The opinion of the court was delivered by: Hurley, Senior District Judge
Dorian Getlin ("Plaintiff") commenced this action alleging, inter alia, that Defendants violated his Fourth Amendment Rights by subjecting him to excessive force. Presently before the Court is Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, the motion is granted in part and denied in part.
The following facts are undisputed unless otherwise noted.
On or about February 16, 2007, at approximately 1:30 a.m. Plaintiff left his house and, while under the influence of drugs and/or alcohol, drove a borrowed automobile to Terrace Avenue in the Village of Hempstead and purchased narcotics. Plaintiff was then followed in a low speed chase by police officers, including defendant P.O. Zoll ("Zoll"), an employee of defendant Incorporated Village of Hempstead ("Hempstead"). The chase ended on a dead-end street in Merrick, New York at approximately 2:45 a.m, at which time Plaintiff was being pursued not only by Zoll in an unmarked car but by four marked police cars. What happened on that dead-end street is in dispute.
According to Plaintiff, when he attempted to turn his vehicle around on the dead end street there was a police officer standing on the side of the vehicle. He further avers that police officers did not leave their patrol cars until he had already stopped. He claims he "put the car in park, turned the engine off, pulled the keys out, threw them on the dashboard and put [his] hands up." He saw police coming at him with their guns drawn, some yelling for him to put his hands up and freeze while others yelling for him to get out of the vehicle. Afraid that his reaching for the door to exit might be mistaken for reaching for a weapon, Plaintiff began repeatedly yelling "don't shoot." Then, "[o]ut of the corner of [his] left eye [he] saw a white muzzle flash and a loud pop. The bullet burst through the driver's side window, went through [his] arm and into [his] chest." He slumped over and started coughing up blood. "The next thing [he] felt was a bunch of sets of hands grab [him], all parts of [his] body, you know, and just rip [his] seat belt off, and just drag [him] through the window and right . . . out in the street." The officers then began kicking and punching Plaintiff. Ex. D to Levine Declar. at 123-29.
According to defendants, police officers blocked the only exit from the street with their vehicles and began approaching plaintiff's vehicle with weapons drawn and yelling for plaintiff to stop and exit the vehicle. Plaintiff attempted to make a u-turn with his vehicle, driving it over the front lawn of one or more homes until a physical barrier forced plaintiff to turn back into the street. Plaintiff then pointed his vehicle toward a Nassau County police officer who was near enough to plaintiff's car that the officer was at risk of serious physical injury. Again numerous officers yelled verbal commands for plaintiff to stop and exit. The Nassau County officer took several steps backward as the vehicle approached at a rate of approximately ten to fifteen miles per hour. When the vehicle was about ten feet away from the Nassau County officer, Zoll believed there was a very real and very imminent threat of serious bodily injury and fired one shot through the driver's side window of plaintiff's vehicle, striking plaintiff. Plaintiff then refused to exit the vehicle and it took five officers to take him into custody. The force used was only that necessary to affect the arrest; no kicking or punching occurred.
It is undisputed that Plaintiff was arrested and received medical treatment for his wounds. Plaintiff was charged with reckless endangerment in the first degree, resisting arrest, criminal possession of a controlled substance, driving while ability impaired by drugs, reckless driving, and failure to stop at a stoplight.
On April 24, 2008, Plaintiff pled guilty to reckless endangerment in the second degree, a class A misdemeanor and to operating a motor vehicle while under the influence of alcohol or drugs, a violation. "A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." N.Y. Penal Law §120.20. The following is an excerpt from Plaintiff's plea allocution:
The Court: Would you tell me what happened on February 16th, 2007 at about 2:45 a.m. at 1895 Bushwick Avenue, Merrick, Nassau County?
The Defendant: At that time I was operating a motor vehicle while impaired and in a dangerous manner.
The Court: When you say impaired, had you taken some kind of drug that impaired your ability to drive?
The Court: And were you driving that car in a reckless manner?
The Defendant: Yes, Your Honor.
The Court: Do the People wish to ask any questions?
Ms. Abdi: Yes, thank you, your Honor.
Mr. Getlin, you were driving a motor vehicle on that date, is that correct?
The Defendant: Yes, ma'am.
Ms. Abdi: And you were attempting to allude capture by the ...