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Bromwell v. Pancoke

United States District Court, E.D. Virginia, Newport News Division

July 25, 2018

AMANDA BROMWELL, Plaintiff,
v.
JOSHUA PANKOKE, Defendant.

          OPINION AND ORDER

          DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE

         In this action brought by Amanda Bromwell alleging personal injuries and constitutional violations, the Defendant, Joshua Pankoke, [1] a police officer employed with the Police Department for the City of Poquoson, Virginia, moved for summary judgment on the grounds of qualified immunity. (ECF No. 15). Pankoke argues the evidence is insufficient to permit a reasonable juror to conclude he used excessive force while arresting Bromwell on destruction of property charges. See Def.'s Mem. Supp. Mot. Summ. J. ("Def.'s Mem.") (ECF No. 16). Bromwell filed a brief opposing summary judgment. (ECF No. 17).

         After reviewing the exhibits and testimony the parties have submitted in contest of the summary judgment motion, this court concludes that there is evidence from which a reasonable juror could conclude that Pankoke used excessive force and acted unreasonably in restraining Bromwell while arresting her. Accordingly, as explained in greater detail below, the court will DENY the Defendant's Motion for Summary Judgment (ECF No. 15).

         I. FACTUAL AND PROCEDURAL HISTORY

         This opinion recites the facts as alleged by both parties, resolving any differences in their allegations in favor of Bromwell as the non-moving party. Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 150 (2000). On the evening of June 11, 2015, Bromwell stayed the night with a coworker at his home in Poquoson, Virginia. Bromwell Dep. at 13 (ECF No. 16-3). She stayed at her coworker's home throughout the next day. Id. at 13-14. During the day of June 12, 2015, Bromwell estimated she consumed 12 to 15 beers. Id. at 14. Late in the day, a dispute arose between Bromwell, her coworker and his friends. Id.

         Pankoke offered testimony from one of the residents of the home who said Bromwell refused to leave when asked and scratched and bit at the residents when the residents removed her by force. Trial Tr. at 33 (ECF No. 16-1). The same witness said Bromwell broke a window from outside the home after having been removed. Id.

         Bromwell described the dispute differently:

I wanted to leave and the one resident didn't want me to leave. Then when I left, I came back. I had left my purse and he wouldn't give me my purse and that is where the big argument began I left [the trailer]. I walked out. And then I started to-I started down the driveway and realized I left my purse. And when I came back, I banged on the door and said I needed my purse and he said, "No. You wanted to leave. You are not coming back in." And I was banging on the door saying I need my purse.

         Bromwell Dep. at 15 (ECF No. 16-3). When asked if she tried to force her way into the home, she said, "No." Id. When asked if she had broken a window, she said, "No." Id. She said she left the home "voluntarily." Id.

         During the dispute, the Poquoson Police Department was called to investigate the disturbance. When Pankoke arrived, Bromwell was sitting in a chair outside the house. Pankoke Dep. at 18 (ECF No. 16-4). Pankoke left her there and spoke to the residents of the home, who told him she had been disruptive, refused to leave the home, and that they had to remove her. Id. at 19. Pankoke returned to Bromwell, who was by then receiving first aid for an injury to her foot from paramedics who had also responded to the call. Id. After having spoken with the residents, Pankoke decided to arrest Bromwell for misdemeanor public drunkenness and destruction of property. Id. at 21-22.

         Pankoke testified that, after he took her from the paramedics, Bromwell "was screaming and carrying on and yelling." Id. at 23. He was able to put her in handcuffs. Id. at 9. When he brought her to his patrol car, he instructed her to lean up against the trunk of the car, which she did, still in handcuffs. Id. at 8. While she was leaning against the car, Pankoke testified that Bromwell kicked him. Id. at 9. Pankoke testified that, after she kicked him, he told her to stop and she continued, so he "took her to the ground." Id.

         Again, Bromwell offers a different version of the events. She testified she was handcuffed immediately when the police arrived and that she cooperated with Pankoke throughout her interactions with him before he "smashed" her to the ground. Bromwell Dep. at 16-17 (ECF No. 16-3). She testified she was cooperative, spoke calmly, and did not struggle with Pankoke. Id. She testified she did not kick Pankoke while he had her leaned against the trunk of his police car in handcuffs. Id. at 17.

         Bromwell also offered testimony from a neighbor named Walter Battaglia, who saw Pankoke force Bromwell to the ground. Battaglia described the takedown consistently with Bromwell's version: "The officer slammed her brutally.... He picked her up like she was nothing, and he just slammed her right on her face.. .. You could hear the impact." Trial Tr. at 7 (ECF No. 16-2). Battaglia - who does not know Bromwell - testified he was about 40 feet from Bromwell and Pankoke with an unobstructed view of them. He testified he neither heard her make any sounds nor did he see her strike or do anything to Pankoke prior to her being "slammed" to the ground. Id. at 8-9. Although Pankoke testified that he told Bromwell to stop kicking him, Battaglia denies that he did so.[2] Mrs. Chantielle Battaglia also testified that she witnessed Bromwell "getting arrested and the cop slamming her to the ground." Trial Tr. at 20 (ECF No. 16-2). Like her husband, Mrs. Battaglia did not see Bromwell kick or make any contact with Pankoke and did not hear the officer purportedly telling her to stop kicking him. Id.

         Bromwell is five feet and three inches tall and weighs approximately 140 to 150 pounds. Bromwell Dep. at 24 (ECF No. 16-3). At the time of the incident she was barefoot. Trial Tr. at 42 (ECF No. 16-1). Pankoke is six feet and one inch tall and weighs approximately 270 pounds. Pankoke Dep. at 8 (ECF No. 16-4).

         After forcing Bromwell to the ground, Pankoke recognized that he had injured her and had the paramedics who were still on the scene transport her to the hospital for medical treatment. Pankoke Dep. at 23 (ECF No. 16-4). She was diagnosed with lacerations to the forehead and face, a black eye and head trauma, and a closed head injury. Ex. 1 to Bromwell Dep. (ECF No. 16-3). Bromwell testified that she was concussed, vomiting and dizzy and that her wounds had to be sutured. Bromwell Dep. at 18.

         Bromwell was later charged with assault and battery of a law enforcement officer for allegedly kicking Pankoke. After a trial at which she pled not guilty, she was convicted of misdemeanor obstruction of justice. Trial Tr. at 33 ...


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