Cheryl Krause of Dechert/courtesy photo U.S. Third Circuit Judge Cheryl Krause/courtesy photo


An arrestee may not maintain excessive-force claims against four police officers despite what he says is a “blue wall of silence“ concealing which specific member of the group assaulted him, the U.S. Court of Appeals for the Third Circuit ruled Wednesday.

The appeals court affirmed a summary judgment dismissal of claims against two New Jersey state troopers and two officers from the Riverdale police department based on plaintiff Emil Jutrowski’s failure to claim a personal involvement by each officer in the assault on the plaintiff.

Circuit Judges Kent Jordan, Cheryl Ann Krause and Morton Greenberg said they were called on to address how the “personal involvement” requirement for civil rights cases is applied when a plaintiff comes up against the “proverbial blue wall of silence.”

Jutrowski maintained that, as long as he can show that some officer in the group used excessive force, he can bring before a jury all the officers who were present during his arrest.

But that is “simply not the law,” Krause wrote for the panel.

The panel did, however, reinstate a claim for deprivation of access to the courts based on an alleged conspiracy by the officers to cover up misconduct. The panel cited case law holding that material omissions in contemporaneous police reports can be seen by a jury as evidence that officers agreed to line up their accounts. Producing reports that omit the infliction of an injury or the use of force, when it indisputably occurred during an arrest, can be dishonest as an outright lie, the court said.

The case stems from Jutrowski’s arrest on a drunken driving charge after a crash in June 2010.

According to the decision, two state troopers agreed not to handcuff Jutrowski and were escorting him to an ambulance. Because Jutrowski was unsteady on his feet, one of the troopers reached for his right arm to steady him, but Jutrowski responded by pulling his arm away, striking the officer in the head. In response, the other trooper executed a “front leg sweep” maneuver that caused Jutrowski to fall forward onto his face. The troopers struggled to handcuff him, and two Riverdale officers came over to assist.

Jutrowski claims that, during the scuffle, one of the officers kicked him hard on the right side of his face while he was lying on his stomach.

Jutrowski later pleaded guilty to the drunken driving charge, the court noted. He also sued the Riverdale officers, Travis Roemmele and Christopher Biro, and state troopers Jeffrey Heimbach and James Franchino, along with the departments.

According to the decision, the four officers don’t dispute that Jutrowski was kicked, but each asserts that he neither inflicted the blow himself nor saw who did, and Jutrowski, whose face was pinned to the pavement at the time, is unable to identify who specifically kicked him. He therefore brought excessive force and conspiracy claims against all four officers.

U.S. District Judge John Vazquez of the District of New Jersey dismissed those claims, citing a 1988 Third Circuit case, Rode v. Dellaciprete, which held that a defendant in a civil rights action must have “personal involvement” in the alleged wrongs.

On appeal, Krause wrote that despite “the unfortunate situation created for plaintiffs like Jutrowski, who are unable to identify their attackers through no fault of their own,” a plaintiff alleging that one or more officers engaged in unconstitutional conduct must establish the personal involvement of each named defendant to survive summary judgment and take the case to trial.

The court cited three cases from the Third Circuit, as well as others from the Sixth, Seventh, Ninth and Tenth circuits, all holding that the personal involvement of each defendant is a prerequisite to liability in §1983 cases.

The panel declined to break from precedent even while expressing concern that its holding could “effectively immunize” perpetrators of constitutional violations who prevent a plaintiff from learning who specifically is responsible for some harm.

But other avenues for relief, such as a conspiracy claim, might “sufficiently construct the necessary causal connection between the official and some wrongdoing, regardless of whether the plaintiff could see that violation,” Krause wrote.

Jutrowski alleged a conspiracy among the officers—before he was kicked, to use excessive force, and afterward, to cover up that use of force.

The appeals court said Vazquez correctly dismissed the claim that the officers reached an agreement before the alleged kick took place, but disagreed with his ruling that no issue of fact existed concerning a conspiracy after the assault to deprive Jutrowski of access to the courts.

Reports written by Heimbach, Franchino and Roemmele made no mention of significant injuries suffered by Jutrowski during his arrest, although Heimbach, Roemmele and Biro admitted in depositions that they were aware of the injuries, the court said. And troopers Heimbach and Franchino admitted in depositions that they discussed the arrest before completing their reports, the court added.

The ruling doesn’t change the standard for proving a conspiracy but “opens up with greater clarity the avenue for an aggrieved citizen to address officers’ actions when they are constitutionally violative,” said Jutrowski’s lawyer, Robert DeGroot of Newark.

Anthony Seijas of Cleary Giacobbe Alfieri & Jacobs in Oakland, who represented Riverdale, Heimbach and Roemmele, did not return a call seeking comment.

The state defendants were represented by Deputy Attorney General Matthew Lynch. The Attorney General’s Office did not respond to a request for comment.