New York State Court of Claims

New York State Court of Claims

RANDALL v. STATE OF NEW YORK, #2006-018-535, Claim No. 100522


The Claimant has failed to meet his burden of proof to establish that the force used by the officers was excessive. The claim is hereby DISMISSED

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
By: Stephen L. Lockwood, Esquire B. Brooks Benson, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 20, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This is an excessive force case[1] for which Claimant[2] seeks damages. Claimant alleges that on October 24, 1998, two Environmental Conservation Officers (hereinafter ECOs), without just cause and in the course of their employment with the State, caused injury to Claimant, Ronald Randall.

Approximately two weeks before October 24, 1998, the two ECOs, Officer David Clarke and Lt. William VanSlyke, were patrolling the Dairy Hill Road area before the opening of deer season, and after turning left down Mexico Road they passed Claimant’s house. Mexico Road is in the Town of Salisbury. It is a dirt road until approximately 200 yards past Claimant’s house and garage, when the road gradually becomes less distinct turning into a trail. Officer Clarke drove down the trail, turned the jeep around and began to proceed back toward Dairy Hill Road when Claimant came out to speak to the officers. Claimant spoke with Lt. VanSlyke at the passenger’s side window. By all accounts, the conversation was brief and cordial, although Claimant and the two officers recalled certain specifics quite differently. Lt. VanSlyke testified that the officers drove down Mexico Road to investigate the removal of a cable and posted sign just beyond Claimant’s property and that Claimant told them that his Uncle Art was a deer “jacker” and requested that they keep an eye on him. Lt. VanSlyke said he asked Claimant about the cable and posted sign, and Claimant responded that the Town had him take it down because it wasn’t his property. Claimant testified that the officer inquired as to whether he had seen any hunters on his property, which he had not. Claimant also testified that Officer Clarke got out of the vehicle and walked over and began smelling him. Claimant was unsure what to make of Officer Clarke’s actions so he told him that he was disabled and on numerous medications. Both officers deny that either one of them got out of the vehicle or that Claimant told them he was disabled. Officer Clarke testified that there was nothing abnormal about Claimant’s speech or behavior that day, although at trial Claimant spoke very slowly and stuttered.

Two weeks later, on Saturday, October 24, 1998, Claimant’s 10-year-old nephew, Mark Jodway, was visiting and was out with Claimant’s 15-year-old son, Ryan Randall, riding an ATV. Claimant, who had been having trouble sleeping, had finally fallen asleep on the couch when his two older nephews, Jason and David Randall, came to his home, awakening him. Jason and David requested that Claimant drive them to Black Creek Road to pick up their vehicles; they had arrived on an ATV. Claimant testified that Black Creek Road was approximately eight miles away, while at trial Officer Clarke estimated it was only a couple of miles. Claimant, Jason, and David all got into Claimant’s truck. When they arrived at Black Creek Road, they drove by Jason’s car and saw two ECOs by it. Claimant dropped David off at his vehicle and then turned around and proceeded to Jason’s car approximately 100-150 yards away. Claimant parked next to the ECOs’ vehicle and went over to Jason’s car. The officers asked to look in Jason’s trunk because Lt. VanSlyke had spotted some blood on the vehicle. Jason opened the trunk where he had a gun. The officers checked to see if it was loaded, which it wasn’t, so they closed the trunk and Claimant testified they left quickly.

At this time in the series of events, Officer Clarke recalled that as he and Lt. VanSlyke were heading up Black Creek Road, toward Dairy Hill Road that day, they saw two men near a car and two other men on an ATV, without helmets, both with long guns. Officer Clarke testified that it is a violation to have two riders on an ATV and to ride without helmets. As the officers’ vehicle approached, the ATV moved directly toward the jeep. Officer Clarke activated his lights in an attempt to stop them. Officer Clarke had to stop his vehicle to avoid hitting the ATV that swerved and headed into the woods on a trail which the jeep could not navigate. Officer Clarke said he did not get a description of the people on the ATV. He parked the jeep across the road from the parked car, and he and Lt. VanSlyke went and spoke with the two men who were standing near the car. In approaching these men, Lt. VanSlyke noticed blood on the trunk. These men told the officers that they did not own the car. At that time, the officers noticed another man in the woods. He did not have a hunting license, so Officer Clarke took him across the road to the jeep to issue him a citation. Then, a blue pickup truck being driven by the Claimant arrived with Jason Randall, the owner of the parked car. Officer Clarke testified on direct that he did not speak to Claimant or Jason Randall at that time. On cross-examination, he testified that he remembered Lt VanSlyke asking Jason Randall’s permission to look in his trunk despite his direct testimony placing him on the other side of the road issuing an appearance ticket.

After Officer Clarke finished issuing the ticket to the unidentified man, he testified that Lt. VanSlyke came over to the jeep and indicated that the ATV may be in the Mexico Road area because the trail on which it went down ultimately ended at or near Mexico Road. The officers left Black Creek Road and drove to Mexico Road. Officer Clarke testified that they did not hastily leave Black Creek Road, and he referred to the incident with the ATV as “a very insignificant, minor event.”[3] On cross-examination, when asked why they went in search of the ATV on Mexico Road, Officer Clarke said Lt. VanSlyke believed Claimant had driven one of the ATV riders to Black Creek Road. The narrative report,[4] written by Lt. VanSlyke describing the incident, which Officer Clarke identified and regarding which he testified having assisted in its compilation, says that “[co]incidentally, Jason Randall perfectly fit the description of the passenger on the fleeing ATV...”[5] Officer Clarke said he did not get a description of the ATV riders and indicated it must have been Lt. VanSlyke’s observations of the riders. He did not recall the lieutenant saying such a thing on Black Creek Road. Lt. VanSlyke testified at trial that he did not get a good look at the riders of the ATV that day.

When the officers got to Mexico Road, they stopped at Claimant’s residence because they saw two ATVs parked in the yard. They got out of their vehicle to see if the engines were still warm. Although Officer Clarke could not remember if he knocked on the door or if Mrs. Randall was on the porch when they arrived, he said they asked her permission to check the ATVs. The engines were cool. Then they heard an ATV further down Mexico Road. Mrs. Randall said it was probably her son riding on their property behind the house. The officers decided to look further down Mexico Road for the errant ATV.

Mrs. Randall testified at trial that she did not recall the officers asking permission to check an ATV in the yard. She testified that the officers went right over to the ATV and Lt VanSlyke said “This one is hot.” She said Officer Clarke also looked into their garage. When she heard an ATV behind the house she told the officers it was her son and a friend riding on their property. She claims they asked if her husband drove a blue pickup truck, which she confirmed. She testified the officers then returned to their jeep and traveled further down Mexico Road at a high rate of speed.

According to Officer Clarke, they drove down Mexico Road at 5 mph and encountered an ATV on their left, a quarter-mile down the road. It backed up off the road and stopped when the driver saw the jeep. Two boys were on the ATV, each with some type of firearm. Neither wore a helmet. The officers got out of the jeep and went to speak with the boys. Lt. VanSlyke did most of the talking. Officer Clarke testified that Lt. VanSlyke asked what they were doing and one of the boys said they were shooting birds. Officer Clarke could not remember the boys’ names, but he did recall that one of them was Claimant’s son. He judged the older boy’s age to be 10 - 12 years. Lt VanSlyke indicated that he asked Ryan how old he was and was told 14. Lt. VanSlyke told the boys that it was illegal to be hunting without a license. The guns the boys had were loaded, one was a BB gun and one a pellet gun according to Lt. VanSlyke, who explained to them that it was illegal to carry a loaded firearm on an ATV. Lt. VanSlyke asked the boys if the woman at the house down the road was the mother of one of them. One of the boys acknowledged that she was his mother. The officers took the guns and told the boys that they would return them to Mrs. Randall and speak to her about the legality of the situation. Lt. VanSlyke told the boys to go home.

Officer Clarke put the guns in the back of his jeep. Lt. VanSlyke couldn’t recall at trial who put the guns in the jeep. Lt. VanSlyke was still near the boys as he began heading back to the jeep when he told Officer Clarke to watch out. Officer Clarke said he looked up and saw a blue pickup truck coming down Mexico Road at a high rate of speed, fishtailing. Officer Clark began walking along the side of the trail toward the vehicle he recognized as Claimant’s, planning to talk with him about the guns. Claimant stopped his truck after passing Officer Clarke, just short of the ECOs’ jeep by a couple of feet. Claimant got out, leaving the truck door open, and Lt. VanSlyke recalled that the engine was also left running. After the truck stopped, Officer Clarke was behind the truck on the north side of the road. Lt. VanSlyke was walking west, on the same side, and when the truck stopped he was about at its front fender.

According to Officer Clarke, Claimant got out of the truck and screamed, “Get the f_ _ _ off my property.” Officer Clarke said to Claimant, “Ron, it’s Conservation Officer Dave Clarke,” and Claimant responded, “I don’t give a f _ __ _ who you are, you’re dead, you’re f _ _ _ ing dead.” Claimant was very loud and angry and kept repeating himself. Claimant started walking toward Officer Clarke who testified that he believed Claimant was going to hit him. Officer Clarke told Claimant to stop or he would spray him. Officer Clarke noted that Claimant was carrying a hunting knife on his belt. The officer backed up a few feet as Claimant moved toward him, and he noticed Claimant was raising his right arm and making a fist. Officer Clarke again told Claimant to stop, and when he didn’t, the officer sprayed his neck and face with about a one-second burst of pepper spray. Claimant went back a couple of feet and yelled that it burned. Lt. VanSlyke did not recall that the pepper spray stopped Claimant’s advance. Claimant also asked what he had been sprayed with and then yelled, “Now you’re dead. You’re really dead. You’re f_ _ _ ing dead. I am going to kill you,” while approaching Officer Clarke. Lt. VanSlyke recalled that Officer Clarke told Claimant to get down and that he was under arrest. Officer Clarke sprayed Claimant again. ECO Clarke said Claimant never put his hands near his face but kept them in fists and threatened to kill him, although after being sprayed, Claimant stopped and moved back. Officer Clarke told Claimant that he was under arrest “for obstructing” and to get on the ground. The officer testified that he had no intention of arresting Claimant until Claimant continued to aggressively advance toward him. The narrative report indicates Officer Clarke told Claimant he was under arrest between the first and second pepper spray. Officer Clarke took Claimant’s left arm to handcuff him. Lt. VanSlyke was now on Claimant’s right. Officer Clarke said that Claimant then swung at Lt. VanSlyke who, in avoiding the punch, fell down. With Officer Clarke in control of Claimant’s left arm, Lt. VanSlyke, having grabbed Claimant’s right arm and shirt, pulled Claimant, and as a result, all three men fell to the ground. Lt. VanSlyke was on the bottom with his leg pinned under Claimant who was face down. In the narrative report, Lt. VanSlyke states that before he fell to the ground he had pulled out his baton but grounded it to assist Officer Clarke who had grabbed Claimant’s left arm to handcuff him. The narrative report indicates that Claimant pulled his left arm away from Officer Clarke to swing at Lt. VanSlyke, causing the lieutenant to then fall to the ground. Around this time in the narrative report, Lt. VanSlyke also indicates that Claimant began yelling “Go call dad-call Donnie, hurry, tell them I need help,”[6] which the lieutenant assumed was intended for the boys. This seems odd, however, given that earlier in the narrative report when Claimant’s truck was traveling down Mexico Road toward the officers’ jeep, Lt. VanSlyke noted that the boys had moved their ATV out of the lot from where they had come and were out of sight.

Officer Clarke testified that Claimant was resisting arrest by trying to pull away from the handcuffs. Officer Clarke secured one handcuff on Claimant’s left wrist and was trying to pull his left hand behind him while Lt. VanSlyke was trying to get his right arm. Lt. VanSlyke yelled to Officer Clarke that Claimant was trying to grab his gun. Officer Clarke held Claimant’s left arm, and as he was trying to cuff Claimant with his right hand, he fell forward placing his left hand on the ground in front of Claimant’s head. Officer Clarke said Claimant then bit his hand and it bled. As Officer Clarke tried to secure the handcuffs, which he held in his right hand, Lt. VanSlyke got control of Claimant’s right hand and got one cuff of his handcuffs on Claimant’s right arm. According to Officer Clarke, Claimant then grabbed the officer’s handcuffs with his right hand and pinched the officer’s fingers in them. Lt. VanSlyke got his handcuffs connected to Officer Clarke’s cuffs on his left and eventually they were successful in getting Claimant under control. The cuffs were double-locked to prevent them from tightening. Officer Clarke then testified Lt. VanSlyke went and called for “[backup].” After the scuffle, Officer Clarke assisted Claimant to his feet, put Claimant in the backseat of the jeep and wiped Claimant’s eyes and nose, at Claimant’s request, which were runny from the pepper spray. Lt. VanSlyke moved Claimant’s vehicle. According to Officer Clarke, Claimant said nothing else. The officers drove back toward Dairy Hill Road stopping at Claimant’s residence where Lt. VanSlyke told Mrs. Randall, who was outside, that they were going to Little Falls Hospital. They were taking Claimant to the hospital for decontamination and to obtain treatment for Officer Clarke’s bite injury. Lt. VanSlyke also testified he injured his knee when he fell. The officers met up with the two “[backup]” ECOs as they drove onto Dairy Hill Road on their way to Little Falls Hospital.

From Claimant’s position, he testified that after dropping Jason off at his vehicle on Black Creek Road, he drove home which took approximately 15 minutes. Upon his arrival, his wife told him that two ECOs had driven down behind their house on Mexico Road to investigate after hearing an ATV, despite Mrs. Randall indicating it was their son riding on their property. Claimant recalled Mrs. Randall telling him the officers’ jeep quickly sped away kicking up dirt. Claimant then went down Mexico Road after them.

Claimant testified he went to check on the boys. He got about 150 yards from his house, where he saw the boys and the officers. At his deposition, Claimant testified it was 30 yards from his house. He stopped his truck about 20 feet from the officers’ jeep, got out and closed the door. The officers were talking to the boys. Claimant asked the officers what they were doing and told them to leave his kids alone. When neither ECO answered, Claimant told them to get the “f” off his property. He wasn’t sure whether he said the whole “f” word at that time. ECO Clarke came running at him to his left and Lt. VanSlyke approached Claimant on his right. ECO Clarke yelled, “You can’t talk to an officer that way. You’re under arrest.” When Claimant asked on what charge, ECO Clarke sprayed him with pepper spray. The officers didn’t really speak to Claimant before he was sprayed with the pepper spray, and neither officer told Claimant why he was being arrested. Claimant recalled only being pepper sprayed once, not twice, as the officers testified.

Claimant testified that he thinks one of the officers tripped him and they all fell to the ground. Claimant couldn’t see because of the pepper spray, and he fell face-first but he could feel the officers on top of him. Lt VanSlyke took Claimant’s left arm and pulled it behind Claimant’s back. Claimant put his right arm under him and told the officers he was disabled and couldn’t put his right arm behind his back because it would tear it out again. Claimant could feel a knee or foot on his neck. He started calling for his wife. He told his son to go and get his mother. He testified at one point, on direct, that he could not tell whether his son followed his instructions. However, earlier in his testimony, he said that the boys had gone to get his wife.

The officers, according to Claimant, continued to try to get his right arm behind his back until finally, because of the pain in his right shoulder, Claimant stopped struggling and let his arm go back so that he could be handcuffed. He said he told the officers repeatedly about his pre-existing injury. Claimant testified that in response to telling them he was disabled, Officer Clarke said, “Well act it then.” According to Claimant, the ECOs then picked him up by the handcuffs and put him in their jeep. He screamed with pain. He asked the officers to change the handcuffs to the front but they refused. In the jeep, Claimant again requested that he be handcuffed in front. Claimant continued to plead with them and he testified that before the jeep started moving, one of the officers said, “Keep it up and we’ll pull over and beat the sh_ _ out of you.” The officers denied making such a threat. They then took Claimant to Little Falls Hospital, after stopping to tell Mrs. Randall where they were going. Mrs. Randall testified that the boys came and told her about Claimant’s arrest and she saw Claimant in the jeep, his face and neck red.

Officer Clarke testified that Claimant never said he was disabled; nor did he say that he could not put his right arm behind his back. Officer Clarke also testified that Claimant did not complain about being in pain or about the way he was cuffed. Officer Clarke said it was department policy to cuff prisoners behind their backs.

Claimant’s son, Ryan Randall, and his nephew, Mark Jodway, also testified and their representations were fairly consistent with each other and with Claimant’s recollection of that day. Ryan Randall was 15 years old and Mark Jodway was 10 years old at the time. They both testified that they were out riding an ATV and shooting at cans, not birds, with BB guns that Saturday afternoon. The boys were riding the ATV generally west, on a wooded trail by Claimant’s house, when they reached a point where the trail intersected with Mexico Road, and they encountered a green jeep marked with the Department of Environmental Conservation logo and topped by red emergency lights.[7] Ryan, the driver, stopped the ATV[8] and backed up about 15 feet to avoid the jeep.[9] He stopped and turned off the ignition. Two ECOs exited the jeep and walked over to the boys asking what they were doing. Both Ryan and Mark testified that the ECOs confiscated their BB guns but never told them why or what would happen to the guns. Ryan recalled that one of the officers said they needed to go speak with his mother. Mark did not remember that. Both witnesses said they were never told why the guns were being taken or what would happen to the guns. Neither of the boys testified about what happened to the guns.

Mark Jodway testified that Lt. William VanSlyke said, “Dave, here comes one we can take to jail,” as Claimant drove down the road. Ryan Randall did not testify to that statement.

Ryan testified that his father was angry when he got out of his truck that day. Mark said he did not look or act angry but spoke loudly. According to both witnesses, Claimant never moved toward the officers, rather the officers jogged the approximately 25 feet over to Claimant - one on each side of him. Ryan said one of the officers, David Clarke, reached for his belt and sprayed Claimant in the face with something. Claimant reached for his face and the officers started trying to handcuff him by pulling his arms behind him. Claimant tried to tell the ECOs that his right arm and shoulder had been injured so he could not put it behind his back, and Mark heard an officer say, “Then why don’t you act like it.” There was a struggle, and Ryan testified the officers tripped Claimant so he fell face-first on the ground. Claimant kept telling the officers that his arm would not go behind his back. One officer was on Claimant’s back and the other had his knee on Claimant’s neck. Claimant called to his wife, and then told Ryan to go and get his mother. One of the officers told him not to go. When Claimant instructed Ryan a second time to get his mother, Ryan started the ATV and went to his house to get his mother.

Both Ryan and Mark denied that Claimant swung or otherwise tried to hit or threaten the officers. Claimant denied biting, hitting, or threatening the officers. Claimant was charged with obstructing governmental administration in the second degree, assault in the second degree, and resisting arrest.1[0] Claimant acknowledged that he pled guilty to resisting arrest and assault in the third degree in connection with this incident. He said he did so because if he went to jail, he would lose his social security disability benefits and his family would suffer. The criminal complaints which were admitted into evidence1[1] contain no factual allegations to support the charges. No transcript of Claimant’s plea allocution was introduced to assist the Court in determining exactly what acts Claimant admitted to committing.

At the time of the scuffle, Claimant had a rifle in his truck and a hunting knife with approximately a 6"- 7" blade on his belt. Claimant also acknowledged that he was on a number of medications that day, including Ambien for a sleep-aid, and Paxil. He was also under the care of a psychiatrist for pain and depression.

Officer Clarke was a new Environmental Conservation Officer in 1998, having just begun his employment that year. He attended a training academy for 26 weeks, during which he was taught defensive tactics such as using pepper spray (officially called oleo capsicum), a baton, and handcuffing procedures. He explained that he was taught how to avoid using physical force whenever possible but, if needed, to use force in accordance with the force being used against him. According to Officer Clarke, the use of pepper spray is the lowest level of force to control the situation, and should be used only when necessary to stop escalating aggressive behavior. It can be used against a combative person, to take a person into custody, or to keep officers or third parties from being harmed. Pepper spray is applied by drawing the container out of a holster on the officer’s belt. Officer Clarke, being right-handed, carried the pepper spray on his left. He would extend his left arm and spray a 2 - 3 second burst to the combatant’s neck up to the forehead. According to Officer Clarke, a refresher course was given every year which included defensive tactics. Lt VanSlyke testified about the use of force-continuum to control an escalating situation which begins with verbal commands, moves to the use of pepper spray, hand weapons, such as a baton, and then firearms.

Overall, Lt. VanSlyke testified fairly consistently with Officer Clarke regarding the events of October 24, 1998. Although Lt. VanSlyke testified Claimant swung at him with his left hand after being pepper-sprayed twice, Officer Clarke testified he had control of Claimant’s left arm at that same time. Lt. VanSlyke included in his report1[2] that Claimant seemed to be having trouble seeing as a result of the pepper spray and that he rubbed his eyes. Neither officer could recall at trial that Claimant rubbed his eyes or face after being sprayed.
The Law
A police officer is permitted to use force reasonably necessary to preserve peace and maintain order in the performance of his duties (Kourtalis v City of New York, 191 AD2d 480; 6A NY Jur 2d, Assault-Civil Aspects at 168). To determine whether force was necessary or excessive under the circumstances, requires an analysis of the facts of the particular case, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he [or she] is actively resisting arrest or attempting to evade arrest by flight” (Graham v Connor, 490 US 386, 396; see Vizzari v Hernandez, 1 AD3d 431). This analysis must be done under the “objective reasonableness” standard of the Fourth Amendment (U.S. Constitution 4th Amend; Graham v Connor, 490 US at 397). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” (Graham v Connor, 490 US at 396). Where police officers,1[3] or others who are entitled to use physical force in fulfilling their duties, use more force than is necessary under the circumstances, it is an intentional tort for which an employer may be held liable under the theory of respondeat superior (Jones v State of New York, 33 NY2d 275).

In this type of claim, the credibility of the witnesses is critical (Goncalves v State of New York, 1 AD3d 914). It is the job of the fact finder at trial to determine the facts based upon the evidence presented. Where that evidence is conflicting or inconsistent, that job requires a careful analysis of each witness’s version of events and his or her demeanor, body language, and facial expressions while testifying (see Vizzini v State of New York, 278 AD2d 562; Colangione v State of New York, 187 AD2d 844; Davis v State of New York, 203 AD2d 234; In re Vincent H., 3 Misc 3d 900; Chapman v State of New York, Ct Cl, Sise, P. J., signed August 1, 2005, Cl. No. 103903, UID # 2005-028-008).
All of the witnesses who testified have an interest in the outcome of this case. Claimant and his family admitted that they had discussed the events of the day on numerous occasions. Officer Clarke and Lt. VanSlyke worked together and jointly prepared the report involving this incident. There are troubling inconsistencies with each witness’s testimony, although some can be readily explained by the confusion presented by the quickly unfolding events. Yet, it has been difficult to reconcile the differing versions of events and the Court finds that no single witness was entirely credible. Nonetheless, after analyzing each witness’s testimony, there are core components of what transpired that day that logically distillate.

This claim of excessive force can be broken down into three separate incidents. The first pepper spray, the second pepper spray, and the struggle to handcuff Claimant.

There appears to be only one officially reported case in New York regarding the use of pepper spray in an excessive force claim, Passino v State of New York, 175 Misc 2d 733, affd 260 AD2d 915.1[4] In Passino, the claimant was arrested for driving while intoxicated and by all accounts was relatively cooperative at the scene of the stop. The troopers in that case transported the claimant to the Keeseville substation to perform a breathalyzer test. Handcuffs were removed and Claimant was permitted to call his mother. No Breathalyzer device was available at that substation, so the claimant had to be transported to another station for the test. Upon leaving the substation and seeing his mother, the claimant became agitated and kicked the door, placed his hands in his pockets and refused to allow the troopers to handcuff him for transport, swearing at them. The troopers requested the claimant’s compliance several times and warned the claimant that if he didn’t cooperate he would be pepper sprayed. Thereafter, the claimant was sprayed with a single burst of pepper spray. Judge Bell found that the use of pepper spray did not constitute excessive force. “While the presence of violent behavior would certainly be a significant factor in justifying the use of pepper spray, the absence of violence does not preclude per se the use of pepper spray as a reasonable exercise of force” (Passino v State of New York, 175 Misc 2d at 737).

Here, the Court finds that the ECOs were legitimately engaged in stopping Claimant’s son and nephew on the ATV and confiscating their loaded firearms. Claimant, admittedly upset and visibly angered by the presence of the officers around his property, son, and nephew, drove his truck quickly down the trail stopping just short of the ECOs’ jeep. He got out of his truck obviously agitated, admittedly swearing at the officers and telling them to leave his property and children alone. Claimant is 5' 9" tall and weighs 260 lbs. Officer Clarke was the closest, positioned to the left of Claimant after the truck stopped. The Court finds credible that Claimant approached Officer Clarke, who identified himself. It is objectively reasonable that Officer Clarke would fear that Claimant would become violent and appropriately warned him that pepper spray would be used if he did not stop advancing. Failing to heed Officer Clarke’s warning and with no place to go, Officer Clarke sprayed Claimant with a burst of pepper spray. Bearing in mind that the assessment of Claimant’s conduct is in the “calm of the Judge’s Chambers,” the Court finds that Officer Clarke’s use of pepper spray at this juncture was not excessive force but a means to stop Claimant’s aggressive behavior.

After the initial burst of pepper spray, Officer Clarke testified that Claimant stopped advancing and went back a few feet, yelling that it burned. The narrative report reflects that Claimant rubbed his eyes and screamed, “Oh-what is that shit...” The Court does not find credible the officers testimony at trial that Claimant never put his hands near his face after he was pepper sprayed, keeping them in a combative fist. The application of pepper spray directly to the face, it seems to the Court, would at least briefly startle the aggressor who would purely reactively bring his hands to his face and eyes as more credibly reflected in the narrative report. Claimant’s eyes were obviously watering and runny since Officer Clarke had to wipe them after the encounter, which he attributed to the pepper spray. Officer Clarke then directed Claimant that he was under arrest and to drop to the ground. Claimant’s vision was impaired from the pepper spray and he did not drop to the ground at Officer Clarke’s request. Although Officer Clarke’s second use of pepper spray is more tenuous, the Court cannot find that it was objectively unreasonable under the circumstances given Claimant’s previously aggressive actions and his noncompliance with Officer Clarke’s direction.

In attempting to handcuff Claimant, Officer Clarke took control of his left arm and Lt. VanSlyke tried to get Claimant’s right arm. After they all fell to the ground, Claimant admittedly put his right arm under his body telling the officers that his arm was injured. Given Claimant’s behavior, it is not surprising that the officers did not believe him and continued to try to handcuff Claimant behind his back according to department policy. Claimant clearly was struggling with the officers at this point and their use of force was commensurate with the force necessary to get control of the situation and handcuff Claimant. The Court finds the officers’ forceful struggle with Claimant was reasonable under the circumstances.

The Claimant has failed to meet his burden of proof to establish that the force used by the officers was excessive.

The claim is hereby DISMISSED. All motions heretofore not decided upon are hereby denied. LET JUDGMENT BE ENTERED ACCORDINGLY.

November 20, 2006
Syracuse, New York

Judge of the Court of Claims

[1].The claim actually asserts five causes of action: (1) Assault and battery (excessive force); (2) False arrest and imprisonment (detention); (3) Malicious prosecution; (4) Failure to train, supervise, and discipline; (5) Loss of consortium. By letter dated January 8, 2003, Claimant withdrew the false arrest and imprisonment claim. Since Claimant’s proof at trial and post-trial brief focused solely on Claimant’s assault and battery/excessive force cause of action, the Court finds that Claimant has abandoned his second, third and fourth causes of action for false arrest and imprisonment, malicious prosecution and negligent training, supervision and discipline (see Onderdonk v State of New York, 170 Misc 2d 155, 160; Doe v Westfall Health Care Ctr., 303 AD2d 102, 105).
[2].Brenda Randall’s claim is derivative. All references to Claimant will refer to Ronald Randall, unless otherwise noted.
[3].All quotes herein are from the recordings of the trial, unless otherwise noted.
[4].Exhibit A.
[5].Exhibit A, p. 1.
[6]. Exhibit A, page 3.
[7].See Exhibit 7, red “X” on the picture depicts the location where trail intersects with Mexico Road.
[8].Location is shown on Exhibit 7 by a red “O” mark.
[9].Location is shown on Exhibit 7 by a red “✓” mark.
1[0].Penal Law §§ 195.05, 120.05 and 205.30, respectively.
[1]1.Exhibit C.
1[2].Exhibit A.
1[3].The ECOs are “police officers” pursuant to CPL § 1.20(34)(j).
1[4]. In Wood v State of New York, (Ct Cl, unpublished Decision of Ruderman, J., signed May 1, 2001, Cl. No. 97218, UID # 2001-010-029), Judge Ruderman found New York State Troopers’ conduct in pepper spraying arrestee twice was excessive force given the testimony that the subject was cooperative and complied with all field tests.