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June 17, 1991


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 Fed.R.Civ.P. 52[a]).


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 defendants;

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 Emanuele;

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 Suffolk;

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. 52[a]).

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 versions differed.

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. 278).

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. 373).

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 area.

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 pp. 478-79).

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 almost instantaneous.

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 other males.

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
  at me.
  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
  covering up.
  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
  Stuart Cantara.
  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
  Stuart Cantara.
  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
  the weapon.
  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
  pp. 639-42).

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 ...

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