Opinion
97 Civ. 4221 (MGC).
June 21, 2001.
KEVIN EUGENE BANTUM, Plaintiff Pro Se, Greene Correctional Facility Coxsackie, New York.
Michael D. Hess, Corporation Counsel of the City of New York New York, NY., Attorney for Defendants, By: Adam G. Kurtz Assistant Corporation Counsel
OPINION
Pro se plaintiff Kevin Eugene Bantum sues New York City Police Officer Kenneth Winkler and the City of New York alleging the use of excessive force in violation of 42 U.S.C. § 1983 during the arrest of plaintiff and his accomplice for armed robbery and criminal possession of a weapon. Pursuant to Fed.R.Civ.P. 56(b), defendants have moved for summary judgment on the grounds that Officer Winkler is entitled to qualified immunity and that there is no evidence to support a claim of municipal liability against the City. For the following reasons, defendants' motion for summary judgment is granted.
BACKGROUND
On September 24, 1994, plaintiff and an accomplice, Maurice A. Goode, robbed the McKay Drug Store in New York City at gunpoint. Following the robbery, the two suspects fled to a nearby record store and hid in a loft in a storage room of the record store. Unable to enter the locked storage room, Police Officer Edward Carlino contacted the New York City Police Department Emergency Services Unit ("ESU"). Upon their arrival, the ESU officers, including Winkler, were informed by other officers and witnesses at the scene that the two suspects were heavily armed and equipped with a bulletproof vest. Winkler, with assistance from ESU Officer William Lutz, broke down the storage room door and found it empty except for a ladder leading up to the loft area. Winkler climbed the ladder. Winkler states that after climbing several rungs of the ladder, he saw two pairs of feet and immediately backed down the ladder. Plaintiff contends that Winkler made a hand gesture at him to "stay put," and that plaintiff complied with that instruction before Winkler retreated. After informing the other officers that the suspects were in the loft area, Winkler, as the senior officer on the scene, decided to use a "distraction device" to draw the suspects from the loft and apprehend them. Immediately after the device was detonated, the suspects descended from the loft and were arrested. Although plaintiff did not have any noticeable injuries at the time of his arrest, plaintiff claims that the use of the distraction device caused him to suffer a broken eardrum and emotional trauma.
A distraction device is a small round cylinder that emits a bright flash and a loud bang. The device is used to startle and temporarily blind a person so that the ESU officers will have a ten-to-fifteen-second advantage in subduing a person without gunfire. See Winkler Decl. at ¶¶ 10, 11.
An UZI pistol, a .22 caliber pistol, a bulletproof vest, and approximately $4,000 were recovered from the loft. Plaintiff was charged with robbery in the first degree and criminal possession of a weapon. On October 20, 1994, plaintiff pleaded guilty to first degree robbery, and on December 15, 1994, plaintiff was sentenced to six to twelve years in state prison.
DISCUSSION
Standard for Summary Judgment
A motion for summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The judge's role in summary judgment is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In deciding whether a genuine issue exists, a court must "examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." In re Chateaugay Corp., 10 F.3d 944, 957 (2d Cir. 1993). Nonetheless, "Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
Plaintiff's Claim against Winkler
Plaintiff claims that Winkler's use of a distraction device constituted "excessive force" in violation of 42 U.S.C. § 1983. An excessive force claim in the context of an arrest invokes the Fourth Amendment's protection against unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394 (1989). See U.S. Const. Amend. IV (stating that people shall "be secure in their persons. . .against unreasonable. . .seizures"). Winkler has asserted the defense of qualified immunity. The qualified immunity defense is generally available to government officials performing discretionary functions, shielding them from "liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Police officers are entitled to qualified immunity if "(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996). See also Oliveira v. Mayer, 23 F.3d 642, 648 (2d Cir. 1994); Sacco v. Pataki, 114 F. Supp. 2 d 264, 269 (S.D.N.Y. 2000); Goode v. Police Officer Winkler, 1999 WL 1067959, at *4 (S.D.N.Y. Nov. 23, 1999).
The right to be free from excessive force is clearly established. See, e.g., Green v. Montgomery, 219 F.3d 52, 58 (2d Cir. 2000); Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999); Salim, 93 F.3d at 91. Accordingly, Winkler can only invoke the defense of qualified immunity if "it [was] objectively reasonable for [him] to believe that [his] conduct did not violate the Fourth Amendment." Thomas, 165 F.3d at 143. "The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation."Graham, 490 U.S. at 396-97. In particular, "the objective reasonableness test is met — and the defendant is entitled to immunity — if `officers of reasonable competence could disagree' on the legality of the defendant's actions. . . . An officer's actions are objectively unreasonable when no officer of reasonable competence could have made the same choice in similar circumstances." Lennon v. Miller, 66 F.3d 416, 420-21 (2d Cir. 1995) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The test requires an analysis of a variety of factors including "the crime committed, its severity, the threat of danger to the officer and society, and whether the suspect is resisting or attempting to evade arrest." Thomas, 165 F.3d at 143. See also Goode, 1999 WL 1067959, at * 5.
Winkler's decision to use the distraction device in this case was not a decision that no officer of reasonable competence would have made in similar circumstances. When Winkler arrived at the record store, he was informed that plaintiff and an accomplice had just robbed a drug store, were heavily armed and equipped with a bulletproof vest and were seeking to evade arrest by hiding in the loft. Moreover, the two suspects were aware of the officers' presence in the storage room of the record store and held a tactical advantage over the officers by virtue of their elevated and concealed position in the loft. In those circumstances, Winkler's use of the distraction device to help effectuate a non-violent apprehension of the suspects was objectively reasonable. Accordingly, based on plaintiff's version of the facts, Winkler is entitled to qualified immunity.
Plaintiff's Claim against the City of New York
A municipality may not be held liable under 42 U.S.C. § 1983 on a theory of respondeat superior. Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 694 (1978). Under Monell, a municipality may be liable under § 1983 only if the conduct that allegedly caused the constitutional deprivation was undertaken pursuant to:
a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers . . . [or] pursuant to governmental "custom" even though such custom has not received formal approval through the body's official decisionmaking channels.Id. at 690-91. Although plaintiff need not identify an explicit rule to establish the existence of such a custom or policy and its existence may be proven through circumstantial proof, "a single incident alleged in a complaint" is not sufficient to establish the existence of such a custom or policy. Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). Other than conclusory allegations of racial profiling and police brutality, plaintiff has proffered no evidence demonstrating the existence of a municipal policy. Moreover, plaintiff has failed to establish "a direct causal link between a municipal policy or custom and the alleged constitutional deprivation." City of Canton v. Harris, 489 U.S. 378, 385 (1989). Accordingly, plaintiff cannot establish his claim against the City.
CONCLUSION
For the foregoing reasons, defendants' motion for summary judgment is granted and the complaint is dismissed.
SO ORDERED.