United States District Court, Eastern District of New York
June 17, 1991
STANLEY MERZON, AS ADMINISTRATOR OF THE GOODS, CHATTELS AND CREDITS OF PAUL MERZON, PLAINTIFF,
THE COUNTY OF SUFFOLK AND JAMES EMANUELE, DEFENDANTS.
The opinion of the court was delivered by: Spatt, District Judge.
OPINION AND ORDER
In the early hours of Saturday, October 27, 1984, at a grassy
area behind a fence at the dead end of East Gate in Copiague,
a twenty-three year-old man was shot and killed by a Suffolk
County police officer. The facts leading up to the encounter in
the grassy area are virtually undisputed. The occurrences in
the grassy area, however, are controverted and the versions are
diverse. As a result of this tragic occurrence, this section
1983 wrongful death and pendent state-law claims case was
brought. The central issue presented before the Court is
whether there was excessive force exerted by the police officer
in violation of the decedent's rights under the Constitution
and laws of the United States and under the laws of the State
of New York.
I. PRELIMINARY STATEMENT
This case was originally assigned to the late District Judge
Mark A. Costantino. Although the plaintiff initially failed to
demand a jury trial, such a demand was later made in an amended
complaint. By memorandum decision and order filed on July 10,
1986, Judge Costantino granted the motion of the defendants to
strike the jury demand. Thereafter, the case was randomly
reassigned to this Court, which held a bench trial on March 19,
20, 21, 25 and 26, 1991. The following constitutes the Court's
findings of fact and conclusions of law (see
II. THE COMPLAINT
In the Complaint, the plaintiff-administrator Stanley Merzon,
father of the decedent
Paul Merzon, set forth seven causes of action, as follows:
1. Pendent state-law claim based on assault and battery for
damages for conscious pain and suffering against both
2. Pendent state-law claim based on assault and battery for
damages for wrongful death against both defendants;
3. Claim for damages for both conscious pain and suffering
and wrongful death based on violation of his Constitutional
rights under 42 U.S.C. § 1983 against defendant James
4. Claim for ratifying acts of brutality, use of excessive
force and permitting police officers to carry a second firearm
in violation of 42 U.S.C. § 1983 and the rule in Monell
v. Department of Social Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978) against the defendant County of
5. Pendent state-law claim based on negligence with regard to
the hiring, training, testing and supervision of defendant
James Emanuele for damages for conscious pain and suffering
against both defendants;
6. Pendent state-law claim based on negligence, alleging the
negligent and reckless use of excessive force by defendant
James Emanuele for damages for conscious pain and suffering
against both defendants; and
7. Pendent state-law claim based on negligence for damages
for wrongful death against both defendants.
III. THE TRIAL
The Court will first review the evidence adduced at the
trial. Throughout this review the Court will make credibility
determinations and its required findings of fact. (Fed.R.Civ.P.
The Plaintiff's Case:
The Facts Preceding the Encounter in the Grassy
As stated above, the facts preceding the occurrences in the
grassy area are substantially undisputed. On Friday, October
26, 1984, at about 4:00 p.m., Stuart Cantara entered the
Something Else Pub in Copiague, Long Island, New York, where he
remained drinking beer until approximately 1:30 a.m. the
following morning. During that time, he consumed as many as
twenty beers. That evening he was joined at the Something Else
Pub by three friends, William Oberlin (also known as "Buzzie"),
Neal Schwartz and Paul Merzon, his roommate. Some time during
the evening Cantara got into an altercation with a former
girlfriend and, in an angered, intoxicated state, left the bar,
got on his motorcycle and sped off.
Just before he left the bar, Diane Zaffuto, another friend of
Cantara, and Greg Giles drove up to the bar in time to see
Cantara drive away on his motorcycle. The five friends were
concerned about Cantara's safety since they knew he had been
drinking, did not possess a driver's license and they saw a
police car follow his motorcycle. In two cars, the five friends
— Oberlin, Schwartz, Merzon, Zaffuto and Giles —
drove to the East Gate home of Cantara and Merzon in an effort
to meet and assist the intoxicated motorcyclist.
Meanwhile, a high-speed chase developed. At first Cantara was
pursued by one police car with its lights and siren on. Cantara
traveled at high speed and without lights in an effort to evade
his pursuer. He sped down East Gate in the vicinity of his home
closely pursued by the police car. The street and curb ended at
a chain-link fence with a four or five-foot wide gap or hole in
the fence. This gap or hole in the fence was described by some
witnesses as a "gate" in the fence, although the photographs in
evidence reveal that it is merely a gap or open space in the
chain-link fence, where a section of fencing is removed
(see Plaintiff's Exhibit 2E). East Gate is a culde-sac
(see Plaintiff's Exhibits 2M and 2N). Shrubbery lined
the side of the fence except for the area of the "gap". At the
dead end, Cantara drove his motorcycle through the hole in the
fence onto a grassy area east of the fence and then onto a
street near an abandoned school on the other side of the fence.
The police car was
forced to stop at the dead end and could not pursue further.
Cantara then circled around the neighboring blocks in an
effort to return undetected to his home on East Gate. However,
in doing so, he was observed by at least two other police cars
who took up the chase. Again Cantara sped down East Gate, this
time closely followed by two police cars with sirens and lights
on. Once again Cantara reached the dead end and attempted to
drive his motorcycle through the hole. The motorcycle
apparently struck the fence and Cantara was thrown off and
through the hole onto the grassy area. The two police cars
stopped at the dead end on each side of the gap (see
Plaintiff's Exhibit 2D), and the two police officers, the
defendant James Emanuele and James Lilly, left their cars, went
through the hole in the fence on foot and approached Cantara
who was laying on the ground. At this point, the respective
The Occurrences at the Grassy Area
WILLIAM OBERLIN testified that he walked through the "gate"
with Paul Merzon and saw Cantara on the ground with a police
officer on each side of him. Cantara was struggling with the
police officers who were holding him by the shoulders, trying
to push him down to the ground. One of the police officers, the
defendant James Emanuele, kicked Cantara in the side three or
four times. Merzon "grabbed" Officer Emanuele's foot to stop
him from kicking Cantara. Officer Emanuele then pushed Merzon
back and Merzon fell down. Officer Emanuele was then ten feet
from Merzon who got up and moved forward toward the two police
officers. Oberlin got down on his knees to try to calm Cantara
when he heard a shot. He looked over and saw Merzon falling
back with his hands up and then fall to the ground. He did not
see the actual shooting.
Oberlin further testified that his other friends were outside
the gate and not in the grassy area. Oberlin could not recall
whether Diane Zaffuto or Greg Giles even walked down to the
gate or whether they remained near the Merzon-Cantara house on
East Gate. He stated that after the shooting he "believed" that
Merzon was still alive in that he "heard him mumbling".
NEAL SCHWARTZ, a friend of Merzon, arrived at the Something
Else Pub about 8:00 p.m. that night and saw Cantara arguing
with someone. Schwartz was on crutches as a result of a
work-related accident. He saw Cantara leave on his motorcycle
and he followed with Merzon and Oberlin. Together they drove to
the Merzon-Cantara home on East Gate. He saw Cantara coming
east on East Gate followed by two police cars. All five of the
friends walked toward the gate. Schwartz testified that only
Merzon and Oberlin went through the gate into the grassy area.
He stayed on the outside with Zaffuto and Giles.
Schwartz testified that looking through the gate, he saw
Cantara on the ground and the two police officers holding him
down. Cantara grabbed one of the officer's legs and pulled him
down. Both officers started kicking Cantara. Merzon grabbed one
of the officer's legs and said "stop kicking him" (Tr. at p.
273).*fn1 One of the officers pushed Merzon back and he fell
back four to six feet, with his hands raised. The police
officer pulled out his revolver and told Merzon to "hold it
right there", and Merzon replied "okay" (Tr. at p. 274). A few
seconds went by and the officer shot Merzon. Schwartz
identified the shooter as the defendant James Emanuele.
Schwartz stated that Emanuele was approximately eight to ten
feet from Merzon at the time he shot him and Merzon was
"[s]lightly turned away from the officer just a hair, to the
right" (Tr. at p. 276).
Schwartz testified that he heard "gurgling noises" and
attempts at breathing from Merzon, with blood oozing from his
mouth for at least twenty or twenty-five minutes (Tr. at p.
On cross-examination, Schwartz again testified that he never
went through the gate onto the grassy area.
STUART CANTARA did not recall all of the events that occurred
on that fateful evening. At that time, he lived with Merzon at
26 East Gate. He arrived at the Something Else Pub in the
afternoon of October 26, 1984, at 4:00 or 5:00 p.m., and was
drinking beer until he left some time about midnight. He
testified that he probably had "around" twenty beers (Tr. at p.
367). At the Pub he had an argument with his former girlfriend
and left on his Harley-Davidson motorcycle, even though he had
no valid license to drive a motorcycle. A high-speed chase by
police cars ensued. On his second pass down East Gate, with
police cars in hot pursuit, he approached the fence. According
to Cantara, a car smashed into the rear of his motorcycle,
which ran into the fence, ejecting him over the bike (Tr. at p.
Upon a review of all the evidence, the Court finds that the
motorcycle was not struck by the police car, but itself struck
a portion of the fence as he attempted to pass through it.
Cantara was then propelled into the grassy area onto the
ground. He tried to sit up and was knocked back down. His
helmet came off in a backward position and was choking him. He
was trying to rise to get his helmet off when he heard a shot.
The next thing he remembers he was sitting in a police car. He
did not see the actual shooting (Tr. at p. 375).
On cross-examination, Cantara conceded that he pled guilty to
driving while intoxicated that evening. He stated that it was
"possible" that he grabbed a police officer's leg and pulled
him to the ground (Tr. at p. 394). Significantly, he recalls
that "[t]here was like a fight going on, not a fight but
pushing and things" (Tr. at p. 397). He remembers "pushing and
shoving" and he heard a shot (Tr. at pp. 398-99).
Oberlin and Cantara were both charged with assault in the
second degree, resisting arrest and obstruction of governmental
procedures, and were both acquitted after trial in the County
Court of Suffolk County.
DIANE ZAFFUTO, a former girlfriend of Merzon, worked at the
Something Else Pub as a bartender, although not on the night of
the incident. Zaffuto visited the Pub with Greg Giles, her
then-boyfriend, at about 11:00 or 11:30 p.m. She later saw a
commotion at the front door and Cantara got on his motorcycle.
She was concerned because "Stuie was drunk" (Tr. at p. 426).
She went to East Gate with Giles "to see if Stuie was okay, if
he went home" (Tr. at p. 428). Zaffuto saw Cantara pass by on
his motorcycle. He was "going real fast" with a police car
behind him and she saw him go through the opening in the fence
into the schoolyard (Tr. at p. 429).
Zaffuto does not remember anything after that, until she
recalls walking to the dead end of East Gate. She saw Cantara
on the ground being kicked by a policeman and Merzon standing
with both his hands up. Her description in Court of Merzon with
his hands up was substantially the same as that of Oberlin and
Schwartz. She next remembers hearing a shot, at which time she
"blacked out" (Tr. at pp. 431-32).
On cross-examination, Zaffuto testified that she did not
actually see the shooting. The closest she saw Merzon get to
either police officer was approximately fifteen to twenty feet.
She does not think she went through the gate onto the grassy
GREG STEVEN GILES was the plaintiff's strongest witness. He
stated that he did not know Merzon. Giles drove to East Gate
with his friend Zaffuto and walked to the end of East Gate. He
saw Cantara on the ground trying to get up and being knocked to
the ground by two police officers. Merzon walked through the
gate and pushed one police officer in the chest saying "knock
it off, he has had enough" (Tr. at p. 474). Officer Emanuele
pushed Merzon back four steps. Emanuele then took two steps
back. At that point, according to Giles, Emanuele and Merzon
were separated by nine feet. Officer Emanuele drew his gun and
pointed it at Merzon and said "Get back" (Tr. at p. 478).
Merzon raised both hands and said, "Oh, my God, don't shoot"
and then Officer Emanuele fired
one shot at Merzon's upper torso and Merzon went down (Tr. at
Giles further testified that he was at the scene for four
hours. An ambulance arrived thirty to forty minutes after the
shooting. Remarkably, during all this time, according to Giles,
Merzon was laying there, still alive and no one was attending
to him. His testimony in this regard is as follows:
"Q Did you have occasion to observe the person of
Paul Merzon after he was shot and you indicated he
went down on the ground?
A Yes, I did.
Q Would you please describe what you saw?
A Well, it was at least 20 minutes after he was
shot. He was still laying there and no one was
attending him. I thought maybe if he was bleeding
I could suppress the wounds by pressing direct
contact. I walked over to him. Since no one else
was I walked over to him. And he was still alive,
at least 20 minutes later.
THE COURT: All right. What did you observe about
THE WITNESS: He was speaking.
THE COURT: What did he say?
THE WITNESS: He said, oh, my God, I am going to
I placed my hand under his head and told him he is
not going to die. I said I don't see any blood, I
don't think you are going to die.
At that point one of the officers came up to me
sticking a gun in my face and told me they would
blow my head off if I go near the body again. I
went back by the hole in the fence where I was
standing all the time.
Q Were you lying to Paul about seeing the blood?
A No, not at all. I didn't see any blood.
Q Describe what you saw?
A I was mostly looking at his face. I wanted to
see if he was breathing. I wasn't examining the
chest wound. I didn't see any wound. I didn't see
any blood" (Tr. at pp. 481-83).
However, Giles testified before the Grand Jury shortly after
the incident that police officers arrived at the scene, looked
at Merzon and checked his pulse. Also, before the Grand Jury he
testified that when he went over to Merzon, he was incoherent.
The Court does not credit the testimony of Greg Giles that
Merzon was still alive twenty minutes after the shooting and
that he saw no blood on his face or body. The photographs in
evidence (see Plaintiff's Exhibits 2G and 2H), show
Merzon lying on the ground on his back with visible blood on
his face and hands. The gunshot wound perforated the aorta, the
pulmonary artery, both lungs and the pericardium. Moreover, Dr.
Arden, the Medical Examiner, later testified that death was
On cross-examination Giles stated that he, Zaffuto and
Schwartz were at the gate but did not go through to the grassy
area. At the time of the shooting, Merzon and Emanuele were
"facing each other" and "parallel to each other" (Tr. at p.
516). There were approximately six and one-half feet between
the gun muzzle and Merzon, considerably shorter distances than
the measurements he gave before the Grand Jury.
Police Officer JAMES EMANUELE, who had training in martial
arts and was a weight lifter, carried two sidearms on the
evening of the occurrence. He had his service revolver in a
holster on his right hip and a second revolver in a holster on
his left hip with the butt facing front. He is right-handed. In
his radio car, he got into the chase after Cantara's motorcycle
on the second time around at approximately 1:30 to 1:40 a.m.
With siren on, he pursued Cantara to the gate at East Gate
followed by Officer James Lilly. In trying to drive through the
gap, the motorcycle hit the fence and Cantara rolled off onto
the grassy area. Emanuele parked his car, leaving the
headlights on to illuminate the grassy area, as did Officer
Lilly. He walked
through the gate onto the grassy area. Within a minute or so a
group of people came through the gate. Zaffuto, Merzon, Oberlin
and Giles all came through the gate, together with several
Emanuele described what he said occurred in the grassy area.
Cantara was lying on his back yelling and screaming
profanities: "you scum bags, you are going to f___ing die" (Tr.
at p. 635). Cantara also said something about his friends. Both
Emanuele and Officer Lilly were yelling to Cantara to "calm
down . . . take it easy." They wanted to see what was in
Cantara's hands (Tr. at p. 635). Officer Emanuele then
testified in narrative form as follows:
"I told Stuart Cantara, relax. I want to see your
hands, let me see your hands. He was screaming at
us, cursing at us. He was yelling at us.
There was a shadow behind me. I have turned to see
what the shadow was.
I turned and there was a group of people going
through the gate and they were yelling. There was
a female who testified here, Diane Zaffuto and she
was screaming, you f___ing leave Stuie alone. You
touch Stuie and you are f___ing dead.
Paul Merzon was there and he walked through the
gate. And he pointed right at me with his finger,
and he said to me, you touch Stuie you are f___ing
dead. He pointed at me and said you are f___ing
dead if you touch Stuie . . . Tonight is the night
you are going to die. Exact words . . . He pointed
I turned and Stuart Cantara was taking PO Lilly to
the ground. Grabbed him around the knees and he
drove him into the ground and got right up on top
of him and was punching him, punching him about
the head and face.
Officer Lilly was trying to protect himself, was
I ran to where they were. I got on top of Stuart
Cantara. I put my left knee into his side and
tried to drive him off, off of Officer Lilly, and
I couldn't do it. I took my nightstick and I
hooked my nightstick on the left side of his body
and I tried to pry him off Officer Lilly and I
couldn't do it. I raised my nightstick to strike
It was at that point that the group who threatened
me and who was yelling at me, and including Paul
Merzon, ran, and I was hit in all directions,
front, back, all sides, I was punched around the
head, hit on the side, I was being choked by
William Oberlin. He was around the back and
choking me, pulling me backwards off the top of
At that point Paul Merzon grabbed the second
weapon. He grabbed it and he pulled on it, and I
managed to take my stick and I put it against his
hands and swept his hand off the weapon.
I pushed him backwards, maybe slightly farther
than the back of my leg. At that point I freed my
right hand, and the girl Zaffuto was yelling to
the group, take the stick, hold his arm, get his
arm, all sorts of profanities screaming for them
to get me.
I managed to pull my right arm free of whoever had
it and managed to pull my weapon and I pointed it
at a Paul Merzon's chest and I was screaming
quickly and loudly, back off, please. I didn't
want him near me any more.
At that point William Oberlin was choking me and
he pulled me backwards. And he pulled me backwards
and down to the side, and other people in the
group are grappling with me. The nightstick is
gone. I didn't feel it in my hand any more. It was
taken from me. And I didn't know where it was.
The gun pointing at Paul Merzon's chest moved off
his chest. I was pulling — being pulled
backwards to the ground and the last thing I saw
Paul Merzon lunged for the weapon . . . And I was
being pulled to the ground. I thought he had the
weapon or on top of the weapon and I was
terrified. I managed to get my gun back to the
position and I fired on
the way down to the ground as he was reaching for
I came down to the ground and as I reached the
ground I pulled William Oberlin off me and I
pulled the gun at him and looked at him and Paul
Merzon was laying down on the ground. He wasn't
moving a muscle or saying anything. . . ." (Tr. at
Officer Emanuele testified that at the time he discharged his
weapon, he was "terrified" and had no control of the people who
were on him (Tr. at p. 642).
The Court notes that Officer Emanuele's testimony was
sprinkled with many "approximates". Also, he signed a
supplemental police report which contained factual errors.
Emanuele explains that he was very upset at the time and
pointed out the errors to the detective but was told to sign it
At this point in the trial the plaintiff rested. There was a
motion by the defendant County of Suffolk to dismiss the
plaintiff's action as against it. The Court granted the motion
on the following grounds:
"The plaintiff failed to establish any evidence
that the actions of Police Officer Emanuele
resulted from an official policy of the County of
Suffolk. There was no proof adduced that the
plaintiff was deprived of his constitutional
rights pursuant to any custom, policy, regulations
or decisions of the County of Suffolk. . . .
There is no evidence here that the county
authorized, sanctioned, or ratified any
unconstitutional actions taken by Police Officer
Emanuele, or that the county conveyed in any
officially promulgated policy or persistent
practice, or any deliberate indifference involving
this occurrence, unless it could be a long seated
psychological inculcation of thoughts, which there
is no evidence of at this time. There is no
evidence that there was any county policy or
custom or regular or basic indifference, or
failure of training that contributed in any degree
on [sic] the shooting death of Paul Merzon.
Rather, the evidence appears to the Court at this
time that the tragic incident was an isolated
incident and that it occurred quickly,
spontaneously. And if there was a constitutional
violation and that's what the Court will rule on
when the case is over, it was not in any way
sanctioned or ratified by the County of Suffolk,
or at least no such evidence was presented.
Therefore, the Court grants the motion of the
defendant County of Suffolk to dismiss the
complaint at the end of the plaintiff's case for
failure to prove a prima facie Monell case or any
other case against the County of Suffolk" (Tr. at
Although never raised by counsel for the plaintiff, in
reviewing the record prior to rendering this decision, the
Court considered, sua sponte, the possibility that the
County could be vicariously liable as the employer of the
defendant Emanuele on the pendent state-law claims for assault
and battery for conscious pain and suffering (first cause of
action), wrongful death (second cause of action), negligence in
the hiring of Officer Emanuele (fifth cause of action),
negligence and excessive force resulting in conscious pain and
suffering (sixth cause of action), and negligence resulting in
wrongful death (seventh cause of action). As a result, by Order
dated April 22, 1991, the Court reconvened the parties on May
1, 1991 and afforded them the opportunity to reopen the trial
with regard to the pendent state-law claims against the County
and/or to offer additional evidence with regard to said claims.
Following the conference with counsel on May 1, 1991, the
parties declined the opportunity to reopen the trial and no
additional evidence was adduced.
The Defendants' Case:
Dr. JONATHAN L. ARDEN, board certified in anatomic and
forensic pathology, was, in October 1984, a pathologist and
Deputy Medical Examiner in the office of the Medical Examiner
of Suffolk County, He is currently the Deputy Chief Medical
Examiner of the City of New York.
On October 27, 1984, at approximately 3:50 a.m., he was
called to the grassy area near East Gate and examined the
body which had a gunshot wound to the upper right part of the
chest. He saw blood in the nose and mouth area and on the hands
Dr. Arden conducted the post-mortem examination and prepared
and signed the autopsy report. He recovered the bullet in the
left side upper torso within the soft tissue behind the left
armpit (the rear portion of his underarm). Dr. Arden described
the track of the bullet as follows:
"The bullet wound began in the upper right front
of the chest. . . . And then it enters into the
right chest cavity through the space
between the first and second ribs. . . .
As the track continues it now goes to the central,
through the central portions of the
chest. . . . And the important concept in the
medical terminology is we are in the middle of the
chest cavity where the heart and the larger blood
vessels have their locations.
In this area located just above the heart itself
the track of the bullet penetrates through the
sack surrounding the heart and blood vessels and
then through the roots of the two largest blood
vessels in the body. These two largest arteries
are the pulmonary artery and the aorta. They are
collectively referred to as the great vessels. . .
. Both of these in turn are penetrated by the path
of the bullet. . . .
The bullet then continues on its path through the
body entering from the central compartment
into the left chest cavity. And in doing
so perforating through the left lung. . . .
At this point having exited the chest cavity that
the bullet path enters the soft tissue of the
sides of the chest and the underarm area. . . .
and terminates, as I said, adjacent to the border
of the (left) shoulder blade where I recovered as
I described a deformed large caliber lead bullet.
Now, the only other important point concerning the
internal examination of the body relative to the
gunshot track is that there was a large amount of
bleeding internally, not only in the soft tissues
I described, but there were also large
accumulations of blood in each side of the left
and the right chest cavities" (Tr. at pp. 725-28
The trajectory of the bullet after it entered the upper right
front of the chest was that it traversed the body from the
right to the left and ended under the left armpit. It was not
a "front to rear and out" wound — rather, it went
generally from right to left and very slightly downward and
toward the back.
The cause of death was a single gunshot wound that perforated
both major blood vessels and the lungs, and the subsequent
bleeding caused by such a devastating injury. Significantly,
Dr. Arden testified that death could have occurred as soon as
fifteen to twenty seconds, and as much as "a few minutes or
several minutes" (Tr. at p. 730). As to consciousness, Dr.
Arden stated that the decedent could have been conscious for
fifteen to twenty seconds or possibly a few more seconds and
that conscious activity such as speaking "would not be
possible" after receiving the gunshot wound (Tr. at p. 732).
The sounds surrounding Merzon's death, if any, were agonal
respirations, which denote the several short breaths taken upon
death. Further, Dr. Arden testified that he saw bleeding from
the mouth and nose, which occurred "very soon after the gunshot
wound" (Tr. at p. 732).
While in a demonstrative pose off the witness stand, Dr.
Arden testified that the wound track could be consistent with
the victim crouching and turning to the left by reaching with
his right hand over to the shooter. From the track of the
bullet from right to left inside his body, Merzon would have
had to be turning markedly to his left with his right arm at
the time he was shot.
Dr. Arden also testified that he found stippling on the upper
chest portion of Merzon's body. "Stippling," as described by
Dr. Arden, are partially burned gunpowder particles that emit
from the barrel of the gun with the bullet and become embedded
into the victim's skin, leaving burn marks or dots
(see Defendants' Exhibits F1, F2 and F3; Plaintiff's
Exhibit 2P [photographs of the decedent indicating stippling
marks surrounding bullet wound]). He also removed a small piece
of skin and confirmed microscopically that it contained
"stippling". In addition, he participated in the test-firing of
the weapon involved to ascertain if a similar stippling pattern
existed (see Defendants' Exhibits G1-6).
As a result, Dr. Arden was of the opinion that the muzzle of
the gun was approximately two and one-half to three feet from
Merzon's body when the shot was fired. Based on all of his
findings, Dr. Arden was of the opinion that it was not possible
that Emanuele and Merzon were face to face at the time of the
shooting; nor could Merzon have been turned slightly to the
right; nor could Merzon have been as far away as eight feet
from the weapon.
Police Officer JAMES LILLY was the operator of the second
police car following Cantara on his second pass down East Gate.
In pursuit with his lights and siren on, he saw the motorcycle
strike the fence at the dead end of East Gate and Cantara fall
off the motorcycle. Officer Lilly entered the grassy area,
where Cantara was laying on the ground cursing him. He saw a
group of six or seven people coming through the fence behind
him. He asked them to "back off" and that "this had nothing to
do with them," but "they kept coming" (Tr. at p. 790). Cantara
then reached up and grabbed Officer Lilly's right leg and
pulled him down to the ground and they "rolled around". Cantara
was on Officer Lilly's chest and, with his knees on both sides
of him, struck him in the chest and in the head. Officer
Emanuele tried to remove Cantara from Lilly.
Officer Lilly testified that he then saw Emanuele being
pulled back by "three or four people who were in the crowd
behind" them (Tr. at p. 794). As to this crucial point in the
occurrence, Officer Lilly testified, as follows:
"Q Tell us what you saw at that point?
A At that point Officer Emanuele was struggling
with three or four other individuals who had their
arms all over him. They were trying to pull him
down to the ground.
Q Did you see any women in this group of people?
A There was one woman I noticed, yes.
Q What, if anything, did you see this woman do?
A She was struggling with Officer Emanuele also.
Q What did you see further at this point?
A At that point I observed an individual come from
my right in front of my feet and lunge across
Officer Emanuele and try to attack him or grab him
by the waist.
Q Did you see where that individual's hand was
with respect to Officer Emanuele's equipment or
A Right around the belt.
Q What did you see at that point?
A I saw him struggling with the belt.
Q What person struggling with the belt?
A I saw the person who is the deceased struggling
with the belt.
Q Which portion of the belt? What portion of the
A The left side.
Q Then what?
A Officer Emanuele managed to kick him back and
shove him backwards.
Q Then what did you see?
A Officer Emanuele screamed to back off and pulled
his service revolver.
Q While Officer Emanuele was screaming back off
and pulling his service revolver out were there
any individuals in or around him?
A Three still, three or four people around him,
holding his shoulders and waist and pulling him
back. Q Then what did you see? A The deceased then
lunged at Officer Emanuele again and Officer
Emanuele fired once.
Q Did you see where he was lunging at?
A He was going right back to the belt.
Q Which area of the belt?
A The left side.
Q Of what?
A Officer Emanuele's belt.
Q At that point, sir, at the paint [sic] of the
shooting what were you thinking?
A I was thinking if Mr. Merzon had gained control
of Officer Emanuele's second gun that my life
would be in danger, Officer Emanuele's life would
be in danger and anyone else there for that
matter" (Tr. at pp. 795-98).
Detective DENNIS GANNON, previously a licensed funeral
director for nine years, then a police officer, tried to
intercept the Cantara motorcycle but never got into the
pursuit. He heard a radio call that shots were fired and
arrived at the grassy area at East Gate within thirty seconds
of the call. He examined Merzon's body. His pupils were fixed
and there was no pulse. In his opinion, the person was dead.
Police Officer WILLIAM BROWN was in the pursuit at one time
and lost the Cantara motorcycle. He arrived at the grassy area
from thirty seconds to one minute after a radio call. Merzon
was on the ground and not breathing. The police log showed that
an ambulance arrived at the scene within seven minutes of the
call for assistance.
The defendants then called four residents of East Gate, who
were the only truly disinterested witnesses in this case.
EVERETT NEWMAN resides at 39 East Gate, one house from the
dead end and the grassy area. On the evening in question at
approximately 2:00 a.m. he heard the sounds of a motorcycle
passing his house on two occasions and a police car. The police
car had its lights on but it was foggy. He got out of bed and
went to the window. He heard a man's voice saying something
like "freeze or halt", a woman's voice saying "Vinny or Jimmy",
and then a shot (Tr. at p. 897). He noticed a lot of people in
SAMY MELEK lives at 41 East Gate, the house next to the fence
and grassy area. That evening he heard a lot of loud noises. He
went to his daughter's window and saw two police cars in front
of the gate with their lights on. It was difficult for him to
see because of the trees and bushes in the way. He saw movement
behind the bushes and "a lot of struggles between persons" (Tr.
at p. 885). He also heard the struggles. He heard cursing
before the shot was fired. He heard the sound of "banging" like
someone kicking somebody. He heard the words "freeze", and
"hold it" and "stay down" (Tr. at p. 885).
In his appearance before the Grand Jury a short time after
the occurrence, he testified that the one who fell from the
motorcycle and was on the ground kicked one of the police
officers and they both fell down.
In the Court's view, the two crucial witnesses in this case
are JOAN O'LEARY and her brother, JAMES BURKE. Joan O'Leary
lived at 36 East Gate, the third house from the dead end. On
October 27, 1984, she had just returned home from work as a
waitress about 12:30 to 1:00 a.m. and was watching television
and having something to eat with her brother and sister. She
heard the sound of a motorcycle "coming pretty fast down the
street" and went to look (Tr. at p. 891). She saw the
motorcycle pass by her house and go through the small opening
in the gate at the dead end. A police car was following the
motorcycle. Since she continued to hear the motorcycle she
stayed at her front door looking out. She then saw the
motorcycle again coming down her street followed by two police
cars. The motorcyclist "zipped on by again really fast" and
then she heard a crash (Tr. at p. 896). She saw the police cars
stop in front of the gate and both police officers jump out.
O'Leary then walked out of her house and stood on her front
walkway watching what occurred. The two police cars were
stopped parallel to each other on either side of the opening to
the grassy area. She was able to see between the police cars
and into the grassy area.
"Q And were you able to see beyond the opening?
A Yes. I saw everything" (Tr. at p. 899).
"Q Did it cause any problems, the lights from the
police vehicle from the place where you were?
A I can just say this, that night everything
seemed like daylight. I saw everything like as
clear as day. I saw the people there, I saw
everything. So as far as what the fog or the
lights did, I can't answer you, I am not sure. But
what I saw was referring [sic] very clear and I
wished I didn't, but I did" (Tr. at p. 910).
O'Leary saw the two police officers talk to the person who
had been on the motorcycle. Then she saw a group of people
walking down the street right in front of her "laughing and
talking to each other" (Tr. at p. 900). There were about six or
eight persons, all male except for "one girl and she was in
front of them" (Tr. at p. 900). The female was wearing a black
leather jacket and had dark hair. One of the males had a
The testimony by O'Leary as to what then occurred, is
"Q All right.
Where did you see this group of individuals go?
A They went right in through the fence and they
were talking to that guy also.
Q Did you see —
THE COURT: Talking to which guy?
THE WITNESS: The guy laying down there, the guy
with the motorcycle, they were all talking to him.
Q Did you see all of those individuals walk
through that opening of the fence to the other
A Yes, I did" (Tr. at p. 901).
She then saw the policemen and the group of people all
talking to the man on the ground "to keep him down, like lay
down, stay down" (Tr. at p. 902). Then, the atmosphere changed
"Q Did you see this group of people at any point
get close to any of the police officers?
A Well, then it seemed like at one point they
stopped talking to him for a moment. The group was
kind of on one side of the opening to like the
left side of the opening. And then the policemen
were standing to the right side of the opening.
Before you know it there wasn't a separation, the
girl came up to the one policeman and started
punching him in the chest. And then right after
that they all kind of like — I didn't see
the policeman any more. They were all like around
him and all over him.
Q You saw this group of individuals around and all
over this certain policeman?
A Yes. I didn't see the policeman any more because
he was out of my sight and they were all like
Q Did you see pushing and shoving?
A Yes. There was a lot of movement going on. No
one was standing still any more, once the girl
started to punch him in the chest then a whole
bunch of movement started happening. There was a
whole bunch of movement and I didn't see the other
policeman any more. I didn't see that one anymore.
He was just in the middle of all that, I can only
guess. I didn't see if he went anywhere.
THE COURT: You say one police officer was in the
midst of this pushing and shoving?
THE WITNESS: Yes.
THE COURT: And one was gone?
THE WITNESS: Yes" (Tr. at pp. 902-03).
"Q Can you tell who was shuffling and scuffling?
A All of them, all of them" (Tr. at p. 912).
During this time, O'Leary heard a lot of yelling. She then
heard a sound of a gunfire and everything got quiet and the
group of persons separated. "They all kind of went apart and .
. . moved away from each other" (Tr. at p. 904). She then ran
into the house and dialed 911.
JAMES BURKE is the brother of Joan O'Leary and the owner of
36 East Gate. On that evening he heard the motorcycle coming
down the street, followed by a police car with sirens and
The motorcycle came around a second time followed by police
cars with sirens. He walked outside with his sister and looked
to the dead end. He saw the stopped police cars and a
motorcycle "hanging by the fence" (Tr. at p. 920). He saw about
six persons walking down the street toward the fence. There
were five males and a female. "They walked past me in a rush
and they went through the opening in the fence" (Tr. at p.
922). Burke then related what he saw in the grassy area:
"Q And what did you see at that point? Would you
tell his Honor.
A At that point what happened is several of them
went to talk to the police officers and then
within about 60 seconds or thereabouts, within a
couple of minutes, I don't know the exact timing,
all of a sudden everything started breaking out
into a fight and everybody started jumping around
the police officers, and the police officers were
surrounded. And there was a lot of noise and a lot
of pushing and shoving going on, and fists were
Q Did you see all the individuals involved in
A All I saw was everybody in a melee. I couldn't
tell you who was involved. I couldn't identify
Q Did you see anybody strike anybody?
A All I saw was everybody surrounding the police
officers and pushing and shoving. There were fists
flying. Who was hitting who exactly I couldn't
Q And did you hear any sounds? Did anybody say
A I heard hold it. And then within a couple of
seconds later I heard a shot fired. . . . And
everybody just ran for the hills" (Tr. at pp.
On cross-examination, Burke testified that a "melee" was
taking place and he was a witness to the shooting. He stated
that "[t]he two police officers were surrounded by five —
by a whole group of individuals" (Tr. at p. 927). He saw that
"a fight took place, and in the pursuit of this fight a shot
was fired. . . . I saw a group of people surrounding a police
officer going into a fight" (Tr. at pp. 927-28).
Detective CHARLES BARTELS arrived at the grassy area shortly
after the shooting. He spoke to Officer Emanuele at the scene
who told him that "Paul Merzon grabbed his gun and he shot him
in self defense" (Tr. at p. 943).
All sides rested.
IV. ADDITIONAL FINDINGS OF FACT
Apart from the findings of fact and credibility
determinations set forth above, the Court makes the following
1. Death was almost instantaneous. Merzon never regained
consciousness. Plaintiff failed to establish any conscious pain
2. Officer Emanuele was forced to make a split-second
decision — with Merzon lunging for the officer's gun.
His objective belief that his life and his partner's life
were in danger was a fair and reasonable belief in the
split-second tense, muddled situation, with other people
physically hanging around his neck.
3. The Court does not credit the testimony of Giles that
Merzon talked to him twenty minutes after he was shot and that
he saw no blood on his face.
4. The Court finds that Schwartz, Zaffuto and Giles all went
through the fence into the grassy area. The Court does not
believe their testimony to the contrary.
V. THE BURDEN OF PROOF
The plaintiff has the burden of proving every element of his
section 1983 claim and pendent state-law claims by a fair
preponderance of the credible evidence (see generally
S. Nahmod, Civil Rights & Civil Liberties Litigation
— The Law of Section 1983 § 3.01, at p. 123 [2d
ed. 1986]). To "establish by a preponderance of the evidence"
means to prove that something is more likely so than not so
(see Nissho-Iwai Co. v. M/T Stolt Lion, 719 F.2d 34,
38 [2d Cir. 1983]). In other words, a preponderance of the
evidence means such evidence as, when considered and
compared with that opposed to it, has more convincing force,
and produces in this Court's mind the belief that what is
sought to be proved is more likely true than not true.
In determining whether any fact in issue has been proved by
a preponderance of the evidence in the case, the Court may
consider and weigh the testimony of all witnesses, regardless
of who may have called them, and all exhibits received in
evidence, regardless of who may have produced them.
In order for the plaintiff to prevail in this case, the
evidence that supports his claim must appeal to the Court as
more nearly representing what took place than that opposed to
his claim. If it does not, or if it weighs so evenly that the
Court is unable to say that there is a preponderance on either
side or if the scales are equally balanced, the issue must
necessarily be resolved against the plaintiff (see Larson
v. Jo Ann Cab Corp., 209 F.2d 929, 931 [2d Cir. 1954]
VI. CONCLUSIONS OF LAW
The Court makes the following conclusions of law
(see Fed.R.Civ.P. 52[a]).
"[N]ot every instance of force proscribed by state law rises
to the level of a constitutional violation so as to support a
section 1983 action" (Finnegan v. Fountain,
915 F.2d 817, 821 [2d Cir. 1990]). By reason of the decision of the
United States Supreme Court in Graham v. Connor,
490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), we now know
that a constitutional violation based on excessive force at the
pre-arrest stage is established only by showing that the use of
force was "'objectively unreasonable' under the Fourth
Amendment" (see Finnegan v. Fountain, supra, 915 F.2d
at p. 821), and is no longer governed by the "shocking to the
conscience" test of Johnson v. Glick, 481 F.2d 1028
(2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462,
38 L.Ed.2d 324 (1973).
Prior to Graham v. Connor, supra, in Tennessee
v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1
(1985), the United States Supreme Court ruled in a case
involving the use of deadly force by a police officer. In a
decision delivered by Justice White, the Court stated that
"there can be no question that apprehension by the use of
deadly force is a seizure subject to the reasonableness
requirement of the Fourth Amendment" (471 U.S. at p. 7, 105
S.Ct. at p. 1699). Further, the Court held:
"Where the officer has probable cause to believe
that the suspect poses a threat of serious
physical harm, either to the officer or to others,
it is not constitutionally unreasonable to prevent
escape by using deadly force" (471 U.S. at p. 11,
105 S.Ct. at p. 1701).
After Tennessee v. Garner, supra, the law with
regard to "excessive force" constitutional violations was
further refined by the United States Supreme Court in the
seminal Graham case. In Graham, it was held
that where the claim against a law enforcement officer arises
in the context of an arrest, investigatory stop or other
"seizure", the sole source of constitutional protection is the
Fourth Amendment. That is, all claims that law enforcement
officials used "excessive force," including deadly force in the
course of any kind of "seizure" are properly analyzed under the
Fourth Amendment's "objectively reasonable" standard, rather
than under a substantive due process standard (490 U.S. at p.
395, 109 S.Ct. at p. 1871; see also Heath v. Henning,
854 F.2d 6, 9 [2d Cir. 1988] [applying Fourth Amendment
"reasonableness "test" pre-Graham]). Since the conduct
giving rise to this action occurred during the course of a
"seizure", and neither post-arrest or post-conviction, the
issue presented must be judged by the Fourth Amendment's
"objective reasonableness" standard as set forth in
The Supreme Court in Graham provided the following
guidance in determining excessive force claims under the Fourth
"Today we make explicit what was implicit in
Garner's analysis, and hold that all
claims that law enforcement officers have used
excessive force — deadly or not — in
the course of an arrest, investigatory
stop, or other `seizure' of a free citizen should
be analyzed under the Fourth Amendment and its
`reasonableness' standard, rather than a
`substantive due process' approach.
The `reasonableness' of a particular use of force
must be judged from the perspective of a
reasonable officer on the scene, rather than with
the 20/20 vision of hindsight. (See Terry v.
Ohio, supra, 392 U.S.,  at 20-22, 88
S.Ct.,  at 1879-1881 [20 L.Ed.2d 889
The calculus of reasonableness must embody
allowance for the fact that police officers are
often forced to make split-second judgments
— in circumstances that are tense,
uncertain, and rapidly evolving — about the
aount of force that is necessary in a particular
As in other Fourth Amendment contexts, however,
the `reasonableness' inquiry in an excessive force
case is an objective one: the question is whether
the officers' actions are `objectively reasonable'
in light of the facts and circumstances
confronting them, without regard to their
underlying intent or motivation. See Scott v.
United States, 436 U.S. 128, 137-139, 98
S.Ct. 1717, 1723-1724, 56 L.Ed.2d 168 (1978); see
also Terry v. Ohio, supra, 392 U.S. at
21, 88 S.Ct. at 1879 (in analyzing the
reasonableness of a particular search or seizure,
`it is imperative that the facts be judged against
an objective standard'). An officer's evil
intentions will not make a Fourth Amendment
violation out of an objectively reasonable use of
force; nor will an officer's good intentions make
an objectively unreasonable use of force
In United States v. Schatzle, 901 F.2d 252
1990), the Second Circuit stated that "Graham requires
that the district court impress upon the jury the necessity of
assessing whether the force employed by [the police officer]
was reasonable in light of the particular situation and dangers
facing [the police officer] at the time he encountered [the
plaintiff]" (id. At p. 255; see also Powell v.
Gardner, 891 F.2d 1039
, 1043-44 [2d Cir. 1989]).
In this case we are concerned with the type of "seizure" by
a police officer referred to in Graham. As recently
stated by a leading commentator, "the Fourth Amendment standard
is somewhat less onerous than the due process . . . test . . .
and does not require a showing that the officer acted with
malice or evil intent" (Schwartz, "Legal Responsibility For
Police Brutality", New York Law Journal, May 14,
1991). Rather, the focus is "on the circumstances confronting
the police at the time of the arrest without regard to their
underlying motives or attitudes towards the suspect"
(Miller v. Lovett, 879 F.2d 1066, 1070 [2d Cir.
Considering all of the evidence adduced at trial, the Court
finds that the plaintiff failed to establish, by a fair
preponderance of the credible evidence, that the deadly force
used by Officer Emanuele violated the Fourth Amendment rights
of Merzon. Accepting the testimony of key witnesses O'Leary and
Burke, the Court finds that Officer Emanuele was set upon by a
number of persons who were pushing, shoving and hitting him.
These persons were physically hanging on or around Officer
Emanuele, while cursing and threatening him. Further, the Court
finds that Merzon must have been bending or reaching with his
right hand to his left, in the area of where Emanuele's second
revolver was located. The uncontroverted forensic evidence by
the medical examiner, Dr. Arden, reveals that the shooting
could not have occurred face-to-face or when Merzon turned to
the right. In order for the bullet to traverse from the right
side of the chest across the heart area, through the "great
vessels" (pulmonary artery and aorta), and down into the left
chest cavity, perforating the lung and ending in the armpit,
the decedent must have been turning or reaching to the left,
not facing Emanuele or falling back with his arms extended in
an upward position.
The Court also finds persuasive the tests performed by Dr.
Arden by firing the
weapon at cardboard targets at varying distances. These
cardboard targets reveal that when fired, the closer to the
target, the more stippling is left. Specifically, shots fired
at a range of 18 to 24 inches indicate clear and dense
stippling (see Defendants' Exhibits G1 and G2),
whereas shots fired at a greater distance of 30 to 36 inches,
indicate little or no stippling (see Defendants'
Exhibits G3, G4 and G5). This evidence was uncontroverted and
indicates that Merzon was within Officer Emanuele's immediate
physical vicinity, rather than eight to ten feet away as the
plaintiff's witnesses stated.
The evidence in this case, although close, tips in favor of
the defendant, and, accordingly, the Court finds that the
plaintiff has failed to sustain his burden of proof.
At the outset, the Court notes that the burden of proof with
respect to the issue of qualified immunity rests with the
defendant (see Raysor v. Port Auth. of N.Y. & N.J.,
768 F.2d 34, 40 [2d Cir. 1985], cert. denied,
475 U.S. 1027, 106 S.Ct. 1227, 89 L.Ed.2d 337 ). In Finnegan
v. Fountain, supra, also an excessive force case, it was
held that the application of qualified immunity is, ultimately,
a question of law for the Court to decide (see 915
F.2d at pp. 823-24).
The Court finds that the defense of qualified immunity has
been sustained. Under the facts found by the Court, the
defendant Emanuele did not violate clearly established federal
In Graham, supra, the Supreme Court expressly left
open the issue of the application of qualified immunity in
excessive force cases arising under the Fourth Amendment
(see 490 U.S. at p. 399 n. 12, 109 S.Ct. at p. 1872 n.
12). The Court noted, however, that "the officer's
objective `good faith' — that is, whether he
could reasonably have believed that the force used did not
violate the Fourth Amendment — may be relevant to the
availability of the qualified immunity defense to monetary
liability under § 1983" (id.). In Finnegan v.
Fountain, supra, 915 F.2d at p. 822-23, the Second Circuit
held "that the qualified immunity defense is generally
available against excessive-force claims".
As to the interplay of the "objective reasonableness"
standard enunciated in Graham, and the defense of
qualified immunity as set forth in Harlow v.
Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396
(1982) and refined in Anderson v. Creighton,
483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), commentators have
observed the following:
"Graham also left open the application of
qualified immunity to excessive force Fourth
Amendment claims. Most lower courts, however, have
applied qualified immunity to the Graham
standard, thereby in effect giving an officer
charged with excessive force two levels of
reasonableness protection. Thus, even if an
officer used force that was objectively
unreasonable under Graham, he may be
protected from individual monetary liability if he
reasonably believed, based upon the facts and
circumstances known to him, that the force used
was lawful" (1 M. Schwartz & J. Kirklin,
Section 1983 Litigations Claims, Defenses and
Fees § 3.7, at pp. 153-54 [2d ed. 1991]
[footnotes omitted]; see also M. Schwartz, "Legal
Responsibility for Police Brutality", New York
Law Journal, May 14, 1991 ["The double
reasonableness protection enjoyed by police
officers charged with excessive force makes it
very difficult for § 1983 claimants to prevail
In sum, although an officer's conduct may be "objectively
unreasonable" under the Fourth Amendment analysis of
Graham, he or she may nonetheless be entitled to a
cloak of qualified immunity against personal liability under
the Harlow standard. It appears to this Court that in
certain excessive force claims, such as the instant case, the
Fourth Amendment determination, which directly involves the
question of whether the police officer objectively reasonably
believed that the force used was necessary under the
circumstances, may merge with the question of whether or not he
violated any clearly established federal law or Constitutional
right (see, e.g.,
Dixon v. Richer, 922 F.2d 1456, 1463 [10th Cir.
In this case, the Court finds that Officer Emanuele not only
acted objectively reasonable in view of the imminent potential
threat to his life and the lives of others around him, but he
did not violate any clearly established federal law or
Constitutional right. From his precarious position in the
grassy area, he made a split-second decision in a tense and
rapidly evolving situation. In this Court's view, an
objectively reasonable use of force was employed. Accordingly,
under these circumstances, Officer Emanuele is entitled to the
protection of the defense of qualified immunity.
Pendent State-Law Claims of Assault and Battery
The plaintiff must establish all of the elements of a cause
of action sounding in assault and battery. A civil "assault" is
the intentional placing of another in apprehension of imminent
harmful or offensive contact (see Lambertson v. United
States, 528 F.2d 441, 444 [2d Cir.], cert.
denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374
, quoting Masters v. Becker, 22 A.D.2d 118, 254
N YS.2d 633 [2d Dep't 1964]; see also Collom v.
Incorporated Village of Freeport, 691 F. Supp. 637, 641
[E.D.N.Y. 1988]). The elements of a civil "battery" are (1)
bodily contact, which is (2) harmful or offensive in nature,
and (3) made with intent (Masters v. Becker, supra; Portnoy
v. Bucalo, 82 Misc.2d 590, 370 N.Y.S.2d 799 [Sup.Ct.
Nassau County 1975]; see generally 1 F. Harper, F.
James & O. Gray, The Law of Torts § 3.3 [elements
of battery] and § 3.5 [elements of assault] [2d ed. 1986]).
The Court finds that the plaintiff has made out a prima facie
case of an assault and battery, since the evidence showed that
there was a harmful bodily contact made with intent. Also,
there is a presumption from such proof that there was no
justification (Cassidy v. Cady, 49 Misc. 478, 97
N YS. 1046 [Sup.Ct.App.T. 1906]). The presumption is
rebuttable, however, and if the defendant presents proof of
justification, the ultimate burden of proving the absence of
justification rests with the plaintiff (see id.).
In order to establish the defense of justification in a civil
battery action, it must be shown that the person attacked was
under a danger or apparent danger of death or of great bodily
harm (see Barbagallo v. Americana Corp., 32 A.D.2d 622,
299 N.Y.S.2d 626 [1st Dep't 1969]), "subject to the
fundamental limitation that in protecting oneself no more force
is permissible than will reasonably effect such protection"
(Decker v. Werbenec, 36 Misc.2d 220, 232 N.Y.S.2d 260
[Sup.Ct. Ulster County 1962]).
The plaintiff contends that the defendant Emanuele violated
the provisions of New York's Penal Law § 35.15 setting
forth the defense of "justification".
The pertinent provisions of New York Penal Law are as
"§ 35.15 Justification; use of physical
force in defense of a person.
2. A person may not use deadly physical force upon
another person under circumstances specified in
subdivision one unless:
(a) He reasonably believes that such other person
is using or about to use deadly physical force.
Even in such case, however, the actor may not use
deadly physical force if he knows that he can with
complete safety as to himself and others avoid the
necessity of so doing by retreating; except that
he is under no duty to retreat if he is:
(ii) a police officer . . . acting pursuant to
An officer is authorized to use deadly physical force when he
or she reasonably believes such to be necessary to defend the
officer or another from what he or she reasonably believes to
be the use or imminent use of deadly physical force
(see N.Y. Penal Law § 35.30[c]). Under such
circumstances, the officer is under no duty to retreat (see
id. at § 35.15[a][ii]).
In People v. Goetz, 68 N.Y.2d 96, 497 N.E.2d 41, 506
N YS.2d 18 (1986), the New York Court of Appeals enunciated a
hybrid subjective/objective analysis with regard to a private
person under Penal Law § 35.15, namely, that the shooter
had to subjectively believe that deadly force was necessary to
avert the imminent use of deadly force and secondly, that this
belief was objectively reasonable under the circumstances.
The Court finds that on this record, Officer Emanuele
possessed the subjective belief that deadly force was necessary
to prevent imminent use of deadly force directed to him and his
partner by Merzon. Further, the Court finds that, on the
credible facts adduced in this case, such a belief was
objectively reasonable under the totality of circumstances.
As stated above, Officer Emanuele was surrounded by persons,
physically clinging to his neck and shouting obscenities. His
partner was also embroiled in a fight. In the midst of this
melee, the evidence shows that Merzon reached in the direction
of Officer Emanuele's revolver, at a range close enough to
reasonably instill the apprehension in the officer that Merzon
was lunging for the officer's weapon. The evidence amply
supports the finding that Officer Emanuele believed deadly
force was necessary to avert the imminent use of deadly force
and, that in light of the circumstances that the officer found
himself in, these beliefs were objectively reasonable.
Accordingly, the Court finds that the plaintiff failed to
establish by a fair preponderance of the credible evidence, the
lack of justification of the use of deadly physical force by
Negligent Hiring and Training
The fifth cause of action alleges a pendent state-law
negligence action against the County, based on alleged
negligence in the hiring, training, testing and supervision of
Officer Emanuele. No proof whatsoever was adduced to support
such a theory of liability and this cause of action is
The sixth and seventh causes of action are based on the
negligent use of excessive force by Officer Emanuele. The proof
is uncontroverted that the firing of the shot by Officer
Emanuele was intentional, and not caused by any negligent act.
Accordingly, the plaintiff failed to establish any "negligent
firing" and these causes of action are dismissed.
In this regard, the Court notes that Rafferty v. Arnot
Ogden Memorial Hosp., 140 A.D.2d 911, 528 N.Y.S.2d 729 (3d
Dep't 1988), is instructive. In Rafferty it was held
that intentional assault was legally incompatible with
negligence, as follows:
"A close reading of the amended and second amended
complaint fails to clarify if plaintiff's single
cause of action is one for negligence or if it
alleges a cause of action for the intentional tort
of assault and battery. As we stated in
Mazzaferro v. Albany Motel Enters.,
127 A.D.2d 374, 376, 515 N.Y.S.2d 631, `New York has
adopted the prevailing modern view that, once
intentional offensive contact has been
established, the actor is liable for assault and
not negligence * * *.' `There is, properly
speaking, no such thing as a negligent assault'
(Prosser and Keeton, Torts § 10, at 46 [5th
ed.])" 528 N.Y.S.2d at p. 730).
VII. CONCLUSIONS OF LAW
The Court makes the following additional conclusions of law:
1. As to the section 1983 cause, the plaintiff failed to
establish, by a fair preponderance of the credible evidence,
that the defendant James Emanuele used excessive force in
violation of the Fourth Amendment, in causing the death of the
2. The plaintiff failed to establish, by a fair preponderance
of the credible evidence, that the defendant James Emanuele
violated the constitutional rights of the decedent under the
Fourth Amendment with regard to an unreasonable search and
3. The defendant established, by a fair preponderance of the
that the conduct of Officer Emanuele did not violate any
clearly established constitutional or statutory rights of which
a reasonable police officer would have known. Therefore, the
defense of qualified immunity has been established.
4. Although the plaintiff established the commission of a
civil assault and battery, the defendant James Emanuele proved,
by a fair preponderance of the credible evidence, that he was
justified in causing the death of the decedent, under the
provisions of the New York Penal Law § 35.15.
5. The plaintiff failed to establish, by a fair preponderance
of the credible evidence, that the County of Suffolk was
negligent in the hiring, training, employing, supervision,
testing or screening of the defendant James Emanuele.
6. The plaintiff failed to establish, by a fair preponderance
of the credible evidence, that the defendant County of Suffolk
was negligent in continuing the employment of the defendant
7. The plaintiff failed to establish, by a fair preponderance
of the credible evidence, that the defendant County of Suffolk
was negligent in any manner which could have contributed to the
death of the decedent.
8. The plaintiff failed to establish, by a fair preponderance
of the credible evidence, that the defendant James Emanuele was
negligent in the manner in which he fired his revolver during
the incident in question.
9. The plaintiff failed to establish by a fair preponderance
of the credible evidence, that the decedent suffered any
conscious pain and suffering following the gunshot in the
incident at issue.
Accordingly, the Court directs the Clerk to enter a judgment
pursuant to Fed.R. Civ.P. 58, dismissing the complaint against