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October 17, 1990


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.

A jury trial was held on August 1, 2 and 3, 1990. The jury returned a verdict in favor of McGoey and against McComiskey and O'Brien and awarded Soba $60,000 in compensatory damages. The jury found that McComiskey and O'Brien had acted wantonly or maliciously but did not award punitive damages.


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 ...

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