Estate of Jaquez v. City of N.Y.

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: KATHERINE B. FORREST, District Judge
• Citation: Estate of Jaquez v. City of N.Y., 104 F.Supp.3d 414 (S.D. N.Y. 2015)
• Decision Date: 08 May 2015
• Docket Number: No. 10 Civ. 2881KBF.,10 Civ. 2881KBF.
• Parties: The ESTATE OF Mauricio JAQUEZ, by The Public Administrator of Bronx County as administrator of the Good, Chattels and Credit of the deceased Mauricio Jaquez, and Ana Martinez, Plaintiffs, v. The CITY OF NEW YORK, et al., Defendants.

104 F.Supp.3d 414

The ESTATE OF Mauricio JAQUEZ, by The Public Administrator of Bronx County as administrator of the Good, Chattels and Credit of the deceased Mauricio Jaquez, and Ana Martinez, Plaintiffs,

v.The CITY OF NEW YORK, et al., Defendants.

No. 10 Civ. 2881KBF.

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

Signed May 8, 2015.

Zachary Margulis–Ohnuma, Sharlene Morris, Zachary Margulis–Ohnuma Law Office, New York, NY, for Plaintiffs.

Shira Rachel Siskind, Susan P. Scharfstein, Philip Rudolph Depaul, New York City Law Department, Tonya Jenerette, Barry K. Myrvold, Corporation Counsel, Special Federal Litigation Division, New York, NY, for Defendants.

OPINION & ORDER

KATHERINE B. FORREST, District Judge:

Against the backdrop of a country reckoning with a number of fatal police shootings, this Court faces an excessive force claim involving the fatal shooting of an emotionally disturbed person by several New York City Police Department officers. On April 12, 2009, the wife of Mauricio Jaquez called 911 after her husband had an “emotional breakdown”; she reported that her husband had a knife, but was forced to hang up when her husband grabbed the phone saying that it was a pistol. A team of NYPD officers responded and a struggle ensued during which Mr. Jaquez repeatedly threatened them with a knife. During what was by all accounts a chaotic melee, the team of officers used multiple rounds of Tasers, rubber bullets, and finally live ammunition against Mr. Jaquez. The final bullet entered the back of Mr. Jaquez's head. Ultimately, he was killed.

Plaintiffs, the Estate of Mauricio Jaquez and Ana Martinez, individually and as mother and natural guardian of children N.J., J.J., and A.J. bring this action, pursuant to 42 U.S.C. § 1983and state law, against defendant police officers William Flores, Raymond Morrissey, Raymond Flood, Richard Henderson, and David McNamee asserting claims of excessive force, wrongful death, and assault and battery. (ECF No. 72.) The Court previously dismissed claims against the City of New York for municipal liability and negligent screening, hiring, retention, training, and supervision. (ECF No. 84.)

On January 6, 2015, the Court initially granted in part and denied in part defendants' motion for summary judgment. (ECF No. 128.) In its decision, the Court noted that the plaintiffs' case rested largely on their proposed expert, Dr. Richard F. Sullivan, and should he be precluded, summary judgment might well be appropriate. (Transc. of January 6, 2015 proceedings 05:20–06:05, ECF No. 135.)¹Defendants moved to preclude Dr. Sullivan, pursuant to Daubert v. Merrell Dow Pharms., Inc.,509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)and related case law. (ECF No. 140.) On April 10, 2015, the Court granted that motion for reasons it now explains in full. (ECF No. 157.) Defendants immediately renewed their motion for summary judgment. (ECF No. 158.) On April 13, 2015, the Court adjourned the trial and notified the parties that it intended to grant summary judgment in favor of the defendants on the § 1983claim. (ECF No. 167.)

When the Court sat down to write the opinion, it became clear that one moment of the altercation between Mr. Jaquez and the officers stood apart from the others: the final shot by Sgt. Flores that entered the back of Mr. Jaquez's head. While the Court grants qualified immunity to each defendant for all conduct preceding that final shot—including the forceful use of the shield, Tasers, Sage guns, and the initial use of live ammunition—it does not with regard to Sgt. Flores. Most situations do not require parsing the events of a single altercation to analyze each specific action a particular officer took. More typically, an event is susceptible to general categorization. Here, that is not the case. The circumstances immediately preceding Sgt. Flores's final use of force are sufficiently different from the remainder of the altercation that this Court must find a triable issue of fact as to Sgt. Flores only.

This case involves an undisputedly chaotic situation during which Mr. Jaquez, an emotionally disturbed person, repeatedly wielded a knife in a threatening manner against a team of police officers. Ultimately, plaintiffs have failed to present any admissible direct or circumstantial evidence to create a triable issue of fact on the objective reasonableness of the use of force, aside from the final shot. Critically, plaintiffs lack evidence to counter the officers' description of what occurred: their sole expert—who proposed to testify to, inter alia,Jaquez's psychological state, law enforcement techniques, ballistics, and forensic pathology—has been precluded. Plaintiffs' reliance on pure speculation and minor inconsistencies in defendants' testimony does not create a triable issue of fact on the reasonableness of force used throughout most of the event.

As to the final use of force—the final shot—the autopsy report reveals and defendant police officers testify that, immediately prior to being shot for the final time, Mr. Jaquez had been shot in the abdomen, back and right arm, and he was already on the ground. The officers also testified that he maintained possession of the knife in his right hand and, just prior to Sgt. Flores's final gun discharge, was in the process of pushing up from the ground.

The legal standard governing qualified immunity requires this Court to determine “ ‘if, on an objective basis, it is obvious that no reasonably competent officer would have concluded’ ... in that moment that his use of deadly force was necessary.” O'Bert ex rel. Estate of O'Bert v. Vargo,331 F.3d 29, 37 (2d Cir.2003)(quoting Malley v. Briggs,475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). The Court should not apply 20/20 hindsight to merely second-guess police conduct in the context of qualified immunity. The Supreme Court has determined that qualified immunity serves an important policy purpose: it “gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’ ” Ashcroft v. al-Kidd,563 U.S. 731, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011)(quoting Malley,475 U.S. at 341, 106 S.Ct. 1092). Here, though, the lack of a proper expert witness does not preclude a juror from applying common sense to facts that create a triable issue on the reasonableness of firing the final bullet: autopsy report and testimony of Dr. Kristen Landi that at least four other bullets had already entered Mr. Jaquez's body, testimony from officers that Mr. Jaquez had already fallen onto the ground, testimony from officers that there were multiple officers on the scene protected by ballistics gear, testimony from Sgt. Flores that Mr. Jaquez was not threatening anyone with the knife when he fired the last shot, and autopsy records and testimony showing a shot entered just behind Mr. Jaquez's right ear and proceeded directly downward along his spine.

Qualifiedly immune for their conduct, Officers Henderson, McNamee, Flood and Morrissey are dismissed from this action entirely. Sgt. Flores is granted qualified immunity as to events preceding the final discharge of the firearm. The two state law claims—assault and battery, and wrongful death—remain only as to Sgt. Flores. The Court previously dismissed plaintiffs' claims for municipal liability and negligent screening, hiring, retention, training, and supervision. (ECF No. 84.) As “a § 1983plaintiff seeking to attach liability to the city for the acts of one of its employees may not rest on the employment relationship alone”, the City's dismissal from any § 1983claim is appropriate. See City of Canton, Ohio v. Harris,489 U.S. 378, 394, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

Accordingly, this matter shall proceed to trial as to the use of force by Sgt. Flores during the final moments of the altercation.

I. FACTUAL BACKGROUND²

The following facts are materially undisputed and all inferences are drawn in favor of plaintiffs. See Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On the morning of April 12, 2009, Mr. Jaquez was at home with his wife, Ana Martinez, and children, A.J., N.J., and J.J., when he began “acting crazy” and shouting that the police were going to kill him and were shooting him through the walls. (Pl. 56.1 Responsive and Affirmative Statement ¶ 5, ECF No. 118.) At some point after the sun had risen, Mr. Jaquez came out of a room in the apartment screaming “they are going to kill me” while carrying a six inch fillet knife. (Id.¶ 13.) His children woke up to find Mr. Jaquez in the living room holding Ms. Martinez in one hand and grabbing a knife with the other. (Id.¶ 14.) Ms. Martinez was able to dial 911, but Mr. Jaquez grabbed the phone saying it was a pistol he didn't want her making a phone call with it. (Id.¶¶ 15–16.) The operator called back and Ms. Martinez was able to report that Mr. Jaquez had a knife. (Id.¶ 17.) When the police responded, two of the children exited the second floor apartment and told the arriving POs Martinez and Negron that their parents were arguing, their father was “talking crazy”, and that he had a knife. (Id.¶ 19.)

Realizing that Mr. Jaquez might be an emotionally disturbed person (“EDP”), POs Martinez and Negron called for assistance. (Id.¶¶ 20, 20.1.) Those two officers, as well as Officers Torres and Smith–Sands who had just arrived, continued upstairs to the apartment door. (Id.¶ 23.) After the officers knocked and announced their presence, Mr. Jaquez yelled that the police were going to kill him, went into the bedroom and got the knife. (Id.¶¶ 23–24.) Officer Torres managed to pull Ms. Martinez and the last remaining child out of the apartment. (Id.¶¶ 25.2, 27, 29.) At that time, Mr. Jaquez remained agitated, “acted crazy”, sweated profusely and had red eyes. (Id.¶ 30.) Ms. Martinez told Sgt. Flores that her...