Hemphill v. Schott

• Decision Date: 10 April 1998
• Docket Number: Docket No. 96-2793
• Citation: 141 F.3d 412
• Parties: John HEMPHILL, Plaintiff-Appellant, v. Harold SCHOTT, NYC Police Officer; Thomas DiMuro, NYC Police Officer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 412

141 F.3d 412

John HEMPHILL, Plaintiff-Appellant, v. Harold SCHOTT, NYC Police Officer; Thomas DiMuro, NYC

Police Officer, Defendants-Appellees.

Docket No. 96-2793.

United States Court of Appeals, Second Circuit.

Argued Nov. 24, 1997.

Decided April 10, 1998.

Alicia Wade, New York City (Douglas F. Broder, Coudert Brothers, of counsel), for Plaintiff-Appellant.

Julian L. Kalkstein, Assistant Corporation Counsel, New York City (Paul A. Crotty, Corporation Counsel of City of New York, Larry A. Sonnenshein and Elizabeth A. Wright, Assistant Corporation Counsel, of counsel), for Defendants-Appellees.

Before OAKES and WALKER, Circuit Judges, and BRIEANT, ^* District Judge.

OAKES, Senior Circuit Judge:

John Hemphill appeals from an order of the United States District Court for the Southern District of New York, Lewis A Kaplan, Judge, granting summary judgment to Defendants Harold Schott and Thomas DiMuro, New York City police officers ["the Officers"], in a suit Hemphill brought against them under section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Acting pro se, Hemphill sued Officers Schott and DiMuro, and others, alleging that they violated his right under the United States Constitution not to be subjected to excessive force when Officer Schott shot him, and when the Officers allowed Angel Torrado, a civilian, to shoot him, prior to his arrest for armed robbery. Hemphill argues that the district court erred in determining that his claim presented no material issues of fact, and that the district court abused its discretion in refusing to allow him to amend his complaint. The Officers argue that summary judgment was properly granted, because the undisputed facts establish that their actions in the course of arresting Hemphill conformed to the requirements of the Fourth Amendment, and that any facts Hemphill claims to be in dispute are precluded by their prior determination in a criminal preceding against Hemphill. The officers also argue that they enjoy qualified immunity from suit because the undisputed facts establish that their actions in effecting Hemphill's arrest were objectively reasonable, and that the district court properly denied Hemphill's motion to amend his complaint because any such amendment would have been futile. We agree with Hemphill that his claim presents material issues of fact, so that the Officers are not entitled to summary judgment, either on the basis of qualified immunity or on the merits; we also agree that Hemphill ought to be allowed to amend the allegations of his original complaint. We therefore reverse the decision of the district court granting summary judgment and remand this case for further proceedings.

I. Facts

Hemphill alleged in his original pro se complaint that on January 16, 1992, New York City Police Officer Harold Schott shot Hemphill four times in a parking lot and that Sergeant DiMuro acted in concert with Schott in this action. Hemphill also alleged that the Officers "drove [former police officer Angel Torrado] around for ten minutes or more" and that the Officers "conspired and acted unlawful with another by giving a 9 mm Glock handgun to Angel T[orr]ado who shot ... Plaintiff several times." ¹ Hemphill claimed that the conduct of the Officers constituted "unlawful action ... to deprive[ ] Plaintiff of [l]ife and [l]iberty, ... [e]xcessive [f]orce, unnecessary use of force ... [and] malicious, sadistic[ ] abuse of official authority." He alleged severe injuries and requested compensatory and punitive damages. In Hemphill's reply to the defendants' motion for summary judgment, Hemphill alleged that his arms were raised in the air when the bullets entered his body, and he attached as exhibits photographs of the entry and exit wounds caused by the gunfire, including an entry wound located on the inside of his right arm with a corresponding exit wound on the outside of the arm, as support for this contention.

In the Officers' version of the events, they came to the scene of a drug store robbery to find the drug store manager, Angel Torrado, a retired police officer, shooting bullets into the side of a jeep that contained the fleeing robber. The robber had shot him in the leg with a machine gun. The Officers recognized Torrado as a former officer and acquaintance of Officer Schott. They asked Torrado if he would like to go to the hospital, but Torrado refused, saying he wanted to "get them." The Officers allowed Torrado to join them in a chase of the jeep, which lasted about ten minutes. The Officers learned by radio that the jeep had stopped near a parking lot. Officer Schott stopped the police car at the parking lot, and the Officers ran to the lot, followed by Torrado. Officer Schott claims he then recognized Hemphill running in the parking lot from seeing him when Torrado was shooting at the jeep. Torrado yelled, "Watch out, he has a machine gun." Officer Schott claims that he then twice yelled in a loud voice, "Police, don't move, get your hands up," but that Hemphill crouched, pivoted his body from left to right, and furtively reached toward his waist. Officer Schott then shot Hemphill four times. (Although nine bullets were removed from Hemphill's body at Harlem Hospital, only four bullets were missing from Officer Schott's gun.)

On June 28, 1996, Hemphill filed a motion to amend his complaint to include more details of his version of the events of his arrest. ² In his amended complaint, Hemphill alleged that he was selling heroin at a housing development, heard sirens, and fled to a nearby parking lot to hide his money and drugs. Hemphill heard a voice call out "Stop!" and Hemphill pointed at himself and asked, "Who, me?" He heard someone yell, "Put your hands up!" He put up one hand and then the other. As he was complying with the orders, Hemphill heard someone yell, "He has a grease gun!" He then heard gunfire and felt extreme pain throughout his body. Moments later someone ran up to him and kicked him in the forehead, as he was still upright on his knees. Hemphill also added details regarding Torrado's accompanying the Officers to the scene of his arrest. Hemphill alleged that although Torrado stated under oath that he did not fire his gun, expert ballistics and medical testimony from his criminal trial revealed that the most serious and life-threatening wound was caused by a bullet from Torrado's gun, which Torrado fired at him in the parking lot. Hemphill also alleged that at no time did any of the Officers see a weapon on or near him, and that no weapon was recovered from the scene.

After his arrest, Hemphill was tried and convicted of two counts of robbery in the first degree, robbery in the second degree, and criminal possession of a weapon in the second degree. People v. Hemphill, Ind. 239/92 (N.Y.Sup.Ct.1993).

II. Discussion

A. Standard of Review

We review the district court's grant of summary judgment de novo. Frank v. Aaronson 120 F.3d 10, 14 (2d Cir.1997). To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). In deciding such a motion, the district court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir.1995).

B. Disputed Facts

While the Officers acknowledge that Hemphill's version of the facts differs from theirs, they argue that Officer Schott's decision to shoot Hemphill was objectively reasonable under the circumstances, and that no rational jury could find otherwise under the undisputed facts. They claim that Hemphill's admitted action of putting up one hand before the other constitutes ambiguous movement on his part that justified the Officer's use of potentially deadly force. They also argue that the Officers had no duty to protect Hemphill from harm from a third party, Torrado, and that any failure of the Officers to restrain Torrado constituted, at the most, negligence for which no remedy exists under the Constitution. Furthermore, they claim, Torrado testified at Hemphill's criminal trial, in which Hemphill was convicted of armed robbery, that he did not shoot Hemphill, and that Hemphill is estopped from challenging Torrado's testimony in this case.

The Magistrate made factual findings regarding the events that occurred immediately before the shooting and arrest of Hemphill. The Magistrate's report, which the district court endorsed to grant the Officers summary judgment, adopted the police version of important disputed facts. See Magistrate's Report and Recommendation, Hemphill v. Schott, No. 93 Civ. 8778 (S.D.N.Y. June 10, 1996). The Magistrate found that Hemphill "led a police cruiser on a chase through upper Manhattan that ended only when the plaintiff's companion crashed the getaway car," id. at 12, a matter Hemphill denied in his version of the events. The Magistrate also found that Hemphill made furtive motions at his waist, as if to draw a weapon, immediately before the shooting; Hemphill claimed he made no such motions, but pointed his hands at his chest and asked the question, "Who, me?" Id. at 4. The Magistrate found that Officer Schott gave advance warning of his intention to use deadly force if necessary; Hemphill alleged that the shots came without warning, while he was complying with Officer Schott's order. Id. at 12. Hemphill claimed he put his hands in the air at the request of the police, and provided medical evidence to support this assertion, but the Magistrate found that "[a]fter firing the initial bullet, Officer Schott noticed that Mr. Hemphill was still reaching his hands into his clothing. Officer Schott then fired his gun three times in rapid succession, hitting Mr. Hemphill and knocking him to the ground."...