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Therrien v. Bustamante-Munt

United States District Court, M.D. Florida, Ocala Division

June 5, 2017

KENNETH THERRIEN, Plaintiff,
v.
EDUARDO BUSTAMANTE-MUNT, SHERWIN SCOTT, WALTER RAY, JOHN DOES 1-3 and SHERIFF OF MARION COUNTY, FLORIDA, Defendants.

          SUMMARY JUDGMENT ORDER

          JAMES S. MOODY, JR. UNITED STATES DISTRICT JUDGE

         This case started when 73-year-old Kenneth Therrien was stopped after he rolled through a stop sign. Ultimately, five law enforcement officers from two agencies responded and multiple men had to subdue Therrien so he could be handcuffed and arrested for obstruction. Therrien claims the force used against him was excessive. The Court, though, concludes Defendants are entitled to summary judgment because Therrien has not proved the violation of a clearly established constitutional right.

         MATERIAL FACTS

         On the morning of June 5, 2012, Marion County Sheriffs Office Deputy Eduardo Bustamante-Munt saw Kenneth Therrien roll through a stop sign. Bustamante-Munt turned on his lights and stopped Therrien, who pulled over near the entrance to his property. The traffic stop was recorded by Bustamante-Munt's dash cam, as well as the dash cam of Deputy Sherwin Scott, who came to assist Bustamante-Munt. In the videos, the terrain appears to be a mix of sand and rock, with scattered leaves, twigs, and brush.

         As soon as Therrien stopped his truck, he got out and approached Bustamante-Munt's vehicle. The recording shows Therrien was wearing shorts and an unbuttoned, short-sleeved shirt that exposed his chest and abdomen (which is relevant because of Therrien's injuries). Bustamante-Munt ordered Therrien back into his vehicle three times, and Therrien returned to his truck. Bustamante-Munt then approached Therrien's vehicle and told Therrien he was stopped for running a stop sign. Therrien denied running the stop sign, [1] cursed at Bustamante-Munt, and told him, "You're pissing me off and I'll tell you right now it's not a good thing." Bustamante-Munt took Therrien's license, registration, and proof of insurance and returned to his patrol vehicle.

         After several minutes passed, Therrien walked to the front of his truck, out of view of the camera. Bustamante-Munt approached Therrien to ask if he had a new proof of insurance and, after a short conversation, again asked Therrien to step back into his truck. Bustamante-Munt returned to his patrol vehicle, and Therrien returned to his vehicle a second time. At this point, the audio recording of Bustamante-Munt's video ends. Within a short time, though, Scott arrives and his dash cam audio records the rest of the stop.

         The two videos show that within minutes of Therrien returning to his vehicle for the second time and Scott arriving, Therrien again walks to the front of his truck. Bustamante-Munt immediately tells Therrien to return to his truck. When Therrien did not, Scott and Bustamante-Munt approached Therrien-leaving the camera's view. Therrien tells the deputies, "Don't tell me what to do with my property." Scott tells Therrien, "We're in the middle of a traffic stop, " to which Therrien replies, "Take me to jail then." Scott tells Therrien, "Come on, " and seconds later tells Therrien, "Don't resist."

         At this point, it appears from the audio and testimony of the parties that Bustamante-Munt and Scott wrestle Therrien to the ground. The deputies tell Therrien to put his hands behind his back, to which Therrien replies, "No, I'm not. No, I'm not." Therrien then tells the officers, "Get your knee out of my fucking head. I didn't know you guys were fucking stupid." The deputies tell Therrien again to put his hands behind his back, to which he responds, "I can't hear you. I'm deaf."[2] After more struggling is heard, the deputies again order Therrien to put his hands behind his back, to which he replies, "Why you guys wanna hurt people?"

         Therrien continues to curse at the deputies and tells them that his grandson would be driving by and would "stop this shit." The deputies tell Therrien to "let go" because he was grabbing their arms to prevent the deputies from handcuffing him. Therrien then tells the deputies, "Get off me and I'll go a lot easier. Get the fuck off my back." At this point, the deputies radioed for backup.

         The deputies' affidavits and deposition testimony explain that Therrien got his arms underneath himself with a single handcuff around his wrist. With his arms under him, Therrien locked his hands, making it impossible for the deputies to handcuff Therrien. So the deputies used their body weight to hold Therrien down until backup arrived. Therrien does not deny this, but says that the deputies were elbowing him in the head the whole time he was on the ground.[3]

         After more insults from Therrien and back-and-forth with the deputies, Bustamante-Munt tells Therrien, "Sir, don't fight no more." Therrien responds, "Why? All these people looking at you?" referring to vehicles driving by. Therrien then talks about how the deputies' arrest of him, a 74-year-old[4] man, will be in the newspaper. And he discusses how much the County will make off his arrest, lamenting the amount of taxes he already pays. Therrien then asks the deputies why they want to hurt somebody, to which Scott replies, "That's the last thing we want to do." All of this is in a calm albeit agitated voice.

         A short time later, Therrien tries to bargain with the deputies, saying, "If you let me up, I'll go peacefully. You let me up first though." Scott says, "Nope, doesn't work that way." Therrien replies, "Well, I can't go peacefully." Therrien then says he hopes he strokes out, calling the deputies a gay slur, threatening that they'll pay for this one. He also tells the deputies they will lose their jobs. Scott tells Therrien all he had to do was wait in his vehicle for the deputies, to which Therrien replies that he is fed up waiting on people.

         After another few minutes, Scott tells Therrien, "All you gotta do is let us cuff you behind your back." Therrien responds, "No, you ain't cuffing me. You would've before, I would've let you. But I'll be a son of a bitch if I'm gonna let you fucking people living off me just do what they want to do with me." A few seconds later, Bustamante-Munt is heard telling dispatch, "We are just holding him down."

         Therrien then laments the fact that this is happening before he even got his morning coffee. He says, "Two fucking 200 pound men sitting on a 74-year-old [sic] guy." Scott replies, "Yeah, yeah. It goes to show we don't want to hurt you." Therrien complains about the deputies having their knee on his head and pushing him into the dirt, saying, "You don't give a fuck about nobody."

         After more back-and-forth, backup arrives and two men (one of whom is Defendant Walter Ray) sprint over to where Scott and Bustamante-Munt have Therrien on the ground. One of the men yells at Therrien to stop resisting as Therrien screams, "You're breaking my fucking arm." A fifth man walks over as someone is heard pleading with Therrien, "Mr. Ken, stop resisting."

         As Therrien is being led away, the deputies tell Therrien they are escorting him to Bustamante-Munt's patrol vehicle so he can rest. The law enforcement officers agree to loosen Therrien's cuffs, which he complained were too tight. One of the law enforcement officers asks Therrien why he was acting like that, and Therrien says, "I wasn't acting like that." He then explained Bustamante-Munt had told him to get back in his truck, but that he was on his property. Here, the tape ends.

         What is not shown on the tape is that paramedics arrived to check out Therrien, and, importantly, that Therrien refused medical treatment. Therrien submitted photos of his injuries, showing scrapes and abrasions to his head, abdomen, elbows, and knees. Notably, there is no bruising to Therrien's head, although there are scrapes to one ear and a red mark behind his left ear. In his affidavit, Therrien says that he suffered injuries to his mouth, head, ears, back, and neck.

         PROCEDURAL HISTORY

         Almost four years after his arrest, Therrien filed this lawsuit against Bustamante-Munt, Scott, the Marion County Sheriff in his official capacity, Robert Campbell[5] and Walter Ray-two of the other three law enforcement agents who arrived at the traffic stop-and John Does 1-3. The Complaint alleges Bustamante-Munt and Scott refused to let Therrien off the ground, even when he was begging to get up to breathe (an allegation refuted by the recording). The Complaint ...


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