The opinion of the court was delivered by: Ross, United States District Judge:
NOT FOR ELECTRONIC OR PRINT PUBLICATION
On July 11, 2011, the instant action proceeded to a bench trial before me. Plaintiff Juliano Torres-Cuesta ("plaintiff" or "Torres") alleges that, on September 6, 2005, the individual defendants -- New York City Police Department ("NYPD") Detectives Francis Berberich and Edwin Benitez and Drug Enforcement Administration ("DEA") Special Agent ("SA") Andrew Butorac -- used excessive force against him in effecting his arrest in Queens, New York. Pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff seeks monetary damages against those officers for violation of his Fourth Amendment rights. Additionally, under the Federal Tort Claims Act, 28 U.S.C. §§ 1345-46, 1391, 2675 ("FTCA"), plaintiff seeks monetary damages against the United States for the actions of the arresting officers. The bench trial concluded on July 14, 2011.
I have carefully considered the evidence before me. The parties presented two very different versions of plaintiff's arrest at trial. Notably, the only witnesses to that arrest are plaintiff and the three arresting officers whom he accuses of using excessive force. In order to decide this case, I therefore must evaluate the credibility of those witnesses. In that regard, I not only question certain statements made by plaintiff during his testimony, but I also have grave concerns about the testimony of the arresting officers. Whether the parties' troublesome testimony is due to faulty perception or memory, embellishment, a disregard for the truth, or some combination thereof, I cannot say. But I believe that the testimony of each witness, at least in part, is unreliable. As a result, I cannot determine, with any degree of confidence, what in fact transpired on the night of September 6, 2005; and after weighing the parties' testimony, I conclude that the evidence is in equipoise. Thus, solely because the burden of proof rests on plaintiff, and despite my concerns about the veracity of the arresting officers, I am constrained to find that the officers did not use excessive force in violation of the Fourth Amendment and that they did not commit assault and battery under New York law. Accordingly, I hold that the arresting officers are not liable under Bivens and the United States is not liable under the FTCA.
At approximately 8:30 p.m. on the evening of September 6, 2005, members of DEA Joint Narcotics Strike Force Group Z-42 ("Group Z-42") -- a law enforcement group comprised of officers from federal, state, and local law enforcement agencies -- located Torres' vehicle in front of a garage at 106-33 157th Street in Queens, New York and placed it under surveillance. Defendants SA Butorac and Detective Berberich were co-case agents and responsible for overseeing the surveillance. A number of other members of Group Z-42 assisted in the surveillance, including defendant Detective Benitez and DEA SA Fred DiRenzo. The members of Group Z-42 were in plainclothes and in separate unmarked vehicles parked in the vicinity of the garage. Inside the garage, Torres and another individual, Jesse Arriaga, removed cocaine from a secret compartment in a vehicle in order to transport the drugs elsewhere for sale.
At approximately 9:30 p.m., Torres exited the garage carrying a bag containing the drugs; he got into his vehicle and began to drive on 157th Street. In response, multiple members of Group Z-42 turned their cars onto 157th Street, so that they could apprehend plaintiff. SA DiRenzo attempted to block Torres' path by stopping his vehicle in front of Torres' vehicle on 157th street. Torres then sped up and drove onto the sidewalk in order to get around SA DiRenzo's vehicle. After passing SA DiRenzo, Torres turned right onto another street and fled. SA Butorac and Detectives Benitez and Berberich pursued Torres for approximately five to eight miles; during the chase, Torres drove erratically, disobeying the speed limit and other traffic laws.
The chase ended when Torres drove down the 100 block of 88th Avenue in Queens, a dead-end street. At the dead-end, there was a chain-link fence with a tree-covered hill behind it that led up to train tracks. On both sides of the street, there were residential homes with driveways or alleyways between them. Immediately after Torres turned onto 88th Avenue, SA Butorac, Detective Benitez, and Detective Berberich, respectively, turned onto the street. Torres stopped his car near the dead-end, and the three officers stopped their vehicles a short distance behind him. Shortly thereafter, numerous unidentified NYPD officers in marked police cars also arrived at 88th Avenue. Torres exited his vehicle. After identifying themselves as law enforcement agents, pointing their firearms at Torres, and shouting various verbal commands at him, SA Butorac, Detective Benitez, and Detective Berberich arrested Torres, who was unarmed. As discussed below, Torres and each of the arresting officers gave disparate accounts of the arrest during their trial testimony. The parties agree, however, that the arresting officers used force to effect plaintiff's arrest and that plaintiff sustained injury as a result of that force. Although the parties dispute the extent of plaintiff's injuries, they agree that, at the least, he sustained multiple abrasions to his face and knees.
Following his arrest, the officers recovered the cocaine from Torres' vehicle. A uniformed NYPD officer drove plaintiff back to the garage at 157th Street, where Group Z-42 reconvened. In response to plaintiff's complaints about pain in his head or face, one of the officers called an ambulance. The ambulance took plaintiff to St. Vincent's Catholic Medical Centers, Mary Immaculate Hospital ("Mary Immaculate Hospital"), where plaintiff was treated for abrasions to his face and knees. He also received a CAT scan of his head, which was negative. Torres was discharged around 2:00 a.m. on September 7, 2005, whereupon he was taken to a DEA office for processing. At approximately 10:15 a.m., after Torres waived his Miranda rights, SA Butorac and Detective Berberich questioned Torres at the DEA office. The officers subsequently brought Torres to the Metropolitan Detention Center ("MDC") in Brooklyn.
On May 19, 2006, before Judge Sterling Johnson in the Eastern District of New York, Torres pled guilty to one count of conspiracy to distribute and possession with intent to distribute a controlled substance. On November 30, 2006, the court sentenced him to 240 months in prison.
II.Plaintiff's Testimony about His Arrest
Torres testified that, when he began to drive away from the garage on 157th Street, he noticed two cars blocking the road behind him and two cars blocking the road in front of him. Tr. at 47. He claimed that none of the vehicles displayed flashing emergency lights or sounded sirens at that time. Tr. at 49-50, 123. Torres stated that he thought the individuals in the cars were drug dealers who were going to rob him, so he began to flee. Tr. at 123. Eight or nine blocks into the chase, Torres noticed flashing emergency lights on the cars chasing him and at some point he also heard police sirens. Tr. at 51, 125-126. While it occurred to Torres that the police may have been chasing him, he testified that he was not sure who was in pursuit of him, because he had heard that robbers use lights and sirens to impersonate police officers. Tr. at 52, 132. Torres stated that he drove erratically and disobeyed traffic laws during the chase because he was "panicked." Tr. at 51, 133.
When Torres arrived at the dead-end on 88th Avenue, he exited his vehicle and looked toward the open end of the street. Tr. at 135. There was a line of cars stopped behind his vehicle, and seven to ten police officers were standing in the street with their badges displayed and guns pointed at him. Tr. at 54, 135-136. At the end of the line of cars, he saw a marked police vehicle. Tr. at 55, 136. Plaintiff testified that at that time he still had his doubts that his pursuers were in fact police officers as opposed to robbers. Tr. at 136. Torres stated that the officers began to scream orders at him, which he promptly followed. Tr. at 55. Torres testified that he complied with the officers' commands to put up his hands, to put his hands behind his head, to turn around, and to drop to the ground. Tr. at 55-56, 137. While he was in the process of complying with the officers' order to drop to the ground -- he had two knees and one hand on the ground -- the officers began to attack him. Tr. at 55, 137.
Torres testified that the attack began with a kick to middle of his back. Tr. at 56-57. The kick pushed Torres face down on the ground. Tr. at 57. Once he was on the ground, the officers started kicking and punching him all over his body. Tr. at 57. Torres attempted to shield his face by crossing his arms in front of his face; he never put his hands underneath his body. Tr. at 57, 60. One of the officers then grabbed and twisted Torres' left arm behind his back. Tr. at 57, 60. The same officer then put his knee on the back of Torres' neck and released his weight onto Torres' neck several times, smashing his face into the pavement. Tr. at 57-58, 60-61. Specifically, Torres stated: "And then this person is going . . . like back and forth, like releasing the weight and standing up and releasing the weight on my face, and my face is smashing the floor in this moment." Tr. at 58. Torres testified that one of the officers then kicked him in his left ear. Tr. at 58, 140. This blow to the head put Torres in a trance-like state, in which he felt as if he were almost asleep. Tr. at 58. He testified that, in this state, he felt no more pain, but he heard the officers curse at him, as if he were "inside of a swimming pool" and he could "hear people outside screaming." Tr. at 58. Then, all of a sudden, one of the officers screamed "stop," and the officers stopped hitting Torres. Tr. at 58. Torres briefly believed that the attack had ended, but then he was awakened from his dazed state by a strong pain in his left arm. Tr. at 59,
64. Torres claimed that the pain in his arm was caused by the officers lifting him up by his handcuffs. Tr. at 59. Torres started screaming that the officers were breaking his arm. Tr. at 59. The officers told him to shut up, but Torres continued screaming, until one of the officers loosened his handcuffs. Tr. at 59.
Subsequently, the officers sat Torres by the fence at the dead-end while they recovered the drugs from Torres' vehicle. Tr. at 65. Several officers, including Detective Berberich, questioned Torres about where he was taking the drugs and why he fled. Tr. at 66-67. Afterward, the officers lifted Torres up, walked him over to the police car, and threw him against the hood of the car. Tr. at 68. His chest hit the hood of the car, and he went down on his knees in front of the hood. Tr. at 68. One of the officers searched Torres and took two beepers off of his waistband. Tr. at 68. Torres was then placed in the back of a police car and driven back to the 157th Street garage. Tr. at 70.
Torres testified that at the garage SA Butorac questioned him about where he was taking the drugs. Tr. at 71. When Torres refused to answer, SA Butorac threatened to hit him with a foot-long black flash light. Tr. at 71-72. As Torres sat in the garage, his head became very painful, and he began asking to go to the hospital. Tr. at 73. When the ambulance arrived, one of the paramedics examined Torres. Tr. at 73. After the paramedic finished the examination, Detective Benitez asked the paramedic to "make a good report," and the paramedic smiled and agreed. Tr. at 74. Detective Benitez rode in the ambulance with Torres to the hospital. Tr. at 74. At the hospital, Torres was first seen by a nurse. Tr. at 75-76. Torres testified that one of the officers asked her to "make a good report," and she agreed. Tr. at 75.
The officers then brought Torres to a DEA office. Torres testified that, during questioning by Detective Berberich and SA Butorac at the office, he apologized for leading the officers on a high-speed chase. Tr. at 82. In response, the officers pressed him as to whether he was apologizing for resisting arrest and refusing to follow the officers' commands at the dead-end. Tr. at 82. Torres testified that he insisted to the officers that he was not apologizing for resisting arrest or refusing to follow commands because he did not take those actions. Tr. at 82-83. Detective Berberich then gave Torres a piece of paper and a pen and asked him to write a statement saying that he did not understand the officers' commands at the dead-end. Tr. at 83. Detective Berberich said that such a statement would make Torres "look good before the judge." Tr. at 83. Torres refused to write the statement because he felt as if Detective Berberich was trying to blame him for the arresting officers' attack. Tr. at 83. Torres testified that the attack was not his fault and that he complied with the officers' commands. Tr. at 83. When Torres refused to write the statement, Detective Berberich angrily pulled the paper back. Tr. at 83.
In the weeks following his arrest, while he was at the MDC, Torres had significant pain in his face, head, neck, left ear, left wrist, and left thumb. Tr. at 90. Over time, much of the pain subsided. Tr. at 91. Torres, however, continues to have intermittent pain in his left ear, and he has pain in his left wrist and thumb when he applies pressure to those areas. Tr. at 93-95.
Additionally, in the months following his arrest, Torres developed chronic, daily pain in his neck; an occasional feeling in his back that he is being pricked with needles; and occasional numbness in his hands and fingers. Tr. at 93-94, 99, 106, 107-108. Torres testified that his injuries have severely limited his daily activities and that he has trouble sleeping due to chronic pain. Tr. 108-112.
III.The Officers' Testimony about Torres' Arrest
The officers' testimony about Torres' arrest can be broken down into five relevant events: (i) the high-speed chase ending at the dead-end on 88th Avenue, (ii) the direction in which Torres fled from the officers at the dead-end, (iii) the force used against Torres after the officers tackled him, (iv) their actions immediately following Torres' arrest, and (v) Torres' post-arrest interview. Set forth below is a summary of the officers' testimony regarding those five events. Where the officers have testified consistently, the summary is derived from the testimony of all three officers. The officers' testimony, however, materially diverges with respect to two events: the direction in which Torres fled and the force used against him on the ground. In addressing those events, I will separately discuss each individual officer's testimony.
A. The High-Speed Chase Ending at the Dead-End on 88th Avenue
With respect to the high-speed chase, the officers testified that, as Torres started to drive toward SA Direnzo's vehicle on 157th Street, SA Direnzo's vehicle had its emergency lights activated. Tr. at 215, 310, 423. After Torres began to flee, Detective Berberich and SA Butorac activated their vehicles' emergency lights and sirens. Tr. at 312, 425. Their vehicles' emergency lights and sirens were activated throughout the duration of the pursuit. Tr. 312, 428. Detective Benitez's vehicle was not equipped with emergency lights or sirens. Tr. at 195.
At the end of the high-speed chase, Torres turned onto 88th Avenue and stopped his vehicle near the dead-end. Tr. at 223, 317. SA Butorac stopped his car approximately twenty to twenty-five feet behind Torres' vehicle. Tr. at 368. Detective Benitez stopped his vehicle directly behind SA Butorac's vehicle, and Detective Berberich stopped directly behind Detective Benitez's vehicle. Tr. at 224, 470-471. SA Butorac and Detective Berberich still had their vehicles' emergency lights and sirens activated. Tr. at 223, 317, 434. The officers immediately exited their vehicles and drew their weapons. Tr. at 224, 370, 471. SA Butorac was in the center of the block, facing the dead-end, and Detective Benitez was behind SA Butorac to his right. Tr. at 473. After exiting his vehicle, Detective Berberich proceeded toward the dead-end on the left sidewalk. Tr. at 434-435. He moved into a left flanking position; in other words, he moved down the left sidewalk toward the dead-end, past the position of SA Butorac and Detective Benitez, closer to the dead-end than those officers, and to the side of Torres. Tr. at 434-435, 473-474.
When Torres opened his vehicle door and exited, SA Butorac -- who was standing behind his vehicle door for cover -- immediately told him to get back into his vehicle, but Torres did not comply. Tr. at 318-319. Torres got out of his vehicle and stood next to it, facing SA Butorac. Tr. at 252-253, 319-320, 369. The officers identified themselves as police and screamed several verbal commands at Torres, including telling him to get his hands up and to get on the ground. Tr. at 226, 320, 372, 435-436. The officers did not order Torres to put his hands behind his head; they testified that they would not give such a command because a suspect with his hands behind his head may be able to reach for a weapon. Tr. at 227, 322, 436-437. For a "split-second," Torres stood with his arms bent at about a ninety-degree angle, so that his hands were in front of him and above his waist. Tr. at 369-370. Torres began looking to the left and right, apparently searching for a place to flee. Tr. at 319. He looked "disoriented," "confused," "anxious," and "nervous" when he was standing next to his vehicle. Tr. at 371. The officers considered Torres armed and dangerous, because he had just led them on a high-speed chase, and because it was their experience that a suspect trafficking in drugs may be armed, dangerous, and under the influence of narcotics. Tr. at 226, 321-322, 438-439. SA Butorac began to approach Torres. Tr. at 320. At that point, Torres turned his back toward SA Butorac and fled. Tr. at 323-324.
B. The Direction in which Torres Fled
The officers' testimony is materially inconsistent with respect to the direction in which Torres fled. SA Butorac testified about the direction that Torres fled by reference to the positions on a clock; if the center of the dead-end was 12 o'clock, SA Butorac testified that Torres fled from him in the direction of 11 o'clock (that is, to SA Butorac's left), toward the second house from the dead-end. Tr. at 377. SA Butorac stated that Torres fled in that direction for five to fifteen feet. Tr. at 325. He specifically testified that Torres did not flee in the direction of 12 o'clock or 1 o'clock. Tr. at 377-378. He also testified that Torres never ran toward the open end of 88th Avenue. Tr. at 378. By contrast, Detective Benitez testified that Torres ran toward the right, at an angle toward the fence or the alley at the dead-end. Tr. at 224, 251. Detective Benitez believed that Torres "was either going to hop over the fence or make a right in the alley." Tr. at 224. Detective Benitez stated that he was directly behind SA Butorac when Torres fled. Tr. at 225, 253. Like SA Butorac, Detective Benitez testified that Torres did not run toward the center of the dead-end or toward the open end of the street. Tr. at 251. Lastly, Detective Berberich testified that, after he moved into his left-flank position to the side of Torres, he saw Torres run toward the dead-end for five to fifteen feet. Tr. at 474-478. From his vantage point, it appeared that Torres ran directly toward the center of the dead-end, in the direction of the ...