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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : TYRONE SYKES : : v. : Civil No. CCB-05-2846 : WICOMICO COUNTY, et al. : : MEMORANDUM Now pending before the court is a joint motion for summary judgment filed by defendants Officer Howard Phillips and Officer John Alessandrini. The plaintiff, Tyrone Sykes, has sued the defendants for alleged violations of federal and state law arising out of his arrest for criminal trespass in Salisbury, Maryland. The issues in this case have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons stated below, the defendants' motion for summary judgment will be denied.

BACKGROUND On September 22, 2004, at approximately six p.m., Deputies Phillips and Alessandrini received a call from dispatch, informing them that Ms. Gladys Stewart, the owner of Stewart Funeral Home in Salisbury, Maryland, called to report that a group of men were trespassing on her property. (See Def.'s Mem. at Ex. 2, Alessandrini Dep. at 11.) Specifically, Alessandrini reported that dispatch stated that "the owner of the business called and advised that there were people loitering on her property, drinking beer and selling drugs." (Id.) The officers never personally spoke to Stewart. (Id. at Ex. 1, Phillips Dep. at 14.) Deputy Phillips and Alessandrini responded to the call around the same time and, upon -1-

arriving at the Funeral Home, the officers observed six men loitering in the parking lot. (Id.) The officers approached the men, and advised them they were trespassing and the owner of the Funeral Home asked them to leave. (Id.) One of the men, Vincent Parker, became quite nervous and ran away from the scene. Officer Alessandrini ran after Parker with Officer Phillips close behind. Neither officer was able to catch Parker, and both returned to the Funeral Home parking lot. At the scene, another of the six men, Albert Flow, had not left the parking lot, and refused to leave. (Id. at Ex. 2, Alessandrini Dep. at 15-16.) As a crowd began to form across the street, Flow began cursing at the police officers, and Officer Alessandrini arrested Flow. (Id.) Sykes drove on the Funeral Home parking lot as Flow was being arrested. Sykes reports that he came to the Funeral Home because he had an appointment to meet Billy Handy at the Funeral Home to discuss possible real estate transactions. (Pl.'s Opp. Mem. at Ex. 4, Sykes Dep. at 28-30.) When Sykes came on the lot, he noticed that the man being arrested (Flow) was an acquaintance of his. According to the defendants, Sykes moved toward Flow and the officers and began yelling. (Def.'s Mem. at Ex. 2, Alessandrini Dep. at 21-22.) Sykes reports that he merely asked whether Flow was okay. (Pl.'s Opp. Mem. at Ex. 4, Sykes Dep. at 39.) Defendants asked Sykes what he was doing on the property, and whether he worked at the Funeral Home. When plaintiff responded that he did not work at the Funeral Home, Alessandrini told Sykes that he needed to leave or be charged with trespassing. (Def.'s Mem. at Ex. 2, Alessandrini Dep. at 29-30.) Sykes informed the officers that he was not trespassing, and that he was there for some business. (Id. at Ex. 1, Phillips Dep. at 25.) The officers never investigated whether Sykes was actually there for business purposes. (Id. at Ex. 2, Alessandrini Dep. at 31.) After some back and forth over whether Sykes was, indeed, trespassing, Sykes

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reports that Officer Phillips approached Sykes, began yelling at him, "shoved his finger in Sykes face" and ordered "you will do whatever I tell you to do. (Pl.'s Opp. Mem. at Ex. 4, Sykes Dep. at 44-45.) According to the defendants, Officer Phillips then told Sykes that he had three seconds to leave or he would be charged with trespassing. (Def.'s Mem. at Ex. 1, Phillips Dep. at 25-26.) Phillips next told Sykes that he could either go knock on the door to see if the Funeral Home was open or leave the premises. (Id.) From this point, the facts are in dispute. According to Sykes, he walked around the officers and started toward the front door of the Funeral Home. After walking several feet onto the wheelchair ramp of the Funeral Home, Sykes reports that Phillips said "too damn late," and somebody grabbed his arm from behind. (Pl.'s Opp. Mem. at Ex. 4, Sykes Dep. at 48-49.) Sykes states that he was not told he was under arrest. (Id.) Sykes turned around and grabbed the arm that had touched him. (Id.) Sykes contends that as he turned, "Phillips yelled ... `you're under arrest', a second person jumped on Sykes's back and proceeded to strike him, while a third person stated, `I am going to pepper you.'" (Id. at 50-53.) Sykes then states that he was "blasted" by the pepper spray, which disoriented him, and made him stumble before landing on his knees. Sykes reports placing his hands on the ground, but the officer on his back pulled his arms up toward his head, causing Sykes to go face first to the pavement. (Id. at 55-56.) The officers then pinned Sykes's head into the ground, while applying the handcuffs. After the handcuffs were applied, the "officer that was standing on top of [Sykes], [took] his knee and [dropped] it into the side of [Sykes'] face," while Sykes was pepper sprayed for a second time, by an officer wearing shorts. (Id. at 62-64.) Sykes was not able to identify which officers committed which acts, due, in part, to the pepper spray and the fact that the man beating him was

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on his back. (Id. at 73.) The defendants report a different story. The defendants state that after telling Sykes that he could either go inside and take care of his business or leave, Sykes remained on the property to argue with the officers. At that point, the officers decided to arrest Sykes for trespassing. (Def.'s Mem. at Ex. 1, Phillips Dep. at 26.) The defendants contend that as a crowd of about thirty people were watching from across the street, Phillips grabbed Sykes, whereupon "Plaintiff turned around, yanked his arm away from Deputy Phillips" and began walking away from Phillips. (Id. at 32-33.) When Sykes began walking away from the Officers, they considered him to be "fleeing." (Id. at 36.) Defendants recount that they grabbed Sykes's arms from behind, but Sykes attempted to pull away. (Id. at 34.) Alessandrini reports that they were "outnumbered" by the crowd watching. (Id. at Ex. 2, Alessandrini Dep. at 24-25.) As Phillips struggled with Sykes, Alessandrini shot a blast of pepper spray into Sykes's face, which caused Sykes and Phillips to fall to the ground. (Id. at 27-28.) The defendants contend that Sykes continued to resist arrest and the Deputies struggled to get Sykes's arms into handcuffs. (Id. at 34.) As Sykes continued to struggle and resist arrest, Deputy Alessandrini placed his knee on the back of Sykes's neck. (Id. at Ex. 4, Statement of Probable Cause.) Around this time, a Deputy Arnold arrived and also helped the Deputies subdue Sykes. (Id. at Ex. 2, Alessandrini Dep. at 32.) The defendants claim that Deputy Phillips and Deputy Alessandrini never struck Sykes at any time. (Id. at Ex. 2, Alessandrini Dep. at 32.) The defendants aver that Deputy Arnold was the only officer wearing shorts that night, and was the officer that blasted the second pepper spray at Sykes and put his knee to Sykes's face. (Id. at 12, 32, n.8.) After the arrest, defendants note that Sykes apologized to Phillips because he felt it was

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"the right thing to do." (Pl.'s Opp. Mem. at Ex. 4, Sykes Dep. at 73-74.) Other witnesses who viewed part of the incident also were deposed. Keith Dockins, who was driving slowly by the incident, reported that he saw two officers talking to a black man, though he could not hear what was said at that time. (Def.'s Mem. at Ex. 10, Keith Dockins Dep. at 19-20.) Dockins testified that as the conversation progressed, "the smaller police officer all of a sudden just grabbed [Sykes], snatched him up and throwed him on the ground him with

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