Dempsey v. The City of Rochester

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

____________________________________

CHARLES DEMPSEY, individually,

and L.D., by her father and

natural guardian, CHARLES DEMPSEY,

Plaintiffs,

DECISION AND ORDER

v.

6:19-CV-06780 EAW

THE CITY OF ROCHESTER, a municipal

entity, JAVIER ALGARIN, ADAM

GORMAN, and “JOHN DOE” RPD

OFFICER RESPONSIBLE FOR

TRAINING JAVIER ALGARIN,

Defendants.

____________________________________

INTRODUCTION

On October 19, 2018, defendant Rochester Police Department (“RPD”) Officer

Javier Algarin (“Algarin”) shot and killed plaintiff Charles Dempsey’s (“Dempsey”) black

labrador retriever, Tesla, in the backyard of the home Dempsey shared with his minor child,

plaintiff L.D. (collectively with Dempsey, “Plaintiffs”). Plaintiffs bring the instant lawsuit

pursuant to 42 U.S.C. § 1983 and New York state law, alleging defendants the City of

Rochester (the “City”), Algarin, RPD Officer Adam Gorman (“Gorman”), and John Doe,

an RPD officer responsible for training Algarin1 (collectively “Defendants”), are liable for

damages arising from the entry into Plaintiffs’ yard and the death of Tesla. Presently before

1 The parties have not addressed the continued presence of a John Doe defendant in

this case in their motion papers. The issue will need to be addressed before the matter

proceeds to trial.

the Court are Defendants’ motion for summary judgment on all of Plaintiffs’ claims (Dkt.

95) and Plaintiffs’ motion for partial summary judgment (Dkt. 96). For the reasons that

follow, Defendants’ motion is granted in part and denied in part and Plaintiffs’ motion is

denied.

FACTUAL BACKGROUND

Before recounting the factual background of this matter, the Court addresses a

procedural matter. This District’s Local Rules of Civil Procedure require a party moving

for summary judgment to submit, “ a separate, short, and concise statement, in numbered

paragraphs, of the material facts as to which the moving party contends there is no genuine

issue to be tried.” Loc. R. Civ. P. 56(a)(1). The opposing party must then submit “a

response to each numbered paragraph in the moving party’s statement, in correspondingly

numbered paragraphs[.]” Id. at 56(a)(2). “Each numbered paragraph in the moving party’s

statement of material facts may be deemed admitted for purposes of the motion unless it is

specifically controverted by a correspondingly numbered paragraph in the opposing

statement.” Id.

In this case, with respect to numerous paragraphs of Plaintiffs’ statement of

undisputed facts submitted in connection with their motion for partial summary judgment,

Defendants failed to comply with Local Rule 56. Instead of substantively responding to

Plaintiffs’ assertions, Defendants simply assert that the paragraphs at issue are “immaterial

to the issues in this motion for summary judgment.” (See, e.g., Dkt. 97-4 at ¶¶ 4-9, 13, 18,

28, 54, 56-57, 69, 75). It is, of course, the Court’s function to determine what facts are and

are not material in deciding a motion for summary judgment. Moreover, unilaterally

declaring an asserted fact immaterial is not “specifically controvert[ing]” that fact.

Accordingly, to the extent they are supported by the record, the Court deems the factual

assertions contained in the paragraphs to which Defendants have offered an “immaterial”

response admitted for purposes of the instant motion. See N.Y. State Teamsters Conf.

Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 649 (2d Cir. 2005).

On October 19, 2018, Plaintiffs resided at 53 Kosciusko Street in Rochester, New

York, along with Tesla, their black labrador retriever. (Dkt. 95-29 at ¶ 1; Dkt. 96-1 at ¶ 1;

Dkt. 97-4 at ¶ 1; Dkt. 98-1 at ¶ 1). The RPD received a 911 call about open-air drug sales

occurring at 61 Kosciusko Street. (Dkt. 95-29 at ¶ 2; Dkt. 98-1 at ¶ 2). Algarin, Gorman,

and RPD Officers Ryan Disabatino (“Disabatino”) and Jason Horowitz (“Horowitz”)

responded to the report. (Dkt. 96-1 at ¶ 3; Dkt. 97-4 at ¶ 3).

Horowitz, Gorman, Algarin, and Disabatino devised a plan to intercept the suspects.

(Dkt. 96-1 at ¶ 4; see Dkt. 97-4 at ¶ 4). Based on prior observations, they anticipated that

the suspects would attempt to flee south through the backyards of Kosciusko Street

properties. (Dkt. 96-1 at ¶¶ 4-5; see Dkt. 97-4 at ¶¶ 4-5). Algarin and Disabatino were

assigned to drive up Kosciusko Street, causing a police presence that would prompt the

suspects to flee south towards Sobieski Street, where Horowitz and Gorman were waiting

to intercept them. (Dkt. 96-1 at ¶ 6; see Dkt. 97-4 at ¶ 6).

As Algarin and Disabatino arrived at 61 Kosciusko Street, at least two suspects fled

south down the driveway and through the backyard of 57 Kosciusko Street, heading

towards Sobieski Street. (Dkt. 96-1 at ¶¶ 9-10; see Dkt. 97-4 at ¶¶ 9-10). Gorman detained

one suspect in the backyard of 49 Kosciusko Street, while Horowitz detained another

suspect in a vacant lot located at 54 Sobieski Street. (Dkt. 96-1 at ¶¶ 11, 16; Dkt. 97-4 at

¶¶ 11, 16). Both 49 Kosciusko Street and 54 Sobieski Street are separated from 53

Kosciusko Street by a chain-link fence. (Dkt. 96-1 at ¶¶ 18, 21; Dkt. 97-4 at ¶¶ 18, 24).

Algarin entered Plaintiffs’ backyard by jumping a tall wooden fence from 57

Kosciusko Street. (Dkt. 96-1 at ¶¶ 22-23; Dkt. 97-4 at ¶¶ 22-23). From Plaintiffs’

backyard, Algarin could see over the chain link fence into both 49 Kosciusko Street and 54

Sobieski Street. (See Dkt. 95-16 at 17:07:21-17:07:33).2 He began walking around and

searching Plaintiffs’ yard. (Id. at 17:07:33-17:08:05). He leaned on the chain-link fence

between Plaintiffs’ backyard and 54 Sobieski Street, and said, “where’d he say he threw

the gun?” (Id. at 17:08:05-17:08:07). He then said, “bro, save me time, I don’t want to

call a dog.” (Id. at 17:08:11-17:08:14). He asked, “where is it?” and continued discussing

the possible presence of a gun. (Id. at 17:08:15-17:08:21). He then walked over to the

chain-link fence between Plaintiffs’ backyard and 49 Kosciusko Street, while saying, “so

why we running?” (Id. at 17:08:22-17:08:30). He jumped the chain-link fence into the

property at 49 Kosciusko Street and approached Gorman and the suspect whom Gorman

had detained. (Id. at 17:08:31-17:08:35). He had an exchange with Gorman and the

suspect about why the suspect had fled, and helped Gorman search the suspect. (Id. at

17:08:36-17:08:49). Gorman then said to Algarin, “you wanna backtrack,” to which

Algarin replied, “where’d you see him jump?” (Id. at 17:08:50-17:08:54).

2 The Court’s recitation of Algarin’s actions during this critical period come from its

own review of footage from his body-worn camera. Both sides have submitted copies of

the footage from Algarin’s body-worn camera. For ease of reference, the Court has referred

to the copy submitted by Defendants, which appears first on the docket.

Algarin walked along the chain-link fence, then stepped on a children’s picnic table

and jumped the fence back into Plaintiffs’ backyard. (Id. at 17:08:54-17:09:30). A few

seconds after Algarin re-entered Plaintiffs’ backyard, Plaintiffs’ backdoor opened and

Tesla exited onto the back porch. (Id. at 17:09:30-17:09:33). Tesla began to run towards

Algarin, who yelled “whoa, whoa, whoa,” and stepped backwards. (Id. at 17:09:34). Tesla

continued to run towards Algarin, who pulled out his firearm and shot her twice. (Id. at

17:09:34-17:09:36). After Algarin shot Tesla, Gorman jumped the fence into Plaintiffs’

backyard. (Dkt. 96-1 at ¶ 58; Dkt. 97-4 at ¶ 58).

Dempsey, who was on the back porch of his home, began to scream. (Dkt. 95-16 at

17:09:36-17:09:37). He began to run towards his pet, who was crying in pain, and Algarin

screamed “get down, get down,” and pointed his gun at Dempsey. (Id. at 17:09:38-

17:09:41). Dempsey walked towards Algarin, yelling, and Algarin repeatedly yelled, “get

back,” and pulled out his pepper spray and pointed it at Dempsey. (Id. at 17:09:42-

17:09:54). Dempsey continued to yell, asking Algarin why he had shot the dog and what

was wrong with him. (Id. at 17:09:54-17:09:57). Dempsey then yelled at Algarin to get

out of his yard and to leave his property, while Algarin continued to yell “get back” and

point his pepper spray at Dempsey. (Id. at 17:09:57-17:10:06). Algarin and another officer

then instructed Dempsey to “grab [his] dog.” (Id. at 17:10:07-17:10:14).

L.D. ran to the back door of the house after hearing her father yell, and saw her

father and Algarin through the window of the back door, including seeing Algarin point a

gun at her father. (Dkt. 96-1 at ¶ 53; Dkt. 97-4 at ¶ 53). L.D. also saw Tesla walk up onto

the porch after having been shot, but did not let the dog into the house because of her

emotional state. (Dkt. 96-1 at ¶ 56; Dkt. 97-4 at ¶ 56). L.D. remained at the doorway for

a short time, processing what she had seen, and was visibly shaken and distressed by the

events. (Dkt. 96-1 at ¶¶ 56-57; Dkt. 97-4 at ¶¶ 56-57).

Dempsey was eventually permitted to take Tesla to a veterinary hospital, but despite

the efforts made to save her, she died from the gunshot wounds inflicted by Algarin. (Dkt.

96-1 at ¶ 75; Dkt. 97-4 at ¶ 75).

PROCEDURAL BACKGROUND

The operative pleading in this matter is the second amended complaint (Dkt. 31),

which was filed on consent after the Court issued a Decision and Order resolving prior

competing motions to dismiss and for summary judgment filed by the parties (Dkt. 30).

Discovery closed on May 29, 2024. (Dkt. 89). The claims asserted in the second amended

complaint are: (1) “municipal liability” against the City pursuant to Monell v. Department

of Social Services of New York, 436 U.S. 658 (1978); (2) unreasonable search of Plaintiffs’

curtilage against Algarin and Gorman under § 1983; (3) unlawful seizure of Tesla against

Algarin and Gorman under § 1983; (4) unlawful seizure of Dempsey and L.D. against

Algarin under § 1983; (5) failure to intervene against Gorman under § 1983; (6) assault

against Algarin under New York state law; and (7) trespass against Algarin and Gorman

under New York state law. (Dkt. 31 at ¶¶ 97-218).

The parties filed the instant motions on August 9, 2024. (Dkt. 95; Dkt 96). They

thereafter filed responses to the opposing parties’ motions (Dkt. 97; Dkt. 98), and replies

in further support of their own motions (Dkt. 99; Dkt. 100).3

DISCUSSION

I. Legal Standard

Federal Rule of Civil Procedure 56 provides that summary judgment should be

granted if the moving party establishes “that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

Court should grant summary judgment if, after considering the evidence in the light most

favorable to the nonmoving party, the court finds that no rational jury could find in favor

of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). “The moving party bears the burden

of showing the absence of a genuine dispute as to any material fact[.]” Crawford v.

Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). “Where the non-moving

party will bear the burden of proof at trial, the party moving for summary judgment may

3 Defendants argue that Plaintiffs’ opposition papers, which were filed on September

9, 2024, were untimely. (Dkt. 99 at n.1). Defendants are wrong. On May 22, 2024,

Magistrate Judge Marian W. Payson, to whom the case had been referred for non-

dispositive matters, entered an Order providing that dispositive motions were due by no

later than August 9, 2024, and that opposition papers were to be filed within 30 days of the

filing of any motions. (Dkt. 91). Plaintiffs’ motion for summary judgment was filed on

August 9, 2024. (Dkt. 95). Thirty days from that date was September 8, 2024, which was

a Sunday. Pursuant to Federal Rule of Civil Procedure 6(a)(1)(C), where a time period

stated in days ends on “a Saturday, Sunday, or legal holiday, the period continues to run

until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Plaintiffs

had until the end of the day on September 9, 2024, to file their opposition papers. They

met that deadline.

meet its burden by showing the evidentiary materials of record, if reduced to admissible

evidence, would be insufficient to carry the non-movant’s burden of proof at trial.”

Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986)).

Once the moving party has met its burden, the opposing party “must do more than

simply show that there is some metaphysical doubt as to the material facts, and may not

rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra

Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654

F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-moving party “must come forward

with specific evidence demonstrating the existence of a genuine dispute of material fact.”

Brown, 654 F.3d at 358. Indeed, “the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

II. The Parties’ Motions for Summary Judgment

Defendants move for summary judgment on all of Plaintiffs’ claims. (Dkt. 95).

Defendants make the following arguments in support of their motion: (1) Plaintiffs have

failed to plead adequate facts to support a claim for unlawful search; (2) the search of

Plaintiffs’ backyard was permitted by the “hot pursuit” and “imminent destruction of

evidence” exceptions to the warrant requirement and was reasonable under the

circumstances; (3) Algarin’s shooting and killing of Tesla was a reasonable seizure under

the Fourth Amendment; (4) Gorman had no role in the seizure of Tesla; (5) Algarin did not

seize either of Plaintiffs; (6) Gorman had no opportunity to intervene prior to any

constitutional violation; (7) Algarin is entitled to qualified immunity for the seizure of

Tesla and for the search of Plaintiffs’ backyard; (8) Algarin cannot be liable for trespass

because law enforcement officers are permitted to engage in otherwise trespassory acts; (9)

Algarin did not assault Dempsey; and (10) Plaintiffs cannot establish any theory of

municipal liability for the purported constitutional claims. (Dkt. 95-1).

Plaintiffs move for partial summary judgment. (Dkt. 96). They seek summary

judgment on their second and eighth claims, for unlawful search and trespass. (Dkt. 96-2).

They further seek summary judgment on their first claim for municipal liability under

Monell. (Id.). But municipal liability is “an extension of liability, not an independent cause

of action[.]” Soto v. City of New York, 132 F. Supp. 3d 424, 459 (E.D.N.Y. 2015).

Accordingly, the Court construes this portion of Plaintiffs’ motion as seeking summary

judgment on the unlawful search claim as that claim is asserted against the City.

The Court begins its analysis with the claims as to which both sides seek summary

judgment: the unlawful search claim and the trespass claim. For the reasons below, the

Court concludes that no party is entitled to summary judgment on these claims.

The Court then considers Plaintiffs’ remaining claims and finds that Defendants are

entitled to summary judgment on: (1) the unlawful seizure of Tesla claim as asserted

against Gorman; (2) the unlawful seizure of L.D. claim against all Defendants; and (3) the

failure to intervene claim against Gorman except to the extent it is based on the entry into

Plaintiffs’ yard. The Court finds that genuine issues of material fact preclude summary

judgment on all other claims asserted by Plaintiffs.

A. Unlawful Search Claim

“The Fourth Amendment prohibits unreasonable searches and seizures.” United

States v. Amerson, 483 F.3d 73, 77 (2d Cir. 2007). “A ‘search’ occurs for purposes of the

Fourth Amendment if the police seek information by intruding on a person’s reasonable

expectation of privacy or by means of trespassing upon one’s person, house, papers, or

effects.” United States v. Smith, 967 F.3d 198, 205 (2d Cir. 2020). “The core premise

underlying the Fourth Amendment is that warrantless searches of a home are presumptively

unreasonable.” United States v. Simmons, 661 F.3d 151, 156-57 (2d Cir. 2011). “As

relevant to this case, ‘police officers need either a warrant or probable cause plus exigent

circumstances in order to make a lawful entry into a home.’” Harris v. O’Hare, 770 F.3d

224, 231 (2d Cir. 2014), as amended (Nov. 24, 2014); see also Dalessandro v. Cnty. of

Nassau, 758 F. App’x 165, 167 (2d Cir. 2019) (“Warrantless entry is justified when there

is both probable cause and exigency.”).

“The curtilage—that is, the ‘area adjacent to the home and to which the activity of

home life extends’—is considered part of a person’s home and enjoys the same protection

against unreasonable searches as the home itself.” United States v. Alexander, 888 F.3d

628, 631 (2d Cir. 2018) (quoting Florida v. Jardines, 569 U.S. 1, 7 (2013)). Accordingly,

“a search of the curtilage that occurs without a warrant based on probable cause or an

exception to the warrant requirement violates the Fourth Amendment.” Id. It is “clearly

established that a fenced-in side or backyard directly abutting a single-family house

constitutes curtilage.” Harris, 770 F.3d at 240.

In their motion for summary judgment, Defendants do not contest that Plaintiffs’

fenced-in backyard was curtilage protected by the Fourth Amendment. (Dkt. 95-1 at 8).

Instead, they: (1) attack the adequacy of Plaintiffs’ pleading; and (2) contend that exigent

circumstances permitted Algarin’s warrantless entry into Plaintiffs’ backyard. (Id. at 8-

13). The first of these arguments is easily disposed of. As the Second Circuit recently

explained, “[t]he different standards generally applicable to motions to dismiss and for

summary judgment serve distinct purposes, each tailored to addressing the unique

considerations that arise at successive stages of the litigation.” Lugo v. City of Troy, 114

F.4th 80, 89 (2d Cir. 2024). As such, it is a reversible procedural error for the Court to

“resolve[] a summary-judgment motion as a pleadings motion[.]” Id. At this stage of the

proceedings, the adequacy of Plaintiffs’ pleadings is not the relevant inquiry. The Court

will not grant summary judgment on this basis.

As to Defendants’ argument regarding exigent circumstances, the Court notes as a

threshold matter that “probable cause plus exigent circumstances” were required to allow

Algarin to enter Plaintiffs’ curtilage without a warrant. Harris, 770 F.3d at 231 (emphasis

added). The existence of probable cause “is the first requirement for a warrantless search

on the basis of exigent circumstances.” Id. at 232.4 Defendants’ motion for summary

4 Harris involved a factual scenario somewhat similar to the one presented here. The

police had apprehended a drug dealer who they had seen drop heroin on the ground. 770

F.3d at 227. The drug dealer told the police that two guns were stashed under the driver’s

seat of an abandoned car in the rear yard of a particular residence. Id. The police, without

a warrant, entered the plaintiffs’ property, where they encountered the plaintiffs’ dog, who

had been playing outside with the minor child plaintiff. Id. One of the officers shot and

killed the dog. Id.

judgment makes no mention of probable cause; that phrase appears nowhere in their

memorandum of law. (See generally Dkt. 95-1). This failure alone prevents the Court

from entering summary judgment in Defendants’ favor on the unlawful search claim. See

Nick’s Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 115 (2d Cir. 2017)

(“[W]hen a defendant moves for summary judgment, it is the defendant who must show

entitlement to judgment, notwithstanding that, at trial, the plaintiff will have the burden of

proving every element of its claim.” (emphasis in original)).

This same failure prevents the Court from finding that Algarin is entitled to qualified

immunity on the unlawful search claim. “A government official is entitled to immunity

from suit whenever (1) his conduct did not violate clearly established law, or (2) it was

objectively reasonable for the official to believe that his action did not violate such law.”

Naumovski v. Norris, 934 F.3d 200, 210 (2d Cir. 2019). The Court “must look to both the

clarity of the law establishing the right allegedly violated as well as whether a reasonable

person, acting under the circumstances the[n] confronting a defendant, would have

understood that his actions were unlawful.” Ford v. McGinnis, 352 F.3d 582, 596-97 (2d

Cir. 2003) (quotation omitted). Qualified immunity is an affirmative defense and “a

decision dismissing a claim based on qualified immunity at the summary judgment stage

may only be granted when a court finds that an official has met his or her burden

demonstrating that no rational jury could conclude (1) that the official violated a statutory

or constitutional right, and (2) that the right was clearly established at the time of the

challenged conduct.” Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (quotation

omitted).

Defendants’ qualified immunity argument focuses solely on the “permissible scope

and nature of searches incident to and following hot pursuit[.]” (Dkt. 95-1 at 24). But

Defendants ignore the fact that it was well-established in November 2018 that “police

officers need either a warrant or probable cause plus exigent circumstances in order to

make a lawful entry into a home.” Kirk v. Louisiana, 536 U.S. 635, 638 (2002) (emphasis

added).5 In other words, if Algarin did not have probable cause, the entry was unlawful

notwithstanding any exigent circumstances, and a reasonable officer would have known

that at the time of incident at issue. By failing to address the issue of probable cause,

Defendants have not borne their burden of demonstrating Algarin’s entitlement to qualified

immunity.

While Defendants have not demonstrated their entitlement to summary judgment on

the unlawful search claim, the Court is equally unpersuaded that Plaintiffs are entitled to

summary judgment in their favor.6 Plaintiffs argue that neither probable cause nor exigent

circumstances justified Algarin’s second entry into their backyard. (Dkt. 96-2 at 17-18).

Defendants, consistent with their own summary judgment papers, fail to address the matter

of probable cause at all. But Defendants’ failure does not relieve the Court of its duty to

examine Plaintiffs’ submission “to determine if [they have] met [their] burden of

5 Counsel for Defendants was indisputably aware of this case law, which was cited

by the Court in an earlier Decision and Order in this very case. (See Dkt. 30 at 20).

6 Defendants have argued that the Court should deny Plaintiffs’ motion for summary

judgment based on Plaintiffs’ purported failure to comply with this District’s Local Rules

of Civil Procedure. (See Dkt. 97 at 3-5). Because the Court denies Plaintiffs’ motion on

the merits, it need not and does not address this argument.

demonstrating that no material issue of fact remains for trial.” Vermont Teddy Bear Co. v.

1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citation omitted). The Court finds

that they have not.

“Probable cause ‘requires only a probability or substantial chance of criminal

activity, not an actual showing of such activity.’” Dalessandro, 758 F. App’x at 167

(quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). “Probable cause is a fluid

concept—turning on the assessment of probabilities in particular factual contexts—not

readily, or even usefully, reduced to a neat set of legal rules.” Harris, 770 F.3d. at 232

(citation and alteration omitted). Algarin has submitted a sworn declaration in which he

avers he believed there was a reasonable probability that drugs or other contraband were

present in Plaintiffs’ backyard, because individuals involved in drug dealing will

commonly discard drugs and other contraband, including weapons, during flight. (See Dkt.

95-19 at ¶ 24). The body-worn camera footage supports Algarin’s claim that he believed

a firearm had been discarded during the flight, as he can be heard asking, “where’d he say

he threw the gun?” He then directly asks one of the suspects, “where is it?”

And while Plaintiffs argue that Algarin had already been in their yard and had not

seen any dangerous items during that time, Algarin has also stated that Plaintiffs’ backyard

was overgrown with weeds and small trees and that there were overturned chairs and rain

gutters lying on the ground, making it difficult to discern whether there was any discarded

contraband. (Id. at ¶ 21). On this record, and construing the facts in the light most

favorable to Defendants (as one must when considering Plaintiffs’ motion), the Court

concludes that a reasonable jury could find that Algarin had probable cause. See generally

Harris, 770 F.3d at 233.

The Court further finds that genuine issues of material fact exist regarding the

presence of exigent circumstances. Specifically, the Court finds that there are genuine

issues of material fact as to whether Algarin’s second entry into Plaintiffs’ backyard was

part of the “hot pursuit” of the suspects, or if the pursuit had ended at that point.

The Supreme Court “has identified several exigencies that may justify a warrantless

search of a home.” Kentucky v. King, 563 U.S. 452, 460 (2011). One such exigency is the

hot pursuit of a fleeing felon. See id. A hot pursuit requires “some sort of a chase,” United

States v. Santana, 427 U.S. 38, 43 (1976), which must be “immediate and relatively

continuous from the scene of a crime,” United States v. Webster, 79 F. Supp. 3d 417, 422

(E.D.N.Y. 2015). See also Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (“the claim of

hot pursuit is unconvincing because there was no immediate or continuous pursuit of the

petitioner from the scene of a crime”). “A slight delay” does not necessarily end a hot

pursuit. Webster, 79 F. Supp. 3d at 422 (finding that the officer’s “calling for backup did

not interrupt [the] hot pursuit,” because it was “a continuation of [the officer’s] attempts to

locate the armed individual he saw on the garage”); see also United States v. Acosta-Soto,

No. CRIM.A 08CR10193DPW, 2009 WL 3432442, at *5 (D. Mass. Oct. 21, 2009)

(concluding that law enforcement “should not be penalized for a momentary pause in which

to determine whether continued hot pursuit would be necessary to secure evidence which

might be destroyed”).

In viewing Officer Algarin’s body-worn camera footage, one could conclude that

his actions were “relatively continuous” during the incident. After he observes that the

suspects have been detained and are being searched by his fellow officers, he continues to

move around, asking about a discarded firearm, and seemingly searching the immediate

area. In Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1987), the Supreme Court

upheld law enforcement’s contemporaneous search of various areas of a home into which

a suspected armed robber had fled. Id. at 299 (“[T]he seizures occurred prior to or

immediately contemporaneous with Hayden’s arrest, as part of an effort to find a suspected

felon, armed, within the house into which he had run only minutes before the police

arrived.”).

While a reasonable jury could agree with Plaintiffs that the exigent circumstances

had ended at the time Algarin re-entered their yard, the Court does not find that a reasonable

jury would be required to make such a finding. Accordingly, summary judgment in favor

of Plaintiffs on this claim is not warranted.7 This conclusion includes Plaintiffs’ unlawful

search claim against the City, because municipal liability under Monell requires an

underlying constitutional violation. See Mastromonaco v. Cnty. of Westchester, 779 F.

App’x 49, 51 (2d Cir. 2019).

7 Because the Court reaches this conclusion, it need not reach Defendants’ alternative

argument that Algarin did not actually engage in a search when he entered Plaintiffs’ yard

the second time. (See Dkt. 99 at 6-7). But this argument lacks merit. It is undisputed that

Algarin re-entered Plaintiffs’ yard for the express purpose of searching for contraband.

That his search was abruptly ended by Tesla’s entry into the backyard does not change the

fact that his purpose was to seek information/evidence. This case is thus unlike Gursslin

v. City of Rochester, No. 20-cv-06508-EAW, 2024 WL 4198154, at *5-7 (W.D.N.Y. Sept.

16, 2024).

The Court also finds that the City has not demonstrated that it is entitled to summary

judgment on Plaintiffs’ unlawful search claim. Under Monell, “[p]laintiffs who seek to

impose liability on local governments under § 1983 must prove that ‘action pursuant to

official municipal policy’ caused their injury.” Connick v. Thompson, 563 U.S. 51, 60

(2011) (quoting Monell, 436 U.S. at 691). “Official municipal policy includes . . . practices

so persistent and widespread as to practically have the force of law.” Id.

Plaintiffs have produced significant evidence from which a reasonable jury could

conclude that the City had an unlawful policy or practice of “backtracking” into residents’

curtilage to search for and seize evidence in the absence of exigent circumstances and

probable cause. This evidence includes testimony from Lieutenant Michael Cuilla

(“Cuilla”), who was designated as a witness by the City pursuant to Federal Rule of Civil

Procedure 30(b)(6). Cuilla testified that it is the RPD’s policy and practice to backtrack

through the curtilage of residential properties after a hot pursuit has ended, if the officers

have “reasonable suspicion that something was discarded that could be a danger to the

public.” (Dkt. 96-23 at 42-43). Algarin testified at his deposition that he was trained to

“backtrack” during his field training. (Dkt. 96-8 at 113-14). Algarin defined

“backtracking” as “[t]aking the flight path of a suspect to see if he had discarded any

contraband,” and stated that it was “common” to jump a fence into the backyard of a

residential property in order to backtrack. (Id. at 114-15). Were a juror to conclude that

Algarin’s re-entry into Plaintiffs’ backyard violated the Fourth Amendment, that same

juror could easily conclude that Algarin’s actions were taken pursuant to an official

municipal policy.

For all these reasons, the Court finds that neither Plaintiffs nor Defendants have

established their entitlement to summary judgment on the unlawful search claim, and

denies the competing motions as to this claim.

B. Trespass Claim

The Court turns next to Plaintiffs’ trespass claim, because both sides have also

sought summary judgment thereon. Defendants make two arguments in support of their

request for summary judgment on this claim. First, they argue that “[a] search is not a

trespass, just as a trespass is not a search” and that “[b]ecause . . . Algarin searched the

yard, his actions cannot be considered trespass.” (Dkt. 95-1 at 25). This argument is

nonsensical and the case that Defendants cite in support of it—United States v. Jones, 565

U.S. 400 (2012)—says no such thing. To the contrary, Jones states that “[a] trespass . . .

is not alone a search unless it is done to obtain information; and the obtaining of

information is not alone a search unless it is achieved by such a trespass or invasion of

privacy.” Id. at 408 n.5 (emphasis added). Nowhere does Jones suggest that a search and

a trespass cannot co-exist—it simply makes clear that these concepts are legally distinct.

Second, Defendants argue that even if a trespass occurred, “Algarin cannot be liable,

because law enforcement officers are permitted to commit otherwise-trespassory acts when

in furtherance of their duties.” (Dkt. 95-1 at 26). It is true that under New York state law,

“law-enforcement officials have a privilege to enter private property to perform their legal

duties.” Reynolds v. United States, 927 F. Supp. 91, 96 (W.D.N.Y. 1996). “But the scope

of that privilege is still constrained by the Fourth Amendment.” Thomas v. Town of Lloyd,

711 F. Supp. 3d 122, 142 (N.D.N.Y. 2024). Accordingly, a trespass claim will generally

survive where an unreasonable search claim survives. Id. In other words, the genuine

issues of material fact that precluded summary judgment on the unreasonable search claim

preclude summary judgment on the trespass claim.

This conclusion extends to Plaintiffs’ request for summary judgment on the trespass

claim. Plaintiffs’ argument with respect to the trespass claim is a reiteration of their

arguments regarding the unreasonable search claim. (See Dkt. 96-2 at 20 (“Plaintiffs are

entitled to summary judgment against Algarin and Gorman on their trespass claim under

New York State law for all the reasons stated above, as they clearly entered Mr. Dempsey’s

property without justification or permission.”)). The Court’s analysis of those arguments

applies with equal force here. The Court will not grant summary judgment to either side

on the trespass claim.

C. Unreasonable Seizure of Tesla Claim

The Court turns next to Plaintiffs’ claim that the seizure of Tesla was unreasonable

under the Fourth Amendment. Only Defendants seek summary judgment on this claim.

For the reasons below, the Court finds that genuine issues of material fact exist with respect

to Algarin and the City. But no reasonable jury could find that Gorman was personally

involved in the seizure of Tesla, and so he is entitled to summary judgment on this claim.

“[T]he unreasonable killing of a companion animal constitutes an unconstitutional

‘seizure’ of personal property under the Fourth Amendment.” Carroll v. Cnty. of Monroe,

712 F.3d 649, 651 (2d Cir. 2013). In assessing reasonableness, a court “must balance the

nature and quality of the intrusion on the individual’s Fourth Amendment interests against

the importance of the governmental interest alleged to justify the intrusion and determine

whether the totality of the circumstances justified the particular sort of seizure.” Id.

(quotation and alterations omitted).

Killing a person’s pet dog is “a severe intrusion given the emotional attachment

between a dog and an owner.” Id.; see also Ray v. Roane, 948 F.3d 222, 227 (4th Cir.

2020) (“private interests in dogs—and family pets especially—are highly significant since

dogs have aptly been labeled Man’s Best Friend, and certainly the bond between a dog

owner and his pet can be strong and enduring” (quotations omitted)). As such, “when a

dog is seized—and especially, as here, where it is killed, not merely injured or detained—

the intrusion on the owner weighs heavily in favor of finding the seizure unreasonable[.]”

Matteson v. Hall, No. 18-CV-6772, 2019 WL 2192502, at *7 (W.D.N.Y. May 21, 2019)

(quotation omitted and collecting cases).

But on the other hand, ensuring officer safety is a significant governmental interest.

Carroll, 712 F.3d at 651. Accordingly, “in some circumstances, it is reasonable for an

officer to shoot a dog that he believes poses a threat to his safety or the safety of the

community.” Id. “Though an officer need not wait to be mauled or attacked before

employing force in self-defense, the officer may not utilize deadly force against a dog

unless there is an actual basis to believe that the dog posed an imminent threat.” Azurdia

v. City of New York, No. 18-CV-04189-ARR-PK, 2019 WL 1406647, at *8 (E.D.N.Y. Mar.

28, 2019) (quotation omitted). Relevant factors in ascertaining reasonableness include the

context in which the officer encountered the dog, the dog’s behavior and temperament, the

dog’s breed, whether the owner was available and willing to assert control over the dog,

whether non-lethal means were available to control the dog, and whether there was time to

find an alternative solution to control the dog. See Matteson, 2019 WL 2192502, at *8; see

also Strong v. Perrone, No. 17-CV-6183-FPG, 2020 WL 1445877, at *3 (W.D.N.Y. Mar.

25, 2020).

The Court easily concludes that there are genuine issues of material fact regarding

the reasonableness of Algarin’s actions in shooting and killing Tesla. Multiple factors

support a finding of unreasonableness, including that Algarin was in Plaintiffs’ fenced-in

backyard without a warrant or consent, that Tesla was a labrador retriever (a breed known

for being family dogs and not for viciousness), and that Dempsey was present in the

backyard.

Defendants argue that Tesla approached Algarin in an aggressive manner and that

he did not have time to retreat over the fence or use a non-lethal method (such as a baton

or pepper spray). (Dkt. 95-1 at 15-16). But Defendants fail to recognize that their

characterization of the facts is in the light most favorable to their position, which is not

appropriate on a motion for summary judgment. The Court has viewed the body-worn

camera footage, and it does not find that a reasonable jury would have to conclude that

Tesla was acting in an aggressive manner. She ran towards Algarin, that much is clear.

But merely running is not an act of aggression by a dog, and the case law certainly does

not support the proposition that law enforcement may enter a citizen’s curtilage and shoot

and kill that citizen’s dog for doing nothing more than running. See Strong, 2020 WL

1445877, at *4 (explaining that it was “critically important” whether the plaintiff’s dog had

bared her teeth, as the defendant police officer claimed, because “moving quickly” and

“low to the ground” was “relatively benign” behavior by a dog).

A jury is needed to assess the credibility of Algarin’s claim that Tesla was acting in

an aggressive manner as she approached him. Dempsey, who witnessed the incident, will

testify that she was not, and the body-worn camera footage is not dispositive. That is

sufficient to create a genuine issue of material fact. See Douglas v. Portuondo, 232 F.

Supp. 2d 106, 115 (S.D.N.Y. 2002) (“The determination of how much weight to accord

eyewitness testimony given that witness’ opportunity to observe the events at issue and in

light of any circumstantial evidence that corroborates or refutes such testimony is a matter

of credibility.”).

There are also genuine issues of material fact regarding whether Algarin had time

to retreat or employ non-lethal methods of restraint. Defendants argue that Algarin “did

not have the opportunity to plan any response to an aggressive dog” because he first learned

of Tesla’s presence when she exited the house and ran down the stairs. But “being startled

by [a dog’s] presence does not provide [an officer] with carte blanch” and a jury can

conclude, under appropriate circumstances, that an officer “hastily and unnecessarily shot

a dog that was not showing signs of aggression.” Strong, 2020 WL 1445877, at *6. Given

how easily Algarin had previously jumped over the chain-link fence, a reasonable jury

could conclude that retreat was an option.

The reasonableness of a Fourth Amendment seizure is a fact-intensive inquiry, and

the record before the Court does not support the conclusion that Algarin’s actions were

reasonable as a matter of law. Nor does the Court find that Algarin is entitled to qualified

immunity. Defendants argue that it was “objectively reasonable for Officer Algarin to

believe he would not violate the law by discharging his firearm to protect himself against

imminent harm from a dog.” (Dkt. 95-1 at 24). But this argument presupposes that Tesla

was acting in an aggressive manner and that Algarin was accordingly justified in shooting

her. It was clearly established at the time of Tesla’s death that the killing of a pet without

justification violates the Fourth Amendment. See Strong, 2020 WL 1445877, at *6 (“It is

further clearly established that killing a pet without justification constitutes a Fourth

Amendment violation.” (quotation omitted)); Matteson, 2019 WL 2192502, at *8 (“At the

time of [the dog’s] death, the law clearly established that the fatal seizure of a pet dog

without justification constituted a Fourth Amendment violation.”). As the Court has

already explained, there are genuine issues of material fact as to whether Tesla was acting

aggressively and whether Algarin could have retreated. Summary judgment on the basis

of qualified immunity is not warranted.

There are also genuine issues of material fact regarding municipal liability on

Plaintiffs’ claim that Tesla was unreasonably seized. Official municipal policy may be

established by showing “a failure by policymakers to provide adequate training or

supervision to subordinates to such an extent that it amounts to deliberate indifference to

the rights of those who come into contact with the municipal employees.” Brandon v. City

of New York, 705 F. Supp. 2d 261, 277 (S.D.N.Y. 2010); see City of Canton, Ohio v. Harris,

489 U.S. 378, 389 (1989). As another judge in this District has explained:

The Second Circuit has identified four requirements for demonstrating that a

municipality’s failure to train amounted to deliberate indifference. First, the

municipal policymaker must know to a moral certainty that employees will

confront a given situation. Second, the situation must either present

employees with the type of difficult choices . . . that training or supervision

would make less difficult, or employees must have a history of mishandling

the situation. Third, the wrong choice by employees must frequently cause

the deprivation of a citizen’s constitutional rights. And fourth, at the

summary judgment stage, plaintiffs must identify a specific deficiency in the

municipality’s training program and establish that that deficiency is closely

related to the ultimate injury, such that it actually caused the constitutional

deprivation.

Ellis v. Washington, 409 F. Supp. 3d 148, 154 (W.D.N.Y. 2019) (internal citations and

quotations omitted).

Defendants contend that Plaintiffs cannot show that this standard is satisfied here,

because: (1) Plaintiffs have not identified a specific individual City policymaker; (2)

unconstitutional seizures of dogs do not frequently occur in the City; and (3) the City’s

training regarding dog encounters is sufficient. (Dkt. 95-1 at 28-32). The Court is

unpersuaded by these arguments.

As to the first argument, a police department itself may serve as a municipal

policymaker for purposes of a claim of deliberate indifference in failing to train. See

Feerick v. Sudolnik, 816 F. Supp. 879, 887 (S.D.N.Y. 1993) (stating that the New York

Police Department was “undoubtedly” a municipal policymaker where it was alleged to

have inadequately trained its officers), ), aff’d, 2 F.3d 403 (2d Cir. 1993). Plaintiffs were

not required to name a specific individual policymaker within the RPD.

As to the second argument, Defendants argue that only a “miniscule percentage of

[City] residents potentially have their pet dogs shot in RPD encounters.” (Dkt. 95-1 at 29).

But this is irrelevant to the Court’s inquiry. City of Canton is instructive. There, the Court

explained:

City policymakers know to a moral certainty that their police officers will be

required to arrest fleeing felons. The city has armed its officers with

firearms, in part to allow them to accomplish this task. Thus, the need to

train officers in the constitutional limitations on the use of deadly force, see

Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L.Ed.2d 1 (1985), can

be said to be “so obvious,” that failure to do so could properly be

characterized as “deliberate indifference” to constitutional rights.

489 U.S. at 390 n.10. The fact that only a “miniscule percentage” of the population of

Canton would ever be a fleeing felon did not enter into the calculus. What mattered was

that the police were certain to encounter situations in which they had to decide whether it

was permissible to use deadly force on a fleeing felon.

Similarly, there can be no question that the RPD knows to a moral certainty that its

officers will encounter citizens’ dogs while performing their duties. And the RPD has

armed its officers with firearms to keep themselves and the public safe. A reasonable jury

could certainly conclude that it was so obvious that officers needed to be trained in the use

of lethal force on pet dogs that the failure to provide such training amounted to deliberate

indifference.

Finally, as to Defendants’ third argument, Plaintiffs’ expert has opined that the

RPD’s training on dog encounters is woefully deficient. (See Dkt. 98-14). Defendants

have not moved in this case to exclude the testimony of Plaintiffs’ expert, and it would not

be appropriate for the Court to weigh his credibility on a motion for summary judgment.

See Lucente v. Int’l Bus. Machines Corp., 310 F.3d 243, 254 (2d Cir. 2002).

Plaintiffs also contend that they can establish municipal liability based on a failure

to discipline, and that this is another reason to deny Defendants’ motion. (See Dkt. 98 at

30-32). Because the Court has already found genuine issues of material fact as to municipal

liability, it need not and does not reach this argument. Thus, the City is not entitled to

summary judgment on Plaintiffs’ claim that Tesla was unreasonably seized.

But Gorman is entitled to summary judgment on this claim. To be held liable under

§ 1983, a defendant must have violated the plaintiff’s constitutional rights “through the

official’s own individual actions[.]” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir.

2020). Here, it is undisputed that Gorman was not in Plaintiffs’ backyard when Tesla was

shot, and he played no role in the decision to use lethal force against her.

Plaintiffs’ arguments to the contrary are unpersuasive. They claim that Gorman

“directly participated” in the seizure of Tesla because of his “instruction to Algarin to

‘backtrack’ through Plaintiffs’ yard[.]” (Dkt. 98 at 14). Initially, it is an exaggeration to

say that Gorman instructed Algarin to backtrack through Plaintiffs’ yard. Gorman asked

Algarin if he wanted to backtrack, he did not tell him he had to do so. In any event,

Gorman’s suggestion that Algarin backtrack does not mean that Gorman was a participant

in the seizure of Tesla. “Direct participation requires intentional participation in the

conduct constituting a violation of the victim’s rights by one who knew of the facts

rendering it illegal.” Steele v. New York, No. 5:20-CV-00220, 2021 WL 1110769, at *10

(N.D.N.Y. Mar. 23, 2021) (quotation omitted). No reasonable jury could find that Gorman

intentionally participated in Algarin’s shooting of Tesla on the undisputed facts of this case,

and Plaintiffs have cited no cases in which a defendant has been found to have directly

participated in a constitutional violation under comparable circumstances. The Court

grants Gorman summary judgment on this claim.

D. Unreasonable Seizure of Plaintiffs Claim

The Court next considers Plaintiffs’ claim that they were unreasonably seized by

Algarin. “[A] seizure does not occur simply because a police officer approaches an

individual and asks a few questions. So long as a reasonable person would feel free to

disregard the police and go about his business, the encounter is consensual and no

reasonable suspicion is required.” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quotation

and citation omitted). “Only when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen may we conclude that a

‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). The Second Circuit

has explained:

Pertinent factors identifying a police seizure can include the threatening

presence of several officers; the display of a weapon; physical touching of

the person by the officer; language or tone indicating that compliance with

the officer was compulsory; prolonged retention of a person’s personal

effects, such as airplane tickets or identification; and a request by the officer

to accompany him to the police station or a police room.

Brown v. City of Oneonta, N.Y., 221 F.3d 329, 340 (2d Cir. 2000) (emphasis added and

citations and quotations omitted); see also Ozga v. Elliot, 150 F. Supp. 3d 178, 188 (D.

Conn. 2015) (“On the other hand, an encounter with the police may become so

circumstantially coercive that it amounts to a seizure. Among the circumstantial factors

that may bear on whether a show-of-authority seizure has occurred is ‘the threatening

presence of several officers,’ or ‘the display of a weapon,’ or the ‘physical touching of the

person by the officer,’ or ‘language or tone indicating that compliance with the officer was

compulsory,’ or ‘a request by the officer to accompany him to the police station or a police

room.’”) (quoting Gilles v. Repicky, 511 F.3d 239, 245 (2d Cir. 2007)).

A reasonable jury could conclude that Dempsey was seized by Algarin. The body-

worn camera footage shows that Dempsey started running towards his injured dog, and

Algarin pointed a gun at him and screamed “get down, get down.” Algarin then pointed

pepper spray at Dempsey while repeatedly yelling, “get back.” While Defendants have

pointed to facts from which a jury could conclude that this did not amount to a seizure, the

Court disagrees that this conclusion is compelled as a matter of law. “Temporary detention

of individuals . . . by the police, even if only for a brief period and for a limited purpose,

constitutes a ‘seizure’ of ‘persons’ within the meaning of” the Fourth Amendment. Whren

v. United States, 517 U.S. 806, 809-10 (1996).

But the Court agrees with Defendants that no reasonable juror could find that L.D.,

who was in the house throughout the incident, was seized by Algarin. Plaintiffs argue that

“[w]hen Algarin intentionally pointed the gun at Mr. Dempsey, he also unintentionally

pointed the gun at L.D., who was standing behind Mr. Dempsey just inside the back door.”

(Dkt. 98 at 14). Plaintiffs have cited no evidence to support the claim that the gun was

pointed at L.D. They cite to “¶¶ 69-70” of an unidentified document for this proposition.

(Dkt. 98 at 14). It appears they are referring to paragraphs 69 and 70 of Dkt. 98-1, but

these paragraphs state only that L.D. was at the back door and saw Algarin point the gun

at her father. Plaintiffs’ argument regarding “transferred intent” (see Dkt. 98 at 14-15)

accordingly misses the mark. L.D. was not seized by virtue of the fact that a gun was

pointed at her father and she was in the vicinity. Absent some proof that L.D. herself had

a gun pointed at her, she cannot have been seized under the theory proffered by Plaintiffs.

Defendants are entitled to summary judgment on this claim by L.D.

E. Failure to Intervene Claim

Defendants next seek summary judgment on Plaintiffs’ claim for failure to

intervene, which is asserted against Gorman. “It is widely recognized that all law

enforcement officials have an affirmative duty to intervene to protect the constitutional

rights of citizens from infringement by other law enforcement officers in their presence.”

Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). Therefore, “liability attaches where

(1) the officer had a realistic opportunity to intervene to prevent the harm; (2) a reasonable

person in the officer’s position would have known that the victim’s constitutional rights

were being violated; and (3) the officer did not take reasonable steps to intervene.”

Gochnour v. Burri, No. 6:15-CV-06174, 2018 WL 10944594, at *3 (W.D.N.Y. July 9,

2018).

Defendants argue that Gorman had no opportunity to intervene in any alleged

constitutional violation. (Dkt. 95-1 at 21-23). In opposition, Plaintiffs contend that

“Gorman had a realistic opportunity to prevent Algarin’s unlawful entry into Mr.

Dempsey’s yard and the shooting of Tesla.” (Dkt. 98 at 15). The Court agrees that a

reasonable jury could find this to be the case with respect to the entry into Plaintiffs’ yard,

but disagrees with respect to the shooting of Tesla.

As to the entry into Plaintiffs’ yard, it was Gorman who suggested to Algarin that

he backtrack. While Defendants contend that Gorman had his back to Plaintiffs’ yard at

the moment that Algarin jumped fence (see Dkt. 95-1 at 22), the body-worn camera footage

shows Algarin asking Gorman where the suspect had crossed and then walking along the

fence, seemingly looking for a good entry point. A reasonable jury could conclude that

Gorman should have realized at that point that Algarin intended to jump the fence and

intervened to stop him from doing so.

But no reasonable jury could conclude that Gorman had a reasonable opportunity to

stop Algarin from shooting Tesla. Gorman was not near Algarin when Tesla entered the

backyard, and the shooting occurred in a matter of seconds. The Court accordingly denies

summary judgment on the failure to intervene claim solely to the extent it is based on the

entry into Plaintiffs’ yard.

F. Assault Claim

Finally, the Court considers Plaintiffs’ claim that Algarin assaulted Dempsey.

Under New York law, assault consists of “physical conduct placing the plaintiff in

imminent apprehension of harmful contact.” Bastein v. Sotto, 299 A.D.2d 432, 433 (2d

Dept. 2002). Algarin pointed both a gun and pepper spray at Dempsey while screaming at

him to “get down” and “get back.” A reasonable jury could find that this amounted to an

assault. Defendants’ motion for summary judgment on this claim is denied.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (Dkt. 95) is

granted in part and denied in part and Plaintiffs’ motion for partial summary judgment

(Dkt. 96) is denied. Defendants’ motion is granted as to the following claims: (1) the

unlawful seizure of Tesla claim as asserted against Gorman; (2) the unlawful seizure of

L.D. claim against all Defendants; and (3) the failure to intervene claim against Gorman

except to the extent it is based on the entry into Plaintiffs’ yard. Defendants’ motion is

otherwise denied.

SO ORDERED.

ELIZABETH A, WOERORD /

icf Judge

United States District Court

Dated: January 2, 2025

Rochester, New York

-3]-