United States District Court, S.D. New York
OPINION AND ORDER
J. PAUL OETKEN, District Judge.
On July 22, 2009, Maximo Peguero ("Peguero") was shot and killed by an officer of the New York City Police Department ("NYPD") following a police pursuit of his automobile in Manhattan. Plaintiffs Jose Peguero and Rafaela Cabral ("Plaintiffs") are Peguero's parents. They brought this action under 42 U.S.C. § 1983 ("Section 1983"), on their own behalf and on behalf of Peguero's estate, against the City of New York and two individual police officers, Officer Christopher Labate and Sergeant Daniel Schwarz. Plaintiffs allege that Defendants used excessive force against Peguero and deprived Plaintiffs of his companionship and association. Defendants move for summary judgment on both claims.
For the reasons that follow, Defendants' motion is granted.
A. Factual Background
Labate and Schwarz were, at all relevant times, NYPD officers assigned to the 34th Precinct in northern Manhattan. At approximately 8 p.m. on July 22, 2009, they received a radio transmission from an officer assigned to the adjacent 33rd Precinct. (Modafferi Decl. Ex. E, Affidavit of Christopher Labate ("Labate Aff."), ¶ 2; id. Ex. F, Deposition of Daniel Schwarz ("Schwarz Dep."), 36:10-18.) The officer advised that police were in pursuit of a vehicle-a gray Cadillac-in connection with an armed robbery. (Labate Aff. ¶¶ 3-4; Schwarz Dep. 36:16-37:5.) Police lost track of the vehicle on the Henry Hudson Parkway. (Schwarz Dep. 38:16-17.)
Some moments later, another officer-Sergeant Saleh, of the 34th Precinct-radioed that he had spotted the Cadillac exiting the Hudson Parkway at Dyckman Street. (Def. 56.1 Stmt ¶ 9.) Saleh advised that he had pursued the Cadillac, but that it "rammed his car when he attempted to stop it." ( Id. ¶ 10.)
Labate and Schwarz then heard a transmission relaying that the Cadillac was headed southbound on Wadsworth Terrace. ( Id. ¶ 11.) Around the same time, Schwarz and Labate left the 34th Precinct station house to pursue the Cadillac. ( Id. ¶ 12.) They drove northbound on Wadsworth Avenue in an attempt to intercept the vehicle at 188th Street, a one-way eastbound street. (Schwarz Dep. 41:23-42:6.) As Schwarz and Labate arrived at 186th Street and Wadsworth Avenue, they saw the Cadillac crossing Wadsworth and heading east on 188th Street. (Def. 56.1 Stmt ¶ 14.) They made a right turn and drove east on 186th Street, taking a path parallel to that of the Cadillac. ( Id. ¶ 15.)
For the next two blocks, Schwarz and Labate kept pace with the Cadillac. (Schwarz Dep. 42:12-20.) At Amsterdam Avenue, Schwarz and Labate turned left in an attempt to intercept the Cadillac. ( Id. at 43:2-4.) The officers did not immediately see the Cadillac, however, and as they drove past 188th Street they observed the Cadillac continuing to make its way east on 188th Street toward Amsterdam Avenue, weaving between double-parked cars on both sides of the one-way street. ( Id. at 43:6-20.) Labate and Schwarz made a U-turn and parked their car on the northwest corner of 188th Street and Amsterdam Avenue. ( Id. at 43:11-12, 44:8-12.) The Cadillac then arrived at the intersection and stopped directly behind a motorcycle at a red light. ( Id. at 44:15-19; Def. 56.1 Stmt ¶ 19.)
What followed is partly in dispute. Labate and Schwarz's account is that they exited their vehicle at this point with their police shields around their necks and their weapons drawn. (Labate Aff. ¶ 14.) Labate, who was on the driver's side, walked into the street, while Schwarz exited from the passenger's side onto the sidewalk on the north side of 188th Street. (Schwarz Dep. 44:19-23.) While approaching the Cadillac, they identified themselves as police and yelled at the driver-now known to be Peguero-to "stop the car." ( Id. at 44:23-25.) As they did so, the Cadillac accelerated forward and struck the motorcycle stopped in front of it. ( Id. 45:20-23; Labate Aff. ¶ 13.) The motorcyclist, Juan Castillo, fell to the ground on his right side and became "pinned under his motorcycle." (Def. 56.1 Stmt ¶ 25; Schwarz Dep. 48:24-49:4.) The Cadillac continued to accelerate, but could not move because the motorcycle was lodged under its front bumper. (Labate Aff. ¶ 15.) Labate and Schwarz were "screaming at the car to stop." (Schwarz Dep. 49:9-11.) As Labate approached the Cadillac, he noticed a group of civilians, including children, on the south side of 188th Street. (Labate Aff. ¶ 16.)
The Cadillac then reversed "at a high rate of speed, " "swerv[ed]" and hit a car behind it on the street. ( Id. 49:9-19.) Seated in the car to the rear of the Cadillac were Javier Kaufman and his mother, Violeta Abad. Kaufman says that the Cadillac struck his vehicle three times. (Def. 56.1 Stmt ¶ 32; Kaufman Dep. 35:17-19.) The crashes sent the back of Kaufman's car "up in the air" and turned it "perpendicular to the street" such that it blocked 188th Street behind the Cadillac. (Schwarz Dep. 50:15-20; Def. 56.1 Stmt ¶ 28.) The Cadillac then came to a stop. ( Id. at 50:23.) Schwarz, who described the collision as "violent, " observed "smoke" and "debris." ( Id. at 50:20-24.) The crash injured both Kaufman and Abad. (Def. 56.1 Stmt ¶¶ 33-34.)
At that point, Schwarz and Labate remained, respectively, on the sidewalk and in the street. (Schwarz Dep. 51:3-7.) Labate was in front of the vehicle, "approximately one and a half car lengths away, " and "ordered the driver to stop the car multiple times." (Labate Aff. ¶¶ 18, 20.) As he and Schwarz approached the Cadillac, Peguero accelerated forward directly towards Labate "at a high rate of speed." ( Id. ¶ 21; Schwarz Dep. 50:24-51:8.) Labate, who "feared for [his] safety and believed [he] was in imminent danger, " backpedaled and fired one shot through the Cadillac's front windshield. (Labate Aff. ¶¶ 23-24.) The shot struck Peguero. The Cadillac veered left and hit a parked car on the north side of the street. ( Id. ¶ 25.) It then immediately went into reverse, making "almost a semi-circle, " crashing into another car on the street's north side, and pushing the car onto the sidewalk such that it "almost hit" Schwarz. (Schwarz Dep. 53:7-12; Labate Aff. ¶¶ 27-28.) Wendy Alcantara, who appears to have been seated in this second car,  suffered a broken nose, nerve damage, and swelling in one of her legs as a result of the crash. (Def. 56.1 Stmt ¶¶ 41-42.)
Labate was still in the street at that point, standing between the Cadillac and parked cars on the south side of the street. He "continued yelling for the car to stop." (Labate Aff. ¶ 29.) Nonetheless, the Cadillac accelerated directly toward Labate. ( Id. ¶ 30.) Labate jumped out of the way and fired a second shot through the Cadillac's front passenger door toward the driver. ( Id. ¶ 31.) The Cadillac "pinballed, " colliding with the parked cars on the south side of the street, and then reversing and hitting cars parked on the north side of the street. (Schwarz Dep. 53:12-20; Labate Aff. ¶¶ 34-35.) The Cadillac became wedged between two parked cars, but its wheels continued to spin in reverse and its "engine was revving very high." (Schwarz Dep. 54:19.) Schwarz ordered Labate to cease fire. ( Id. at 54:20-21.) Labate approached the Cadillac and reached into the driver's side to turn the vehicle off. ( Id. at 55:2-3; Labate Aff. ¶ 38.) The driver was "unresponsive, " and Schwarz made a radio transmission to "[r]ush the ambulance." (Schwarz Dep. 55:10, 55:23.) Labate and Schwarz ordered the three remaining passengers to keep their hands up. (Labate Aff. ¶ 37.) Medical personnel who arrived at the scene shortly thereafter found Peguero to be "unresponsive, apneic, [and] pulseless." (Modafferi Decl. Ex. M, at 2.)
Plaintiffs argue that several aspects of Labate and Schwarz's narrative are contradicted by the accounts of civilian witnesses.
First, two witnesses stated that Labate and Schwarz did not identify themselves as police to the occupants of the Cadillac. ( See Wotorson Aff. Ex. 3, Deposition of Juan Castillo ("Castillo Dep."), 39:24-40:5 (testifying that the officers only said "get out of the car"); id. Ex. 2, Deposition of Violeta Abad ("Abad Dep."), 21:5-8 (deposing that she did not hear the officers say that they were police before shots were fired).)
Second, multiple witnesses testified that the officer who fired the shots was not in front of the car. ( See Castillo Dep. 38:5-39:6 (the officer who fired shots was "on the passenger side of the vehicle and not in front"); Wotorson Aff. Ex. 4, Deposition of Glorys Hidalgo ("Hidalgo Dep."), 32:2-7 (officer observed to be shooting was "on the sidewalk"); id. Ex. 1, Deposition of Javier Kaufman ("Kaufman Dep."), 41:20-21, 48:5-14 (same).)
Third, one witness denies that the driver of the Cadillac was attempting to run over Labate. (Hidalgo Dep. 29:2-6 ("[The Cadillac] wasn't going towards the guy.").)
Fourth, two witnesses testified that the police fired shots at the Cadillac while it was moving in reverse or had stopped. (Alcantara Dep. 34:19-21 (first testifying that shots were fired "after [the car] went in reverse and then came to a stop, " but then clarifying that she heard shots "while the car was moving in reverse"); Modafferi Decl. Ex. Q, Deposition of Jose Ramos ("Ramos Dep."), 22:12-19 (stating that he heard gunshots when the Cadillac "wasn't moving at all").)
Fifth, one witness testified, contrary to Labate's testimony, that there were not "a lot of civilians" in the vicinity of the incident. (Alcantara Dep. 45:12-15.)
Sixth, and finally, a single witness affirmed that she observed a "police officer fire shots as soon as he got out of the car." (Wotorson Aff. Ex. 7, Affidavit of ...