United States District Court, E.D. New York
For Antoine Taylor, Plaintiff: John Joseph Nonnenmacher, Bader Yakitis and Nonnenmacher, New York, NY.
For Nassau County, Defendant: Peter A Laserna, Melter Lippe Goldstein & Breitstone LLP, Mineola, NY.
For Police Officer Keith Rogich, Defendant: Pablo A. Fernandez, LEAD ATTORNEY, Nassau County Attorney's Office, Mineola, NY; Peter A Laserna, Melter Lippe Goldstein & Breitstone LLP, Mineola, NY.
MEMORANDUM AND ORDER
Gary R. Brown, United States Magistrate Judge.
Defendant Keith Rogich (" Rogich", a Nassau County Police Officer, moves pursuant to Fed.R.Civ.P. 50 for judgment as a matter of law following a jury verdict against him predicated upon the use of excessive force -- to wit, shooting the plaintiff, Antoine Taylor, during an arrest. The motion is premised on the notion that qualified immunity precludes the jury's verdict as, Rogich claims, plaintiff had put him in danger by driving his vehicle at Rogich, thereby placing defendant's actions " within the hazy border between excessive force and acceptable force." Brosseau v. Haugen, 543 U.S. 194, 201, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). However, because this assertion depends on a view of the facts that was explicitly rejected by the jury, the motion is without basis.
Following the consent of the parties to the jurisdiction of the undersigned, Docket Entry (" DE" ) , based upon the joint request of the parties, this matter was bifurcated, and a jury trial was held solely on the issue of liability. DE , , , , . During the five-day jury trial, the parties introduced evidence, as relevant herein, demonstrating the following:
On September 26, 2009, Rogich, a member of the Bureau of Special Operations (BSO), participated in the arrest of the defendant. See Transcript (" Tr." ) 165:23-167:5. Prior to the arrest, Rogich had been advised that plaintiff was wanted on a parole warrant and for questioning in connection with a homicide, and that he might be armed and had threatened his parole officer. See Tr. 171:11-14; 331:1-5; 581:17-23; 603:11-20. Immediately prior to the arrest, a group of BSO officers,
driving unmarked vehicles, surrounded plaintiff's vehicle as he was leaving a residence in Hempstead, NY. See Tr. 175: 21-177:11. Rogich and his partner were in a silver Jeep Grand Cherokee SUV which pulled in front of plaintiff's vehicle when plaintiff had stopped at a stop sign. See Tr. 172:13-19; 188:17-25; 198:9-19; 270:1-6.
It was undisputed at trial that Rogich fired three shots at plaintiff. Each time, he aimed for " center mass," meaning the plaintiff's chest. Tr. 223:15-227:2. All three struck plaintiff's vehicle; one passed through the windshield and struck plaintiff in the stomach. See Tr. 74:1-25; 340:21-25. The third shot fired lodged in the passenger door of plaintiff's vehicle. See Tr. 77:13-18
The precise circumstances under which Rogich fired the shots was the subject of conflicting testimony. Plaintiff testified that while he was stopped at the stop sign, the defendant fired the first shot while still inside the SUV. See Tr. 70:5-8; 73:12-20. Two other eyewitnesses similarly testified that the first shot was fired from inside the police vehicle, as they observed the muzzle flash emanate from inside the silver Jeep. See Tr. 640:17-641:2; 677:13-20. One of the two eyewitnesses testified that she saw Rogich jump out of the Jeep after the first shot was fired, and watched him fire the next two shots, including the third from the sidewalk. See Tr. 677:18-679:7. It is also undisputed that one of the three shell casings ejected from Rogich's gun was found inside the police vehicle in the passenger area in which the defendant had been sitting. See Tr. 199:1-8; 274:16-22; 596:19-597-4.
Rogich, by contrast, testified he got out of the Jeep before firing his weapon. See Tr. 587:11-25. He further testified that, once he was in front of plaintiff's car, the plaintiff had backed up and " charged" toward him. Tr. 587:2-4. As such, Rogich testified, he fired because he believed it was " the only way I could stop the car from running me over." Tr. 587:15-16. Officer Alonge, another member of the BSO arrest team, testified that he observed Rogich in front of plaintiff's car, which " lurched" toward the defendant. Tr. 395:15-16. Sgt. McCarthy, who was in charge of the operation, testified that plaintiff's vehicle was moving forward at the time he heard two shots, but he could not see Rogich at the time the shots were fired. See Tr. 482:18-25; 486:18-25. Michael Knatz, Rogich's partner, could not see Rogich at the time the shots were fired, nor did he know Rogich's location at that time. See Tr. 317:12-14; 317:23-318:2; 320:3-6. Knatz also testified that he heard the subject gunshots after hearing plaintiff's engine " roar" and the car move forward. See Tr. 335:5-6. Knatz did not fire his weapon or aim it at plaintiff's ...