Torres-Cuesta v. Berberich et al

Filing 160

OPINION & ORDER: For the reasons set forth in my written opinion, I hold that Special Agent Butorac, Detective Benitez, and Detective Berberich did not use excessive force in violation of the Fourth Amendment and that they did not commit assault and battery under New York law. Thus, the officers are not liable to plaintiff under Bivens, and the United States is not liable to plaintiff under the Federal Tort Claims Act. The Clerk of Court is directed to enter judgment accordingly. Ordered by Senior Judge Allyne R. Ross on 8/1/2011. (Robotti, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------JULIANO TORRES-CUESTA,
Plaintiff,
-againstFRANCIS BERBERICH, EDWIN BENITEZ,
ANDREW BUTORAC, and THE UNITED STATES
OF AMERICA,
Defendants.
--------------------------------------------------------------------ROSS, United States District Judge:

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08-CV-1382 (ARR) (LB)
NOT FOR ELECTRONIC
OR PRINT PUBLICATION
OPINION & ORDER

On July 11, 2011, the instant action proceeded to a bench trial before me. Plaintiff
Juliano Torres-Cuesta (“plaintiff” or “Torres”) alleges that, on September 6, 2005, the individual
defendants – New York City Police Department (“NYPD”) Detectives Francis Berberich and
Edwin Benitez and Drug Enforcement Administration (“DEA”) Special Agent (“SA”) Andrew
Butorac – used excessive force against him in effecting his arrest in Queens, New York.
Pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), plaintiff seeks monetary damages against those officers for violation of his Fourth
Amendment rights. Additionally, under the Federal Tort Claims Act, 28 U.S.C. §§ 1345-46,
1391, 2675 (“FTCA”), plaintiff seeks monetary damages against the United States for the actions
of the arresting officers. The bench trial concluded on July 14, 2011.
I have carefully considered the evidence before me. The parties presented two very
different versions of plaintiff’s arrest at trial. Notably, the only witnesses to that arrest are
plaintiff and the three arresting officers whom he accuses of using excessive force. In order to
decide this case, I therefore must evaluate the credibility of those witnesses. In that regard, I not

1

only question certain statements made by plaintiff during his testimony, but I also have grave
concerns about the testimony of the arresting officers. Whether the parties’ troublesome
testimony is due to faulty perception or memory, embellishment, a disregard for the truth, or
some combination thereof, I cannot say. But I believe that the testimony of each witness, at least
in part, is unreliable. As a result, I cannot determine, with any degree of confidence, what in fact
transpired on the night of September 6, 2005; and after weighing the parties’ testimony, I
conclude that the evidence is in equipoise. Thus, solely because the burden of proof rests on
plaintiff, and despite my concerns about the veracity of the arresting officers, I am constrained to
find that the officers did not use excessive force in violation of the Fourth Amendment and that
they did not commit assault and battery under New York law. Accordingly, I hold that the
arresting officers are not liable under Bivens and the United States is not liable under the FTCA.
BACKGROUND
I.

Undisputed Facts
At approximately 8:30 p.m. on the evening of September 6, 2005, members of DEA Joint

Narcotics Strike Force Group Z-42 (“Group Z-42”) – a law enforcement group comprised of
officers from federal, state, and local law enforcement agencies – located Torres’ vehicle in front
of a garage at 106-33 157th Street in Queens, New York and placed it under surveillance.
Defendants SA Butorac and Detective Berberich were co-case agents and responsible for
overseeing the surveillance. A number of other members of Group Z-42 assisted in the
surveillance, including defendant Detective Benitez and DEA SA Fred DiRenzo. The members
of Group Z-42 were in plainclothes and in separate unmarked vehicles parked in the vicinity of
the garage. Inside the garage, Torres and another individual, Jesse Arriaga, removed cocaine
from a secret compartment in a vehicle in order to transport the drugs elsewhere for sale.

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At approximately 9:30 p.m., Torres exited the garage carrying a bag containing the drugs;
he got into his vehicle and began to drive on 157th Street. In response, multiple members of
Group Z-42 turned their cars onto 157th Street, so that they could apprehend plaintiff. SA
DiRenzo attempted to block Torres’ path by stopping his vehicle in front of Torres’ vehicle on
157th street. Torres then sped up and drove onto the sidewalk in order to get around SA
DiRenzo’s vehicle. After passing SA DiRenzo, Torres turned right onto another street and fled.
SA Butorac and Detectives Benitez and Berberich pursued Torres for approximately five to eight
miles; during the chase, Torres drove erratically, disobeying the speed limit and other traffic
laws.
The chase ended when Torres drove down the 100 block of 88th Avenue in Queens, a
dead-end street. At the dead-end, there was a chain-link fence with a tree-covered hill behind it
that led up to train tracks. On both sides of the street, there were residential homes with
driveways or alleyways between them. Immediately after Torres turned onto 88th Avenue, SA
Butorac, Detective Benitez, and Detective Berberich, respectively, turned onto the street. Torres
stopped his car near the dead-end, and the three officers stopped their vehicles a short distance
behind him. Shortly thereafter, numerous unidentified NYPD officers in marked police cars also
arrived at 88th Avenue. Torres exited his vehicle. After identifying themselves as law
enforcement agents, pointing their firearms at Torres, and shouting various verbal commands at
him, SA Butorac, Detective Benitez, and Detective Berberich arrested Torres, who was unarmed.
As discussed below, Torres and each of the arresting officers gave disparate accounts of the
arrest during their trial testimony. The parties agree, however, that the arresting officers used
force to effect plaintiff’s arrest and that plaintiff sustained injury as a result of that force.
Although the parties dispute the extent of plaintiff’s injuries, they agree that, at the least, he

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sustained multiple abrasions to his face and knees.
Following his arrest, the officers recovered the cocaine from Torres’ vehicle. A
uniformed NYPD officer drove plaintiff back to the garage at 157th Street, where Group Z-42
reconvened. In response to plaintiff’s complaints about pain in his head or face, one of the
officers called an ambulance. The ambulance took plaintiff to St. Vincent’s Catholic Medical
Centers, Mary Immaculate Hospital (“Mary Immaculate Hospital”), where plaintiff was treated
for abrasions to his face and knees. He also received a CAT scan of his head, which was
negative. Torres was discharged around 2:00 a.m. on September 7, 2005, whereupon he was
taken to a DEA office for processing. At approximately 10:15 a.m., after Torres waived his
Miranda rights, SA Butorac and Detective Berberich questioned Torres at the DEA office. The
officers subsequently brought Torres to the Metropolitan Detention Center (“MDC”) in
Brooklyn.
On May 19, 2006, before Judge Sterling Johnson in the Eastern District of New York,
Torres pled guilty to one count of conspiracy to distribute and possession with intent to distribute
a controlled substance. On November 30, 2006, the court sentenced him to 240 months in prison.
II.

Plaintiff’s Testimony about His Arrest
Torres testified that, when he began to drive away from the garage on 157th Street, he

noticed two cars blocking the road behind him and two cars blocking the road in front of him.
Tr. at 47. He claimed that none of the vehicles displayed flashing emergency lights or sounded
sirens at that time. Tr. at 49-50, 123. Torres stated that he thought the individuals in the cars
were drug dealers who were going to rob him, so he began to flee. Tr. at 123. Eight or nine
blocks into the chase, Torres noticed flashing emergency lights on the cars chasing him and at
some point he also heard police sirens. Tr. at 51, 125-126. While it occurred to Torres that the

4

police may have been chasing him, he testified that he was not sure who was in pursuit of him,
because he had heard that robbers use lights and sirens to impersonate police officers. Tr. at 52,
132. Torres stated that he drove erratically and disobeyed traffic laws during the chase because
he was “panicked.” Tr. at 51, 133.
When Torres arrived at the dead-end on 88th Avenue, he exited his vehicle and looked
toward the open end of the street. Tr. at 135. There was a line of cars stopped behind his
vehicle, and seven to ten police officers were standing in the street with their badges displayed
and guns pointed at him. Tr. at 54, 135-136. At the end of the line of cars, he saw a marked
police vehicle. Tr. at 55, 136. Plaintiff testified that at that time he still had his doubts that his
pursuers were in fact police officers as opposed to robbers. Tr. at 136. Torres stated that the
officers began to scream orders at him, which he promptly followed. Tr. at 55. Torres testified
that he complied with the officers’ commands to put up his hands, to put his hands behind his
head, to turn around, and to drop to the ground. Tr. at 55-56, 137. While he was in the process
of complying with the officers’ order to drop to the ground – he had two knees and one hand on
the ground – the officers began to attack him. Tr. at 55, 137.
Torres testified that the attack began with a kick to middle of his back. Tr. at 56-57. The
kick pushed Torres face down on the ground. Tr. at 57. Once he was on the ground, the officers
started kicking and punching him all over his body. Tr. at 57. Torres attempted to shield his
face by crossing his arms in front of his face; he never put his hands underneath his body. Tr. at
57, 60. One of the officers then grabbed and twisted Torres’ left arm behind his back. Tr. at 57,
60. The same officer then put his knee on the back of Torres’ neck and released his weight onto
Torres’ neck several times, smashing his face into the pavement. Tr. at 57-58, 60-61.
Specifically, Torres stated: “And then this person is going . . . like back and forth, like releasing

5

the weight and standing up and releasing the weight on my face, and my face is smashing the
floor in this moment.” Tr. at 58. Torres testified that one of the officers then kicked him in his
left ear. Tr. at 58, 140. This blow to the head put Torres in a trance-like state, in which he felt as
if he were almost asleep. Tr. at 58. He testified that, in this state, he felt no more pain, but he
heard the officers curse at him, as if he were “inside of a swimming pool” and he could “hear
people outside screaming.” Tr. at 58. Then, all of a sudden, one of the officers screamed “stop,”
and the officers stopped hitting Torres. Tr. at 58. Torres briefly believed that the attack had
ended, but then he was awakened from his dazed state by a strong pain in his left arm. Tr. at 59,
64. Torres claimed that the pain in his arm was caused by the officers lifting him up by his
handcuffs. Tr. at 59. Torres started screaming that the officers were breaking his arm. Tr. at 59.
The officers told him to shut up, but Torres continued screaming, until one of the officers
loosened his handcuffs. Tr. at 59.
Subsequently, the officers sat Torres by the fence at the dead-end while they recovered
the drugs from Torres’ vehicle. Tr. at 65. Several officers, including Detective Berberich,
questioned Torres about where he was taking the drugs and why he fled. Tr. at 66-67.
Afterward, the officers lifted Torres up, walked him over to the police car, and threw him against
the hood of the car. Tr. at 68. His chest hit the hood of the car, and he went down on his knees
in front of the hood. Tr. at 68. One of the officers searched Torres and took two beepers off of
his waistband. Tr. at 68. Torres was then placed in the back of a police car and driven back to
the 157th Street garage. Tr. at 70.
Torres testified that at the garage SA Butorac questioned him about where he was taking
the drugs. Tr. at 71. When Torres refused to answer, SA Butorac threatened to hit him with a
foot-long black flash light. Tr. at 71-72. As Torres sat in the garage, his head became very

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painful, and he began asking to go to the hospital. Tr. at 73. When the ambulance arrived, one
of the paramedics examined Torres. Tr. at 73. After the paramedic finished the examination,
Detective Benitez asked the paramedic to “make a good report,” and the paramedic smiled and
agreed. Tr. at 74. Detective Benitez rode in the ambulance with Torres to the hospital. Tr. at
74. At the hospital, Torres was first seen by a nurse. Tr. at 75-76. Torres testified that one of
the officers asked her to “make a good report,” and she agreed. Tr. at 75.
The officers then brought Torres to a DEA office. Torres testified that, during
questioning by Detective Berberich and SA Butorac at the office, he apologized for leading the
officers on a high-speed chase. Tr. at 82. In response, the officers pressed him as to whether he
was apologizing for resisting arrest and refusing to follow the officers’ commands at the deadend. Tr. at 82. Torres testified that he insisted to the officers that he was not apologizing for
resisting arrest or refusing to follow commands because he did not take those actions. Tr. at 8283. Detective Berberich then gave Torres a piece of paper and a pen and asked him to write a
statement saying that he did not understand the officers’ commands at the dead-end. Tr. at 83.
Detective Berberich said that such a statement would make Torres “look good before the judge.”
Tr. at 83. Torres refused to write the statement because he felt as if Detective Berberich was
trying to blame him for the arresting officers’ attack. Tr. at 83. Torres testified that the attack
was not his fault and that he complied with the officers’ commands. Tr. at 83. When Torres
refused to write the statement, Detective Berberich angrily pulled the paper back. Tr. at 83.
In the weeks following his arrest, while he was at the MDC, Torres had significant pain
in his face, head, neck, left ear, left wrist, and left thumb. Tr. at 90. Over time, much of the pain
subsided. Tr. at 91. Torres, however, continues to have intermittent pain in his left ear, and he
has pain in his left wrist and thumb when he applies pressure to those areas. Tr. at 93-95.

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Additionally, in the months following his arrest, Torres developed chronic, daily pain in his
neck; an occasional feeling in his back that he is being pricked with needles; and occasional
numbness in his hands and fingers. Tr. at 93-94, 99, 106, 107-108. Torres testified that his
injuries have severely limited his daily activities and that he has trouble sleeping due to chronic
pain. Tr. 108-112.
III.

The Officers’ Testimony about Torres’ Arrest
The officers’ testimony about Torres’ arrest can be broken down into five relevant

events: (i) the high-speed chase ending at the dead-end on 88th Avenue, (ii) the direction in
which Torres fled from the officers at the dead-end, (iii) the force used against Torres after the
officers tackled him, (iv) their actions immediately following Torres’ arrest, and (v) Torres’ postarrest interview. Set forth below is a summary of the officers’ testimony regarding those five
events. Where the officers have testified consistently, the summary is derived from the
testimony of all three officers. The officers’ testimony, however, materially diverges with
respect to two events: the direction in which Torres fled and the force used against him on the
ground. In addressing those events, I will separately discuss each individual officer’s testimony.
A.

The High-Speed Chase Ending at the Dead-End on 88th Avenue

With respect to the high-speed chase, the officers testified that, as Torres started to drive
toward SA Direnzo’s vehicle on 157th Street, SA Direnzo’s vehicle had its emergency lights
activated. Tr. at 215, 310, 423. After Torres began to flee, Detective Berberich and SA Butorac
activated their vehicles’ emergency lights and sirens. Tr. at 312, 425. Their vehicles’
emergency lights and sirens were activated throughout the duration of the pursuit. Tr. 312, 428.
Detective Benitez’s vehicle was not equipped with emergency lights or sirens. Tr. at 195.
At the end of the high-speed chase, Torres turned onto 88th Avenue and stopped his

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vehicle near the dead-end. Tr. at 223, 317. SA Butorac stopped his car approximately twenty to
twenty-five feet behind Torres’ vehicle. Tr. at 368. Detective Benitez stopped his vehicle
directly behind SA Butorac’s vehicle, and Detective Berberich stopped directly behind Detective
Benitez’s vehicle. Tr. at 224, 470-471. SA Butorac and Detective Berberich still had their
vehicles’ emergency lights and sirens activated. Tr. at 223, 317, 434. The officers immediately
exited their vehicles and drew their weapons. Tr. at 224, 370, 471. SA Butorac was in the center
of the block, facing the dead-end, and Detective Benitez was behind SA Butorac to his right. Tr.
at 473. After exiting his vehicle, Detective Berberich proceeded toward the dead-end on the left
sidewalk. Tr. at 434-435. He moved into a left flanking position; in other words, he moved
down the left sidewalk toward the dead-end, past the position of SA Butorac and Detective
Benitez, closer to the dead-end than those officers, and to the side of Torres. Tr. at 434-435,
473-474.
When Torres opened his vehicle door and exited, SA Butorac – who was standing behind
his vehicle door for cover – immediately told him to get back into his vehicle, but Torres did not
comply. Tr. at 318-319. Torres got out of his vehicle and stood next to it, facing SA Butorac.
Tr. at 252-253, 319-320, 369. The officers identified themselves as police and screamed several
verbal commands at Torres, including telling him to get his hands up and to get on the ground.
Tr. at 226, 320, 372, 435-436. The officers did not order Torres to put his hands behind his head;
they testified that they would not give such a command because a suspect with his hands behind
his head may be able to reach for a weapon. Tr. at 227, 322, 436-437. For a “split-second,”
Torres stood with his arms bent at about a ninety-degree angle, so that his hands were in front of
him and above his waist. Tr. at 369-370. Torres began looking to the left and right, apparently
searching for a place to flee. Tr. at 319. He looked “disoriented,” “confused,” “anxious,” and

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“nervous” when he was standing next to his vehicle. Tr. at 371. The officers considered Torres
armed and dangerous, because he had just led them on a high-speed chase, and because it was
their experience that a suspect trafficking in drugs may be armed, dangerous, and under the
influence of narcotics. Tr. at 226, 321-322, 438-439. SA Butorac began to approach Torres. Tr.
at 320. At that point, Torres turned his back toward SA Butorac and fled. Tr. at 323-324.
B.

The Direction in which Torres Fled

The officers’ testimony is materially inconsistent with respect to the direction in which
Torres fled. SA Butorac testified about the direction that Torres fled by reference to the
positions on a clock; if the center of the dead-end was 12 o’clock, SA Butorac testified that
Torres fled from him in the direction of 11 o’clock (that is, to SA Butorac’s left), toward the
second house from the dead-end. Tr. at 377. SA Butorac stated that Torres fled in that direction
for five to fifteen feet. Tr. at 325. He specifically testified that Torres did not flee in the
direction of 12 o’clock or 1 o’clock. Tr. at 377-378. He also testified that Torres never ran
toward the open end of 88th Avenue. Tr. at 378. By contrast, Detective Benitez testified that
Torres ran toward the right, at an angle toward the fence or the alley at the dead-end. Tr. at 224,
251. Detective Benitez believed that Torres “was either going to hop over the fence or make a
right in the alley.” Tr. at 224. Detective Benitez stated that he was directly behind SA Butorac
when Torres fled. Tr. at 225, 253. Like SA Butorac, Detective Benitez testified that Torres did
not run toward the center of the dead-end or toward the open end of the street. Tr. at 251.
Lastly, Detective Berberich testified that, after he moved into his left-flank position to the side of
Torres, he saw Torres run toward the dead-end for five to fifteen feet. Tr. at 474-478. From his
vantage point, it appeared that Torres ran directly toward the center of the dead-end, in the
direction of the train tracks behind the fence; however, Detective Berberich could not be certain

10

whether Torres in fact ran at an angle toward the fence. Tr. at 474-478. Detective Berberich
testified that Torres then reversed direction 180 degrees and ran directly toward the open end of
the street – that is, in the direction of SA Butorac – for ten to fifteen feet. Tr. at 474-478, 480481, 483-484.
C.

The Force Used Against Torres

The officers testified consistently about certain aspects of the force used against Torres.
But with respect to material facts about the struggle on the ground, they gave inconsistent
accounts. Moreover, Detective Berberich’s trial testimony was inconsistent with his deposition
testimony regarding several material facts about the struggle with Torres.
The officers testified that as Torres fled they all tackled him from behind at
approximately the same moment. Tr. at 228, 254, 325-326, 482. Torres fell on the ground face
forward, and the officers fell on his back. Tr. at 229-230, 254, 326, 482. On the ground, SA
Butorac positioned himself on Torres’ left side (that is, the side of Torres’ left arm) and
Detective Berberich was across from him, on Torres’ right side; Detective Benitez was also
located on Torres’ left side, to SA Butorac’s right, kneeling across Torres’ legs. Tr. at 230-231,
331-332, 445, 484.1 The officers yelled multiple commands at Torres, including telling him to
give them his hands, while Torres actively resisted arrest by locking his hands beneath his chest
and kicking and flailing his legs multiple times. Tr. at 231-232, 326-327, 440-441, 484-486. To
gain Torres’ compliance and place him under arrest, the officers used force against Torres during
1

At his deposition in this case, Detective Benitez testified that he could not remember where Detective Berberich
and SA Butorac were relative to Torres on the ground. Tr. at 261. At trial, though, he testified that SA Butorac had
his hand on top of Torres’ head and that Detective Berberich was located by Torres’ torso area. Tr. at 231. On
cross-examination, Detective Benitez explained the discrepancy between his deposition testimony and his trial
testimony, stating: “During my deposition – I was called to a deposition that I had absolutely no clue about the case
five years later. I didn’t review anything. I didn’t remember anything at that point.” Tr. at 262. Upon further
questioning, however, Detective Benitez admitted that prior to his deposition he had reviewed multiple case-related
documents, including photographs, arrest reports, and the case file, and that he had spoken to his co-defendants and
attorneys about the case. Tr. at 263. He then clarified that, since his deposition, he had been thinking more about
the case; thus, he was able to recall more details. Tr. at 263-264.

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a struggle that lasted only “seconds.” Tr. at 233, 333, 402, 488.
SA Butorac testified that he used force against Torres in an attempt to get Torres to
release his arms from underneath him. Tr. at 331-332. SA Butorac stated that he used his left
thumb to apply force to pressure points behind Torres’ left ear and along the left side of his jaw
bone. Tr. at 328-329. SA Butorac testified that he then delivered one to three knee strikes to
Torres’ left thigh. Tr. at 330. Those tactics failed to gain Torres’ compliance. Tr. at 329-331.
Detective Berberich testified that he saw SA Butorac use a knee strike against Torres. Tr. at 448.
Detective Berberich testified that he also used force in an effort to get Torres to release
his hands. During the struggle with Torres, he positioned himself on his knees by the middle of
Torres’ torso. Tr. at 484. There, he first used a wrestling technique called an “arm bar.” Tr. at
442, 487. Using that technique, he attempted to use his forearm and hand as a pry bar to lift
Torres’ arm up. Tr. at 442. That technique failed to get Torres to release his arm. Tr. at 442443. Detective Berberich then administered a scapula blow – a punch between Torres’ shoulder
blades designed to cause his “arm to go dead.” Tr. at 443. SA Butorac testified that he saw
Detective Berberich administer that blow, which he described as one punch to back, between the
shoulder blades, not near the neck. Tr. at 332, 385. As a result of the scapula blow, Detective
Berberich was able to pull one of Torres’ arms free. Tr. at 445-446. Detective Berberich
handcuffed that arm. Tr. at 446.
Detective Berberich testified that, at the time he pulled Torres’ first arm free, he felt
Torres kick him in the back. Tr. at 441, 488-489. His testimony in this regard is inconsistent not
only with his own testimony, but also with that of Detective Benitez. As discussed above,
Detective Berberich testified that, on the ground, he positioned himself on his knees by Torres’
torso, not near Torres’ legs. Tr. at 484. Detective Benitez, on the other hand, did position

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himself near Torres’ legs. According to Detective Benitez’s testimony, when Torres landed face
down on the ground, he fell on top of Torres’ body, with his legs on top of Torres’ legs. Tr. at
260. Torres kicked a couple of times while Detective Benitez was on top of him, and at least one
kick struck Detective Benitez’s legs. Tr. at 230, 259-260. Detective Benitez then immobilized
Torres’ legs by kneeling on them. Tr. at 231, 259. Thus, at the time Torres kicked him, not only
was Detective Berberich not positioned near Torres’ legs, but according to Detective Benitez’s
testimony, Detective Benitez was either lying or kneeling on top of Torres’ legs.
Detective Berberich also testified that, at the time he pulled Torres’ first arm free, Torres
turned his head toward him, at which point Detective Berberich believed that Torres was going
to bite his testicles or his leg. Tr. at 446, 489, 494-495. Detective Berberich’s testimony – that
Torres’ head was insecure and that he was in danger of being bitten – is inconsistent with
Detective Benitez’s and SA Butorac’s trial testimony. Furthermore, Detective Berberich gave
conflicting trial and deposition testimony on this point. At trial, Detective Benitez testified that,
on the ground, SA Butorac had his hand on top of Torres’ head, “pressing his head against the
pavement so that he couldn’t move.” Tr. at 231. Likewise, SA Butorac testified that, although
he did not believe he had his hand on Torres’ head during the entire struggle, “when [Torres] fell
to the ground, his head was secured.” Tr. at 381, 402. At that time, SA Butorac had his hand on
the left side of Torres’ face – the side facing away from Detective Berberich. Tr. at 381-382. As
previously discussed, during the struggle, SA Butorac then used his left thumb to apply force to
pressure points behind Torres’ left ear and along the left side of his jaw bone. Tr. at 328-329,
381-382, 402. During his deposition testimony and initially at trial, Detective Berberich testified
that he had no recollection of SA Butorac putting his hand on Torres’ head; however, during
cross-examination, he changed his testimony to conform to that of SA Butorac and Detective

13

Benitez, stating: “I may have seen Butorac with his hand on his head at one time, but then when
Torres turned his head, I didn’t see Butorac’s hand.” Tr. at 490-492.2 Moreover, although he
testified during his deposition that his testicles were not, in fact, near Torres’ head, he
contradicted that testimony at trial. Tr. at 493-494.3
Detective Berberich testified that, because he feared being bitten, he attempted to secure

2

In relevant portion, Detective Berberich’s trial testimony states:
Q So Special Agent Butorac was not in fact securing Mr. Torres’s head. Right?
A I guess not.
Q In fact, you had not seen any officer touch Mr. Torres in the head or neck up until that point. Right?
A I don’t recall seeing anyone touching him in the head.
Q So, so is it true to say that you had not seen any officer touch him in his head or neck up until that point?
A. At this time in my testimony and my recollection of the incident, I don’t recall seeing anyone – I may have
seen Butorac with his hand on his head at one time, but then when Torres turned his head, I didn’t see
Butorac’s hand. And I felt that I may have been trying to be bitten and I, I relocated and repositioned my
body so that I would not get hurt.
Q . . . . Do you remember being asked the following question and giving the following answer [at your
deposition]:
“Question: Before you put your knee on his body, did you see any officer touch him in the head or neck.”
“Answer: To the best of my recollection, no.”
A If that’s what my testimony was at the time I made deposition, that’s what my recollection was at that
particular time, sir.
Tr. at 490-491.
3

In relevant portion, Detective Berberich’s trial testimony states:
Q Now, your testicles were not near Mr. Torres’s head, were they?
A My – they weren’t – if he had reached his head up, he could have bitten me. In my opinion, he would have
had an opportunity to bite me in my cro[t]ch or inner leg.
Q And, and would you say that then your testicles were near his, near his head?
A I, I felt that my leg was in a position where I could get bitten and I wanted to get my leg out of there to
protect myself.
Q And my question is whether you would say that you testicles were near his head.
A My whole body was near his head. My leg was near his head. Connected to the upper extremity of my leg
is the human genitalia, my testicles. Was it too close for comfort? In my opinion, yes, sir.
....
Q Turning to page 269 of the deposition, do you recall being asked the following question and giving the
following answer?
“Question: I believe that you stated earlier that you were afraid he might bite you in the testicles. Were
your testicles near his head at that time?”
“Answer: No. To answer your question, the answer is no, I don’t recall my testicles near his head. I have
had in past occasions had people try to bite me while effecting an arrest and I don’t want to get bitten in the
testicles. I don’t want to get bit period.”
Do you recall being asked that question and giving that answer?
A Yes, I do.
Tr. at 493-494.

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Torres’ head by placing his knee on Torres’ back for a “brief time” and using some of his body
weight, but not his full weight, to hold down Torres. Tr. at 446-447, 494-495. During his trial
testimony, Detective Berberich denied placing his knee on Torres’ neck or in that vicinity. Tr. at
495.4 That trial testimony, however, is inconsistent with his deposition testimony. At his
deposition, Detective Berberich testified: “To prevent his head going and making, getting closer
to me. I tried to remove my body away from where his head was. So I put [my knee] towards
the back of his shoulder towards his neck area.” Tr. at 496. He further testified at his deposition:
“My knee made contact with his body. I don’t know if it actually made contact with his neck or
it didn’t. It was in that vicinity, that is where I put my knee . . . .” Tr. at 496.
Finally, to get Torres to release his second arm, Detective Berberich testified that he
utilized a “twisting technique” with the handcuffs on Torres’ free arm. Tr. at 447. Detective
Berberich stated that he twisted the handcuffs to inflict pain in Torres’ wrist while he
commanded Torres to release his other arm. Tr. at 447, 499. Following this twisting technique,
either SA Butorac or Detective Benitez was able to pull Torres’ other arm free, and the officers’
handcuffed both arms behind his back. Tr. at 233, 333, 448.
In sum, the officers gave different accounts of the force used against Torres on the
ground. Detective Berberich testified that he used the following force: an arm bar, a scapula

4

In relevant portion, Detective Berberich’s trial testimony states:
Q Now, to secure Mr. Torres’s head, you put your knee on the area of the back of his neck. Right?
A On his back, sir.
Q Well, it was – it was towards the back of his shoulder towards his neck area. Right?
A Towards on the back – on his back but not on – I didn’t put it on his neck.
Q Do you know now that you did not put your knee on to his neck?
A To the best of my recollection, I didn’t place my knee on his neck.
Q And did you place your – your knee in the vicinity of his neck?
A I tried it [sic] put my knee on his back, sir.
Q And did that result in your knee being placed in the vicinity of his neck?
A To the best of my recollection, no, sir.
Tr. at 495.

15

blow, a knee on Torres’ back, and a twisting technique with Torres’ first cuffed arm. Tr. at 442443, 445-447. He also testified that he saw SA Butorac use a knee strike against Torres. Tr. at
448. SA Butorac testified that he used the following force: pushing pressure points on Torres’
left ear and jaw and one to three knee strikes against his left thigh. Tr. at 328-330. SA Butorac
also saw Detective Berberich use a scapula blow against Torres. Tr. at 332. Detective Benitez
testified that he did not use any force against Torres aside from kneeling on his legs and grasping
his arms. Tr. at 232. Detective Benitez did not see Detective Berberich use a scapula blow
against Torres or put a knee on his back. Tr. at 264. Despite being positioned on top of his legs,
Detective Benitez did not see SA Butorac use knee strikes against Torres’ left thigh. Tr. at 265.
D.

The Officers’ Actions Following Torres’ Arrest

After the officers handcuffed Torres, he was searched briefly for weapons. Tr. at 335,
450. The officers then assisted him to his feet by rolling him to his right, bringing him to his
knees, and standing him up. Tr. at 336. The officers lifted Torres by grabbing his bicep,
underarm, and waist areas. Tr. at 234, 387, 450. The officers testified that Torres was not lifted
up by his handcuffs. Tr. at 234, 336, 450. In that regard, Detective Berberich stated: “If you
lifted somebody . . . up with the handcuffs, there is a possibility you can pop the shoulder and
you don’t want to do that. You are not trying to inflict broken bones and things like that.” Tr. at
451. After the officers stood Torres up, SA Butorac checked to ensure that the handcuffs were
not too tight by sticking his little fingers inside the cuffs. Tr. at 335. The officers did not use
any force against Torres after they handcuffed him. Tr. at 233, 335-336, 450-451.
The officers then brought Torres to an area near a car and did a more thorough search of
him. Tr. at 336, 451. None of the officers questioned Torres at the dead-end. Tr. at 337, 453.
Detective Berberich, however, explained to Torres that he had a “small window of opportunity”

16

to cooperate with the investigation. Tr. at 453. Inside Torres’ vehicle, in plain view, SA Butorac
observed the narcotics that Torres was transporting. Tr. at 338.
The officers then returned to the garage at 157th Street. Tr. at 339. There, in response to
Torres’ complaints of pain, Detective Berberich called an ambulance. Tr. at 456. SA Butorac
and Detective Berberich testified that, although they each had a flashlight at the garage, they did
not threaten Torres with it. Tr. at 342, 457-458. When the paramedics arrived, SA Butorac had
no interaction with them. Tr. at 340-341. Detective Berberich told the paramedics Torres’
name, but that was the extent of his interaction with them. Tr. at 458. Detective Benitez testified
that he explained to the paramedics that Torres was injured when the officers’ tackled him. Tr.
at 238. Detective Benitez stated that he did not know the paramedics and that he did not ask
them to “make a good report.” Tr. at 239.
Detective Benitez and SA DiRenzo rode in the ambulance with Torres to Mary
Immaculate Hospital. Tr. at 238-239, 459. Detective Benitez testified that at the hospital he did
not tell any personnel to “make a good report.” Tr. at 242.
E.

Torres’ Post-Arrest Interview

At approximately 10:15 a.m. on the morning of September 7, 2005, at a DEA office, SA
Butorac and Detective Berberich questioned Torres after he waived his Miranda rights. The
interview lasted approximately 45 minutes. Tr. at 408. SA Butorac testified that at the outset of
the interview Torres apologized for resisting arrest on the prior evening. Tr. at 410-411. SA
Butorac could not recall whether Torres volunteered this apology or whether he apologized in
response to questioning by the officers. Tr. at 409-410. He testified, though, that he did not ask
Torres to apologize. Tr. at 412. SA Butorac took less than one page of notes during the
interview; the notes contained eleven lines of text. Tr. at 408; Pl. Ex. 16. The first three lines of

17

his notes state: “10:15. Admits he should not have run. Apologized for not listening and
resisting officers.” Tr. at 409. The ninth and tenth lines of his notes respectively state: “Aware
of police behind him” and “Realized didn’t follow directions.” Pl. Ex. 16. SA Butorac denied
writing that Torres apologized in his notes in order to “make a good record.” Tr. at 411.
Detective Berberich also testified about the interview of Torres. He testified that Torres
admitted that he did not listen to the officers’ commands. Tr. at 524. Detective Berberich stated
that during the interview he gave Torres a pen and a pad and asked him to make a written
statement about his involvement in the drug trafficking. Tr. at 525. Detective Berberich told
Torres that he would present the statement to the U.S. Attorney’s office. Tr. at 525. Detective
Berberich testified that he did not recall asking Torres to write an apology. Tr. at 525.
Following the interview, SA Butorac wrote an official report, known as a DEA-6, of the
interview. Tr. at 411; Pl. Ex. 28. The DEA-6 is dated September 7, 2005. Pl. Ex. 28. Paragraph
5 of that report states:
TORRES informed SA Butorac and Det. Berberich that he wanted to apologize
for fleeing and resisting officers. TORRES stated he didn’t pull over because he
was afraid and that he had drugs in his vehicle. TORRES indicated when he came
to the dead-end he panicked. TORRES admits that he resisted arrest by refusing
lawful commands. TORRES stated he recalled attempting flee [sic] the area on
foot, and not immediately placing his hands behind his back.
Pl. Ex. 28. at 2. SA Butorac testified that he is aware that DEA-6 reports may be used as
evidence at trial. Tr. at 411. He denied, however, that he wrote paragraph 5 of the DEA-6 report
in order to “make a good record for prosecutors.” Tr. at 412.

18

IV.

Medical Testimony
At trial, three witnesses presented medical testimony about Torres’ injuries stemming

from his arrest. Dr. Sappho Ong was the emergency room physician at Mary Immaculate
Hospital who treated Torres on the night of his arrest. Tr. at 603, 610-611. Lieutenant Melinda
Ruiz was a physician’s assistant at the MDC, who conducted Torres’ intake screening and
physical examination on September 8, 2005. Tr. at 616, 621-622; Def. Ex. I. Dr. Robert
Beaudouin is a physician at the MDC who examined plaintiff on three occasions, in March 2006,
January 2007, and March 2009. Tr. at 563-564, 567, 581, 592.
Neither Dr. Ong nor Lieutenant Ruiz had any independent recollection of treating Torres.
Tr. at 604, 621. Dr. Ong testified, based on her review of the medical records of her treatment of
Torres, that she treated him for multiple abrasions to his face and knees. Tr. at 611. She ordered
a CAT scan of his head, which was negative. Tr. at 611-612. She did not treat Torres for
injuries to the neck, back, wrist, thumb, left ear, or torso. Tr. at 611. Lieutenant Ruiz testified,
based on her review of the medical records of her treatment of Torres, that when she examined
Torres, he had multiple abrasions to both sides of his face, his upper and lower extremities, his
left ear, and his left thumb; his left thumb also had limited range of motion. Tr. at 623-625; Pl.
Ex. 35. She did not note any injury to Torres’ neck in her records. Tr. at 624.
Dr. Beaudouin testified that, on each occasion he saw Torres, he treated him for chronic
neck pain and decreased range of motion in the neck. Tr. 568, 581-582, 593. In March 2006,
Dr. Beaudouin referred plaintiff to a neurologist for a follow-up consultation about his neck and
prescribed him pain medication. Tr. at 569. The neurologist diagnosed plaintiff “with
cervicalgia with decreased range of motion, cervical muscle spasm, [and] left wrist strain.” Tr.
at 582. She prescribed muscle relaxers and ordered an MRI of Torres’ neck to rule out disc

19

herniation if he did not respond to the muscle relaxers. Tr. at 582-584. When Dr. Beaudouin
examined Torres in January 2007, Torres reported worsening neck pain and stiffness and tingling
in his back and fingers. Tr. at 582. Dr. Beaudouin prescribed pain medication. Tr. 582. In
March 2009, when Dr. Beaudouin again examined him, Torres reported constant neck pain and a
decreased range of motion in his neck. Tr. at 593. Dr. Beaudouin concluded that Torres had
tenderness in the neck and that he did not have a full range of motion. Tr. at 594-595. Dr.
Beaudouin prescribed him pain medication and submitted a consult for him to have an MRI of
his neck. Tr. at 596.
I note that, at trial, Torres showed signs of having an injury to his neck consistent with
Dr. Beaudouin’s testimony. Throughout trial, Torres appeared to have a limited ability to move
his neck. In particular, during his testimony, Torres did not turn his neck to the left or right;
rather, in order to look to either side, Torres turned his entire torso while keeping his neck static.
V.

The Parties’ Arguments at Trial
Plaintiff argued that the evidence at trial demonstrated that, after he exited his vehicle at

the dead-end on 88th Avenue, he followed the officers’ commands and submitted to their
authority. He asserted that he did not flee or resist arrest. Rather, while he was submitting to
their authority, the officers attacked him without provocation and utilized an objectively
unreasonable amount of force under the Fourth Amendment and New York law in effecting his
arrest. As a result of the officers’ use of unreasonable force, plaintiff sustained permanent
injuries, including a chronic neck injury that severely limits his activities. Plaintiff argued that
the arresting officers’ version of events at the dead-end is incredible, as demonstrated by their
inconsistent statements about material facts and the implausible, self-serving statements
memorialized in SA Butorac’s notes and DEA-6 report.

20

By contrast, defendants argued that the evidence at trial demonstrated that Torres fled
from the arresting officers and resisted arrest after he exited his vehicle at the dead-end. The
officers, in response, used reasonable force under the Fourth Amendment and New York law to
effect plaintiff’s compliance. Defendants argued that plaintiff sustained no more than minor
abrasions as a result of the officers’ use of force; they claimed that plaintiff does not have a
chronic neck injury, as evidenced by the fact that he did not complain about that injury in the
days following his arrest. Defendants also argued that plaintiff’s version of events at the deadend is not credible, as demonstrated by the facially implausible statements that he made during
his testimony.
DISCUSSION
I.

Standard of Proof
“In a civil case, the plaintiff bears the burden of proving the elements of his claim by a

preponderance of the evidence.” Brown v. Lindsay, Nos. 08-CV-351, 08-CV-2182, 2010 U.S.
Dist. LEXIS 26101, at *29-*30 (E.D.N.Y. March 16, 2010). “To establish a fact by a
preponderance of the evidence means to prove that the fact is more likely true than not true.” Id.
at *30 (citing Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)). “The preponderance standard
is no more than a tie-breaker dictating that when the evidence on an issue is evenly balanced, the
party with the burden of proof loses.” United States v. Gigante, 39 F.3d 42, 47 (2d Cir. 1994),
amended, 94 F.3d 53 (2d Cir. 1996); see Kosakow v. New Rochelle Radiology Assocs., 274 F.3d
706, 731 (2d Cir. 2001) (“[W]here the burden of proof is a preponderance of the evidence, the
party with the burden of proof would lose in the event that the evidence is evenly balanced.”).

21

II.

Legal Standards
A.

Excessive Force under the Fourth Amendment

“Where . . . [an] excessive force claim arises in the context of an arrest . . . of a free
citizen, it is most properly characterized as one invoking the protections of the Fourth
Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against
unreasonable . . . seizures’ of the person.” Graham v. Connor, 490 U.S. 386, 394 (1989). Under
Bivens, a plaintiff may recover money damages against an officer acting under color of federal
law for using excessive force in violation of the Fourth Amendment in effecting his arrest. Id. at
394 n.9; Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995).
“Police officers’ application of force is excessive, in violation of the Fourth Amendment,
if it is objectively unreasonable ‘in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.’” Maxwell v. City of New York, 380
F.3d 106, 108 (2d. Cir. 2004) (citing Graham, 490 U.S. at 397). “[T]he right to make an
arrest . . . necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it.” Graham, 490 U.S. at 396. Indeed, “not every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers . . . violates the Fourth Amendment.”
Id. (citations and internal quotation marks omitted). “The ‘reasonableness’ of a particular use of
force must be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight.” Id. Because “[t]he test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical application . . . , however, its
proper application requires careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting arrest or attempting to

22

evade arrest by flight.” Id. (citations and internal quotation marks omitted). “The calculus of
reasonableness must embody allowance for the fact that police officers are often forced to make
split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -about the amount of force that is necessary in a particular situation.” Id. at 396-397.
B.

The Federal Tort Claims Act

Under the FTCA, the United States is liable for the “negligent or wrongful acts or
omissions of any employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person, would be liable to
the claimant in accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1). Although the FTCA generally bars claims of assault and battery committed
by federal employees, it permits such claims when the alleged assault and battery was committed
by “investigative or law enforcement officers.” 28 U.S.C. § 2680(h). An “investigative or law
enforcement officer” is defined as “any officer of the United States who is empowered by law to
execute searches, to seize evidence, or to make arrests for violations of Federal law.” Id. Thus,
in this case, the United States may be held liable if the arresting officers, acting within the scope
of their employment, committed an assault and battery against plaintiff under New York law.
“Under New York law, an ‘assault’ is an intentional placing of another person in fear of
imminent harmful or offensive contact. A ‘battery’ is an intentional wrongful physical contact
with another person without consent.” Girden v. Sandals Int’l, 262 F.3d 195, 203 (2d Cir. 2001)
(citations and internal quotation marks omitted). To establish that a law enforcement officer
committed assault and battery, a plaintiff must prove that the officer’s “conduct was not
reasonable within the meaning of the New York statute concerning justification of law
enforcement’s use of force in the course of their duties.” Nimely v. City of New York, 414 F.3d

23

381, 391 (2d Cir. 2005) (citations omitted). That statute provides, in relevant part: “A police
officer or a peace officer, in the course of effecting or attempting to effect an arrest . . . may use
physical force when and to the extent he or she reasonably believes such to be necessary to effect
the arrest . . . .” N.Y. Penal Law § 35.30 (1). “Thus, in effect, the test for whether a plaintiff can
maintain [a state-law assault-and-battery] cause of action against law enforcement officials is . . .
the exact same test as the one used to analyze a Fourth Amendment excessive force claim.”
Kavazanjian v. Rice, No. 03-CV-1923 (FB) (SMG), 2008 U.S. Dist. LEXIS 103881, at *21
(E.D.N.Y. Dec. 22, 2008) (alteration and ellipsis in original; citation and internal quotation
marks omitted).
III.

Analysis
At the outset, I note that the parties have stipulated that the arresting officers were acting

under color of federal law and within the scope of their employment with the United States when
they arrested plaintiff on September 6, 2005. Accordingly, the only question I must decide under
the Fourth Amendment and New York law is whether, in light of all the facts and circumstances
confronting them, the officers used objectively unreasonable force in effecting plaintiff’s arrest.
At trial, the parties presented two very different accounts of plaintiff’s arrest. According
to plaintiff’s testimony, at the end of the high-speed chase, he exited his vehicle, faced the
officers, promptly followed their commands, and clearly manifested his submission to their
authority. While plaintiff was surrendering, the officers gratuitously and severely beat him.
Under plaintiff’s version of events, without question, the officers’ actions would be objectively

24

unreasonable.5 By contrast, according to the arresting officers’ testimony, at the dead-end,
plaintiff exited his vehicle, disobeyed the officers’ commands, fled on foot and, after the officers
tackled him, actively resisted arrest by locking his hands beneath his chest and kicking and
flailing his legs. The officers then used only the force necessary to subdue plaintiff and pull his
hands free, so that they could handcuff plaintiff behind his back. Under the officers’ version of
events, without question, their actions would be objectively reasonable.6
Because the parties have presented such disparate versions of plaintiff’s arrest, in order to
determine whether the officers acted reasonably under the circumstances of this case, I must
resolve two critical factual questions. First, at the dead-end, did plaintiff take actions that a
reasonable officer would have understood as submission to authority as opposed to resistance? If
plaintiff did clearly surrender, and the officers used any force against him after he surrendered,
that force would be objectively unreasonable. Second, what level of force did the officers use
against plaintiff in effecting his arrest? Even if plaintiff fled or otherwise resisted arrest, if the
officers’ used force against him that was grossly disproportionate to his resistance and
unnecessary to effectuate his arrest, that force would be objectively unreasonable.
The trial evidence regarding these two critical questions is limited. Plaintiff’s testimony
and the testimony of the arresting officers is the only testimony before me regarding plaintiff’s
arrest, and the minimal documentary evidence presented at trial sheds no light upon what
5

See, e.g., Davis v. Rodriguez, 364 F.3d 424, 437 (2d Cir. 2004) (affirming district court’s jury instructions because
the court “made it clear that if the jury believed [plaintiff’s] story including that he had docilely submitted to the
blows of [defendants], the jury would have to find the officers liable for unconstitutional use of excessive force.”);
Pierre-Antoine v. City of New York, No. 04 Civ. 6987 (GEL), 2006 U.S. Dist. LEXIS 28963, at *12-*13 (S.D.N.Y.
May 9, 2006) (finding that defendants’ actions would be objectively unreasonable if plaintiff established that the
“officers repeatedly punched, kicked, and stomped on him, despite the fact that he did not fight back and despite his
repeated attempts to explain that he was disabled.”).
6
See, e.g., Graham, 490 U.S. at 396; McKenna v. Hughes, No. 06-CV-2895, 2008 U.S. Dist. LEXIS 5362, at *8-*9
(E.D.N.Y. Jan. 23, 2008) (where plaintiff was non-compliant with officers’ orders, verbally challenged their
authority, and clenched his fists facing the officers, officers use of force was reasonable); Jackson v. City of New
York, No. 01-CV-10116, 2005 U.S. Dist. LEXIS 12986, at *112 (S.D.N.Y. June 29, 2005) (finding officer’s use of
force reasonable because plaintiff admitted to struggling with him).

25

transpired at the dead-end. It is therefore necessary to evaluate the witnesses’ credibility to
resolve these factual disputes.
After considering the credibility of the parties, and after weighing their testimony and the
other evidence before me, I conclude that the evidence regarding the two key factual questions in
this case is in equipoise. I thus hold that plaintiff has failed to establish that the officers used
objectively unreasonable force in violation of the Fourth Amendment and New York law.
A.

The Parties Credibility

In assessing the credibility of the parties’ testimony, I recognize the inherent limitations
of their perception and memory. The arrest at issue here took place six years ago, during a few
brief, chaotic moments at the end of a dangerous high-speed chase. Undoubtedly, the individuals
present during that event perceived it slightly differently from each other and thus different
actions stand out in each individual’s mind. Moreover, as time passed after the event, and
especially as subsequent litigation ensued, each individual inevitably reconstructed his memory
in a manner that supported his basic conception of what occurred. As a byproduct of that
process, inaccurate details likely emerged and became engrained in the memory of each witness.
Consequently, some inconsistencies are to be expected in each witness’ testimony; and many of
those inconsistencies may be explained without impugning the witness, as the inculpable result
of misperception or faulty memory. Nonetheless, even taking the foregoing considerations into
account, I have significant concerns about the veracity of the testimony by all the parties in this
case.
i.

Plaintiff’s Credibility

With respect to plaintiff’s testimony, I have concerns about several aspects of his version
of events, including his testimony regarding certain material facts. Specifically, I find the

26

following four aspects of his testimony troubling.
First, I am unconvinced by his testimony that on 157th Street SA DiRenzo blocked his
path without turning on his emergency lights. When SA DiRenzo executed the blocking
maneuver, he was attempting to apprehend plaintiff. I see no reason why he would have blocked
plaintiff’s path without activating his emergency lights.
Second, I have serious doubts about plaintiff’s testimony that, throughout the high-speed
chase, and even after exiting his car and facing the officers on 88th Avenue, he thought his
pursuers could have been robbers impersonating police officers. Plaintiff admits that, eight or
nine blocks into the chase, he saw the emergency lights activated on the officers’ vehicles and, at
some point during the chase, he heard their sirens. At the dead-end, he saw a line of cars stopped
behind him and officers with their guns drawn and badges displayed. No reasonable person
could have believed that robbers would take such attention-drawing actions as (i) proceeding on
a five to eight mile, high-speed chase through Queens with emergency lights and sirens activated
on their vehicles and (ii) lining a residential street with those vehicles and exiting them with guns
drawn.
Third, plaintiff’s testimony that he surrendered to the officers at the dead-end is
questionable. At 157th Street, plaintiff made the decision to flee from the officers. He then led
the officers on a high-speed chase through Queens. Admittedly, he was “panicked” during the
chase. When he arrived at the dead-end, it was not completely enclosed; rather, at the end of the
street, there was a chain-link fence with a hill behind it and, on either side of the street, there
were residential homes with driveways or alleyways in between them. Thus, although the
officers were rapidly closing in on him, plaintiff was not trapped. Under such circumstances,
when plaintiff was “panicked” and had potential avenues of escape available to him, I question

27

whether he simply gave up his attempt to out-run the officers when he reached 88th Avenue.
Fourth, I am dubious of plaintiff’s testimony that (i) Detective Benitez asked a paramedic
to “make a good report” and (ii) one of the officers asked a nurse at the hospital to “make a good
report.” There is no evidence in the record suggesting that there was a prior relationship between
any of the arresting officers and either the paramedic or the nurse. Plaintiff has offered no
convincing reason why a medical professional, with no prior relationship to the officers, would
collude with them to cover up or minimize plaintiff’s injuries.
ii.

The Arresting Officers’ Credibility

While I find certain aspects of plaintiff’s testimony incredible, I also have serious
concerns about the testimony of the arresting officers. Many of these concerns relate to the
officers’ testimony about material facts in this case.
Most notably, while the arresting officers all testified that plaintiff fled on foot at the
dead-end, each of them stated that plaintiff fled in a different direction. SA Butorac testified that
plaintiff fled to the left. Although Detective Benitez testified that he was directly behind SA
Butorac while plaintiff fled, he saw plaintiff flee to the right. From the vantage point of his left
flank position, Detective Berberich saw plaintiff flee directly toward the center of the dead-end,
and then reverse direction and flee ten to fifteen feet toward the open end of the street, in the
direction of SA Butorac. Detective Berberich’s account directly conflicts not only with the
testimony of SA Butorac and Detective Benitez that plaintiff did not flee toward the open end of
the street, but also with the testimony of all three officers that they tackled plaintiff from behind.
It is possible that the officers’ divergent and inconsistent testimony is the product of
misperception or faulty memory on the part of one or more of the officers. But each officer
testified that he observed plaintiff’s flight from a close range, and each officer described the

28

direction of his flight in detail. Thus, their vastly disparate testimony about this critical fact is
disquieting; and, at best, it undermines their reliability.
With regard to the officers’ testimony about the struggle on the ground with plaintiff, the
foregoing discussion about the inherent limitations of perception and memory is particularly apt.
The struggle on the ground was a frantic, tense incident about which different individuals will
likely have different recollections, and inconsistencies in testimony about such an event are to be
expected. I am, nonetheless, doubtful about the following five aspects of the officers’ testimony.
First, I am perplexed by Detective Berberich’s testimony that Torres kicked him in the
back. Throughout the struggle, Detective Berberich was kneeling next to Torres’ torso and
Detective Benitez was lying or kneeling on Torres’ legs. Torres was lying face down on the
ground. Based on the positions of the two officers and Torres, it is unclear how plaintiff possibly
could have kicked Detective Berberich in the back.
Second, the testimony of SA Butorac and Detective Benitez undermines Detective
Berberich’s testimony that Torres’ head was insecure and that he feared Torres would bite him.
Detective Benitez testified that during the struggle SA Butorac had Torres’ head pressed against
the pavement and immobilized. Likewise, SA Butorac testified that “when [Torres] fell to the
ground, his head was secured.” Tr. at 402. Further, although he did not believe that he had his
hand on Torres’ head the entire time, SA Butorac testified that, during a struggle that lasted only
seconds, he was pressing pressure points on the left side of Torres’ face, the side turned away
from Detective Berberich. Thus, Detective Berberich’s assertion that Torres’ head was insecure
and that he feared being bitten is in direct conflict with the testimony of his co-defendants.
Third, I am troubled by Detective Berberich’s shifting testimony. At his deposition and
initially at trial, Detective Berberich testified that he did not see SA Butorac securing Torres’

29

head. On cross-examination at trial, though, he changed his testimony to conform to that of his
co-defendants, stating: “I may have seen Butorac with his hand on his head at one time, but then
when Torres turned his head, I didn’t see Butorac’s hand.” Tr. at 490. Similarly, at his
deposition, Detective Berberich testified that his testicles were not near Torres’ head. At trial, he
contradicted that testimony and asserted that Torres could have bitten his testicles if he reached
his head up. Moreover, during his deposition, Detective Berberich testified that he placed his
knee on “the back of [Torres’] shoulder towards his neck area” and in the “vicinity” of his neck.
At trial, Detective Berberich changed that testimony, denying that he placed his knee on
plaintiff’s neck or in that vicinity. All of the alterations in Detective Berberich’s testimony
buttress his version of events and therefore raise considerable questions about his testimony.
Fifth, I find it difficult to comprehend how Detective Benitez did not see SA Butorac use
one or more knee strikes against Torres’ left thigh. During the struggle with Torres, Detective
Benitez testified that he was kneeling on Torres’ legs. In that position, it seems unlikely that he
would miss SA Butorac striking Torres’ left thigh. His testimony in this respect raises doubts
about his testimony that he did not see the other officers use any force against plaintiff.
With respect to SA Butorac’s notes from and report of plaintiff’s September 7, 2005 postarrest interview, I find his account of that meeting questionable. Specifically, it seems unlikely
that at the outset of the interview plaintiff volunteered an apology for fleeing and resisting arrest
at the dead-end. I also find the prominence of SA Butorac’s discussion of that apology in his
report striking; it is unclear why such a detailed account was necessary.
B.

The Weight of the Evidence

Based on the preceding analysis, I find the testimony of plaintiff and each of the arresting
officers unreliable in material respects. After reviewing their testimony, I am left with no clear

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conception of what occurred when plaintiff was arrested at the dead-end on 88th Avenue. I fully
credit neither plaintiff’s version of events nor that of the officers. In particular, regarding the
critical questions in this case – whether plaintiff clearly surrendered and what level of force the
officers used against him – I have serious doubts about the testimony of each witness.
Considering the circumstances surrounding his arrest, and my concern that plaintiff embellished
portions of his testimony, I cannot conclude that he clearly surrendered at the dead-end and that
the officers then severely and gratuitously beat him. Likewise, in light of the material
inconsistencies in the officers’ testimony – especially their divergent testimony about the
direction in which plaintiff fled and the troubling contradictions in their testimony about the
struggle on the ground – I cannot conclude that plaintiff fled or took other actions that
manifested resistance and that the officers then used only the force necessary to effect his arrest.
After weighing the parties’ testimony and the other evidence before me, I conclude that
the evidence is in equipoise. I believe that it is equally likely that plaintiff clearly surrendered at
the dead-end as it is that he fled or otherwise took actions manifesting resistance. I also believe
that it is equally likely that the officers gratuitously and severely beat plaintiff as it is that they
used only the force necessary to effect his arrest.7 I therefore cannot find by a preponderance of

7

I do not doubt that, as a result of the force used against him, plaintiff sustained permanent injuries, including a
chronic neck injury. I am not persuaded by defendants’ argument that plaintiff’s failure to complain about his neck
pain in the days immediately following his arrest demonstrates that he does not have a chronic neck injury. On the
contrary, I credit plaintiff’s testimony regarding his neck injury and Dr. Beaudouin’s testimony that he has
diagnosed plaintiff with and repeatedly treated him for such an injury. That testimony is bolstered by my
observations of plaintiff’s condition at trial. The testimony by Dr. Ong and Lieutenant Ruiz does not undermine the
testimony by plaintiff and Dr. Beaudouin. Neither Dr. Ong nor Lieutenant Ruiz testified that plaintiff did not
develop or would not have developed a chronic neck injury subsequent to their treatment of him. Defendants have
offered nothing more than speculation to support their assertion that plaintiff is feigning his neck injury, and I
dismiss that argument without hesitation.
I cannot, however, infer that the officers used objectively unreasonable force against plaintiff from the fact that he
suffered a chronic neck injury. There is no evidence in the record suggesting that plaintiff could have sustained a
chronic neck injury only if the officers used the level of force against him that he described in his testimony.
Indeed, it seems quite likely that plaintiff could have sustained such an injury as a result of the force the officers
admitted using against him in their testimony. While I am sympathetic to the fact that plaintiff sustained injury as a
result of the officers’ actions, his injury does not tip the balance in either direction in this case.

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the evidence either (i) that plaintiff clearly surrendered and that the officers then used force
against him or (ii) that although plaintiff resisted arrest, the officers used force grossly
disproportionate to that resistance and unnecessary to effectuate his arrest.
Accordingly, solely because plaintiff bears the burden of proof in this case, and despite
my concerns about the veracity of the arresting officers, I am constrained to find that the officers
did not use objectively unreasonable force in effecting plaintiff’s arrest.8 I thus conclude that the
officers did not use excessive force in violation of the Fourth Amendment nor did they commit
assault and battery under New York law.

8

With respect to plaintiff’s contention that the officers used objectively unreasonable force against him after he was
handcuffed, such as lifting him by his handcuffs, throwing him against a police car, and threatening him with a
flashlight, I conclude that plaintiff has not established those facts by a preponderance of the evidence. In this regard,
the officers’ consistent testimony that these events did not occur is more plausible than plaintiff’s testimony.

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CONCLUSION
For the foregoing reasons, I hold that SA Butorac, Detective Benitez, and Detective
Berberich did not use excessive force in violation of the Fourth Amendment and that they did not
commit assault and battery under New York law. Thus, the officers are not liable to plaintiff
under Bivens, and the United States is not liable to plaintiff under the Federal Tort Claims Act.
The Clerk of Court is directed to enter judgment accordingly.
SO ORDERED.

/s/ARR__________________
Allyne R. Ross
United States District Judge
Dated:

August 1, 2011
Brooklyn, New York

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