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Estate of Jaquez v. City of New York

United States District Court, S.D. New York

May 8, 2015

THE ESTATE OF MAURICIO JAQUEZ, by the Public Administrator of Bronx County as administrator of the Good, Chattels and Credit of the deceased Mauricio Jaquez, and ANA MARTINEZ, Plaintiffs,
THE CITY OF NEW YORK, et al., Defendants

For The Estate of Mauricio Jaquez, by The Public Adminstrator of Bronx County as adminstrator of the Good, Chattels and Credit of the deceased Mauricio Jaquez, Ana Martinez, Plaintiffs: Zachary Margulis-Ohnuma, LEAD ATTORNEY, Zachary Margulis-Ohnuma Law Office, New York, NY.

For The City of New York, Defendant: Shira Rachel Siskind, Susan P. Scharfstein, LEAD ATTORNEYS, Philip Rudolph DePaul, New York City Law Department, New York, NY; Tonya Jenerette, LEAD ATTORNEY, Corporation Counsel, Special Federal Litigation Division, New York, NY; Barry K. Myrvold, Corporation Counsel, City of New York, Special Federal Litigation, New York, NY.

For Sergeant William Flores, Shield No. 1023, Official Capacity, Detective Raymond Morrissey, Shield No. 744, Official Capacity, Detective Raymond Flood, Shield No. 744, Official Capacity, Detective Richard Henderson, Shield No. 1033, Official Capacity, David McNamee, Shield No. 7273, Official Capacity, William Flores, Individually, Raymond Morrissey, Individually, Raymond Flood, Individually, Richard Henderson, Individually, David McNamee, Individually, Defendants: Barry K. Myrvold, Corporation Counsel, City of New York, Special Federal Litigation, New York, NY; Philip Rudolph DePaul, Shira Rachel Siskind, New York City Law Department, New York, NY.


KATHERINE B. FORREST, United States District Judge.

Against the backdrop of a country reckoning with a number of fatal police shootings, this Court faces an excessive force claim involving the fatal shooting of an emotionally disturbed person by several New York City Police Department officers. On April 12, 2009, the wife of Mauricio Jaquez called 911 after her husband had an " emotional breakdown" ; she reported that her husband had a knife, but was forced to hang up when her husband grabbed the phone saying that it was a pistol. A team of NYPD officers responded and a struggle ensued during which Mr. Jaquez repeatedly threatened them with a knife. During what was by all accounts a chaotic melee, the team of officers used multiple rounds of Tasers, rubber bullets, and finally live ammunition against Mr. Jaquez. The final bullet entered the back of Mr. Jaquez's head. Ultimately, he was killed.

Plaintiffs, the Estate of Mauricio Jaquez and Ana Martinez, individually and as mother and natural guardian of children N.J., J.J., and A.J. bring this action, pursuant to 42 U.S.C. § 1983 and state law, against defendant police officers William Flores, Raymond Morrissey, Raymond Flood, Richard Henderson, and David McNamee asserting claims of excessive force, wrongful death, and assault and battery. (ECF No. 72.) The Court previously dismissed claims against the City of New York for municipal liability and negligent screening, hiring, retention, training, and supervision. (ECF No. 84.)

On January 6, 2015, the Court initially granted in part and denied in part defendants' motion for summary judgment. (ECF No. 128.) In its decision, the Court noted that the plaintiffs' case rested largely on their proposed expert, Dr. Richard F. Sullivan, and should he be precluded, summary judgment might well be appropriate. (Transc. of January 6, 2015 proceedings 05:20-06:05, ECF No. 135.)[1] Defendants moved to preclude Dr. Sullivan, pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and related case law. (ECF No. 140.) On April 10, 2015, the Court granted that motion for reasons it now explains in full. (ECF No. 157.) Defendants immediately renewed their motion for summary judgment. (ECF No. 158.) On April 13, 2015, the Court adjourned the trial and notified the parties that it intended to grant summary judgment in favor of the defendants on the § 1983 claim. (ECF No. 167.)

When the Court sat down to write the opinion, it became clear that one moment of the altercation between Mr. Jaquez and the officers stood apart from the others: the final shot by Sgt. Flores that entered the back of Mr. Jaquez's head. While the Court grants qualified immunity to each defendant for all conduct preceding that final shot -- including the forceful use of the shield, Tasers, Sage guns, and the initial use of live ammunition -- it does not with regard to Sgt. Flores. Most situations do not require parsing the events of a single altercation to analyze each specific action a particular officer took. More typically, an event is susceptible to general categorization. Here, that is not the case. The circumstances immediately preceding Sgt. Flores's final use of force are sufficiently different from the remainder of the altercation that this Court must find a triable issue of fact as to Sgt. Flores only.

This case involves an undisputedly chaotic situation during which Mr. Jaquez, an emotionally disturbed person, repeatedly wielded a knife in a threatening manner against a team of police officers. Ultimately, plaintiffs have failed to present any admissible direct or circumstantial evidence to create a triable issue of fact on the objective reasonableness of the use of force, aside from the final shot. Critically, plaintiffs lack evidence to counter the officers' description of what occurred: their sole expert -- who proposed to testify to, inter alia, Jaquez's psychological state, law enforcement techniques, ballistics, and forensic pathology -- has been precluded. Plaintiffs' reliance on pure speculation and minor inconsistencies in defendants' testimony does not create a triable issue of fact on the reasonableness of force used throughout most of the event.

As to the final use of force -- the final shot -- the autopsy report reveals and defendant police officers testify that, immediately prior to being shot for the final time, Mr. Jaquez had been shot in the abdomen, back and right arm, and he was already on the ground. The officers also testified that he maintained possession of the knife in his right hand and, just prior to Sgt. Flores's final gun discharge, was in the process of pushing up from the ground.

The legal standard governing qualified immunity requires this Court to determine " 'if, on an objective basis, it is obvious that no reasonably competent officer would have concluded' . . . in that moment that his use of deadly force was necessary." O'Bert ex rel. Estate of O'Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). The Court should not apply 20/20 hindsight to merely second-guess police conduct in the context of qualified immunity. The Supreme Court has determined that qualified immunity serves an important policy purpose: it " gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects 'all but the plainly incompetent or those who knowingly violate the law.'" Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) (quoting Malley, 475 U.S. at 341). Here, though, the lack of a proper expert witness does not preclude a juror from applying common sense to facts that create a triable issue on the reasonableness of firing the final bullet: autopsy report and testimony of Dr. Kristen Landi that at least four other bullets had already entered Mr. Jaquez's body, testimony from officers that Mr. Jaquez had already fallen onto the ground, testimony from officers that there were multiple officers on the scene protected by ballistics gear, testimony from Sgt. Flores that Mr. Jaquez was not threatening anyone with the knife when he fired the last shot, and autopsy records and testimony showing a shot entered just behind Mr. Jaquez's right ear and proceeded directly downward along his spine.

Qualifiedly immune for their conduct, Officers Henderson, McNamee, Flood and Morrissey are dismissed from this action entirely. Sgt. Flores is granted qualified immunity as to events preceding the final discharge of the firearm. The two state law claims -- assault and battery, and wrongful death -- remain only as to Sgt. Flores. The Court previously dismissed plaintiffs' claims for municipal liability and negligent screening, hiring, retention, training, and supervision. (ECF No. 84.) As " a § 1983 plaintiff seeking to attach liability to the city for the acts of one of its employees may not rest on the employment relationship alone", the City's dismissal from any § 1983 claim is appropriate. See City of Canton, Ohio v. Harris, 489 U.S. 378, 394, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

Accordingly, this matter shall proceed to trial as to the use of force by Sgt. Flores during the final moments of the altercation.


The following facts are materially undisputed and all inferences are drawn in favor of plaintiffs. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On the morning of April 12, 2009, Mr. Jaquez was at home with his wife, Ana Martinez, and children, A.J., N.J., and J.J., when he began " acting crazy" and shouting that the police were going to kill him and were shooting him through the walls. (Pl. 56.1 Responsive and Affirmative Statement ¶ 5, ECF No. 118.) At some point after the sun had risen, Mr. Jaquez came out of a room in the apartment screaming " they are going to kill me" while carrying a six inch fillet knife. (Id. ¶ 13.) His children woke up to find Mr. Jaquez in the living room holding Ms. Martinez in one hand and grabbing a knife with the other. (Id. ¶ 14.) Ms. Martinez was able to dial 911, but Mr. Jaquez grabbed the phone saying it was a pistol he didn't want her making a phone call with it. (Id. ¶ ¶ 15-16.) The operator called back and Ms. Martinez was able to report that Mr. Jaquez had a knife. (Id. ¶ 17.) When the police responded, two of the children exited the second floor apartment and told the arriving POs Martinez and Negron that their parents were arguing, their father was " talking crazy", and that he had a knife. (Id. ¶ 19.)

Realizing that Mr. Jaquez might be an emotionally disturbed person (" EDP" ), POs Martinez and Negron called for assistance. (Id. ¶ ¶ 20, 20.1.) Those two officers, as well as Officers Torres and Smith-Sands who had just arrived, continued upstairs to the apartment door. (Id. ¶ 23.) After the officers knocked and announced their presence, Mr. Jaquez yelled that the police were going to kill him, went into the bedroom and got the knife. (Id. ¶ ¶ 23-24.) Officer Torres managed to pull Ms. Martinez and the last remaining child out of the apartment. (Id. ¶ ¶ 25.2, 27, 29.) At that time, Mr. Jaquez remained agitated, " acted crazy", sweated profusely and had red eyes. (Id. ¶ 30.) Ms. Martinez told Sgt. Flores that her husband had a knife and was on drugs (cocaine), but that he did not have any firearms and " he only had that one knife." (Id. ¶ ¶ 33, 33.2.)

Members of the New York Police Department Emergency Services Unit (" ESU" ) arrived on the scene and were told that there had been a family dispute involving a knife, Mr. Jaquez had threatened his family, and he remained in the apartment. (Id. ¶ 37.) After attempting to engage Mr. Jaquez in conversation, the officers decided to enter the apartment to confine Mr. Jaquez to a portion of the apartment. (Id. ¶ ¶ 42, 45.) The ESU officers staged up in the kitchen/living room area, wherein Sgt. Flores, the only member of the team who spoke Spanish, spent approximately one hour attempting to communicate with Mr. Jaquez. (Id. ¶ ¶ 48, 51.1.)

Meanwhile, Det. Cannizzaro operated a " scout" camera that made its way to the hallway of the apartment. (Id. ¶ 52.) Det. Cannizzaro relayed information to the other officers that Mr. Jaquez was walking back and forth from the bedroom to the bathroom, repeatedly putting the knife down as though he was going to peacefully surrender, but then picking it up again. (Id. ¶ ¶ 53-54.) At some point, Det. Cannizzaro announced to the ESU officers that it appeared Mr. Jaquez had put the knife in the toilet. (Id. ¶ 56.) Lt. Goff, who was watching the camera's monitor, saw Mr. Jaquez pick the knife back up and quickly walk out of the bathroom and down the hallway (Id. ¶ 57); but as Mr. Jaquez walked down the hallway, neither Lt. Goff nor Det. Cannizzaro could tell whether he still held the knife. (Id. ¶ 63.) While there is some dispute as to whether Mr. Jaquez in fact had the knife at this point, there is no dispute that Det. Henderson then used his Taser on Mr. Jaquez. Mr. Jaquez reacted as though the Taser made contact and moved back around the corner. (Id. ¶ 66.) The officers believed Mr. Jaquez had been disabled by the Taser and proceeded down the hallway towards him. (Id. ¶ 67.) At a departmental interview following the incident, Det. Flood stated that Mr. Jaquez " had re-picked up the knife" after the initial Taser deployment (Id. ¶ 61); at his deposition, Det. Flood testified that when he turned the corner, " [Mr. Jaquez] was still on his feet, he was hunched over. As soon as he saw me, I came up, I hit him with the shield." (Id. ¶ 69, Ex. 15 (Flood, 101:11 -- 102:19.))

Det. Flood and Mr. Jaquez then engaged in a struggle, with both men ending up in the bathroom. (Id. ¶ 73.) Defendants assert that at this point Mr. Jaquez clearly had possession of the knife, was not complying with anything the officers said, and was swinging wildly, slashing at and trying to stab Det. Flood with the knife. (Id. ¶ 71.) Sgt. Flores discharged his Taser at Mr. Jaquez, but Mr. Jaquez kept stabbing at Det. Flood. (Id. ¶ 72.) Det. Morrissey shoved Sgt. Flores aside and discharged his Taser at Mr. Jaquez, which " stopped [Mr. Jaquez] momentarily." (Id. ¶ 75, Ex. I (Henderson), 95:3-5.) Det. Morrissey eventually pulled Det. Flood out of the bathroom and into the doorway of the bedroom. (Id. ¶ 78.) Det. Henderson described the situation as a " melee" and " pretty chaotic" . (Id. ¶ 80, Ex. I (Henderson), 87:19-22.) The struggle between Mr. Jaquez and Det. Flood happened very quickly and without pause. (Id. ¶ 81.)

Det. McNamee then stepped up and yelled at Mr. Jaquez to drop the knife. (Id. ¶ 82.) He fired his Sage gun, striking Mr. Jaquez with three or four less-than-lethal rubber batons or bullets. (Id. ¶ 83.) Mr. Jaquez reacted by " growling" or " screaming" when hit by the rubber batons; more than one rubber baton hit Mr. Jaquez on his right forearm. (Id. ¶ 84, Ex. L (Morissey), 104:9-22; Ex. 17 (Autopsy Photo).) The rubber batons did not appear to cause Mr. Jaquez to step back, slow down, or otherwise deter him from swinging his knife at Det. McNamee. (Id. ¶ 84).

Det. McNamee was pushed out of the bathroom and " backpedaled a little bit" into the hallway. (Id. ¶ ¶ 85, 86, Ex. K (McNamee), 127:6-12, 125:17 -- 126:3.) While the parties dispute whether Mr. Jaquez's knife then came in contact with Det. McNamee's Sage gun, photographs of the gun taken by the crime scene unit (" CSU" ) show what CSU described as " possible scrape marks on the cylinder portion" of the Sage. (Id. ¶ 87, Ex. 19 (CSU Photos).) Ultimately, CSU did not conclude that there was damage to the weapon or that damage came from a knife. (Id., Ex. 20 (CSU Report).) Det. McNamee pushed Mr. Jaquez away from him, and Det. Morrissey observed that Mr. Jaquez ricocheted off the bathroom doorframe and " came back with the knife to . . . McNamee's throat." (Id. ¶ ¶ 88, 89, Ex. L (Morrissey), 107:16-21.) Det. Flood described Mr. Jaquez as standing upright and lunging forward, moving his right arm in a downward stroke toward Det. McNamee. (Id. ¶ 94, Ex. J (Flood), 104:10-13, 104:19-105:6.) Det. McNamee testified that he felt Mr. Jaquez hit him in the neck and that he felt the metal of the knife against the side of his head, behind his ear. (Id. ¶ 90, Ex. K (McNamee), 128:7-19.) Det. McNamee stated in his departmental interview that he " [felt Mr. Jaquez's] hands on my neck, between my neck and my helmet at one point." (Id. ¶ 101.)[3] Det. Morrissey described Mr. Jaquez as being like a machine as he first struggled with Det. Flood and then with Det. McNamee. (Id. ¶ 129, Ex. L (Morrissey), 125:10-21.)

Sgt. Flores testified that, at some point during the struggle, Mr. Jaquez and Det. McNamee were on top of each other, with Mr. Jaquez stabbing at Det. McNamee, who was in turn using the Sage gun to fend him off. (Id. ¶ 105.) It was then that Det. Morrissey discharged his gun inside the bedroom, aiming at the right side of Mr. Jaquez's torso. (Id. ¶ 103.) Sgt. Flores also discharged two or three shots from his gun. (Id. ¶ ¶ 106, 108.)

After the initial use of live ammunition, Mr. Jaquez was on the ground. (Id. ¶ 114.) The autopsy report indicates that at least four bullets had, at this point, struck Mr. Jaquez; each bullet entered Mr. Jaquez's body in a downward trajectory. (Id. ¶ ¶ 1.7-1.36; Ex. 4 (Landi Autopsy Report).) Multiple officers, equipped in ballistics gear, were present when Mr. Jaquez was shot and on the ground. The officers testify that, after the initial shots, Det. McNamee went down to remove the knife from Mr. Jaquez's hand when Mr. Jaquez pushed up towards Det. McNamee. (Id. ¶ 114.) Sgt. Flores testified at deposition:

Q: Was he using both of his hands to get himself up?
A: Yes. He had both his hands in front of him, right underneath him.
Q: So, he wasn't threatening anyone with the knife, at that point; right?
A: At that point, no. He had the knife in his hand, in his right hand, and he's in, like, push-up position, getting himself -- gathering his feet, gathering himself to get up."

(Id. ¶ ¶ 115, 115.2, Ex. M (Flores), 107:18-108:06.) Det. Morrissey also testified at deposition that Mr. Jaquez maintained possession of the knife after he fell to the floor and that, " Detective McNamee reached down to try to remove the knife from his hand, and at that point, Mr. Jaquez did like a one-handed pushup off the ground and started to stab at Detective McNamee again." (Id. ¶ 114, Ex. L (Morrissey), 115:15-115:19.)[4]

As Mr. Jaquez pushed up, Sgt. Flores, who was at this point behind Mr. Jaquez, discharged his gun one final time, from three or four feet away. (Id. ¶ 115.) The final bullet " entered the right side of [Mr. Jaquez's] head immediately behind his right ear." (Id. ¶ 1.12.) The trajectory of that bullet was " directly downward" . (Id. ¶ ¶ 1.13, 1.14, Ex. 1 (Deposition of Dr. Kristen Landi), 29:02-29:06, 33:21-34:03.)[5] After that shot, Det. McNamee knocked the knife out of Mr. Jaquez's hand using an ASP and a Halligan tool. (Id. ¶ ¶ 121, 123.) The officers handcuffed Mr. Jaquez and called EMS. (Id. ¶ 124.)

The struggle between Mr. Jaquez and Det. McNamee unfolded very quickly, and Det. McNamee testified that the " entire thing from [Mr. Jaquez] appearing in the hallway to us handcuffing him was seconds." (Id. ¶ ¶ 119, 126.) Det. Henderson described the series of events happening all at once and Det. Morrissey agreed that " it happened so fast . . . ." (Id. ¶ ¶ 119, 127, Ex. I (Henderson), 101:16-19, Ex. L (Morrissey), 151:21-152:07.)

Mr. Jaquez was declared dead on arrival at 11:50 a.m. at Jacobi Medical Center. (Id. ¶ 1.6.)


On April 2, 2010, the Estate of Mauricio Jaquez by the Public Administrator of Bronx County, as Administrator of the Goods, Chattels, and Credits of the deceased Mauricio Jaquez, filed this action against the City of New York and unnamed New York City Police Officers John Does. (ECF No. 1.) On November 16, 2011, the action was reassigned from the Honorable Thomas P. Griesa to the undersigned. (ECF No. 5.) On January 24, 2012, plaintiffs' counsel withdrew from the case. (ECF No. 11.) The next day, the Court Ordered the City of New York to identify the John Doe police officer defendants involved in the alleged incident, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997). (ECF No. 12.) The Court further Ordered plaintiffs, now appearing pro se, to thereafter file an amended Complaint. (ECF No. 12.) On April 2, 2012, the Court Ordered plaintiffs to file an amended Complaint no later than April 12, 2012. (ECF No. 16.) Plaintiffs failed to comply with the Court's Order and on April 30, 2012, the Court dismissed the action pursuant to Federal Rule of Civil Procedure 41. (ECF No. 17.)

On June 28, 2012, plaintiff, once again counseled, filed a motion for relief from the dismissal pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. (ECF No. 25.) On November 28, 2012, the Court denied plaintiffs' motion. (ECF No. 33.) Plaintiffs appealed and on November 7, 2013, the Court received a mandate from the Second Circuit, reversing and reinstating the action. (ECF No. 39.) Thereafter, the parties engaged in discovery.

On March 3, 2014, plaintiffs the Estate of Mauricio Jaquez, Ana Martinez, and N.J., J.J., and A.J., by their mother and natural guardian Ana Martinez, filed the Third Amended Complaint, alleging claims of excessive force, municipal liability, wrongful death, assault and battery, and negligent screening, hiring, retention, training, and supervision against defendants the City, Sergeant William Flores, Detective Raymond Morrissey, Detective Richard Henderson, and Detective David McNamee, pursuant to 42 U.S.C. § § 1983 and 1988. (ECF No. 72.)

On June 9, 2014, the Court dismissed plaintiffs' claims for municipal liability and negligent screening, hiring, retention, ...

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