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Robert Lemmo v. City of New York

September 30, 2011


The opinion of the court was delivered by: Dearie, District Judge.


In this action under 42 U.S.C. §1983, pro se plaintiff Robert Lemmo alleges that New York City Police Detectives Michael Cervini and Edward Spagnuolo of the 114th precinct in Queens (the "detective defendants") used excessive force against him during an incident that culminated in his arrest on July 27, 2007. Liberally construed, the complaint pleads five distinct claims of such force; the complaint also contains loosely structured, related allegations of police misconduct during the ensuing prosecution.

Asserting qualified immunity, the detective defendants move under Rule 56 of the Federal Rules of Civil Procedure for summary judgment on all but one of plaintiff's excessive force claims. They also move for summary judgment on other grounds on all remaining claims. The City of New York (the "City") moves for summary judgment on all claims, on the ground that plaintiff can prove no set of facts upon which the municipality could be found be liable.

As detailed below, the Court finds itself constrained by established summary judgment standards to allow certain of plaintiff's excessive force claims to proceed to trial. But the Court nevertheless has misgivings. Handing Mr. Lemmo even a partial summary judgment victory-and his second in as many lawsuits*fn1 - may serve to validate Mr. Lemmo's apparent sense that, having learned the section 1983 ropes, he can continue, with impunity, to generate lawsuits by engaging in misconduct intended to provoke the police to overreact with arguably actionable excessive force. At the same time one cannot entirely discount Mr. Lemmo's side of the matter; for all his nagging recidivism (the arrest leading to this lawsuit is his 40th), there may well be a degree of police targeting at play, and ordering a second set of officers to trial on Lemmo's excessive force claims can hardly serve to douse any lurking retaliatory animus. The Court's role on summary judgment, of course, is not to make credibility findings or to engage in speculation but merely to decide, as it has, that the parties' fates with respect to certain claims lie with the jury. But as gatekeeper of its docket the Court cannot abdicate its duty to warn litigants that it is not blind to the apparent reality beneath the lawsuits and that enough is enough.

For the reasons set forth below, the detective defendants' assertion of qualified immunity with respect to certain of plaintiff's excessive force claims is denied; their motion for summary judgment with respect to all other claims is granted; and the motion of the City is granted in its entirety


A. Plaintiff's Criminal History

The Court begins its review of the facts with plaintiff's 55-page criminal history "report," which speaks for itself. See N.Y. State Criminal History Information, Def. Ex. C. As the report documents, the arrest giving rise to this lawsuit was plaintiff's fortieth. Id. Thirty-eight (38) of the forty arrests occurred within the Borough of Queens, and twenty-five (25) of these were made by officers of the 114th precinct (i.e., the home precinct of defendant detectives Cervini and Spagnuolo). *fn2

As a result of his first 39 arrests, plaintiff faced a total of 106 charges, slightly more than half of which were misdemeanors, the remainder felonies. His conviction tally before the arrest in this case stood at 46, of which 6 were for felonies.

The arrest giving rise to this lawsuit (i.e, the one occurring on July 27, 2007) produced a total of 16 charges: four felonies (first-degree reckless endangerment, assault of a police officer, and criminal mischief in the first and second degree), eight misdemeanors (grand larceny, second degree reckless endangerment, assault, unauthorized use of a motor vehicle, criminal mischief, criminal possession of stolen property, resisting arrest, aggravated unlicensed operation of a motor vehicle, and reckless driving), and three infractions (driving without a license, failure to obey a traffic device, and driving the wrong way on a one-way street). See N.Y.P.D. Arrest Report, Def. Ex. F. Plaintiff was convicted, after a jury trial in Queens Supreme Court, on eight charges. See Certificate of Disposition, People v. Lemmo, Ind. No. 2035-07, Sup. Ct. Queens Co, Def. Ex. J. He was acquitted of the more serious count of reckless endangerment, as well as the assault, criminal mischief and speeding charges. Id.

C. The Events of July 27, 2007

According to the arrest report prepared by Detective Cervini, he observed the defendant [Lemmo] operating a 1996 Jeep Cherokee Penn[sylvania] Plate GHV-3089 with the driver door lock removed and the air bag missing[.] [U]pon approach of the defendant he did drive his auto toward arresting officer and partner in an attempt to strike them. Defendant did run over arresting officer['s] left foot causing pain and severe swelling. Defendant did engage the officers in a pursuit driving on the sidewalk missing numerous pedestrians walking and children playing. Defendant did cause property damage in excess of [one] thousand dollars. Defendant did resist arrest by flailing his arms and refusing to be cuffed. Necessary force was used to affect the arrest.

Ex. F.

This core account was fleshed out through Detective Cervini's testimony at plaintiff's criminal trial, see People v. Lemmo, Transcript, Sept. 8, 2008 at pp. 396-404, Def. Ex. H, and contradicted in parts by plaintiff's testimony at that same trial, see id. at pp. 933 et seq., Def. Ex. G, and by the testimony plaintiff gave at his deposition on August 19, 2009. See Def. Ex. D.

According to Detective Cervini, on the evening of July 27, 2007, he and Detective Spagnuolo were driving a prisoner van as part of a Narcotics Division observation team pursuant to the 114th precinct's "Tactical Plan." At approximately 8:00 p.m., they observed plaintiff in the Jeep double-parked in front of the Woodside Housing Project at 31st Avenue and 49th Street; the detectives noticed that the Jeep had Pennsylvania license plates and that the driver's side door lock and airbag were missing. In his testimony, Cervini does not suggest that plaintiff, while double-parked in his vehicle, was armed, threatening, or engaged in active misconduct; rather, Cervini asserts only that "[u]pon observing plaintiff's Jeep," he made a U-turn and approached it, positioning the van so that its front end was facing the front end of plaintiff's Jeep.*fn3 Cervini then put a red bubble light on the dashboard of the van to indicate that plaintiff was not to depart. Plaintiff, however, began to drive away, in reverse, ignoring Cervini's orders to pull over.

At his deposition, however, plaintiff offered a different account and sought to cast the detectives as instigators. His narrative begins with him double-parked outside the housing project where a friend of his lived. Plaintiff was talking on his cell phone with that friend when he noticed the police van approaching. Plaintiff and Cervini "both look[ed] at each other" and plaintiff thought, "Here we go. they [are] going to start with me." Ex D at 107. It was because of his history with the local police that, in traveling to the housing project, he had "take[n] the side streets" to avoid the precinct (he testified that he feared what would happen "if one of them sees [him]") and because of that same history that, upon the van's approach, he chose to depart by "[going] to the corner and [making] a U-turn." Asked twice why he did not simply stay parked in his vehicle when the van driven by Detective Cervini was approaching, plaintiff testified that he feared "they are going to hit me" (Ex. D at 109), and that "[t]hey were going to harass [him], maybe beat [him] up, maybe lie." Ex. D at 110. Plaintiff offered the same testimony at his criminal trial: "What happened is . . . Detective Cervini and Officer Spagnuolo. . . drive by. We all know each other, okay. They know me. I have been in trouble before. I have done jail time, okay. Every time they see me they want to stop me." Ex. G at 933. He further testified that he fled the approaching police van in order "to get away from a beating" that he was sure "was coming [his] way." Id. at 1118.

There is no dispute that there ensued a car chase of several blocks' duration through populous residential Queens streets, and that in the course of that chase plaintiff drove up on a sidewalk and through grass, partially damaged a fence, and, undoubtedly, placed pedestrians and other drivers at risk. There is also no dispute that the chase came to its end shortly after plaintiff made a right turn from 30th Avenue onto 42nd Street, a narrow one-way (southbound) street; plaintiff's turn onto that street placed him in the northbound direction. But the parties' accounts of what occurred on 42nd Street differ materially.

In their Rule 56.1 Statement of Undisputed Facts, defendants state only that "[t]he pursuit concluded in the vicinity of 42nd Street, where plaintiff's Jeep came to a stop," that "[a]t the conclusion of the pursuit, an officer approached plaintiff's driver's side window and struck plaintiff with his fists in order to subdue him," and that "[a]t no point did plaintiff turn off the Jeep's ignition." Defs. 56.1 at ¶¶ 19-21. Finally, "[a]t the conclusion of the pursuit, plaintiff was pulled through the window of his car and handcuffed by Det. Cervini." Id. ¶ 22.

Plaintiff, however, has offered testimony that, if credited, suggests that he voluntarily terminated the chase before the police used force, and that force was therefore not necessary to subdue him. According to plaintiff, he "went up [42nd Street] a little" and "pulled over." Ex D. at 123. He saw that the sidewalk was full of people, he detected that he had a flat tire, and he declared the flight effort "a dead issue." Id. "[T]he next thing [he] knew," the van driven by Detective Cervini "crashed into [the driver's side] door" of the Jeep. Id. at 123. Plaintiff testified that he was "seat belted in" and that the police van had him "pinned in." Id. at 124.

Although defendants' Rule 56.1 Statement does not address whether Cervini crashed into plaintiff's Jeep and whether plaintiff was thereby "pinned in," Cervini's testimony at plaintiff's criminal trial touches on the matter. Cervini testified that at the conclusion of the chase, when he approached the stopped Jeep, plaintiff "had a blank stare" and was "trying to get [the car] in drive," Ex. H at 464, but Cervini was also sure that "[t]here were no keys in the ignition that [he] could see." Id. at 467. Cervini further testified that when he (Cervini) "was trying to get [plaintiff] out of the car" and "trying to get [himself into the car [to] grab him," the car "went forward a little bit" and "ran over [his] left foot." Def. Ex. H at 464. Cervini further testified that he "couldn't open the door" because it was "kind of like jammed closed," id. at 465, and that: "I was trying to get the car to stop. And at that point I tried to grab him through the window. And that wasn't working. So I, I, I proceeded to strike him numerous times to stop this car from moving and trying to get him out of the car." Id. at 465. Asked specifically "at what point did the wheel ride over [his] foot," Cervini replied: "Between the time I was going, trying to get him out, we were wrestling around. When he was trying to -- just the car went forward again and that's when it ran over my foot." Id. Asked whether he "punch[ed] [plaintiff] before or after [his] foot was run over," Cervini testified: "I punched him before and I punched him after." Id.

Plaintiff, however, testified at his deposition that he and the car were motionless when one of the officers jumped out of the police van and "smashed [plaintiff] right through the [open driver's side] window." Id. at 123-24. Plantiff believes he was punched four or five times. Id. at 124. (Plaintiff also believes that it was Detective Spagnuolo who punched him but, as noted, Cervini admits that he inflicted the blows). At his criminal trial plaintiff also testified that, after making the final right turn onto 42nd Street, he brought his vehicle and his attempt to flee to a full stop: "I pulled over and stopped . I put my vehicle in park. . . I can't ascertain whether or not I shut off the ignition. I definitely put it in park. And I was highly upset with myself, the whole situation that had just occurred. And I knew right there obviously I was going to be arrested." Ex. G. at 1155.

There is no material dispute about plaintiff's ensuing removal from the vehicle and handcuffing. Compare Def. 56.1 Statement at ΒΆ22 with Plf. Dep. (Ex. D) at 124. Either because the Jeep's driver door was jammed, as defendants claim, or, because plaintiff was pinned in by the police van which had crashed into the Jeep, as plaintiff claims, the detectives removed plaintiff through the vehicle's open window, dragged him to the ground, and handcuffed him. (According to plaintiff, whose account ...

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