Gursslin v. City of Rochester et al

Filing 128

DECISION AND ORDER granting in part and denying in part 113 Motion to Preclude Plaintiff's Proposed Expert Witness James Crosby; granting in part and denying in part 114 Motion for Partial Summary Judgment. Signed by Hon. Elizabeth A. Wolford on 01/03/2025. (CDH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
ERIN GURSSLIN,
Plaintiff,
DECISION AND ORDER
v.
6:20-CV-06508 EAW
CITY OF ROCHESTER, A municipal
entity, JEREMY NELLIST, Police Officer,
JOSHUA P. KELLY, Police Officer,
FABIAN RIVERA, Commander, and
AARON SPRINGER, Lieutenant,
Defendants.
____________________________________
INTRODUCTION
On September 6, 2018, Rochester Police Department (“RPD”) officers Jeremy
Nellist (“Nellist”) and Joshua P. Kelly (“Kelly”) traversed through the backyard of plaintiff
Erin Gursslin’s (“Plaintiff”) property on St. Paul Street, in the City of Rochester (the
“City”), during the course of executing a search warrant at a location three properties north
of Plaintiff’s home. On their return trip, Nellist and Kelly encountered Plaintiff’s foster
dog, Nina, whom they shot and killed. Plaintiff thereafter sued the City, Nellist, Kelly,
RPD Commander Fabian Rivera (“Rivera”), and RPD Lieutenant Aaron Springer
(“Springer”) (collectively “Defendants”) pursuant to 42 U.S.C. § 1983 for having
unreasonably searched the curtilage of Plaintiff’s property, for having unlawfully seized
Nina, and for having unlawfully seized Plaintiff, all in violation of the Fourth Amendment.
(Dkt. 1).
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The Court previously granted summary judgment to Defendants on Plaintiff’s claim
for unreasonable search of her curtilage. (Dkt. 120) (the “First Summary Judgment
D&O”).

Familiarity with the First Summary Judgment D&O and the procedural

background of this case are assumed for purposes of the instant Decision and Order.
Presently before the Court are: (1) Defendants’ motion to preclude Plaintiff from
using James Crosby (“Crosby”) as an expert in this matter (Dkt. 113); and (2) Defendants’
motion for summary judgment on Plaintiff’s remaining claims (Dkt. 114). For the reasons
below, the Court grants in part and denies in part Defendants’ motion to preclude and grants
in part and denies in part Defendants’ motion for partial summary judgment.
BACKGROUND
I.

Factual Background
The Court incorporates by reference the factual background set forth in the First

Summary Judgment D&O. To briefly summarize, on September 6, 2018, Nellist and Kelly,
who were members of the RPD’s Special Weapons and Tactics (“SWAT”) team, assigned
to the Sniper Team, were involved in the execution of a High-Risk Search Warrant
(“HRSW”) at 1771 St. Paul Street, which was located approximately three properties north
of Plaintiff’s home. (Dkt. 120 at 2-3). While planning for the execution of the HRSW,
Nellist and Kelly determined that they would “infiltrate to and exfiltrate from their final
operating position” by walking down Plaintiff’s driveway, through her backyard, and
jumping the fence in the northwest corner of her backyard. (Id. at 3).
After the HRSW was executed, at approximately 6:00 a.m. on September 6, 2018,
Nellist and Kelly exfiltrated from their final operation position by traversing through
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Plaintiff’s yard without a warrant or consent. (Id. at 3-4). While they were in Plaintiff’s
yard, Nellist and Kelly encountered Nina, whom they shot and killed. (Id. at 4).
The following additional facts were not previously before the Court, but are relevant
to the pending motion for summary judgment.

Plaintiff fostered Nina through the

organization Greece Residents Assisting Stray Pets (“GRASP”).

(Dkt. 114-7).

In

opposition to Defendants’ motion for summary judgment, Plaintiff has submitted a sworn
declaration from Donna Beyea, a member of GRASP’s Board of Directors, who represents
that she is “fully familiar with the facts and circumstances surrounding the foster care
arrangement between GRASP and [Plaintiff] regarding the dog known as Nina[.]” (Id. at
¶ 3). Plaintiff assumed possession of and responsibility for Nina on August 19, 2016, more
than two years before the incident at issue in this matter. (Id. at ¶ 4). “During this time,
[Plaintiff] was responsible for Nina’s daily care, including feeding, grooming, and
providing a safe environment[.]” (Id.).
GRASP’s practice when a foster care arrangement lasts for this long and no interest
has been expressed by any other party in adopting the dog, is that—assuming mutual
agreement by GRASP and the foster—“the foster will remain in the possession and assume
the responsibility for the care and well-being of the dog for the remainder of the dog’s life.”
(Id. at ¶ 5). GRASP will cease posting the dog for adoption and the foster arrangement
will become permanent. (Id.). GRASP’s only ongoing involvement at that point is to pay
for certain expenses, such as veterinary care, if requested. (Id.). GRASP stopped posting
Nina for adoption in April 2018. (Id. at ¶ 6). Plaintiff was Nina’s primary caregiver and

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had the right of first refusal if any person expressed an interest in adopting Nina. (Id. at
¶ 8).
II.

Procedural Background
Discovery in this matter closed in May 2024. (Dkt. 103). Defendants filed their

motion to preclude on July 10, 2024 (Dkt. 113), and their pending motion for summary
judgment on July 12, 2024 (Dkt. 114). Plaintiff filed opposition papers with respect to
both motions (Dkt. 116; Dkt. 117), and Defendants filed replies (Dkt. 118; Dkt. 119). The
Court issued the First Summary Judgment D&O on September 16, 2024. (Dkt. 120).
DISCUSSION
I.

Motion to Preclude Crosby
A.

Legal Standard

Pursuant to Federal Rule of Evidence 702, a proposed expert witness must possess
“scientific, technical, or other specialized knowledge [that] will help the trier of fact to
understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702(a). In
accordance with this rule, a court considering the admissibility of expert testimony must
consider whether (1) “the testimony is based upon sufficient facts or data”; (2) “the
testimony is the product of reliable principles and methods”; and (3) “the expert’s opinion
reflects a reliable application of the principles and methods to the facts of the case.” Fed.
R. Evid. 702(b), (c), (d).
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the
Supreme Court explained that a trial court has a “gatekeeping” duty under Rule 702, and
must ensure that proposed expert testimony “both rests on a reliable foundation and is
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relevant to the task at hand.” Id. at 597; see also Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147 (1999) (“In Daubert, this Court held that Federal Rule of Evidence 702 imposes
a special obligation upon a trial judge to ensure that any and all scientific testimony is not
only relevant, but reliable.”) (quotation and alteration omitted).
“Per Daubert and its progeny, a court’s Rule 702 inquiry involves the assessment
of three issues: (1) the qualifications of the expert, (2) the reliability of the methodology
and underlying data employed by the expert, and (3) the relevance of that about which the
expert intends to testify.” Washington v. Kellwood Co., 105 F. Supp. 3d 293, 304
(S.D.N.Y. 2015). Rule 702 was amended in December 2023 “to clarify and emphasize that
expert testimony may not be admitted unless the proponent demonstrates to the court that
it is more likely than not that the proffered testimony meets the admissibility requirements
set forth in the rule.” Fed. R. Civ. P. 702, Advisory Committee Notes, 2023 Amendments.
B.

Crosby’s Qualifications and Opinions

Crosby holds “a Ph.D. in Veterinary Medical Science from the College of
Veterinary Medicine, University of Florida, with specialization in Veterinary Forensics;
[and] a Master of Science degree from the College of Veterinary Medicine, University of
Florida, with specialization in Veterinary Forensics.” (Dkt. 113-3 at 1). He is also “a
Certified Behavior Consultant—Canine-Knowledge Assessed.” (Id.). Crosby served as a
police officer with the Jacksonville Sheriff’s Office from 1977 to 1999, “performing
twenty-two years of active service.” (Id. at 3). During his career Crosby served as “a
Patrolman, a Sergeant, and a Lieutenant.” (Id.). He is a Certified Animal Control Officer
in the state of Florida and “served as the Animal Control Division Manager for Bay County,
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Florida, from February 2008 to September 2010.” (Id. at 2). He also served as “the acting
Chief of Animal Care and Protective Services for the City of Jacksonville, Florida from
March through December of 2016.” (Id.). Crosby has “trained police departments in the
proper and effective use of less- and non-lethal force; recognition of canine body language,
behavior, and dog bite risk analysis; and methods for safe engagement with domestic dogs
across the United States.” (Id.).
In his expert report, Crosby offers 23 opinions (id. at 18-24), which Defendants have
separated into five categories: (1) the Fourth Amendment (opinions 1, 3, and 7); (2) SWAT
tactics and operations (opinions 2, 4, 5, 6, 8, and 9); (3) “dogs, dog behaviors, and law
enforcement encounters with dogs” (opinions 10, 11, and 13); (4) firearms (opinion 12);
and (5) training and municipal liability (opinions 14-23) (Dkt. 113-1 at 5). Defendants
argue that Crosby “should be precluded from testifying as an expert in all five of the
proposed areas, mainly because he lacks expertise in the majority of them. His opinions
also lack factual support, are not reliable, and seek to tell the jury what to conclude.” (Dkt.
113-1 at 7). The Court considers these arguments below.
C.

Admissibility of Crosby’s Opinions
1.

Fourth Amendment Opinions (Opinions 1, 3, and 7)

Defendants first argue that Crosby should be precluded from offering opinions 1, 3,
and 7, regarding the Fourth Amendment and Nellist and Kelly’s entry into Plaintiff’s yard.
The Court need not reach this argument, because opinions 1, 3, and 7 are all related to
Plaintiff’s claim for an unreasonable search of her curtilage, on which the Court has already

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granted summary judgment to Defendants.

This portion of Defendants’ motion is

accordingly denied as moot.
2.

SWAT-Related Opinions (Opinions 2, 4, 5, 6, 8, and 9)

Defendants next argue that Crosby has “no SWAT experience or training” and that
his opinions on SWAT-related issues are not based on “sufficient facts on which to make
a reliable opinion.” (Dkt. 113-1 at 11). Plaintiff does not dispute that Crosby has no
expertise in SWAT-related issues, but argues that this argument is a “red herring” because
Crosby “is not offering an opinion on specialized SWAT tactics or procedures,” but instead
is focusing on “the straightforward issue” of “why Officers Nellist and Kelly chose to
trespass through Ms. Gursslin’s yard after the conclusion of the SWAT operation when
they could have simply exited through the vacant lot.” (Dkt. 116 at 20).
Opinion 2 reads in relevant part: “Any reasonable officer in 2018 would have known
that because exigent circumstances did not exist to justify entry into the yard, they were
required to request permission prior to entering the yard, or at least provide a warning to
the home’s occupants of their presence.” (Dkt. 113-3 at 18). “In deciding whether expert
testimony will be helpful to the fact-finder, the Court must determine whether the
testimony ‘usurps either the role of the trial judge in instructing the jury as to the applicable
law or the role of the jury in applying that law to the facts before it.’” Scott v. Chipotle
Mexican Grill, Inc., 315 F.R.D. 33, 48 (S.D.N.Y. 2016) (alteration omitted and quoting
United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999)). Opinion 2 not only runs afoul
of this prohibition, it offers a legal opinion on issues that have already been considered by
this Court in the First Summary Judgment D&O. It is not admissible under Rule 702.
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Opinion 4 reads: “Even as overwatch sniper units, Nellist and Kelly should have
been equipped with and prepared to use less-lethal tools should they have encountered any
person or animals not posing a threat of death or serious injury during their passage to and
from their position, especially considering that an uninvolved person or homeowner could
reasonably be expected to have confronted them, not recognizing they were police
officers.” (Dkt. 113-3 at 19). The Court agrees with Defendants that this opinion falls
outside the scope of Crosby’s expertise. Crosby has never been a member of a SWAT
team nor has he ever supervised a SWAT team. (Dkt. 113-5 at 6). Plaintiff has not
demonstrated by a preponderance of the evidence that Crosby has any basis of knowledge
regarding the proper equipment and training for a SWAT team’s overwatch sniper units.
Opinion 4 is not admissible under Rule 702.
Opinion 5 relates to Nellist and Kelly’s prior “scout” of Plaintiff’s back yard, and
reads in relevant part: “In short, they did nothing in the planning phase to learn whether
Nina or any other dog resided at the property, despite having the time and opportunity to
do so. Nellist and Kelly’s failure to conduct a proper scout or do anything whatsoever to
learn whether a dog resided at the property was unreasonable under the circumstances and
constituted a violation of good and accepted police practices and professional standards of
care.” (Dkt. 113-3 at 19). The Court does not find that this opinion is specifically related
to SWAT tactics or organization, as opposed to planning for the possible presence of a dog
in connection with the execution of a search warrant, which is a topic in which Crosby does
have expertise. Further, while Defendants argue that it is “demonstrably false” that Nellist
and Kelly took no steps to investigate whether a dog resided on the property, that argument
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is based solely on the fact that they conducted a scout (Dkt. 113-1 at 13), which Crosby
acknowledges in his expert report (Dkt. 113-3 at 19). This is a factual dispute, not a reason
to exclude expert testimony. Opinion 5 is admissible.
Opinion 6 reads:
Nellist and Kelly demonstrated a lack of situational awareness when they
reentered Ms. Gursslin’s back yard while exfiltrating from their Final
Operating Position. Prior to entering Ms. Gursslin’s back yard, they should
have recognized that there was an additional car parked in her driveway that
was not there when they arrived; that there were lights on inside of the house
that were not on when they arrived; and that the motion sensor light on the
side of the house was on. At this point, good and accepted police practices
and professional standards of care required that they radio to their supervisors
to learn whether anyone was home and whether it was safe to enter the yard.
At the least, they should have recognized the heightened possibility that they
might encounter a person or a dog in the yard, and paused and developed a
plan for what to do if they encountered a person or a dog in the yard. Their
failure to do so was unreasonable under the circumstances and contrary to
the actions of any reasonably and properly trained police officer and
constituted a violation of good and accepted police practices and professional
standards of care.
(Dkt. 113-3 at 19). Like opinion 5, opinion 6 is not SWAT-specific, but relates generally
to procedures after execution of a search warrant. Further, while Defendants attack the
factual basis for this opinion (Dkt. 113-1 at 12-13), their citations do not support their
argument. Defendants argue that Crosby did not “know whether Plaintiff’s vehicle in the
driveway was visible to the SWAT officers, because he did not know what kind of vehicle
Plaintiff drove or where (in relation to the other vehicle) Plaintiff parked in the driveway,”
citing “Crosby DC Depo. Tr. 46:15-49:21.” (Id.). “Crosby DC Depo. Tr.” refers to Exhibit
C to Defendants’ motion to preclude (see id. at 7), which is filed at Dkt. 113-5. But the
cited portions of Dkt. 113-5 have nothing to do with Plaintiff or where her car was parked
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on the night in question. (See Dkt. 113-5 at 20-3). Instead, they concern the use of tasers
and pepper spray during dog encounters. (Id.). Defendants have failed to properly support
their argument. The Court will not preclude opinion 6 on this basis.
Opinion 8 relates to Springer and Rivera’s supervision of the execution of the
HRSW. Specifically, opinion 8 concludes that Springer and Rivera did not properly
supervise and oversee the SWAT operation because “the uniformed police officers
stationed in front of Ms. Gursslin’s property—Herbert McClellan and Jonathan Kent—
failed to appreciate that Nellist and Kelly were exfiltrating from their final operating
position by walking through Ms. Gursslin’s back yard” and “[i]f Springer and Rivera had
properly informed McClellan and Kent, then they could have warned Ms. Gursslin on her
arrival at the home that police officers were using her backyard as part of the SWAT
operation and prevented her from going into her back yard on the morning of the incident.”
(Dkt. 113-3 at 20). The Court agrees with Plaintiff that this opinion is not specifically
related to SWAT tactics, as opposed to general law enforcement practices when accessing
citizens’ properties during the execution of a search warrant.
The Court further rejects Defendants’ contention that opinion 8 lacks a sufficient
factual basis. Defendants argue that “neither Officer McClellan nor Officer Kent saw
Plaintiff or anyone the morning prior to the dog being shot.” (Dkt. 113-1 at 13). But
Plaintiff testified that she and her boyfriend went up to a police officer in a car and asked
him what was going on. (Dkt. 116-12 at 47). And McClellan only testified that he did not
remember anyone coming to his car and speaking to him. (Dkt. 113-9 at 5). Again, this is

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a factual dispute, not a basis to preclude expert testimony. The Court will not exclude
opinion 8.
Finally, opinion 9 is that “Nellist and Kelly had no plan for the use of less-lethal or
non-lethal force regarding encountering Nina, or indeed any dog, in this incident. . . . In
2018, no reasonable and well-trained officer would fail to make and implement such a
plan—especially considering that they had at least one week prior to the incident to conduct
such an investigation—and the lack of planning directly led to the needless shooting of
Nina. Failure to recognize the availability of, or to attempt to use less- or non-lethal
methods in their encounter with Nina constituted objectively unreasonable action by Nellist
and Kelly.” (Dkt. 113-3 at 20). This opinion has nothing to do with the specifics of SWATrelated operations, and is within the scope of Crosby’s expertise. The Court will not
preclude opinion 9.
Defendants also make a general argument that Crosby’s opinions regarding “good
and accepted police practices” and “professional standards of care” are unreliable. (Dkt.
113-1 at 13-14). The Court is unpersuaded by this argument, which cites no case law.
Crosby’s opinions are based on his experience and training. The Second Circuit has upheld
the admission of a law enforcement expert’s testimony on “what minimally accepted police
practices required” and how a defendant’s “conduct departed from accepted police
practices.” Restivo v. Hessemann, 846 F.3d 547, 580 (2d Cir. 2017).
The Court is also unpersuaded by Defendants’ argument that opinions 5 and 9
contradict one another, such that Crosby is not a reliable witness. (See Dkt. 113-1 at 14).
Defendants argue that it is inherently contradictory to acknowledge that Kelly and Nellist
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scouted Plaintiff’s property but to also opine that they took no steps to ascertain whether a
dog resided at the property. (Id.). But in reviewing Crosby’s expert report, it is clear that
his view is that during the scout, Kelly and Nellist took no steps to ascertain whether a dog
resided at the property. There is no inherent contradiction.
3.

Opinions on Dog Behavior and Dog Encounters (Opinions 10, 11,
and 13)

Defendants next seek to preclude Crosby’s opinions on dog behavior and dog
encounters, arguing that: (1) expert testimony on this topic is not needed; (2) Crosby seeks
to replace the jury and not to aid it; (3) Crosby has not adequately defined “good and
accepted police practices”; and (4) Crosby has not reliably applied his principles to the
facts of this case. (Dkt. 113-1 at 14-17). The Court is unpersuaded by these arguments.
As to the first argument, while lay people may be generally familiar with dogs, the
Court finds that the jury would benefit from expert opinion on police tactics for dealing
with pet dogs. Most jurors have no law enforcement experience, and are unlikely to be
familiar with the circumstances in which law enforcement are likely to encounter pet dogs,
or what options they have available to them in such circumstances.
Defendants’ second argument fails as a matter of law. Defendants argue that Crosby
“should also be precluded, because he impermissibly decides a jury question.” (Dkt. 1131 at 15). But Federal Rule of Evidence 704(a) expressly provides that “[a]n opinion is not
objectionable just because it embraces an ultimate issue.” This is not a basis to preclude
Crosby’s testimony.

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The Court has already rejected Defendants’ third argument regarding “good and
accepted police practices,” and that analysis applies with equal force here. Finally,
Defendants’ fourth argument is nothing more than a disagreement with Crosby’s
conclusions regarding Kelly’s placement of his rifle bag between himself and Nina.
Specifically, Crosby has criticized Kelly for throwing the bag down in front of Nina instead
of holding it between himself and the dog. (See Dkt. 113-1 at 17). Defendants contend
that this is an improper conclusion by Crosby regarding the use of a barrier versus a shield
(see id.), but this is merely their interpretation of Crosby’s testimony. Defendants are free
to cross-examine Crosby on this topic at trial. The Court will not preclude Crosby from
testifying regarding dog behavior and dog encounters.
4.

Firearms Opinion (Opinion 12)

Defendants contend that Crosby’s opinion 12 relates to firearms and that he is not
an expert in this topic. (Dkt. 113-1 at 17). Defendants further argue that this opinion is
unsupported by facts. (Id. at 17-18).
Opinion 12 states:
Nellist and Kelly were, by their own admission, firing without regard for any
potential collateral risk to person(s) that might have been behind Nina in the
yard or in Ms. Gursslin’s home. Nellist and Kelly never checked for other
occupants in the yard or in the home, nor did they contact Plaintiff to
ascertain whether there were other animals or persons within the home
lawfully. Nellist and Kelly fired their sidearms at Nina as Ms. Gursslin was
in the backyard just several feet behind Nina. They also fired while facing
towards the back of Ms. Gursslin’s home, where Ms. Gursslin’s downstairs
neighbors were present in their apartment, and her boyfriend was present in
the upstairs apartment. Nellist and Kelly should have recognized that a
distinct possibility existed that a human or other animal subject could have
been within the yard and the home and thereby needlessly and recklessly
exposed to injury or death from one or more of the bullets fired.
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(Dkt. 113-3 at 21). The Court disagrees that this is an opinion about firearms, as opposed
to an opinion about when it is appropriate for a police officer to use his firearm and what
he should take into consideration before doing so. Crosby’s law enforcement experience
and training qualifies him to opine on a police officer’s use of his firearm.
Defendants’ factual attacks on this opinion lack merit. Defendants claim that it is
“possible” that Nellist and Kelly were not facing Plaintiff’s house when they shot Nina
(Dkt. 113-1 at 18), but it is equally possible that they were. Defendants also claim that it
is “misleading to state that the officers Nellist and Kelly fired their sidearms at Nina as Ms.
Gursslin was in the backyard just several feet behind Nina when neither Sgt. Kelly nor
Officer Nellist saw Plaintiff prior to shooting the dog or knew anyone was in the yard.”
(Id. (quotation and citations omitted)). But this argument actually reinforces Crosby’s
conclusions. Kelly and Nellist did not ascertain whether there were human beings present
in the yard before opening fire, causing them to shoot bullets only feet from Plaintiff, who
was doing nothing more than standing in her own yard. The Court will not preclude
opinion 12.
5.

Training and Municipal Liability Opinions (Opinions 14-23)

Finally, the Court considers Defendants’ argument that Crosby should not be
permitted to opine on issues related to municipal liability. Defendants contend that Crosby
is not an expert on municipal liability and that he improperly attempts to take the role of
the jury. (Dkt. 113-1 at 14-15). The Court has carefully reviewed opinions 14 through 23
and finds that only opinion 14 can fairly be said to be about municipal liability as a legal
concept, as opposed to the adequacy of the RPD’s training regarding use of force in dog
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encounters. The Court does agree with Defendants that opinion 14, which states, “In my
professional opinion, the City of Rochester exhibited deliberate indifference by failing to
provide any of the free and effective trainings that were widely available and easily
accessible regarding how to safely and lawfully interact with dogs” (Dkt. 113-3 at 21), goes
beyond the scope of Crosby’s expertise. “Deliberate indifference” is—as discussed further
below—a legal concept that has a specific meaning in this context, and Crosby has no
particular expertise in whether or not that definition has been satisfied. The Court will
preclude opinion 14 on this basis. But opinions 15 through 23 do not suffer from similar
infirmities.
Defendants have also made specific factual arguments about opinions 19 and 21.
(Dkt. 113-1 at 20). As to opinion 19, in which Crosby “states that the City should have
taken notice of the demonstrably effective trainings on dog encounters and provided those
effective trainings to RPD officers,” Defendants argue that Crosby “does not know how
many dogs [sic] shootings occurred in each year or if the annual numbers decreased after
the City gave” a training in 2014. (Id.). But Defendants have not provided the Court with
the portions of Crosby’s deposition transcript that they claim support this argument.
Defendants cite “Crosby DC Depo. Tr. 107:2-16.” (Dkt. 113-1 at 20). As noted above,
this is Exhibit C to Defendants’ motion to preclude, filed at Dkt. 113-5. But Dkt. 113-5
does not contain a page numbered 107. It goes directly from a page numbered 91 to a page
numbered 123. (Dkt. 113-5 at 34-35). The Court lacks any basis, on the record before it,
to conclude that opinion 19 is not based on sufficient facts.

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Opinion 21 is about the training provided by the RPD to its officers, and includes
the opinion that “best practices require at least a four-hour training.” (Dkt. 113-3 at 23).
Defendants argue that this opinion is outside Crosby’s expertise, because he “does not have
advanced education or training in teaching, course development, pedagogy, etc.” (Dkt.
113-1 at 20). But an expert may be qualified based on any of “knowledge, skill, experience,
training, or education.” Fed. R. Civ. P. 702. Crosby has significant experience in training
law enforcement officers how to interact with dogs, and his lack of formal training in
teaching and course development does not prevent him from being an expert in this field.
For all these reasons, the Court grants Defendants’ motion to preclude (Dkt. 113) as
to opinions 2, 4, and 14. Defendants’ motion to preclude is otherwise denied.
II.

Defendants’ Motion for Partial Summary Judgment
A.

Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment
should be granted if the moving party establishes “that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The Court should grant summary judgment if, after considering the evidence in
the light most favorable to the nonmoving party, the court finds that no rational jury could
find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). “The moving party
bears the burden of showing the absence of a genuine dispute as to any material fact[.]”
Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). “Where the
non-moving party will bear the burden of proof at trial, the party moving for summary
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judgment may meet its burden by showing the evidentiary materials of record, if reduced
to admissible evidence, would be insufficient to carry the non-movant’s burden of proof at
trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
Once the moving party has met its burden, the opposing party “must do more than
simply show that there is some metaphysical doubt as to the material facts, and may not
rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra
Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654
F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-moving party “must come forward
with specific evidence demonstrating the existence of a genuine dispute of material fact.”
Brown, 654 F.3d at 358. Indeed, “the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
B.

Unreasonable Seizure of a Person Claim

Defendants seek summary judgment on Plaintiff’s claim that she was unreasonably
seized by Nellist and/or Kelly, arguing that: (1) Plaintiff did not plead the elements of a
seizure of her person; and (2) no facts support the conclusion that Plaintiff was seized by
Nellist or Kelly. (Dkt. 114-1 at 9-11). The first of these arguments fails as a procedural
matter. As the Second Circuit recently explained, “[t]he different standards generally
applicable to motions to dismiss and for summary judgment serve distinct purposes, each
tailored to addressing the unique considerations that arise at successive stages of the
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litigation.” Lugo v. City of Troy, 114 F.4th 80, 89 (2d Cir. 2024). As such, it is a reversible
procedural error for the Court to “resolve[] a summary-judgment motion as a pleadings
motion[.]” Id. At this stage of the proceedings, the adequacy of Plaintiffs’ pleadings is
not the relevant inquiry, and the Court will not grant summary judgment on this basis.
But the Court agrees with Defendants that there is no evidence in the record from
which a reasonable jury could conclude that Plaintiff was seized. “[A] seizure does not
occur simply because a police officer approaches an individual and asks a few questions.
So long as a reasonable person would feel free to disregard the police and go about his
business, the encounter is consensual and no reasonable suspicion is required.” Florida v.
Bostick, 501 U.S. 429, 434 (1991) (quotation and citation omitted). “Only when the officer,
by means of physical force or show of authority, has in some way restrained the liberty of
a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19
n.16 (1968). The Second Circuit has explained:
Pertinent factors identifying a police seizure can include the threatening
presence of several officers; the display of a weapon; physical touching of
the person by the officer; language or tone indicating that compliance with
the officer was compulsory; prolonged retention of a person’s personal
effects, such as airplane tickets or identification; and a request by the officer
to accompany him to the police station or a police room.
Brown v. City of Oneonta, N.Y., 221 F.3d 329, 340 (2d Cir. 2000) (citations and quotations
omitted).
Plaintiff does not claim that Nellist or Kelly ever gave her any commands or pointed
their weapons at her. Instead, Plaintiff argues that she was seized “under a theory of
transferred intent” because Nina was shot while Plaintiff was standing just three feet behind
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her. (Dkt. 117 at 8-9). This argument is foreclosed by the Second Circuit’s decision in
Medeiros v. O’Connell, 150 F.3d 164 (2d Cir. 1998). In Medeiros, the police accidentally
shot a teenager while firing at the armed robber who was holding him hostage. Id. at 166.
The Second Circuit held as a matter of law that the teenager had not been seized, “because
the police did not intend to restrain” the teenager. Id. at 169. The Second Circuit explained
that these sorts of “unintended consequences” cannot form the basis for a Fourth
Amendment seizure claim. (Id.). Plaintiff’s theory that a person is seized via transferred
intent whenever the police discharge a firearm in that person’s vicinity cannot be reconciled
with Medeiros. Defendants are entitled to summary judgment on Plaintiff’s claim for
seizure of her person.
C.

Unreasonable Seizure of Property (Nina) Claim

Defendants seek summary judgment on Plaintiff’s claim for an unreasonable seizure
of Nina, arguing that: (1) Plaintiff lacks standing to assert this claim, because Nina was her
foster dog; and (2) the seizure of Nina was reasonable. (Dkt. 114-1 at 12-20). The Court
is not persuaded by these arguments, for the reasons below.
1.

Status as Foster Dog

“A seizure of property occurs where there is some meaningful interference with an
individual’s possessory interests in that property.” Soldal v. Cook Cnty., Ill., 506 U.S. 56,
63 (1992) (quotation and citation omitted). “To claim an unconstitutional seizure, ‘a party
must first assert a possessory interest in an item seized.’” Newsome v. Bogan, 617 F. Supp.
3d 133, 146 (W.D.N.Y. 2022) (quoting United States v. Fields, 113 F.3d 313, 320 (2d Cir.
1997)).
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“Property interests are created and defined by state law.” Butner v. United States,
440 U.S. 48, 55 (1979). Under New York law regarding the licensing, identification, and
control of dogs, “owner” is defined to mean “any person who harbors or keeps any dog.”
N.Y. Agric. & Mkts. Law § 108(15). “Harbor” is defined as “to provide food or shelter to
any dog.” Id. § 108(10). Plaintiff was indisputably harboring and keeping Nina, who had
lived with and been cared for by her for more than two years. Plaintiff thus met the New
York definition of “ownership” of Nina. Cf. Chappell v. Horsham Twp. Police Dep’t, No.
2:16-CV-02650, 2018 WL 6075096, at *5 (E.D. Pa. Nov. 20, 2018) (finding that individual
who was keeping foster dog “on his premises and in his care” had a possessory interest
because “[u]nder Pennsylvania’s Dog Law, a dog’s owner ‘includes every person having a
right of property in such dog, and every person who keeps or harbors such dog or has it in
his care, and every person who permits such dog to remain on or about any premises
occupied by him’” (citing 3 Pa. Stat. Ann. § 459-102)).
Defendants argue in reply that New York law “distinguishes between ‘owners’ and
‘owners of record’” and that “only ‘owners of record’ possess the ability to redeem a dog
confiscated by animal control officers.” (Dkt. 119 at 4-5). But New York law also states
that “[i]f it cannot be determined in whose name any dog was last licensed . . ., the owner
shall be deemed to be the owner of record of such dog[.]” N.Y. Agric. & Mkts. Law
§ 108(16). Defendants’ counsel has submitted a sworn declaration stating that “[t]he City
of Rochester Clerk’s Office, which licenses all dogs in the City of Rochester, did not find
a license for the dog Nina in its business records.” (Dkt. 114-2 at ¶ 24). On the record
before this Court, Plaintiff appears to have been both the owner and the owner of record of
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Nina under New York law. Defendants have not demonstrated that summary judgment
should be granted based on lack of standing.
Nor does the Court agree with Defendants that it should abstain from resolving this
issue pursuant to Railroad Commission of Texas. v. Pullman Co., 312 U.S. 496 (1941).
(See Dkt. 114-1 at 14-15). “Three criteria must be established in order to justify abstention
on Pullman grounds: (1) an unclear state statute or uncertain state law issue; (2)
determination of the federal issue turns upon resolution of the unclear state law provision;
and (3) the state law provision is susceptible to an interpretation that would avoid or modify
the federal constitutional question presented.” Planned Parenthood of Dutchess-Ulster,
Inc. v. Steinhaus, 60 F.3d 122, 126 (2d Cir. 1995). The first of these criteria is not met in
this case—New York’s statute defining dog ownership is not unclear. It provides a simple,
easily applied definition that clearly applies to Plaintiff. The fact that no state court has
opined on the operative issue does not render this straightforward state statute unclear. Id.
(“The regulations at issue are neither ambiguous nor unintelligible, nor are they rendered
‘unclear’ merely because no state court has yet construed them.”). It would be error for
the Court to abstain under Pullman in this case, where New York law is “neither unclear
nor tangled[.]” Id. at 27 (quotation omitted).
2.

Reasonableness of the Seizure

Having determined that Plaintiff has standing, the Court turns to the reasonableness
of the seizure.

“[T]he unreasonable killing of a companion animal constitutes an

unconstitutional ‘seizure’ of personal property under the Fourth Amendment.” Carroll v.
Cnty. of Monroe, 712 F.3d 649, 651 (2d Cir. 2013). In assessing reasonableness, a court
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“must balance the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the governmental interest alleged to justify
the intrusion and determine whether the totality of the circumstances justified the particular
sort of seizure.” Id. (quotation and alterations omitted).
Killing a person’s pet dog is “a severe intrusion given the emotional attachment
between a dog and an owner.” Id.; see also Ray v. Roane, 948 F.3d 222, 227 (4th Cir.
2020) (“private interests in dogs—and family pets especially—are highly significant since
dogs have aptly been labeled Man’s Best Friend, and certainly the bond between a dog
owner and his pet can be strong and enduring” (quotations omitted)). As such, “when a
dog is seized—and especially, as here, where it is killed, not merely injured or detained—
the intrusion on the owner weighs heavily in favor of finding the seizure unreasonable[.]”
Matteson v. Hall, No. 18-CV-6772, 2019 WL 2192502, at *7 (W.D.N.Y. May 21, 2019)
(quotation omitted and collecting cases).
But on the other hand, ensuring officer safety is a significant governmental interest.
Carroll, 712 F.3d at 651. Accordingly, “in some circumstances, it is reasonable for an
officer to shoot a dog that he believes poses a threat to his safety or the safety of the
community.” Id. “Though an officer need not wait to be mauled or attacked before
employing force in self-defense, the officer may not utilize deadly force against a dog
unless there is an actual basis to believe that the dog posed an imminent threat.” Azurdia
v. City of New York, No. 18-CV-04189-ARR-PK, 2019 WL 1406647, at *8 (E.D.N.Y. Mar.
28, 2019) (quotation omitted). Relevant factors in ascertaining reasonableness include the
context in which the officer encountered the dog, the dog’s behavior and temperament, the
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dog’s breed, whether the owner was available and willing to assert control over the dog,
whether non-lethal means were available to control the dog, and whether there was time to
find an alternative solution to control the dog. See Matteson, 2019 WL 2192502, at *8; see
also Strong v. Perrone, No. 17-CV-6183-FPG, 2020 WL 1445877, at *3 (W.D.N.Y. Mar.
25, 2020).
Defendants claim that the shooting of Nina was justified as a matter of law because
she was a pit bull mix, because they did not know that Plaintiff was available to restrain
the dog, because they had not seen evidence of a dog when they previously scouted
Plaintiff’s yard, because Nina approached them “quickly and aggressively,” because Kelly
first tried to control Nina by placing a rifle bag between himself and Nina, and because
they had limited escape options. (Dkt. 114-1 at 17-19). Defendants’ argument assumes
that a reasonable jury would have to accept Nellist’s and Kelly’s account of the incident.
This is incorrect. A reasonable jury could disagree with many of the “facts” offered by
Defendants in support of their argument.
Beginning with Nina’s breed, while it is undisputed that she was a pit bull mix, there
is also evidence in the record that she had a deformity in her legs. Plaintiff testified at her
deposition that the joints in Nina’s back legs “bent funny” and that this made her hind legs
look different from a normal dog’s. (Dkt. 117-4 at 157-58). While Defendants contend
that Kelly and Nellist could not see this deformity because it was dark outside (see Dkt.
119 at 5), that is a question of fact for a jury to decide. Plaintiff testified at her deposition
that a motion sensor light in her backyard was on at the time of the incident. (See Dkt.
117-4 at 156-57).
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There is also an issue of fact as to whether Nina unexpectedly approached Nellist
and Kelly in an aggressive manner. Plaintiff, who was within feet of Nina, will testify that
she never heard Nina growl or bark. Plaintiff will also testify that she was calling Nina’s
name in the yard prior to the shooting. A reasonable jury could infer that Nellist and Kelly
were or should have been aware of both Plaintiff’s and Nina’s presence.
A reasonable jury could also conclude that Nellist and Kelly had ample opportunity
to develop a plan that did not involve entering Plaintiff’s yard without her knowledge or
consent, and thus running the risk of encountering an unsuspecting pet. The reasonableness
of a Fourth Amendment seizure is a fact-intensive inquiry, and the record before the Court
does not support the conclusion that Nellist’s and Kelly’s actions were reasonable as a
matter of law.
Nor does the Court find that Nellist or Kelly is entitled to qualified immunity.1 It
was clearly established at the time of Nina’s death that the killing of a pet without
justification violates the Fourth Amendment. See Strong, 2020 WL 1445877, at *6 (“It is
further clearly established that killing a pet without justification constitutes a Fourth
Amendment violation.” (quotation omitted)); Matteson, 2019 WL 2192502, at *8 (“At the
time of [the dog’s] death, the law clearly established that the fatal seizure of a pet dog
without justification constituted a Fourth Amendment violation.”). Defendants argue that
Nina—who, again, had a leg deformity—was “charging” Nellist and Kelly (Dkt. 114-1 at

1

Defendants’ qualified immunity argument is limited to Nellist and Kelly; they do
not make a qualified immunity argument as to Rivera and Springer. (See Dkt. 114-1 at 2021).
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20-21), but that argument characterizes the facts in the light most favorable to Defendants.
There are genuine issues of material fact regarding whether Nina was acting in a way that
would have caused a reasonable officer to believe that the shooting was justified. Summary
judgment on the basis of qualified immunity is not warranted.
The Court also rejects Defendants’ arguments that the City is entitled to summary
judgment on the claim for unlawful seizure of Nina.2 This Court recently issued a Decision
in Order in Dempsey v. City of Rochester, a matter in which the plaintiff—who is
represented by the same counsel as the plaintiff in this case—sued the City for the shooting
death of his dog in October 2018, one month after Nina was shot. Dempsey v. City of
Rochester, No. 6:19-CV-06780 EAW, Dkt. 104 (W.D.N.Y. Jan. 2, 2025). In Dempsey, the
Court detailed the evidence—including an expert report by Crosby—establishing a genuine
issue of material fact on municipal liability. (Id. at 23-25). In particular, the Court
explained that there was a genuine issue of material fact as to whether there had been “a
failure by policymakers to provide adequate training or supervision to subordinates to such
an extent that it amounts to deliberate indifference to the rights of those who come into
contact with the municipal employees.” (Id. at 23 (quoting Brandon v. City of New York,
705 F. Supp. 2d 261, 277 (S.D.N.Y. 2010)). The same evidence that precluded summary
judgment in favor of the City in Dempsey is available to Plaintiff and precludes summary
judgment here.

2

While Plaintiff has asserted “municipal liability” as a separate cause of action,
municipal liability is “an extension of liability, not an independent cause of action[.]” Soto
v. City of New York, 132 F. Supp. 3d 424, 459 (E.D.N.Y. 2015). The Court accordingly
has assessed the viability of the unlawful seizure of Nina claim as asserted again the City.
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The Court further finds that Springer and Rivera are not entitled to summary
judgment on the claim for seizure of Nina. Defendants argue that Springer and Rivera had
no personal involvement in the seizure. (Dkt. 114-1 at 21-22). To be held liable under
§ 1983, a defendant must have violated the plaintiff’s constitutional rights “through the
official’s own individual actions[.]” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir.
2020).
In this case, Rivera and Springer oversaw the SWAT operation that resulted in
Nina’s death. Rivera was listed as the incident commander on the After Action Report.
(Dkt. 123-2 at 129). He testified at his deposition that it was his responsibility to review
and approve all SWAT operation plans, including the one for the incident involved in this
lawsuit. (Id. at 142-43). Rivera approved the plan to infiltrate and exfiltrate through
Plaintiff’s yard. (Id. at 159). There is also evidence that Springer was aware of and
approved the planned route. (See, e.g., Dkt. 123-4 at 130-33). A reasonable juror could
conclude that Rivera and Springer were directly involved in the plan to use Plaintiff’s yard
without her knowledge or consent, and without confirming that no pets lived in the home
or were likely to be encountered in the yard, and that this constituted personal involvement
in Nina’s death. See generally Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir. 2014)
(“[P]lanners may be liable under section 1983 to the extent that a plan for a search or
seizure, as formulated and approved by those defendants, provides for and results in an
unconstitutionally excessive use of force.”). Rivera and Springer are not entitled to
summary judgment on the claim for unlawful seizure of Nina on the record before the
Court.
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CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Defendants’
motion to preclude Plaintiff’s expert witness (Dkt. 113) and grants in part and denies in
part Defendants’ motion for partial summary judgment on Plaintiff’s seizure claims (Dkt.
114). In particular, the Court grants the motion to preclude as to opinions 2, 4, and 14, and
otherwise denies the motion to preclude. The Court grants the motion for partial summary
judgment as to the claim for seizure of Plaintiff against all Defendants, but denies the
motion for partial summary judgment as to the claim for seizure of Nina against all
Defendants.
SO ORDERED.

________________________________
____
__________________________________
ELIZABETH
ELIZA
ABETH A. WOLFORD
WOLFORD
Judge
Chief Jud
dge
United States District Court
Dated: January 3, 2025
Rochester, New York

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