The opinion of the court was delivered by: Caiazza, United States Magistrate Judge.
Magistrate Judge Francis X. Caiazza
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On June 28-29, 2010 the parties tried to this Court a Fourth Amendment excessive force claim brought pursuant to 42 U.S.C. § 1983.*fn1 Having heard the testimony, reviewed the exhibits, and considered the parties' Proposed Findings of Fact and Conclusions of Law, (ECF Nos. 59, 60), the Court, in accordance with Fed. R. Civ. P. 52(a), issues these findings of fact and conclusions of law. *fn2
Trial was limited to the single claim remaining in this case after summary judgment:
whether Penn Township Police Lieutenant Ralph Boura ("Boura"), and/or Officer William T. Supancic ("Supancic") (together "the Defendants"),*fn3 used excessive force in violation of the Fourth Amendment in subduing and handcuffing George Marshall ("Marshall" or "the Plaintiff") in the late afternoon of January 22, 2006. In making this determination, the court is responsible for resolving factual disputes and assessing the credibility of witnesses. See Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. July 15, 2009). As to the issue before it, the Court finds as follows:
Beginning the week prior to Christmas 2005 and extending well into January 2006, Marshall, grieving the 2003 death of his son, began a period of heavy drinking and abuse of prescription sleeping medication. (ECF No. 57 at16-17, 56). When McKowen arrived at Marshall's home late in the afternoon of January 22, she found him unable to walk. Marshall had ingested four or five Lunesta pills, and had consumed in the neighborhood of fifteen beers, beginning at about 10 a.m. (Id. at 73). After Marshall fell for a third time after attempting to stand, McKowen told him that he needed to go to the hospital.*fn4 She called 911, requesting an ambulance. (Id. at 24, 73). While McKowen was on the phone with the 911 operator, Marshall pulled himself to a standing position, wrested the phone from McKowen, and terminated the call, stating that he did not want to go to the hospital. He again fell to the floor. (Id. at 25). When the 911 operator returned the call, McKowen explained that she had not hung up, and gave the operator Marshall's address. (Id.). Marshall managed to take the phone from McKowen a second time, and fell, breaking the phone connection. The 911 operator repeatedly called Marshall's number. Each time, Marshall, who was crawling to his bedroom holding the telephone, hung up. (Id.).
In response to these events, the 911 dispatcher advised Penn Township police that an ambulance had been sent to Marshall's address. Because of the hang ups and noise in the background during the telephone calls, the dispatcher requested that police respond to what was termed a possible domestic situation. (Id. at 140). Three officers, responded in separate cars. (ECF No. 58 at 45). When the 911 dispatcher identifies a possible physical domestic dispute, Penn Township, in the interest of safety, sends every available car. (Id. at 46). Where an ambulance is also dispatched, EMTs are not allowed to approach without police clearance. The function of police is to secure the scene, making it safe for ambulance personnel. (ECF No. 57 at 135, 141; ECF No. 58 at 3, 4,5).
Supancic was one of the officers responding to the January 22 call. As he drove down Marshall's road, with Boura and Pecora following in separate cars, he saw a woman waving to them from a driveway. (ECF No.57 at 141). McKowen told the officers that Marshall was highly intoxicated, had been drinking for some time, could not stand, and needed to go to the hospital. (ECF No.57 at 26, 143; ECF No. 58 at 79). The officers asked about her condition, and she replied that she was fine. (ECF No. 57 at 143). In response to their questions, McKowen told the officers that Marshall did not have dogs, but that there were weapons in the house. (Id. at 27, 143; ECF No. 58 at 48, 86). The officers did not ask, and McKowen did not specify the type or location of the weapons. (ECF No. 57 at 27, 143). She informed the officers that she had last seen Marshall crawling to his bedroom, and gave them permission to enter the home. (Id. at 26). Per the officers' instructions, McKowen remained outside . (Id. at 28, 44).
Supancic and Pecora entered the home first, with Boura following. (Id. at 144; ECF No. 58 at 46). The home was a small older mobile home, and the interior was dark (ECF No. 57 at 144). The officers shouted for Marshall. Supancic told him that they were there to help him, and that McKowen thought he needed an ambulance. (ECF No. 57 at 145; ECF No. 58 at 47). When Marshall responded vehemently that he did not want to go to the hospital, the Defendants were able to locate him in a dark bedroom. (ECF No. 57 at 144). Two of the officers turned on their flashlights. (ECF No. 57 at 144, ECF No. 58 at 47). Marshall, who missed the bed when he tried to get in it, was lying on the floor in a narrow space between the bed and a wall. He was facing the bed with his head about six inches from a night stand. (ECF No. 57 at 59-61, 144; ECF No. 58 at 29 47; Pl.Tr. Ex.1).
Pecora entered the bedroom first, and stood at the head of the bed, behind Marshall. (ECF No. 58 at 47). Supancic was in the doorway slightly to the left, and Boura was behind him. (Id.). Marshall, who was clearly highly intoxicated, was positioned partially on his side with his right arm beneath him, and was flailing, moving, and turning in an attempt to stand. (Id. at 29, 80). One of the officers tapped Marshall's feet, telling him to get up, that they were there to help him. (ECF No. 57 at 59, 62, 145; ECF No. 58 at 47). Marshall told the officers that he was not doing anything wrong, and wanted to get in bed. (ECF. No. 57 at 28, 62). Despite being ordered repeatedly to do so, Marshall refused or was unable to show both of his hands. (ECF No. 57 at 145; ECF No. 58 at 29, 48).
In an effort to stand, Marshall reached one hand toward the bed and in the general direction of the night stand. (ECF No. 57 at 62, 146; ECF No.58 at 48). Pecora attempted to grab Marshall's hand, but nearly fell in the process. (ECF No. 57 at 146). Trying to prevent Pecora from falling, Boura ordered him to release Marshall's hand. (ECF No. 58 at 48). While Marshall was still reaching, Boura ordered Supancic to use the Taser. (Id. at 50).*fn5 Supancic, who had never deployed a Taser in the line of duty, pulled the Taser from its holster, aimed it at Marshall's torso, pulled the trigger, and saw the probes deploy. (ECF No. 57 at 146; ECF No.58 at 21). The probes struck Marshall in "the lower left stomach area and his left thigh area." (Def. Tr. Ex. C at 3). Marshall felt a sensation "like getting electrocuted" that lasted "a couple of seconds."(ECF No. 57 at 64). For a split second, Marshall stopped moving, but then resumed flailing and reaching. (Id. at 147). One of the officers said, "Get the motherfucker again." (Id. at 64). Almost immediately after pulling the Taser trigger the first time, Supancic, thinking that the Taser had not worked, "instinctively"pulled the trigger again. (Id. at 147). Neither the probes nor the Taser contacts touched Marshall as a result of this second pull of the trigger. Boura "could see that "the bottom probe had fallen out," (ECF No. 58 at 73), and said, "[The Taser] didn't work, it didn't work, just grab him." (Id.).
Supancic then took one of Marshall's feet, Boura took the other, and Pecora took his shoulders. (Id. at 147-48). The three carried Marshall into the living room. There, the officers paused and attempted to, but could not handcuff the Plaintiff. (ECF No. 57 at 148; ECF No.58 at 25, 51). Supancic placed the Taser against Marshall's body, and activated it in drive stun mode in order to secure Marshall's compliance. (ECF No. 58 at 25). The Taser did not give Supancic "the effect" he wanted, and Marshall continued to struggle. (Id.). The officers again picked Marshall up, carried him into the yard, and put him down on his back. (ECF No. 57 at 148). While he was being carried, he was not struggling. (Id. at 30). Supancic stated that about forty-five seconds elapsed from the time that the officers entered Marshall's bedroom and the time that he was carried into the yard. (Id. at 153). In light of McKowen's credible testimony, however, the Court finds that the time elapsed should be counted in minutes - albeit very few minutes -rather than seconds.*fn6
Once Marshall was on the ground outside, Pecora and Supancic rolled him to his stomach with his right arm pinned underneath his body. Marshall continued to flail. (ECF No. 58 at 52). At that point, Pecora was able to lock Marshall's left hand behind his back in preparation for cuffing. (Id.). The officers believed that cuffing Marshall was essential to ensuring the safety of the EMTs as they attempted to assess him. (Id. at 3). Supancic was on Marshall's right side, trying to free Marshall's right arm from under his body so that he could be cuffed. (Id.; ECF No. 58 at 62). He was unsuccessful. (Id.). Boura then took the Taser, removed the cartridge, and told Marshall that if he did not present his right arm he would be tasered. (ECF No. 58 at 52). When Marshall failed to comply, Boura "gave him a real quick" application of the Taser in drive stun mode. (Id.). When Marshall's arm did not come free, Boura again used the Taser, for about a ...