MARCO ISLAND — A federal judge used stern language to reject a Marco Island police officer’s motion to dismiss an excessive force civil suit related to accusations that he assaulted and pepper sprayed a handcuffed man in the back of his locked squad car.
U.S. District Judge John Steele denied Officer Stephen Mariani’s request to drop an excessive force count Tuesday. The lawsuit against Mariani was filed by Adrian Polanco, who says Mariani punched him and used pepper spray on him and two other men while they were handcuffed in a locked police cruiser in February 2008.
Mariani argued he was exempt from the suit by qualified immunity, which protects government officials carrying out their duties from lawsuits.
Steele said that assuming Polanco’s stated facts were true — as required in ruling on the motion — Mariani wasn’t covered by qualified immunity.
“The amount and type of force utilized under the circumstances of the case would clearly support a finding that the force was unreasonable,” Steele wrote.
Qualified immunity is discarded when a government employee is believed to have violated clearly established law and violated a constitutional right — in this case, a Fourth Amendment right to unreasonable search and seizure.
Steele ruled in favor of Mariani on two parts of his motion, saying Polanco can’t seek damages for a due process clause violation and that he can’t seek injunctive relief against Mariani.
“It’s a 95 percent complete victory for us,” said Adam Balkan, one of Polanco’s Boca Raton-based lawyers.
T.R. Unice Jr., one of Mariani’s lawyers, wrote in the motion to dismiss that Polanco’s civil suit “consists largely of legal conclusions that are not entitled to a presumption of truth.”
“This Court cannot accept bare allegations of excessive force, reasonableness, reckless disregard, and causation as fact as they are legal conclusions,” Unice wrote.
Attempts to reach Mariani’s lawyers on Wednesday were unsuccessful.
While Mariani’s motion to dismiss was largely denied, the Marco Island Police Department had better luck Tuesday.
Steele dismissed a count of negligent supervision against the department, which Polanco said didn’t properly supervise Mariani. Steele said Polanco didn’t provide evidence that department officials ignored wrongdoing by Mariani before the 2008 assault.
“Plaintiff has not alleged any facts to demonstrate that the City had notice that Officer Mariani had ‘harmful propensities’ — prior to the incident at issue here — or was otherwise unfit to serve as a police officer,” Steele wrote.
Steele is allowing Polanco to refile an amended complaint on the count, but Balkan said he doesn’t expect to.
A count of negligent training or instruction was partially dismissed based on two different readings of Polanco’s accusations.
Steele dismissed the claim that the department doesn’t provide enough information to officers about transporting recently arrested persons. He left open the possibility to challenge how the department implements its training program, which Balkan said he will do.
Attempts to reach lawyers for the police department were also unsuccessful Wednesday.
In a sworn statement from 2008, Mariani admitted to punching and pepper spraying Polanco and two other men arrested for starting a fight with Mariani and an off-duty officer. Mariani signed the statement as part of an agreement to enter a pretrial diversion program. As a result, he wasn’t convicted on a misdemeanor battery charge.
Mariani wrote the three men resisted arrest, attempted to escape the squad car and were spitting at him.
A dashboard camera recorded video of three belligerent men challenging Mariani to a fight and verbally abusing the officer. It then recorded Mariani exiting the squad car, opening a back door and punching one man. Mariani also used pepper spray on the men and closed all doors and windows, leaving them gasping for air.
After telling then-Marco Island Police Chief Roger Reinke about the assault, Mariani was suspended without pay for two weeks, assigned to desk duty for 5 1/2 months and put on six month’s probation. He returned to active duty in August 2009 and remains with the department.
Following his 2008 arrest, Polanco pleaded guilty to misdemeanor disorderly intoxication and was sentenced to time served.
A jury trial in the suit, which seeks unspecified damages, is set for October 2012. The Marco Island Police Department also faces a count of excessive force, which it didn’t seek to dismiss.