The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
This is an action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) brought by Plaintiff, Robert Carvajal, who was shot twice by U.S. Secret Service Agents (the "Agents") executing a search warrant in a New York City Housing Authority project, The Taft Houses, located at 70 East 115th Street, New York, New York, at 6:00 a.m. on February 9, 2004. Previously, the Court dismissed Plaintiff's claims against all of the Agents who were not directly involved in the shooting. (Order dated January 25, 2008). The Court also dismissed Plaintiff's supervisory liability claims. (Id.) The Court found there to be factual issues with respect to Plaintiff's excessive force claim against U.S. Secret Service Agents Mihalek and Rizza, and their defense of qualified immunity. The Court held that summary judgment was not appropriate on the excessive force claim, but permitted Mihalek and Rizza to renew their motion on qualified immunity after limited discovery.
Summary Judgment Standard
Summary judgment is appropriate where the record demonstrates that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of producing evidence on each material element of its claim or defense demonstrating that it is entitled to relief. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The evidence on each material element must be sufficient to entitle the movant to relief as a matter of law. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
Once the moving party has made an initial showing that no genuine issue of material fact remains, the nonmoving party may not refute this showing solely by means of "[c]onclusory allegations, conjecture, and speculation," Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (internal citations and quotations omitted), but must instead present specific evidence in support of its contention that there is a genuine dispute as to material facts. Fed. R. Civ. P. 56(e). The Court resolves all ambiguities and draws all factual inferences in favor of the non-movant, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)).
The Fourth Amendment and Excessive Force
Under the Fourth Amendment, the question of whether force used to effect a seizure is "excessive" is judged "under objective standards of reasonableness." Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir. 2003). The question is "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham, 490 U.S. at 397. "Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Id. at 396.
In "slosh[ing] . . . through the factbound morass of 'reasonableness,'" Scott v. Harris, 550 U.S. 372, 383 (2007), "a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. 396. Factors relevant to Fourth Amendment excessive force claims include, "'the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.'" Saucier v. Katz, 533 U.S. 194, 205 (2001) (quoting Graham, 490 U.S. at 396), overruled in part by, Pearson v. Callahan, 129 S.Ct. 808, 813 (2009).
In Tennessee v. Garner, 471 U.S. 1, 11 (1985), the Supreme Court explained that with regard to deadly force, it is unreasonable for an officer to "seize an unarmed, nondangerous suspect by shooting him dead." But, where "the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical injury, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given." Garner, 471 U.S. 11-12; see also Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004). Garner was, however, "simply an application of the Fourth Amendment's reasonableness test." Scott, 550 U.S. at 383. Thus, at bottom, in determining whether a law enforcement officer's use of force -- be it deadly or not -- was constitutional, the question remains: "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them . . . ." Graham, 490 U.S. 397; see also Blake v. City of New York, No. 05 Civ. 6652(BSJ), 2007 U.S. Dist. LEXIS 49160, at *8-9 (S.D.N.Y. July 6, 2007) (explaining that "Garner was simply an application of the Fourth Amendment's 'reasonableness' test."); cf. Holeman v. City of New London, 425 F.3d 185, 192 (2d Cir. 2005) ("The question whether the police have qualified immunity for a use of deadly force is likewise governed by the standard of objective reasonableness." (citing Graham, 490 U.S. at 397)).
Qualified immunity shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights." Pearson, 129 S.Ct. at 815. The doctrine strikes "a balance between the need to provide a means for the vindication of constitutional guarantees and the societal costs that inhere in litigation against public officials, including 'the danger that fear of being sued will "dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties."'" Loria v. Gorman, 306 F.3d 1271, 1281 (2d Cir. 2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982) (quoting Gegoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)). In determining whether qualified immunity precludes suit against a government official, courts consider: (1) "whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right[,]" and (2) "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Id. at 815-16 (citing Saucier, 533 U.S. at 201).*fn1
In considering excessive force claims such as the one brought by the Plaintiff, the question of qualified immunity turns on "the objective reasonableness of the [law enforcement official's] belief that his conduct did not violate [the alleged victim's] right to be free from excessive force." Salim v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996). This reasonableness inquiry, "depends only upon the officer's knowledge of circumstances immediately prior to and at the moment he made the split-second decision to employ deadly force." Id. at 92. "[E]ven officers who are found to have used excessive force may be entitled through the qualified immunity doctrine to an extra layer of protection 'from the sometimes hazy border between excessive and acceptable force.'" Stephenson, 332 F.3d at 77 (quoting Saucier, 533 U.S. at 206).
The Second Circuit has pointed out that "[f]rom this analysis it appears that at least in some excessive force cases the various parts [of the qualified immunity] analysis ultimately converge on one question: Whether in the particular circumstances faced by the officer, a reasonable officer would believe that the force employed was lawful." Cowan v. Breen, 352 F.3d 756, 764 n.7 (2d Cir. 2003). Yet, there is a distinction between the question of whether a constitutional violation has occurred, i.e., whether the defendant's use of force was objectively reasonable, and whether qualified immunity applies, i.e., whether it was objectively reasonable for the defendant to believe that his use of force was lawful. As explained in Stephenson, "claims that an officer made a reasonable mistake of fact that justified the use of force go to the question of whether the plaintiff's constitutional rights were violated, not the question of whether the officer was entitled to qualified immunity. . . . The qualified immunity inquiry, by contrast, concerns ...