Nimely v. City of New York

• Decision Date: 27 June 2005
• Docket Number: Docket No. 04-3240-CV.
• Citation: 414 F.3d 381
• Parties: Thomas NIMELY, Plaintiff-Appellant, v. CITY OF NEW YORK, New York City Police Department, and Police Officer John Muirhead, Defendants-Appellees, Leonard Oechsner, Steven M. Ferrigno, John Doe 1, and John Doe 2 Defendants.
• Court: U.S. Court of Appeals — Second Circuit

414 F.3d 381

Thomas NIMELY, Plaintiff-Appellant, v. CITY OF NEW YORK, New York City Police Department, and Police Officer John Muirhead, Defendants-Appellees Leonard Oechsner, Steven M. Ferrigno, John Doe 1, and John Doe 2 Defendants.

Docket No. 04-3240-CV.

United States Court of Appeals, Second Circuit.

Argued: January 31, 2005.

Decided: June 27, 2005.

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Michael Steven Kelton, Lippman, Krasnow & Kelton, LLP, New York, NY, for Plaintiff-Appellant.

Karen M. Griffin, for Michael Cardozo, Corporation Counsel for the City of New York, New York, N.Y. (Jennifer A. Rossan, John S. Siffert, on the brief), for Defendants-Appellees.

Before: JACOBS and CALABRESI, Circuit Judges, and JED S. RAKOFF, District Judge.^*

CALABRESI, Circuit Judge.

This is a civil rights action brought by Plaintiff-Appellant Thomas Nimely ("Nimely") against, among other individuals and entities, Defendants-Appellees the City of New York ("the City"), the New York City Police Department ("NYPD"), and Police Officer John Muirhead ("Muirhead"). The case arose out of a police chase that culminated in Nimely — having been shot by Muirhead — being paralyzed from the waist down. Nimely's federal complaint alleged, inter alia, that Muirhead's conduct constituted excessive force in violation of the U.S. Constitution and New York law. Following a trial in the Eastern District of New York (Wolle, J.), the jury returned a verdict in favor of Muirhead.¹ Nimely appeals, contending that he was entitled to judgment as a matter of law, or, in the alternative, that a new trial must be ordered. We decline to hold that, based on the evidence properly admitted, a reasonable jury could not have reached a verdict in favor of Muirhead, but we agree with Nimely that prejudicial evidentiary errors were committed below. We therefore vacate the judgment in favor of Muirhead and remand the case for a new trial.

I. Background

Because the issues before us require an assessment not only of the sufficiency of the evidence presented, but also of whether some portion of that evidence was wrongly and prejudicially admitted, it is well worth setting forth in some detail the facts developed below.

THE LIBERTY HALL PARTY

The events giving rise to this case began on the evening of February 13, 1998, when Nimely, then nineteen years old, attended a party at the Liberty Rental Hall in Staten Island, New York. According to Nimely's trial testimony, he arrived at approximately 11:30 p.m., carrying a loaded gun that had been purchased some years earlier. Nimely stated that, because a bouncer at the door of the party site would not allow him to enter with the weapon, Nimely hid the gun in bushes along the side of Liberty Rental Hall.

Nimely testified that at approximately 2 a.m., while he was standing outside the party, he heard gunshots fired inside Liberty Rental Hall. He ran back into the building and saw an individual lying on the floor, and, next to that individual, the gun that Nimely had hidden in the bushes earlier in the evening.² Nimely stated that he picked up the gun, put it in his waistband, and left the party, running several blocks to a livery cab stand, where he met several friends who had also been at the party. Nimely added that the gun was warm, and that, while running to the cab stand, he inspected the chamber of the gun and saw that it was no longer loaded.

THE POLICE CHASE

The jury heard conflicting accounts of what happened when, at the cab stand, Nimely and his friends were approached by Muirhead and his partner, police officer John McCarthy ("McCarthy").³ The contradictory narratives were presented chiefly through the testimony of a) Muirhead and McCarthy, who gave essentially identical accounts, b) Nimely, and c) four eye witnesses to various parts of the police chase.

1. The Police Officers' Testimony

Muirhead and McCarthy testified that early in the morning on February 14, 1998 they went to Liberty Rental Hall after hearing, from a police radio call, of the shooting there. Seeing that other police units were already at the scene, Muirhead and McCarthy decided to drive around the neighborhood in their police car in search of the shooter. During their canvass, Muirhead and McCarthy came across Nimely and his friends at the cab stand.⁴ The officers flashed their headlights on the group, got out of the car, and asked Nimely and the others to approach the vehicle. Muirhead said that neither he nor McCarthy had their guns drawn when they left their car; McCarthy, by contrast, stated that his gun was drawn, and that he believed that Muirhead's was as well.

Muirhead testified that, at that point, Nimely, who was facing away from Muirhead, looked over his right shoulder, reached into his waistband, pulled out a silver gun with his right hand, held the gun up to shoulder height, and started to run. This description was echoed by McCarthy, who, under oath, asserted that Nimely looked over his right shoulder, brought both of his hands to his waist (and out of McCarthy's view), removed, with his right hand, a gun from his waistband, and began running. Muirhead and McCarthy both chased Nimely, with Muirhead passing McCarthy during the pursuit. In his testimony, Muirhead contended that Nimely, as he ran, periodically looked over his right shoulder at Muirhead, and pumped his arms in a manner such that Muirhead continually saw Nimely's gun rise to the level of Nimely's right shoulder. Muirhead further stated that, carrying his service revolver, he ran after Nimely and shouted to him to stop and to drop his weapon.

The chase proceeded toward a fence that bordered the Stapleton Homes housing projects. According to both police officers, Nimely, approximately five feet ahead of Muirhead, crashed into a metal bar protruding from the fence and fell to the ground. Muirhead testified that, seeing that Nimely was on the ground, he began the process of holstering his gun. At the same time he moved toward Nimely to arrest him. At that point, according to Muirhead, Nimely, turning in a crouched position, rose to nearly his full height, faced Muirhead, extended his arm, and pointed his gun at Muirhead. Muirhead testified that he then fired his own weapon, striking Nimely in the chest. The total time from when Nimely collided with the fence to when he was shot, Muirhead said, was just a matter of seconds.

McCarthy, who had viewed the scene from a different angle, described a very similar sequence of events. He averred that, standing to the left of and behind Muirhead (and approximately ten feet from Nimely), he saw Nimely crash into the fence and hit the ground. McCarthy stated that Nimely then immediately jumped back up into fully erect posture, turned, and pointed a gun at Muirhead. At that point, McCarthy saw Muirhead, who was facing Nimely, fire his weapon, and shoot Nimely in the chest. Nimely, according to McCarthy, fell immediately to the ground.

2. Nimely's Version of Events

Nimely testified that, while standing at the cab stand, he heard someone behind him say, "Freeze," and then heard one of his friends say, "Run." Nimely stated that he ran, holding in his right hand the waistband of his pants, which were slung below his waist. According to Nimely, he never — either while standing at the cab stand or any time thereafter — removed the gun from his waistband. Nimely added that his last memory of the chase was of running, that he had no recollection of hitting a fence, and that the next thing he remembered was awakening in Staten Island University Hospital.⁵

3. The Eyewitness Accounts

Nimely's case included the accounts of four individuals who observed portions of Muirhead and Nimely's chase and confrontation. Two of these, Stephen Springle ("Springle") and Alison Curtis ("Curtis"), testified at trial. Abdul Elgazar ("Elgazar") gave a videotaped deposition, and Wayne Collier ("Collier") made a recorded statement for NYPD investigators shortly after the shooting. The videotape and audio recordings were played at the trial.

Springle testified that he saw the beginning of the chase from a parking lot next to the cab stand where Nimely had been standing with his friends. Springle stated that he observed Muirhead and McCarthy park their police car and go up to Nimely's group with guns drawn. According to Springle, as the officers approached Nimely's group, someone yelled, "Run"; Nimely, who was facing the police officers at the time, took off. Springle said that Nimely did not at that point display a weapon, and that Nimely did not hold a gun in his hand as he ran away. Rather, according to Springle, Nimely was using his left hand to hold up the waist of his pants. Springle also described Nimely as looking back over his shoulder as he ran. Springle lost sight of Nimely and Muirhead, and then heard a gunshot.

Curtis, then a member of the NYPD, had, on the night in question, been among the police officers who received the radio transmission reporting the Liberty Hall shooting. She and her partner drove toward Stapleton Homes and, en route, saw Nimely and Muirhead running. Curtis testified that the two ran toward her patrol car, with Nimely in the lead, and that she saw Nimely strike a fence and fall to the ground. Curtis then looked away for a second, in order to maneuver her patrol car, and when she looked back, both Nimely and Muirhead were on the ground, with Nimely at a part of the fence different from where he had previously fallen. Curtis added that she never saw a gun in Nimely's hands.

Elgazar, who observed the encounter between Nimely and the police from a location near the parking lot where Springle had stood, testified that he noticed Muirhead and McCarthy park their patrol car at the cab stand, get out of the car with the guns drawn, and approach Nimely's group. According to Elgazar, Nimely's companions then placed their hands on nearby parked cars in a manner suggesting a police search, while...