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Paul Weather v. the City of Mount Vernon and Sergeant Michael Marcucilli

March 22, 2011

PAUL WEATHER, PLAINTIFF,
v.
THE CITY OF MOUNT VERNON AND SERGEANT MICHAEL MARCUCILLI, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.,

OPINION AND ORDER

On February 17, 2011, the jury found for Plaintiff on his claim of excessive force against Defendant Sergeant Marcucilli and the City of Mount Vernon. The jury awarded a total of $315,000 in damages to Mr. Weather: $90,000 in compensatory damages, $200,000 in future damages, and $25,000 in punitive damages. On March 1, Defendants filed a brief contending that Sergeant Marcucilli is entitled to qualified immunity. Plaintiff filed a brief in opposition on March 4. For the reasons stated below, the Court finds that Sergeant Marcucilli is not entitled to qualified immunity.

BACKGROUND

Trial in this matter began on February 14, 2011. Plaintiff called as witnesses Dr. Sergei DeLaMora, Dr. Satish Modugu, and Matthew Mariani to testify as to Mr. Weather's injuries and damages. Defendants called Dr. Martin Barschi as a direct witness to testify as to damages. As to liability, Plaintiff's witnesses included Mr. Weather himself; Janee Weather, the Plaintiff's daughter; James Young, a school security guard; and Police Officer Alissa Rhodes. Defendants called Deputy Police Chief John Roland, Police Officer Dennis Kelly, and Defendant Sergeant Marcucilli. Because Sergeant Marcucilli's entitlement to qualified immunity turns on his conduct and the circumstances he confronted during the incident in question, the trial testimony regarding those issues is briefly summarized below.

I. Testimony of Plaintiff Paul Weather

Plaintiff Paul Weather is a police officer and longtime resident of Mount Vernon, who is on disability retirement (Trial Tr. ("Tr.") at 94-95.) He became employed as an officer by the City of Mount Vernon in 1988, where he worked until 1992. (Id. at 95.) In 1992, he became a Westchester County Police Officer, and was subsequently promoted to detective. (Id.) Mr. Weather retired from the Westchester County police force in February 2005, due to a spinal injury he had sustained in 2003. (Id.)

Plaintiff's claim arose out of an incident a high school basketball game in Mount Vernon on January 12, 2007. (Id. at 151.) At approximately four o'clock that day, Mr. Weather arrived at Mount Vernon High School to watch the basketball game with his son. (Id. at 151-152.) Just before half time, while he was seated in the gymnasium, he received a phone call on his cell phone from his daughter, Janee Weather, who asked him to come outside and speak with her. (Id. at 154.) Mr. Weather told her that he would go outside at halftime. (Id.) A few minutes later, he left the gym, and entered the hallway that led to the entrance to the school, where there is a row of glass doors leading outside. (Id.) On his way to the doors, he approached a High School Security Officer, James Young, and explained that his daughter had called and that he was going to go outside to speak with her. (Id. at 155.) Mr. Weather testified that he spoke to Mr. Young because he saw many police officers outside the entrance, and wanted to be sure that he could get back in. (Id.)

As Plaintiff approached the glass doors that led outside, he saw one police officer standing to the left side of the doors and one to the right side. (Id.) He approached the officer standing at the left side of the doors, and explained "I am going to go outside to see my daughter. I am a retired detective but I left my identification inside." (Id. at 162.) He could tell that the officer did not recognize him. (Id.) Through the glass doors, he saw five or six additional officers standing by the entrance, and he could see his daughter beyond them as well as a group of kids. (Id. at 162-163.) He then said to the officer standing at the doors, "Call over your sergeant, he may recognize me." (Id. at 163.) Plaintiff then opened the door with his left arm, and Sergeant Marcucilli approached him. (Id. at 164-165.) The officer with whom Plaintiff had been speaking explained to the Sergeant, "Sarge, he says he's a retired county detective, but he left his ID inside." (Id. at 165.)

Sergeant Marcucilli then grabbed Plaintiff's wrist, "popped the arm and the elbow" and stepped toward him. (Id. at 165-166.) Plaintiff protested, "Let me go, my arm, my arm." (Id. at 166.) Plaintiff was bent forward with his left arm bent behind his back and held there by Sergeant Marcucilli. (Id.) Then, Sergeant Marcucilli "tossed" Plaintiff into the brick wall next to the door, near a telephone. (Id. at 166-167.) The right side of Plaintiff's body hit the wall. (Id. at 167.) Plaintiff testified that when he straightened up after hitting the wall, Sergeant Marcucilli was "here in my face, and he's like this 'Shut up' and he's poking me in the chest.with his stiff hand." (Id. at 167.)

Next, Phil Chimes, a sports announcer who Mr. Weather knew, approached Plaintiff and Sergeant Marcucilli and said "Paul, what's going on?" (Id. at 169.) At that time, Sergeant Marcucilli released Plaintiff. (Id.) Then, Mr. Chimes told Mr. Weather to get his daughter and go back into the game with him. (Id.) Mr. Weather and his daughter walked into the school, at which time Mr. Weather's son approached him holding his wallet, shield and ID. (Id.) As he reentered the building, Mr. Weather explained to the police officer standing to the right of the glass doors door that he was a retired detective and showed his ID. (Id.) Then he reentered the gymnasium and walked toward where the mayor of the city of Mount Vernon and Judge John DiBlasi were sitting. (Id. at 169-170.) Mr. Weather told the Mayor, "Mayor, I've just been assaulted by a cop outside." (Id. at 170.) Judge DiBlasi then jumped up and said "Paul, let's go." (Id.) The Mayor said "No, hold on, Call over [Police Commissioner] Chong" (Id.) When Commissioner Chong approached the Mayor, the Mayor instructed him to "Go outside and see what's going on." (Id.)

Commissioner Chong and Plaintiff then walked out of the gymnasium to the hallway of the school, and approached the glass doors at the entrance. (Id.) Commissioner Chong then asked Mr. Weather to point out the police officer who had assaulted him. (Id.) Mr. Weather stayed inside the glass doors and pointed out Sergeant Marcucilli. (Id.) Commissioner Chong then went outside and returned a few minutes later. (Id.) Upon his return, he told Mr. Weather "Don't worry about it, I'll take care of it." (Id.) Mr. Weather then returned to the gymnasium, and called his wife and asked her to come get him and take him to the hospital. (Id. at 171.) Mr. Weather spent about an hour at the hospital, where he received a Demerol injection. (Id. at 174.)

As a result of this incident, Plaintiff, who had prior injuries, sustained a fractured clavicle, injury to his right rotator cuff and aggravation of injury to his left rotator cuff. Two doctors and an occupational therapist who treated Mr. Weather testified with regard to the extent of these injuries. (Id. at 38-43; 122-123; 136-143.) Mr. Weather testified that he now has continuing pain and considerable trouble sleeping. (Id. at 179-80.)

On cross-examination, Plaintiff testified that when he opened the door to exit the school, he opened the door completely to a 90 degree angle. (Id. at 189-190.) He admitted that Sergeant Marcucilli did not apply a choke hold to him during their encounter. (Id. at 200.) He further testified that he told the officer at the door of the school that he was a retired Westchester County Police Officer, but acknowledged that it was possible he had said he was a former Mount Vernon Detective. (Id. at 201, 203.) Mr. Weather also testified on cross-examination that he remembered Sergeant Marcucilli "trying to knock my hat off my head.with his hand he was-hitting me in the chest and trying to knock the hat off my head." (Id. at 203.)

II. Testimony of Janee Weather

Plaintiff's daughter, Janee Weather, testified that while she stood outside the entrance of the high school on January 12, 2007, she called her father and requested that he come outside to speak with him. (Id. at 77.) Approximately five minutes after this call, she saw her father inside the school, beyond its glass doors. (Id.) At the time she saw Mr. Weather, she was standing outside, about two feet away from the doorway. (Id.) She saw her father speak to one or two people as he walked toward the doors to exit the building. (Id. at 78.) She testified that then she saw her "dad open[] the door.with his arm. And next thing you know, an officer is approaching him while he's holding the door and pulls him outside of the building." (Id.) She testified that Mr. Weather's arm was grabbed "behind his back," and that he was then pushed up against one of the brick walls next to the door to the school. (Id. at 79.) She then saw the officer who had grabbed Mr. Weather "prod.in [Plaintiff's] chest with his four fingers," and heard the Officer "telling [Plaintiff] to shut up." (Id. at 80.) She did not hear her father raise his voice or see him move his arms, but she did hear him say "what are you doing to me?" to the officer. (Id.) She testified that this encounter ended when "someone came out of the building and broke it up." (Id.) She also testified that at the time of this incident there were about 25-30 people standing outside of the school. (Id. at 81.)

On cross-examination, Jenee Weather testified that when she arrived at the school that afternoon, all of the doors to the school were closed. (Id. at 86.)

III. Testimony of James Young

James Young is employed as a security officer by the Mount Vernon School District. (Id. at 222, 227.) Mr. Young testified that near half-time at the basketball game on January 12, he was standing near the entrance to the school when Mr. Weather approached him and explained that he had to see his daughter and asked to step outside. (Id. at 223-224.) Mr. Young then turned to the police officer on his left in order to get the officer's attention, so that the officer could identify Mr. Weather and let him back in the game when he returned. (Id. at 224.) At that time, the gym was full and people were no longer being admitted to the game. (Id.) Mr. Young told the officers outside the door that Mr. Weather "was OK, he can come back in," and he saw Mr. Weather go to the door to exit the building. (Id. at 225-26.) Then, Mr. Young "turned to just check the concession stand because it was half time. Mr. Weather was proceeding toward the door. When I turned back around, I saw several officers surrounding Mr. Weather, so I begin to move toward the door, and they had shoved him into the wall and he kind of went down.At that time I got to the door and then when I opened the door, I heard Mr. Paul Weather say, "Guys, I'm an ex-detective." As they were bringing him back up, one of the police officers said, "I don't give a damn or-who you are" and just flicked his hat off. At that point in time I yelled out to them and said "Hey, hey guys. He's all right. You know, we let him out. He's all right. Let him go." They didn't pay me any mind so I ran inside the door to the gym to try to get some more assistance." (Id. at 226.)

Mr. Young further testified that Mr. Weather did not appear to be intoxicated or under the influence of narcotic drugs, and that he didn't yell or make any threatening gestures during his encounter with the police. (Id. at 227.)

On cross-examination Mr. Young testified that during the event, the glass doors at the entrance of the school were to be used to enter the building, while there was a separate door to be used to exit the game. (Id. at 230-31.) Mr. Weather exited from the glass doors. (Id. at232.) Mr. Young also testified that there was "a great amount of people," people outside the school when he saw Mr. Weather outside. (Id. at 234.) Mr. Young explained that the glass doors were locked from the inside ...


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