New York State Court of Claims

New York State Court of Claims

CHAPMAN v. THE STATE OF NEW YORK, #2005-028-008, Claim No. 103903


Synopsis


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.

Case Information

UID:
2005-028-008
Claimant(s):
ARNOLD G. CHAPMAN
Claimant short name:
CHAPMAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103903
Motion number(s):

Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ROBERT H. BALLAN, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Dennis M. Acton, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 1, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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, 1988.[1]
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).[2]

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 the events.

Claimant's account: 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 deleted]"[3] 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 process.[4]
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 cuffed.

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 law.[5]
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 (
see, 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 sped up.

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 left hand.

Defendant's account: 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 toward Claimant.

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,[6] Whitelaw 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[7]
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" (T-245).[8]
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 witness.[9]
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 rim."[10]
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 interaction" (T-339).[11] 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 [1973]). 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 [1992][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 York, 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 York, 268 AD2d 907, lv denied 95 NY2d 758). Relevant considerations include the consistency of a witness's testimony (Davis v State of New
York, supra) 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 [1975], citing Matter of Nowakowski, 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 v Boyd, 252 NY 422, 429 [1930]). 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, 263 AD2d 929 [3d Dept 1999]; Martinez v State of New York, 225 AD2d 877 [3d Dept 1996]).
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
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] 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 New York, 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 accordingly.
[2] 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).
[3] The expletive is set forth in the record.
[4] 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).
[5] Ultimately all of the charges were dismissed when the District Attorney declined to prosecute (T-72).
[6] 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).
[7] 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).
[8] 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."
[9] 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).
[10] 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).
[11] 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.