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January 19, 1996

KAMAL JAVID and ELEANOR JAVID, individually, and ELEANOR JAVID as Administratrix of the Estate of TIGE JAVID, Deceased, Plaintiffs, against EDWARD SCOTT and THE VILLAGE OF MONROE, Defendants.

The opinion of the court was delivered by: CONNER

 Conner, Senior D.J.:

 Plaintiffs Eleanor Javid, as administratrix of the estate of Tige Javid ("Javid"), deceased, and Kamal Javid and Eleanor Javid (Javid's parents), individually, brought this action pursuant to 42 U.S.C. ยง 1983, alleging that defendant Edward Scott ("Scott") violated their constitutional rights by the use of deadly force in apprehending Javid, and that defendant Village of Monroe (the "Village") had a policy of inadequately screening, training and supervising police officers. Plaintiffs also asserted common law tort claims against Scott for assault, battery and wrongful death, and against the Village under the theory of respondeat superior.

 Defendants have moved for summary judgment dismissing plaintiffs' claims on grounds that (1) Scott's actions are shielded by qualified immunity because his use of deadly force was "objectively reasonable" as a matter of law and (2) plaintiffs have not set forth a valid section 1983 claim against the Village. For the reasons discussed below, defendants' motion with respect to the claims asserted against Scott is denied, and consideration of defendants' motion with respect to the claims asserted against the Village is deferred pending further opportunity for discovery.


 This claim arises out of the fatal shooting of Javid during the early morning hours of May 30, 1992 following a high speed chase involving numerous police agencies in Orange County, New York. The pursuit stretched several miles before Scott, a police officer employed by the Village of Monroe during times relevant to this case, terminated the chase by shooting Javid while in pursuit in his police cruiser. Scott was acquitted of manslaughter charges after trial before the Honorable Jeffrey G. Berry, Orange County Court Judge, in connection with the events of May 30, 1992. During the trial, Scott gave sworn testimony on his own behalf on October 27, 1993, and was subject to cross examination by the Orange County District Attorney's Office.

 Most of the facts surrounding the chase are not in dispute. Beginning at 11:00 p.m. on May 29, 1992, Scott was on duty during the 11:00 p.m. to 7:00 a.m. shift as a uniformed police officer in a marked Village of Monroe Police Department patrol cruiser. At some point prior to 3:00 a.m. on May 30, 1992, Scott received a dispatch over the police radio that a robbery had just occurred several miles away in the Village of Goshen involving a suspect driving a red pick-up truck. Scott testified in his criminal trial that the dispatcher stated that the suspect was believed to be armed. After hearing this radio transmission, Scott drove to the entrance ramp between Exits 129 and 130 of Route 17. Shortly thereafter, Scott observed two marked New York State Trooper vehicles proceeding on Route 17 immediately followed by a radio communication from State Trooper Casey that he would advise when the Village of Monroe police officers should get into position for a moving road block. Pursuant to Trooper Casey's direction, Scott and Officer Bieber, the other Village of Monroe officer on duty during the shift, started their moving road block on Route 17. After getting into position, Scott observed emergency lights on top of police vehicles in his rear view mirror travelling at a high rate of speed in pursuit of one vehicle operating without emergency lights. This vehicle was a red Ford Bronco pick-up truck driven by Javid.

 As Scott began accelerating to create a moving road block, the Javid vehicle passed him on the right side of his patrol vehicle in the merging lane, followed by one of the other emergency police vehicles. Scott testified in his criminal trial that, during the chase, he heard another police broadcast stating that the suspect was armed.

 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) *fn1" ...

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