Case Law & Resources: New York
Citation
Owens v. City of New York, 183 A.D.3d 903, 124 N.Y.S.3d 695, 2020 N.Y. Slip Op. 03019
Issue Presented & Facts
Whether NY Supreme Court correctly granted defendant's motion for summary judgment regarding plaintiff's wrongful death action against the City of New York, Deputy Inspector, Sergeants, and Police Officers.
Fatal shooting of an 18–year–old by members of the New York City Police Department (hereinafter NYPD). The plaintiff, who is the decedent's mother, called 911 requesting assistance at her Brooklyn apartment after a verbal dispute with the decedent. The decedent was shot 14 times during the ensuing encounter with the police.
Holding
Where an officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others, it is not unreasonable under the Fourth Amendment to prevent escape by using deadly physical force.
Affirmed Supreme Court's determination granting defendants' motion dismissing the wrongful death cause of action asserted against the City as alleged that officers failed to follow the City's Police Department Patrol Guide (hereinafter Patrol Guide) for the apprehension of barricaded and emotionally disturbed persons.
Deny Supreme Court's determination granting summary judgment dismissing so much of the wrongful death cause of action asserted against the City as alleged that the defendant officers were negligent in using deadly physical force because "the City may not rely on the defense of governmental immunity because the defendant officers' actions, if negligent, would be in violation of the Patrol Guide's prohibition against the use of deadly physical force, and therefore, not discretionary."
Deny Supreme Court's determination granting summary judgment dismissing so much of the section 1983 cause of action against the defendant officers as was based on the alleged use of excessive force by those defendants other than for the “number of shots fired.”
Reference to 4th amendment; NYPD patrol guide.
People v. Colecchia, 251 A.D.2d 5, 674 N.Y.S.2d 10, 1998 N.Y. Slip Op. 05133
Whether NY Supreme Court abused its discretion by convicting officer of manslaughter in the second degree. Officer shot suspect who was fleeing.
"The verdict was based upon legally sufficient evidence […] Given the trial court's credibility determinations, there was overwhelming evidence that the fatal shot fired by defendant, into the victim's back while the victim was fleeing, was reckless and unjustified, and, in light of these circumstances, we reject defendant's contention that expert testimony on police training and guidelines was essential to establish recklessness."
"The trial court's consideration of Penal Law § 35.30 and the elements of manslaughter provided the appropriate standard by which to measure the reasonableness of defendant police officer's conduct. It has been held that even if a defendant is justified in using deadly physical force at the beginning of a single, ongoing encounter with an assailant, his right to use that force terminates at the point where he can no longer reasonably believe that the assailant still poses a threat to him."
Reference to NY Penal Law 35.30.
People v. Rivera, 167 A.D.3d 550, 91 N.Y.S.3d 29, 2018 N.Y. Slip Op. 09024
Whether NY Supreme Court properly found defendants guilty of attempted gang assault and falsifying business records, among other crimes.
Correction officers claimed to have defended themselves against an inmate wielding a knife whereas inmate claimed he was complying with a search when the officers attacked him.
Judgments affirmed. "The court properly declined to charge justification pursuant to Penal Law §§ 35.10(2) and 35.30(1) as to defendants Rodriguez, Parker, Parra, and Rivera. This case presented a straightforward credibility contest, in which defendants and other correction officers alleged in their written reports that the officers used force to defend themselves against the victim who was wielding a knife, but the victim testified that he was merely complying with a search when the officers suddenly initiated an attack against him without provocation. The court issued a proper justification charge based on the officers' accounts (Penal Law § 35.15), but properly declined to charge justification under the other statutes, which are limited to special situations. In any event, any error was harmless because the absence of the initial aggressor exclusion in the additional justification statutes at issue would not have benefited defendants, who would not have been considered initial aggressors in the first place if the jury had credited their accounts."
Reference to NY Penal Law 35.30.
Koeiman v. City of New York, 36 A.D.3d 451, 829 N.Y.S.2d 24, 2007 N.Y. Slip Op. 00088.
Whether NY Supreme Court correctly found that officers utilized excessive force in arresting the decedent.
Decedent entered precinct station and hit an officer. A second officer tackled decedent and the first officer. The officers arrested decedent. Decedent's leg was injured during the incident.
Note: Determining whether a police officer wielded excessive force requires fact-specific analysis in which an array of factors may be relevant, including the nature of the officer's intrusion, the severity of the crime, whether the suspect posed an immediate threat, and whether the arrest was actively resisted.
"Viewing the evidence in the light most favorable to plaintiff and according her the benefit of every reasonable inference we find that it was insufficient as a matter of law to permit the jury to find that the officers used excessive force. The evidence adduced at trial regarding the incident—principally the testimony of Officers Mondello and Carson—demonstrated that the decedent, without provocation or justification, assaulted Officer Mondello, that decedent resisted Officer Mondello's efforts to restrain him, and that the officers used the amount of force they reasonably believed was necessary to subdue and handcuff the decedent. Moreover, the incident rapidly unfolded and required the officers to make a split-second decision regarding the amount of force to employ. Plaintiff submitted no evidence—expert or otherwise—demonstrating that the force used by the officers, judged from the perspective of a reasonable officer on the scene, was excessive. Accordingly, we reverse the judgment and dismiss the complaint."
Reference to 4th Amendment.
Taran v. State, 186 A.D.2d 794, 589 N.Y.S.2d 74.
Whether NY court of claims correctly found that officer was not justified in the use of deadly physical.
Officer shot suspect after pulling him over for "weaving" while driving. Officer claims to have shot suspect because he feared that suspect was trying to run him over.
Cites two-step analysis set forth in People v. Goetz to determine whether deadly physical force was justified under the circumstances.
People v. Wesley, 76 N.Y.2d 555, 563 N.E.2d 21, 561 N.Y.S.2d 707: "To determine whether a defendant's conduct was justified under Penal Law § 35.15, a two-step inquiry is required. The jury must first determine whether defendant actually believed that deadly physical force was necessary (see, People v. Goetz, supra, at 115, 506 N.Y.S.2d 18, 497 N.E.2d 41). If the People fail to meet their burden of proving that defendant did not actually believe that the use of deadly physical force was necessary, then the jury must move to the second step of the inquiry and assess the reasonableness of this belief. We held in Goetz that Penal Law § 35.15 requires a jury to consider both subjective and objective factors in determining whether a defendant's conduct was reasonable. We stated that “a determination of reasonableness must be based on the ‘circumstances' facing a defendant or his ‘situation’ [...] [A] jury should be instructed to consider this type of evidence in weighing the defendant's actions.” Evidence of a defendant’s “circumstances” includes relevant knowledge that the defendant may have had about the victim, the physical attributes of all those involved in the incident, and any prior experiences that the defendant may have had “which could provide a reasonable basis for a belief that another person's intentions were to injure or rob him or that the use of deadly force was necessary.”
"The State's argument that the Court of Claims erred in ruling that the State did not meet its burden of proof as to justification is without merit. The court's written decision makes it clear that its determination that Trooper Faure's belief that deadly physical force was necessary was unreasonable in view of the circumstances, was a conclusion drawn from the evidence presented by both parties. This court will not disturb the trial court's findings and determinations unless they are against the weight of the evidence or contrary to law. A trial court's resolution of questions of credibility is particularly within its domain and should not be disturbed on appeal if supported by the record. Moreover, we note, as the State concedes on appeal, that the court properly identified the two-step analysis set forth in People v. Goetz (68 N.Y.2d 96, 112–115, 506 N.Y.S.2d 18, 497 N.E.2d 41), to determine whether deadly physical force was justified under the circumstances of this case (see also, People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 563 N.E.2d 21). Based upon our review of the court's decision, we cannot agree that it failed to consider sufficiently the relevant objective factors to determine the reasonableness of the trooper's decision to use deadly force in this case."
Reference to NY Penal Law 35.15.
Passino v. State, 175 Misc.2d 733, 669 N.Y.S.2d 793, 1998 N.Y. Slip Op. 98100
Whether police officer's use of pepper spray constituted excessive force.
Arrestee sued state claiming police officer used excessive force when he sprayed arrestee with pepper spray.
"Police officer's use of single burst of pepper spray to compel arrestee to remove his hands from his pockets so that he could be handcuffed for transporting did not involve excessive use of force, where arrestee was intoxicated, arrestee refused repeated requests to remove hands from pockets, arrestee was given ample warning that pepper spray would be used, and arrestee did not sustain serious or permanent injuries."
Reference to NY Penal Law 35.30.
Koeiman v. City of New York, 36 A.D.3d 451, 829 N.Y.S.2d 24, 2007 N.Y. Slip Op. 00088.
Whether NY Supreme Court correctly found that officers utilized excessive force in arresting the decedent.
Decedent entered precinct station and hit an officer. A second officer tackled decedent and the first officer. The officers arrested decedent. Decedent's leg was injured during the incident.
Note: Determining whether a police officer wielded excessive force requires fact-specific analysis in which an array of factors may be relevant, including the nature of the officer's intrusion, the severity of the crime, whether the suspect posed an immediate threat, and whether the arrest was actively resisted.
Whether NY Supreme Court correctly found that officers utilized excessive force in arresting the decedent.
Decedent entered precinct station and hit an officer. A second officer tackled decedent and the first officer. The officers arrested decedent. Decedent's leg was injured during the incident.
Note: Determining whether a police officer wielded excessive force requires fact-specific analysis in which an array of factors may be relevant, including the nature of the officer's intrusion, the severity of the crime, whether the suspect posed an immediate threat, and whether the arrest was actively resisted.
Pacheco v. City of New York, 104 A.D.3d 548, 961 N.Y.S.2d 408, 2013 N.Y. Slip Op. 01899
Whether the NY Supreme Court correctly found that officers utilized excessive force by using a Taser "stun gun" to subdue plaintiff.
In response to a 911 call that plaintiff had suffered seizures, two police officers and medical personnel arrived at plaintiff's apartment. Plaintiff became violent and attacked the personnel. Officers subdued plaintiff with a Taser.
"Here, given plaintiff's repeated outbursts and the police officers' testimony that he was emotionally disturbed, it was reasonable to taser him so that he could be hospitalized. Since the Patrol Guide of the New York City Police Department permits an officer to use a Taser to restrain an emotionally disturbed person who threatens injury to himself or others (Procedure No. 216–05 at 5), the officer's action comported with acceptable police practice. Plaintiff's expert witness, a retired police officer who testified to the contrary, did not furnish any basis for his conclusion that the officers departed from established protocol. Accordingly, we reverse the judgment and dismiss the complaint."
Reference to 4th amendment; Patrol Guide.
Passino v. State, 260 A.D.2d 915, 689 N.Y.S.2d 258, 1999 N.Y. Slip Op. 03619
Whether NY Court of Claims correctly concluded that Officer's use of the spray was objectively reasonable and did not constitute excessive force.
"In preparation for claimant's transport from one State Police barracks to another after his arrest, [Trooper] advised claimant—who was agitated and had just kicked the exterior door of the Keeseville State Police barracks—that he had to be handcuffed. In response, claimant defiantly placed his hands into his pockets. According to [Trooper], claimant refused his two verbal requests for him to remove his hands. [Trooper] then placed a hand on claimant's elbow in an attempt to remove his hands, to no avail. He also showed him the pepper spray and warned that his failure to comply would result in its use. [Trooper] made three more verbal requests to comply, which were ignored, before administering pepper spray in claimant's face."
Discusses use of force continuum: "Indeed, it was established at trial that State Police guidelines governing the use of force to subdue an arrestee include six steps; namely, the physical presence of an officer, employment of a verbal command, placement of a hand on the arrestee, the use of pepper spray, the use of physical force and the use of deadly physical force."
"Claims that law enforcement personal used excessive force in the course of an arrest, investigatory stop or other prearraignment seizure are analyzed under the 4th Amendment and its standard of objective reasonableness. Here, claimant had been lawfully arrested for driving while intoxicated, was agitated and exhibited belligerent behavior and refused repeated requests to remove his hands from his pocket to be handcuffed. [Trooper] followed State Police policy governing the use of force by complying with levels one through three of the guidelines before employing the use of pepper spray. Given these facts, we agree with the Court of Claims' conclusion that [Trooper's] use of the spray was objectively reasonable under the circumstances to effect control over claimant and did not constitute excessive force."
Reference to 4th amendment; State Police guidelines.
Harris v. City of New York, 153 A.D.3d 1333, 62 N.Y.S.3d 411, 2017 N.Y. Slip Op. 06527.
Whether the NY Supreme Court correctly dismissed on summary judgment plaintiff's claims that the NY City police department committed civil rights violations pursuant to 42 USC Section 1983.
Plaintiff alleges that NYC police officers used excessive force in the process of executing a "no-knock" search warrant at her home.
"The Supreme Court also properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging assault and battery insofar as asserted against them. [...] Here, the defendants established, prima facie, that the officers' use of force while executing the search warrant was reasonable. Handcuffing the plaintiff and her two teenaged sons for the duration of the search was reasonable under the circumstances, given that the officers did not know who they might encounter or whether any occupants of the house might have weapons. The fact that the plaintiff was not named as a subject of the warrant did not render the conduct of the police objectively unreasonable. In opposition, the plaintiff failed to raise a triable issue of fact regarding the propriety of the level of force used by the police in executing the search warrant. Additionally, 'a plaintiff must have sustained some injury to maintain a claim of excessive force, although that injury need not be severe.' Here, the plaintiff failed to raise a triable issue of fact as to whether she or any of her children sustained an injury as a result of being handcuffed or detained during the search. Moreover, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging civil rights violations pursuant to 42 U.S.C. § 1983 insofar as asserted against them."
Reference to 14 USCA 1983.
Carr v. de Blasio, --- N.Y.S.3d ----, 2020 WL 5852062, 2020 N.Y. Slip Op. 20250
Whether to grant defendant's motion to dismiss a judicial inquiry into alleged violations regarding the stop and arrest of Eric Garner.
"Although the arrest and death of Eric Garner has received considerable attention in the press over the past six years, many facts relating to his arrest and death, and the investigations and any disciplinary actions taken in response to his death, have not been disclosed to the public or to the family of Mr. Garner."
Includes relevant discussion regarding an NYPD administrative trial regarding violations during stop and arrest of Eric Garner and training NYPD officers on use of force.
"Therefore, a summary inquiry into violations and neglect of duties in connection with the stop and arrest of Mr. Garner and the force used by police officers other than Officer Pantaleo in connection with the arrest is granted."
Reference to NY State Constitution, Art. 1, Sec 12.; NY Penal Law 35.30; NYPD Patrol Guide; 4th Amend.
Case Law
Resources
Citation
Summary and Notes
Model Policy promulgated by NY's municipal police training council.
Relevant Excerpt
XI. Training
A. All officers should receive training and demonstrate their understanding on the proper application of force.
B. Training topics will include use of force, conflict prevention, conflict resolution and negotiation, and de-escalation techniques and strategies, including, but not limited to, interacting with persons presenting in an agitated condition as well as duty to intervene and prohibited conduct.
Report reviewing use of force within the NYPD. Examines five aspects of use of force within NYPD: (1) trends; (2) reporting; (3) de‐escalation; (4) training; and (5) discipline. Report also offers recommendations to improve the disciplinary process.
N/A
Relates to establishing mandatory continuing law enforcement education for peace officers.
Proposes an amendment to Section 2.30 of the criminal procedure law to establish mandatory continuing law enforcement education for peace officers; requires peace officers to biannually complete a minimum of 32 credit hours of training including de-escalation techniques, implicit biases and mental health training.
N/A
Brown v. City of New York, 40 Misc.3d 1206(A), 975 N.Y.S.2d 708 (Table), 2009 WL 9120515, 2009 N.Y. Slip Op. 52857(U)
Describes NYPD's internal review process for firearm discharges.
N/A
New York Jurisprudence, Second Edition, § 142 Government tort liability based on excessive or erroneous use of authority by law enforcement officer—Determination as to excessive force
Treatise that describes many of the existing statutes and cases above.
N/A
The People v. Michael Sippel, 65 Misc.3d 862, 109 N.Y.S.3d 619, 2019 N.Y. Slip Op. 29296
Opinion appendix outlines New York's graduated four-level test for evaluating street encounters initiated by the police.
N/A
New York City, N.Y., Code § 7-208
Claims for injuries caused by police while executing legal process or sustained by persons injured while assisting in the apprehension of a criminal.
"The New York City Board of Estimate may inquire into, hear, and determine any claim against the city where compensation is sought for the death of or injury to any person or persons caused by a police officer of the city, while the officer is engaged in arresting or endeavoring to arrest any person or in retaking any person who has escaped from legal custody, or in executing any legal process."
NYPD Policy, Patrol Guide--Series 221
Effective Jun. 1, 2016
All policies bearing on use of force.
221-01: Force guidelines
221-02: use of force
221-07: use of pepper spray devices
221-08: use of conducted energy devices
221-13: Mentally ill or emotionally disturbed persons
221-15: Vehicle pursuits
221-16: Vehicle checkpoints