Thevenin v. City of Troy

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

CINTHIA THEVENIN,

Plaintiff,

- v - Civ. No. 1:16-CV-1115

(DJS)

CITY OF TROY, et al.,

Defendants.

APPEARANCES: OF COUNSEL:

HACH & ROSE, LLP MICHAEL A. ROSE, ESQ.

Attorneys for Plaintiff

185 Madison Avenue, 14th Floor

New York, NY 10016

HARFENIST KRAUT & STEVEN J. HARFENIST, ESQ.

PERLSTEIN LLP NEIL S. TORCZYNER, ESQ.

Attorneys for Plaintiff

3000 Marcus Avenue, Suite 2E1

Lake Success, NY 11042

FITZGERALD MORRIS BAKER JOHN D. ASPLAND, ESQ.

FIRTH, P.C. MICHAEL A. BRANDI, ESQ.

Attorneys for Defendants

16 Pearl Street

P.O. Box 2017

Glens Falls, NY 12801

DANIEL J. STEWART

United States Magistrate Judge

MEMORANDUM-DECISION & ORDER

I. FACTUAL STATEMENT

In the early morning hours of April 17, 2016, Randall French and Edson Thevenin were

driving their respective vehicles in the City of Troy. Dkt. No. 101-2, Defendants’ Statement of

Material Facts (“Defs.’ SMF”) at ¶¶ 4-9; Dkt. No. 105, Plaintiff’s Statement of Material Facts (“Pl.’s

SMF”) at ¶¶ 4-9. At that time Defendant French was a Sergeant with the Troy Police Department

and Mr. Thevenin was employed by Enterprise Rent-a-Car as an auto technician. Id.; Dkt. No. 104-

1, Cinthia Thevenin Deposition (“C. Thevenin Dep.”) at pp. 13 & 21.1 At approximately 3:10 a.m.,

after observing Mr. Thevenin’s Honda failing to stay in his lane, Sergeant French pulled Mr.

Thevenin over. Defs.’ SMF at ¶¶ 14-18; Pl.’s SMF at ¶¶ 14-18. When Sgt. French approached Mr.

Thevenin, who was in the driver’s seat, he indicated he could smell a strong odor of alcohol. Defs.’

SMF at ¶ 21; Pl.’s SMF at ¶ 21. Sgt. French ran the license provided to him, with no issue, and then

performed field sobriety tests on Mr. Thevenin. Defs.’ SMF at ¶¶ 23 & 26-33; Pl.’s SMF at ¶¶ 23

& 26-33. Again, according to Sgt. French, Mr. Thevenin was cooperative with the testing, but failed

the horizontal gaze nystagmus, the walk and turn, and French cut short the one leg stand test on the

belief that Mr. Thevenin was going to fall over. Id. When asked by Sgt. French, Mr. Thevenin

refused to perform an Alco Sensor test, and was then advised that he was under arrest for DWI.

Defs.’ SMF at ¶ 34.

After the intention to arrest was communicated to Mr. Thevenin, he insisted that he could

not be arrested, resisted attempts by the Sergeant to apply handcuffs, escaped to his vehicle where

he was pepper sprayed by Sgt. French without effect, and then drove the car away with Sgt. French

still halfway in the window. Defs.’ SMF at ¶¶ 34-35; Pl.’s SMF at ¶¶ 34-35. After he fell out, Sgt.

French went to his own vehicle to begin to pursue Mr. Thevenin through the streets of Troy. Defs.’

SMF at ¶¶ 36-39. Sgt. French called in the incident on his police radio.2 Defs.’ SMF at ¶¶ 36-37;

1 Reference is made to the pagination in the transcript of the deposition.

2 It is unclear whether all the facts that he relayed in this radio call were accurate. Although Sgt. French related

on the call that Mr. Thevenin attempted to “run him over,” he acknowledged in his Deposition that this was not the case

and he is unsure why he said that. Defs.’ SMF at ¶¶ 36-37.

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Pl.’s SMF at ¶¶ 36-37. Another police officer, Captain Montanino, also participated in the pursuit.

Defs.’ SMF at ¶ 42; Pl.’s SMF at ¶ 42. Mr. Thevenin ultimately ended up on the Collar City Bridge

in Troy, where his vehicle crashed into a concrete barrier. Defs.’ SMF at ¶ 44; Pl.’s SMF at ¶ 44.

At this critical point there are four witnesses who individually recount different versions of

what happened next:

A. Defendant Sgt. French

According to Sgt. French, he pulled his vehicle in front of the Thevenin vehicle on the Collar

City Bridge, to make sure that it could not drive away. Dkt. No. 101-4, Randall French Deposition

(“French Dep.”) at p. 154. He thought that his car was positioned a few feet away from the front of

the Thevenin vehicle, but when he opened his door, it hit the front of Thevenin’s car leading French

to believe Plaintiff had moved his car; he had to squeeze out of his vehicle. Id. at p. 155. Sgt.

French then yelled at Mr. Thevenin to “Stop.” Id. at p. 158. At the same time he became stuck

between the Thevenin vehicle and his patrol car. Id. He heard the engine in the Thevenin vehicle

“rev,” and Sgt. French felt intense pain from the pinning of his leg. Id. at pp. 159-160 & 171. He

continued to yell at Mr. Thevenin to “Stop” but the Honda continued to accelerate. Id. At that point

in time, believing that he “was going to die,” he shot at the “center mass” of Edson Thevenin. Id.

at pp. 161-162. Sgt. French then twisted and his body ended up on the hood of the Honda, where

he fired again at Mr. Thevenin. Id. at pp. 163-164 & 169. Sgt. French indicated that he stopped

firing his pistol when the engine of the Thevenin vehicle stopped revving. Id. at pp. 169-70. Eight

shots were fired, and five struck Mr. Thevenin, causing his death. Id. at pp. 180-81; Dkt. No. 101-4,

French Dep. Vol. II at p. 242. Sgt. French was then pulled from between the two vehicles with the

assistance of Officer Dean, and he was provided medical attention for an injury to his leg. Id. at pp.

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172-173 & 205; Dkt. No. 101-5, Deposition of David Dean at p. 55.

B. Capt. Matthew Montanino

Capt. Montanino received Sgt. French’s call for assistance in the early morning hours of

April 17, 2016 and drove towards French’s location to assist with the Thevenin incident and to “call

out the pursuit.” Dkt. No. 101-5, Deposition of Matthew Montanino (“Montanino Dep.”) at pp. 93-

97. He saw Mr. Thevenin going eastbound on the westbound lane of Hoosick Street and then turn

onto the Collar City Bridge. Id. at pp. 99-101. Mr. Thevenin then crashed into the concrete barrier

on the bridge and came to a stop. Id. at pp. 101-102. Capt. Montanino witnessed Sgt. French pull

in front of Mr. Thevenin’s vehicle, at an angle, within five feet of that vehicle. Id. at pp. 103 & 106-

107. Capt. Montanino pulled his vehicle behind Thevenin’s Honda, leaving a few feet of distance.

Id. at p. 107. He then got out of his patrol car and began to approach the Honda. Id. at p. 108. He

left his weapon holstered. Id. He heard Sgt. French yelling “Stop.” Id. at p. 110. Capt. Montanino

recalls the Thevenin engine revving, the tires spinning in reverse, and the vehicle coming backward,

ultimately striking his vehicle, causing damage. Id. at pp. 111-113. Capt. Montanino had to jump

out of the way. Id. at p. 113. The Thevenin vehicle then started moving forward at an angle, and

Capt. Montanino yelled “Stop, stop.” Id. at pp. 114 & 118. Sgt. French was at the front passenger

side of the Honda. Id. at p. 115. At that point in time Montanino heard gunshots. Id. at pp. 125-

126. Capt. Montanino approached the Honda, which had stopped, at which point time he heard a

few more gunshots and saw Sgt. French pinned between the Thevenin vehicle and his parked patrol

car, with his upper body on the hood. Id. at pp. 121 & 125-129. Capt. Montanino then pulled Mr.

Thevenin from his vehicle, onto the roadway. Id. at p. 135. According to Capt. Montanino, when

he did this the Thevenin vehicle’s transmission was in “drive.” Id. at p. 139.

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C. Keith Millington

Keith Millington testified at his deposition that the vehicle he was driving was stalled on the

side of the road, and at that point he was passed by the Thevenin vehicle (a Honda with its lights off)

and two marked police cars. Dkt. No. 101-5, Deposition of Keith Millington (“Millington Dep.”)

at p. 18. The Thevenin vehicle then made a quick U-turn onto the Collar City Bridge. Id. The

Thevenin vehicle proceeded to hit a concrete wall, and was then blocked in by the two police

vehicles. Id. at pp. 18, 20, & 21. The officers then got out of their cruisers. Id. at p. 24. Mr.

Millington heard one or both of the police officers instructing the driver of the Honda to “Stop,” but

that driver then backed into the police vehicle behind him, and then went forward as if to drive

through or around the police vehicle in front of him. Id. at pp. 26-30. At that point in time the

shooting occurred, and simultaneous with the shooting was the point when the Thevenin vehicle hit

Sgt. French. Id. at pp. 31-32.

D. Phillip Gross

Mr. Gross was deposed, and also provided statements to various investigating authorities.

Mr. Gross is a private citizen and the owner of Phil’s Automotive. Dkt No. 101-6, Deposition of

Phillip Gross (“Gross Dep.”), at p. 10. He had received a tow call from the State Police that morning

and was driving on Route 7 in Troy when he saw police lights and sirens. Id. at pp. 11-14 & 17-19.

He witnessed a Honda automobile driving approximately twenty miles per hour and turning on to

the Collar City Bridge. Id. at pp. 18-20. A police vehicle was close behind. Id. at p. 19. The police

vehicle then “blocked him off” which caused the Honda to be involved in a “light” collision with

the barrier, and it was then blocked in by police cars. Id. at pp. 20-21. From Mr. Gross’s position,

fifty feet away from the incident, he observed a police officer get out of his car and then, without

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saying anything, fire eight to twelve shots all at once. Id. at pp. 21-22 & 37. He testified that at the

time of the shooting, the Honda and the police vehicle were approximately four feet apart. Id. at p.

24. The Honda was not moving. Id. Elsewhere in his deposition, however, Mr. Gross recounted

a prior statement that there was also an unmarked police car present, and that the Thevenin vehicle

backed up towards that police car, and it was at this time that he heard shots being fired. Id. at pp.

57-58. After the shooting, according to Mr. Gross, the vehicle rolled forward, trapping the police

officer. Id. at pp. 25-26. Mr. Gross then assisted in getting the car off of Sgt. French. Id. at p. 28.

II. PROCEDURAL HISTORY

The parties have engaged in extensive pretrial discovery. Presently before the Court is

Defendants’ Motion for Summary Judgment. Dkt. No. 101. In making this Motion Defendants

present several arguments for the Court’s review. First, Defendants argue that the use of force by

Defendant Sgt. French was objectively reasonable under the facts of the case, and therefore no

constitutional violation is established as a matter of law. Dkt. No. 101-3, Defendants’ Memorandum

of Law (“Defs.’ Mem. of Law”) at pp. 9-12. Alternatively, they contend that even if the Court were

to conclude that under a certain version of facts the force used was not objectively reasonable, or

that material questions regarding the reasonableness of the force used persist, Sgt. French is

nevertheless entitled to qualified immunity because he could have reasonably but mistakenly

believed that the shooting of Mr. Thevenin was constitutionally permitted. Id. at pp. 13-18. Third,

Defendants argue that the state law claims for assault and battery and wrongful death are governed

by the same standard as the federal claims, and thus suffer from the same defects. Id. at pp. 23-25.

Finally, Defendants argue that there is no basis for a Monell liability claim against the City of Troy.

Id. at pp. 18-23.

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Plaintiff’s counsel, for their part, argue that substantial material issues of disputed fact exist

regarding the use of force by Defendant French, as well as on the separate and distinct issue of

qualified immunity. Dkt. No. 106, Plaintiff’s Memorandum of Law (“Pl’s Mem. of Law”) at pp. 11-

20. Therefore, the granting of the Motion in the face of this disputed factual landscape would be

inappropriate. Id. Plaintiff’s counsel agree that the state law claims are generally governed by the

federal standard but, for the reasons just stated, assert that such claims should proceed to trial. Id.

at pp. 24-25; see also Dkt. No. 129. As a final matter, however, Plaintiff’s counsel agree that there

is insufficient evidence of a Monell claim against the City of Troy, and therefore do not oppose the

dismissal of that particular claim. Id. at p. 25.

III. DISCUSSION

A. Summary Judgment Standard

Pursuant to FED. R. CIV. P. 56(a), summary judgment is appropriate only where “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

The moving party bears the burden to demonstrate through “pleadings, depositions, answers to

interrogatories, and admissions on file, together with [ ] affidavits, if any,” that there is no genuine

issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp.

v. Catrett, 477 U.S. 317, 323 (1986)).

To defeat a motion for summary judgment, the non-movant must set out specific facts

showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the

facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287

(2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion

for summary judgment when the moving party has set out a documentary case.”); Rexnord Holdings,

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Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).

When considering a motion for summary judgment, the court must resolve all ambiguities

and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier

Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he trial court’s task at the summary

judgment motion stage of the litigation is carefully limited to discerning whether there are any

genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this

point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs.,

Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, summary judgment is appropriate

“[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving

party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

This summary judgment standard should be applied with great care in situations where one

of the participants to the event has been killed and is therefore unable to provide his or her version

of the evidence. As stated by the Second Circuit:

[G]iven the difficult problem posed by a suit for the use of deadly force, in which

“the witness most likely to contradict [the police officer’s] story - the person shot

dead - is unable to testify[,] . . . the court may not simply accept what may be a

self-serving account by the police officer.” Scott v. Henrich, 39 F.3d at 915. Rather,

the court must also consider “circumstantial evidence that, if believed, would tend

to discredit the police officer’s story, and consider whether this evidence could

convince a rational factfinder that the officer acted unreasonably.” Id.; see, e.g.,

Maravilla v. United States, 60 F.3d 1230, 1233-34 (7th Cir. 1995) (where “the

witness most likely to contradict the officers’ testimony is dead,” the court should

“examine all the evidence to determine whether the officers’ story is consistent with

other known facts”); Plakas v. Drinski, 19 F.3d 1143, 1147 (7th Cir.) (“in deadly

force cases[,] . . . where the officer defendant is the only witness left alive to testify[,]

. . . a court must undertake a fairly critical assessment of,” inter alia, “the officer’s

original reports or statements . . . to decide whether the officer’s testimony could

reasonably be rejected at a trial”), cert. denied, 513 U.S. 820, 115 S.Ct. 81, 130

L.Ed.2d 34 (1994).

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O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 37 (2d Cir. 2003).3

B. The Fourth Amendment Reasonableness Standard and Qualified Immunity

With regard to a police officer’s use of force, that conduct is governed by the Fourth

Amendment to the United States Constitution, with its attendant objective reasonableness standard.

“The calculus of reasonableness must embody allowance for the fact that police officers are often

forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly

evolving - about the amount of force that is necessary in a particular situation.” Graham v. Connor,

490 U.S. 386, 396-97 (1989). As a rule, courts do not employ 20/20 hindsight in this analysis, but

rather consider the facts presented to the officer immediately prior to and at the time the decision

to use force is made. Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996).

The separate and independent doctrine of qualified immunity inserts a second level of

reasonableness review when judging a police officer’s use of force. To determine whether an

official is entitled to qualified immunity, courts first look to whether the plaintiff’s allegations, if

true, establish a constitutional violation. Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). Once

a constitutional violation is found, or assumed,4 courts must then decide whether it was “objectively

reasonable” for the officer to believe that his or her actions were lawful “in light of the legal rules

that were clearly established at the time [action] was taken.” Anderson v. Creighton, 483 U.S. 635,

3 As to the state law claims, under the Noseworthy doctrine a plaintiff in a wrongful death action is not held

to as high a degree of proof as a plaintiff in a personal injury action and is entitled to benefit from every favorable

inference which can reasonably be drawn from the evidence in determining whether a prima facie case has been made

out. Noseworthy v. New York, 298 N.Y. 76 (1948). “The Noseworthy rule does not shift the burden of proof on control,

negligence, and causation”, instead it “simply describes a method of, or approach to, weighing evidence.” N.Y. Pattern

Jury Instr., Civil 1:61 (citations omitted).

4 Following the Supreme Court decision in Pearson v. Callahan, 555 U.S. 223, 242 (2009), courts are no longer

required to make a “threshold inquiry” as to the violation of a constitutional right in a qualified immunity context, but

are free to do so.

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638-39 (1987). “The relevant, dispositive inquiry in determining whether a right is clearly

established is whether it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001).

A police officer’s use of a weapon, as in this case, is governed by these same legal standards,

even where it results in the death of the suspect. In general terms, an officer may use deadly force

if he or she “has probable cause to believe that the suspect poses a significant threat of death or

serious physical injury to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 11-12 (1985); see

also Graham v. Connor, 490 U.S. at 396 (to determine whether force used to effect a particular

seizure is reasonable, a court must examine “the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting arrest or attempting to evade

arrest by flight.”). Conversely, “[a] police officer may not seize an unarmed, nondangerous suspect

by shooting him dead.” Tennessee v. Garner, 471 U.S. at 11. The Garner case involved the police

shooting of a 15-year-old burglary suspect as he was climbing a fence and attempting to elude the

police. Id. The Supreme Court concluded that a blanket rule approving of the use of deadly

physical force to prevent the escape of all felony suspects is constitutionally unreasonable. Id. “It

is not better that all felony suspects die than that they escape.” Id. However, where the suspect

poses a threat of serious physical harm, and, where feasible, some warning has been given, deadly

force may be used in conformity with the Fourth Amendment. Id. Further, and as noted above, even

in circumstances where the court concludes that there was, or could have been, a Fourth Amendment

violation, qualified immunity would apply to a police officer who reasonably but mistakenly

believed that the use of deadly physical force was appropriate.

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Since Garner, the Supreme Court has spoken on several occasions regarding police officers’

use of deadly physical force on suspects who are operating a motor vehicle, employing both the

Fourth Amendment and the qualified immunity tests. First, in Brosseau v. Haugen, the Supreme

Court ruled that a police officer did not violate clearly settled Fourth Amendment law when she fired

at a fleeing vehicle in order to prevent harm to officers she believed were nearby and to protect other

citizens. 543 U.S. 194, 200-201 (2004). In granting summary judgment on the grounds of qualified

immunity, the Court concluded that the officer’s acts fell in the “hazy border between excessive and

acceptable force.” Id. at 201.

In Scott v. Harris, the Court considered whether “a law enforcement official can, consistent

with the Fourth Amendment, attempt to stop a fleeing motorist from continuing his public-

endangering flight by ramming the motorist’s car from behind” even though the officer’s actions

“place [the] fleeing motorist at risk of serious injury or death.” 550 U.S. 372, 374 (2007). In that

case, the police chase at issue was videotaped and therefore the case presented no factual dispute

at the summary judgment stage. Id. at 378. After reviewing the video, the Court readily concluded

that, despite the tragic outcome whereby the driver was rendered a quadriplegic, the officer was

justified as a matter of law in taking the actions that he did. Id. at 386.

Next, in Plumhoff v. Rickard, the Supreme Court ruled that the police officers did not violate

the Fourth Amendment by using deadly force to terminate a high-speed chase posing a grave public

safety risk. 572 U.S. 765, 776-777 (2014). There, the chase had lasted over five minutes with

speeds exceeding one hundred miles per hour, the driver’s conduct put many others in nearby

vehicles at risk, and even though the driver had come to a temporary halt, that did not end the chase

because he continued pushing down on the accelerator in an attempt to escape. Id. The police were

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therefore justified in firing fifteen shots into the vehicle killing the driver. Id. at 777. In making this

decision, the Court noted that the officers did not need to stop shooting until it was clear to them that

the threat to public safety had ended. Id.

Finally, in Mullenix v. Luna, the police were confronted with a reportedly intoxicated

individual engaged in a high-speed flight from the police, who had twice threatened to shoot police

officers. 136 S. Ct. 305, 309 (2015). In light of these facts, and the fact that the driver was racing

towards a police officer, the Supreme Court concluded that the use of deadly force by the police

officer was at least entitled to qualified immunity. Id.

C. Application of These Standards to the Present Case

In the present case Defendant French is correct that, if his version of events is accepted, his

use of deadly physical force was constitutionally permissible as a matter of law, or alternatively, that

a reasonable police officer could have believed that discharging his weapon in those circumstances

was appropriate. Sgt. French maintains that when he made the decision to shoot, he was pinned

between two vehicles, in fear for his life, with the Thevenin vehicle pressing forward upon him. It

would be hard to imagine a more compelling justification for the use of deadly physical force. The

fact that Sgt. French fired multiple rounds at Mr. Thevenin’s center mass does not change the

analysis, as police officers are justified in continuing to shoot until the danger is abated. Plumhoff

v. Rickard, 572 U.S. at 777. The fact that Capt. Montanino did not have his weapon out at the time

of the incident, while relevant, is also not necessarily determinative, as the critical issue is only the

reasonableness of the use of force based upon the facts that were known or reasonably believed by

Sgt. French. Capt. Montanino may have been in a different position or perceived different facts.

See Soto v. City of New York, 283 F. Supp. 3d 135, 142 n. 5 (S.D.N.Y. 2017) (“The fact that the

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other officers on the stairway did not fire their weapons does not compel a different conclusion”

regarding the reasonableness of the use of force). Moreover, for qualified immunity purposes the

question is whether a reasonable police officer could have believed that defendant’s action to be

lawful, not whether all police officers would have drawn the same conclusion. Hunter v. Bryant,

502 U.S. 224, 228 (1991) (“the court should ask whether the agents acted reasonably under settled

law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the

events can be constructed five years after the fact.”).

The difficulty with the argument of Defendant French on this Motion, however, is that it

assumes the correctness of his factual account. Defs.’ Mem. of Law at pp. 1 & 13 (“Sgt. Randall

French, in a moment of existential terror, found himself pinned between his squad car and the still

accelerating vehicle of Edson Thevenin” and “Based on these facts, no reasonable jury could

conclude that French’s actions constituted excessive force . . .”) (emphasis added). At least two

witnesses, however, dispute critical facts asserted by the Defendant. While Defendant French

testified at his deposition to becoming “immediately stuck between [Thevenin’s] car and my car,”

French Dep. at p. 158, Captain Montanino testified to French moving around the vehicles,

Montanino Dep. at p. 115, and Phillip Gross testified that when he initially saw French he was not

in contact with Thevenin’s vehicle. Gross Dep. at p. 22. Sgt. French becoming immediately pinned

by the Thevenin vehicle would also appear to be contrary to Captain Montanino’s testimony that the

vehicle first proceeded backwards striking his own vehicle5 before moving forward and before he

heard gunshots. Montanino Dep. at pp. 112-15, 118, & 125; see also Millington Dep. at p. 28

(discussing Thevenin vehicle backing up toward Montanino vehicle). It is similarly contrary to

5 This account that the Thevenin vehicle backed into Montanino’s patrol car appears to be corroborated by the

damage to the police vehicle. See Montanino Dep. at p. 113.

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Montanino’s testimony which places Sgt. French to the front passenger side of the Thevenin vehicle

immediately prior to the shooting, not pinned in front. Id. at p. 115.

The clearest dispute of fact is presented by witness Phillip Gross’ testimony that he observed

Sgt. French get out of his vehicle and, without saying anything and without being pinned,

immediately start firing into the Thevenin vehicle. Gross Dep. at pp. 21-22 & 24. Gross

alternatively placed the Thevenin vehicle backing away from French when the shots were fired. Id.

at pp. 57-58. Both versions are distinctly different from the testimony of French, Montanino, and

Keith Millington. French Dep. at pp. 161-62 (initial shots fired while pinned by Thevenin vehicle);

Montanino Dep. at pp. 125-26 (initial shots fired as car moved forward away from his vehicle);

Millington Dep. at p. 31 (shots fired as car moved toward French). Assuming the facts most

favorable to Plaintiff places Thevenin’s vehicle either stationary or moving away from Sgt. French

at the time he discharged his weapon, which would be in stark contradiction to the facts which Sgt.

French has supplied as justification for the use of deadly force. While defense counsel notes many

inconsistencies in the Gross testimony, that simply presents a credibility question which is not for

this Court to resolve on a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge.”); O’Bert ex rel. Estate

of O’Bert v. Vargo, 331 F.3d at 40; see also Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d Cir.

2015) (“summary judgment is proper only when, if all permissible inferences and credibility

questions are resolved in favor of the party against whom judgment is sought, there can be but one

reasonable conclusion as to the verdict”) (internal quotations omitted).

It is clearly settled law that a police officer who, based upon the facts known to him, believes

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that a suspect poses a threat of serious physical harm to himself or others is justified in using lethal

force. Tennessee v. Garner, 471 U.S. at 11. It follows that if a police officer does not have probable

cause to believe that the suspect poses a significant threat of death or serious physical injury to the

officer or others, deadly force is not justified. Id.; O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d

at 36. Assuming that Sgt. French exited his vehicle and immediately fired into the Honda, which

at that time was either stationary, or was slowly moving away from him and therefore did not pose

a risk to him, these facts create a question both as to whether the use of force was constitutionally

permissible, and secondarily, whether the conduct was protected by qualified immunity. O’Bert ex

rel. Estate of O’Bert v. Vargo, 331 F.3d at 39-40.

In this regard this case is factually similar to the Second Circuit decision in Cowan ex rel.

Estate of Cooper v. Breen, 352 F.3d 756 (2d Cir. 2003). In Cowan, a police officer had pulled over

a vehicle and searched the driver, discovering narcotics. Id. at 758. The driver ran off into the

woods, and the officer briefly pursued him on foot before returning back to the road where his

cruiser was located. Id. At this point in time a passenger in the stopped vehicle had moved over to

the driver side and started driving the vehicle down the road. Id. The officer maintained that he

waved at the vehicle to stop, but it did not do so. Id. With the car bearing down upon him, and

fearing for his safety, he shot twice at the vehicle, killing the driver with the second shot. Id. The

driver’s estate then filed a civil rights complaint. The defendants moved for summary judgment

arguing that the use of force by the officer was justified or, alternatively, that the officer was entitled

to qualified immunity. Id. at 759.

In reviewing the appeal of the District Court’s denial of summary judgment, the Second

Circuit noted that while the officer “purports to rely only on the undisputed evidence in

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demonstrating that there was no constitutional violation . . . , ‘his brief on appeal is replete with his

own versions of the events.’” Id. at 762 (quoting O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d

at 38). The appropriate inquiry, however, was to consider the motion upon the facts asserted by the

plaintiff as well as all permissible inferences. Id. at 763. The plaintiff maintained that the officer

was not in danger when he fired the fatal shots, that he may have been as far as eleven feet away

from the vehicle at the time of the shooting, that the vehicle may have been moving slowly, and that

the vehicle was not “bearing down” on the officer. Id. at 759-762.

Accepting the most favorable version of facts, the Second Circuit concluded that the officer

was not entitled to judgment as a matter of law on the issue of whether a constitutional violation

occurred because that issue “turns on which of two conflicting stories best captures what happened

on the street.” Id. at 763 (quoting Saucier v. Katz, 533 U.S. at 216); accord Marrero v. City of

Hartford, 2017 WL 5484669, at *3 (D. Conn. Nov. 15, 2017), appeal dismissed sub nom. Marrero

for Estate of Morales v. Cote, 756 Fed. Appx. 79 (2d Cir. 2019) (“Plaintiff’s evidence suggests that

Cote was not in danger of death or even physical harm when he continued to fire into the rear side

of the Honda as it passed him.”). Further, the Second Circuit concluded that these same questions

of fact existed on the issue of qualified immunity. As a result, the Court determined the qualified

immunity issue would need to be resolved after trial, and after a jury answered certain special

interrogatories, such as whether the decedent drove her car towards the officer and whether the

officer was in the zone of danger or could have safely gotten out of the way. Id. at 764.

The case law relied upon by Defendants does not lead to an opposite conclusion. The Second

Circuit case of Costello v. Town of Warwick, for example, involved a suspect in a vehicle that was

stopped by the police and was attempting to get away despite being boxed in and surrounded by

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numerous officers, hitting one of the police cars. 273 Fed. Appx. 118, 119 (2d Cir. 2008). The

driver was shot and killed. Id. In holding that the force used was objectively reasonable, the Court

noted that the officer involved had reason to believe that at least one of the his fellow officers was

trapped underneath the decedent’s car, and that others may have been hurt, and that the decedent

would continue to use his car to inflict serious bodily harm on the other arresting officers. Id. In

the present case, there is a fundamental factual dispute regarding the situation that Sgt. French found

himself in when he decided to fire his weapon. Defendant maintains he was trapped between two

vehicles and about to die, and there is at least some evidence in the record which disputes the claim.

That type of factual dispute was not present in the Costello case.

This case is made more complicated by the fact that, in addition to the facts perceived by Sgt.

French, a separate set of facts has been testified to by others, particularly by Capt. Montanino. An

argument could be made that if the Court were to discard Defendant’s testimony and accept the other

witnesses’ versions of facts, that Sgt. French’s use of deadly physical force would still have been

justified. Under this theory, Sgt. French could have believed that Mr. Thevenin posed a risk to

Montanino by backing his vehicle into that officer’s vehicle, while Montanino was in close

proximity. However, as noted above “[t]he reasonableness inquiry depends only upon the officer’s

knowledge of circumstances immediately prior to and at the moment that he made the split-second

decision to employ deadly force.” Salim v. Proulx, 93 F.3d at 92. In this case Sgt. French testified

at his deposition that he was unaware of the position of the other police car, and he did not perceive

that Decedent’s vehicle was moving in that direction. Sgt. French testified at his deposition:

Q. At the time you exited the vehicle was Captain Montanino’s already there?

A. I know he was right behind me in his car, so, yeah, he was there.

Q. Okay. Did you see Captain Montanino’s vehicle when you exited your

vehicle?

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A. I was not looking that way. I was just concentrating on the car, so, no.

French Dep. at p. 158.

Q. At any point after you pulled your vehicle in front of Mr. Thevenin’s vehicle

did you see Mr. Thevenin’s vehicle backup?

A. No.

Q. Did you at the point where you were firing your weapon, did you see whether

Captain Montanino’s vehicle was in contact with any part of Mr. Thevenin’s

vehicle?

A. I wasn’t looking at Captain Montanino’s vehicle.

Q. I understand that. I just want to know whether you saw it.

A. No.

Id. at pp. 162-163.

The Court cannot insert facts not known to Defendant in order to justify Defendant’s use

of force. Rather, the determination whether a reasonable person in the officer’s position would have

known that his conduct would violate the right at issue must be made on the basis of information

actually possessed by the officer at the critical time. Anderson v. Creighton, 483 U.S. at 641; Hunter

v. Bryant, 502 U.S. at 227. As noted above, material questions of fact exist regarding Sgt. French’s

version of events immediately prior to the shooting, and those facts must be resolved by a jury.

IV. CONCLUSION

Based upon the foregoing the Court concludes that questions of fact exist which prevent it

from granting Defendants’ Motion for Summary Judgment on the Fourth Amendment claim, the

claim for qualified immunity, and the state law claims.6 As to the issue of qualified immunity, when

the matter proceeds to trial the Court will submit special interrogatories to the jury to be answered

by them to assist the Court in deciding qualified immunity, if necessary, once a verdict has been

6 Counsel have submitted additional letter briefs regarding qualified immunity as it relates to the state law

claims. Dkt. Nos. 129 & 131. Because questions of fact exist as to the state law claims, summary judgment is

inappropriate. Hansen v. Warren Cty., 2019 WL 652235, at *11 (N.D.N.Y. Feb. 15, 2019).

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rendered. With regard to the 42 U.S.C. § 1983 Monell claim against the City of Troy, however, that

claim is dismissed on consent.

ACCORDINGLY, it is hereby

ORDERED, that the Motion for Summary Judgment is GRANTED IN PART AND

DENIED IN PART, and the Mone// claim against the City of Troy is hereby DISMISSED, and all

remaining claims shall proceed to trial.

SO ORDERED.

Date: September 6, 2019

Albany, New York

Pate ANE

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