The opinion of the court was delivered by: Spatt, District Judge.
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.
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
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.
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 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?
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.
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 ...