The opinion of the court was delivered by: Barbara S. Jones United States District Judge
Before the Court are (1) Defendants' Motion for Summary Judgment with respect to Plaintiffs' claim that use of a dog can constitute deadly force; (2) Defendants' motions in limine for qualified immunity as to Plaintiffs' excessive force claims, and for good faith and governmental immunity as to Plaintiffs' assault and battery claims; and (3) Plaintiffs' Motion to Strike the Affidavit of Lieutenant Carlos Valdez and preclude his testimony at trial.
As explained in greater detail below, deadly force is simply an instance of excessive force, which is properly evaluated under the Fourth Amendment's objective reasonableness test. Because neither party has moved for summary judgment as to excessive force liability, and because there are genuine issues of material fact as to excessive force liability, the question of excessive force will be submitted to the jury. The Court will not include a deadly force instruction in its jury charge.
Defendants' motions in limine for qualified immunity, good faith immunity, and governmental immunity are DENIED with leave to renew after trial. Plaintiffs' Motion to Strike the Valdez Affidavit and preclude his testimony at trial is DENIED.
I. Background & Procedural History
The Court recounts only those facts necessary for the purposes of the instant Motions and construes all facts in the light most favorable to the Plaintiffs. Emmanuel Blake, William Bryant ("Plaintiffs") and another individual entered a maintenance garage in Brooklyn sometime during the evening of August 6, 2004. At 12:20 a.m., someone called 911 and reported a suspected burglary at the garage. When the police arrived at the garage, the third individual fled. Blake and Bryant hid from the police in an air ventilation shaft in the wall of a room in the basement of the garage. The cover to the ventilation shaft was approximately five feet up the wall from the floor. Detective William Unger, Detective Daniel Sprague, and Officer Lawrence Zacarese searched for Blake and Bryant with the aid of Officer Zacarese's police canine, "DJ." After searching for nearly an hour, the officers found Blake and Bryant and told them to exit the ventilation shaft. Bryant left the shaft first. Here the parties' stories diverge. Defendants allege that Bryant was struggling with Sprague and Unger on the ground, and that Bryant's hands were not visible. Plaintiffs allege that Bryant was not struggling with Unger and Sprague, other than by moving to avoid their blows, and that Bryant's hands were visible.
In any event, Zacarese instructed DJ to "get" Bryant. DJ bit Bryant on the right leg. The officers then handcuffed him. Sprague and Unger then told Blake to exit the ventilation shaft. Blake did so. Again, the parties dispute whether Blake was struggling with Unger and Sprague on the ground and whether Blake's hands were visible. Zacarese then commanded DJ to "get" Blake. Plaintiffs allege that DJ bit Blake on the face, upper neck, and both arms. Defendants allege that DJ bit Blake only on the left arm.
On July 25, 2005, Blake and Bryant commenced this civil action alleging, inter alia, assault, battery, and violations of their Fourth Amendment right to be free from unreasonable searches and seizures pursuant to 42 U.S.C. § 1983. Plaintiffs did not specifically plead deadly force as a separate cause of action in their Complaint, and the Complaint contains no reference to deadly force. On September 14, 2006, the parties submitted a Joint Pretrial Order. In that Order, the parties listed three types of claims arising under 42 U.S.C. § 1983, namely: Fourth Amendment Excessive Force, Fourth Amendment Deadly Force, and Fourth Amendment Failure to Intervene. On November 6, 2006, Plaintiffs sent a letter to the Court requesting that the Court include a deadly force instruction in its jury charge. This case was originally scheduled to proceed to trial on December 11, 2006 but was adjourned until March 19, 2007. On March 5, 2007, Plaintiffs moved in limine for a deadly force instruction. At oral argument on March 13, 2007, the Court reserved decision on the in limine motions, adjourned trial again, and instructed the parties that the Court would consider the deadly force issue only on a motion for summary judgment.
On April 12, 2007, Defendants moved for summary judgment with respect to Plaintiffs' claim that use of a dog can constitute deadly force. On April 30, 2007, the Supreme Court issued its opinion in Scott v. Harris, 550 U.S. ____, 127 S.Ct. 1769 (2007). Plaintiffs submitted their Opposition on May 21, 2007, and Defendants submitted their Reply on May 25, 2007.*fn1
A court can grant summary judgment only if "the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must "demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party does so successfully, the non-moving party must present "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(c). The party opposing summary judgment cannot rely on "conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jang Gan v. City of New York, 996 F.2d 522, 535 (2d Cir. 1993). The court must draw all reasonable inferences and resolve all ambiguities in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In their Memorandum in Support of their Motion for Summary Judgment, Defendants ask the Court to decide as a matter of law that the use of a properly trained police dog to apprehend a suspect by biting cannot constitute deadly force, and on that basis, to grant summary judgment in their favor as to that claim.*fn2 In their Response, Plaintiffs argue that a properly trained police dog can ...