Thomas v. Nassau County Police Dept.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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STEVEN B. THOMAS,

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

CV 12-4343 (AYS)

Plaintiff,

-against-

JOHN WELLENREUTHER,

Defendant.

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APPEARANCES:

PAUL WEISS RIFKIND WHARTON & GARRISON

1285 Avenue of the Americas

New York, New York 10017

BY: ERIC ALAN STONE, ESQ.

DANIEL H. LEVI, ESQ.

ROBERT JOSEPH O’LOUGHLIN, III, ESQ.

JESSICA FUHRMAN, ESQ.

NINA M. KOVALENKO, ESQ.

Attorneys for Plaintiff

JARED A KASSCHAU, ESQ., NASSAU COUNTY ATTORNEY

BY: RALPH J. REISSMAN, ESQ. ASSISTANT COUNTY ATTORNEY

1 West Street

Mineola, New York 11501

Attorneys for Defendant

SHIELDS, Magistrate Judge,

On or about August 17, 2012, Plaintiff Steven B. Thomas (“Plaintiff” or “Thomas”) com-

menced this action pursuant to 42 U.S.C. §1983 (“Section 1983”) against the Nassau County Po-

lice Department and Nassau County Police Officer John Wellenreuther (“Wellenreuther”). When

the action was commenced Thomas appeared pro se. See Docket Entry (“DE”) [1]. On May 29,

2019, after the parties engaged in discovery, the District Court decided to appoint pro bono coun-

sel for purposes of trial. DE [87]. On October 29, 2019, the law firm of Paul, Weiss, Rifkind,

Wharton and Garrison agreed to accept the District Court’s appointment, and a trial before the

District Judge was scheduled. In December of 2019, counsel agreed to consent to the jurisdiction

of this Court for all purposes pursuant to 28 U.S.C. § 636(c). DE [103].

On March 3, 2020, pro bono counsel filed an amended complaint naming only

Wellenreuther as a defendant and alleging clearly the factual basis for Plaintiff’s Section 1983

complaint. In summary, the amended complaint asserts the unconstitutional use of excessive

deadly force during an incident that occurred on October 5, 2011. On that day, Plaintiff was shot

twice by Defendant, who was off duty and not in uniform. The amended pleading details the

facts of the incident forming the basis of Plaintiff’s claim, as well as his damages. See DE [115].

A jury trial was scheduled for March of 2020. The trial was adjourned on several occa-

sions due to the COVID-19 pandemic. Thereafter, the parties agreed to a bench trial, which this

Court held on March 16, 2021. On that date, all counsel and Defendant appeared at the trial in

person. Plaintiff testified remotely. Post-trial briefing was completed on April 9, 2021.

As discussed in further detail below, both Thomas and Wellenreuther testified credibly.

Each did their best to relate facts surrounding an incident that took place more than ten years

prior to trial. When they could not remember something with complete clarity, they said so. The

Court accepts the version of the facts set forth below. Those facts are based upon the parties’ tes-

timony, documents before the Court, and the fact that, in certain critical aspects, Thomas’s ver-

sion of the events simply makes more sense. Upon consideration of the trial testimony and docu-

ments, the parties’ submissions and all proceedings herein, this constitutes the Court’s Findings

of Fact and Conclusions of Law.

FINDINGS OF FACT

I. The Parties and the Events of October 5, 2011

1. Thomas is an individual who was born in Queens, New York and is currently 34 years

old. Transcript of Trial (“Tr.”) at 8.

2. On October 5, 2011, Wellenreuther was a police officer with the Nassau County Police

Department. Tr. 61-62. He is currently a sergeant. Tr. 104.

3. Prior to the events forming the basis of this action, Wellenreuther had been a police of-

ficer for approximately three and one-half years. Tr. 61.

4. On October 5, 2011 at approximately 7:00 A.M. Thomas was inside a convenience store

located on the premises of a service station in Elmont, New York known as the Liberty

Gas Mart (the “Gas Station”). Tr. 10.

5. A 2012 photograph of the Gas Station taken from “Google Maps” (the “Gas Station Pho-

tograph”) was introduced at trial. Thomas identified, and there was no real argument to

the contrary, that the Gas Station Photograph accurately portrayed the layout of the Gas

Station, the gas pumps, and the convenience store as of October 5, 2011. Tr. 12.

6. The Gas Station was located at the intersection of Hempstead Turnpike and Stone Street.

Tr. 62. Hempstead Turnpike is a commercial avenue and Stone Street is a residential

block. Tr. 63.

7. In addition to the Gas Station Photograph, Thomas identified a 2012 Google Maps photo-

graph of Stone Street (the “Stone Street Photograph”). As the testimony below makes

clear, Stone Street is the block toward which Thomas proceeded upon exiting the Gas

Station. Thomas testified, (and there was no real argument to the contrary), that with the

exception of unimportant details such as the type of fencing and landscaping, the Stone

Street Photograph fairly depicted Stone Street, and its relation to Hempstead Turnpike, as

of October 5, 2011. Tr. 23.

8. At the same time that Thomas was inside the convenience store at the Gas Station,

Wellenreuther had just finished working a twelve-hour shift, which he completed at 7:00

A.M. Tr. 62; 105.

9. Although off-duty, Wellenreuther, permissibly, carried his service revolver on the morn-

ing of October 5, 2011. Tr. 106.

10. After completing his shift Wellenreuther went to the Gas Station. Tr. 62.

11. At the time, Wellenreuther was driving his personal vehicle, a black pickup truck which

was not (and could not reasonably have been) mistaken for a police vehicle. Tr. 62-63.

12. Thomas described Wellenreuther’s clothing on the date of the incident as jeans, sneakers

and a “regular jacket.” Tr. 17.

13. Wellenreuther described the clothing he wore on the date of the incident as dark blue uni-

form pants and a flannel shirt. Tr. 63-64.

14. However described, it is clear that on the morning of October 5, 2011, Wellenreuther was

not dressed in clothes that could identify him as a police officer.

15. Upon his arrival at the Gas Station, Wellenreuther went inside the convenience store to

pay the attendant with cash for gas. Tr. 106. He then exited the store and started to pump

his gas. Tr. 106.

16. Thomas was inside the convenience store located at the Gas Station when Wellenreuther

arrived at the Gas Station.

17. At the time, Thomas had a toy gun in the pocket of his sweatshirt. Tr. 45. That toy gun

was characterized at trial as a “BB gun.”

18. While Wellenreuther testified that it was his belief that Thomas was carrying a gun, it is

clear that the weapon Thomas was carrying on the day of the incident was a BB gun. Tr.

87-88.

19. When Wellenreuther was pumping gas, there was a gas pump between him and the con-

venience store, which blocked any clear view that Wellenreuther might have had into the

convenience store. Tr. 66.

20. While Wellenreuther was pumping gas, an individual (not Thomas) exited the conven-

ience store, got into a taxicab and drove away. Tr. 66-67; 107.

21. Wellenreuther made no effort to look inside the convenience store until the taxicab drove

away. Tr. 67.

22. After the taxicab drove away, Wellenreuther looked inside the convenience store and saw

someone at the counter wearing a hoodie-type sweatshirt. Tr. 68.

23. The person observed by Wellenreuther had his arm at a right angle, pointing at the at-

tendant. Tr. 107. However, Wellenreuther could not see what, if anything, the person was

holding in his hand. Tr. 68. This was because Wellenreuther’s view was obscured by a

window display. Tr. 69; 107.

24. Thomas was the person who Wellenreuther observed at the convenience store counter

pointing at the attendant. Tr. 70.

25. While observing Thomas inside the convenience store, Wellenreuther did not observe any

act of violence taking place therein. Tr. 70.

26. As he exited the convenience store, Thomas was walking fast, but was not running. Tr.

71.

27. After Thomas exited the convenience store, the attendant exited. The attendant was ex-

cited, but not injured. Tr. 70.

28. Wellenreuther observed Thomas exit the convenience store. Tr. 70; 107.

29. Wellenreuther testified that he saw money hanging out of Thomas’s sweatshirt pocket.

Tr. 107.

30. Wellenreuther made no attempt to stop Thomas as Thomas made his immediate exit from

the convenience store. Tr. 71.

31. Wellenreuther watched Thomas exit the store and continued to observe him, because he

thought that Thomas looked a “little weird.” Tr. 108. Wellenreuther heard the conven-

ience store attendant, who did not testify at trial, yell that he was robbed and saw that per-

son pointing at Thomas. Tr. 108.

32. Wellenreuther testified that he yelled for Thomas to stop, and that he identified himself as

a police officer. Tr. 108.

33. Wellenreuther did not call for any backup. Tr. 71.

34. Although Wellenreuther was not on duty he was, as noted, in possession of his service

weapon. Tr 71-72.

35. Wellenreuther agreed, and the Court finds, that after firing a weapon such as Wellenreu-

ther’s service weapon, any shell casings falling from that weapon would fall somewhere

nearby to the site where the weapon was discharged. Tr. 72.

36. Thomas exited the convenience store and proceeded to his right, eastward toward a vac-

uum station. Tr. 14; 51-52; 70.

37. Wellenreuther drew his service weapon as Thomas exited the Gas Station. Tr. 71-72

38. Wellenreuther testified that Thomas “spun around” toward him, which put Wellenreuther

in fear for his life and those around him. He therefore fired one round at Thomas. Tr. 73-

74; 108. (the “First Gunshot”).

39. When he fired the First Gunshot Wellenreuther could reasonably have believed that

Thomas had a real gun; not a BB gun.

40. When he was in the convenience store at the Gas Station, and upon exiting, Thomas was

carrying a BB gun in the right-hand pocket of his sweatshirt. Tr. 11.

41. As he was exiting the Gas Station and proceeding toward Stone Street, Thomas heard

loud voices behind him. He testified, credibly, that although there was only one voice that

he heard, there was a loud commotion. Tr. 15.

42. Upon hearing this commotion, Thomas turned to look over his shoulder and saw a man

holding a gun pointed in his direction. Tr. 15. At trial, Thomas identified Wellentreuther

as the man who was yelling and pointing a gun at him. Tr. 16. That man was Wellenreu-

ther, who was not wearing a police uniform. Tr. 17; Tr. 63-64.

43. According to Thomas, Wellenreuther did not identify himself as a police officer. Tr. 17;

47-48.

44. Thomas denied that Wellenreuther was yelling at Thomas to stop. Tr. 48-50; 52.

45. When Thomas heard Wellenreuther shouting at him, Wellenreuther was close to the gas

pumps, located across front the entrance to the convenience store, and was headed toward

Stone Street. Tr. 19.

46. In reaction to Wellenreuther’s shouting, and while looking over his shoulder Thomas saw

Wellenreuther point a gun at him. Tr. 51.

47. At the same time, Thomas saw fire from a gun being shot in his direction. Tr. 20. This

was the First Gunshot.

48. Wellenreuther fired the First Gunshot at Thomas before Thomas got fully around to face

Wellenreuther. Tr. 74.

49. The First Gunshot did not hit Thomas. Tr. 52; 74.

50. The Court finds, based upon the consistent testimony of Thomas and Wellenreuther, that

after the First Gunshot was fired, Thomas dropped to the ground to avoid being hit. Tr.

21; 51-52; 76; 109.

51. After dropping to the ground, Thomas got up and began to run down Stone Street, away

from Wellenreuther. Tr. 76; 109.

52. When he first dropped to the ground, Thomas still had the BB gun in the pocket of his

sweatshirt. Tr. 21.

53. After dropping to the ground to avoid the First Gunshot, Thomas stood up, pulled the BB

gun out of his pocket, and threw it on to Stone Street. Tr. 22; 109. Thomas stated that he

discarded the BB gun in this manner because it was weighing him down as he attempted

to run from the shooter. Tr. 22-23; 48; 51.

54. After the First Gunshot missed Thomas, Wellenreuther saw what he believed to be a gun

being transferred from Thomas’s right hand. He also saw Thomas throw that weapon

away from him. Tr. 76-77.

55. When Thomas threw the BB gun out of his pocket, it landed on a car parked on Stone

Street. While Thomas could not say precisely where the BB gun landed, he knew that it

hit a car, because he heard it make contact. Tr. 24.

56. Like Thomas, Wellenreuther testified that after the First Gunshot, Thomas threw the BB

gun (which Wellenreuther thought was a real gun) away from him. Tr. 81-82, 92; 109.

57. Both Thomas and Wellenreuther heard the sound made by the BB gun as it was discarded

and hit a parked car. Tr. 24; 109.

58. The Court finds, based upon the consistent and credible testimony of Thomas and Wel-

lenreuther, that after the First Gunshot missed him, Thomas threw his weapon away from

him, and that the weapon landed, out of Thomas’s reach, on a parked car. Tr. 77-78; 82;

109.

59. Wellenreuther knew that after the First Gunshot missed him, Thomas discarded the

weapon that was in his sweatshirt pocket.

60. After throwing the BB gun away, Thomas continued to run in the direction of the drive-

way of a house located on Stone Street. He jumped over a driveway fence at the house

located on Stone Street, next to the Gas Station. Tr. 25; 76; 109

61. After the First Gunshot missed Thomas, Wellenreuther knew that whatever weapon

Thomas had was thrown away from Thomas and was not in Thomas’s possession. Wel-

lenreuther knew that this weapon, whatever it was, was on the street- abandoned by

Thomas. Tr. 82-83; 93.

62. After discarding his weapon, Thomas attempted to flee Wellenreuther. At that point in

time, Wellenreuther knew that Thomas was unarmed. Tr. 83.

63. Wellenreuther continued to pursue Thomas as Thomas proceeded to jump over the drive-

way fence. Tr. 84.

64. As he continued to run, Thomas heard footsteps, breathing and yelling from the person

who had shot him, and was continuing to run after him. Tr. 25-26.

65. After jumping the driveway fence, Thomas felt a burning sensation on the back of his

neck and fell on to the concrete driveway. Tr. 26; 52.

66. The burning sensation was the result of Wellenreuther shooting a second time at Thomas

(the “Second Gunshot”).

67. The Second Gunshot hit Thomas in the back of his neck. Tr. 28.

68. Wellenreuther shot the Second Gunshot when Thomas was running away from him. Tr.

109.

69. Wellenreuther shot the Second Gunshot after he knew that Thomas had discarded the

weapon that was in the pocket of his sweatshirt.

70. At the time that he was hit by the Second Gunshot, Thomas had his back to Stone Street

and was running away from the sound of Wellenreuther’s voice. Tr. 28.

71. Thomas did not hear Wellenreuther ever identify himself as a police officer. Tr. 28.

72. After being shot, Thomas fell forward to the ground. Tr. 29; 52.

73. When Thomas came to his senses after falling to the ground, after being hit by the Sec-

ond Gunshot, he saw Wellenreuther running back towards the Gas Station. Tr. 29.

74. Because he saw the shooter (Wellenreuther) run towards the Gas Station, Thomas felt

safe. Despite being shot in the back of his neck, Thomas was able to get to his feet and to

begin to run towards his car, which was parked near the Gas Station. Tr. 30.

75. Wellenreuther testified that after the First Gunshot missed Thomas, he saw Thomas reach

into his waistband. According to Wellenreuther, this took place after he saw Thomas

throw away his weapon, and after he saw that weapon land on a parked car. Tr. 89; 96.

76. At the time that Wellenreuther stated that he saw Thomas reach into his waistband, Wel-

lenreuther was approximately twenty feet away from Thomas. Tr. 89. At that time, Wel-

lenreuther knew that Thomas had already discarded the weapon that Wellenreuther be-

lieved to have been a real gun. Tr. 89-90.

77. Wellenreuther never saw any weapon on Thomas’s possession other than the discarded

BB gun. Tr. 92; 96.

78. As far was Wellenreuther knew, Thomas had no second weapon. Tr. 96.

79. Following the shooting, a use of deadly force investigation report was prepared by the

Nassau County Police Department. While that report states that Wellenreuther yelled to

Thomas to “stop,” it does not say that Wellenreuther yelled “stop” and also used the word

“police.” Wellenreuther agreed that if he had yelled “police,” that fact would have been

included in the report, but it was not. Tr. 95-96.

80. Wellenreuther testified on direct examination that prior to the First Gunshot he identified

himself as a police officer. However, he could not clearly remember, after cross-examina-

tion, whether he did, in fact, so identify himself to Thomas. Tr. 94; 109.

81. Wellenreuther did not identify himself as a police officer prior to discharging the Second

Gunshot.

82. Wellenreuther testified that prior to shooting his weapon for the second time he was in

fear for his life, because Thomas again spun around at him. Tr. 110.

83. Thomas denied reaching into his sweatshirt pocket for any weapon. Tr. 21-22.

84. Thomas denied ever having a weapon in the waistband of his pants, and further denied

ever reaching into his waistband for any weapon. Tr. 21; 28.

85. Thomas denied ever pointing any weapon at Wellenreuther. Tr. 22.

86. While the Court finds that, generally, Wellenreuther was a credible witness, the Court re-

jects as incredible and belied by the facts of this case, that Thomas was reaching into his

waistband for a weapon when Wellenreuther discharged the Second Gunshot. The Court

also finds a complete absence of any facts supporting any notion that on the October 5,

2011, Thomas was in possession of two weapons - real or otherwise. Nor could Wellen-

reuther have reasonably believed that Thomas was reaching for or facing him with a gun

at the time when Wellenreuther fired the Second Gunshot. Tr. 93.

87. Wellenreuther agreed that if the Second Gunshot hit Thomas in the back of the neck

Thomas could not have possibly been facing Wellenreuther when he shot at Thomas for

the second time. Tr. 90-91.

88. The Court finds incredible Wellenreuther’s testimony that Thomas was facing him when

he was hit by the Second Gunshot - which hit Thomas in the back of his neck.

89. When Wellenreuther shot the Second Gunshot, he may have believed that Thomas had

just robbed the convenience store. The facts indicate that while Thomas may have been

robbing the convenience store, he injured no one.

90. While Wellenreuther may have reasonably believed that Thomas had robbed the conven-

ience store, there are not facts to show that Thomas had injured anyone in the conven-

ience store or at the Gas Station. Tr. 93.

91. At the time when Wellenreuther shot the Second Gunshot, Thomas was running away

from him and was unarmed.

92. From Thomas’s point of view, he was being shot at and chased by an armed individual

who he did not know to be a police officer.

II. Thomas’s Hospitalization and Testimony as to His Injuries

93. Thomas did not introduce any medical records at trial. Nor did he introduce the testimony

of any medical experts. Instead, trial testimony as to Thomas’s damages consisted of his

description of his pain and injuries. Despite the lack of expert testimony, the Court finds

that Thomas testified credibly as to his injuries.

94. Thomas described the immediate pain he felt upon being shot as a sharp burning pain,

which was accompanied by blood dripping down his back. Tr. 29.

95. After being shot, Thomas was transported by ambulance to a nearby hospital where he

received medical treatment. Tr. 31; 53.

96. Upon arriving at the hospital, Thomas’s clothes were cut away and blood was cleaned

from his legs and back. Tr. 31.

97. After bandaging his neck wound, medical professionals “popped” Thomas’s shoulder

back into place. It was Thomas’s understanding that this procedure was necessary to cor-

rect a dislocation that occurred when, after being hit by the Second Gunshot, Thomas fell

forward to the ground, with his shoulder bearing the brunt of his weight. Tr. 31.

98. In addition to treatment for the gunshot wound to his neck and his dislocated shoulder,

Thomas was treated at the hospital for scrapes and bruises to his knees and elbow. Tr. 32.

99. Treatment for the gunshot wound to Thomas’s neck did not require any surgery. Tr. 58-

59.

100. Thomas suffers from hemophilia. It is Thomas’s understanding that hemophilia is

a disease that interferes with the ability of his blood to properly clot. See Tr. 32.

101. As a result of his hemophilia Thomas receives treatments to allow his blood to

clot. Tr. 32. Thomas referred to these treatments as administration of a clotting factor.

102. Thomas’s medical treatment following the shooting was complicated by the fact

that he suffers from hemophilia. Tr. 32.

103. Thomas testified that because of his hemophilia he could not stop bleeding after

being shot. As a result, it was necessary for him to receive around the clock clotting fac-

tor, approximately every six to eight hours, which was administered intravenously. Tr.

32-33. This treatment contrasts with Thomas’s usual hemophilia treatment which he un-

dergoes approximately twice a week. Tr. 39.

104. Thomas testified that his current twice weekly hemophilia treatments are less than

the number of treatments that he received while hospitalized, but more than would have

been necessary had he not been shot. He referred to this increase in treatment as a com-

plication of having received a gunshot wound. Tr. 39.

105. The Court finds credible Thomas’s testimony regarding the frequency of hemo-

philia treatments during his hospitalization, and that such frequency was a more than

Thomas normally received. However, the absence of expert medical testimony makes it

impossible for the Court to evaluate whether Thomas’s current treatments are more fre-

quent or painful than those that would normally be received by a person with hemophilia.

Nor can the Court make any finding that Thomas’s current clotting factor regimen is

complicated as a result of a gunshot wound suffered ten years prior to trial.

106. The absence of medical records or expert testimony makes it impossible for the

Court to make any finding as to whether the bullet made a clean entry into and exit from

Thomas’s neck.

107. Thomas remained in the hospital for five or six days following the shooting. Tr.

32.

108. After his release from the hospital, Thomas remained in pain and had a sling

around his arm. Tr. 33.

109. After his release from the hospital, Thomas experienced neck pain. He continues

to experience such pain in the form of stiffness and discomfort at times when he moves

his arm. Tr. 34.

110. Thomas has a scar on the back of his neck which he displayed to the Court at trial.

Tr. 34.

111. The scar is approximately the size of a quarter and is visible on the back of

Thomas’s neck, on the right side. Tr. 35.

112. In addition to physical injuries to his neck, shoulder and body, Thomas testified

credibly about his mental condition following the shooting. Tr. 35.

113. After his release from the hospital Thomas fell into a deep depression which he

described as being “secluded” and going into his own “shell.” Tr. 35.

114. Thomas also had trouble sleeping and was fearful of being around people and law

enforcement. Tr. 35.

115. Thomas experienced nightmares, bad dreams and woke up in cold sweats. Tr. 35-

36.

116. Thomas also had headaches. Tr. 36.

117. Thomas’s sleeping difficulties persisted for between nine months to a year after

the shooting. Tr. 36. Even after that period, Thomas still continues to experience periodic

sleeping difficulties. Tr. 36.

118. Thomas testified that following the shooting he was diagnosed as suffering from

PTSD (post-traumatic stress disorder), depression and anxiety. Tr. 37.

119. Thomas continues to experience bouts of depression and states that it has been

difficult for him to move forward. Tr. 36-37.

120. Thomas was under the care of a psychologist and a psychiatrist for two years fol-

lowing the shooting. Tr. 37-38. While he could not state precisely the names of particular

medications or particular time frames of administration, Thomas testified that during this

two-year period he was prescribed medication to treat his post-shooting mental state. Tr.

38.

CONCLUSIONS OF LAW

I. The Fourth Amendment Claim of Excessive Force

A. Legal Standard

1. The Fourth Amendment to the United States Constitution protects against unreasonable

search and seizure. U.S. Const. amend. IV.

2. Wellenreuther’s gunshots constitute seizures under the Fourth Amendment. See Torres v.

Madrid, 141 S. Ct. 989, 993-94 (2021).

3. Law enforcement officers may use only the amount of force that is “objectively reasona-

ble” in order to effectuate a seizure. Use of an objectively unreasonable amount of force

violates the Fourth Amendment and is therefore unconstitutional. Graham v. Connor, 490

U.S. 386, 397, 109 S. Ct. 1865, 1872, 104 L. Ed. 2d 443 (1989); Tennessee v. Garner,

471 U.S. 1, 7, 105 S. Ct. 1694, 1699, 85 L. Ed. 2d 1 (1985); O’Bert v. Vargo, 331 F.3d

29, 36 (2d Cir. 2003).

4. To determine whether force used is reasonable the Court considers the perspective of a

reasonable officer based upon the facts and circumstances facing them when force is

used. Graham, 490 U.S. at 396-97.

5. An officer’s “good intentions are immaterial and will not justify an objectively unreason-

able use of force.” Dancy v. McGinley, 843 F.3d 93, 117 (2d Cir. 2016).

6. When assessing the reasonableness of the use of force the Court considers all facts facing

the officer, including the severity of the crime alleged to have been committed, the be-

havior of the subject who is the object of the force, alternatives available to the officer,

the danger to the officer, and the danger to others who may be nearby. See Graham, 490

U.S. at 396, Collado v. City of New York, 2017 WL 4533772, at *2 (S.D.N.Y. Sept. 27,

2017).

7. The mere fact that an officer may objectively believe that a felony has been committed is

not, standing alone, sufficient to justify the use of deadly force. It is “constitutionally un-

reasonable” to use deadly force to prevent the escape of all individuals fleeing the sus-

pected commission of a felony. Garner, 471 U.S. at 11.

8. Where feasible, an officer must give warning before using deadly force. Garner, 471 U.S.

at 11-12.

9. The constitutionality of the use of deadly force depends upon whether the suspect pre-

sents a threat to the officer or others - not on whether the suspect has committed a crime.

Garner, 471 U.S. at 11.

10. The law is clear: the use of deadly force to prevent escape is reasonable only if the officer

“has probable cause to believe that the suspect poses a threat of serious physical harm,

either to the officer or to others.” Garner, 471 U.S. at 11. The use of “deadly force is ob-

jectively reasonable only if ‘the officer has probable cause to believe that the suspect

poses a significant threat of death or serious physical injury to the officer or others,’ ”

Cowan, 352 F.3d at 762 (quoting O'Bert, 331 F.3d at 36).

B. Wellenreuther Violated The Fourth Amendment

11. There is no doubt that Wellenreuther used deadly force twice on October 5, 2011 in the

form of the First Gunshot and the Second Gunshot.

12. Although the question is close, the Court holds that the use of deadly force in the form of

the First Gunshot did not violate the Fourth Amendment.

13. It is clear, under the facts and circumstances here that the use of deadly force against

Thomas, in the form of the Second Gunshot, violated the Fourth Amendment.

14. In reaching these legal conclusions the Court has considered and weighed the factual cir-

cumstances presented at trial, which presented a mostly consistent view of the facts and

circumstances facing Wellenreuther when deadly force was used.

15. From the perspective of a reasonable police officer, based upon the facts as found by the

Court above, the use of deadly force at the time of the First Gunshot was objectively rea-

sonable, and therefore did not violate the Constitution.

16. The use of deadly force at the time of the First Gunshot was reasonable under the circum-

stances because at the time of that shooting, a reasonable police office could have be-

lieved that Thomas was fleeing from commission of an armed robbery. It was not reason-

able to believe that any act of violence had occurred at the convenience store. However,

at the time, it was reasonable to believe that there was a threat of violence and that

Thomas had a weapon. When Thomas spun around, a reasonable police officer, believing

Thomas to be in possession of a gun, could have used deadly force. Accordingly, Wellen-

reuther did not violate the Fourth Amendment when he used deadly force against Thomas

at the time of the First Gunshot.

17. From the perspective of a reasonable police officer, based upon the facts and circum-

stances as found by the Court above, the use of deadly force at the time of the Second

Gunshot was objectively unreasonable and therefore violated the Constitution.

18. While a reasonable police office could have believed that Thomas was fleeing from com-

mission of an armed robbery, no reasonable police officer could have believed that

Thomas was armed at the time of the Second Gunshot. As both Wellenreuther and

Thomas testified, Thomas threw his weapon away from him prior to the Second Gunshot.

Both Thomas and Wellenreuther observed the weapon being thrown away from Thomas

and heard the weapon land out of Thomas’s reach on a parked car. Both Thomas and

Wellenreuther testified that after disposing of his weapon (which turned out to be a BB

gun) Thomas ran away from Wellenreuther.

19. The Court does not credit Wellenreuther’s testimony that he identified himself as a police

officer just prior to the Second Gunshot being fired. However, even if Wellenreuther did

so identify himself, that would not change this Court’s legal conclusion that the use of

deadly force in the form of the Second Gunshot was unconstitutional. This is because it is

clear that a reasonable police officer would have known, to a certainty, that Thomas was

unarmed. Such a reasonable police officer would also know that while Thomas may have

threatened violence at the convenience store, no violence had occurred.

20. No reasonable police officer could have objectively believed that Thomas was in posses-

sion of a weapon when the Second Gunshot was fired.

21. At the time of the Second Gunshot, there was not any objective reason to believe that

deadly force was necessary to protect Wellenreuther or any other member of the public.

II. Qualified Immunity

22. Qualified immunity is an affirmative defense that must be pled and proven by defendant.

Spavone v. New York City Dep’t. of Correctional Services, 719 F.3d 127, 134 (2d Cir.

2013).

23. While Defendant pled qualified immunity in the answer to the first complaint, that de-

fense was in no other way litigated. Thus, over eight years of litigation, the qualified im-

munity defense was neither raised by way of motion, nor during any pretrial proceedings.

Indeed, the defense was not even referred to in the pretrial order or in the proposed jury

instructions when this case was initially scheduled to be tried by a jury. Instead, qualified

immunity was not briefed by Defendant until submission of his post-trial briefing. Under

these circumstances the Court has no difficulty concluding that Wellenreuther has waived

the right to argue that his actions were protected by qualified immunity. See Blissett v.

Coughlin, 66 F.3d 531, 538-39 (2d Cir. 1995) (qualified immunity defense waived where

defendant failed, over the five year course of proceedings to “adequately develop” the de-

fense or move for summary judgment, but instead raised the defense for the first time at

and, only after prompting by the trial court).

24. Even assuming that Defendant has not waived the qualified immunity defense, it does

not, under the facts herein, apply.

25. Qualified immunity protects a defendant from liability when their conduct “does not vio-

late clearly established statutory or constitutional rights of which a reasonable person

would have known.” White v. Pauly, 137 S. Ct. 548, 551, 196 L. Ed. 2d 463 (2017)

(quoting Mullenix v. Luna, 577 U.S. 7, 11, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255

(2015)). It applies “regardless of whether the government official’s error is a mistake of

law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Spavone,

719 F.3d at 135 (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L.

Ed. 2d 565 (2009) (internal quotation marks omitted)).

26. The standard to be applied is an objective one, “asking not whether the defendant officer

acted in good faith or what he himself knew or believed, but rather what would have been

known to or believed by a reasonable officer in the defendant's position.” Outlaw v. City

of Hartford, 884 F.3d 351, 367 (2d Cir. 2018).

27. So long as the officer “has an objectively reasonable belief that his actions are lawful,” he

“is entitled to qualified immunity.” Swartz v. Insogna, 704 F.3d 105, 109 (2d Cir. 2013)

(internal quotation marks omitted).

28. Whether a right was clearly established is a question of law, and whether a defendant's

conduct was objectively reasonable, that is, whether a reasonable officer would have rea-

sonably believed that his conduct did not violate a clearly established right, is a mixed

question of law and fact. Kerman v. City of New York, 374 F.3d 93, 108-09 (2d Cir.

2004).

29. As the legal discussion above makes clear, the constitutional right to be free from the use

of excessive force under the facts here was well established. Specifically, the use of

deadly force against a fleeing suspect, where there could be no objective belief that either

the officer or public was in danger, violates the Firth Amendment. See Garner, 471 U.S.

at 11.

30. Under the facts here, again, as stated above, Wellenreuther could not have objectively be-

lieved that the use of deadly force in the form of the Second Gunshot was Constitutional.

Thus, even if the defense of qualified immunity was not waived, it has no application

here and does not change this Court’s conclusion that Wellenreuther violated Thomas’s

Fourth Amendment rights when firing the Second Gunshot.

III. Damages

31. Having determined that Defendant is liable for injuries sustained as a result of the use of

excessive force the Court must decide the proper amount to award Plaintiff as damages.

Plaintiff does not seek a particular amount but notes with authority, that damage awards

in similar excessive force cases are frequently in the hundreds of thousands of dollars. In-

deed, jury awards exceeding one million dollars have been sustained. While Defendant

does not concede liability, he argues that Plaintiff has suffered only “garden variety”

emotional damages and any award should be limited, at most, to $35,000.

32. At the outset the Court rejects Defendant’s “garden variety” analysis. The cases relied

upon by Defendant are inapposite employment discrimination cases where plaintiffs seek

compensation for emotional injury without evidence of having received medical care.

The Court agrees that Thomas did not offer expert medical witness testimony as to treat-

ment for mental trauma, and the Court will consider only the value of his testimony when

assessing damages. More importantly, however, while Plaintiff seeks damages for emo-

tional trauma, he mostly seeks damages for injuries sustained as a result of a gunshot

wound to the back of his neck – hardly the type of garden variety harm sustained in the

employment cases relied upon by Defendant. The Court therefore turns to consider what

damages are appropriate to award based upon Plaintiff’s testimony and the uncontro-

verted evidence regarding the gunshot wound and his hospitalization. The Court also

credits Thomas’s testimony as to how he felt following the shooting.

33. While it is difficult to put a dollar value on damages suffered as a result of the use of

force, the Court must arrive at a damage award to properly compensate Plaintiff for his

injuries. When considering the amount to award, it is appropriate to consider other cases

that have awarded damages for the use of excessive force and ensuing mental trauma.

While each case presents its own unique set of circumstances, and no one case is binding,

amounts awarded in other cases provide helpful information to assist the Court in making

its award here.

34. It is also appropriate to consider the value of prior awards in today’s dollar value. Plain-

tiff suggests, and this Court agrees, that reference to the United States Bureau of Labor

Statistics Consumer Price Index (“CPI”) inflation calculator is helpful. That calculator

compares the “buying power” of money at a prior date in time to the present power of

money. Thus, for example, the CPI calculator tells us that a $25,000 award made in 1985

has the same buying power as approximately $63,000 today. This calculator is available

at https://www.bls.gov/data/inflation calculator.htm. When assessing the precedential

value of older cases, the Court will consider the buying power of the awards in those

cases to the buying power of those amounts today.

35. It is not surprising to find that compensatory damages awards for excessive force claims

in this Circuit vary. It is useful for this Court to consider awards made in “other compara-

ble cases.” DiSorbo v. Hoy, 343 F.3d 172 (2d Cir. 2003). The Court is mindful to con-

sider what the evidence showed as to the physical and emotional trauma at the time of the

injury, as well as any injury that could continue to be suffered in the future. See Morales

v. City of N.Y., No. 99 Civ. 10004, 2001 WL 8594, *10 (S.D.N.Y. Jan. 2, 2001)(remit-

ting $2.75 compensatory damages award to $50,000 when plaintiff only suffered from

bruises which healed, required no serious medical treatment, and sustained no permanent

physical injury, although her “emotional suffering was much greater”) (citing Blisset v.

Coughlin, 66 F.3d 531 (2d Cir. 1995); Rodick v. City of Schenectady, 1 F.3d 1341 (2d

Cir. 1993) (awarding $150,000 in compensatory damages where plaintiff was repeatedly

beaten by defendants while arresting him in his home and fell down a flight of stairs dur-

ing the struggle); Fiacco v. City of Rensselaer, 783 F.2d 319 (2d Cir. 1986) (remitting

compensatory damages award of $75,000 to $25,000 where the injuries sustained in-

cluded handcuffs that were embedded in plaintiff’s wrists, plaintiff’s hands being blue,

plaintiff requiring surgery to repair a tendon in her finger, and plaintiff’s arm placed in

brace from the wrist down); Wheatly v. Ford, 679 F.2d 1037 (2d Cir. 1982) (reducing

compensatory damages award from $55,000 to $25,000 because any lasting injury to

plaintiff was “very minor” and that “while perhaps severe, [the plaintiff’s] temporary dis-

comfort did not last for long,” where plaintiff was struck with a “slapjack” during his ar-

rest, had his bare feet stomped on and was cuffed in the ears); DiSorbo, 343 F.3d at 185-

86 (reducing compensatory damages award from $400,000 to $250,000 where the inju-

ries included two large hematomas and bruises all over her body and did not require sur-

gery or result in permanent scarring or nerve damage, and sustained psychological inju-

ries caused by the “highly traumatic nature” of the attack); Alla v. Verkay, 979 F. Supp.

2d 349, 363-65, 377 (E.D.N.Y. 2013) (upholding an award of $250,000 in non-economic

compensatory damages where the plaintiff sustained a fractured facial bone which caused

chronic headaches, limited jaw function, recurring nightmares, and emotional injuries);

Bender v. City of N.Y., 78 F.3d 787, 792-95 (2d Cir. 1996) (remitting award of $300,000

to $150,000 where the plaintiff did not sustain a permanent physical injury but suffered

nightmares and loss of sleep for more than a year, mostly resulting from being wrong-

fully confined for one day); King v. City of N.Y., No. 92 Civ. 7738, 1996 WL 737195, at

*4, 6 (S.D.N.Y. Dec. 24, 1996) (remitting compensatory damage award to $200,000

where the plaintiff suffered no permanent injuries but received bruises, black eyes, abra-

sions, a gash in his head, and other blunt trauma); Rosas v. Balter Sales Co. Inc., 2018

WL 3199253, at *9-10 (S.D.N.Y. June 29, 2018) (reducing compensatory damages award

to $180,000 for “garden variety” emotional distress). Tranchina v. McGrath, 2021 WL

1599189, at *6 (N.D.N.Y. April 23, 2021) (upholding an award of $190,000 where the

plaintiff sustained a fractured rib along with other physical injuries although none of

which caused long-term physical suffering or a lasting impairment as well as psychologi-

cal injuries such as continuing difficulty sleeping and recurring thoughts about the inci-

dent).

36. The conscious pain and suffering award recently made in the case of Collado v. City of

New York, 396 F. Supp. 3d 265 (S.D.N.Y 2019) is instructive. There, Circuit Judge Chin,

sitting by designation, agreed that a $300,000 award for conscious pain and suffering fol-

lowing a gunshot wound was reasonable. Collado, 396 F. Supp. 3d at 277. While the vic-

tim in Collado ultimately succumbed to his wounds (resulting in an additional award of

$2.5 million) Judge Chin upheld the $300,000 award as proper compensation for the 50

minutes of conscious pain suffered by the victim prior to his death. Id.

37. In King v. City of N.Y., No. 92 Civ. 7738, 1996 WL 737195 (S.D.N.Y. Dec. 24, 1996),

the court directed that plaintiff accept a remitted award in the amount of $200,000. There,

a jury awarded $300,000 as damages in a case where the plaintiff was subjected to exces-

sive force in the form of a being kicked, hit with a walkie-talkie, and having his head

forced back by a nightstick. While plaintiff was treated at a hospital for blunt force

trauma, he was released without an overnight stay. As to continuing damages, plaintiff in

King suffered ongoing psychological damages in the way of a fear of police and going

outside with friends. Distinguishing King from the case here, plaintiff there was subject

to malicious prosecution and an unwarranted 30 hours of incarceration. Id. at*4-5. Using

the CPI calculator referred to above, the $200,000 in damages award in King in 1996, is

equivalent to approximately $342,000 in today’s dollars.

38. Decided in a time frame similar to King, the Second Circuit upheld a jury award of

$75,000 (equivalent to approximately $132,000 in 2021 dollars) in Blissettt v. Coughlin,

66 F.3d 531 (2d Cir. 1995). There, plaintiff suffered injuries following the use of exces-

sive force involving the beating of plaintiff by defendant prison guards with their hands

and a baton.

39. A significantly higher jury award of $650,000 in compensatory damages was reinstated

(after reversal of a district court’s remittitur) in Ismail v. Cohen, 899 F.2d 184 (2d Cir.

1990). In Ismail, the plaintiff suffered excessive force in the form of being struck on the

back of his head after which he suffered a brief loss of consciousness. Additionally,

Plaintiff suffered displaced vertebrae, a cracked rib and head trauma following a beating

that included defendant’s knee being placed on plaintiff’s back. Following the incident,

the plaintiff in Ismail continued to suffer from chronic pain. Ismail, 899 F.2d at 186. The

$650,000 award made in 1990 is equivalent to $1.35 million in today’s dollars.

40. “Emotional distress awards within the Second Circuit can generally be grouped into three

categories of claims: garden-variety, significant and egregious. In garden variety emo-

tional distress claims, the evidence of mental suffering is generally limited to the testi-

mony of the plaintiff, who describes his or her injury in vague or conclusory terms, with-

out relating either the severity or consequences of the injury. Such claims typically lack

extraordinary circumstances and are not supported by any medical corroboration.” Mu-

gavero v. Arms Acres, Inc., 680 F. Supp. 2d 544, 578 (S.D.N.Y. 2010) (internal citations

omitted). Garden variety emotional distress claims “generally merit $30,000 to $125,000

awards.” Id. “Significant emotional distress claims differ from the garden-variety claims

in that they are based on more substantial harm or more offensive conduct, are sometimes

supported by medical testimony and evidence, evidence of treatment by a healthcare pro-

fessional and/or medication, and testimony from other, corroborating witnesses.” Id. (in-

ternal quotation marks omitted). Significant emotional distress claims generally merit

awards at least as high as $175,000. See, e.g., id. (upholding total emotional distress

award of $175,000 where plaintiff offered evidence of “more than a garden variety

claim”). “Finally, ‘egregious’ emotional distress claims generally involve either ‘outra-

geous or shocking’ discriminatory conduct or a significant impact on the physical health

of the plaintiff.” Id. (internal quotation marks omitted). Substantially higher awards are

appropriate for that type of claim. See, e.g., Ramirez v. N.Y.C. Off-Track Betting Corp.,

112 F.3d 38, 43 (2d Cir. 1997) (affirming a $500,000 award, reduced from $1,145,625 by

the district court, in employment discrimination case).

41. An award to compensate for emotional damages may be appropriate even if the plaintiff

failed to present expert medical testimony on damages. Tranchina, 2021 WL 1599189 at

*6 (upholding compensatory damages award for emotional damages where only testi-

mony in support of emotional damages was plaintiff’s); Hughes v. Patrolmen’s Benev.

Ass’n of City of New York, Inc., 850 F.2d 876 (2d Cir. 1988) (upholding $225,000 com-

pensatory damages award for emotional damages even though no permanent harm re-

sulted).

42. In Tranchina, plaintiff testified about the altercation with the defendant and explained

that he feared for his life, believed he was going to die and had since experienced diffi-

culty sleeping and had recurring thoughts about the incident. 2021 WL 1599189 at

*6. The Court found that plaintiff’s testimony regarding his emotional injuries along

with the evidence of the nature of the altercation and the photographs were sufficient for

the jury to award emotional damages. Id.

43. Here, there is no doubt as to Thomas’s pain on the date of the shooting and during his

hospitalization. The pain of being shot in the neck is impossible for others to imagine, but

is likely similar to the pain suffered by the deceased in Collado prior to his death. The

$300,000 award for conscious pain and suffering presents an appropriate comparator for

a damages award. Thomas was indeed fortunate to have survived the Second Gunshot.

He is further fortunate to appear to have made a full physical recovery. While the Court

credits Thomas’s testimony that his hemophilia treatment regimen was complicated dur-

ing his hospital stay, the Court was not presented with evidence upon which to base a

continuing physical damages award based upon the argument that his long term hemo-

philia treatment differs. However, based upon the pain and suffering following the Sec-

ond Gunshot, as well as pain and suffering during his near week-long hospitalization and

intense hemophilia treatment, the Court finds that Thomas should be compensated in the

amount of $400,000. As to Thomas’s mental state following the shooting, the Court is

again hampered by the lack of an expert medical opinion. However, the Court credits

Thomas’s testimony regarding the depression suffered as a result of the shooting, as well

as the fact that he was treated with medication. The Court therefore will award Thomas

damages in the amount of $75,000 to reflect mental damages suffered as a result of the

shooting.

44. In conclusion and upon consideration of the facts before the Court and the findings and

conclusions herein he Court holds that awards Thomas $475,000.

CONCLUSION

For the foregoing reasons the Court holds that Defendant violated Thomas’s Fourth

Amendment right to be free from the use of deadly force when he shot the Second Gunshot at

Thomas. Thomas is hereby awarded the amount of $475,000 as compensation for his physical

and mental pain and suffering. The Clerk of the Court is directed to enter judgment accordingly

and to thereafter close the file in this case.

SO ORDERED

Dated: Central Islip, New York

May 21, 2021

/s/ Anne Y. Shields

Anne Y. Shields

United States Magistrate Judge