On the night of October 22, 1996, two State troopers directed
claimant to pull his car to the side of Starridge Road, Putnam County. After
administering field sobriety tests, claimant was advised that he was under
arrest. Claimant was sprayed twice in the face with pepper spray and the
troopers administered physical force to handcuff claimant. Claimant was
admitted to the hospital the next day with two bruises across his back and arm,
which were each the approximate size of a flashlight. He also suffered a
fractured rib and a punctured lung. He remained hospitalized for a week.
Claimant contends that the troopers used excessive force. The troopers deny
hitting claimant. The trial of this claim was bifurcated and this Decision
pertains solely to the issue of liability.
Claimant, a sales person in his early forties who is married and the father of
two sons, has been employed at Arroway Chevrolet in Katonah for 14 years. After
work on October 22, 1996, at about 8:20 p.m.,
claimant and a co-worker went to the Crossroads Café to eat dinner and
watch the World Series. Claimant, who was 6'4" tall and weighed 195 pounds,
testified that he had a cheeseburger and two pints of beer before driving home.
He proceeded approximately one and a quarter miles and was driving southbound on
Starridge Road, when he noticed flashing lights in his rearview mirror.
Claimant pulled over onto what appeared to be a privately maintained lawn. The
terrain of the shoulder, which is not paved, varies.
New York State Trooper John Hennigan, who was 6'2", 195 pounds and had been a
trooper for two years, approached the driver's side of claimant's car carrying
a 14 to 15 inch flashlight. State Trooper Michael Christy, who was 5'11", 175
to 180 pounds and had been a trooper for almost two years, approached the
passenger side of claimant's car carrying a 10 to 12 inch mag light. Hennigan
testified that he smelled alcohol on claimant's breath and asked claimant about
his knowledge of the speed limit and his food and alcohol intake.
Claimant replied that he had consumed two beers. As requested, claimant exited
his car. Christy then administered field sobriety
The testimony of claimant and the troopers differs significantly.
Claimant testified that he performed all the sobriety tests successfully, except
that he could not recite the letters of the alphabet backwards. Christy denied
asking claimant to recite the letters backwards. Claimant testified that he
blew into the alco-sensor and was advised by Hennigan that he was under arrest.
Hennigan stated that claimant refused to blow into the alco-sensor. Christy
testified that claimant was initially cooperative during the field sobriety
tests, but he refused to take the alco-sensor test and then launched into a
Claimant maintains that he said nothing and did nothing when he was told he was
under arrest; nonetheless, within five seconds, Christy sprayed claimant in the
face with pepper spray. Claimant then lifted his hands to his eyes and asked
what was happening. Claimant stated that, without any provocation, he was
sprayed again within the next 30 seconds. The spray created a burning sensation
and irritated claimant's sinuses and breathing. Claimant then felt a handcuff
on his left wrist and his arm pulled behind his back as he was pushed with great
force. Claimant tripped and landed on the ground. He felt two blows to the
back of his head, as if he had been hit with a fist. Claimant's right arm was
pulled behind his back and he was cuffed. As he lay face down with one of the
troopers on his back, claimant felt two blows to his back and right arm from
what seemed to be a hard object like a flashlight or a bat. He was then pulled
up from the ground and pushed face down onto the hood of his car. Claimant
asked what they were doing and was told that he was in a lot of trouble.
Claimant was placed in the rear of the troopers' car while they waited for a tow
truck to take claimant's car. Claimant's body ached all over, his face was
burning, and he had difficulty breathing.
According to the troopers, claimant was argumentative, condescending,
arrogant, uncooperative and disrespectful. When
claimant was advised that he was under arrest and directed to put his hands
behind his back, he refused and just stood there. Hennigan did not recall
claimant making any verbal threats. Christy repeated that claimant was under
arrest and again directed claimant to put his hands behind his back. Claimant
did not comply. Christy testified that claimant refused to put his hands behind
his back and appeared aggressive, although Christy admitted that claimant did
not do anything physically. Christy testified that he grabbed claimant around
his shoulder to bring him to the hood of his car. Hennigan did not recall
whether any contact was made with the hood of claimant's car. According to
Christy, he and claimant were facing down toward the car when Hennigan came to
assist. The troopers stated that claimant then turned his body and began
flailing his arms with punching motions. At Hennigan's direction, Christy
sprayed claimant in the face with pepper spray, but claimant continued flailing
his arms and grabbed Christy's shirt and tie. Hennigan testified at trial that
he saw claimant rip Christy's tie off his neck; however Hennigan testified at
his examination before trial that he had learned such information from Christy
and not through observation. Christy testified that he fell forward on claimant
and they both dropped to the ground and that Hennigan may have also fallen on
claimant. Christy administered a second burst of pepper spray. Hennigan
estimated that it took a total of five to ten minutes to subdue and handcuff
claimant. Christy could not recall the length of time. Hennigan stated that he
was not armed with a nightstick during the struggle and he did not remember if
he had his flashlight with him or if he had returned it to the patrol car.
Christy did not remember where his flashlight was during the struggle. Both
Hennigan and Christy denied ever striking claimant. Claimant was placed in the
rear of the patrol car and, according to the troopers, claimant continued to be
verbally combative, but he was calm at the barracks.
Claimant testified that at 12:30 a.m., he was transported to the State police
barracks. He did not complain to anyone at the barracks about the troopers'
conduct because he was fearful and did not trust the other troopers. Claimant
registered a .10 blood alcohol count on the Breathalyzer test and was charged
with violations of Vehicle and Traffic Law § 1192.2 (Driving While
Intoxicated); Vehicle and Traffic Law § 1180(d) (Speeding); and Penal Law
§ 205.30 (Resisting Arrest). Shortly after 1:00 a.m. he was released and
went home by taxicab.
Claimant testified that when he arrived home, he felt sore and had trouble
breathing. Janine Wood, claimant's wife, testified that she observed that
claimant was walking slowly, his breathing was labored, and his speech was
normal. In the morning, claimant's wife photographed the bruises on claimant's
back and right triceps (Exs. 10-14). The photographs depict two long bright red
bruises extending from claimant's back onto his right arm. She also
photographed his clothes which had fresh grass stains (Exs. 3-9, 18).
The next day,
when claimant retrieved his car, he noticed several new dents on the hood (Exs.
15-17). That afternoon, claimant was admitted to Northern Westchester Hospital.
Claimant's wife took additional photographs of claimant in the hospital (Exs.
1-2). Claimant remained hospitalized for a week, while he was treated for a
broken rib and a punctured lung.
On November 13, 1996,
claimant appeared in the Town of Southeast Town Court on the charges arising out
of the incident. He pled guilty to a violation of Vehicle and Traffic Law
§ 1192.1 (Driving While Ability Impaired), paid a $30.00 fine and a $25.00
surcharge in satisfaction of the pending charges.
John J. Hogan, an assistant district attorney in Putnam County for 12 years,
testified that in 1996 he was assigned to the Southeast Town Court and handled
800 to 1000 cases a year in that court. Hogan had no specific recollection of
the charges brought against claimant. Hogan testified that it was the standard
policy to offer a
defendant, who had no prior convictions and was charged with Driving While
Intoxicated, a reduced charge of Driving While Ability Impaired. Such plea
bargains were routine, unless a more serious charge, e.g., an assault, was
involved. Hogan testified that, upon review of his file, there was no
indication that a police officer had been the subject of any physical force by
The police are authorized to use force that is objectively reasonable under
the prevailing circumstances; liability will attach, however, when the force
employed is excessive (
, Wester v State of New York
, 247 AD2d 468). As aptly pointed
out by defendant:
[d]etermining whether a police officer wielded excessive
force requires a fact-specific analysis in which an array of factors may be
relevant, including the nature of the officer's intrusion, the severity of the
crime, whether the suspect posed an immediate threat and whether the arrest was
actively resisted. [citations omitted] The court must be cautious not to impose
upon the strenuous and often dangerous circumstances encountered by police on
the streets a standard unduly colored by the calm of the Judge's
(Passino v State of New York
, 175 Misc 2d 733, 736,
260 AD2d 915). Upon listening to the witnesses testify and
observing their demeanor as they did so, the Court finds that claimant's account
of the incident was most credible. Claimant's testimony was forthright and
sincere and his recollection was clear. The troopers, on the other hand,
appeared hesitant and calculating in their testimony and their recollections
While the use of pepper spray has been held reasonable under certain
circumstances, those circumstances were not present in the instant case (
, Passino v State of New York
, cited by defendant, the circumstances were as follows. Claimant
was agitated, had kicked in the door of the State police barracks, and defiantly
placed his hands in his pockets when he was advised that he had to be
handcuffed. The trooper twice asked claimant to remove his hands before the
trooper touched claimant's elbow in an unsuccessful attempt to make claimant
comply. The trooper then showed claimant the pepper spray and warned that
claimant's uncooperative behavior would result in its use. The trooper made
three more verbal requests for compliance before resorting to the pepper
In contrast to the
case, Christy's own testimony was that claimant was cooperative
and complied with all field sobriety tests until he was asked to blow into the
alco-sensor. Christy's testimony that claimant appeared aggressive, even though
he did not do anything physical, is not convincing. It is also noted that
Hennigan testified that he did not recall claimant making any verbal threats.
The Court is mindful that police stops pose a highly dangerous risk to officers
and, in the analysis of the encounter, the Court must consider the situation as
it was perceived by the officers when the incident was unfolding. With that in
mind, the Court carefully observed the size and demeanor of the two troopers in
comparison to claimant. The troopers' testimony that claimant was initially
cooperative and then suddenly launched into a tirade, began flailing his arms,
and that a violent struggle ensued, was not believable. It is also beyond
belief that, given that claimant was twice sprayed in the face, it took the
troopers five to ten minutes to subdue claimant. Among other things detracting
from the troopers' credibility, was the photographic evidence of the two bruises
on claimant's back and arm (Exs. 10-14) coupled with the troopers' denial that
they ever struck claimant. While the troopers' testimony established that they
had approached claimant's car, each carrying a long flashlight, neither trooper
could recall whether they possessed their flashlights during the alleged
struggle with claimant. The troopers flat denial of striking claimant was
belied by the photographic evidence depicting two similarly shaped bruises
across claimant's back and arm which were each the approximate size of the
This case is unlike
Higgins v City of Oneonta
, 208 AD2d 1067, upon which defendant relies.
, the plaintiff had been dismissed from the police force
following a disciplinary hearing, had a known long standing hostility toward
police, had made verbal threats and had attempted to escape from police custody.
In dismissing the claim, the Court noted that plaintiff sought no medical
treatment and alleged only that he suffered "red marks" on his back and neck
at 1070). The Court concluded, "[i]n light of defendants' belief
that plaintiff was dangerous and given the absence of visible injuries, we
concur with Supreme Court's finding that plaintiff's excessive force claim lacks
at 1070-71). In the instant case, claimant was not known to
have any hostility toward police; and did not make any verbal threats. Claimant
also suffered more than just red marks and was hospitalized for one week where
he was treated for a broken rib and a punctured lung.
In sum, the Court finds that the troopers, who had been on the force for
approximately two years, acted overly aggressive and used excessive force
, Arnold v State of New York
, 108 AD2d
Accordingly, defendant is 100 percent liable.
Upon filing of this Decision, the Court will set the matter down for a trial
on the issue of damages as soon as practicable.
All motions not heretofore ruled upon are DENIED.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.