Daniel et al v. Doe 1-10 et al

Filing 108

MEMORANDUM AND ORDER granting in part and denying in part 99 Motion for Summary Judgment. Summary judgment is GRANTED as to Detectives Miele, Carbajal, Giallorenzo, and Elliot, as well as Lieutenants Walsh and Glassberg. Summary judgment is DENIED as to the excessive force claim brought against Officer Rivera and the failure to intervene claim brought against Officer Franco. The Clerk is directed to terminate the motion (Dkt. No. 99), and to amend the caption to reflect that Officers Rivera and Franco are the only remaining defendants in this case. (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 10/13/2016) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DIEDRE DANIEL, as mother and natural
guardian of K.C.,
Plaintiff,
-against-

14-cv-00259 (PKC)
MEMORANDUM
AND ORDER

P.O. JONATHAN RIVERA, P.O. KEVIN
FRANCO, DETECTIVE MICHAEL MIELE,
DETECTIVE RICHARD ELLIOT, DETECTIVE
JOSUE CARBAJAL, DETECTIVE RICHARD
GIALLORENZO, LT. KEVIN WALSH, and LT.
DAVID GLASSBERG,
Defendants.
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CASTEL, U.S.D.J.
On December 19, 2013, K.C., then age 15, was seen fleeing from police officers
carrying what appeared to be a gun. It was a toy gun, but without the bright orange tip required
by local law. (Jacobs Decl. Ex. E.) K.C. was shot three times by Police Officer Rivera of the
New York Police Department (“NYPD”), and has survived the shooting.
Plaintiff Diedre Daniel, as mother and natural guardian of K.C., brought various
claims pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) After two amendments, the operative
complaint—the Third Amended Complaint (“TAC”)—was filed on May 16, 2014. (Dkt. No. 9.)
At pretrial conferences on December 12, 2014 and June 7, 2016, plaintiff voluntarily dismissed
certain claims against the City of New York, the Administration of Children’s Services (“ACS”)
and its employees, and certain individual officers. (Dkt. No. 53, 98.) Remaining are an
excessive force claim against Officer Jonathan Rivera of the NYPD, and failure to intervene
claims against Detectives Michael Miele, Josue Carbajal, Richard Giallorenzo, and Richard

Elliot, Lieutenants Keven Walsh and David Glassberg, and Officer Kevin Franco, all of the
NYPD. The remaining defendants now move for summary judgment on plaintiff’s excessive
force and failure to intervene claims. (Dkt. No. 99.) For the following reasons, the defendants’
motion is granted in part and denied in part.
BACKGROUND
On December 19, 2013, Police Officers Jonathan Rivera and Kevin Franco were
working as partners. (Rule 56.1 Counterstatement ¶ 7.) 1 Both in uniform, Officers Rivera and
Franco were approached by a woman, who they testified told them that she saw an individual
with a firearm. (Id. ¶ 8-9.) “As Officers Rivera and Franco approached the intersection of Blake
and Rockaway Avenues, they noticed several kids screaming and running towards Rockaway
Avenue on Blake Avenue.” (Id. ¶ 10.) According to Officers Rivera and Franco, one of the kids
informed them that an individual in a red coat had a gun. (Rule 56.1 Statement ¶ 11.) Officers
Rivera and Franco spotted K.C., who was wearing a red jacket. Upon seeing Officers Rivera and
Franco, K.C. “immediately fled from the police,” knowing that the imitation firearm he had in
his possession was illegal. (Rule 56.1 Counterstatement ¶¶ 15-16.) K.C. held the imitation
firearm in his right hand as Officers Rivera and Franco pursued him on foot. (Id. ¶¶ 17-18.)
Shortly after the pursuit began, Detectives Richard Elliot and Richard Giallorenzo—both in
plainclothes—“observed Officers Rivera and Franco in a foot pursuit and joined the pursuit
behind them.” (Id. ¶¶ 21-22.)
What followed next is heavily disputed by the parties. Defendants contend that
while fleeing from the police, K.C. turned to look behind him, and according to Officer Rivera,

Unless otherwise noted, citations to (Rule 56.1 Counterstatement ¶ __) refer to undisputed facts submitted by
plaintiff in response to Defendant’s Local Rule 56.1 Statement.

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K.C. “bladed” his body “in order to fire what appeared to be a handgun.” (Rule 56.1 Statement
¶¶ 23-24.) It is unclear what it means to “blade” one’s body, and Daniel points out that the term
is undefined by defendants. (Rule 56.1 Counterstatement ¶ 24.) The Court cannot find a
definition for the word in the context of a person’s motion. Officer Rivera used the word only
once during his deposition, testifying that K.C.’s “shoulders were both pretty much bladed in my
direction with his hands up.” (Rivera Dep. 67.) As best the Court can tell, to “blade” one’s body
simply means to turn around so that the person’s shoulders and head are perpendicular to their
original position. This would be consistent with Officer Rivera’s remaining testimony, in which
he states that K.C. “started turning with his shoulders and lifting his hand.” (Rivera Dep. 68.)
While K.C. does not dispute that he turned his head to look behind him while fleeing, he alleges
that he never “bladed” his body or turned around, other than to turn his neck to look behind him.
(Rule 56.1 Counterstatement ¶¶ 23-25.) It was at this point that Officer Rivera discharged his
service weapon for the first time, firing six rounds at K.C. (Id. ¶ 26.) Although K.C. was struck
once in the left buttock, he continued to run. (Id. ¶ 27; K.C. Dep. 159.) It is disputed to what
extent, if any, Officer Rivera was aware that he struck plaintiff. (Rule 56.1 Statement ¶ 28; Rule
56.1 Counterstatement ¶ 28.) Following the first volley of gunshots, defendants allege that
“plaintiff again bladed his body and Officer River fired a second series of two shots.” (Rule 56.1
Statement ¶ 29.) K.C. admits that Officer Rivera fired two additional gunshots, but disputes that
he “bladed his body.” (Rule 56.1 Counterstatement ¶ 29.)
K.C. subsequently stumbled several feet from the entrance to 512 Mother Gaston
Boulevard, dropping the imitation firearm in the process. (Id. ¶ 31.) Defendants contend that
when K.C. stood up, he picked up the imitation firearm and “turned towards the police and
appeared to raise the weapon.” (Rule 56.1 Statement ¶¶ 31-32.) K.C. disputes this assertion,

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alleging that while he stood up, picking up the imitation firearm in the process, he “neither
turned toward Officer Rivera nor raised the toy gun in his direction.” (Rule 56.1
Counterstatement ¶ 32.) It is undisputed, however, that upon standing up, Officer Rivera
discharged his weapon for the third and final time, firing a total of eight rounds. (Id. ¶ 33.)
Whether K.C. surrendered prior to Officer Rivera firing “the final grouping of shots” is also
disputed by the parties. (Rule 56.1 Statement ¶¶ 33-35; Rule 56.1 Counterstatement ¶ 33-35.)
LEGAL STANDARD
Summary judgment “shall” be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Rule 56(a), Fed. R. Civ. P. A fact is material if it “might affect the outcome of the suit
under the governing law,” meaning that “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).
It is the initial burden of a movant on a summary judgment motion to come forward with
evidence on each material element of his claim or defense, demonstrating that he is entitled to
relief as a matter of law. Vt. Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004). In raising a triable issue of fact, the non-movant carries only “a limited burden of
production,” but nevertheless “must ‘demonstrate more than some metaphysical doubt as to the
material facts,’ and come forward with ‘specific facts showing that there is a genuine issue for
trial.’” Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis
v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)). In reviewing a motion for summary
judgment, the court may scrutinize the record, and grant or deny summary judgment as the
record warrants. Rule 56(c)(3), Fed. R. Civ. P. In the absence of any disputed material fact,
summary judgment is appropriate. Rule 56(a), Fed. R. Civ. P.

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DISCUSSION
A. Excessive Force Claim
Defendant Officer Rivera moves for summary judgment on the claim of excessive
force, arguing that his use of force was objectively reasonable. Based on the evidence presented,
including video recordings of the incident, the Court concludes that genuine issues of material
fact exist as to whether the use of deadly force by Officer Rivera was reasonable.
“A claim that law-enforcement officers used excessive force to effect a seizure is
governed by the Fourth Amendment’s ‘reasonableness’ standard.” Plumhoff v. Rickard, 134 S.
Ct. 2012, 2020 (2014) (citing Graham v. Connor, 490 U.S. 386 (1989)). To prevail, a plaintiff
must show that officers’ use of force was “‘objectively unreasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.”
Graham, 490 U.S. at 397. In evaluating whether the amount of force used against a plaintiff was
reasonable, the Court should consider: “[i] the severity of the crime at issue, [ii] whether the
suspect poses an immediate threat to the safety of the officers or others, and [iii] whether [the
suspect] is actively resisting arrest or attempting to evade arrest by flight.” Pelayo v. Port Auth.,
893 F. Supp. 2d 632, 642 (S.D.N.Y. 2012) (quoting Graham, 490 U.S. at 386) (alterations in
original). “[A]n officer’s decision to use deadly force is objectively reasonable only if ‘the
officer has probable cause to believe that the suspect poses a significant threat of death or serious
physical injury to the officer or others.’” Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756,
762 (2d Cir. 2003) (quoting O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36 (2d Cir.
2003)). “Given the fact-specific nature of the inquiry, granting summary judgment against a
plaintiff on an excessive force claim is not appropriate unless no reasonable factfinder could
conclude that the officers’ conduct was objectively unreasonable.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 123 (2d Cir. 2004) (Sotomayor, J.).
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Officer Rivera discharged his weapon on three occasions, firing a total of 16
rounds. (Rule 56.1 Counterstatement ¶¶ 26, 29, 33.) The reasonableness of Officer Rivera’s
actions depends on his “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 86, 92 (2d
Cir. 1996). The operative question, therefore, is whether when Officer Rivera fired his weapon,
“he reasonably believed that [K.C.] put his life or person in danger.” Cowan, 352 F.3d at 762.
After reviewing the evidence, the Court concludes that there are genuine issues of
material fact in dispute as to the reasonableness of Officer Rivera’s use of force. Critical to
Officer Rivera’s motion are the video recordings of the foot pursuit, which he contends
unequivocally show that immediately before each time he discharged his weapon, K.C. “bladed”
his body, which made it appear as if K.C. was about to fire his imitation handgun. (Rule 56.1
Statement ¶¶ 24-25, 29, 32-33.) Rivera specifically testified that K.C.’s “shoulders were both
pretty much bladed in my direction with his hands up.” (Rivera Dep. 67.) While the video
shows that K.C. turned his head to look back at the officers in pursuit on several occasions, the
extent to which K.C. “bladed” his body towards Officer Rivera, if at all, is a matter open to
reasonable interpretation. (Jacobs Decl. Ex. D.) Viewing the evidence in a light most favorable
to K.C., a reasonable jury could conclude that K.C.’s motions did not pose an immediate risk of
harm to Officer Rivera or others. See Tennessee v. Garner, 471 U.S. 1, 11 (1985) (“Where the
suspect poses no immediate threat to the officer and no threat to others, the harm resulting from
failing to apprehend him does not justify the use of deadly force to do so.”).
B. Qualified Immunity
“Qualified immunity shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional

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right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). “[T]he qualified immunity defense protects a
government actor if it was ‘objectively reasonable’ for him to believe that his actions were
lawful at the time of the challenged act.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). An
officer acts are objectively reasonable if “‘officers of reasonable competence could disagree’ on
the legality of the defendant’s actions.” Id. (quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)). Granting a defendant’s motion for summary judgment on qualified immunity grounds is
appropriate where “‘no reasonable jury, looking at the evidence in the light most favorable to,
and drawing all inferences most favorable to, the plaintiffs, could conclude that it was
objectively unreasonable for the defendant[ ] to believe that he was acting in a fashion that did
not clearly violate an established federally protected right.’” Thomas v. Roach, 165 F.3d 137,
143 (2d Cir. 1999) (quoting Lennon, 66 F.3d at 420).
Even assuming that Officer Rivera violated K.C.’s constitutional right, he argues
that he is entitled to qualified immunity because there is no clearly established law preventing
him from using deadly force against a fleeing suspect who appears to be carrying a firearm and
“believing that plaintiff was preparing to fire upon him or his fellow officers.” (Defs.’ Br. 9.)
However, the Supreme Court has held that a police officer could not use deadly force to stop a
fleeing suspect who “poses no immediate threat to the officer and no threat to others.” Garner,
471 U.S. at 11. Genuine issues of material fact regarding the reasonableness of Officer Rivera’s
use of deadly force are disputed and preclude summary judgment at this stage. Thomas, 165
F.3d at 143 (“Summary judgment on qualified immunity grounds is not appropriate when there
are facts in dispute that are material to a determination of reasonableness.”).

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C. Failure to Intervene Claim
Defendants also move to dismiss plaintiff’s failure to intervene claims against all
remaining defendants. Daniel concedes that the failure to intervene claims against all defendants
other than Officer Franco should be dismissed. (Pl.’s Opp’n Br. 6, 14.) Accordingly, the motion
for summary judgment as to those defendants is granted. With respect to Officer Franco, the
Court need not parse through each instance of Officer Rivera’s use of force to determine whether
and if Officer Franco had “a realistic opportunity to intervene to prevent the harm from
occurring.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). Officer Franco concedes that,
at least at some point during the pursuit, “had there been a constitutional violation, Officer
Franco would have been geographically situated in a position to intervene,” and whether “there
was sufficient time to do so prior to Officer Rivera firing remains an open question.” (Defs.’
Reply Br. 9, n.7.) Accordingly, Officer Franco’s motion for summary judgment is denied.
CONCLUSION
Summary judgment is GRANTED as to Detectives Miele, Carbajal, Giallorenzo,
and Elliot, as well as Lieutenants Walsh and Glassberg. Summary judgment is DENIED as to
the excessive force claim brought against Officer Rivera and the failure to intervene claim
brought against Officer Franco. The Clerk is directed to terminate the motion (Dkt. No. 99), and
to amend the caption to reflect that Officers Rivera and Franco are the only remaining defendants
in this case.
SO ORDERED.

Dated: New York, New York
October 13, 2016
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