The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
This is a motion by defendants Detective McComiskey
("McComiskey") and Police Officer O'Brien ("O'Brien") pursuant to
Rule 50 of the Federal Rules of Civil Procedure for (a) a
directed verdict and (b) for judgment notwithstanding the verdict
and, pursuant to Rule 59 of the Federal Rules of Civil Procedure,
for a new trial. Fed.R. Civ.P. 50, 59. For the reasons set forth
below, the motion is denied.
Plaintiff Carlos Soba ("Soba") brought this action pro se in
1983, alleging that several police officers had used excessive
force in effecting his arrest. Motions for summary judgment were
made prior to trial and were granted as to defendants Police
Officers Blackwell, Langan, the Police Department, and the City
of New York, but denied as to defendants Sergeant McGoey
("McGoey"), McComiskey, and O'Brien, who fired a total of
fourteen shots at the plaintiff on March 12, 1982 when they were
effecting his arrest for armed robbery.
The underlying facts leading to the events in question were not
disputed at trial. Soba was one of four persons who committed an
armed robbery of Emmi's Tavern located at the corner of 39th
Street and Second Avenue in Brooklyn, New York, in the evening of
March 12, 1982 in front of more than 30 patrons. Plaintiff and at
least one other accomplice were armed with sawed-off shotguns.
The four robbers parked their car at 40th Street, near the corner
of Second Avenue and walked to Emmi's Tavern. Plaintiff had his
sawed-off shotgun in his belt in view of the patrons while he
emptied the cash register. The other robbers kept the crowd under
control or acted as lookouts.
Meanwhile, McGoey and Police Officer Blackwell ("Blackwell"),
responding to a call of `robbery-in-progress' arrived at 39th
Street and Second Avenue in a police car. A robber exited the bar
as they approached, dropped his shotgun after Blackwell fired two
shots, and fled up Second Avenue. McGoey, in police uniform,
chased the man up Second Avenue, while Blackwell called for
assistance, and reported that shots had been fired. McComiskey,
O'Brien and Langan heard the call "shots were fired" while their
car was heading for 39th Street and Second Avenue in response to
the `robbery-in-progress' call.
Meanwhile, Soba, finding himself in the bar with his
accomplices departed, took the money and exited the bar turning
to his left and, grasping his sawed-off shotgun in both his
hands, proceeded on the sidewalk up Second Avenue towards 40th
Street in an endeavor to get back to the car.
Near the corner of 40th Street, he came across McGoey who was
looking for the robber who had preceded Soba to 40th Street and
had turned the corner. Soba was admittedly carrying the sawed-off
shotgun in plain view. He testified the gun was pointing past his
shoulder, off to his left side, at a 45 degree angle upwards from
a horizontal position. At this point, Blackwell shouted to McGoey
to warn him of Soba's approach and that Soba was armed. McGoey
heard Blackwell's shouting and turned to see Soba and the shotgun
and fired six times in rapid succession, emptying his revolver.
Soba did not fire his shotgun.
At or around the time McGoey and Soba confronted each other,
McComiskey and O'Brien, in the car travelling down Second Avenue
from 41st Street to 40th Street, saw the confrontation, pulled
over towards the sidewalk, jumped out of the car, and fired six
and two shots, respectively, at Soba. Soba did not fire his gun.
Of the fourteen shots fired by one or all the officers, Soba
received six different wounds.
The Conflicting Testimony
The testimony at trial and the briefs on this motion conflict
particularly on the sequence of events during the shooting.
Soba contends that McGoey started shooting at him, that he felt
a bullet hit his stomach, at which he yelled, "Que pasa? I
surrender," that he then felt a bullet hit him in his left hand
(Transcript of Testimony ("Tr.") 73, 194), and/or his left
shoulder, which turned him counterclockwise (Tr. 168) and, then,
felt a bullet hit his right leg (Tr. 168).
He testified, "The Sergeant turned, and when he turned he shot
me in the stomach. . . . Then I said, `Well, what's happening? I
give up.' And that's when I felt the other shot in my hand that
broke this, and then the ones in the back started shooting." (Tr.
73) He similarly testified that after the first ...