Bongiorno v. Perilli

Joseph Bongiorno, Plaintiff v. Police Officer Christopher Perilli in his individual capacity,¹ Defendant

MEMORANDUM DECISION AND ORDER I. INTRODUCTION Plaintiff Joseph Bongiorno brings this action under 42 U.S.C. §1983 alleging that Defendant subjected him to excessive force in violation of the Fourth Amendment. (Dkt. No. 2).² Defendant moves for summary judgment under Rule 56 of the Federal Rules of Civil Procedure on the grounds that Defendant’s use of force was objectively reasonable in light of Plaintiff’s attempt to escape and resisting arrest, and that Defendant is entitled to qualified immunity. (Dkt. No. 24-17). Plaintiff opposes Defendant’s motion. (Dkt. No. 28-4). For the reasons discussed below, Defendant’s motion is granted. II. FACTS³ On September 22, 2017, a warrant was issued for Plaintiff’s arrest on two counts of Criminal Sale of a Controlled Substance in the Third Degree, a Class B felony, in violation of N.Y. Penal Law §220.39(1), and two counts of Criminal Possession of a Controlled Substance in the Third Degree, a Class B felony, in violation of N.Y. Penal Law §220.16(1). (Dkt. No. 24-7, at 12). Defendant, a police officer with the Glens Falls Police Department, learned of the warrant for Plaintiff’s arrest on the four drug counts through his position with the police department. (Dkt. No. 24-13, at 21). Defendant knew Plaintiff through his prior employment at a correctional facility, where Plaintiff had been incarcerated. (Dkt. No. 24-13, at 23). On September 28, 2017, at approximately 7:05 p.m., Defendant spotted Plaintiff driving a white Toyota Sienna minivan “in the Elm and Exchange Street parking lot” in Glens Falls, New York. (Dkt. No. 24-16, 17). Defendant turned on his emergency lights and stopped Plaintiff in the parking lot. (Id. 18; Dkt. No. 24-13, at 33; Dkt. No. 24-12, at 25). Defendant approached the driver’s side of the white Toyota Sienna and asked Plaintiff to step out of the vehicle, at which point he placed Plaintiff under arrest. (Dkt. No. 24-16, 20). Defendant handcuffed Plaintiff’s hands behind his back and placed him in the rear of Defendant’s patrol car. (Id.). Defendant searched the interior of Plaintiff’s car, assisted by Glens Falls Police Officer Zachary Tanner, and the officers found marijuana. (Id. 21). While in the rear of Defendant’s patrol car, Plaintiff caught Defendant’s attention and Defendant stopped searching the car to approach Plaintiff. (Dkt. No. 24-16,