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Horn v. Sammon

United States District Court, S.D. New York

December 23, 2014

CHESTER HORN, INDIVIDUALLY, and as Administrator of the ESTATE OF DAVID HORN, GLADYS HORN, DAVID HORN, JR., DIANA HORN and PATRICIA HORN, Plaintiffs,
v.
NEW YORK STATE TROOPER TIMOTHY SAMMON, CITY OF YONKERS POLICE OFFICER ROY PILOT, CITY OF YONKERS POLICE OFFICER KEVIN WISSNER and CITY OF YONKERS POLICE DETECTIVE WILLIAM CRAFT, and STEPHANIE O'BRIEN, as Administrator of the ESTATE OF RICHARD O'BRIEN, Defendants

For Chester Horn, Individually, Plaintiff: William Allinson Thomas, LEAD ATTORNEY, William A. Thomas, Esq., New York, NY.

Gladys Horn, Plaintiff, Pro se.

David Horn, Jr., Plaintiff, Pro se.

Diana Horn, Plaintiff, Pro se.

Patricia Horn, Plaintiff, Pro se.

For City of Yonkers P.O. Roy Pilot, City of Yonkers P.O. Kevin Wissner, City of Yonkers P.D. William Craft, Defendants: Hillary Jacobs Raimondi, LEAD ATTORNEY, J. Patrick Carley, III, Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY; Rory Carleton McCormick, Corporation Counsel, City of Yonkers, Yonkers, NY.

For Stephanie O'Brian, as Administrator of the Estate of Richard O'Brien, Cross Defendant: Jeb Harben, LEAD ATTORNEY, Office of the Attorney General, New York State, New York, NY.

For City of Yonkers P.D. William Craft, Cross Claimant: Rory Carleton McCormick, Corporation Counsel, City of Yonkers, Yonkers, NY.

For N.Y. State Trooper Timothy Sammon, Cross Defendant: Jeb Harben, LEAD ATTORNEY, Office of the Attorney General, New York State, New York, NY.

MEMORANDUM & ORDER

Sidney H. Stein, United States District Judge.

Defendants Timothy Sammon and Stephanie O'Brien, as administrator of the estate of Richard O'Brien (the " State defendants"), have moved for reconsideration of the Court's Order filed September 10, 2014 (Dkt. No. 104) denying them summary judgment on plaintiffs' section 1983 excessive force claim. For the reasons explained below, the Court grants that motion and, upon reconsideration, grants summary judgment to the State defendants.

I. Background

The background of this case, including a summary of the disputed and undisputed facts, is set forth at length in the transcript of the oral opinion the Court delivered on September 10, 2014. (Tr. of Sept. 10, 2014 Oral Op., Dkt. No. 109 (hereinafter " Op. Tr.").) Briefly, the Court held that disputed issues of material fact precluded a grant of summary judgment in favor of defendants O'Brien and Sammon. The Court reasoned that (1) a reasonable juror could find, based on the 2006 deposition testimony of decedent David Horn's father, Chester Horn, that O'Brien or Sammon shot David Horn when he posed no threat to their safety or the safety of others, and (2) factual issues underlying the reasonableness of the shots fired by defendant Yonkers Police Officer Roy Pilot, who was indisputably the first defendant to shoot, called into question the reasonableness of the subsequent shots fired by Sammon and O'Brien. (Id. 24-27.) The Court held that these disputed issues of material fact precluded a finding that Sammon and O'Brien did not, as a matter of law, utilize excessive force and also prevented them from invoking the defense of qualified immunity. (Id. 26.)

II. Discussion

A. Standard for Reconsideration

" [R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked--matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The decision to grant or deny a motion for reconsideration remains within the " sound discretion of the district court." Learning Annex Holdings, LLC v. Rich Global, LLC, 860 F.Supp.2d 237, 241 (S.D.N.Y. 2012).

B. No Reasonable Jury Could Find that the State Defendants Violated David Horn's Fourth Amendment Right to Be Free from Excessive Force

a. Legal Standard for Excessive Force Claims

As the Court set forth in its September 10, 2014 Opinion, the Fourth Amendment permits law enforcement officers making an arrest to use only such force as is " objectively reasonable in light of the facts and circumstances confronting them." Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (internal quotation marks omitted). With respect to deadly force such as the force used here, " an officer's decision to use deadly force is objectively reasonable only if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 762 (2d Cir. 2003) (internal quotation omitted). Courts must judge reasonableness " from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. They must also make " allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." Cowan, 352 F.3d at 762 (quoting Graham, 490 U.S. at 396-97).

b. Chester Horn's 2006 Deposition Testimony Does Not Create a Genuine Dispute of Material Fact with Respect to the State Defendants

The Court denied summary judgment to the State Defendants primarily on the basis of factual questions raised by the 2006 deposition testimony of Chester Horn, the decedent's father. In that deposition, Chester Horn testified--contrary to the versions of events testified to by every other witness--that he witnessed three officers line up and fire their weapons, but did not see his son's vehicle or any police cars and did not hear sirens or officers shouting commands. (Op. Tr. 24.) Chester Horn testified that the officers " looked like three Yonkers Police Officers" but that he " couldn't see the third officer" and couldn't tell what type of uniform he was wearing. (Ex. J to Decl. of William Thomas dated July 1, 2013 (hereinafter " Thomas Decl.") at 9-10.) The Court held that this testimony presented a disputed issue of material fact from which a reasonable juror could conclude that Sammon or O'Brien shot David Horn at a time when he posed no threat of death or serious physical injury. (Op. Tr. 25.)

Sammon and O'Brien now urge that Chester Horn's 2006 deposition testimony is inadmissible against them. Although they have raised that argument for the first time in their motion for reconsideration, they are nonetheless correct. Rule 804(b)(1) of the Federal Rules of Evidence provides that the deposition testimony of a declarant who is not available as a witness--Chester Horn is deceased--is not hearsay if it is offered against a party who had " an opportunity and similar motive to develop it by direct, cross-, or redirect examination." Fed.R.Evid. 804(b)(1). Because plaintiffs had not yet filed suit against O'Brien or Sammon in 2006, neither defendant had " an opportunity . . . to develop [Chester Horn's testimony] by direct, cross-, or redirect examination" at Horn's 2006 deposition. Consequently, that testimony is admissible only against the Yonkers defendants and is not admissible against either O'Brien or Sammon.

Although Chester Horn affirmed much of his 2006 deposition testimony at his 2009 deposition (which is unquestionably admissible against the State defendants), he stated unequivocally that the three officers he saw were wearing " dark blue" uniforms. (Ex. 1 to Decl. of Shannon S. Brady dated Aug. 5, 2013 at 101.) It is undisputed that the State defendants wore grey uniforms on the evening that David Horn died. (Reply Decl. of Timothy Sammon dated Aug. 1, 2013 at ¶ 3.) Consequently, no reasonable juror could conclude from the 2009 deposition--the only testimony of Chester Horn that is admissible against the State defendants--that either O'Brien or Sammon was one of the three officers who purportedly lined up and shot David Horn when he posed no threat to their safety or the safety of others.

c. Disputed Factual Issues Underlying the Reasonableness of Defendant Pilot's Conduct Do Not Affect the Reasonableness of the State Defendants' Actions

The Court also held that the State defendants were not entitled to summary judgment because disputed factual issues concerning the reasonableness of the shots fired by defendant Pilot (who was by all accounts the first officer to fire) " could call into question the reasonableness of the subsequent shots" fired by Sammon and O'Brien. (Op. Tr. 26.) Specifically, Pilot testified that he fired at Horn because he believed that Horn's reversing vehicle would crush defendant Wissner, who was standing between Horn's sport utility vehicle (" SUV") and the Yonkers defendants' radio car. (Op. Tr. 6, 26.) But as the Court noted, all five defendants gave different accounts of the position of the Yonkers car; if a jury credited certain of those versions, " it would have been physically impossible for Horn to reverse his SUV towards the Yonkers radio car and run over Wissner[, ] who was supposed to be standing between the two vehicles." (Op. Tr. 26.)

Upon reconsideration, the Court concludes that the disputed position of the Yonkers radio car does not bear on the reasonableness of the State defendants' actions. Although the issue is undoubtedly material to the question whether Pilot's shots were justified, it is undisputed that the State defendants did not fire at Horn because they sensed danger from Horn's reversing SUV. Disputed issues of material fact concerning the reasonableness of Pilot's shots, then, cannot serve as a viable basis for denying summary judgment to the State defendants.

d. Even Viexving the Remaining Facts in the Eight Most Favorable to Plaintiffs, No Reasonable Jury Could Find that the State Defendants Violated the Fourth Amendment

When Chester Horn's 2006 deposition testimony and the disputed position of the Yonkers radio car properly fall out of the picture, there is no question that the State defendants are entitled to summary judgment. Considering the facts in the light most favorable to plaintiffs, the non-moving party, the State defendants have established that they did not violate David Horn's Fourth Amendment right to be free from excessive force. O'Brien and Sammon's actions were " objectively reasonable in light of the facts and circumstances confronting them, " Graham, 490 U.S. at 397, because they had " probable cause to believe that the suspect pose[d] a significant threat of death or serious physical injury to [themselves] or others, " Cowan, 352 F.3d at 762 (internal quotation marks omitted).

First, it is undisputed that Horn created a dangerous situation by ramming his vehicle into the trooper car while Sammon and O'Brien were inside it. (Pls.' Local Civil Rule 56.1 Statement of Undisputed Facts (" Pls.' 56.1") ¶ ¶ 56-57.)[1] O'Brien, who was standing " half in, half out" of the vehicle's passenger side doorway, would have been crushed had he not jumped clear just moments before the collision. (Id. ¶ ¶ 55-57.) As it was, O'Brien's hand was injured when the impact of the SUV caused the trooper car's door to slam shut. (Id. 56.) As depicted by photographs, the collision was severe enough to leave a gash and a large dent on the side of the trooper vehicle. ( See Ex. A to Decl. of Timothy Sammon dated May 9, 2013.)

Second, there is no genuine dispute that the State defendants believed that Horn had fired or was about to fire a weapon. Before Horn crashed into the trooper vehicle, O'Brien saw arm movements inside Horn's SUV, heard gun shots, and observed Horn pointing his arm at the Yonkers officer who was aiming his weapon at Horn. (Pls.' 56.1 ¶ ¶ 51, 54.) O'Brien testified that he believed Horn was exchanging gunfire with the Yonkers police officers on the scene. (Ex. A to Thomas Decl. at 151-53.) Similarly, when Sammon was standing on Alexander Street after the SUV had collided with the trooper vehicle, he heard another round of gunshots and saw the driver of the SUV " raising their hands like they were going to fire." (Ex. B to Thomas Decl. at 113; see Pls.' 56.1 ¶ 67.) Sammon believed Horn might shoot at him as Horn drove toward Sammon on Alexander Street. (Pls.' 56.1 ¶ 67.) Both defendants stated in their interviews with Internal Affairs shortly after the incident that they shot Horn because they believed he was firing a gun. (Ex. H to Thomas Decl. at 0261, 0279.)

It is true that neither O'Brien nor Sammon actually saw a gun in Horn's hands and Horn was, in fact, unarmed. But so long as the State defendants' mistaken belief that Horn had fired or might fire a gun was reasonable, their use of deadly force against Horn was not unconstitutional. See Saucier v. Katz, 533 U.S. 194, 205-06, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Stephenson v. Doe, 332 F.3d 68, 78 (2d Cir. 2003) (" [C]laims that an officer made a reasonable mistake of fact that justified the use of force go to the question of whether the plaintiff's constitutional rights were violated."). Although plaintiffs attempt to cast doubt on the reasonableness of the State defendants' mistaken belief ( see Pls.' 56.1 ¶ 52), their arguments amount to nothing more than hindsight-informed speculation that cannot defeat a summary judgment motion. See Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 502 (2d Cir. 2001). Given the undisputedly dark lighting conditions (Pls.' 56.1 ¶ 45); the fact that Horn had rammed his SUV into the occupied trooper car (Pls.' 56.1 ¶ 56-57); and the general chaos quickly unfolding at the scene, no reasonable juror could deem the State defendants' ultimately incorrect belief that Horn had fired or was about to fire a gun objectively unreasonable.[2] See Marrow v. Amato, No. 3:07cv401, 2009 WL 350601, at *7 (D. Conn. Feb. 12, 2009) (holding that officer's mistaken belief that suspect was the source of gunfire was reasonable because suspect had led officers on a chase, made suspicious movements inside his car, and had just hit the officer with his vehicle).

In sum, there is no genuine dispute that when the State defendants fired at Horn, (1) Horn had already driven his SUV into their occupied vehicle and almost crushed O'Brien, and (2) Sammon and O'Brien reasonably believed that Horn had fired or was about to discharge a firearm. A reasonable officer in the State defendants' position would therefore have had probable cause to believe that Horn posed a significant threat of death or serious injury to themselves or others nearby. Consequently, no reasonable jury could find that either Sammon or O'Brien violated the Fourth Amendment when they fired at David Horn as he drove down Alexander Street.

C. Qualified Immunity

In its September 10 Opinion, the Court held that the State defendants could not invoke the defense of qualified immunity because " if a jury credited . . . the father's version, it could find that two Yonkers officer[s] and one state trooper lined up and shot at a time when [neither] Hom nor his vehicle presented any risk of death or serious injury." (Op. Tr. 27.) Upon reconsideration, the Court's rationale for denying qualified immunity cannot stand because Chester Horn's 2006 deposition testimony is not admissible against the State defendants. See supra . However, it is unnecessary for the Court to reconsider the State defendants' qualified immunity defense now because their conduct did not violate the Fourth Amendment. See Peterson v. Tomaselli, 469 F.Supp.2d 146, 168 (S.D.N.Y. 2007).

III. Conclusion

Upon reconsideration, the Court finds that neither Chester Horn's 2006 deposition testimony nor disputed factual issues underlying defendant Pilot's actions provide a basis for denying the State defendants summary judgment. O'Brien and Sammon have demonstrated that there are no disputed issues of material fact and that they are entitled to judgment as a matter of law. The Court therefore vacates its September 10, 2014 Order (Dkt. No. 104) to the extent it denied summary judgment to O'Brien and Sammon on plaintiffs' section 1983 excessive force claim. The Clerk of Court is directed to enter judgment in favor of defendants Timothy Sammon and Stephanie O'Brien, as administrator of the estate of Richard O'Brien.

SO ORDERED.


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