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Terzani v. Fitzpatrick

United States District Court, S.D. New York

January 8, 2018

JOHN and BEVERLY TERZANI, as administrators of the estate of John J. Terzani, Jr., and on their own behalves, Plaintiffs,


          Vincent L. Briccetti United States District Judge.

         Plaintiffs John and Beverly Terzani bring this Section 1983 action on behalf of their deceased son, John T. Terzani (“Terzani”), and on their own behalves, against defendant Trooper Jason Fitzpatrick, alleging Fitzpatrick used excessive force against Terzani, and caused Terzani's wrongful death, when Fitzpatrick shot and killed Terzani after a seven-hour standoff on August 19-20, 2013.[1]

         Before the Court is defendant's motion for summary judgment. (Doc. #43).

         For the reasons set forth below, the motion is GRANTED.

         The Court has subject matter jurisdiction under 28 U.S.C. § 1331.


         The parties have submitted briefs, statements of fact (“SOF”), and affirmations (“Aff.”) or declarations (“Decl.”) with supporting exhibits, which reflect the following factual background.

         Beginning at least in November 2012 and through at least June 2013, Terzani suffered from depression, emotional dysregulation, and poor impulse control. He sought medical treatment and took medication to address these mental health issues. However, in June 2013, he stopped seeing his psychiatrist, and suggested he intended to discontinue his medications, against medical advice. On June 30, 2013, Terzani's wife moved out of their home, located at 120 Carpenter Road in East Fishkill, New York, during what the parties agree was a “highly acrimonious” dissolution of their marriage. (Def.'s SOF ¶ 14). Terzani apparently believed his wife was having an affair with another man, and he had concerns about how the separation would affect his finances, including whether he would be able to afford the mortgage on the home.

         On August 19, 2013, Terzani and his wife made arrangements for his wife to come to the home “to pick up mail and discuss the cable bill.” (Def.'s SOF ¶ 28). His wife arrived at 6:15 p.m. Shortly thereafter, Terzani “pulled out a pistol, put it to his head, and threatened to shoot himself.” (Id. ¶ 31). His wife called 9-1-1.

         Sometime between 6:18 p.m. and 6:45 p.m., members of the New York State Police, East Fishkill Police Department, and the Dutchess County Sheriff's Office began to arrive at 120 Carpenter Road. Defendant Fitzpatrick, a member of the New York State Police's Special Operations Response Team (“SORT”), arrived at the scene at approximately 9:30 p.m.

         During the seven-hour standoff that ensued, Terzani, carrying his handgun, moved between his house and the garage-a distance of approximately eight to fifteen feet-and through the woods behind his house. He called friends on the phone to “say goodbye, ” and texted his mother asking for forgiveness, which she understood to mean he was going to kill himself. (Pl.'s Resp. to Def.'s SOF ¶¶ 38-41). Terzani repeatedly stated that he wanted law enforcement officers to shoot him. Law enforcement officials repeatedly instructed Terzani to put his gun down but he did not comply. At various points, Terzani put his gun to his head or inside his mouth.

         In the early morning hours of August 20, 2013, for some “long period of time, ” Terzani walked back and forth between the house and the garage. (Pl.'s Resp.Def.'s SOF ¶ 75). The decision was made that three of the SORT officers would create a “taser team”-consisting of Troopers Kakis, Levin, and Casey- while four SORT officers-Fitzpatrick, Sergeant Pastino, Sergeant Kyle, and Trooper Leeder-created a “cover team” to provide lethal coverage to the taser team, who had to be close enough to Terzani to make contact with the taser.

         The plan was for the taser team to wait at the rear of the garage until Terzani walked around the corner of the garage, at which point the taser team would attempt to taser him from behind to subdue him. The cover team positioned itself at the wood line of the property, facing the garage.

         At approximately 2:30 a.m., Trooper Kakis attempted to deploy a taser on Terzani but the taser did not make contact with him. The cover team then moved forward toward Terzani. Trooper Kakis again deployed a taser and this time the taser probe struck Terzani in the arm. However, Terzani removed the probe. Each of the members of the cover team, Fitzpatrick, Pastino, Leeder, and Kyle, testified that shortly after this, Terzani pointed his gun toward a member or members of the cover team. Fitzpatrick then fired his rifle three times at Terzani. None of the other officers fired his weapon.

         Terzani was shot twice in the torso. Trooper Kakis and a tactical medic administered medical aid on the scene. Terzani was taken by ambulance to St. Francis Hospital in Poughkeepsie, where he was pronounced dead upon arrival.

         In the ensuing months, the New York State Police's Internal Affairs Bureau conducted an investigation and, on September 18, 2014, issued a letter to Fitzpatrick indicating it had found “no evidence . . . to substantiate any violation of Division Rules, Regulations or Instructions.” (Lally Decl. Ex. 49). In addition, on March 12, 2014, a Dutchess County grand jury found “insufficient legal evidence to warrant an Indictment against any person for any crime arising” from the incident. (Id. Ex. 50).


         I. Summary Judgment Legal Standard

         The Court must grant a motion for summary judgment if the pleadings, discovery materials before the Court, and any affidavits show there is no genuine issue as to any material fact and it is clear the moving party is entitled to judgment as a matter of ...

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