The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
MEMORANDUM DECISION AND ORDER*fn1
In this action, Plaintiff Eileen M. Malay contends that the City of Syracuse, Chief of Police Gary W. Miguel, and officers Daniel Belgrader, Michael Yarema, and Steve Lynch violated her rights under the federal constitution and New York state law when they fired military grade gas into her home during an armed standoff with her landlord, failed to provide her with medical care, and failed to decontaminate her property. (Dkt. No. 23.) Currently pending before the Court is Defendants' motion for summary judgment. (Dkt. No. 40.) Plaintiff has opposed the motion. (Dkt. Nos 43, 45.) For the reasons discussed below, Defendants' motion is granted.
In March 2007, Plaintiff lived in a first floor apartment at 303 Gere Avenue in Syracuse. (Dkt. No. 40-25 ¶ 1; Dkt. No. 45 ¶ 1.) Plaintiff rented the apartment from Thach and Sopheap Ros, who owned and lived in the house of which the apartment was a part. Id. ¶ 2.
On March 17, 2007, Thach Ros shot Sopheap Ros in the street. Id. ¶ 4. Neighbors heard the gunshots. Id. ¶ 5. After shooting his wife, Thach Ros returned to his house at 303 Gere Avenue. Id. ¶ 4. Three shots rang out inside the residence. Id. ¶ 6.
At approximately 3:49 p.m., Syracuse Police Department personnel were dispatched to Gere Avenue. Id. ¶ 3. Several units responded to the scene. Id. ¶ 7. Police learned there were at least two children still inside 303 Gere Avenue with Thach Ros. Id. ¶ 6.
Police heard screams from Thach Ros' daughter-in-law at the window of 303 Gere Avenue. Id. ¶¶ 9, 12. Police asked her where Thach Ros was. Id. ¶ 10. One of the officers on the scene noted in his report that the daughter-in-law responded that Thach Ros was "downstairs with a dead body." (Briedis Report, Dkt. No. 40-3 at 2.) Another officer noted in his report that the daughter-in-law responded that she did not know where Thach Ros was. (Gilbertsen Report, Dkt. No. 40-4 at 2.) Police evacuated the daughter-in-law and two of Thach Ros' children from the roof with a ladder. (Dkt. No. 40-25 ¶¶ 11-12; Dkt. No. 45 ¶¶ 11-12.)
After the evacuation of the daughter-in-law and the two children, Thach Ros remained in the house with his son, Peter. Defendants assert that the "police were informed that the shooter had shot his son, but it was uncertain whether the son was dead or alive." (Dkt. No. 40-25 ¶ 13.) Plaintiff, in opposition, states "that the evidence illustrates that the police were nearly certain that the son was in fact dead." (Dkt. No. 45 ¶ 13.)
As support for their assertion that the police were "uncertain" about whether Peter was dead or alive, Defendants cite a report filed by Officer Bodah. (Dkt. No. 40-25 ¶ 13.) Officer Bodah interviewed the eleven year old boy who had been evacuated from the house. (Dkt. No. 40-2 at 2.) The boy told Officer Bodah that he had seen his father, Thach Ros, shoot his brother, Peter, in the head with a rifle. Id. The boy saw Peter bleeding from the head and he believed that Peter was dead. Id.
In support of her assertion that the police were "nearly certain" that Peter was dead, Plaintiff cites the reports of Officers Otis and Briedis.*fn2 (Dkt. No. 45 ¶ 13.) Officer Otis wrote in her report that "[o]fficers on the scene" learned from Thach Ros' daughter-in-law, Chanmakara, that Thach Ros had shot Peter in the head and that "the gunshot wound Peter sustained was lethal and thus he was dead." (Dkt. No. 40-6 at 2.) As discussed above, Officer Briedis reported that Chanmakara Ros said that Thach Ros was "downstairs with a dead body." (Dkt. No. 40-3 at 2.)
Defendants have not cited any evidence supporting their assertion that it was "uncertain" whether Peter was dead or alive. Plaintiff's evidence supports her assertion that the police were "nearly certain" that Peter was dead. Therefore, I will assume for the purposes of this motion that the police were "nearly certain" that Peter was dead.
Defendants cite the report of Officer Rathbun (Dkt. No. 40-7) for the proposition that Thach Ros "was reportedly armed with a rifle and had unrestricted freedom of movement throughout 303 Gere Avenue. Police were aware that there was an attached apartment to the property; however it was unclear if the suspect could gain access to the apartment. The tenant of the apartment could not be located." (Dkt. 40-25 ¶¶ 14-15.) Officer Rathbun's report does not say that Plaintiff "could not be located." Rather, it states that Plaintiff "had not been located." (Dkt. No. 40-7 at 2.)
Defendants cite the deposition of Defendant Lynch (Dkt. No. 40-15 at 19-20) for the proposition that "[i]t was ordered that reverse 911 calls be made in an attempt to obtain a phone number for Plaintiff's apartment. Defendant Lynch then instructed the 911 Center to call the number associated with Plaintiff's apartment." (Dkt. No.40-25 ¶ 16.) Plaintiff disputes the assertion that the request for reverse 911 calls was made "in an attempt to obtain a phone number for Plaintiff's apartment." (Dkt. No. 40-25 ¶ 16.) Plaintiff is correct. Defendant Lynch testified that he "was provided a number some time during the incident regarding a Malay . . . A number for Jubal Malay*fn3 , and I believe I had the 911 Center call that number." (Dkt. No. 40-15 at 19:10-16.) It is undisputed that the land line associated with Plaintiff's apartment was dedicated to an Internet connection and there was no telephone attached. (Dkt. No. 40-25 ¶ 17; Dkt. No. 45 ¶ 17.) At the time of his deposition, Defendant Lynch could not recall whether he ever informed his superior officers that he had been unable to reach anyone at the number he had been provided for Jubal Malay. (Lynch Dep., Dkt. No. 40-15 at 25:9-23.)
Defendants cite the deposition of Defendant Miguel (Dkt. No. 40-12 at 38) for the proposition that "[n]egotiators from the police department continuously used a bullhorn to try and contact the occupant(s) of the residence." (Dkt. No. 40-25 ¶ 18.) In the page of the deposition cited by Defendants, Defendant Miguel testified that "we had the bullhorn in regards to trying to get the suspect out of the house." (Dkt. No. 40-12 at 38:10-11.) As Plaintiff notes (Dkt. No. 45 ¶ 18), the evidence regarding the bullhorn is far from clear. Defendant Belgrader testified at his deposition that:
A: I was not with the negotiators. They, I know, they were doing a lot of their negotiating through a bullhorn . . .
Q: Did you personally use a bullhorn?
Q: Do you recall who was using a bullhorn?
Q: Do you recall how many times that bullhorn was used?
Q: Do you know who they were directing the bullhorn towards, was it the subject, the gunman or somebody else?
Q: Do you recall whether the bullhorn was used before or after gas was deployed?
A: Before. I believe before and after. (Dkt. No. 40-13 at 33:9-34:3.)
Defendant Yarema testified at his deposition:
Q: Do you recall whether there was a bullhorn present at the scene that day?
A: I can't tell you if it was a bullhorn or if it was a PA, audible mike, but yes, someone was speaking over it.
Q: Do you remember who ...