CHAPMAN v. THE STATE OF NEW YORK, #2005-028-008, Claim No. 103903
The State is liable for excessive use of force and false arrest where, the Court
determines, the Claimant made no resistance to detention by State Police
officers and there was no reasonable basis for placing him under arrest and
taking him into custody for a six hour period.
ARNOLD G. CHAPMAN
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
RICHARD E. SISE
ROBERT H. BALLAN, ESQ.
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Dennis M. Acton, Esq.Assistant Attorney General
August 1, 2005
See also (multicaptioned
This Claim is based on allegations that officers of the New York State Police
used excessive force on Claimant and subjected him to false arrest in connection
with an incident that occurred on October 23,
Trial was limited to the issue of liability.
Claimant provided the following description of the events leading up to the
direct confrontation with the officers, and none of these facts are disputed by
Defendant. In the mid-afternoon of the day in question, Claimant met with two
friends, John Smoke and Harris Arquette, at his home in the Town of Messina.
After conversing for a bit, the three men drove to a store, where one of them
purchased some cigarettes, and then through Helina, New York, toward a small
park at the "CC [Conservation Corps] Dam." They stayed there for a short while
and then got into the car to leave, with Claimant sitting in the right rear seat
of the car (T-23).
They proceeded back towards Claimant's home, traveling on the Brasher
Center/Helina Road. As they approached the Brasher Iron Works, Claimant
noticed a sign indicating that the speed limit changed to 45 miles per hour and
mentioned this to the driver, John Smoke. As they approached the nearby
intersection with Bush Road, Claimant observed a police car parked on the left
side of the road. The car in which he was riding went past the police car and
proceeded down to a curve, traveling at approximately forty or forty-five miles
per hour. The first time Claimant looked back, he did not see the police car
following them. The second time he looked, however, he saw that it was making a
U-turn in the middle of the road, apparently intending to come after them.
As Claimant and his friends approached the intersection with Meyers Road, the
police car came over the hill, "flying over the hill with their sirens and
lights on" (T-28). Although Claimant and Harris Arquette advised the driver to
pull over, saying that they hadn't done anything wrong, John Smoke sped up in an
effort to outrun the police. Claimant testified that he was watching the
speedometer and saw that the car reached 85 miles per hour at one point. In
the Hamlet of Helina, Smoke drove through several stop signs and made a number
of turns, eventually coming to a stop in the driveway of a home belonging to
Charlotte Cole on Conners Road. Smoke stopped the car between the barn and the
house and exited, running for the barn (T-31).
According to Claimant, Smoke did this in order to hide $600 to $800 "vacation
money" that he had on him.
Harris Arquette also got out of the vehicle, walked in front of it, and stood
about fifteen to twenty feet away from the car. Claimant didn't get out
immediately but exited the car just as the police cruiser arrived on the scene.
The cruiser pulled around, he stated, so that it was perpendicular to the barn
and pointed toward the back of the Smoke vehicle.
As indicated above, none of the witnesses disputed the account of events up to
this point. One of the State's witnesses, Trooper (now Investigator) Francis
Whitelaw, testified that he was driving the cruiser on the day in question and,
although he did not observe the Smoke vehicle to be speeding or doing anything
unusual, he complied when the senior officer, Trooper Elvin J. Olson, told him
to make a U-turn and follow the vehicle. As soon as he pulled behind the other
vehicle, it sped up, and the chase began. It concluded in the driveway of the
house on Conners Road.
As to what happened thereafter, however, there is sharp disagreement. It is
simply not possible to reconcile the account given by Claimant with that given
by at least one of the two State Police officers who were direct witnesses to
: According to Claimant, as he got out on the right
side of that car, the officer that he knew to be Trooper Olson "pulled a gun on
us" (T-34) and shouted something like "Freeze you [expletive
and "You're all under arrest"
(T-37). Another trooper, who was subsequently identified as Trooper Whitelaw,
also got out of the cruiser and also pulled out and pointed his handgun.
Claimant then saw Olson holster his gun and run after Smoke, who was behind the
barn by that time.
After a second police car arrived carrying a single officer, Trooper Whitelaw
began to approach Claimant. Claimant testified that he voluntarily put his
hands in the air, behind his head, and clasped his fingers. He then turned
around next to the car and "assumed the position," placing his hands on the top
of the vehicle's roof and spreading his legs (T-38). No one instructed
Claimant to do this, but he decided that it was what he should do because he had
been told, by Olson, that he was under arrest (T-43). When asked how he knew
that was what he was supposed to do, Claimant stated that he was a former law
enforcement officer and had had extensive military training (T-45).
Whitelaw then began to use profanities toward Claimant, telling him to "get
down, get down." Claimant wasn't able to comply with this direction, however,
because he was pinned to the car by Trooper Whitelaw, who "was beating me from
behind between him and the car" (T-39). In the meantime, according to Claimant,
Trooper Fiske got out of his car, grabbed a shotgun, pointed it at Claimant and
Harris Arquette and told them not to move or he would blow their (expletive
deleted) heads off.
Claimant stated that he was concerned for his safety at this
point, because he didn't know what they were going to do and whether he would be
beaten or perhaps even killed.
Claimant testified that Trooper Whitelaw continued his attack, hitting him from
behind with the baton. He then grabbed Claimant's jacket from the front and
spun him around, ripping the jacket in the
Claimant estimated that he was struck by Whitelaw's baton on the back and
shoulders somewhere between eight and fifteen times (T-91, 92). Whitelaw then
shoved Claimant, knocked him to the ground, kicked him, and as Claimant was
lying face down on the ground, "jumped on top of me and took my right hand to,
to cuff it" (T-47). Claimant's left hand was pinned under the left side of his
body, however, and Whitelaw could not get it. He began yelling at Claimant to
give him his hand. Claimant attempted to raise up to free his hand but was
unable to do so. He then told Whitelaw that he couldn't, that his hand was
trapped and he couldn't move it. Trooper Fiske, who had arrived in the second
patrol car, walked over, and Whitelaw said that he needed help teaching Claimant
how to wear the cuffs. Whitelaw then backed off slightly, while Fiske pushed
Claimant over, grabbed his left hand, and bent it towards the palm in a
"submission hold" which cracked the cartilage (T-51).
Claimant testified that after he was cuffed and while he was lying on the
ground in a prone position, Trooper Whitelaw hit him in the head with his baton.
The blow landed on the right side of his head, across the temple, around the ear
and face, and down to his jaw. It made him go numb and "see stars" (T-54). He
was then "rifle-butted" in the left rear of his head and kicked twice in the
left rear of his head by Trooper Fiske. After that, Fiske struck him several
times on his legs with a baton. Claimant said that he lay in the snow,
bleeding, until another officer, Roger Chapin, who had just arrived, came over,
picked him up, and helped him to Chapin's cruiser, which had arrived in the
meantime. According to Claimant, he begged Chapin to just get him out of there,
saying, "They want to kill us. I'll go anywhere with you. Just get me out of
here" (T-63). Once they were in the car, Claimant told Chapin about the
condition of his wrist. Chapin removed the handcuffs, Claimant stated, but
placed them back over his wrists in such a way that it still looked like he was
Claimant testified unequivocally that from the beginning, when Trooper Whitelaw
first began approaching him, he offered no resistance at all. He said that he
was initially facing away from the officer, with his hands on the car, and when
he was thrown to the ground, he used his hands to break his fall. His hands
were never free, in other words, to grab or grapple with Whitelaw. "I was
completely compliant. I didn't resist anything" (T-56).
Claimant was driven by Chapin to the State Police barracks and then, after a
while, to the local hospital. During that ride, Claimant stated, he was not
cuffed and rode in the front passenger seat (T-67). At the hospital, a Miss
Daggett examined his injuries and took notes on his report of the incident.
When asked on cross-examination if he had told the nurse and doctors everything
that had happened to him, Claimant said that he did not: "Because I couldn't
remember it all. I was in a bad state" (T-102). He did, however, tell them
who hit him and what instruments he had been hit with (T-105). A doctor sewed
up Claimant's ear.
Claimant was then driven back to the barracks, again riding in the front right
seat without being secured in any way, but they had to return to the hospital
briefly because additional photographs were required. Upon his final return to
the State Police barracks, Claimant was taken to a different room and charged by
Trooper Whitelaw with resisting arrest, obstruction of governmental
administration, and violation of the open container
Trooper Chapin then took Claimant before a Town Justice where he was arraigned.
Claimant was released without any bail being imposed.
In all, Claimant estimated, about five hours elapsed from the time Trooper
Olson stated that he was under arrest until he was able to leave the State
Police barracks the final time (T-74). Following the brief proceeding in front
of the Town Justice, he arrived home about six hours after he had left. Of the
State Troopers involved in the incident, Claimant stated that he had previously
met Troopers Olson and Fiske and had had some problems with them in the past
(T-110). He had never previously met Trooper Whitelaw or Trooper Chapin.
In addition to calling Claimant to testify, Claimant's counsel read into the
record portions of the testimony of Troopers Olson, Whitelaw and Fiske given at
the previous trial (
, footnote 1). Trooper Olson had testified that as they got out of
the cruiser, he yelled at Whitelaw to "take the back seat passenger" (T-113).
When asked why he had made the decision to take Claimant into custody, Trooper
Olson stated that there had just been a high speed chase and he understood that
Claimant had obstructed Trooper Whitelaw in some fashion. "We didn't really
discuss the matter too much at the scene" (T-116).
Also at the previous trial, Trooper Whitelaw was asked if he had thought
Claimant or his companions was armed and responded, "I had no reason to believe
he was not armed" (T-117). He acknowledged, however, that he did not observe
anything in Claimant's hands as he got out of the car. The decision to arrest
the driver of the vehicle being pursued and to at least detain the others was
initially made while he and Olson were still in their cruiser. The decision was
made solely for their own personal security and safety, in light of the high
speed chase and the fact that he and Trooper Olson didn't know the intention of
the vehicle's occupants (T-121, 178). There was no indication of what they
intended to do, or if they contemplated lodging any charges, if the car had not
With respect to the incident itself, Trooper Whitelaw testified at the earlier
trial that he struck Claimant only once and that it was with his pistol. He
also testified at that time that immediately upon leaving the cruiser, he took
his gun out of the holster and pointed it at Claimant from about fifteen feet
away (T-122). He ordered Claimant to get down and lay on the ground, so that
he could more safely handcuff him. He then approached within two to three feet
of Claimant, still pointing the gun at him. Whitelaw also acknowledged that he
had used the pain compliance technique known as the "bent wrist" on Claimant's
: Investigator Francis Whitelaw was called as a
defense witness in the instant trial as well. He stated that he joined the
State Police in March 1988; graduated from the Academy on October 9, 1988; and,
at the time of the incident in question, was a Probationary Trooper assigned to
work under the guidance of a senior officer, Trooper Olson. He had been
assigned to road patrol duty for only a matter of days, perhaps two weeks at the
most prior to October 23 (T-133).
When the pursuit ended in the driveway of a home on Conners Road, Trooper
Whitelaw left the cruiser behind Trooper Olson and began to run immediately
Whitelaw denied even having his baton with him, testifying that in his haste
to get out of the vehicle and assist his partner, he left it behind (T-139).
He had nothing in his hands, therefore, as he approached Claimant, he began
ordering him to lie down on the ground. Claimant did not comply with the
direction, however, and turned to face the officer. Whitelaw approached closer,
continuing to repeat the command for him to lie down, pointing with his right
arm. It was at this point, according to Whitelaw, that he pulled his revolver
with his left (dominant) hand. Claimant approached Whitelaw, however, and
grabbed his right arm. "My arm was seized. It was twisted down and inward and
I reached up and when I couldn't break free, I struck that subject in the right
temple area with that revolver which made him break his grasp" (T-137, 138). He
reholstered the gun and then "grabbed on to him and . . . took him to the
ground" (T-138). Asked how he was able to take Claimant to the ground, in
light of Claimant's greater size,
recalled grabbing clothing but otherwise could not remember the precise details.
Once Claimant was on the ground, Whitelaw was able to get one handcuff on him,
but he had to wrestle him in an attempt to get the other hand. He said that the
other hand was not pinned beneath Claimant but, instead, that Claimant was
"actively muscling and pulling the arm away to keep me from handcuffing that
arm" (T-140). When Trooper Fiske arrived, Whitelaw told him he needed help
handcuffing the subject, and he then heard Fiske strike Claimant with his baton.
He did not see the blow but knew that it couldn't have been above Claimant's
buttocks because Whitelaw himself would have been hit. He later described the
blow from Fiske as being across the back of Claimant's legs (T-207). After
Fiske delivered the blow, Trooper Whitelaw was able to grab Claimant's left hand
and apply the bent wrist technique
in order to retain control and complete the handcuffing. Whitelaw flatly denied
ever striking Claimant with his baton, kicking him, punching him, or hitting him
in any way other than the one blow with the pistol (T-142).
Whitelaw identified Exhibit B as a collection of the reports and memoranda
developed as a result of the October 23, 1988 incident. These documents
consisted of statements by Trooper Olson, Trooper Fiske, Trooper Chapin and
himself; a "General 84" Investigative Report completed by a Sergeant Station
Commander Stewart C. Papaw; and memoranda from other State Police officials who
were not direct witnesses to the incident (T-145, 146). Whitelaw's affidavit
(Exhibit B-1) contained the following account of his interactions with Claimant:
Writer approached one male subject as he exited the Buick and instructed the
subject (ARNOLD G. CHAPMAN) not to move. CHAPMAN grabbed writer's arm and
attempted to twist it. Writer, attempting to free himself of CHAPMAN's hold,
unsuccessfully, was being overcome and drew his service revolver, striking
CHAPMAN on the right side of the head. Writer holstered his weapon, pulled
CHAPMAN off balance and wrestled him to the ground into a prone position.
Member had to place his body on top of CHAPMAN in order to keep him on the
ground. Writer attempted to handcuff CHAPMAN, who was still struggling and
resisting. Member could only place one handcuff on the right wrist and
struggled to gain control of the other. At this point, writer noticed Tpr.
KEVIN E. FISKE had arrived and came to aid in handcuffing CHAPMAN.
On cross-examination, Whitelaw was pressed for additional details of his
account of the incident. He repeated that he struck Claimant only once, using
his revolver as an impact weapon, and that the blow landed in the region of the
subject's right ear. Although he did not initially see any blood, he did
observe some later on, while Claimant was on the ground (T-165, 166). He
repeated that that was the only blow that was made, by anyone, to Claimant's
head during the entire altercation (T-189). Other than the place on Claimant's
head where he had been struck with the revolver, Whitelaw saw no other signs of
physical injury until later, at the State Police barracks, where he observed
some swelling of Claimant's left wrist (T-213). The witness acknowledged that
he likely tore Claimant's jacket when he grabbed on some clothing to push him
down to the ground. When questioned about a shotgun, he stated that he did not
know who had a shotgun at the scene or, indeed, if anyone had a shotgun in their
possession. Whitelaw acknowledged that this was the first police pursuit in
which he had been involved, that the cruiser he was driving had almost gone off
the road while making one of the corners, and that by the time the chase ended,
his adrenaline was "going" (T-179).
In response to questions from the Court, Whitelaw described Claimant as
initially standing a few feet away from the car that he had just exited, facing
toward Whitelaw (T-199). The officer said that he approached Claimant in a
shuffling type movement, with his gun in his hand but pointed down, by his left
hip (T-200). His right arm was extended out, pointing toward the ground as he
repeatedly directed Claimant to lie down, to get on his belly. It was then that
Claimant seized his right arm with both hands and twisted it downward, toward
the center of Whitelaw's body. Whitelaw concentrated on keeping the gun down
by his left hip, out of reach (T-203).
Whitelaw was questioned on several different occasions about the location of
his gun during the first part of the confrontation. In the statement made
shortly after the event (Exhibit B-1), he stated that he did not draw the gun
until after his arm had been grabbed. At the first trial, he testified that the
gun was pointed at Claimant when Claimant grabbed his arm (T-225). At this
trial, he stated at one point that he had the gun "pointed in his general
direction" (T-224), but in response to other questions, he said that he had it
close to his body and down by his left hip (T-200, 201), so that he could not be
sure whether Claimant had been able to see it (T-203, 225).
Former State Police Trooper Elvin J. Olson, who is now retired, testified that
he became a uniformed road trooper in 1977. His recollection of the event in
question was limited and focused, naturally, on his own actions. He recounted
that he had first subdued the front seat passenger, Harris Arquette, and then
the driver, John Smoke. He recalled seeing Trooper Whitelaw with Claimant but
little more than that (T-239).
Trooper (now Investigator) Kevin Edward Fiske completed his training at the
State Police Academy in 1983. On October 23, 1988, as he was finishing a
complaint at the U.S. Customs Office in Messina, he became aware of the ongoing
pursuit by way of radio transmissions. He estimated that he arrived at the
location where the pursuit ended about one minute behind the main vehicles
(T-244). The first thing he observed was that Trooper Whitelaw was engaged
with one of the subjects: "[T]hey both had a hold of each other. Both of the
subjects were standing up and, in my opinion, a physical struggle was going on"
Trooper Fiske grabbed his baton, turned off the engine, and ran to the location
of that struggle. By the time he got there, no more than ten seconds later,
both men were on the ground and Trooper Whitelaw was telling Claimant to give
him his hand. Fiske also shouted that direction. In Fiske's opinion, "Trooper
Whitelaw was not winning the altercation" (T-245). He described Claimant as
trying to put his knees under himself and push up. Because Claimant was not
complying with the direction to give his other hand to Whitelaw, Fiske struck
him once across the back of his thighs with the baton. After that, Whitelaw
succeeded in completing the handcuffing, and the fight ceased.
When asked on cross-examination where Whitelaw and Claimant were standing with
respect to the Smoke vehicle, he said that it was approximately ten to fifteen
feet away from the car. He did not see Trooper Olson with a shotgun and, when
asked, had no memory of Olson asking him to go to his (Olson's) cruiser and
unload the shotgun that was on the front seat. At the 1989 trial of John
Smoke, however, Fiske had testified that after all of the subjects were subdued,
a crowd started to gather and Olson had asked him to go to the cruiser, which
was standing with both doors open, and unload the shotgun that was on the front
seat (Exhibit 16; T-262). Fiske also could not recall if he had signed out a
shotgun himself on the day in question but he was certain that he did not, at
any time, have a shotgun in his possession outside of a vehicle (T-271).
Defendant called Dr. Michael Baden, a forensic pathologist who works part-time
with the State Police, to testify as an expert
He stated that he had reviewed excerpts of the transcript of the 1997 trial and
photographs taken of Claimant on October 23, 1988 (Exhibits A- 1through A-7);
other photographs taken on October 24, 1988 (Exhibits C-1 through C-7); and
medical records (Exhibits G, H, I, and J). Based on his familiarity with
evidence of physical trauma on bodies, Dr. Baden stated that he was able to
testify with a reasonable degree of medical certainty that the injuries shown on
the photographs, specifically A-2 and C-6, were caused by a single blow to the
subject's thighs with a blunt object consistent with the size and shape of a
police baton (T-292). He described the injury as "typical bruising immediately
under the impact side [with] railroad-like hemorrhage on the
In contrast, the injury shown on Claimant's right ear was not consistent with
impact from a baton because, in his opinion, the injury is too narrow (T-293).
That injury would be consistent with a blow from the barrel portion of a pistol
of the type used by Trooper Whitelaw, a .357 Magnum revolver. The length of
the injury is consistent with the four-inch length of the gun barrel (T-313).
That blow, Dr. Baden stated, came from Claimant's right side.
Referencing the medical records, Dr. Baden stated that he found nothing to
indicate the type of injuries that would have been inflicted by ten to fifteen
strong hard blows with a police baton (T-295). Instead, he found evidence of
only the two impact injuries: the one on the side of his head and the one to the
back of his thighs.
Trooper Richard V. Mamone, a Defensive Tactics Instructor for the New York
State Police since 1990, testified that the term defensive tactics refers to
"what in the military would have been considered hand to hand, interpersonal
He stated that in his
opinion, Officers Whitelaw and Fiske acted appropriately under the State Police
policies and procedures. This assessment was based on the assumption that
Whitelaw was confronted with someone (Claimant) who attempted to block him from
assisting a fellow trooper (Olson). His decision to draw his sidearm was
reasonable, in Mamone's opinion, as was his decision to use that weapon to
strike Claimant. Using the gun as a blunt instrument was a "distraction
technique" that succeeded in knocking Claimant off balance and allowing Whitelaw
to take him to the ground (T-367). Fiske's use of the baton against the back
of Claimant's thighs was also seen as appropriate under State Police policies.
Mamone considered it to be a very effective strike but unlikely to do any damage
because it was to a fleshy part of the body. He noted that it had succeeded in
subduing the subject enough to get him completely handcuffed.
On cross-examination, Mamone was asked if he had seen any inconsistencies in
the statements of the officers that he had reviewed, and he stated that he had
not. Mamone also acknowledged that his assessment of the situation was based,
in part, on the assumption that Trooper Whitelaw had been on his way to assist
Trooper Olson when he had the interaction with Claimant (T-405), and it was
noted that there had been no testimony to that effect at this trial. The
witness then stated, however, that his assessment would be no different if he
were to assume that Whitelaw had instead been moving to detain Claimant (T-410).
He also reiterated that, given the number of people who had been in the vehicle
and the perceptions testified to by Trooper Whitelaw, he believed it had been
appropriate for Whitelaw to pull his revolver if Claimant refused to obey the
order to get to the ground (T-412).
Applicable Law and Discussion
When police officers, and others empowered by governmental entities use force
in carrying out their duties, use more force than is necessary or reasonable
under the circumstances, the cause of action is an intentional tort, for which
the employer may be liable under the theory of respondeat superior (
Jones v State of New York
, 33 NY2d 275, 279 ). To determine
whether use of force was necessary in a specific situation and, if so, whether
the force used was excessive or unreasonable, a Court must examine the
particular factual background and the circumstances confronting the officers or
guards (see e.g. Hudson v McMillian
, 503 US 1, 7 [the core
inquiry in assessing excessive force claims brought against prison officials is
"whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm."]; Lewis v State
of New York
, 223 AD2d 800 [3d Dept 1996]; Quillen v State of New
, 191 AD2d 31 [3d Dept 1993]; Brown v State of New York
, 24 Misc
2d 358 [Ct Cl 1960]).
Often, as in the instant case, the credibility of witnesses will be a critical
factor in these determinations (
Goncalves v State of New York,
1 AD3d 914 [4th Dept 2003]; Davis v
State of New York
, 203 AD2d 234 [2d Dept 1994]). Weighing evidence and
assessing the veracity of conflicting testimony is a task for which there is no
precise or flawless test. This Court sits as the finder of fact and therefore
its responsibilities include deciding witness credibility and resolving factual
disputes (Vizzini v State of New York
, 278 AD2d 562; Colangione v
State of New York
, 187 AD2d 844; see Savio v State of New
, 268 AD2d 907, lv denied
95 NY2d 758).
considerations include the consistency of a witness's testimony (Davis v
State of NewYork
) and his or her demeanor, body
language, and facial expressions (In re Vincent H
., 3 Misc 3d 900 [Fam Ct
2004]). "[T]he appearance, attitude and demeanor of a witness upon being
questioned and while before the court are matters to be taken into consideration
in testing veracity and in determining the weight to be accorded his or her
testimony" (People v Carter
, 37 NY2d 234 , citing Matter of
, 284 App Div 655, 657 [4th Dept 1954]). It has frequently been
said that observation of the witness's demeanor is often the single most
accurate method of determining the truth (People v Carter, supra, citing Boyd
, 252 NY 422, 429 ). As this trial progressed, the Court had an
opportunity to see and hear the witnesses and to assess the credibility of their
starkly differing accounts (see Auger v State of New York
AD2d 929 [3d Dept 1999]; Martinez v State of New York
, 225 AD2d 877 [3d
The one central issue that must be decided in this case is whether Claimant
resisted Whitelaw's lawful orders. Did he, in essence, attack and struggle with
Whitelaw or did he present no resistance and at least attempt to comply with
every direction he was given by the officer? Everything comes down to that
single, critical fact.
The Court is not persuaded that Claimant's recollection of events, insofar as
they involved the actions of others, is accurate in every respect. For example,
the blow to Claimant's head may well have been made with Whitelaw's revolver
rather than his baton, and there was no
credible evidence that Trooper Fiske was holding a shotgun, rather than a
baton, when he joined in the event. On the other hand, on that most critical
and central issue, Claimant's consistent, believable and reasonable assertion
that he offered absolutely no resistance to the State Police officers when they
arrived on the scene was credible and convincing. Claimant does not appear to
be someone who is either rash or illogical. One would have to be both to
needlessly resist the lawful order of an armed officer, particularly when he had
done nothing to violate any law and quite obviously was not the person who had
instigated the high speed chase. Furthermore, it would have required something
more than rashness to behave in the manner described by Trooper Whitelaw:
approaching and attacking a law enforcement officer whose gun was drawn and then
continuing to struggle and resist even after he was on the ground, partially
handcuffed, and reinforcements had arrived. Claimant was not intoxicated; he
was not in possession of any contraband; he had committed no crime for which he
needed to fear prosecution; and he was clearly aware of the legal authority of
the police officers, the superior force that they could employ if they chose to
do so, and their legitimate concern resulting from the high speed chase.
Claimant's description of his perceptions, his intentions, and the actions he
took after exiting the car were rational and believable. If he was not
precisely accurate in all respects about each blow that occurred after he was
subjected to force, that imprecision is certainly understandable.
In contrast, Trooper Whitelaw's description of events during those critical few
minutes, covering both his own actions and Claimant's, was neither credible nor
rational. His varying accounts of when he pulled his service revolver are
inexplicable, as that is a vitally important, and dangerous point in any
confrontation between a police officer and a citizen. It is very difficult for
the Court to believe that even a very new officer would be so reckless as to
carry out the actions Whitelaw described at this trial: pulling his gun on a
suspect and then continuing to walk toward him, allowing himself to get close
enough to be grabbed and pulled into a physical struggle (or, according to
another version, pulling his gun after he was already engaged in a physical
confrontation with Claimant). Such actions are difficult to imagine or credit,
and Whitelaw was clearly uncomfortable, and unconvincing, as he testified
regarding the event. As noted above, it is also difficult to imagine someone in
Claimant's position – someone who is sober, who knows enough of law
enforcement to "assume the position," and who has committed no crime –
being so foolish as to accost an armed officer and grab him, with both hands, on
the side away from the gun. In short, this account of events made no sense,
and Trooper Whitelaw's expression and demeanor when he testified to this part of
the episode suggested that he knew it did not make sense.
By the time Trooper Fiske arrived on the scene, all he saw were two individuals
grappling with one another, which would have been the case whether Claimant
grabbed Whitelaw or, as more likely happened, Whitelaw struck Claimant, grabbed
him from behind and whirled him around. Similarly, Fiske's account of
Claimant's actions while pinned under Whitelaw could be interpreted either as
resistance on Claimant's part or as Claimant's efforts to comply with Whitelaw's
command and free his left hand which was pinned beneath his own body. In other
words, nothing that Fiske observed provides information, one way or the other,
about the critical question that controls this case: whether Claimant offered
any resistance to Trooper Whitelaw or whether, as Claimant testified, the
confrontation was initiated solely by Whitelaw's own actions.
The Court accepts Claimant's assertion that he made no resistance to Trooper
Whitelaw and that he was willing to comply with the officer's direction without
any physical force being employed. That being the case, there was no need for
either officer to exert any physical force,
making all such force excessive in these circumstances. Moreover, there was
no effort to maintain that the officers had any cause to arrest Claimant or that
there was any legitimate basis for the charges against him, as the record
reflects all charges lodged by the State Police against Claimant were dropped by
the District Attorney's Office in Town Court.
Based on the credible evidence presented at trial, the Court holds that the
State of New York is 100% liable to Claimant for injuries he suffered during
this physical confrontation with Troopers Whitelaw and Fiske and for the
six-hour deprivation of liberty that occurred on October 23, 1988. The Chief
Clerk is directed to enter interlocutory judgment on the issue of liability.
The parties shall appear at a conference on September 28, 2005 at 12:30 p.m. at
the Courthouse in Albany, New York at which time the matter will be set down for
trial of damages.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
August 1, 2005
HON. RICHARD E. SISE
Judge of the Court of Claims
Claimant's efforts to prosecute an action in
the Court of Claims has had a long and rather unique history. Claimant and his
wife, Marita Thompson, filed a claim (Claim No. 78191) in 1989, and the matter
was tried. Subsequent to the trial, but before a decision was issued, it was
determined that the claim had been untimely, thus depriving the Court of subject
matter jurisdiction and requiring dismissal of the claim (Chapman v State of
, Ct Cl, February 24, 1998, Bell, J., affd
261 AD2d 814).
Claimant's right to bring an action against the State was resuscitated by a
special act of the Legislature (L 2000, ch 584, §1). The instant claim was
filed on behalf of Claimant, his wife and his two children. A motion by
Defendant to dismiss the claim was granted only with respect to the causes of
action asserted on behalf of Claimant's wife and children, on the ground that
the special act of the Legislature referred only to someone "born on January 21,
1947" (Claimant's birthday) and no one else (Chapman v State of New York
193 Misc 2d 216 [Ct Cl 2002]), therefore the caption has been amended
Also in the back of the car was a brown
paper bag containing a twelve pack of empty Budweiser beer cans. Claimant
stated that he had not drunk any of the beer and, in fact, had not consumed any
alcohol for more than a year (T-24, 25).
The expletive is set forth in the
Claimant testified that his blue denim
"shore coat," marked into evidence as Exhibit 12, was the coat he was wearing
that day, and he pointed out the button holes that were ripped by the force
(T-61, 62). The t-shirt that he was wearing (Exhibit 11) had what Claimant
identified as bloodstains where a small amount of blood dripped on it from his
right ear (T-78).
Ultimately all of the charges were
dismissed when the District Attorney declined to prosecute (T-72).
Trooper Whitelaw testified that he was 5' 9"
and weighed 145 pounds at that time. He described Claimant as taller and
estimated his weight at 180 pounds (T-138).
At the first trial, Trooper Whitelaw had
described the bent wrist technique as a "pain compliance" technique in which the
hand is hyper-extended inward, with the palm or fingertips being pushed toward
the elbow (T-125).
This testimony was generally consistent with
the brief statement contained in an affidavit memorandum authored by Trooper
Fiske on October 27, 1988 (Exhibit B-2). In relevant part, he stated that he
observed "3rd Indian male face to face with Tpr. WHITELAW, with both attempting
to gain control of the other." After parking his patrol car, Fiske ran over to
Whitelaw "who was now struggling on the ground with CHAPMAN subject. Tpr.
WHITELAW had one handcuff on CHAPMAN and CHAPMAN was struggling, kicking and was
attempting to get to his feet."
Although no notice of an expert witness had
been provided, Claimant's counsel acknowledged that he had not served a demand
for such disclosure (T-286).
The railroad-like effect occurs when the
skin is struck with a hard object, squeezing the capillaries on either side to
the point that they rupture and form something that looks like trolley tracks,
parallel lines that go for some distance, as shown in Exhibit A-6. It is
typically found where the force was a hard object like a baton, not from kicks
or punches or falling to the ground (T-297).
In preparing for his testimony, Trooper
Mamone reviewed several documents but all of them were not in evidence. The
Court allowed the affidavit of Trooper Fiske, with the final sentence redacted
as immaterial (Exhibit B-2), and the affidavit of Trooper Whitelaw (Exhibit
B-1). Trooper Mamone's testimony was permitted in that it concerned the
policies and procedures of the New York State Police regarding the apprehension
of suspects and use of force.