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DAVIS v. LYNBROOK POLICE DEPT.
September 17, 2002
CHARLES EDWARD DAVIS, PLAINTIFF,
LYNBROOK POLICE DEPARTMENT, A MUNICIPAL ENTITY, JOSEPH NEVE, CHIEF OF POLICE, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, AND DETECTIVE JAMES CURTIS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, DEFENDANT.
The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM OF DECISION
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rescinded his request for an appeal regarding Curtis' disability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
On April 11, 1995 at approximately 11:00 p.m., Curtis, wearing civilian
clothes, went to the Swiss Tavern in Lynbrook, where
he played darts and drank until 3:00 a.m. on April 12, 1995. When Curtis
left the Swiss Tavern, he drove south on Ocean Avenue. The plaintiff, who
also was driving south on Ocean Avenue, was on his way to Tri-State
Newspapers, Inc., where he worked as a substitute newspaper carrier. The
plaintiff was driving behind Curtis and saw the blue Cadillac that Curtis
was driving swerving from side to side. The plaintiff thought the driver
of the Cadillac might be drunk, so he "kept his distance".
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
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
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.
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
E. Davis' Criminal 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.
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. ...