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THORNTON v. CITY OF ALBANY

September 24, 1993

LOUISE THORNTON, as Administratrix of the Estate of JESSIE LEE DAVIS, deceased, Plaintiff,
v.
THE CITY OF ALBANY, SERGEANT DAVID ALOISI, SERGEANT THOMAS SHIELDS, OFFICER ROBERT EKSTROM, OFFICER KEITH WELLS and OFFICER CHARLES PETERS, Defendants.


McCURN


The opinion of the court was delivered by: NEAL P. MCCURN

MEMORANDUM-DECISION AND ORDER

 INTRODUCTION

 Plaintiff Louise Thornton, in her capacity as the Administratrix of the Estate of Jessie Lee Davis, commenced this suit by filing a complaint against defendants City of Albany, Sergeant David Aloisi, Sergeant Thomas Shields, Officer Robert Ekstrom, Officer Keith Wells, and Officer Charles Peters on July 2, 1987. The events that form the basis for this suit occurred on July 8, 1984, at which time plaintiff's decedent was shot and killed by police officers of the Albany Police Department in his apartment at 60 Clinton Avenue, Albany, New York.

 In her complaint, plaintiff alleges that defendants' actions on July 8, 1984, violated Mr. Davis' rights under the Fourth, Fifth, Eighth, Ninth, Tenth, Thirteenth and Fourteenth Amendments of the United States Constitution. More specifically, plaintiff alleges that defendants unreasonably seized Mr. Davis without probable cause and without a warrant, used excessive force to seize and detain him, and conspired to deprive him of his constitutional rights. Plaintiff invokes this court's jurisdiction pursuant to 42 U.S.C. ยงยง 1983, 1985, 1986, and 1988.

 BACKGROUND

 On July 8, 1984, officers of the Albany Police Department shot and killed Jessie Lee Davis in his apartment. According to plaintiff, at the time of his death, Mr. Davis had a history of mental illness. See Plaintiff's Memorandum of Law at 1. The events culminating in the shooting of Mr. Davis have been the subject of lengthy depositions of each of the defendant police officers. *fn1" As a result of its review of these depositions, the court has been able to compile the following facts about the incidents that occurred on July 8, 1984. Where differences in the officers' testimony is significant, the court has noted them.

 At approximately 10:30 a.m. on July 8, 1984, Sergeant Aloisi and Officers Peters and Ekstrom responded to a Code 40 "Man Berserk" at 60 Clinton Avenue, Albany, New York. When Officer Ekstrom arrived, Sergeant Aloisi was talking to Mr. Paul Leahy and Ms. Velma Youmans. *fn2" See Ekstrom Deposition at 11; Aloisi Deposition at 29-30. Officer Ekstrom noticed broken glass on the sidewalk and porch area. See Ekstrom Deposition at 13. Shortly after Officer Ekstrom's arrival on the scene, Sergeant Aloisi told him that he had everything under control and that Officer Ekstrom could go back on patrol. See id. at 10, 12.

 Ms. Velma Youmans complained to the police that the man on the third floor had been breaking windows out, and she wanted the police to go up and do something about it. See Peters Deposition at 14. Officer Peters looked up at the third floor and noticed that a window was broken. See id. at 15. He also noticed broken glass on the sidewalk. See id. at 16; Aloisi Deposition at 36. Ms. Youmans advised Sergeant Aloisi that there had been complaints about Mr. Davis during the preceding two weeks. See Aloisi Deposition at 31. She also expressed concern about the glass falling on her porch. See id. Sergeant Aloisi and Officer Peters went to the third floor and knocked on the door, but received no response. See Peters Deposition at 14; Aloisi Deposition at 32. Upon their return, they advised Ms. Youmans that no one appeared to be home. See Peters Deposition at 14. The officers then left the scene. See id.; Aloisi Deposition at 32.

 Approximately one hour later, the police responded to a second Code 40 at the same address. See Peters Deposition at 26; Aloisi Deposition at 37. This time, Officer Ekstrom was the first one to arrive at the scene. See Ekstrom Deposition at 16. He exited his vehicle and crossed the street to talk with a man who was yelling at him. See id. That individual, Gary Becker, complained that Mr. Davis was hanging out of his window naked and throwing things out the window and that the police had to do something. See id. at 17. Officer Ekstrom looked across the street and noticed a broken window on the third floor. See id. at 18. He then asked Mr. Becker if he knew if Mr. Davis had any family members in the area because it would be easier to have the family talk to Mr. Davis if he had a problem. See id. at 20. Mr. Becker stated that he was not aware of any such family members. See id.

 Officer Peters was the next to arrive. See Ekstrom Deposition at 23. He and Officer Ekstrom talked to Mr. Leahy who told Officer Ekstrom that he had called the Capital District Psychiatric Center ("CDPC") numerous times and that CDPC had told him they were supposed to send a doctor over to check on Mr. Davis but never did. See Ekstrom Deposition at 24. While Officers Peters and Ekstrom were talking with Mr. Leahy, Sergeant Aloisi was talking to Ms. Lanier. *fn3" See id. at 33. Officer Ekstrom heard Ms. Lanier scream that her children's lives were in danger with stuff falling out of Mr. Davis' window and that the police had to do something to control Mr. Davis. See id. at 34.

 After speaking with some neighbors, Sergeant Aloisi said "lets go inside." See Ekstrom Deposition at 43. He was accompanied by Sergeant Shields and Officers Peters and Ekstrom. See id. The four of them entered the building and proceeded to the second floor landing where they saw bricks on the landing and the stairway. See id.; Peters Deposition at 33; Aloisi Deposition at 69-70. Sergeant Aloisi testified that he had not seen either the glass or the bricks at the time he had responded to the earlier call. See Aloisi Deposition at 69-70. Officer Peters also noticed that a hallway window was broken on the third floor stairway. See Peters Deposition at 33. While they were on the second floor landing, Sergeant Aloisi identified himself as a police officer and asked Mr. Davis to come down and talk. See Ekstrom Deposition at 45-46; Peters Deposition at 46-47; Aloisi Deposition at 74-75. Mr. Davis replied that he could not come down because he was naked and they had taken his clothes. See Ekstrom Deposition at 46; Peters Deposition at 46; Shields Deposition at 5. Sergeant Aloisi then told Mr. Davis to put on some clothes and come downstairs to talk. See Ekstrom Deposition at 46; Peters Deposition at 46, 49. The officers then heard Mr. Davis go into his apartment and shut and lock the door. See Peters Deposition at 49-50; Aloisi Deposition at 75-76.

 Sergeant Aloisi then sent Officer Ekstrom downstairs to see if anyone knew anything about Mr. Davis' family so that the police could contact somebody to talk to him. *fn4" See Ekstrom Deposition at 49. Officer Ekstrom knocked on the door of the first floor apartment. See id. at 50. From the porch, Ms. Lanier told Officer Ekstrom not to bother because the man in that apartment was always intoxicated and probably would not answer. See id. Officer Ekstrom then went to the porch and asked Ms. Lanier who lived in the basement. See Ekstrom Deposition at 50. He also asked Mr. Leahy if he knew anything about Mr. Davis' family. See id. Mr. Leahy responded no. See id. Ms. Lanier said she knew that Mr. Davis had a sister whom she thought might live in Arbor Hill but she was not sure. See id. Officer Ekstrom returned to the second floor landing and reported this information to Sergeant Aloisi. See id. at 51, 68; Aloisi Deposition at 83. At this point, the four policemen proceeded to the third floor landing. See Ekstrom Deposition at 68-69. While the officers were on the third floor landing, Officer Peters heard what sounded like someone banging on metal or pots and pans. See Peters Deposition at 50. At the same time, Officer Ekstrom heard Mr. Davis ranting and raving, pounding on pots and pans, talking about the devil and also heard glass breaking. See Ekstrom Deposition at 74-75; Aloisi Deposition at 81-82.

 While the officers stood on the third floor landing, Sergeants Aloisi and Shields discussed the fact that because there was no family to be found they needed to enter Mr. Davis' apartment for his safety as well as the safety of the people on the street. See Ekstrom Deposition at 73-74; Aloisi Deposition at 85-86. Sergeant Aloisi knocked on Mr. Davis' apartment door. See Peters Deposition at 53; Aloisi Deposition at 77. At about that time, Officer Wells, who was positioned outside the building, radioed that Mr. Davis had climbed out the rear window of his apartment onto the roof and was armed with a large knife. *fn5" Sometime later, Officer Wells reported that Mr. Davis had gone back into his apartment. See Ekstrom Deposition at 78; Shields Deposition at 46.

 After Sergeant Aloisi failed in his efforts to talk to Mr. Davis, he tried to force the door open with his shoulder but was unsuccessful. *fn6" See Peters Deposition at 58; Aloisi Deposition at 86, 89. Sergeant Shields obtained a sledge hammer from Mr. Leahy, see Shields Deposition at 7-8, which Sergeant Aloisi used to try to force the door open by breaking the lock. See Peters Deposition at 61; Shields Deposition at 17. He succeeded in making a hole in the door. See Peters Deposition at 61; Aloisi Deposition at 97. After making this hole, Sergeant Aloisi looked inside and told the other officers that he saw Mr. Davis running with a knife in his hands. See Ekstrom Deposition at 83; Peters Deposition at 61; Aloisi Deposition at 101-03. Sergeant Shields also looked through the hole and saw Mr. Davis holding a knife and other objects in his hands. See Shields Deposition at 18.

 At this point, Sergeant Aloisi directed Officer Peters to go around to the rear of the building in case Mr. Davis came out the back. See Peters Deposition at 66, 77; Aloisi Deposition at 106. When he reached the rear of the building, Officer Peters saw Officer Hermanez in the backyard of 60 Clinton Avenue. See Peters Deposition at 70. Officer Hermanez told Officer Peters that Officer Wells had gone to the second floor roof. See id. at 71. Officer Peters then went up the fire escape to the second floor roof. See id.

 When he arrived on the roof, Officer Peters saw Officer Wells squatting with his gun pointed in the direction of the bathroom window of Mr. Davis' apartment. See id. at 74. In addition, through an open window, Officer Peters saw Sergeant Aloisi standing inside the apartment with his gun drawn facing east. See id. at 75. Due to the fact that the window was missing, Officer Peters felt that he would be in the line of fire if something happened in the apartment so he went to the western side of the window and positioned himself there. See id. at 75. While stationed on the roof, Officer Peters heard Sergeants Aloisi and Shields, as well as Officer Wells, call to Mr. Davis to put the knife down, to throw the knife on the floor, and to lie down on the floor. See id. at 83, 84. He could not, however, see at whom or at what either Officer Wells or Sergeant Aloisi were looking or at whom or at what they were pointing their guns. See id. at 87.

 After Officer Peters left the third floor landing to secure the rear of the building, Sergeant Shields used the sledge hammer to break in the door to Mr. Davis' apartment. See Shields Deposition at 34-35; Aloisi Deposition at 104. Sergeant Aloisi was the first to enter the apartment with his gun drawn. See Ekstrom Deposition at 81-82; Aloisi Deposition at 109. He was followed by Sergeant Shields who also had his gun drawn. See Shields Deposition at 42. Sergeant Shields instructed Officer Ekstrom to remain in the hallway to watch the other doors to Mr. Davis' apartment. See Ekstrom Deposition at 82.

 While Officer Ekstrom was in the hallway, he heard scratching on a second door to Mr. Davis' apartment. See Ekstrom Deposition at 87. This door, he later learned, was the door to Mr. Davis' bathroom. See id. at 85. Officer Ekstrom stated that the noise sounded like someone rubbing something against the wall or digging something into the wall. See id. at 87. In addition, Officer Ekstrom heard Mr. Davis mutter something about a .22 -- I have to get my brother's .22. See id. at 88. He went to the door of the apartment through which the two sergeants had entered and told Sergeant Shields what he had heard. See id.; Aloisi Deposition at 123. Sergeant Shields told him to go back into the hall and watch the other two doors in case Mr. Davis attempted to exit through them. See Ekstrom Deposition at 88. At this time, Officer Ekstrom noticed that Sergeant Aloisi was near the door to the bedroom and Sergeant Shields was in the middle of the living room. See Ekstrom Deposition at 89. After he returned to the hall, Officer Ekstrom heard Sergeant Aloisi tell someone to drop his weapons and almost instantaneously he heard a shot go off. See id. at 90. He also heard Sergeant Aloisi tell someone twice to kick in a window, after which he heard glass break. *fn7" See id. at 91-92.

 Sergeant Aloisi testified that prior to firing his first shot, Mr. Davis came running out of the bathroom at him with a knife in his right hand held high and something shiny in his left hand at waist level. See Aloisi Deposition at 123, 197. Sergeant Aloisi told Mr. Davis to drop it. See id. at 126. When Mr. Davis did not comply, he fired his weapon which was aimed at Mr. Davis' mid-section. See id. Mr. Davis then ran back into the bathroom. See id. at 127; 199.

 After he heard the first shot, Officer Ekstrom went into the apartment because he was not sure who was shooting and he was concerned that some bullets would come through the doors into the hall. See Ekstrom Deposition at 95. Sergeant Aloisi told Officer Ekstrom that he was the one who had fired. See id. at 137. Sergeant Aloisi also told Sergeant Shields that Mr. Davis had charged him with a knife and that he had to shoot but he did not know whether he had hit Mr. Davis. See Shields Deposition at 62. Having fired the shot, Sergeant Aloisi Proceeded into the bedroom, followed by Sergeant Shields and Officer Ekstrom. See Ekstrom Deposition at 96. Officer Ekstrom had his gun in his right hand and his baton in his left hand. See id. at 140. When they moved into the bedroom, Sergeant Aloisi positioned himself approximately 3-4 feet to the right of the door and Sergeant Shields positioned himself to the left of the door. See id. at 97. Officer Ekstrom stayed behind Sergeant Shields but closer to the door. See id. Officer Ekstrom, who was facing the bathroom, saw Mr. Davis come out from the left side of the bathroom into the middle of the doorway moving in a slow manner. See id. at 105. Officer Ekstrom saw Mr. Davis with a knife in his right hand and a serving fork in his left hand. See id. at 107; Shields Deposition at 104; Aloisi Deposition at 251. At this time, according to Officer Ekstrom, Mr. Davis' hands were positioned in the middle of his body. See Ekstrom Deposition at 107. Sergeant Aloisi and Officer Ekstrom told Mr. Davis to get down on the floor, to lie down, and to drop his weapons. See id. at 107-08.

 According to Officer Ekstrom; in response to Sergeant Aloisi's order, Mr. Davis got down on his knees. See Ekstrom Deposition at 110; Aloisi Deposition at 232-33. At that time, Officer Ekstrom saw Mr. Davis jab the knife into a tabletop with no legs located on the floor of the bathroom. See Ekstrom Deposition at 110-11; Shields Deposition at 99; Aloisi Deposition at 231. Mr. Davis then began to place his elbows on the floor. See Ekstrom Deposition at 110-11; Aloisi Deposition at 235. Next, Mr. Davis turned and grabbed the handle of the knife. See Ekstrom Deposition at 111; Aloisi Deposition at 256. At about this time, Sergeant Shields asked Officer Ekstrom to give him his nightstick, and Officer Ekstrom handed it to him. See Ekstrom Deposition at 115; Shields Deposition at 71, 106. Officer Ekstrom then put his gun in his holster. See Ekstrom Deposition at 116. He thought Sergeant Shields intended to physically restrain Mr. Davis, and Officer Ekstrom thought he could better assist him without the gun in his hand. See Ekstrom Deposition at 116; Shields Deposition at 71.

 At the same time as these events were occurring in Mr. Davis' apartment, Officer Wells, who was on the roof outside Mr. Davis' bathroom window, looked through the window and saw Mr. Davis in a kneeling position, facing the bedroom. See Wells Deposition at 83-84. Officer Wells told Mr. Davis to lie face down on the floor. See id. at 101. After the third or fourth time, Mr. Davis did as he was instructed. See id. at 102. At this time, Officer Wells could see Sergeant Aloisi in the bedroom. See id. at 90. He could also see that Mr. Davis was holding a large fork in his left hand. See id. at 96. He could not, however, see Mr. Davis' right hand. See id. at 98. In addition, Officer Wells observed Sergeant Shields standing on the bed. See Wells Deposition at 110. He made eye contact with Sergeant Shields, they both nodded and thus understood that they intended to physically jump on Mr. Davis back. See id. at 111.

 As Officer Wells was holstering his gun and pulling himself inside the window, Mr. Davis got up from his prone position, up to his hands and knees and started all the way up. See id. When Mr. Davis got halfway up, Sergeant Shields struck him with a nightstick across the back and shoulders. See id. As Mr. Davis began to stand, Officer Wells saw him turn and grab a knife off a table. See id. at 121. Mr. Davis held the knife in his right hand up over his head and the fork in his left hand and took off in a full run out the bathroom door. See id. At that point, Officer Wells, or somebody, hollered "Watch Out." See id. Then, Officer Wells fired twice, striking Mr. Davis in the side or lower back. *fn8" See id. at 122, 133. At the time he fired, Officer Wells thought it was necessary to do so to defend Sergeant Aloisi. See id. at 140. After he discharged his weapon, Officer Wells climbed through the window into the apartment to see if the other officers were safe. See id. at 137. At that time, he saw a knife in front of Mr. Davis on the floor. See id. at 148.

 At the time Sergeant Aloisi shot Mr. Davis, Sergeant Aloisi thought that Mr. Davis had stabbed, or was about to stab, Sergeant Shields. See Aloisi Deposition at 265. Mr. Davis, however, was not standing erect. See Ekstrom Deposition at 178; Shields Deposition at 77; Aloisi Deposition at 263. At his deposition, Sergeant Shields testified that he saw a set of keys in a leather case in Mr. Davis' left hand. See Shields Deposition at 201. Sergeant Shields also recalled seeing a watch in the same hand. See id. at 202. In addition, Sergeant Shields testified that he remembered seeing a matchbox car on the table next to the bed but could not specifically recall it being in Mr. Davis' hand. See id. at 292. As Mr. Davis started to move in the direction of the bed, Sergeant Aloisi fired again. See id. Mr. Davis then turned toward Sergeant Aloisi in a singular upward movement, at which point Sergeant Aloisi fired, and Mr. Davis fell to the floor. See Ekstrom Deposition at 187; Shields Deposition at 154-55; Aloisi Deposition at 328, 331, 340. Sergeant Aloisi testified that at the time he fired at Mr. Davis he feared for Sergeant Shields' safety and that part of the reason he fired was because he believed that Sergeant Shields' gun was unloaded. *fn9" See Aloisi Deposition at 342. He also testified that at that time Mr. Davis held the knife in his right hand and was standing on his feet and on his way to an upright position. See id. at 325.

 During this time, Officer Peters was located on the roof outside Mr. Davis' apartment. He heard someone say watch out or look out and then heard shots fired. See Peters Deposition at 94, 98. He also observed Officer Wells discharge his weapon. See id. at 94. He looked into the apartment and saw Mr. Davis lying on the floor. See id. at 101. He also saw Sergeants Aloisi and Shields standing in the room. See id. In addition, Officer Peters saw a knife near Mr. Davis' head or around his body. See id. at 104. At that time, Sergeant Aloisi told Officer Peters to go around to the front of the building to secure it and await the arrival of the ambulance and the EMS Unit. See id. at 106.

 Immediately after Mr. Davis fell to the floor, Sergeant Shields advised Officer Ekstrom to call the EMS Unit. *fn10" See Ekstrom Deposition at 188. When Officer Ekstrom returned to the front room of the apartment after calling the EMS Unit, Sergeant Shields advised him to go downstairs in the hallway to direct the EMS Unit to Mr. Davis' apartment when they arrived. See id. at 193. Officer Ekstrom did not go into the bedroom again that day. See id.

 DISCUSSION

 I. Summary Judgment Standard

 Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. The mere existence of some alleged factual dispute, however, will not defeat such a motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202, (1986). Rather Rule 56 requires that there be no genuine issue of material fact. Id. at 2488, 106 S. Ct. at 2510, 91 L. Ed. 2d at (emphasis ...


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