Cox v. Vill. of Pleasantville

• Decision Date: 26 September 2017
• Docket Number: No. 11–CV–6516 (KMK),11–CV–6516 (KMK)
• Citation: 271 F.Supp.3d 591
• Parties: Brandon COX, Plaintiff, v. The VILLAGE OF PLEASANTVILLE, New York, Police Officer Aaron Hess, Defendants.
• Court: U.S. District Court — Southern District of New York

271 F.Supp.3d 591

Brandon COX, Plaintiff,

v.The VILLAGE OF PLEASANTVILLE, New York, Police Officer Aaron Hess, Defendants.

No. 11–CV–6516 (KMK)

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

Filed September 26, 2017

Jonathan S. Abady, Esq., Ogilvie A. F. Wilson, Esq., Debra L. Greenberger, Esq., Emery Celli Brinckerhoff & Abady, LLP, New York, NY, Charles J. Ogletree, Jr., Esq., Harvard Law School, Cambridge, MA, Robert Johnson, Esq., Boston, MA, Counsel for Plaintiff

Caitlin G. Scheir, Esq., Gaines, Gruner, Ponzini & Novick, LLP, James A. Randazzo, Esq., Portalae Randazzo LLP, White Plains, NY, Brian S. Sokoloff, Esq., David A. Gold, Esq., Leo Dorfman, Esq., Sokoloff Stern LLP, Carle Place, NY, Westbury, NY, Counsel for Defendant Police Officer Aaron Hess

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Plaintiff Brandon Cox filed this suit against Defendants the Village of Pleasantville, New York; the Town of Mount Pleasant, New York; Police Officer Aaron Hess; Police Officer Ronald Beckley; Police Officer Ronald Gagnon; the County of Westchester; and John Does # 1–30, alleging violations of his constitutional and state law rights arising out of an incident in the evening on October 16, 2010 in which Plaintiff was shot in the arm by Defendant Aaron Hess. (See Compl. (Dkt. No. 1).) The claims against Defendants Town of Mount Pleasant, Ronald Beckley, and Ronald Gagnon were resolved by way of an offer of judgment pursuant to Federal Rule of Civil Procedure 68. (See Dkt. No. 17.) The claims against the County of Westchester were voluntarily dismissed by stipulation. (See Dkt. No. 107.) Before the Court are Defendants Aaron Hess's and the Village of Pleasantville's (collectively, "Defendants") Motions for Summary Judgment. (See Dkt. Nos. 110, 113.) For the following reasons, the Motions are granted in part and denied in part.

I. Background

A. Factual Background

In resolving Defendants' Motions for Summary Judgment, the Court will recite only either undisputed facts or those set forth by Plaintiff and supported by the record. The Court will not, except as noted, set forth Defendants' version of the facts where disputed.

1. Football Game and Finnegan's

In October 2010, Plaintiff was a junior at Stonehill College in Massachusetts. (See Decl. of Debra L. Greenberger ("Greenberger Decl.") Ex. 1 ("Cox Dep.") 360, 422–23 (Dkt. No. 119); see also Pl. Brandon Cox's Statement of Additional Disputed Facts Pursuant to Local Rule 56.1(B) ("Pl.'s 56.1") ¶ 2 (Dkt. No. 121); Def. Aaron Hess' Resp. to Pl.'s Statement of Additional Facts Pursuant to Local Civil Rule 56.1 ("Def.'s 56.1 Resp.") ¶ 2 (Dkt. No. 127).) On October 16, 2010, Plaintiff was in Westchester County to play in a homecoming football game against Pace University, where his best friend from high school, D.J. Henry, also played football. (See Cox Dep. 38–41; see also Pl.'s 56.1 ¶ 3; Def.'s 56.1 Resp. ¶ 3.) Brandon, D.J., and their families went out to dinner after the game, (see Cox Dep. 43–44; see also Pl.'s 56.1 ¶ 4; Def.'s 56.1 Resp. ¶ 4), after which Brandon, D.J., and some of D.J.'s friends went to Finnegan's, a restaurant and bar in Mount Pleasant, New York, (see Cox Dep. 52–53; see also Pl.'s 56.1 ¶ 5; Def.'s 56.1 Resp. ¶ 5).

Around 1:10 AM, after an incident involving some patrons of Finnegan's unrelated to Plaintiff or his friends, Stephen Van Ostrand, the owner of Finnegan's, turned the lights up and informed all of the patrons in Finnegan's (including Plaintiff and D.J.) that they would have to leave. (See Greenberger Decl. Ex. 5 ("Van Ostrand Dep.") 186–92; see also Pl.'s 56.1 ¶ 6; Def.'s 56.1 Resp. ¶ 6.) Van Ostrand directed the bartender, Robert Nugent, to call the Mount Pleasant Police to ask for assistance with the unruly patrons that had been the cause of the disturbance, and Nugent did so. (See Van Ostrand Dep. 187–88; see also Def. Aaron Hess' Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 ("Def.'s 56.1") ¶ 18 (Dkt. No. 116); Pl.'s Resp. to Def. Hess's Local Rule 56.1 Statement ("Pl.'s 56.1 Resp.") ¶ 18 (Dkt. No. 120).) Desmond Hinds, one of D.J.'s friends present that night, estimated that at the time the lights came on, there were approximately 50 to 70 people at Finnegan's. (See Greenberger Decl. Ex. 2 ("Hinds Dep.") 616; see also Pl.'s 56.1 Resp. ¶ 20.)

2. Arrival of Police

At all relevant times, Aaron Hess was a member of the Village of Pleasantville Police Department. (See Decl. in Supp. of Mot. for Summ. J. ("Sokoloff Decl.") Ex. A ("Hess Dep.") 45–46 (Dkt. No. 114); see also Def.'s 56.1 ¶ 23; Pl.'s 56.1 Resp. ¶ 23.) Around 1:20 AM, the Town of Mount Pleasant Police Department sent out a radio dispatch requesting units to respond to a fight in progress at Finnegan's, (see Sokoloff Decl. Ex. M, at MP 001786; Sokoloff Decl. Ex. N; see also Def.'s 56.1 ¶ 25; Pl.'s 56.1 Resp. ¶ 25), though subsequent dispatches sent less than two minutes later clarified that there were "no fights in progress" and the "place [was] clearing out," (see Sokoloff Decl. Ex. M, at MP 001786; see also Pl.'s 56.1 Resp. ¶ 25).

Hess heard the dispatches requesting assistance at Finnegan's and drove toward one of the entrances of the Thornwood Shopping Center, where Finnegan's was located, (see Hess Dep. 110, 114; see also Def.'s 56.1 ¶¶ 26–27; Pl.'s 56.1 Resp. ¶¶ 26–27). Upon viewing the crowd in front and around Finnegan's, Hess pulled into the shopping center, (see Hess Dep. 119, 134; Def.'s 56.1 ¶ 30; Pl.'s 56.1 Resp. 30), and radioed the Pleasantville Police Department and instructed the desk officer to notify the Mount Pleasant Police Department of a large crowd in front of Finnegan's, (see Hess Dep. 126; Sokoloff Ex. M, at MP 001786; Sokoloff Ex. W ("Gilmartin Dep.") 30–31; see also Def.'s 56.1 ¶ 31; Pl.'s 56.1 Resp. ¶ 31).

Hess parked his police vehicle in the roadway in front of Finnegan's, (see Hess Dep. 121–22; see also Def.'s 56.1 ¶ 32; Pl.'s 56.1 Resp. ¶ 32), and sometime thereafter exited the vehicle, (see Hess Dep. 123–24, 712; Def.'s 56.1 ¶ 34; Pl.'s 56.1 Resp. ¶ 34). Officer Carl Castagna, a member of the Mount Pleasant Police Department, arrived on the scene next and parked his police vehicle behind Hess's. (See Hess Dep. 124–25; Sokoloff Decl. Ex. Y ("Castagna Dep.") 54; see also Def.'s 56.1 ¶¶ 35–36; Pl.'s 56.1 Resp. ¶¶ 35–36.) Officer Castagna exited his vehicle and joined Hess. (See Hess Dep. 127; Castagna Dep. 56–57, 64; see also Def.'s 56.1 ¶ 37; Pl.'s 56.1 Resp. ¶ 37.) After Officer Castagna, Pleasantville Police Department Officer Kevin Gilmartin arrived on the scene, parked his car behind Officer Castagna's vehicle, and exited his vehicle. (See Hess Dep. 138–39; Gilmartin Dep. 54–57; see also Def.'s 56.1 ¶¶ 38–39; Pl.'s 56.1 Resp. ¶¶ 38–39.) After Officer Gilmartin, Mount Pleasant Police Department Officer Justin Jacobsen arrived at the scene, parked behind Gilmartin's vehicle, and exited his vehicle. (See Sokoloff Decl. Ex. V ("Jacobsen Dep.") 85–87; Castagna Dep. 68; see also Def.'s 56.1 ¶¶ 40–41; Pl.'s 56.1 Resp. ¶¶ 40–41.)

The Parties dispute the nature of the scene when the police officers arrived. (See, e.g. , Def.'s 56.1 ¶¶ 43–45; Pl.'s 56.1 Resp. ¶¶ 43–45.) Hess testified that the crowd around Finnegan's was generally walking toward the parking lot, but noted that there were also people dispersing toward the sidewalk area across from where his vehicle was parked. (See Hess Dep. 129.) Hess did not recall feeling threatened by anything going on. (See id. at 213.) Officer Castagna did not see any fighting, (see Castagna Dep. 54–55, 60–63), and Officer Gagnon, another officer at the scene, did not see any violent activity, (see Sokoloff Decl. Ex. UU, at 187–88). Other witnesses, however, described the scene as "chaotic," and Officer Gilmartin described that "[t]here were people yelling and screaming and arguing throughout the entire parking lot and up onto the sidewalk by Finnegan's." (Gilmartin Dep. 136.) Hess and Castagna believed that a number of patrons leaving Finnegan's were intoxicated and were slurring their speech, (see Hess Dep. 127–28, 217–18; Castagna Dep. 442–43; see also Def.'s 56.1 ¶¶ 50–51; Pl.'s 56.1 Resp. ¶¶ 50–51), but could not have been certain that any individuals were actually drunk, (see Pl.'s 56.1 Resp. ¶ 50). Hess witnessed at least five individuals acting in an aggressive manner, (see Hess Dep. 116), and Officer Gilmartin saw two individuals being separated so that they would not fight, (see Gilmartin Dep. 139). Because there is some dispute of fact, the Court will assume, at this stage, that Plaintiff's account, which details a largely peaceful and orderly exit from Finnegan's with only scattered pockets of minor disturbances, is more accurate.

For some period of time, Hess and Officer Castagna remained near their vehicles watching the crowd exit Finnegan's and disperse. (See Hess Dep. 122, 128–31, 143–44; Castagna Dep. 61; see also Def.'s 56.1 ¶¶ 46–47; Pl.'s 56.1 Resp. ¶¶ 46–47.) Van Ostrand eventually came out of Finnegan's and approached Hess and Castagna. (See Hess Dep. 140, Castagna Dep. 64–65, 68; Van Ostrand Dep. 49, 221; see also Def.'s 56.1 ¶ 55; Pl.'s 56.1 Resp. ¶ 55.) Van Ostrand told the officers that he just wanted the patron who had caused the disturbance to get out of there, although Van Ostrand noted that none of the officers took any action with respect to that comment. (See Van Ostrand Dep. 205–06.) Van Ostrand estimated that he spoke with the officers for about thirty seconds or a minute, and testified that he told the officers he wanted to "get everybody out of [t]here safely." (Id. at 206–07.) Around this time, Castagna dispatched over his radio, "respond with caution, only verbal at this time," (Greenberger Decl. Ex. 4 ("Beckley Dep.") 193; see also Pl.'s 56.1 ¶ 9; Def.'s 56.1 Resp. ¶ 9), which Officer Ronald Beckley, another police officer on his way to the scene, understood to mean that there was "no physical activity, no fighting going on," (Beckley Dep. 194).

3. Plaintiff...