Thevenin v. City of Troy et al
Filing
132
MEMORANDUM-DECISION & ORDER granting in part and denying in part 101 Motion for Summary Judgment, and the Monell claim against the City of Troy is hereby DISMISSED, and all remaining claims shall proceed to trial.SO ORDERED. Signed by Magistrate Judge Daniel J. Stewart on 9/6/2019. (khr)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CINTHIA THEVENIN,
Plaintiff,
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Civ. No. 1:16-CV-1115
(DJS)
CITY OF TROY, et al.,
Defendants.
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OF COUNSEL:
HACH & ROSE, LLP
Attorneys for Plaintiff
185 Madison Avenue, 14th Floor
New York, NY 10016
MICHAEL A. ROSE, ESQ.
HARFENIST KRAUT &
PERLSTEIN LLP
Attorneys for Plaintiff
3000 Marcus Avenue, Suite 2E1
Lake Success, NY 11042
STEVEN J. HARFENIST, ESQ.
NEIL S. TORCZYNER, ESQ.
FITZGERALD MORRIS BAKER
FIRTH, P.C.
Attorneys for Defendants
16 Pearl Street
P.O. Box 2017
Glens Falls, NY 12801
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APPEARANCES:
JOHN D. ASPLAND, ESQ.
MICHAEL A. BRANDI, ESQ.
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DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM-DECISION & ORDER
I. FACTUAL STATEMENT
In the early morning hours of April 17, 2016, Randall French and Edson Thevenin were
driving their respective vehicles in the City of Troy. Dkt. No. 101-2, Defendants’ Statement of
Material Facts (“Defs.’ SMF”) at ¶¶ 4-9; Dkt. No. 105, Plaintiff’s Statement of Material Facts (“Pl.’s
SMF”) at ¶¶ 4-9. At that time Defendant French was a Sergeant with the Troy Police Department
and Mr. Thevenin was employed by Enterprise Rent-a-Car as an auto technician. Id.; Dkt. No. 1041, Cinthia Thevenin Deposition (“C. Thevenin Dep.”) at pp. 13 & 21.1 At approximately 3:10 a.m.,
after observing Mr. Thevenin’s Honda failing to stay in his lane, Sergeant French pulled Mr.
Thevenin over. Defs.’ SMF at ¶¶ 14-18; Pl.’s SMF at ¶¶ 14-18. When Sgt. French approached Mr.
Thevenin, who was in the driver’s seat, he indicated he could smell a strong odor of alcohol. Defs.’
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SMF at ¶ 21; Pl.’s SMF at ¶ 21. Sgt. French ran the license provided to him, with no issue, and then
performed field sobriety tests on Mr. Thevenin. Defs.’ SMF at ¶¶ 23 & 26-33; Pl.’s SMF at ¶¶ 23
& 26-33. Again, according to Sgt. French, Mr. Thevenin was cooperative with the testing, but failed
the horizontal gaze nystagmus, the walk and turn, and French cut short the one leg stand test on the
belief that Mr. Thevenin was going to fall over. Id. When asked by Sgt. French, Mr. Thevenin
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refused to perform an Alco Sensor test, and was then advised that he was under arrest for DWI.
Defs.’ SMF at ¶ 34.
After the intention to arrest was communicated to Mr. Thevenin, he insisted that he could
not be arrested, resisted attempts by the Sergeant to apply handcuffs, escaped to his vehicle where
he was pepper sprayed by Sgt. French without effect, and then drove the car away with Sgt. French
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still halfway in the window. Defs.’ SMF at ¶¶ 34-35; Pl.’s SMF at ¶¶ 34-35. After he fell out, Sgt.
French went to his own vehicle to begin to pursue Mr. Thevenin through the streets of Troy. Defs.’
SMF at ¶¶ 36-39. Sgt. French called in the incident on his police radio.2 Defs.’ SMF at ¶¶ 36-37;
1
Reference is made to the pagination in the transcript of the deposition.
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It is unclear whether all the facts that he relayed in this radio call were accurate. Although Sgt. French related
on the call that Mr. Thevenin attempted to “run him over,” he acknowledged in his Deposition that this was not the case
and he is unsure why he said that. Defs.’ SMF at ¶¶ 36-37.
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Pl.’s SMF at ¶¶ 36-37. Another police officer, Captain Montanino, also participated in the pursuit.
Defs.’ SMF at ¶ 42; Pl.’s SMF at ¶ 42. Mr. Thevenin ultimately ended up on the Collar City Bridge
in Troy, where his vehicle crashed into a concrete barrier. Defs.’ SMF at ¶ 44; Pl.’s SMF at ¶ 44.
At this critical point there are four witnesses who individually recount different versions of
what happened next:
A. Defendant Sgt. French
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According to Sgt. French, he pulled his vehicle in front of the Thevenin vehicle on the Collar
City Bridge, to make sure that it could not drive away. Dkt. No. 101-4, Randall French Deposition
(“French Dep.”) at p. 154. He thought that his car was positioned a few feet away from the front of
the Thevenin vehicle, but when he opened his door, it hit the front of Thevenin’s car leading French
to believe Plaintiff had moved his car; he had to squeeze out of his vehicle. Id. at p. 155. Sgt.
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French then yelled at Mr. Thevenin to “Stop.” Id. at p. 158. At the same time he became stuck
between the Thevenin vehicle and his patrol car. Id. He heard the engine in the Thevenin vehicle
“rev,” and Sgt. French felt intense pain from the pinning of his leg. Id. at pp. 159-160 & 171. He
continued to yell at Mr. Thevenin to “Stop” but the Honda continued to accelerate. Id. At that point
in time, believing that he “was going to die,” he shot at the “center mass” of Edson Thevenin. Id.
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at pp. 161-162. Sgt. French then twisted and his body ended up on the hood of the Honda, where
he fired again at Mr. Thevenin. Id. at pp. 163-164 & 169. Sgt. French indicated that he stopped
firing his pistol when the engine of the Thevenin vehicle stopped revving. Id. at pp. 169-70. Eight
shots were fired, and five struck Mr. Thevenin, causing his death. Id. at pp. 180-81; Dkt. No. 101-4,
French Dep. Vol. II at p. 242. Sgt. French was then pulled from between the two vehicles with the
assistance of Officer Dean, and he was provided medical attention for an injury to his leg. Id. at pp.
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172-173 & 205; Dkt. No. 101-5, Deposition of David Dean at p. 55.
B. Capt. Matthew Montanino
Capt. Montanino received Sgt. French’s call for assistance in the early morning hours of
April 17, 2016 and drove towards French’s location to assist with the Thevenin incident and to “call
out the pursuit.” Dkt. No. 101-5, Deposition of Matthew Montanino (“Montanino Dep.”) at pp. 9397. He saw Mr. Thevenin going eastbound on the westbound lane of Hoosick Street and then turn
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onto the Collar City Bridge. Id. at pp. 99-101. Mr. Thevenin then crashed into the concrete barrier
on the bridge and came to a stop. Id. at pp. 101-102. Capt. Montanino witnessed Sgt. French pull
in front of Mr. Thevenin’s vehicle, at an angle, within five feet of that vehicle. Id. at pp. 103 & 106107. Capt. Montanino pulled his vehicle behind Thevenin’s Honda, leaving a few feet of distance.
Id. at p. 107. He then got out of his patrol car and began to approach the Honda. Id. at p. 108. He
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left his weapon holstered. Id. He heard Sgt. French yelling “Stop.” Id. at p. 110. Capt. Montanino
recalls the Thevenin engine revving, the tires spinning in reverse, and the vehicle coming backward,
ultimately striking his vehicle, causing damage. Id. at pp. 111-113. Capt. Montanino had to jump
out of the way. Id. at p. 113. The Thevenin vehicle then started moving forward at an angle, and
Capt. Montanino yelled “Stop, stop.” Id. at pp. 114 & 118. Sgt. French was at the front passenger
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side of the Honda. Id. at p. 115. At that point in time Montanino heard gunshots. Id. at pp. 125126. Capt. Montanino approached the Honda, which had stopped, at which point time he heard a
few more gunshots and saw Sgt. French pinned between the Thevenin vehicle and his parked patrol
car, with his upper body on the hood. Id. at pp. 121 & 125-129. Capt. Montanino then pulled Mr.
Thevenin from his vehicle, onto the roadway. Id. at p. 135. According to Capt. Montanino, when
he did this the Thevenin vehicle’s transmission was in “drive.” Id. at p. 139.
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C. Keith Millington
Keith Millington testified at his deposition that the vehicle he was driving was stalled on the
side of the road, and at that point he was passed by the Thevenin vehicle (a Honda with its lights off)
and two marked police cars. Dkt. No. 101-5, Deposition of Keith Millington (“Millington Dep.”)
at p. 18. The Thevenin vehicle then made a quick U-turn onto the Collar City Bridge. Id. The
Thevenin vehicle proceeded to hit a concrete wall, and was then blocked in by the two police
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vehicles. Id. at pp. 18, 20, & 21. The officers then got out of their cruisers. Id. at p. 24. Mr.
Millington heard one or both of the police officers instructing the driver of the Honda to “Stop,” but
that driver then backed into the police vehicle behind him, and then went forward as if to drive
through or around the police vehicle in front of him. Id. at pp. 26-30. At that point in time the
shooting occurred, and simultaneous with the shooting was the point when the Thevenin vehicle hit
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Sgt. French. Id. at pp. 31-32.
D. Phillip Gross
Mr. Gross was deposed, and also provided statements to various investigating authorities.
Mr. Gross is a private citizen and the owner of Phil’s Automotive. Dkt No. 101-6, Deposition of
Phillip Gross (“Gross Dep.”), at p. 10. He had received a tow call from the State Police that morning
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and was driving on Route 7 in Troy when he saw police lights and sirens. Id. at pp. 11-14 & 17-19.
He witnessed a Honda automobile driving approximately twenty miles per hour and turning on to
the Collar City Bridge. Id. at pp. 18-20. A police vehicle was close behind. Id. at p. 19. The police
vehicle then “blocked him off” which caused the Honda to be involved in a “light” collision with
the barrier, and it was then blocked in by police cars. Id. at pp. 20-21. From Mr. Gross’s position,
fifty feet away from the incident, he observed a police officer get out of his car and then, without
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saying anything, fire eight to twelve shots all at once. Id. at pp. 21-22 & 37. He testified that at the
time of the shooting, the Honda and the police vehicle were approximately four feet apart. Id. at p.
24. The Honda was not moving. Id. Elsewhere in his deposition, however, Mr. Gross recounted
a prior statement that there was also an unmarked police car present, and that the Thevenin vehicle
backed up towards that police car, and it was at this time that he heard shots being fired. Id. at pp.
57-58. After the shooting, according to Mr. Gross, the vehicle rolled forward, trapping the police
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officer. Id. at pp. 25-26. Mr. Gross then assisted in getting the car off of Sgt. French. Id. at p. 28.
II. PROCEDURAL HISTORY
The parties have engaged in extensive pretrial discovery. Presently before the Court is
Defendants’ Motion for Summary Judgment. Dkt. No. 101. In making this Motion Defendants
present several arguments for the Court’s review. First, Defendants argue that the use of force by
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Defendant Sgt. French was objectively reasonable under the facts of the case, and therefore no
constitutional violation is established as a matter of law. Dkt. No. 101-3, Defendants’ Memorandum
of Law (“Defs.’ Mem. of Law”) at pp. 9-12. Alternatively, they contend that even if the Court were
to conclude that under a certain version of facts the force used was not objectively reasonable, or
that material questions regarding the reasonableness of the force used persist, Sgt. French is
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nevertheless entitled to qualified immunity because he could have reasonably but mistakenly
believed that the shooting of Mr. Thevenin was constitutionally permitted. Id. at pp. 13-18. Third,
Defendants argue that the state law claims for assault and battery and wrongful death are governed
by the same standard as the federal claims, and thus suffer from the same defects. Id. at pp. 23-25.
Finally, Defendants argue that there is no basis for a Monell liability claim against the City of Troy.
Id. at pp. 18-23.
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Plaintiff’s counsel, for their part, argue that substantial material issues of disputed fact exist
regarding the use of force by Defendant French, as well as on the separate and distinct issue of
qualified immunity. Dkt. No. 106, Plaintiff’s Memorandum of Law (“Pl’s Mem. of Law”) at pp. 1120. Therefore, the granting of the Motion in the face of this disputed factual landscape would be
inappropriate. Id. Plaintiff’s counsel agree that the state law claims are generally governed by the
federal standard but, for the reasons just stated, assert that such claims should proceed to trial. Id.
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at pp. 24-25; see also Dkt. No. 129. As a final matter, however, Plaintiff’s counsel agree that there
is insufficient evidence of a Monell claim against the City of Troy, and therefore do not oppose the
dismissal of that particular claim. Id. at p. 25.
III. DISCUSSION
A. Summary Judgment Standard
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Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
The moving party bears the burden to demonstrate through “pleadings, depositions, answers to
interrogatories, and admissions on file, together with [ ] affidavits, if any,” that there is no genuine
issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp.
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v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific facts
showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the
facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287
(2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion
for summary judgment when the moving party has set out a documentary case.”); Rexnord Holdings,
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Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).
When considering a motion for summary judgment, the court must resolve all ambiguities
and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier
Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he trial court’s task at the summary
judgment motion stage of the litigation is carefully limited to discerning whether there are any
genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this
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point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs.,
Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, summary judgment is appropriate
“[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving
party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
This summary judgment standard should be applied with great care in situations where one
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of the participants to the event has been killed and is therefore unable to provide his or her version
of the evidence. As stated by the Second Circuit:
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[G]iven the difficult problem posed by a suit for the use of deadly force, in which
“the witness most likely to contradict [the police officer’s] story - the person shot
dead - is unable to testify[,] . . . the court may not simply accept what may be a
self-serving account by the police officer.” Scott v. Henrich, 39 F.3d at 915. Rather,
the court must also consider “circumstantial evidence that, if believed, would tend
to discredit the police officer’s story, and consider whether this evidence could
convince a rational factfinder that the officer acted unreasonably.” Id.; see, e.g.,
Maravilla v. United States, 60 F.3d 1230, 1233-34 (7th Cir. 1995) (where “the
witness most likely to contradict the officers’ testimony is dead,” the court should
“examine all the evidence to determine whether the officers’ story is consistent with
other known facts”); Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir.) (“in deadly
force cases[,] . . . where the officer defendant is the only witness left alive to testify[,]
. . . a court must undertake a fairly critical assessment of,” inter alia, “the officer’s
original reports or statements . . . to decide whether the officer’s testimony could
reasonably be rejected at a trial”), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130
L.Ed.2d 34 (1994).
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O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003).3
B. The Fourth Amendment Reasonableness Standard and Qualified Immunity
With regard to a police officer’s use of force, that conduct is governed by the Fourth
Amendment to the United States Constitution, with its attendant objective reasonableness standard.
“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
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evolving - about the amount of force that is necessary in a particular situation.” Graham v. Connor,
490 U.S. 386, 396-97 (1989). As a rule, courts do not employ 20/20 hindsight in this analysis, but
rather consider the facts presented to the officer immediately prior to and at the time the decision
to use force is made. Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996).
The separate and independent doctrine of qualified immunity inserts a second level of
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reasonableness review when judging a police officer’s use of force. To determine whether an
official is entitled to qualified immunity, courts first look to whether the plaintiff’s allegations, if
true, establish a constitutional violation. Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). Once
a constitutional violation is found, or assumed,4 courts must then decide whether it was “objectively
reasonable” for the officer to believe that his or her actions were lawful “in light of the legal rules
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that were clearly established at the time [action] was taken.” Anderson v. Creighton, 483 U.S. 635,
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As to the state law claims, under the Noseworthy doctrine a plaintiff in a wrongful death action is not held
to as high a degree of proof as a plaintiff in a personal injury action and is entitled to benefit from every favorable
inference which can reasonably be drawn from the evidence in determining whether a prima facie case has been made
out. Noseworthy v. New York, 298 N.Y. 76 (1948). “The Noseworthy rule does not shift the burden of proof on control,
negligence, and causation”, instead it “simply describes a method of, or approach to, weighing evidence.” N.Y. Pattern
Jury Instr., Civil 1:61 (citations omitted).
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Following the Supreme Court decision in Pearson v. Callahan, 555 U.S. 223, 242 (2009), courts are no longer
required to make a “threshold inquiry” as to the violation of a constitutional right in a qualified immunity context, but
are free to do so.
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638-39 (1987). “The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).
A police officer’s use of a weapon, as in this case, is governed by these same legal standards,
even where it results in the death of the suspect. In general terms, an officer may use deadly force
if he or she “has probable cause to believe that the suspect poses a significant threat of death or
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serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 11-12 (1985); see
also Graham v. Connor, 490 U.S. at 396 (to determine whether force used to effect a particular
seizure is reasonable, a court must examine “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 evade
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arrest by flight.”). Conversely, “[a] police officer may not seize an unarmed, nondangerous suspect
by shooting him dead.” Tennessee v. Garner, 471 U.S. at 11. The Garner case involved the police
shooting of a 15-year-old burglary suspect as he was climbing a fence and attempting to elude the
police. Id. The Supreme Court concluded that a blanket rule approving of the use of deadly
physical force to prevent the escape of all felony suspects is constitutionally unreasonable. Id. “It
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is not better that all felony suspects die than that they escape.” Id. However, where the suspect
poses a threat of serious physical harm, and, where feasible, some warning has been given, deadly
force may be used in conformity with the Fourth Amendment. Id. Further, and as noted above, even
in circumstances where the court concludes that there was, or could have been, a Fourth Amendment
violation, qualified immunity would apply to a police officer who reasonably but mistakenly
believed that the use of deadly physical force was appropriate.
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Since Garner, the Supreme Court has spoken on several occasions regarding police officers’
use of deadly physical force on suspects who are operating a motor vehicle, employing both the
Fourth Amendment and the qualified immunity tests. First, in Brosseau v. Haugen, the Supreme
Court ruled that a police officer did not violate clearly settled Fourth Amendment law when she fired
at a fleeing vehicle in order to prevent harm to officers she believed were nearby and to protect other
citizens. 543 U.S. 194, 200-201 (2004). In granting summary judgment on the grounds of qualified
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immunity, the Court concluded that the officer’s acts fell in the “hazy border between excessive and
acceptable force.” Id. at 201.
In Scott v. Harris, the Court considered whether “a law enforcement official can, consistent
with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his publicendangering flight by ramming the motorist’s car from behind” even though the officer’s actions
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“place [the] fleeing motorist at risk of serious injury or death.” 550 U.S. 372, 374 (2007). In that
case, the police chase at issue was videotaped and therefore the case presented no factual dispute
at the summary judgment stage. Id. at 378. After reviewing the video, the Court readily concluded
that, despite the tragic outcome whereby the driver was rendered a quadriplegic, the officer was
justified as a matter of law in taking the actions that he did. Id. at 386.
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Next, in Plumhoff v. Rickard, the Supreme Court ruled that the police officers did not violate
the Fourth Amendment by using deadly force to terminate a high-speed chase posing a grave public
safety risk. 572 U.S. 765, 776-777 (2014). There, the chase had lasted over five minutes with
speeds exceeding one hundred miles per hour, the driver’s conduct put many others in nearby
vehicles at risk, and even though the driver had come to a temporary halt, that did not end the chase
because he continued pushing down on the accelerator in an attempt to escape. Id. The police were
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therefore justified in firing fifteen shots into the vehicle killing the driver. Id. at 777. In making this
decision, the Court noted that the officers did not need to stop shooting until it was clear to them that
the threat to public safety had ended. Id.
Finally, in Mullenix v. Luna, the police were confronted with a reportedly intoxicated
individual engaged in a high-speed flight from the police, who had twice threatened to shoot police
officers. 136 S. Ct. 305, 309 (2015). In light of these facts, and the fact that the driver was racing
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towards a police officer, the Supreme Court concluded that the use of deadly force by the police
officer was at least entitled to qualified immunity. Id.
C. Application of These Standards to the Present Case
In the present case Defendant French is correct that, if his version of events is accepted, his
use of deadly physical force was constitutionally permissible as a matter of law, or alternatively, that
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a reasonable police officer could have believed that discharging his weapon in those circumstances
was appropriate. Sgt. French maintains that when he made the decision to shoot, he was pinned
between two vehicles, in fear for his life, with the Thevenin vehicle pressing forward upon him. It
would be hard to imagine a more compelling justification for the use of deadly physical force. The
fact that Sgt. French fired multiple rounds at Mr. Thevenin’s center mass does not change the
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analysis, as police officers are justified in continuing to shoot until the danger is abated. Plumhoff
v. Rickard, 572 U.S. at 777. The fact that Capt. Montanino did not have his weapon out at the time
of the incident, while relevant, is also not necessarily determinative, as the critical issue is only the
reasonableness of the use of force based upon the facts that were known or reasonably believed by
Sgt. French. Capt. Montanino may have been in a different position or perceived different facts.
See Soto v. City of New York, 283 F. Supp. 3d 135, 142 n. 5 (S.D.N.Y. 2017) (“The fact that the
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other officers on the stairway did not fire their weapons does not compel a different conclusion”
regarding the reasonableness of the use of force). Moreover, for qualified immunity purposes the
question is whether a reasonable police officer could have believed that defendant’s action to be
lawful, not whether all police officers would have drawn the same conclusion. Hunter v. Bryant,
502 U.S. 224, 228 (1991) (“the court should ask whether the agents acted reasonably under settled
law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the
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events can be constructed five years after the fact.”).
The difficulty with the argument of Defendant French on this Motion, however, is that it
assumes the correctness of his factual account. Defs.’ Mem. of Law at pp. 1 & 13 (“Sgt. Randall
French, in a moment of existential terror, found himself pinned between his squad car and the still
accelerating vehicle of Edson Thevenin” and “Based on these facts, no reasonable jury could
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conclude that French’s actions constituted excessive force . . .”) (emphasis added). At least two
witnesses, however, dispute critical facts asserted by the Defendant. While Defendant French
testified at his deposition to becoming “immediately stuck between [Thevenin’s] car and my car,”
French Dep. at p. 158, Captain Montanino testified to French moving around the vehicles,
Montanino Dep. at p. 115, and Phillip Gross testified that when he initially saw French he was not
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in contact with Thevenin’s vehicle. Gross Dep. at p. 22. Sgt. French becoming immediately pinned
by the Thevenin vehicle would also appear to be contrary to Captain Montanino’s testimony that the
vehicle first proceeded backwards striking his own vehicle5 before moving forward and before he
heard gunshots. Montanino Dep. at pp. 112-15, 118, & 125; see also Millington Dep. at p. 28
(discussing Thevenin vehicle backing up toward Montanino vehicle). It is similarly contrary to
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This account that the Thevenin vehicle backed into Montanino’s patrol car appears to be corroborated by the
damage to the police vehicle. See Montanino Dep. at p. 113.
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Montanino’s testimony which places Sgt. French to the front passenger side of the Thevenin vehicle
immediately prior to the shooting, not pinned in front. Id. at p. 115.
The clearest dispute of fact is presented by witness Phillip Gross’ testimony that he observed
Sgt. French get out of his vehicle and, without saying anything and without being pinned,
immediately start firing into the Thevenin vehicle.
Gross Dep. at pp. 21-22 & 24. Gross
alternatively placed the Thevenin vehicle backing away from French when the shots were fired. Id.
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at pp. 57-58. Both versions are distinctly different from the testimony of French, Montanino, and
Keith Millington. French Dep. at pp. 161-62 (initial shots fired while pinned by Thevenin vehicle);
Montanino Dep. at pp. 125-26 (initial shots fired as car moved forward away from his vehicle);
Millington Dep. at p. 31 (shots fired as car moved toward French). Assuming the facts most
favorable to Plaintiff places Thevenin’s vehicle either stationary or moving away from Sgt. French
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at the time he discharged his weapon, which would be in stark contradiction to the facts which Sgt.
French has supplied as justification for the use of deadly force. While defense counsel notes many
inconsistencies in the Gross testimony, that simply presents a credibility question which is not for
this Court to resolve on a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of
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legitimate inferences from the facts are jury functions, not those of a judge.”); O’Bert ex rel. Estate
of O’Bert v. Vargo, 331 F.3d at 40; see also Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d Cir.
2015) (“summary judgment is proper only when, if all permissible inferences and credibility
questions are resolved in favor of the party against whom judgment is sought, there can be but one
reasonable conclusion as to the verdict”) (internal quotations omitted).
It is clearly settled law that a police officer who, based upon the facts known to him, believes
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that a suspect poses a threat of serious physical harm to himself or others is justified in using lethal
force. Tennessee v. Garner, 471 U.S. at 11. It follows that if a police officer does not have probable
cause to believe that the suspect poses a significant threat of death or serious physical injury to the
officer or others, deadly force is not justified. Id.; O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d
at 36. Assuming that Sgt. French exited his vehicle and immediately fired into the Honda, which
at that time was either stationary, or was slowly moving away from him and therefore did not pose
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a risk to him, these facts create a question both as to whether the use of force was constitutionally
permissible, and secondarily, whether the conduct was protected by qualified immunity. O’Bert ex
rel. Estate of O’Bert v. Vargo, 331 F.3d at 39-40.
In this regard this case is factually similar to the Second Circuit decision in Cowan ex rel.
Estate of Cooper v. Breen, 352 F.3d 756 (2d Cir. 2003). In Cowan, a police officer had pulled over
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a vehicle and searched the driver, discovering narcotics. Id. at 758. The driver ran off into the
woods, and the officer briefly pursued him on foot before returning back to the road where his
cruiser was located. Id. At this point in time a passenger in the stopped vehicle had moved over to
the driver side and started driving the vehicle down the road. Id. The officer maintained that he
waved at the vehicle to stop, but it did not do so. Id. With the car bearing down upon him, and
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fearing for his safety, he shot twice at the vehicle, killing the driver with the second shot. Id. The
driver’s estate then filed a civil rights complaint. The defendants moved for summary judgment
arguing that the use of force by the officer was justified or, alternatively, that the officer was entitled
to qualified immunity. Id. at 759.
In reviewing the appeal of the District Court’s denial of summary judgment, the Second
Circuit noted that while the officer “purports to rely only on the undisputed evidence in
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demonstrating that there was no constitutional violation . . . , ‘his brief on appeal is replete with his
own versions of the events.’” Id. at 762 (quoting O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d
at 38). The appropriate inquiry, however, was to consider the motion upon the facts asserted by the
plaintiff as well as all permissible inferences. Id. at 763. The plaintiff maintained that the officer
was not in danger when he fired the fatal shots, that he may have been as far as eleven feet away
from the vehicle at the time of the shooting, that the vehicle may have been moving slowly, and that
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the vehicle was not “bearing down” on the officer. Id. at 759-762.
Accepting the most favorable version of facts, the Second Circuit concluded that the officer
was not entitled to judgment as a matter of law on the issue of whether a constitutional violation
occurred because that issue “turns on which of two conflicting stories best captures what happened
on the street.” Id. at 763 (quoting Saucier v. Katz, 533 U.S. at 216); accord Marrero v. City of
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Hartford, 2017 WL 5484669, at *3 (D. Conn. Nov. 15, 2017), appeal dismissed sub nom. Marrero
for Estate of Morales v. Cote, 756 Fed. Appx. 79 (2d Cir. 2019) (“Plaintiff’s evidence suggests that
Cote was not in danger of death or even physical harm when he continued to fire into the rear side
of the Honda as it passed him.”). Further, the Second Circuit concluded that these same questions
of fact existed on the issue of qualified immunity. As a result, the Court determined the qualified
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immunity issue would need to be resolved after trial, and after a jury answered certain special
interrogatories, such as whether the decedent drove her car towards the officer and whether the
officer was in the zone of danger or could have safely gotten out of the way. Id. at 764.
The case law relied upon by Defendants does not lead to an opposite conclusion. The Second
Circuit case of Costello v. Town of Warwick, for example, involved a suspect in a vehicle that was
stopped by the police and was attempting to get away despite being boxed in and surrounded by
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numerous officers, hitting one of the police cars. 273 Fed. Appx. 118, 119 (2d Cir. 2008). The
driver was shot and killed. Id. In holding that the force used was objectively reasonable, the Court
noted that the officer involved had reason to believe that at least one of the his fellow officers was
trapped underneath the decedent’s car, and that others may have been hurt, and that the decedent
would continue to use his car to inflict serious bodily harm on the other arresting officers. Id. In
the present case, there is a fundamental factual dispute regarding the situation that Sgt. French found
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himself in when he decided to fire his weapon. Defendant maintains he was trapped between two
vehicles and about to die, and there is at least some evidence in the record which disputes the claim.
That type of factual dispute was not present in the Costello case.
This case is made more complicated by the fact that, in addition to the facts perceived by Sgt.
French, a separate set of facts has been testified to by others, particularly by Capt. Montanino. An
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argument could be made that if the Court were to discard Defendant’s testimony and accept the other
witnesses’ versions of facts, that Sgt. French’s use of deadly physical force would still have been
justified. Under this theory, Sgt. French could have believed that Mr. Thevenin posed a risk to
Montanino by backing his vehicle into that officer’s vehicle, while Montanino was in close
proximity. However, as noted above “[t]he reasonableness inquiry depends only upon the officer’s
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knowledge of circumstances immediately prior to and at the moment that he made the split-second
decision to employ deadly force.” Salim v. Proulx, 93 F.3d at 92. In this case Sgt. French testified
at his deposition that he was unaware of the position of the other police car, and he did not perceive
that Decedent’s vehicle was moving in that direction. Sgt. French testified at his deposition:
Q.
A.
Q.
At the time you exited the vehicle was Captain Montanino’s already there?
I know he was right behind me in his car, so, yeah, he was there.
Okay. Did you see Captain Montanino’s vehicle when you exited your
vehicle?
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A.
I was not looking that way. I was just concentrating on the car, so, no.
French Dep. at p. 158.
Q.
A.
Q.
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A.
Q.
A.
At any point after you pulled your vehicle in front of Mr. Thevenin’s vehicle
did you see Mr. Thevenin’s vehicle backup?
No.
Did you at the point where you were firing your weapon, did you see whether
Captain Montanino’s vehicle was in contact with any part of Mr. Thevenin’s
vehicle?
I wasn’t looking at Captain Montanino’s vehicle.
I understand that. I just want to know whether you saw it.
No.
Id. at pp. 162-163.
The Court cannot insert facts not known to Defendant in order to justify Defendant’s use
of force. Rather, the determination whether a reasonable person in the officer’s position would have
known that his conduct would violate the right at issue must be made on the basis of information
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actually possessed by the officer at the critical time. Anderson v. Creighton, 483 U.S. at 641; Hunter
v. Bryant, 502 U.S. at 227. As noted above, material questions of fact exist regarding Sgt. French’s
version of events immediately prior to the shooting, and those facts must be resolved by a jury.
IV. CONCLUSION
Based upon the foregoing the Court concludes that questions of fact exist which prevent it
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from granting Defendants’ Motion for Summary Judgment on the Fourth Amendment claim, the
claim for qualified immunity, and the state law claims.6 As to the issue of qualified immunity, when
the matter proceeds to trial the Court will submit special interrogatories to the jury to be answered
by them to assist the Court in deciding qualified immunity, if necessary, once a verdict has been
6
Counsel have submitted additional letter briefs regarding qualified immunity as it relates to the state law
claims. Dkt. Nos. 129 & 131. Because questions of fact exist as to the state law claims, summary judgment is
inappropriate. Hansen v. Warren Cty., 2019 WL 652235, at *11 (N.D.N.Y. Feb. 15, 2019).
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rendered. With regard to the 42 U.S.C. § 1983 Monell claim against the City of Troy, however, that
claim is dismissed on consent.
ACCORDINGLY, it is hereby
ORDERED, that the Motion for Summary Judgment is GRANTED IN PART AND
DENIED IN PART, and the Monell claim against the City of Troy is hereby DISMISSED, and all
remaining claims shall proceed to trial.
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SO ORDERED.
Date: September 6, 2019
Albany, New York
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