CA6: Must ID the police tortfeasor under § 1983 or all avoid liability

Where one of three police officers struck a gratuitous blow that caused a brain injury and plaintiff couldn’t tell which one did it, they all avoid liability under § 1983. Pineda v. Hamilton County, 2020 U.S. App. LEXIS 31404 (6th Cir. Oct. 2, 2020)*:

In a famous tort case, a plaintiff was hit by gunfire when two hunters negligently discharged their shotguns in his direction. The plaintiff could not identify which of the two hunters had fired the injurious shot, but the court held that both could be found jointly liable. See Summers v. Tice, 199 P.2d 1, 2-5 (Cal. 1948). The plaintiff in this case, Ali Pineda, asks us to adopt (and expand) something like this rule for his constitutional claim under 42 U.S.C. § 1983. Three off-duty sheriff’s deputies were providing outside security at a Cincinnati night club. Pineda alleges that one of them hit him on the back of the head with a baton and caused a serious brain injury. He brought an excessive-force claim against all three deputies. At the summary-judgment stage, however, Pineda did not identify the specific deputy who struck the blow. He argues that he should be allowed to proceed to trial against all three deputies even though, on his own telling, two are free of fault. We disagree. Unlike the tortfeasors in Summers who had both been negligent, only one deputy in this case allegedly committed a constitutional violation. Because Pineda did not present evidence that would allow a reasonable jury to identify the deputy who did so, we affirm the grant of summary judgment to all three deputies.

So the blue wall of silence does protect.