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September 17, 2002


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


Charles Edward Davis ("Davis" or the "plaintiff") commenced this action by filing a complaint on December 30, 1997, alleging that Detective James Curtis ("Curtis" or a "defendant"), Joseph Neve ("Neve" or a "defendant"), and the Lynbrook Police Department ("LPD" or a "defendant") (collectively, the "defendants") deprived him of his constitutional rights in violation of 42 U.S.C. § 1983. Presently before the Court is a motion by Neve and the LPD (collectively, the "Lynbrook Defendants") for summary judgment.


A. The Parties

For the purpose of deciding the Lynbrook Defendants' motion for summary judgment, the following facts are undisputed unless otherwise indicated. The LPD is a department within the Village of Lynbrook. Neve became a member of the LPD on February 8, 1977 and has been Chief of the Department since his appointment in March 1991. Curtis was appointed as a police officer for the LPD on March 19, 1973.

B. Curtis' June 7, 1993 Automobile Accident

On June 7, 1993, Curtis was involved in a line-of-duty automobile accident in which he allegedly sustained injuries to his neck, back, left wrist, and elbow. The Lynbrook Defendants allege that as a result of these injuries, Curtis was on "partial disability leave" and was not assigned to full-time police duty on April 12, 1995, the date of the incident at issue in this case. They also allege that Curtis had not been on active police duty for more than one year preceding April 12, 1995. Davis alleges that despite being on "partial disability leave," Curtis continued to work as a police officer, making arrests and assisting other arresting officers, arrests from June 7, 1993 through April 12, 1995.

On December 8, 1993, Curtis informed Neve that he had applied for disability retirement to the New York State & Local Retirement System based on the injuries he sustained on July 7, 1993. On January 14, 1994, in connection with that application, Curtis signed an authorization for the release of his medical records to the Medical Board of the Retirement System. On August 18, 1994, Neve submitted Curtis' medical records to the New York State & Local Retirement System. On February 7, 1995, Neve rescinded his request for an appeal regarding Curtis' disability pension, "[i]n light of recent medical evidence." On June 13, 1995, Neve informed one John Black, an attorney who works in an unknown capacity for an unidentified state organization, that the Nassau County District Attorney ("NCDA") had been advised that Curtis submitted his brother's x-rays to the New York State & Local Retirement System in an attempt to receive a disability pension. Curtis' brother had been granted a disability pension on or about September 22, 1990. The Lynbrook Defendants maintain that Curtis' application for a disability retirement was still pending on April 12, 1995, but Davis disputes that allegation.

C. The Surveillance of Curtis

In a report to Neve dated March 5, 1995, one Clifford S. Trotter ("Trotter"), a private investigator, detailed the information he had gathered regarding Curtis. The first two paragraphs of the report confirmed that Neve had contacted Trotter's firm and asked Trotter to "initiate discreet surveillance operations relating to James E. Curtis." The report states that Neve had informed Trotter that Curtis was not working due to a disability, and that Neve had asked Trotter to determine Curtis' current activities. The report describes Trotter's observations of Curtis on three consecutive Thursdays: February 16, February 23, and March 2, 1995.

D. The April 12, 1995 Incident

Curtis pulled his car to the side of the road, allowing the plaintiff to pass. After Davis passed Curtis, Curtis resumed his drive south on Ocean Avenue, now following Davis. Davis observed the driver of the car behind him flashing his high beams and assumed that the driver needed assistance. Davis pulled his vehicle off to the side of the road.

Davis stopped his car, rolled down the driver's side window, and waited for the other motorist to stop his car. Davis had been driving with his high beams on because one of his headlights was not working properly. Curtis pulled up alongside Davis' car, yelled at Davis to get his lights fixed, and screamed profanities and racial slurs at him. Davis noticed that Curtis' speech was slurred and concluded that Curtis was drunk. Davis responded by saying, "All right, no problem," and drove away.

Curtis pulled out behind Davis and began following him. Curtis put on his high beams, "deliberately blinding" Davis, and tailgated Davis' car. Davis continued to the intersection of Ocean and Atlantic Avenues, where he stopped at a red light. Curtis stopped next to Davis' car. When Davis turned to look at Curtis, he saw that Curtis was grinning. Davis turned back to the light and waited for it to turn green, at which point Curtis said to Davis, "[H]ey asshole, hey asshole." Davis kept looking straight ahead at the light, and Curtis said to him, "[H]ey asshole, I'm a cop". Davis saw Curtis flash something silver, which Davis assumed was a badge.

Davis made a left turn onto Atlantic Avenue, and Curtis followed him. Davis made a right turn onto Access Road, which opened into the parking lot behind the Tri-State Newspapers warehouse. Curtis followed Davis onto Access Road. At this point, Davis became frightened because Access Road is not regularly traveled and is not well-lit. Davis drove quickly down Access Road, parked his car in the Tri-State Newspapers parking lot, and started walking toward the warehouse because he knew people would be inside.

Davis turned and saw Curtis' blue Cadillac enter the parking lot and come to a stop. Curtis jumped out of his car drawing a Smith & Wesson nine-millimeter semi-automatic firearm. Curtis pointed the weapon at Davis and asked him, "[Y]ou think I'm a cop now?" Curtis asked Davis where he was going, and Davis responded that he was on his way to work. Curtis asked Davis where he worked, and Davis replied that the worked in the warehouse in front of which they were standing. Curtis, who was still pointing the gun at Davis, told Davis to lie face-down on the ground, and Davis complied. Curtis threatened Davis, saying that "he had a license to kill niggers" and that "he could kill [Davis], get away with it." Davis began screaming desperately for help.

Byron Perez ("Perez"), one of the workers inside the warehouse, heard Davis' screams. Perez went to the rear of the warehouse, opened the door, and stepped into the parking lot. There, he saw Davis lying face-down on the ground with his hands behind his back and Curtis standing over him with a gun pointed at him. Curtis identified himself as a police officer and showed Perez what appeared to be a badge. Perez noticed that Curtis appeared intoxicated. Perez did not know Davis personally but knew that he was an employee. Davis yelled to Perez, "tell him I work here." Perez told Curtis that Davis was an employee at the newspaper facility. After receiving this information, Curtis holstered his gun or tucked it in his belt.

Perez called to his brother-in-law, Edwin Morales ("Morales"), another worker at the newspaper facility. Morales went to the rear of the warehouse, opened the door, and saw a man pointing a gun at another man. Morales told Curtis to lower the gun, but Curtis refused and instead showed him a silver bade and directed him to call 911. Morales went inside and told a co-worker to call 911. When Morales returned to the parking lot, Curtis identified himself as a police officer.

After Curtis holstered his gun, Davis stood up, and the two men began to argue. Curtis asked Davis for identification, and Davis began walking toward his car. Curtis came up behind Davis and pushed him. Davis turned around and pushed back. The argument escalated into a shoving match, and Davis grabbed Curtis' gun from his waistband.

Davis pointed the gun at Curtis and asked him, "Who are you?" Curtis did not respond. Morales heard Davis tell Curtis, "I'm going to kill you," but Davis denies having made such a threat. Curtis ran toward the warehouse, and Davis squeezed the trigger of Curtis' gun. The trigger did not move. Curtis ran into the warehouse through the back door, and Davis ran after him with the gun. As Davis ran by his coworkers, they yelled to him, "Don't do it!"

Davis encountered Curtis inside the warehouse. He pointed the gun at Curtis, "[p]ulled the top piece of the gun back," and told Curtis to stop and get on the ground. Davis wanted to hold Curtis in the warehouse until the police arrived, so he tried to hit Curtis to the ground by striking him across the back. Instead, Davis hit Curtis on the head with the gun. The gun discharged, and a bullet lodged in Curtis' brain. As a result of the shooting, Curtis is unable to speak, unable to see out of one eye, and is partially paralyzed.

After the incident, the Nassau County Medical Examiner's Office determined that Curtis' blood alcohol level at the time of the shooting was .16. The Medical Examiner's Office found traces of marijuana in his blood as well.

On September 27, 1996, following a jury trial, Davis was found guilty of Attempted Murder in the Second Degree, Attempted Manslaughter in the First Degree, Criminal Use of a Firearm in the First Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. In a decision dated February 8, 1999, the Appellate Division, Second Department, unanimously affirmed Davis' judgment of conviction. People v. Davis, 258 A.D.2d 528, 685 N.Y.S.2d 455 (2d Dept. 1999). On April 28, 1999, the Court of Appeals denied Davis' application for leave to appeal to that Court. People v. Davis, 93 N.Y.2d 898, 689 N.Y.S.2d 710, 711 N.E.2d 986 (1999).

E. Davis' Criminal Complaint

Sometime between April 12 and April 20, 1995, Davis filed a criminal complaint with the NCDA alleging that Curtis "engaged in various acts of criminal conduct in connection with a series of incidents that occurred . . . on April 12, 1995." On or about April 20, 1995, the NCDA commenced an investigation into Davis' allegations, and on June 21, 1995 determined that "there is insufficient evidence to warrant its seeking to initiate a criminal prosecution against Curtis in connection with the matters set forth in Davis' [complaint]."

F. Curtis' Applications for Benefits

On or about March 7, 1996, Curtis filed an application with the New York State & Local Retirement Systems for accidental disability retirement benefits for the injury he suffered on April 12, 1995. A hearing was held and, in a decision dated June 25, 1999, the New York State Comptroller denied the application, finding that "the applicant has failed to meet the burden of proof necessary to establish that the incident in question was an accident sustained in the service upon which his membership is based." Curtis appealed the decision to the Appellate Division, Third Department. In a decision dated March 15, 2001, the Appellate Division affirmed the Comptroller's determination that Curtis did not sustain an accident while in service. See Curtis v. New York State Comptroller, 281 A.D.2d 780, 722 N.Y.S.2d 116 (3d Dept. 2001).

Curtis also applied for workers' compensation benefits, and in a decision dated February 17, 1999, the New York State Workers' Compensation Board awarded Curtis the benefits he sought. In particular, the Workers' Compensation Board found that Curtis had "proven that the accident occurred in the course of employment."

G. Prior Criticisms and Complaints Regarding Curtis' Conduct

In his affidavit in opposition to the Lynbrook Defendants' motion, Davis describes nine criticisms and complaints different people had made regarding Curtis' conduct as a police officer. In their reply affirmation, the Lynbrook Defendants do not deny the existence of these complaints. Rather, they assert that "the complaints lodged against Curtis during his twenty two years of service were either unsubstantiated or not the type which would have placed the [LPD] on notice he possessed a potential threat to the rights of the public." Because the Lynbrook Defendants do not assert that the complaints were not filed, the Court finds that their existence is undisputed. Accordingly, a brief discussion of the complaints follows.

1. March 28, 1974

In a report to the Commanding Officer of the LPD, dated March 28, 1974, one Sergeant M. French ("French") wrote that at 2:30 that morning, he responded to a disturbance call at the Twin Harps Bar. When French entered the bar, he saw Curtis who called him over and said that he wanted to arrest one Mounir Mina ("Mina") for harassment. Curtis told French that Mina had been "giving him a hard time." French observed that Curtis "had had quite a bit to drink," and advised Curtis to go home. French returned to headquarters, telephoned the bar, and spoke to Curtis. He again advised Curtis to home and get some sleep. ...

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