United States District Court, S.D. New York
JOHN and BEVERLY TERZANI, as administrators of the estate of John J. Terzani, Jr., and on their own behalves, Plaintiffs,
TROOPER JASON FITZPATRICK, Defendant.
OPINION AND ORDER
Vincent L. Briccetti United States District Judge.
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,
the Court is defendant's motion for summary judgment.
reasons set forth below, the motion is GRANTED.
Court has subject matter jurisdiction under 28 U.S.C. §
parties have submitted briefs, statements of fact
(“SOF”), and affirmations (“Aff.”) or
declarations (“Decl.”) with supporting exhibits,
which reflect the following factual background.
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.
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.
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
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.
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.
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.
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.
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.
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).
Summary Judgment Legal Standard
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 ...