Case 3:13-cv-00107-TJM-ATB Document 204 Filed 09/27/17 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF NEW YORK
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`
`JESUS FERREIRA,
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`Plaintiff,
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` vs.
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`3:13-CV-107
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`CITY OF BINGHAMTON,
`BINGHAMTON POLICE DEPARTMENT, and
`OFFICER KEVIN MILLER
`
`
`Defendants.
`
`
`
`Thomas J. McAvoy,
`Sr. U.S. District Judge
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`DECISION and ORDER
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`The parties in this matter, which concerns a shooting of the unarmed Plaintiff by
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`a member of the Binghamton, New York, Police Department, have filed post-trial
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`motions. The Court has considered the motions on the filings and without the aid of
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`oral argument.
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`I.
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`BACKGROUND
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`In the early morning hours of August 25, 2011, a Binghamton Police Department
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`SWAT team executed a “no-knock” warrant at 11 Vine Street, a residence in that city.
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`Plaintiff, an overnight guest, was sleeping on the couch in the living room, which was
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`located near the front door. After using a battering ram to break through the front door,
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`officers entered the living room. Defendant Kevin Miller, the first member of the SWAT
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`team to enter the building, shot the Plaintiff once. Plaintiff suffered severe injuries,
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`leading to the removal of his spleen.
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`Plaintiff sued the City of Binghamton, the Binghamton Police Department, and
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`Officer Miller, among others. Plaintiff alleged that Defendants violated his constitutional
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`rights to be free from excessive force and false arrest, both through the conduct of
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`Defendant Miller and through the policies and practices of the Binghamton Police
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`Department. Plaintiff also raised state-law tort claims. After motion practice, the only
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`remaining Defendants were the Police Department, the City and Officer Miller. After
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`Defendants filed a motion for summary judgment, the case went to trial.
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`At the close of trial, the jury found that Defendant Miller had not committed
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`battery or used excessive force against the Plaintiff. See dkt. # 170. The jury also
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`found that Officer Miller had not been negligent with respect to the shooting. Id. The
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`jury found, however, that the City of Binghamton had been negligent. Id. The jury
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`awarded Plaintiff $500,000 in past damages and $2.5 million in future damages. The
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`jury also found that Plaintiff was 10% liable for damages.
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`The parties filed post-trial motions. After the Court provided time for the
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`preparation of the trial record, the parties filed briefs in support of their motions, bringing
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`the case to its present posture.
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`II.
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`LEGAL STANDARD
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`Both parties seek judgment as a matter of law pursuant to Federal Rule of Civil
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`Procedure 50. A court may grant judgment notwithstanding the verdict “only if the
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`evidence viewed in the light most favorable to the non-movants, without considering
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`credibility or weight, reasonably permits only a conclusion in the movant’s favor.”
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`Doctor’s Assocs., Inc. v. Weible, 92 F.3d 108, 111-12 (2d Cir. 1996). The Court “may
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`not weigh evidence, assess credibility, or substitute its opinion of the facts for that of the
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`jury.” Vermont Plastics v. Brine, Inc., 79 F.3d 272, 277 (2d Cir. 1996). A trial court may
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`grant the motion only when “there exists such a complete absence of evidence
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`supporting the verdict that the jury’s findings could only have been the result of sheer
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`surmise and conjecture, or the evidence in favor of the movant is so overwhelming that
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`reasonable and fair minded [persons] could not arrive at a verdict against [it].’” SEC v.
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`Ginder, 752 F.3d 569, 574 (2d Cir. 2014) (quoting Tepperwiev v. Entergy Nuclear
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`Operations, Inc., 663 F.3d 556, 567 (2d Cir. 2011)).
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`In the alternative, the parties seek a new trial pursuant to Federal Rule of Civil
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`Procedure 59, which provides that “[t]he court may, on motion, grant a new trial on all or
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`some of the issues . . . for any reason for which a new trial has heretofore been granted
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`in an action at law in federal court[.]” FED. R. CIV. P. 59(a)(1)(A). “‘[A] decision is
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`against the weight of the evidence . . . if and only if the verdict is [1] seriously erroneous
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`or [2] a miscarriage of justice.’” Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 417-
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`18 (2d Cir. 2012) (quoting Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir.
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`2002)). Such a motion can be granted “even if there is substantial evidence to support
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`the jury’s verdict.” United States v. Landau, 155 F.3d 93, 104 (2d Cir. 1998). Though a
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`trial judge “is free to weigh the evidence himself, and need not view it in the light most
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`favorable to the verdict winner . . . the court should only grant such a motion when the
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`jury’s verdict is ‘egregious.’” DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 134
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`(2d Cir. 1998) (quoting Dunlap-McCuller v. Riese Organization, 980 F.2d 153, 157 (2d
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`Cir. 1992)). Thus, “a court should rarely disturb a jury’s evaluation of a witness’s
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`credibility.” Id.
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`III.
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`ANALYSIS
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`A.
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`Plaintiff’s Motion
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`Plaintiff seeks judgment as a matter of law pursuant to Rule 50(b) or, in the
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`alternative, a new trial pursuant to Rule 59(a), arguing that the jury should have found
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`Defendant Officer Kevin Miller liable for shooting him. Though the Court instructed the
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`jury that it could find Defendant liable for battery or negligence in this matter, Plaintiff
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`offers only a generalized argument and does not attempt to explain how Officer Miller
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`could have been specifically liable under either theory. The Court will address each
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`theory, after summarizing the relevant evidence elicited at trial.
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`i.
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`Evidence
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`The trial in this matter consumed a number of days. Several police officers
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`involved in executing the warrant that led to Plaintiff’s shooting testified, as did the
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`Police Chief and others involved in planning the action. Evidence indicated that Officer
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`Miller shot Plaintiff very quickly after he entered the apartment. Plaintiff’s case
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`emphasized that Police botched the execution of the warrant by failing to use a
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`sufficiently large ram to knock down the door, failing to obtain plans for the apartment,
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`and failing to use alternative and less lethal means–other than guns–to incapacitate
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`and subdue anyone in the apartment. Plaintiff contended that he had not been moving
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`towards Officer Miller at the time he was shot, and that he did not have anything in his
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`hands. He also alleged that officers placed an Xbox controller near his hand after the
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`shooting in an effort to make it appear that he had appeared to present a danger to
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`Officer Miller when he shot him. Two medical experts testified about the shooting,
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`offering differing interpretations of Plaintiff’s location at the time of the shooting and the
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`path of the bullet that injured him passed through his body.
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`Both Officer Miller and the Plaintiff testified about the shooting. Officer Miller
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`testified that he was the first officer in line to enter the apartment. Trial Transcript (“T.”),
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`dkt. # 179, at 632. He had “the most dangerous spot” in the line of officers who
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`entered. Id. Officers used a battering ram to enter the apartment. Id. Because the
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`ram was too small, however, several strikes were required before the door could be
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`opened. Id. at 634. For Miller, the delay in getting the door opened “felt like a long
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`time.” Id. Miller worried that the banging would wake everyone in the apartment–he
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`feared that the officers had “lost the element of surprise.” Id. at 635.
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`Examined by his attorney, Miller testified that he took “two to three steps” after
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`he entered the apartment and before he shot Plaintiff. T., dkt. # 180, at 773. He
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`estimated that a “[c]ouple [of] seconds” passed between the entry and shooting. Id. at
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`774. Miller testified that upon entering the apartment he saw “an individual coming off
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`the couch, you know, coming towards me.” Id. at 775. He looked towards Plaintiff’s
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`hands, “because hands are what will carry a weapon if there is one.” Id. Miller testified
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`that he shot Plaintiff because he thought he had something in his hands and was
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`moving towards him, failing to comply with the officer’s commands. Id. at 789-90.
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`Even before he entered the room, Miller testified that he was yelling “[d]own,
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`down, down, down, down,” and identifying himself as “Police.” Id. at 776. He and other
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`officers began these shouts as soon as they began to use the ram for entry into the
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`apartment. Id. Plaintiff did not comply with this command to get down when Miller
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`entered the apartment. Id. at 777. Miller testified that “[i]f someone’s standing up after
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`hearing those [commands] or if they did hear these [commands] and [are] making a
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`move towards you, without something even in their hands,” that person was not
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`complying with the command. Id. If a non-complaint person has something in their
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`hand, Miller related, an officer would “respond in kind . . . You perceive it to be a
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`weapon, you fire.” Id. at 777-78. Miller further testified that the “no-knock” warrant in
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`this case meant that, for the SWAT team:
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`the only time we get called is if somebody reasonably believes or has done, you
`know, an investigation and they have a belief that there’s you know, firearms or
`something, that they’re a violent individual. Anything that would require that next
`step which is what we are. We’re not your standard knock on your door, pull a
`car over, something like that.
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`Id. at 778.
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`Miller testified that the battering ram did not work well. Id. at 784. The door
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`frame began to come apart, and the door itself would not “pop” open. Id. Eventually,
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`the door “kind of shatter[ed] a little bit in pieces and start[ed] . . . kind of breaking down
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`so you have kind of just a gap[.]” Id. Miller used his shoulder to break through that gap
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`and clear a way for himself and the officers following him into the apartment. Id. When
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`he entered and shot Plaintiff, he perceived that he had something in his hands. Id. at
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`790. Miller shot when he was concerned for his safety and the safety of the other
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`officers entering the room. Id. Miller denied that he shot Plaintiff while he was “laying
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`on the couch minding his own business with his hands in the air showing no
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`resistance.” Id. at 793-94.
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`Plaintiff’s story of the shooting is quite different. He testified that on the night
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`before the early morning raid that led to his shooting, he put a movie into the Xbox
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`player, took his shoes off, relaxed, and “[l]aid down.” T., dkt. # 182, at 1286. He used
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`an “Xbox joystick” to operate the machine and make the movie play. Id. at 1290. Once
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`the movie started, he put the controller by his side on the floor. Id. at 1291. Plaintiff fell
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`asleep at about two a.m. Id. at 1287. He woke up the next morning to “yelling and
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`banging in the hallway.” Id. at 1288. Still laying on the couch, he put out his arms and
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`twisted towards the door in attempt to show that “I wouldn’t be a threat to whoever was
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`coming in.” Id. “The door flew open and I seen a cop shoot me.” Id. Plaintiff testified
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`that he never got off the couch. Id. After his shooting, he saw “police running in the
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`house, yelling, saying, you know, police, Binghamton, whatever they were saying.
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`Freeze.” Id. at 1289. Plaintiff screamed from pain and tried to pull himself up. Id. “I
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`couldn’t move.”
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`Plaintiff testified that when police entered the room after shooting him, “[t]hey
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`came over to me and flipped me on my stomach at the end of the couch and frisked my
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`body or whatever and placed my arms over my head” in a position similar to if he were
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`flying. Id. at 1291. He was lying on the couch. Id. at 1292. Eventually, Police laid him
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`on the floor on his right side, handcuffed. Id. Plaintiff testified that “somebody yelled
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`put the game joystick in his hand and that someone kicked it towards you as you lay on
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`the ground.” Id. at 1293. Plaintiff testified that he was on the couch when he was shot,
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`was not “advancing on the police officer” and had nothing in his hands. Id. at 1294.
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`Instead, he raised his hands, outstretched, to the of ficer as he entered the room. Id.
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`ii.
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`Excessive Force/Battery
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`Plaintiff contends that the jury should have found that Officer Miller used
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`excessive force and committed a battery when he shot Plaintiff after entering the
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`apartment. Excessive force claims brought pursuant to the Fourth Amendment “‘are
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`properly analyzed under the Fourth Amendment’s ‘objective reasonableness’
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`standard.’” Shamir v. City of New York, 804 F.3d 553, 556 (2d Cir. 2015) (quoting
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`Graham v. Connor, 490 U.S. 386, 388 (1989)). Using “excessive force renders a
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`seizure of the person unreasonable and for that reason violates the Fourth
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`Amendment.” Id. To decide whether the force was reasonable, the fact-finder should
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`pay “‘careful attention to the facts and circumstances of each particular case, including
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`the severity of the crime at issue, whether the subject poses an immediate threat to the
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`safety of the officers or others, and whether he is actively resisting arrest or attempting
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`to evade arrest by flight.’” Soares v. Connecticut, 8 F.3d 917, 921 (2d Cir. 1993)
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`(quoting Graham, 490 U.S. at 396). This standard focuses on “‘a reasonable officer on
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`the scene, rather than with the 20/20 vision of hindsight.’” Brown v. City of New York,
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`798 F.3d 94, 100 (2d Cir. 2015) (quoting Graham, 490 U.S. at 397). Under that
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`standard, “‘the calculus of reasonableness must embody allowance for the fact that
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`police officers are often forced to make split-second judgments–in circumstances that
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`are tense, uncertain and rapidly evolving–about the amount of force that is necessary in
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`a particular situation.’” Rogoz v. City of Hartford, 796 F.3d 236, 246 (2d Cir. 2015)
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`(quoting Graham v. Connor, 490 U.S. 386, 396-97 (1989)). “To establish a claim of
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`objective force, ‘a plaintiff must show that the force used by the officer was, in light of
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`the facts and circumstances confronting him, ‘objectively unreasonable[.]’” Davis v.
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`Rodriguez, 364 F.3d 424, 431 (2d Cir. 2004) (quoting Finnegan v. Fountain, 915 F.2d
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`817, 823 (2d Cir. 1990)). The same standard applies to Plaintiff’s state-law battery
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`claim. Posr v. Doherty, 944 F.2d 91, 94-5 (2d Cir. 1991).
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`Plaintiff contends that no rational juror could have found for Defendant Miller,
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`and that the verdict represents a miscarriage of justice. For the jury to believe Miller’s
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`story, Plaintiff contends, the jury would have to conclude that Plaintiff was “suicidal” and
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`willing to ignore repeated calls to “get down.” Plaintiff argues that Officer Miller’s
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`explanation for the shooting–that Plaintiff got up from the couch and moved towards
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`him as he entered the room, carrying an Xbox controlled that looked like a revolver is so
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`implausible that no juror could accept that claim. The Xbox controller looks nothing like
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`a revolver, and officers testified that they found the device exactly where Plaintiff
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`testified he left it the night before. Moreover, he contends, the next officer in line did
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`not support Miller’s testimony that Plaintiff was moving towards him when he entered
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`the room, nor did the report of the shooting police prepared. The testimony of Plaintiff’s
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`pathologist about the angle at which the bullet entered Plaintiff’s body also supports a
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`finding that Plaintiff was on the couch when shot. Defendants respond that Plaintiff’s
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`argument does not really address the issue of excessive force, but instead
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`concentrates on the negligence issue. Moreover, Plaintiff’s arguments, Defendants
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`contend, address only the standard for a new trial, not a directed verdict. Plaintiff
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`cannot meet even that lower standard, Defendants insist.
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`The Court will deny the motion with respect to these claims. As for the motion
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`for judgment notwithstanding the verdict, the Court cannot find that “there exists such a
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`complete absence of evidence supporting the verdict that the jury’s findings could only
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`have been the result of sheer surmise and conjecture, or the evidence in favor of the
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`movant is so overwhelming that reasonable and fair minded [persons] could not arrive
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`at a verdict against [it].’” Ginder, 752 F.3d at 574. A reasonable juror could certainly
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`accept Miller’s testimony that he shot Plaintiff after he entered the apartment and saw
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`Plaintiff advancing on him with a device in his hand that appeared to be a weapon. The
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`SWAT team entered the apartment after being informed that occupants of the
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`apartment likely had weapons, and after they had lost the element of surprise because
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`the ram did not immediately open the door. A juror could credit Miller’s testimony and
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`reject Plaintiff’s about what Plaintiff did as officers entered the apartment, and rejecting
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`this testimony would lead the juror to conclude that the use of force was reasonable
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`under the circumstances. Davis, 364 F.3d at 431.
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`Likewise, the Court will deny the motion insofar as it seeks a new trial on this
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`issue. As explained above, the jury’s decision here turned on a question of whose story
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`to believe, Miller’s or the Plaintiff’s. If the jury had accepted Plaintiff’s claim that he
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`remained on the couch and raised his empty hands to Miller as Miller entered the room,
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`the jury would have likely found that Miller lacked a reasonable justification for the
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`shooting under the circumstances. The jury apparently believed Miller’s claims that
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`Plaintiff ignored his commands to stay on the ground, but instead moved towards him
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`with an item in his hand that Miller–incorrectly–believed to be a gun. The Court does
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`not find these conclusions to be either “‘[1] seriously erroneous or [2] a miscarriage of
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`justice.’” Raedle, 670 F.3d at 417-18 (2d Cir. 2012)). The Court will not disturb the
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`jury’s efforts to resolve the credibility issue in this case. DLC Mgmt. Corp., 163 F.3d at
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`134.
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`iii.
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`Negligence
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`As explained above, Plaintiff does not separate his argument regarding the jury’s
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`verdict concerning Officer Miller into the two claims the jury decided. Instead, Plaintiff
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`simply argues that the facts of the case indicate that he did not pose any sort of threat
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`to Officer Miller, and that by shooting Plaintiff when he did not pose a threat, Officer
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`Miller violated the standard of care. Defendants contest this claim, contending that the
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`force used was reasonable under the circumstances.
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`Setting aside the issue of a special relationship, discussed below, a showing of
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`negligence in New York requires that the Plaintiff demonstrate “(1) the defendant owed
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`the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the
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`plaintiff suffered damage as a proximate result.” Williams v. Utica Coll. of Syracuse
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`Univ., 453 F.3d 112,116 (2d Cir. 2006). Plaintiff contends that the jury could only have
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`found that Miller breached the standard of care by shooting him under the
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`circumstances.
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`The Court will deny the motion in this respect as well. First, judgment as a
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`matter of law is unwarranted under the circumstances, largely for the reasons stated
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`above with reference to the excessive force/battery claim. Assuming that an officer
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`breaches the standard of care by shooting an unarmed person without any justification,
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`the facts related above demonstrate that Defendant Miller entered a room under
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`circumstances where he had reason to believe he would encounter an armed and
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`dangerous person. His testimony indicates he believed he had encountered such a
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`person. Though mistaken, that mistake and the shooting that resulted does not indicate
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`that he violated the standard of care in a manner in which no reasonable juror could fail
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`to assign him liability.1 The motion will be denied in this respect.
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`1Again, assuming that Miller could be liable for violating some standard of care,
`the evidence in this case is not such that a juror could find Miller violated the standard
`of care articulated in Rodriguez v. New York, 189 A.D.2d 166, 178, 595 N.Y.S.2d 421,
`428 (1st Dept. 1993). Miller exercised his expert judgment in deciding to shoot in the
`specific circumstances of executing the warrant. He did not, as the officer in Rodriguez
`did, fire into a crowd of innocent bystanders without regard to their safety.
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`A new trial is likewise unwarranted. As explained above with reference to
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`excessive force, the jury’s decision about whether Miller violated the standard of care in
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`shooting Plaintiff hinged on a question of credibility. The Court will not disturb the jury’s
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`decision in that respect.
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`B.
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`Defendants’ Motion
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`The Defendant City moves, in relevant part, for judgment as a matter of law.
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`The City argues that, under the facts elicited at trial, the jury’s finding that the City was
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`negligent by its own conduct is legally and factually impossible.
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`The Second Circuit Court of Appeals has explained the circumstances under
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`which a municipality may be liable in negligence to an injured party. When “a
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`municipality . . . acts in a governmental capacity, a plaintiff may not recover without
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`proving that the municipality owed a ‘special duty’ to the injured party.” Velez v. City of
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`New York, 730 F.3d 128, 135 (2d Cir. 2013). 2 To create liability, “‘the duty breached’”
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`by the municipality “‘must be more than that owed the public generally.’” Id. (quoting
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`Valdez v. City of New York, 18 N.Y.3d 69, 75, 936 N.Y.S.2d 587 (2011)). The plaintiff
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`must prove that such a “special relationship” existed by demonstrating “four elements”:
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`(1) an assumption by the municipality, through promises or actions, of an
`affirmative duty to act on behalf of the party who was injured; (2) knowledge on
`the part of the municipality’s agents that inaction could lead to harm; (3) some
`form of direct contact between the municipality’s agents and the injured party;
`and (4) that party’s justifiable reliance on the municipality’s affirmative
`undertaking.
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`Id. (quoting Applewhite v. Accuhealth, Inc., 21 N.Y.3d 420, 430-31, 972 N.Y.S.2d 169,
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`2Plaintiff offers no response to Defendants’ argument that a “special relationship”
`is necessary to prove negligence against the City.
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`176 (2013)); see also, Sorichetti by Sorichetti v. City of New York, 65 N.Y.2d 461, 468,
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`482 N.E.2d 70, 75 (1985) (“where there is no special relationship, a municipality does
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`not owe a duty to its citizens in the performance of governmental functions, and thus
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`courts will not examine the ‘reasonableness’ of the municipality’s actions.”). In other
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`words, “under the ‘special relationship’ doctrine, a municipality may not be held liable in
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`negligence for a police officer’s failure[s] . . . absent the establishment of a special
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`relationship with the plaintiff.” Rodriguez, 189 A.D.2d at 172.
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`Plaintiff admits that he was “not the subject of the no-knock warrant for 11 Vine
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`Street on the morning of August 25, 2011, and the police did not know he was in the
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`apartment.” No evidence at trial or in the record indicates that Plaintiff ever had any
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`direct contact with the Binghamton Police or any Binghamton official before the SWAT
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`team arrived to execute the no-knock warrant. Likewise, no evidence produced at trial
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`indicated that the Defendant City ever took on any particular duty to the Plaintiff. Under
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`those circumstances, no claim against the City for negligence could lie. As such, “there
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`exists such a complete absence of evidence supporting the verdict that the jury’s
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`findings could only have been the result of sheer surmise and conjecture, or the
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`evidence in favor of the movant is so overwhelming that reasonable and fair minded
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`[persons] could not arrive at a verdict against [it].’” Ginder, 752 F.3d at 574. The Court
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`will therefore grant the Defendants’ motion. Judgment as a matter of law will be
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`granted to the City.3
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`3Defendants also argue that governmental immunity prevents the Plaintiff from
`collecting on a negligence cause of action against the City. New York courts have
`found that “[m]unicipalities surrendered their common-law tort immunity for the
`misfeasance of their officers and employees long ago[.]” Tango by Tango v. Tulevech,
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`As that decision absolves the City of any liability in this matter, the Court will
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`decline to address the remainder of the City’s motion.
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`IV. CONCLUSION
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`For reasons stated above, the Plaintiff’s motion for judgment as a matter of law
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`or, in the alternative, a new trial, dkt. # 175, is hereby DENIED. The Defendants’
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`motion for judgment as a matter of law, dkt. # 174, is hereby GRANTED. The Clerk of
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`Court is hereby directed to enter final judgment for the Defendant City of Binghamton
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`and Binghamton Police Department on all claims raised in the Plaintiff’s Amended
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`Complaint.
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`IT IS SO ORDERED.
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`Dated: September 27, 2017
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`
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`61 N.Y.2d 34, 40, 459 N.E.2d 182 (1983). Still, “other recognized limitations still govern
`the tort liability of municipal officers.” Id. Once such rule supplies that “when official
`action involves the exercise of discretion, the officer is not liable for the injurious
`consequences of that action even if resulting from negligence or malice.” Id. Under
`this standard, “discretionary or quasi-judicial acts involve the exercise of reasoned
`judgment which could typically produce different acceptable results whereas a
`ministerial act envisions direct adherence to a governing rule or standards with a
`compulsory result.” Id. This rule does not apply in “situations where the employee, a
`police officer, violates acceptable police practice.” Lubecki v. City of New York, 304
`A.D.2d 224, 234, 758 N.Y.S.2d 610, 617 (1st Dept. 2003). Plaintiff elicited evidence in
`this case that Miller’s conduct violated acceptable police practices by shooting Plaintiff
`without first establishing he represented a danger. A jury did not, however, find that
`Miller violated such practices in shooting Plaintiff, and the City’s immunity therefore
`would apply. Plaintiff elicited additional evidence that the City improperly investigated
`the home at 11 Vine Street and used improper judgment in planning the raid. The tort
`of negligent investigation, however, does not apply, as “it is well settled that an action
`for negligent . . . investigation does not exist in the State of New York.” Ellsworth v. City
`of Gloversville, 269 A.D.2d 654, 657, 703 N.Y.S.2d 294, 297 (3d Dept. 2000).
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