Callahan v. Cnty. of Suffolk

• Decision Date: 29 April 2022
• Docket Number: 12-CV-2973 (GRB)(AYS)
• Citation: 602 F.Supp.3d 399
• Parties: Christopher CALLAHAN, Individually and as Administrator of the Estate of Kevin Callahan and Patricia Callahan, Individually, Plaintiffs, v. The COUNTY OF SUFFOLK and Police Officer Thomas Wilson #5675, Defendants.
• Court: U.S. District Court — Eastern District of New York

602 F.Supp.3d 399

Christopher CALLAHAN, Individually and as Administrator of the Estate of Kevin Callahan and Patricia Callahan, Individually, Plaintiffs,

v.The COUNTY OF SUFFOLK and Police Officer Thomas Wilson #5675, Defendants.

12-CV-2973 (GRB)(AYS)

United States District Court, E.D. New York.

Signed April 29, 2022

Alexander R. Klein, Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City, NY, Bruce A. Barket, Barket Marion Epstein & Kearon LLP, Garden City, NY, Amy Beth Marion, Abrams Fensterman Fensterman Eisman Formato Ferrara Wolf & Carone, LLP, Lake Success, NY, for Plaintiffs.

Brian C. Mitchell, Susan A. Flynn, Suffolk County Dept. of Law-County Attorney, Hauppauge, NY, for Defendants.

MEMORANDUM AND ORDER

GARY R. BROWN, United States District Judge:

Plaintiffs assert claims against the County of Suffolk and Officer Thomas Wilson under 42 U.S.C. § 1983 (" Section 1983") for use of excessive force against Kevin Callahan ("Callahan") who was killed during a response to a 911 call, which advised that an unknown gunman was in the house threatening Callahan. There was no gunman, but during a struggle in which Callahan pinned Wilson with a door, Callahan was tragically shot and killed. In a trial before the Honorable Leonard D. Wexler held in 2015, a jury returned a verdict in favor of defendants as to all claims, but the verdict as to excessive force was vacated on appeal due to an erroneous jury instruction. Defendants now seek summary judgment, arguing that Officer Wilson's use of deadly force was protected under qualified immunity, an issue not substantively considered¹ by the Court. Plaintiffs oppose and additionally seek to amend the complaint to add state law claims for battery and respondeat superior. For the reasons set forth below, the defendants’ motion is GRANTED and plaintiffs’ motion to amend the complaint is DENIED.

FACTS

Consistent with the standards for review in the context of a summary judgment motion, the following facts are recounted with all ambiguities and reasonable inferences drawn in the nonmoving party's favor.

On September 20, 2011, Kevin Callahan's brother called 911 to report that "my mother just tried to call my younger brother at our house and when he picked up the phone she heard in the background [from someone other than Callahan] ‘I'm gonna fucking kill you’ and my brother was telling her that [someone else in the house] got a gun." Pl. Ex. A., DE 91-11, 911 Call. "She heard a kid apparently yelling at my brother and then my brother said to my mother on the phone ‘mom he's got a gun.’ " Id. The brother explained that Callahan had recently been hospitalized after being "all messed up on pills" and their mother was staying elsewhere in order to avoid Callahan. Id. ; see also Pl. Ex. B, DE 91-12 at 2, Suffolk Cty. Police Dep't Report. At approximately 12:37 PM, Suffolk County police officers Thomas Wilson, Dan Furey and Elisa McVeigh received a radio dispatch regarding a possible gunman at the Callahan residence: "Possible gun involved. Mother was on the phone with her son at that location, said she overheard him state to someone else that he's got a gun and then disconnected." Pl. Ex. J, DE 91-20, Suffolk Cty. Police Dep't Dispatch. As the officers drove to the residence, Furey, apparently familiar with Callahan, told Wilson via radio that Callahan was "not violent." Tr. at 93, 177. Minutes later, Wilson arrived at the home. Tr. at 120-21. Although the front door was open, the screen door was closed. Tr. at 94, 125. Wilson knocked on the screen door and said, "Police! Anyone inside? Police! Anyone in there? Anyone need help?" Tr. at 125-26. Not knowing that the mother was elsewhere and concerned that she could be in the house, the officers entered to determine if there was someone with a gun inside. Tr. at 97, 127, 213.

Once inside, the officers divided their efforts to search the split-level ranch home. Tr. at 95-97. Wilson and Furey went downstairs to the ground level while McVeigh covered the upper level. Tr. at 97, 130. After descending the stairs, Wilson turned off the TV in the den and observed a cleaver, which he pointed out to Furey with a flashlight. Tr. at 102. Although the ground level had windows facing the backyard, it was dark enough² that the officers needed flashlights. Tr. at 96, 131. Furey moved through the right wing of the ground floor while Wilson checked the left. Tr. at 137.

As Wilson entered a room down the hall, he saw a man through the crack of the door and said, "Police, I see you. Police, I see you. Don't move." Tr. at 105, 140. Furey confirmed that he heard Wilson yell something. Tr. at 222. Nevertheless, the man began to move towards the door. Tr. at 106. Wilson saw the unknown man – who turned out to be Callahan – thrust towards him with an object and heard a growl that sounded like a "bench pressing exertion." Tr. at 110, 112, 144. The door closed on Wilson, "pinning" him between the door and the door frame. Tr. at 142. As a result, Wilson's "left arm, part of his left leg and his foot and just the edge of his hip [were] exposed beyond the edge of the door." Tr. at 142. Since Wilson is left-handed and had already unholstered his gun, his arm and the hand holding the revolver were trapped in the opening of the partially-closed door. Tr. at 107-09. Fearing that the assailant, who was pressing against the door, might take his gun, Wilson fired. DE 91-12 at 6; Tr. at 143-45. After the first shot, the door released and Wilson fell backward. Tr. at 113, 145. As he fell back, Wilson fired two shots through the door. Tr. at 113, 145, 162. Wilson could not recall the total number of times he fired. Tr. at 145.

Furey did not observe Wilson get stuck in the door, nor could he see the door from where he was standing. Tr. at 187. While walking across the den, Furey overheard Wilson yell, heard three or four shots, and saw Wilson fall backwards as he fired through the door. DE 91-12 at 4; Tr. at 222, 229. Furey moved to the stairway and saw Wilson – bearing a "look of terror" – stand up and kick the door, which had just slammed shut. DE 91-12 at 4; Tr. at 223. Seeking cover, Wilson ran toward Furey. Tr. at 146-47, 223. In a recorded radio transmission, Wilson stated: "I got one male behind the door, he just shut the door, he was hiding behind the door, displayed something; uh, I'm OK, shots fired." Def. R. 56.1 Statement, ¶ 24, DE 91-2; Tr. at 147.

Approximately twenty minutes later, police officers with the emergency services unit arrived. Tr. at 225. The officers opened the door with a sledgehammer and handcuffed Callahan, who was unresponsive. Tr. at 245-47. No weapons were found in Callahan's room. Tr. at 246-47. Two shell casings were recovered inside the room and two were found outside the room. Tr. at 285, 295. Two bullets passed through the middle portion of the door above the doorknob, travelling slightly downward at an angle of approximately 14-16 and 7-9 degrees, respectively. DE 91-16 at 3. Only three bullets were recovered. Tr. at 285.

The autopsy report determined that the cause of Callahan's death was three gunshot wounds. DE 91-16 at 1. One bullet entered the lower left chest and exited the lower left flank. Tr. at 274; DE 91-16 at 10. The bullet failed to expand, which according to expert ballistics testimony, is consistent with being shot through the door, as wooden fragments plug the bullet's hollow-point cavity which would otherwise cause the projectile to expand. Tr. at 276, 304; DE 91-16 at 8, 12. A second bullet entered the right shoulder and was recovered in the left side of the chest. Tr. at 278; DE 91-16 at 10. The stippling around that wound was consistent with a contact shot. Tr. at 281, 303; DE 91-16 at 10, 12. A third bullet entered Callahan's right shoulder and exited the right abdomen. Tr. at 276, 278; DE 91-16 at 10. Given the lack of stippling, i.e., propellant from the cartridge which adheres to skin and clothing, that wound appeared to have been made from a bullet fired from a further distance, and not through the door. Tr. at 275-77; DE 91-16 at 10, 12.

The County crime lab concluded that all four cartridge casings were fired from Wilson's pistol, and the positioning of Kevin Callahan and the wounds he suffered were consistent with the account provided by Officer Wilson. DE 91-16 at 3; Tr. at 336-38. Notably, plaintiffs’ forensic consultant also found Callahan's wounds were consistent with the general account given by Wilson and largely agreed with the findings of the County's medical examiner. Tr. at 283-84, 301, 305; Pl. R. 56.1 Counterstatement, ¶ 43, DE 91-8.

PROCEDURAL HISTORY

In 2012, Kevin Callahan's mother Patricia Callahan and his brother Christopher Callahan filed this action against Suffolk County, Wilson and several other Suffolk County employees no longer party to this suit under Section 1983, asserting federal claims of excessive force, denial of medical treatment, unlawful search and seizure, Monell liability, supervisory liability, and failure to intervene, along with state law claims for false imprisonment, intentional or negligent infliction of emotional distress, and wrongful death. Compl., DE 1; Am. Compl., DE 49. The Court entered a scheduling order setting December 6, 2012 as the deadline to amend the pleadings and advised the parties that the deadline will only be modified upon a timely showing of good cause. DE 7. In 2015, a jury returned a verdict in favor of Wilson on the excessive force claim and in favor of another defendant on the denial of medical treatment claim. DE 65. In 2017, the Second Circuit vacated the judgment as to the excessive force claim and remanded, finding the district court's jury charge on the use of deadly force was erroneous. Callahan v. Wilson , 863 F.3d 144, 146 (2d Cir. 2017).

After a pre-trial conference last year, after which this Court placed the case on the trial ready calendar, defendants moved for summary judgment. DE 91. Plaintiffs opposed, filed several motions in...