
    Antoine TAYLOR, Plaintiff, v. Keith ROGICH, Defendant.
    No. CV 11-0934 (GRB).
    United States District Court, E.D. New York.
    Signed Jan. 2, 2014.
    
      John Joseph Nonnenmacher, Bader Yakitis and Nonnenmacher, New York, NY, for Plaintiff.
    Pablo A. Fernandez, Peter A. Laserna, Mineóla, NY, for Defendant.
   MEMORANDUM AND ORDER

GARY R. BROWN, United States Magistrate Judge:

Defendant Keith Rogich (“Rogich”), a Nassau County Police Officer, moves pursuant to Fed.R.Civ.P. 50 for judgment as a matter of law following a jury verdict against him predicated upon the use of excessive force—to wit, shooting the plaintiff, Antoine Taylor, during an arrest. The motion is premised on the notion that qualified immunity precludes the jury’s verdict as, Rogich claims, plaintiff had put him in danger by driving his vehicle at Rogich, thereby placing defendant’s actions “within the hazy border between excessive force and acceptable force.” Brosseau v. Hau-gen, 543 U.S. 194, 201, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). However, because this assertion depends on a view of the facts that was explicitly rejected by the jury, the motion is without basis.

Background

Following the consent of the parties to the jurisdiction of the undersigned, Docket Entry (“DE”) [89], based upon the joint request of the parties, this matter was bifurcated, and a jury trial was held solely on the issue of liability. DE [100], [101], [102], [106], [109]. During the five-day jury trial, the parties introduced evidence, as relevant herein, demonstrating the following:

On September 26, 2009, Rogich, a member of the Bureau of Special Operations (BSO), participated in the arrest of the defendant. See Transcript (“Tr.”) 165:23-167:5. Prior to the arrest, Rogich had been advised that plaintiff was wanted on a parole warrant and for questioning in connection with a homicide, and that he might be armed and had threatened his parole officer. See Tr. 171:11-14; 331:1-5; 581:17-23; 603:11-20. Immediately prior to the arrest, a group of BSO officers, driving unmarked vehicles, surrounded plaintiffs vehicle as he was leaving a residence in Hempstead, NY. See Tr. 175: 21-177:11. Rogich and his partner were in a silver Jeep Grand Cherokee SUV which pulled in front of plaintiffs vehicle when plaintiff had stopped at a stop sign. See Tr. 172:13-19; 188:17-25; 198:9-19; 270:1-6.

It was undisputed at trial that Rogich fired three shots at plaintiff. Each time, he aimed for “center mass,” meaning the plaintiffs chest. Tr. 223:15-227:2. All three struck plaintiffs vehicle; one passed through the windshield and struck plaintiff in the stomach. See Tr. 74:1-25; 340:21-25. The third shot fired lodged in the passenger door of plaintiffs vehicle. See Tr. 77:13-18.

The precise circumstances under which Rogich fired the shots was the subject of conflicting testimony. Plaintiff testified that while he was stopped at the stop sign, the defendant fired the first shot while still inside the SUV. See Tr. 70:5-8; 73:12-20. Two other eyewitnesses similarly testified that the first shot was fired from inside the police vehicle, as they observed the muzzle flash emanate from inside the silver Jeep. See Tr. 640:17-641:2; 677:13-20. One of the two eyewitnesses testified that she saw Rogich jump out of the Jeep after the first shot was fired, and watched him fire the next two shots, including the third from the sidewalk. See Tr. 677:18-679:7. It is also undisputed that one of the three shell casings ejected from Rogich’s gun was found inside the police vehicle in the passenger area in which the defendant had been sitting. See Tr. 199:1-8; 274:16-22; 596:19-597-4.

Rogich, by contrast, testified he got out of the Jeep before firing his weapon. See Tr. 587:11-25. He further testified that, once he was in front of plaintiffs car, the plaintiff had backed up and “charged” toward him. Tr. 587:2-4. As such, Rogich testified, he fired because he believed it was “the only way I could stop the car from running me over.” Tr. 587:15-16. Officer Alongé, another member of the BSO arrest team, testified that he observed Rogich in front of plaintiffs car, which “lurched” toward the defendant. Tr. 395:15-16. Sgt. McCarthy, who was in charge of the operation, testified that plaintiffs vehicle was moving forward at the time he heard two shots, but he could not see Rogich at the time the shots were fired. See Tr. 482:18-25; 486:18-25. Michael Knatz, Rogich’s partner, could not see Rogich at the time the shots were fired, nor did he know Rogich’s location at that time. See Tr. 317:12-14; 317:23-318:2; 320:3-6. Knatz also testified that he heard the subject gunshots after hearing plaintiffs engine “roar” and the car move forward. See Tr. 335:5-6. Knatz did not fire his weapon or aim it at plaintiffs vehicle. See Tr. 320:3-23. Indeed, though the unsuccessful apprehension of plaintiff involved at least a half dozen BSO officers in a coordinated operation, no one other than the defendant discharged a weapon at the plaintiff. See Tr. 319:24-320:2.

Several witnesses testified that Rogich was not in front of plaintiffs vehicle when he fired the third shot. See Tr. 406:15-409:24; 663:12-16; 679:3-5. This observation was supported by physical evidence in that the bullet was lodged in the passenger side door of plaintiffs vehicle. See Tr. 81:5-6. Two witnesses testified that Ro-gich fired the third shot from the sidewalk. See Tr. 663:12-16; 679:3-5.

After being shot, plaintiff drove away from the arrest scene, as the officers had not effectively blocked his escape route. See Tr. 337:1-340:8. Plaintiff reported fleeing because, having been shot without provocation, he feared for his life. See Tr. 79:25-80:-3; 112:11-113:2. Plaintiffs vehicle neither struck the defendant nor any of the police vehicles at the arrest scene. See Tr. 257:2-260:9. The plaintiff drove for about one mile, and then crashed his vehicle, at which point he was apprehended. See Tr. 337:4-340:20.

Discussion

Last year, in Weather v. City of Mount Vernon, 474 Fed.Appx. 821 (2d Cir.2012), the Second Circuit addressed the criteria applicable to a Rule 50 motion challenging an excessive force verdict on the basis of qualified immunity. The Court of Appeals observed:

When a defendant invokes qualified immunity, we make the following analysis, deriving from Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001): First, a court must decide whether the facts that a plaintiff has alleged or shown make out a violation of a constitutional right. Second ... the court must-decide whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct. Qualified immunity is applicable unless the official’s conduct violated a clearly established constitutional right.... Because the use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness, the two Saucier inquiries may ultimately converge on one question in excessive force cases: Whether in the particular circumstances faced by the officer, a reasonable officer would believe that the force employed was lawful.

Id. at 822 (citations and quotations omitted). Noting that the jury’s verdict would “largely foreclose” an argument that defendant’s conduct did not constitute a constitutional violation, the Court described the “high standard” that a defendant must meet to prevail in the face of a jury finding of excessive force:

Where, as here, a jury has deliberated in a case and actually returned its verdict, a district court may set aside the verdict pursuant to Rule 50 only where there is such 'a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.

Id. at 822-23.

On this motion, defendant’s argument is limited to the second Saucier prong, i.e. whether or not Rogieh’s use of force violated a “clearly established” right. See Defendant’s Memorandum of Law (“Defs Memo.”) at 12-13, [DE 119-1] (“Officer Rogich’s use of force fell within the hazy border between excessive force and acceptable force which entitles police officers qualified immunity from Fourth Amendment excessive force claims”). Defendant’s motion is predicated almost exclusively upon the Supreme Court’s decision in Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004), which examined—in the context of a summary judgment motion—the question of whether it violated a “clearly established” right for an officer “to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.” Id. at 200, 125 S.Ct. 596. The Court determined that “Brosseau’s actions fell in the hazy border between excessive and acceptable force [and that qualified immunity applied because] cases by no means clearly established] that Brosseau’s conduct violated the Fourth Amendment.” Id. at 201, 125 S.Ct. 596.

Defendant’s position, however, is premised upon the assertion that “Rogieh, unlike the police officer in Brosseau, was in imminent danger of being struck by the Plaintiffs car.” Defs Memo, at 13. This contention was the central fact at issue in this case and subject of the five-day jury trial. As Judge Feuerstein ruled in denying defendant’s motion for summary judgment on the ground of qualified immunity, “the essential issue of whether plaintiff drove his vehicle toward Officer Rogieh creating a significant risk of injury prior to the shooting is disputed.” Memorandum and Order at 12, DE [72], This is precisely the type of case in which, as the Supreme Court later observed upon further consideration of Saucier, “the answer to whether there was a violation may depend on a kaleidoscope of facts” that need to be developed at trial. Pearson v. Callahan, 555 U.S. 223, 239, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

Whether Rogich’s use of deadly force was objectively reasonable because he faced a risk of injury by plaintiff has been resolved by the jury’s verdict in favor of plaintiff. The Court instructed the jurors that:

The plaintiff Antoine Taylor contends that his constitutional rights were violated on September 26, 2009, when excessive force was used by defendant Keith Rogieh during the course of arresting plaintiff by shooting him. On the other hand, the defendant Keith Rogieh contends that the plaintiff drove his car toward Rogieh who reasonably feared for his safety. He denies that he used excessive force in any manner and that he only used the force necessary to protect his safety ...
In evaluating the reasonableness of the force which was used, you must remember that law enforcement officers are not prohibited from using physical force in the course of making an arrest if reasonably required. The penal law of the State of New York specifically provides as follows ...
“A police officer, in the course of effecting or attempting to effect an arrest, may use physical force, when and to the extent he or she reasonably believes such to be necessary in self-defense, except a deadly physical force may be used for such purposes, only when he or she reasonably believes that the use of deadly physical force is necessary to defend the police officer or another person from what the officer reasonably believes to be the ... imminent use of deadly physical force.”
Here, where the parties’ factual contentions are disputed, you must consider the question of what events actually occurred. You must determine whether plaintiff proved that on September 26, 2009, he was shot unjustifiably or whether plaintiffs conduct during the course of his arrest put defendant in physical danger as the defendant contends.
The question before you is whether the actions of the defendant Keith Rogieh on September 26, 2009, were objectively reasonable, meaning what a reasonably prudent police officer would have done under similar circumstances, in light of the facts and the situation confronting him on that occasion, without regard to his underlying intent or motivation.

Tr. 793:11-795:22.

Having heard these instructions, and after hours of deliberation, the jury returned a verdict explicitly finding that “Rogich used excessive force in discharging the firearm diming the arrest of plaintiff.” Tr. 812:24-813:1. That jury determination may not be disturbed by this Court unless there is “such á complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.” Weather, 474 Fed.Appx. at 822-23.

Considering the evidence in a light most favorable to the plaintiff, the defendant cannot meet this high standard. The jury found, and was entitled to find based on the evidence, that plaintiff did not present a danger to defendant that justified the use of lethal force. As the Circuit held in Weather, “[t]he evidence fully supports the jury’s finding that [plaintiff] was not posing an immediate threat.” Weather, 474 Fed.Appx. at 824.

And this finding by the jury disposes of defendant’s argument that his conduct did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known [as that] inquiry tends to converge with the first in excessive force cases, with the question ultimately being whether, in the particular circumstances faced by the officer, a reasonable officer would believe that the force employed was lawful.” Weather, 474 Fed.Appx. at 824. As in the Weather case, “all of the circumstances which [defendant] point[s] out as evidence that supported [defendant’s use of force were either expressly or implicitly rejected by the jury, whose findings were amply supported by the trial evidence.” Id.

On this motion, though defendant argues that the Court need not (as it cannot) reassess credibility of the witnesses, nearly every argument made by defendant urges the undersigned to do just that. Defendant argues that “Rogich is entitled to, at the very least, qualified immunity when his version of events is credited.” Defs Memo, at 3 (emphasis added). Counsel contends that plaintiff offered “no coherent version of events which a jury could have credited one way or the other,” and characterizes plaintiffs testimony as “inconsistent and unbelievable,” “a mix of fantasy and impossibility,” and “difficult to believe.” Id. at 3-9. And while counsel argues that portions of plaintiffs testimony was “factually impossible,” these contentions are merely thinly-veiled credibility attacks. See, e.g., id. at 5 (plaintiffs “alleged timing of the shooting is impossible to reconcile with Plaintiffs claims about where Officer Rogich was during each shot”). On a Rule 50 motion, the Court is without authority to engage in credibility determinations and these arguments are, therefore, unavailing.

The trial record contains direct and inferential evidence that defendant fired his weapon at the plaintiff from the relative safety of the police SUV and from the sidewalk, and at a time when the plaintiffs car remained immobile. There was, of course, some evidence (primarily in the form of the defendant’s testimony), that the shots were fired in response to a danger presented by the plaintiff. Defendant’s counsel challenged the jury during his summation:

I ask you, was it unreasonable for Officer Rogich to fear for his life when plaintiff nearly ran him over? Was it unreasonable for Officer Rogich to shoot at plaintiff in an attempt to save his own life?
It was not unreasonable. Please don’t believe plaintiffs completely unrealistic and unbelievable claims. You must enter a verdict in favor of the defendant.

Tr. 772:13-21. Clearly, the jury did not share this view, a determination well within its prerogative.

Furthermore, as in the Weather case, “no evidence was presented at trial to suggest that [defendant] made a mistake regarding his legal obligations such that would excuse his actions.” Weather, 474 Fed.Appx. at 824. To the contrary, defendant conceded during his testimony that an officer “can use physical deadly force [only] when you feel your life is threatened or the life of a third party,” and failure to follow this rule could result in criminal prosecution and job termination. Tr. 161:21-163:10. It is clear, in this case, that the jury did not find that Rogich’s life was in jeopardy at the time of the shooting, a determination supported by competent evidence, including the fact that none of the other officers discharged then-weapons during the attempted arrest. As a result, “[a]ny belief that his conduct was lawful would not be reasonable, given the facts- found by the jury.” Weather, 474 Fed.Appx. at 823-24.

CONCLUSION

For all of the reasons set forth above, I find that there is sufficient evidence of record to support the jury’s finding, which undermines defendant’s claim of qualified immunity. As such, the motion for a judgment as a matter of law is DENIED. 
      
      . BSO, comparable to a SWAT team, consists of officers highly trained in tactical matters and use of firearms. Tr. 166:20-24.
     
      
      . Plaintiff’s counsel stated during summation that the operation involved 16 officers, though it is unclear whether there was evidence supporting this specific figure. See Tr. 739:12-14.
     