Throughout the chase, the red pick-up truck was swerving back and forth in an attempt to prevent anyone from passing on either side. Defendants claim that Scott believed that Javid had a gun, based on the police dispatches and a "bang" that he heard as Javid ran a police vehicle off the road during the chase. Scott then took out his gun and, placing it outside his drivers side window, began firing his gun from "close combat range" (15 to 25 feet) at the Javid vehicle, purportedly aiming for the rear tires of the truck. After an uncounted number of rounds were fired, one of the shots found its mark and punctured the left rear tire of Javid's vehicle. Scott transmitted on his police radio that he believed he had gotten the tire. Scott placed his gun under his thigh as the tire went flat.
Even with the flat tire, Javid continued to lead the chase down Route 17, colliding with police vehicles that were attempting to execute moving road blocks. At some point, the left rear tire fell off completely, so that the truck was running on the rim of the left rear wheel. Defendants allege that Scott then heard an additional radio transmission: "Woodbury be advised weapon involved. . . ."
The Javid vehicle entered the Exit 131 ramp with Scott in pursuit. Javid made a right-hand turn at the intersection of Route 32. Scott followed onto Route 32 and removed his gun from under his thigh. Javid made a wide right turn onto Route 6, and Scott still followed. Scott then entered the oncoming lane of traffic on Route 6 in an attempt to pass the red pick-up truck. Scott had his weapon in his right hand as he drew even with Javid. Defendants claim that Scott observed Javid look at him, turn quickly to his right, and turn back facing Scott as the red pick-up truck came directly towards Scott's vehicle. Defendants claim that Scott believed that Javid was reaching for a gun. Scott then fired his weapon once and observed the driver's side window break. The bullet struck Javid in the side. The red pick-up truck slowed to a stop; Javid exited the vehicle and dropped to the ground. Scott slowed his vehicle to a stop some distance in front of Javid.
Other officers involved in the chase caught up to the scene and arrested Javid. One of the officers immediately noticed that Javid was bleeding, and he called for an ambulance. Emergency personnel arrived within minutes and transferred Javid to a hospital. Efforts to save Javid's life were to no avail. Scott's pursuit of the red pick-up truck lasted over four miles and reached speeds as high as 105 miles per hour.
I. Summary Judgment
On a motion for summary judgment, a court must decide if a genuine issue of material fact exists. Civ. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Clearly, the facts and circumstances surrounding Scott's use of deadly force constitute material facts, and there are genuine issues to be tried before a jury. We therefore deny summary judgment on claims against Scott.
Plaintiffs offer no evidence to support their claim that the Village had a policy or custom of inadequately screening, training and supervising officers, and that such policy directly caused the alleged constitutional violation. Defendants move for summary judgment on the claim against the Village, arguing that a single incident of an alleged constitutional violation by an officer cannot alone support a claim of a policy or custom on the part of the Village. However, because discovery has not been completed, we grant plaintiffs a limited extension of time to complete discovery in order to determine if their claim against the Village can be supported by evidence of a policy or custom on the part of the Village that directly caused the alleged constitutional violation.
II. Section 1983 Excessive Force Claim Against Scott
As a general rule, police officers are entitled to qualified immunity if (1) their conduct does not violate clearly established constitutional rights, or (2) it was objectively reasonable for them to believe their acts did not violate those rights. Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994), cert. denied, 130 L. Ed. 2d 627, U.S. , 115 S. Ct. 721, 115 S. Ct. 722 (1995). There can be no dispute that freedom from the use of excessive force is a clearly established constitutional right. The issue is whether it was objectively reasonable for Scott to believe that his acts did not violate Javid's constitutional right to be free from the use of excessive force. At the time that Javid was shot, a reasonably prudent officer would have recognized that an officer could use deadly force to effect the arrest of a fleeing felon if, under the circumstances, he reasonably believed such force was necessary to protect himself or others from death or serious physical harm. Tennessee v. Garner, 471 U.S. 1, 11, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985). Excessive force claims under section 1983 are governed by the Fourth Amendment standard of "objective reasonableness." Graham v. Connor, 490 U.S. 386, 395, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989)
; Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir. 1990). See also Tennessee v. Garner, 471 U.S. 1, 7, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985) ("There can be no question that the apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.")
A. Objectively Reasonable Standard
The Supreme Court has set forth several principles in holding that an excessive force claim is to be analyzed under an "objectively reasonable" standard of the Fourth Amendment:
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. . . . 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 amount of force that is necessary in a particular situation. . . .