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BUSCH v. CITY OF NEW YORK

GLENN A. BUSCH, Administrator of the Estate of GARY S. BUSCH, Plaintiff,
v.
THE CITY OF NEW YORK, SERGEANT TERRANCE O'BRIEN, SERGEANT JOSEPH MEMOLY, OFFICER WILLIAM LOSHIAVO, OFFICER DANIEL GRAVITCH, OFFICER MARTIN SANABRIA, Defendants.



The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge

MEMORANDUM AND ORDER

On November 19, 2003, after a four week trial and six hours of deliberation, a jury rendered a verdict finding Defendants Sergeant Terrence O'Brien ("Sgt. O'Brien"), Sergeant Joseph Memoly ("Sgt. Memoly"), Officer William Loshiavo ("Loshiavo"), Officer Daniel Gravitch ("Officer Gravitch"), and Officer Martin Sanabria ("Sanabria") not liable on all federal and state claims arising out of the shooting death of Gary S. Busch ("Busch").*fn1 Plaintiff Glenn A. Busch ("Plaintiff"), administrator of the Estate of Busch, moves pursuant to Rule 50(b) of the Federal Rules of Civil Procedure for judgment as a matter of law against Sgt. O'Brien, Sgt. Memoly, and Gravitch, and a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure against Sanabria and Loschiavo, or in the alternative, a new trial against all Defendants. Plaintiff further moves for post-trial juror interviews and a hearing to determine whether an extraneous influence tainted the jury deliberations. As described herein, Plaintiff's motion for a new trial is GRANTED against all Defendants on the excessive force shooting claim. The remaining motions are DENIED.

FACTUAL BACKGROUND

  Plaintiff filed the instant 42 U.S.C. § 1983 action against Defendants alleging, amongst other things, violations of Busch's right to substantive due process under the Fourteenth Amendment and his right to be free from excessive force under the Fourth Amendment, as well as state law claims for assault and battery. These claims arise out of an incident which began with two calls to Busch's residence, a basement apartment located at 1619 46th Street in the Borough Park neighborhood of Brooklyn, New York. On August 30, 1999, around 5:40 p.m., police officers first responded to a call that Busch was an emotionally disturbed person ("EDP") who needed medical assistance. Finding further police action unnecessary, the police officers left the scene without taking Busch to the hospital. Around 6:40 p.m. on the same evening, police officers responded to a second call that Busch was threatening his neighbors with a hammer. The officers' response to that second call culminated in Busch's death.

  The trial involved the testimony of thirty fact witnesses, five defendants, and four expert witnesses. With respect to the first call to the police, civilian witnesses Yosef Horowitz ("Horowitz"), David Spira ("Spira"), and Issac Landau ("Landau") testified regarding their impressions of Busch's behavior prior to and after the officers' arrival. The police officers who responded to the radio call — Guy Scavelli ("Scavelli"), Nicolas DeRobertis ("DeRobertis"), James Derkash ("Derkash"), Sgt. Andrew Nyhan ("Sgt. Nyhan"), Sgt. O'Brien, and Kieran O'Leary ("O'Leary") — testified regarding Busch's behavior after they arrived on the scene. With respect to the second call to the police, Defendant officers and civilian witnesses Rafael Eisenberg ("Eisenberg"), Lazar Eichenstein ("Eichenstein"), Hershel Kaufman ("Kaufman"), Tzvi Rokeach ("Rokeach"), Jose Olivo ("Olivo"), David Templar ("Templar"), David Tyberg ("Tyberg"), and Lipa Ionovitch ("Ionovitch") testified regarding the events leading up to the shooting. In addition to expert witnesses, Officer Thomas Accardo ("Accardo"), Shimon Charach ("Charach"), Ari Goldstein ("Goldstein"), Officer Michael Esposito ("Esposito"), and Officer Michael Sweeney ("Sweeney") testified regarding events after the shooting. Although it is impossible to fully present all four weeks of testimony, the Court has attempted to recapitulate the relevant testimony in order to portray what took place on August 30, 1999.

  I. First 911 Call

  On August 30, 1999, Horowitz observed Busch sitting "outside naked [in a] towel," (Aff. of Vera Scanlan, Ex. A. Trial Transcript ("Tr.") at 182) with his "feet [up] in the air." (Tr. at 184.) Horowitz informed Spira and Landau, members of the Shomrin, a neighborhood patrol organization, of the situation and the three of them traveled to Busch's residence. (Tr. at 185.) They encountered Busch and asked if he was on medication. According to Spira, Busch stated that he was a doctor and did not need medication. Busch further stated that he was smoking marijuana (Tr. at 116), hallucinating (Id), and meditating (Id.) Both Spira and Landau testified that they smelled marijuana. (Tr. at 120, 150.) Busch also stated that he had previously been hospitalized in a psychiatric home and needed medical help. (Tr. at 185, 186.) Spira called 911, asked for emergency medical services ("EMS"), an ambulance, and informed the operator that Busch was an EDP. (Tr. at 117-18.) Spira testified that Busch then stood up and began to dance. (Tr. at 119.) After the 911 call, Busch eventually retreated into his apartment. (Id.)

  At various intervals, Scavelli, DeRobertis, Derkash, Sgt. Nyhan, Sgt. O'Brien, and O'Leary responded to the 911 call. Busch's behavior once the officers arrived is in dispute. Spira and Landau testified that they immediately updated the officers (Tr. at 120, 150), and Horowitz specifically disclosed Busch's requests for help. (Tr. at 185.) According to Spira, Busch, who emerged from his apartment fully dressed, was noncompliant with the officers' requests and demonstrated signs of EDP behavior. Specifically, Busch rebuffed the officers' requests to stand up, stating "I didn't ask you what to do." (Tr. at 122.) Busch also refused the officers' request to call Percy Freeman ("Freeman"), his African-American acquaintance who was in the apartment at the time, out of his apartment, stating that "when God tell[s] me[,] I'll be ready to take him out of the apartment, he will come out of the apartment." (Tr. at 188.) Freeman finally emerged from the apartment and handed Busch a flute, which Busch began playing in the presence of the officers. (Tr. at 122-23.) Spira and Landau recalled that Freeman also appeared to be under the influence of drugs. (Tr. at 123, 154.)

  According to Landau, one of the officers stated to Freeman, "Skippy, what's up?" (Tr. at 154.) Landau recalled Busch offering a sergeant his hand, but the sergeant refused, stating, "I don't want to touch your [fucking] hand" (Tr. at 151.) Spira also recalled that one of the officers looked as if he were going to push Busch, but another officer stopped him. (Tr. at 124.) The police eventually left the scene without taking any action. As they were leaving, Spira testified that one of the officers explained that "they [didn't] want to call EMS because they have to send [another] officer with them. They didn't have an extra officer." (Tr. at 126.) Spira and Horowitz recalled that the police officers told Busch that if they had to come back, they would arrest him. (Tr. at 136, 189.) Landau stated that Busch screamed back: "you don't tell me what to do. I will tell you what to do. I'm above the police." (Tr. at 155.) Horowitz testified that Busch also screamed: "talking to me is like talking to God and talking to God is like talking to me." (Tr. at 189.)

  In contrast, the officers testified that Busch appeared calm and did not act like an EDP.*fn2 Sgt. Nyhan, who was one of the first to arrive and interacted with Busch the most, testified that Busch was "very calm" (Tr. at 787) and spoke "very clearly." (Tr. at 773.) Sgt. Nyhan recalled Busch telling him that he did not wish to go to the hospital and that none of the civilian witnesses told him otherwise. (Tr. at 763, 768.) Freeman also told him that "everything was fine and that there weren't any problems." (Tr. at 763.) Sgt. Nyhan testified that he did not smell marijuana and that Busch obeyed his requests. Sgt. Nyhan determined, after speaking to Busch, Freeman, and the civilians, that no further police action was necessary. (Tr. at 791-92.) Sgt. Nyhan testified that they had no basis to arrest Busch. (Tr. at 764.)

  Sgt. O'Brien testified that he did not question Busch, Freeman, or any of the civilians. When he arrived, Sgt. O'Brien observed Busch seated fully clothed with a flute between his legs. (Tr. at 2020.) Sgt. O'Brien testified that no one informed him that Busch was sick and needed medical assistance. (Tr. at 2025). As he was leaving, Sgt. O'Brien confirmed that he told Busch that he would arrest him if the police received a call that "you're smoking marijuana or running around naked." (Tr. at 2036.)

  O'Leary, who remembered little, testified that Busch stated "he wouldn't allow himself to be arrested, [and] that he works for a higher authority." (Tr. at 939.) When confronted with his deposition testimony, DeRobertis conceded that he had heard the ambulance cancelled over the police radio. (Tr. at 355.) All of the officers denied the allegations of misconduct. II. Second 911 Call

  Around 6:40 p.m., the police were once again called to Busch's apartment. Gravitch and Sanabria were the first officers to arrive. Gravitch was told that "[Busch] had been outside smacking the ground with a hammer" (Tr. at 1091) and "waving the hammer around scaring children in the neighborhood." (Tr. at 1092.) After speaking with neighbors, Sanabria testified that they walked over to the railing of Busch's apartment. (Tr. at 1188.) Once there, Busch walked out of his apartment holding a hammer in his hand (Id.) Sanabria and Gravitch then tried to calmly coax Busch into putting the hammer down. (Id.) Sanabria testified that "[a]t some point [Busch] takes the hammer and he bangs it against the side of the door frame and states: I'm not going to put the hammer down, you are going to have to shoot me if you want me to put the hammer down." (Id.) Sanabria recalled telling Busch that they didn't want to hurt him, but rather wanted to get him help. (Id.) Sanabria also recalled that Busch looked agitated, wouldn't listen, and kept walking in and out of his apartment. (Id.) As a result, Gravitch called for an emergency services unit ("ESU") and a sergeant. (Tr. at 1190, 1396.)

  When Freeman, who was inside Busch's apartment, emerged from the apartment, Sanabria asked him to persuade Busch to put down the hammer. (Tr. at 1239.) Freeman responded that the hammer was a religious hammer and that "[Busch] wasn't going to put it down." (Tr. at 1193-94.) Sanabria then asked Freeman to come up the stairs, but Freeman refused, stating that he wished to remain with Busch. (Tr. at 1195-96.)*fn3

  Gravitch testified that Freeman told him to leave them alone, and stated that everything was okay, and that they were "praying or chanting." (Tr. at 1405.) Gravitch noticed chanting music coming from the apartment. (Id.) Gravitch recalled Freeman telling him that "everything was okay and that the hammer was inscribed by God to protect [he and Busch] from demons." (Tr. at 1406.) Gravitch observed Hebrew characters written on the hammer. (Id.)

  Subsequently, Sgt. O'Brien arrived, and Sanabria updated him regarding the situation. Sgt. O'Brien then told Sanabria that he wanted to get "[Freeman] out of there." (Tr. at 1242.) Sgt. O'Brien testified that he did so in order to contain Busch and to save Freeman from Busch. (Tr. at 2079.) Sgt. O'Brien maintained that he was unaware that Freeman and Busch were friends. (Tr. at 2077.) After Freeman refused to come up the stairs, Sgt. O'Brien reached over the railing, grabbed Freeman's arm, rounded the railing, and pulled Freeman up the stairs. (Tr. at 2075). Officer Sanabria attempted to handcuff Freeman at the landing by the stairs.*fn4 By that time, Loshiavo, Sgt. Memoly, and O'Leary had arrived at the scene. (Tr. at 943, 1281, 1602.) Loshiavo and Sgt. Memoly both testified that they assisted in restraining Freeman. (Tr. at 1281-82, 1602.)

  A. Pepper spraying of Busch

  As the officers were restraining Freeman, Gravitch, who was near the top of the railing, testified that Busch came out of his apartment, holding the hammer initially at his side. (Tr. at 1412.) Gravitch recalled that Busch then started waving the hammer above his head, and stated "let my friend go, release my friend, let him go." (Tr. at 1412.) After Busch refused to drop the hammer, Gravitch took out his pepper spray. (Tr. at 1415.) Gravitch testified that pepper spraying Busch was necessary because he "believed [that Busch] was going to come up the stairs and hit somebody with the hammer, most likely Sgt. O'Brien because he was standing there." (Tr. at 1416.) Gravitch further testified that he hoped the pepper spray would cause Busch to drop the hammer so that the officers could take him into custody. (Tr. at 1417.)

  Gravitch pepper sprayed Busch. However, when this occurred is in dispute. Gravitch testified that he asked Sgt. O'Brien if he could pepper spray Busch immediately and did so after receiving approval. (Tr. at 1415.) Busch then "let out a loud scream, a loud yell and started charging up the stairs with the hammer raised." (Tr. at 1420.) Gravitch testified that Sgt. O'Brien, who was a few steps down from the top of the stairs facing Busch, turned around quickly and started heading up the stairs. (Tr. at 1421.) Eventually, Busch's hammer "made a connection with [Sgt.] O'Brien on the right side somewhere." (Tr. at 1421.) Gravitch then started over towards the top of the stairs, where he converged with Busch, who looked at him. (Id.) This caused Gravitch to back up to avoid getting hit with the hammer, and he fell as a result. (Tr. at 1422.)

  In contrast, Sgt O'Brien testified that Busch struck him with the hammer prior to being pepper sprayed. According to Sgt. O'Brien, Busch charged at him with the hammer, striking him in his back, arm, leg, boot, and gun. (Tr. at 2100-01.) Sgt. O'Brien described these hits as "baseball [like] swings." (Tr. at 2203.) Photos introduced into evidence revealed a small abrasion to Sgt. O'Brien's wrist. Sgt. O'Brien recalled that at one point, he was on the steps with his feet up, and that Busch was very close to being on top of him, so much so that O'Brien had to put his arm up to prevent himself from getting hit in the head. (Tr. at 2089.) It was at this time that Gravitch asked if he should mace Busch, and Sgt. O'Brien responded, "yes, mace him." (Id.) Sgt. O'Brien testified that the pepper spray "hit [Busch] in the nose, maybe the bridge of the nose," (Tr. at 2098) "went in his face," (Id.) and "ran down like water." (Tr. at 2100).

  The remaining officers offer further details about the incident. Sgt. Memoly, who positioned himself a couple of steps from the top of the stairs and also authorized Gravitch to pepper spray Busch (Tr. at 1723), testified that Busch charged up the stairs and attacked Sgt. O'Brien with the hammer (Tr. at 1724). Sgt. Memoly testified that Busch hit Sgt. O'Brien with the hammer in his "mid-section below his neck to his knee." (Tr. at 1724.) Specifically, Sgt. Memoly testified that Sgt. O'Brien was off balance[d] on his backside and Busch swung "back and forth across Sgt. O'Brien's body." (Id.) Sgt. Memoly, who then started scrambling up the stairs, "radioed and pleaded to have ESU respond forthwith." (Id.) O'Leary testified that Busch ran up the stairs towards Sgt. O'Brien, who had his back to him, and raised the hammer above his head, hitting Sgt. O'Brien in his gun belt or gun. (Tr. at 952.) Neither Sanabria nor Loschiavo saw whether Busch hit Sgt. O'Brien with the hammer. (Tr. at 1212, 1286.)

  All of the civilian witness agree that Busch charged up the stairs with the hammer, however, most of them deny that Busch hit Sgt. O'Brien with the hammer. Templar testified that as Busch was running up the stairs, "he didn't push nobody, or didn't go after nobody, they just moved by the side and he came up the steps." (Tr. at 464.) Templar also testified that he saw Busch pepper sprayed as he started up the stairs. (Tr. at 445.) Eisenberg, who positioned Sgt. O'Brien in the middle of the stairway, testified that "there was no confrontation, just the officer trying to get out of the way as fast as he could, as well as the other officers [trying] to get out of his way so that he could get out of the stairs." (Tr. at 1843.) Eichenstein, however, testified that Busch came into close proximity with Sgt. O'Brien on the stairs. (Tr. at 598.)

  B. Shooting of Busch The events leading up to the shooting once Busch arrived up the stairs are heatedly disputed. There is little consistency between the civilian witnesses' and Defendants' accounts of the shooting. Specifically, there is no unanimity regarding Busch's position once up the stairs; the distance between Busch and the officers; how Busch held and positioned the hammer; where the hammer fell; and how and where Busch fell. The only consistency is that all civilian witnesses, with the exception of Ionovitch, testified that Busch did not lunge or charge towards the officers prior to being shot. The officers and Ionovitch testified that Busch did lunge or charge at the officers prior to being shot.

  Eisenberg, who watched the events from the double staircase to building 1619, testified that Busch traversed the driveway and positioned himself by the wall of the adjacent building, with the officers forming a semi-circle around him. (Tr. at 1840, 1843-44.) Although there was at least one officer between him and Busch, Eisenberg testified that he could see the "entire top portion of Busch's body and perhaps part of his legs." (Tr. at 1896.) Busch stood erect with the hammer above his head as "he was screaming this screeching sound." (Tr. at 1847.) Eisenberg testified that the distance between Busch and the officers was "like out of arms' reach, you know, it was like four feet, five feet, maybe more." (Tr. at 1849.) Although Eisenberg initially testified at trial that Busch did not move, (Tr. at 1845-46), when defense counsel confronted him with his previous statement given to an FBI agent, Eisenberg conceded that before Busch was shot, he "saw him swaying subtly, but [again maintained that] there was virtually no movement." (Tr. at 1845-46, 1897.)

  Eisenberg testified that he could "discern [that] there was one shot first and momentarily later at a very short interval there was a whole volley of shots that followed." (Tr. at 1846.) He also observed that Busch fell maybe a "a foot, two feet, two and a half feet, something like that" from the wall of the adjoining building stairway. (Tr. at 1849.) Specifically, Eisenberg testified that "[h]e wasn't right up against the wall but he was in the position where he had the wall to his back so that I don't think anyone could approach him." (Id.) When shot, Eisenberg recalled that "[Busch] just seemed to be like a pillow and these bullet holes just were puncturing his torso. He seemed to go papa-pa-pa-pa-pa (ph.) You could hear like some sort of a concussion as the bullets penetrated him. I observed that they penetrated him and that after a few moments, blood started to ooze out from all these holes." (Tr. at 1846.) After the shooting, Eisenberg testified that he "noticed for the first time [that Busch] seemed to have ...


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