.

         When the paramedics examined Todd, he was unable to explain how he had been injured, and kept asking what had happened to him. (When the paramedics asked the officers how Todd was injured, the officers said they were unsure.) Todd also could not remember what happened to him when questioned by the emergency room physician later that night. The physician initially surmised that Todd's injuries had come from an assault, but in a declaration later opined that the injuries were equally consistent with being hit by a vehicle.

         B. Todd's Version of Events

         Todd does not dispute that Smith hit him with his truck, but denies that the contact with the truck is responsible for his most serious injuries. He contends that, after the truck hit him and knocked him to the ground, the defendants beat him severely. He also argues that, during that beating, they tased him in the leg and had a police dog attack him.

         Because Todd has no eyewitnesses to the alleged assault, his version of events is based entirely on circumstantial evidence. His key evidence is the testimony of Brandon Story, a cousin who saw the truck hit him and contests defendants' version of how and where the truck hit Todd. Story denies that Todd slipped and fell before being hit by the truck or that he was hit in the head. Instead, according to Story, Todd was running and upright when the truck hit him in the hip area and knocked him to the ground. The truck then stopped, but did not hit Todd in the head.

         According to Todd, after he was on the ground, the defendants attacked him. To avoid repetition, the court will discuss the evidence supporting this factual contention in detail below.

         II. SUMMARY-JUDGMENT STANDARD

         “A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Genuine disputes are those in which the evidence is such that a reasonable jury could return a verdict for the non-movant. For factual issues to be considered genuine, they must have a real basis in the record.” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). The court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         “Where the evidence is circumstantial, a court may grant summary judgment when it concludes that no reasonable jury may infer from the assumed facts the conclusion upon which the non-movant's claim rests.” Mize, 93 F.3d at 743. If the non-movant's evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 745 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).

         III. ANALYSIS

         Todd brings a § 1983 claim against defendants Bailey, Clark, and Wood for using excessive force against him in violation of the Fourth Amendment; he brings a state claim of battery against those defendants and Smith.[3]While defendants argue that they are entitled to immunity on the federal and state claims, the motions for summary judgment largely turn on the adequacy of the evidence. The central issue the court must resolve as to both claims is whether there is adequate evidence for a reasonable jury to conclude that Todd was injured due to defendants' intentional acts, rather than--as defendants assert--being accidentally struck by the truck. Thus, the court will first address the adequacy of the evidence, then turn to the immunity issues.

         A. Todd's § 1983 Claim

         To establish that a defendant is liable in his or her individual capacity under § 1983, “it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). The § 1983 defendants do not dispute that they were acting under color of state law at all relevant times, and it is clear that they were so acting when they participated in the sweep.

         “[A]ll claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen [are] analyzed under the Fourth Amendment[‘s] ‘reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 395 (1989) (emphasis in original).[4] “[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Id. at 396. The question is how much force was reasonable under the circumstances the officer confronted. Id. at 397. This is an objective inquiry that must be answered “without regard to [the officer's] underlying intent or motivation.” Id. Answering it “requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interest against the countervailing governmental interests at stake.” Jackson v. Sauls, 206 F.3d 1156, 1169-70 (11th Cir. 2000).

         On a motion for summary judgment, the movant has the initial burden of demonstrating that, based on the pleadings, depositions, answers to interrogatories, and admissions, there exists no genuine issue of material fact. Section 1983 defendants Bailey, Clark, and Wood have done so here by presenting Smith's declaration attesting that he accidentally hit Todd with his truck; Fuller's statement describing Todd's injured condition when he found him on the ground and describing what happened between that moment and when the ambulance arrived; and their and other witnesses' declarations denying that Todd was beaten, tased, or bitten. Therefore, the burden shifts to Todd to demonstrate that there are genuine issues of material fact.

         To survive summary judgment, Todd must show that a jury could reasonably infer that Bailey, Clark, and Wood used unreasonable force against him. These defendants argue that Todd has not presented sufficient evidence to show that he was even subjected to a use of force beyond the accidental contact with the truck. The use of force is “an element essential to [Todd's] case, on which [Todd] will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Therefore, in analyzing the motions for summary judgment, the court will first answer the threshold issue of whether Todd has presented sufficient evidence for a reasonable jury to conclude that he was subjected to a use of force.

         Todd uses several approaches in his effort to prove that the § 1983 defendants used force against him. Primarily, he attempts to do so by demonstrating that the truck could not have caused his head injuries. This argument primarily rests on the testimony of his cousin Story, who saw Todd hit by the truck, and disputes defendants' version of the accident. Todd also offers evidence of additional injuries, which he attributes to being bitten by a dog and shot with a Taser, not to the truck. In addition, Todd seeks to introduce statements of bystanders who said that he was being beaten, and his own statements as to ‘flashbacks' of being beaten. Finally, he seeks to show that the sweep was handled in an aggressive manner and that certain defendants are corrupt or have a history of aggressive or violent behavior. Defendants have responded in part with arguments challenging the admissibility of, or asking the court to disregard, much of this evidence. The court will address these arguments as relevant below.

         1. Challenges to Todd's Affidavits

         Before further discussing the evidence, the court pauses to address the § 1983 defendants' arguments that Todd's affidavits should be disregarded in their entirety.[5] In response to the motions for summary judgment, Todd introduced affidavits from a number of witnesses. In general, the affidavits add little to Todd's case. The affidavits are generally less detailed than the deposition testimony already in the record from the same witnesses. Nevertheless, as the affidavits do adduce some important facts, the court will address defendants' blanket challenge to their consideration.

         Defendants argue that the court should disregard all of Todd's affidavits because they were sworn on the basis of “knowledge and belief.” Each affidavit starts with the statement, “I have personal knowledge of the facts stated in this statement, ” but concludes with the following: “I swear or affirm that the statements contained herein are true and accurate to the best of my knowledge and belief.” See Pl.'s Evidentiary Submissions (doc. no. 63-1) (italics added).

         Federal Rule of Civil Procedure 56(c)(4) provides: “An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Defendants argue that, because the affidavits are not sworn on the basis of knowledge alone, they cannot be considered under Rule 56.

         Defendants cite a number of cases in support of their argument, but none is on all fours with this case. In all but one these cases, the courts addressed whether a particular statement within an affidavit or declaration could be relied upon when the declarant explicitly stated that he ‘believed' certain facts to be true. For example, in Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002), the court found that a statement in a sworn affidavit that the affiant “believe[d]” that he had seen a particular action was insufficient to create a dispute of material fact sufficient to withstand summary judgment as to that issue. The court carefully analyzed each statement in the affidavit, breaking down which parts of each statement were based on knowledge and therefore could be relied upon, and which parts were based on belief and therefore could not be considered. Pace counsels that courts should take a statement-by-statement approach to analyzing whether statements in an affidavit are based on personal knowledge, and should disregard only those that lack such a basis. See also Stewart v. Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir. 2000) (plaintiff's statement that, “on information and belief, ” defendants “knew” before transferring her to a new position that the position would be eliminated could not create a genuine dispute of material fact because plaintiff lacked personal knowledge). In sum, Pace and the similar cases cited by defendants dealt with whether courts should rely on particular statements in declarations, rather than declarations as a whole.

         The closest case cited by the defendants is Fowler v. S. Bell Tel. & Tel. Co., 343 F.2d 150 (5th Cir. 1965).[6]There, after plaintiff sued defendants in state court for illegally wiretapping her, defendants removed the case to federal court and stated in their verified removal petitions that they were federal officers acting within their duties and thus were immune from suit. The district court treated the defendants' removal petitions as motions for summary judgment and dismissed the case on the basis of immunity. The appeals court “h[e]ld that defendants failed to establish that there was no genuine issue of fact ... [because] the bare, conclusory allegations of the removal petitions, stating generally that [defendants] were acting within the scope of their employment and under color of office, were inadequate for this purpose. These allegations were legal conclusions unsupported by facts.” Id. at 153-54. The court further observed that the verified petition was insufficient because “verification must be on personal knowledge alone, whereas these petitions were verified only on ‘knowledge, information and belief.'” Id. at 154. However, this general and conclusory observation was not necessary to the holding, and accordingly is dictum.

         In Ondo v. City of Cleveland, 795 F.3d 597, 605 (6th Cir. 2015), the Sixth Circuit Court of Appeals explained its preferred approach for district courts to take when faced with affidavits sworn based on ‘knowledge and belief.' “When affidavits based on knowledge and belief are submitted to support or oppose a motion for summary judgment, the district court has discretion to determine whether it can differentiate between knowledge and belief for each averment in the affidavit. If the court can distinguish between the two, then ... the court should excuse the affiant's stylistic error, and must admit the parts based solely upon personal knowledge, while striking the parts based upon belief. If the court cannot differentiate between the two, then ... the court must strike the affidavit in its entirety ....” Id. See also 10B Charles Alan Wright, Fed. Prac. & Proc. Civ. § 2738 (4th ed. 2017) (“Where the affidavit includes both competent and incompetent evidence, the Court should disregard the incompetent evidence but give full consideration to that which is competent. ... This is nothing more than the procedure which would be followed at trial. The Court would not strike the entire testimony of a witness merely because a portion of his testimony is incompetent. The same rule is to be applied to supporting affidavits.”).

         The court finds the Sixth Circuit's approach persuasive and consistent with the Eleventh Circuit's approach in Pace, and is not inclined to disregard Todd's affidavits as a whole for several reasons. First, because each affidavit contains a sworn statement that the facts are based on personal knowledge, it is possible that the reference to ‘knowledge and belief' was a careless stylistic error by Todd's original counsel. Second, because the affidavits frequently make quite clear which statements are or are not based in personal knowledge, the court can easily disregard the improper statements without discarding the entire affidavits. For example, in his affidavit, Todd explicitly summarizes information others witnesses told him about the relevant events; the court can easily ignore such statements in deciding the instant motion. Third, each of the relied-upon affiants was deposed; the availability of deposition testimony offers the court an additional basis for judging whether the affiant's statements were based on personal knowledge or belief.

         For these reasons, defendants' objection to the consideration of Todd's affidavits as a whole is overruled. However, the court will disregard all statements that are not based on a personal knowledge. As for defendants' other objections to various statements in the affidavits, the court will take those up as relevant below.

         2. Evidence of Use of Force

         As evidence that he was subjected to a use of force, Todd relies on the testimony of Story to show that Smith's explanation of how he sustained his injuries is not accurate. He also argues that he suffered injuries that could not have been caused by the contact with the truck described by Smith. The court will discuss that evidence before turning to the other evidence in the record potentially supporting his argument.

         a. Story's Testimony

         At base, Todd's contention that his injuries came from an intentional use of force rather than the truck relies on the testimony of Story, for Story is Todd's only witness who can testify to what happened when Todd was hit by the truck.

         In his deposition, Story testified that he saw the truck hit Todd “from his hip side” and that it “knocked him on the ground.” Brandon Story Dep. (doc. no. 56-8) at 10. He denied that Todd slipped and fell before the truck hit him. He also testified that the truck did not hit Todd in the head and that the truck stopped shortly after hitting Todd.

         This testimony alone creates a genuine dispute of material fact as to whether Todd's injuries stemmed from a use of force by law enforcement. As discussed above, defendants attribute Todd's serious head injuries to his being hit in the head by the bumper of Smith's truck as he started to stand up after slipping and falling. If, as Story testified, Todd did not slip and fall, and the truck hit Todd in the hip and not in the head, then something else must have happened to Todd's head. It is undisputed that from the time Todd was hit by the truck until the ambulance took him away, the only other people behind the club with him were law enforcement officers. If a jury were to credit Story's testimony, it could conclude that Todd probably was injured by a use of force by those officers, because there is no other explanation for Todd's broken skull.

         Other aspects of Smith's explanation could lend support to this conclusion. Evidence suggests that Smith offered a number of differing explanations for how Todd was injured. First, he stated that Todd fell and hit his head on a rock. See Bailey Statement (doc. no. 63-2) at 7 (“I then asked Sgt. Steve Smith what had happen[ed] and he told me that Merrill was running and felled on the ground and hit a rock.”). When confronted with the lack of evidence supporting that explanation, he changed his story to say that he accidentally hit Todd with his truck after Todd ran in the truck's path. Id. And when the paramedics arrived to treat Todd, the officers did not tell them about a truck accident at all, instead saying they did not know how Todd was injured. A reasonable jury could infer that if Todd truly were injured accidentally by the truck, the officers would have told the paramedics about it, as that information could affect the medical care he received, and that they did not mention the contact with the truck because they were covering up something worse--like a beating. A jury could rely on Smith's changing story and the officers' lack of forthrightness to conclude that Smith's contention of hitting Todd in the head with his truck is not worthy of belief.

         b. Evidence of Other Injuries

         Todd relies on evidence of other injuries to his body as proof that he was subjected to a use of force. Smith's declaration purports to explain only Todd's head injury. However, Todd has presented evidence that he suffered injuries to other parts of his body as well, and that his clothes were damaged during the incident. In his response to summary judgment, Todd argues that these injuries are attributable to defendants' using a Taser on him and having a police dog bite him. As discussed below, Todd has not submitted sufficient competent evidence at this time for a jury to conclude that he was tased and bitten; but, regardless of whether the injuries were caused by a Taser or a dog or a beating, these injuries are still relevant evidence. Because defendants' evidence does not explain Todd's other injuries, a jury could still rely upon the description of the injuries as additional support for a finding that, more likely than not, Todd was beaten by law enforcement. Todd presented evidence that he suffered an unexplained wound on his upper thigh during the incident. The paramedics noted the laceration in their examination of him and that Todd complained of pain there. There is also evidence that defendant Clark had a Taser with him on the night in question and threatened to use it on another individual. Clark Statement (doc. no. 63-2) at 5.[7] However, this evidence is clearly insufficient to prove that Todd was tased.

         Todd also offers his own opinion that he was tased and his description of his injury. In an affidavit, Todd stated, “I know I was tased because I have the mark that the taser left on my body and the taser burned my boxers.” Todd Aff. (doc. no. 63-1) at 1. In the cited parts of his deposition, Todd offered his opinion that he had been tased, and testified that he had a “taser mark” on his leg, got stitches there, and that his boxers were “burnt up.” Todd Dep. (doc. no. 56-1) at 185:6-13. Todd's opinion that a Taser caused both the mark on his leg and the apparent burn on his boxer shorts is not admissible on the current record. Todd did not testify to any specific aspects of his wound or the details of the apparent burn on his shorts that allowed him to identify the source as a Taser; nor does the evidence suggest that he has the type of experience with Taser wounds that might allow him to offer an admissible lay opinion. Instead, it appears that his opinion is based on speculation and belief. Accordingly, the court will not consider his opinion. That said, his testimony that he had a wound on his leg, that he received stitches, and that his boxer shorts appeared to be burned is admissible evidence.[8]

         Todd also points to his cousin Naya Robinson's testimony about a wound she saw on Todd's body that she believed was caused by a Taser. In her deposition, she described the wound as follows:

“A. It's like a little straight -- kind of like a -- like a bruise, like a burn mark, like a burnt mark, kind of like -- like going like this (indicating).
“Q. Okay. And you're -- you're holding your fingers about an inch apart; is that right? Was it that big or was that -- what did you mean by that?
“A. Yeah, I guess it was -- it was kind of big, about that size. It was just going across.
“Q. So it was a -- a line?
“A. Not -- not just a straight line. Like a --like a bruise, like -- looked like from a taser mark.”
...
“Q. Okay. Was it an open wound? Was it a cut or was it just a bruise?
“A. It was open.
...
“Q. How long was that opening in his skin?
“A. I'm not sure how long it was.
“Q. Was there one opening or were there two openings?
“A. I want to say two -- two -- it looked like two openings.
“Q. And how far -- how far apart were those two openings?
“A. That -- they wasn't that far apart.
“Q. And was each opening the same length, each cut the same length?
“A. I want to say so, yes.
“Q. And how -- how long were those two cuts?
“A. I'm not sure how -- exactly how long it was.
“Q. Was it more than an inch?
“A. No.
“Q. Okay. How far apart were the ...

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