Merzon v. County of Suffolk, No. CV-85-3907 (ADS).

• Decision Date: 17 June 1991
• Docket Number: No. CV-85-3907 (ADS).
• Citation: 767 F. Supp. 432
• Parties: Stanley MERZON, as Administrator of the Goods, Chattels and Credits of Paul Merzon, Plaintiff, v. The COUNTY OF SUFFOLK and James Emanuele, Defendants.
• Court: U.S. District Court — Eastern District of New York

767 F. Supp. 432

Stanley MERZON, as Administrator of the Goods, Chattels and Credits of Paul Merzon, Plaintiff, v. The COUNTY OF SUFFOLK and James Emanuele, Defendants.

No. CV-85-3907 (ADS).

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

June 17, 1991.

Epstein & Kwasnik, New York City, for plaintiff; Fred L. Epstein, of counsel.

Kranz, Davis & Hersh, Hauppauge, N.Y., for defendant James Emanuele; Harry D. Hersh, of counsel.

E. Thomas Boyle, Suffolk County Atty., Hauppauge, N.Y. by Jeltje DeJong, Asst. County Atty.

OPINION AND ORDER

SPATT, District Judge.

In the early hours of Saturday, October 27, 1984, at a grassy area behind a fence at the dead end of East Gate in Copiague, a twenty-three year-old man was shot and killed by a Suffolk County police officer. The facts leading up to the encounter in the grassy area are virtually undisputed. The occurrences in the grassy area, however, are controverted and the versions are diverse. As a result of this tragic occurrence, this section 1983 wrongful death and pendent state-law claims case was brought. The central issue presented before the Court is whether there was excessive force exerted by the police officer in violation of the decedent's rights under the Constitution and laws of the United States and under the laws of the State of New York.

I. PRELIMINARY STATEMENT

This case was originally assigned to the late District Judge Mark A. Costantino. Although the plaintiff initially failed to demand a jury trial, such a demand was later made in an amended complaint. By memorandum decision and order filed on July 10, 1986, Judge Costantino granted the motion of the defendants to strike the jury demand. Thereafter, the case was randomly reassigned to this Court, which held a bench trial on March 19, 20, 21, 25 and 26, 1991. The following constitutes the Court's findings of fact and conclusions of law (see Fed.R.Civ.P. 52a).

II. THE COMPLAINT

In the Complaint, the plaintiff-administrator Stanley Merzon, father of the decedent Paul Merzon, set forth seven causes of action, as follows:

1. Pendent state-law claim based on assault and battery for damages for conscious pain and suffering against both defendants;

2. Pendent state-law claim based on assault and battery for damages for wrongful death against both defendants;

3. Claim for damages for both conscious pain and suffering and wrongful death based on violation of his Constitutional rights under 42 U.S.C. § 1983 against defendant James Emanuele;

4. Claim for ratifying acts of brutality, use of excessive force and permitting police officers to carry a second firearm in violation of 42 U.S.C. § 1983 and the rule in Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) against the defendant County of Suffolk;

5. Pendent state-law claim based on negligence with regard to the hiring, training, testing and supervision of defendant James Emanuele for damages for conscious pain and suffering against both defendants;

6. Pendent state-law claim based on negligence, alleging the negligent and reckless use of excessive force by defendant James Emanuele for damages for conscious pain and suffering against both defendants; and

7. Pendent state-law claim based on negligence for damages for wrongful death against both defendants.

III. THE TRIAL

The Court will first review the evidence adduced at the trial. Throughout this review the Court will make credibility determinations and its required findings of fact. (Fed.R.Civ.P. 52a).

The Plaintiff's Case:

The Facts Preceding the Encounter in the Grassy Area

As stated above, the facts preceding the occurrences in the grassy area are substantially undisputed. On Friday, October 26, 1984, at about 4:00 p.m., Stuart Cantara entered the Something Else Pub in Copiague, Long Island, New York, where he remained drinking beer until approximately 1:30 a.m. the following morning. During that time, he consumed as many as twenty beers. That evening he was joined at the Something Else Pub by three friends, William Oberlin (also known as "Buzzie"), Neal Schwartz and Paul Merzon, his roommate. Some time during the evening Cantara got into an altercation with a former girlfriend and, in an angered, intoxicated state, left the bar, got on his motorcycle and sped off.

Just before he left the bar, Diane Zaffuto, another friend of Cantara, and Greg Giles drove up to the bar in time to see Cantara drive away on his motorcycle. The five friends were concerned about Cantara's safety since they knew he had been drinking, did not possess a driver's license and they saw a police car follow his motorcycle. In two cars, the five friends—Oberlin, Schwartz, Merzon, Zaffuto and Giles— drove to the East Gate home of Cantara and Merzon in an effort to meet and assist the intoxicated motorcyclist.

Meanwhile, a high-speed chase developed. At first Cantara was pursued by one police car with its lights and siren on. Cantara traveled at high speed and without lights in an effort to evade his pursuer. He sped down East Gate in the vicinity of his home closely pursued by the police car. The street and curb ended at a chain-link fence with a four or five-foot wide gap or hole in the fence. This gap or hole in the fence was described by some witnesses as a "gate" in the fence, although the photographs in evidence reveal that it is merely a gap or open space in the chain-link fence, where a section of fencing is removed (see Plaintiff's Exhibit 2E). East Gate is a culde-sac (see Plaintiff's Exhibits 2M and 2N). Shrubbery lined the side of the fence except for the area of the "gap". At the dead end, Cantara drove his motorcycle through the hole in the fence onto a grassy area east of the fence and then onto a street near an abandoned school on the other side of the fence. The police car was forced to stop at the dead end and could not pursue further.

Cantara then circled around the neighboring blocks in an effort to return undetected to his home on East Gate. However, in doing so, he was observed by at least two other police cars who took up the chase. Again Cantara sped down East Gate, this time closely followed by two police cars with sirens and lights on. Once again Cantara reached the dead end and attempted to drive his motorcycle through the hole. The motorcycle apparently struck the fence and Cantara was thrown off and through the hole onto the grassy area. The two police cars stopped at the dead end on each side of the gap (see Plaintiff's Exhibit 2D), and the two police officers, the defendant James Emanuele and James Lilly, left their cars, went through the hole in the fence on foot and approached Cantara who was laying on the ground. At this point, the respective versions differed.

The Occurrences at the Grassy Area

WILLIAM OBERLIN testified that he walked through the "gate" with Paul Merzon and saw Cantara on the ground with a police officer on each side of him. Cantara was struggling with the police officers who were holding him by the shoulders, trying to push him down to the ground. One of the police officers, the defendant James Emanuele, kicked Cantara in the side three or four times. Merzon "grabbed" Officer Emanuele's foot to stop him from kicking Cantara. Officer Emanuele then pushed Merzon back and Merzon fell down. Officer Emanuele was then ten feet from Merzon who got up and moved forward toward the two police officers. Oberlin got down on his knees to try to calm Cantara when he heard a shot. He looked over and saw Merzon falling back with his hands up and then fall to the ground. He did not see the actual shooting.

Oberlin further testified that his other friends were outside the gate and not in the grassy area. Oberlin could not recall whether Diane Zaffuto or Greg Giles even walked down to the gate or whether they remained near the Merzon-Cantara house on East Gate. He stated that after the shooting he "believed" that Merzon was still alive in that he "heard him mumbling".

NEAL SCHWARTZ, a friend of Merzon, arrived at the Something Else Pub about 8:00 p.m. that night and saw Cantara arguing with someone. Schwartz was on crutches as a result of a work-related accident. He saw Cantara leave on his motorcycle and he followed with Merzon and Oberlin. Together they drove to the Merzon-Cantara home on East Gate. He saw Cantara coming east on East Gate followed by two police cars. All five of the friends walked toward the gate. Schwartz testified that only Merzon and Oberlin went through the gate into the grassy area. He stayed on the outside with Zaffuto and Giles.

Schwartz testified that looking through the gate, he saw Cantara on the ground and the two police officers holding him down. Cantara grabbed one of the officer's legs and pulled him down. Both officers started kicking Cantara. Merzon grabbed one of the officer's legs and said "stop kicking him" (Tr. at p. 273).¹ One of the officers pushed Merzon back and he fell back four to six feet, with his hands raised. The police officer pulled out his revolver and told Merzon to "hold it right there", and Merzon replied "okay" (Tr. at p. 274). A few seconds went by and the officer shot Merzon. Schwartz identified the shooter as the defendant James Emanuele. Schwartz stated that Emanuele was approximately eight to ten feet from Merzon at the time he shot him and Merzon was "slightly turned away from the officer just a hair, to the right" (Tr. at p. 276).

Schwartz testified that he heard "gurgling noises" and attempts at breathing from Merzon, with blood oozing from his mouth for at least twenty or twenty-five minutes (Tr. at p. 278).

On cross-examination, Schwartz again testified that he never went through the gate onto the grassy area.

STUART CANTARA did not recall all of the events that occurred on that fateful evening. At that time, he lived with Merzon at 26 East Gate. He arrived at the Something Else Pub in the afternoon of October 26, 1984, at 4:00 or 5:00 p.m., and was drinking beer...