Harris v. O'Hare et al

Filing 129

ORDER denying as moot 115 Motion for Judgment; denying 117 Motion for Judgment NOV; denying 117 Motion for Judgment as a Matter of Law; denying 117 Motion for New Trial. Signed by Judge Robert N. Chatigny on 9/27/12. (Goldsticker, M)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
GLEN HARRIS, individually
and P.P.A. as guardian for
K.H., a minor chid,
Plaintiff,

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V.
JOHNMICHAEL O'HARE, ET AL.,
Defendants.

Case No. 3:08-CV-1644 (RNC)

RULING AND ORDER
This case is before the Court on the plaintiff's post-trial
motion for judgment as a matter of law pursuant to Fed. R. Civ.
P. 50(b) or, alternatively, a new trial pursuant to Fed. R. Civ.
P. 59, and the defendants' renewed motion for judgment as a
matter law based on qualified immunity.
the plaintiff's motion is denied.

For reasons that follow,

Because the plaintiff's motion

is denied, the defendants' motion is denied as moot.
The evidence presented at trial, viewed most favorably to
the defendants, permitted the jury to find the following facts.
On December 20, 2006, Officer O'Hare and another officer were on
duty in a high crime area.
seize illegal guns.

Their assignment was to locate and

They saw George Hemingway, a leader of the

West Hill street gang, drop a package on the ground and walk
away.

Hemingway had recently been released from prison on a gun

charge and was on parole.

The officers inspected the package,

found it contained a quantity of heroin, and seized Hemingway.
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Hemingway immediately agreed to cooperate with the officers
by providing information concerning the location of illegal guns.
After placing a call on his cell phone, he told the officers that
two guns were about to be placed in an abandoned Nissan Maxima in
the back yard of 297 Enfield Street.

Hemingway had no track

record as an informant, but the officers credited his information
concerning the guns.

The experienced officers thought the

information provided by Hemingway was reliable because members of
the West Hill Street gang were known to move guns frequently for
safekeeping, the tip was reasonably detailed, Hemingway was
highly motivated to help the officers due to his legal
predicament, and it would be against his interest to give them
inaccurate information.

The officers believed they had to act

quickly to apprehend the person stashing the guns and to seize
the guns before they could be moved to another location.
Officer O'Hare immediately drove to the address provided by
Hemingway.

He was accompanied by Officer Pia.

proved to be the plaintiff's residence.

The address

The officers entered the

front yard of the residence through an open gate, then moved
along the right side of house in the direction of the back yard.
They moved single-file with Officer O'Hare in the lead and
Officer Pia following directly behind.

The officers were holding

their service weapons at their sides in a low ready position.
When Officer O'Hare reached the rear corner of the house, he

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peeked into the back yard, and saw the plaintiff's dog, a large
Saint Bernard.

The dog saw the officer and ran toward him.

officers immediately retreated as quickly as they could.

The

The dog

pursued them and the officers could hear the dog barking and
snarling as they ran.

When Officer O'Hare reached the front

yard, he sensed that the dog would attack him from behind before
he could safely reach the street.

He therefore turned toward the

dog while raising his weapon in self-defense.

The dog continued

to approach the officer then lunged in an aggressive manner.

As

the dog lunged, the officer fired three shots in rapid
succession.

One of the bullets entered the dog's skull causing a

fatal wound.
II. Discussion
The plaintiff urges that he is entitled to judgment as a
matter of law because the officers' warrantless entry into the
yard was illegal under the Fourth Amendment and state law, and
this illegality makes the defendants' liable for the killing of
the dog.

A motion for judgment as a matter of law may be granted

on an issue only when there is no legally sufficient evidentiary
basis to support the jury verdict.

Fed. R. Civ. P. 50(a);

Nadel v. Isaksson, 321 F.3d 266, 272 (2d Cir. 2003).

In other

words, the motion must be denied unless the "the evidence is such
that, without weighing the credibility of the witnesses or
otherwise considering the weight of the evidence, there can be

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but one conclusion as to the verdict that reasonable [persons]
could have reached."

Id. (internal quotation omitted)

(alteration in original).
Applying this standard, the plaintiff's motion is denied.
The jury could reasonably conclude that the officers' entry was
supported by probable cause and exigent circumstances.
v. Gorman, 306 F.3d 1271, 1283 (2d Cir. 2002).

See Loria

"[T]he probable-

cause standard is a practical, nontechnical conception that deals
with the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act."
United States v. Delossantos, 536 F.3d 155, 159 (2d Cir. 2008)
(citations and internal quotation marks omitted).

Considering

the totality of the circumstances, as the jury was obliged to do,
the jury could credit the experienced officers' testimony that
Hemingway's tip provided probable cause that two guns would be
found at this location.
With regard to the issue of exigent circumstances, the jury
could credit the officers' testimony that they had an urgent need
to take action to seize the guns before a warrant could be
obtained.

The officers explained that in their experience,

illegal guns moved quickly, and they did not expect the guns to
be in the Maxima for long.

The jury also could credit the

officers' testimony that there was no reasonable alternative to
entering the property to seize the guns, such as cordoning off

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the property while a warrant was obtained.
Plaintiff's motion for a new trial is denied because the
jury verdict is not against the clear weight of the evidence.
III. Conclusion
Accordingly, the plaintiff's motion for judgment as a matter
of law or, alternatively, for a new trial is hereby denied, and
defendants' renewed motion for judgment based on qualified
immunity is hereby denied as moot.

/s/
Robert N. Chatigny
United States District Judge

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