Claim alleging false arrest, malicious prosecution and the use of excessive force was dismissed following a trial.
|Claimant short name:||SAWYER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Brennan & White LLP
By: Daniel Stewart, Esquire
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 31, 2009|
|See also (multicaptioned case)|
Trial of this claim alleging false arrest, malicious prosecution and the use of excessive force was held on June 10, 2009.
The claimant called Leia Harrington who testified that she observed smoke coming from a trailer owned by her sister and the claimant's son, Lloyd Sawyer, while she was on her way home from work on January 11, 2007. Upon observing the smoke Ms. Harrington called 911 and contacted her sister who was at work. Exhibit 9 is a Ticonderoga Emergency Services Dispatch Report which reflects the report of a fire received at 4:55 p.m.
A short time thereafter the claimant and Lloyd Sawyer arrived at the scene followed by the local volunteer fire department. The witness testified that she observed Ralph Sawyer walking toward a backhoe which was located on the property. Mr. Sawyer was attempting to enter the vehicle when a New York State Trooper grabbed him by the arm. According to Ms. Harrington the claimant "spun around" when the Trooper came into contact with his arm but did not lunge at the officer. The Trooper and another State Police Officer then grabbed the claimant's arms and threw him face down to the ground, placing their knees on his back. Handcuffs were placed on the claimant's wrists but were removed after Mark Johns, a Ticonderoga Police Officer, spoke to the Troopers. The claimant's face was bloodied and an ambulance was called.
On cross-examination the witness testified that a photograph received in evidence as Exhibit 11 accurately depicts the site where the subject incident occurred although somewhat more snow is showing in the photo than was on the ground at the time of the incident. She acknowledged that the claimant's right elbow was raised at the time he turned upon being grabbed by the State Trooper.
The claimant, Ralph Sawyer, testified that he is 79 years old and resides in Ticonderoga, New York. Mr. Sawyer testified that he received a phone call on January 11, 2007 informing him of a fire at his son, Lloyd Sawyer's trailer, which was located on property owned by the claimant. Mr. Sawyer testified that he drove to the trailer and that the local fire department was on site at the time of his arrival. Lloyd Sawyer arrived shortly thereafter. The claimant testified that he exited his car and walked to the payloader shown on the right side of Exhibit 11. Intending to move the payloader, he stepped up on the right side of the vehicle and reached in his pocket to retrieve his keys. At that time two New York State Troopers "jumped" him, grabbing his arms, pulling him off the payloader and forcing him to the ground. The State Troopers handcuffed the claimant, placing their weight on his back and pushing his forehead into the ground. Mark Johns from the Ticonderoga Police Department subsequently spoke to the State Police Officers and the handcuffs were removed.
Claimant was later taken to the hospital, where he testified, he experienced back and shoulder pain; his face was bloodied and his wrist was painful and swollen. Mr. Sawyer testified that he has been unable to continue his excavation business as a result of pain from the injuries received from the incident of January 11, 2007. He cannot walk for any appreciable distance and has difficulty with stairs. None of these problems existed prior to January 11, 2007.
The claimant testified that he was found not guilty following a jury trial of criminal charges brought against him as a result of the incident related above. Exhibits 5, 6 and 7, respectively, are copies of Criminal Information Sheets indicating the claimant was charged by Trooper Waldron with obstructing governmental administration, obstructing firefighting operations and resisting arrest. Exhibit 3 is a Certificate of Disposition showing the claimant was acquitted of the charge of obstructing governmental administration on May 29, 2007 (see also Exhibit 4).
On cross-examination the witness testified that he did not hear either of the State Troopers speak to him prior to being grabbed and removed from the payloader. Mr. Sawyer had previously testified on direct examination that he had difficulty hearing in January 2007. He acknowledged that fire hoses were on the ground at the time he was walking to the payloader. It was his intention to move the vehicle away from the fire so that it would not be damaged.
New York State Trooper Ritch Waldron testified that he has been employed by the New York State Police since October, 2000 and was assigned to the State Police Crown Point Barracks in January, 2007. On January 11, 2007 he received a report of a fire over the radio unit in his State Police patrol vehicle. At the time, Trooper Waldron was acting as a training officer for Trooper Tarone Liebman, who was also in the patrol vehicle. The witness and his partner responded to the scene, within five to seven minutes after receiving the call. The fire department had not yet arrived. Trooper Waldron parked his car and walked to the scene, which he stated is accurately depicted in Exhibit 11.
Mark Johns of the Ticonderoga Police Department was at the scene when the witness arrived and two pickup trucks drove into the location shortly thereafter. Lloyd Sawyer was speaking to Sergeant Johns as the witness and his partner approached. The Ticonderoga Volunteer Fire Department then arrived at the scene and Fireman LaVallie, pointing to the claimant, requested that Trooper Waldron "get him out of here". The witness and Trooper Liebman approached the claimant who was standing watching the fire. They requested that the claimant move away from the fire but he was unresponsive. Trooper Waldron testified that he was not certain whether the claimant had heard him. He again asked the claimant to move away from the fire at which time the claimant turned to face the witness and yelled "put the fire out first". Trooper Waldron approached the claimant from the left side, reached around in front of the claimant with his left arm and took hold of the claimant's right arm in an effort to turn him and escort him away from the fire. At that time the claimant swung his arm at the officer, who grabbed the claimant's wrist in an attempt to apply handcuffs. It was his intention at that time to arrest the claimant for obstructing the firefighters in carrying out their duties. Trooper Waldron testified that he struggled with the claimant while attempting to apply the handcuffs and "next thing I knew he was on the ground". The Trooper denied that he intentionally forced the claimant to the ground. Once the claimant was on the ground Trooper Waldron connected his cuffs and those of Trooper Liebman and secured the claimant's hands behind his back. Trooper Waldron then noticed that the claimant was injured and requested that a firefighter call an ambulance to the scene. The handcuffs were removed while the claimant received medical treatment.
Exhibit 9, a Ticonderoga Emergency Services Dispatch Incident Report, relates the report of a fire received at 16:55 and a report of an injury at the same location received at 17:09. The claimant was charged by Trooper Waldron with resisting arrest, obstructing firefighting operations and obstructing governmental administration. The first two charges were withdrawn and the third charge went to trial.
On cross-examination Trooper Waldron explained that he used his left arm to reach around the claimant and take hold of his right arm. By doing so he intended to turn the claimant and move him away from the fire, which he testified was approximately 20 feet from the place the claimant was standing. The claimant then swung his arm, causing the Trooper to step back in order to avoid being struck. He then grabbed the claimant's wrist intending to effectuate an arrest.
On redirect examination the witness could not recall how the claimant ended up on the ground but denied forcibly placing him there.
New York State Police Trooper Tarone Liebman testified that he was undergoing field training with Trooper Waldron on January 11, 2007 when they received a radio call of a fire. Troopers Waldron and Liebman responded to the scene of the fire, parked their vehicle and observed two pickup trucks drive up the driveway and park. As the younger of the two individuals spoke to Sergeant Mark Johns, Firefighter LaVallie requested Troopers Waldron and the witness to move the claimant from the place where he was standing. The witness and Trooper Waldron approached Mr. Sawyer and Trooper Waldron asked the claimant to move. When Trooper Waldron requested that the claimant move a second time, the claimant responded "put the fire out first". Trooper Waldron approached the claimant from the left side and reached for the claimant's elbow to escort him from the area. According to Trooper Liebman the claimant "ripped his arm away and lunged toward Trooper Waldron". Trooper Waldron then attempted to handcuff the claimant, who was struggling to resist. Trooper Liebman then grabbed the claimant's left arm while Trooper Waldron held his right. The witness did not know whether the claimant tripped or slipped but he fell to the ground with his left arm below him and would not pull his left arm out. Once the claimant was handcuffed the Troopers noticed that the claimant's forehead was bloodied and Trooper Waldron requested that a firefighter call an ambulance.
On cross-examination Trooper Liebman estimated that the claimant was on the ground, after being handcuffed, for approximately 10 seconds.
Michael LaVallie testified that he was both a Lieutenant with the Ticonderoga Volunteer Fire Department and a Ticonderoga Police Officer on January 11, 2007. On that date he responded to a report of a structure fire and was a passenger in the first pumper truck to arrive at the scene. Upon their arrival, the crew began pulling hoses from the truck and dragging them down the driveway toward the burning structure. New York State Troopers were already at the scene. Mr. LaVallie observed the claimant walking over the uncharged hoses and requested the Troopers to move the claimant out of the way. He observed the Troopers talking to Mr. Sawyer and turned to check his crews. When he next turned around he observed the claimant on the ground. Mr. LaVallie did not see the claimant attempt to punch or lunge at the Troopers.
On cross-examination Mr. LaVallie testified that the claimant was walking over "uncharged hose lines" and that he was concerned for the claimant's safety.
Mark Johns testified that he is a Sergeant with the Ticonderoga Police Department and the Department's current Acting Chief. On January 11, 2007 he received a radio call of a structure fire and went to the scene on Warner Hill Road. According to Sergeant Johns, Lloyd Sawyer and the claimant arrived at the scene in separate pickup trucks, driving up the driveway and parking their vehicles. Sergeant Johns recognized Lloyd as the owner of the residence and spoke to him regarding whether anyone was inside the residence at the time. Sergeant Johns estimated that he and Lloyd were approximately 30 to 40 feet from the residence at that time. Sergeant Johns then heard Mike LaVallie request that the State Troopers who had arrived at the scene "get him out of here", referring to the claimant. The Troopers spoke to the claimant and then grabbed him by the arms, one on each side. Sergeant Johns observed the claimant struggling with the Troopers in an attempt to loosen their grip. At that time Lloyd Sawyer became agitated and Sergeant Johns turned to calm him. When he turned around he observed the Troopers assisting the claimant in standing up and he noticed that the claimant was bleeding. Sergeant Johns did not know how it was that the claimant came to be on the ground.
On cross-examination Sergeant Johns described the claimant as calm while talking to him following the incident but "very adversarial" toward the Troopers. The witness marked Exhibit 11 to indicate the location where he observed the claimant standing at the time the Troopers approached him.
Lloyd Sawyer was called to the stand and testified that on January 11, 2007 he was informed of a fire at his trailer. He arrived at his residence and observed the claimant already at the scene. He testified that he then observed the claimant standing in front of a payloader when one of two New York State Troopers touched the claimant's arm in an effort to get his attention. The claimant pulled his arm away and the Troopers grabbed the claimant by both arms and took him to the ground. Claimant sustained injuries including a bloody face and swollen forehead and was taken to Moses-Ludington Hospital in Ticonderoga, New York. The witness identified Exhibits 14 - 23 as photographs accurately depicting the claimant's injuries while he was in the hospital. Exhibits 24 - 31 are photographs taken by the witness upon the claimant's return home from the hospital. Lloyd Sawyer testified that his father worked on a regular basis prior to January 11, 2007 but now is unable to work and is limited to walking a maximum of 10 to 15 minutes at a time.
On cross-examination the witness testified that one of the New York State Troopers approached the claimant and touched his arm in an effort "to get his attention". The claimant then pulled his arm away from the Trooper and both Troopers grasped the claimant's arms and "threw him to the ground". He acknowledged that he signed a supporting deposition (Exhibit E) dated January 11, 2007, which states, in part, "[b]oth guys grabbed his arms like they were trying to encourage him away and he pushed them away". The witness placed a red "X" on Exhibit 11 to identify the place where the interaction between the claimant and the State Troopers occurred.
The claimant rested at the conclusion of Lloyd Sawyer's testimony and the defendant moved to dismiss the claim for failure to establish a prima facie case. The Court reserved on the motion.
The defendant called Kyle Stonitch to the stand. Mr. Stonitch testified that he was a member of the Ticonderoga Volunteer Fire Department and that he responded to a report of a fire on Warner Hill Road on January 11, 2007. Upon arriving at the scene, Mr. Stonitch was instructed to carry fire hoses down the driveway toward the trailer which was on fire. As he was carrying out those instructions he observed the claimant standing and pacing in the driveway. Lieutenant LaVallie requested that the claimant move and, when he failed to do so, LaVallie requested two New York State Troopers to remove the claimant from the area. Mr. Stonitch testified that he observed the Troopers ask claimant to move and that the claimant began yelling. The Troopers again requested that the claimant move and one of the Troopers placed his hand on the claimant's arm in an effort to escort him away. According to Mr. Stonitch, the claimant moved his free arm in a manner which appeared, to the witness, as an attempt to punch one of the Troopers. Mr. Stonitch looked away and, when he looked back, observed the claimant lying face down on the ground.
On cross-examination the witness testified that he was a passenger in the first fire truck at the scene. He observed the Troopers approach the claimant and speak to him as the claimant was pacing back and forth. One of the Troopers grasped the claimant's wrist and the claimant then swung his free arm toward the Trooper. It appeared to Mr. Stonitch that the claimant was attempting to strike the Trooper. The witness turned away at that time and when he turned back observed the claimant on the ground. He testified at trial he did not observe the claimant slip or trip and fall to the ground, and acknowledged that he completed a written statement subsequent to the event in which he stated "[t]he [T]roopers grabbed Ralph and put him on the ground" (Exhibit F).
On redirect examination Mr. Stonitch testified that one of the Troopers placed his knee on the claimant's back while he was placing the handcuffs on the claimant's wrists.
On re-cross-examination he described the claimant as "yelling and squirming" while on the ground.
The defendant rested at the conclusion of Mr. Stonitch's testimony and renewed its motion to dismiss the claim for failure to establish a prima facie case. The Court reserved decision on the motion.
The law is well-settled that the State is not immune from liability for injuries which result when an officer uses more force than is necessary to perform his or her duty (Arteaga v State of New York, 72 NY2d 212, 220-221 ; Jones v State of New York, 33 NY2d 275 ; Stein v State of New York, 53 AD2d 988 ). Allegations of the use of excessive force must be " 'analyzed under the 4th Amendment [of the US Constitution] and its standard of objective reasonableness' " (Shirvanion v State of New York, 64 AD3d 1113, , quoting Passino v State of New York, 260 AD2d 915, 916 , lv denied 93 NY2d 814 ; see Graham v Connor, 490 US 386, 388 ; Campagna v Arleo, 25 AD3d 528 ).(1) "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, 490 US at 396). Thus, determining the degree of force necessary requires consideration of the particular circumstances confronting the officers at the time the force was applied (Koeiman v City of New York, 36 AD3d 451 ; Lewis v State of New York, 223 AD2d 800 ; Arnold v State of New York, 108 AD2d 1021 , appeal dismissed 65 NY2d 723 ). As recognized by the Supreme Court in Graham (supra) "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount force necessary in a particular situation" (490 US at 397). Applying this standard, the Court concludes that the claimant failed to meet his burden of establishing the use of excessive force by a preponderance of the credible evidence.
The credible proof at trial established that a structure fire was underway at the time of the incident at issue herein. Ticonderoga Volunteer Fire Department personnel arrived at the scene and began removing hoses from the trucks and dragging them down the driveway toward the fire. The claimant was asked twice to move away from the scene - first by Fireman LaVallie then by Trooper Waldron. Both Troopers Waldron and Liebman testified that the claimant responded to the request to move away from the fire with the statement "[p]ut the fire out first". This testimony was substantially supported by the statement given to police by Fireman Stonitch in which he stated that after the claimant was instructed to move by Trooper Waldron he responded "[w]hy don't you put some water on the fire" (Exhibit F). This evidence tends to establish that the claimant heard but ignored the request to move away from the fire prior to the time the Troopers took hold of his arm. Moreover, even if the proof supported a conclusion that the claimant did not hear the multiple requests to move away from the fire, no evidence was presented that the Troopers were aware of the fact that the claimant had difficulty hearing.
As to the physical aspects of the interaction between the claimant and Troopers Waldron and Liebman, Ms. Harrington testified that claimant spun around with his right elbow raised after one of the Troopers first touched his arm. Both Troopers Waldron and Liebman testified that the claimant resisted their initial attempt to peaceably escort him from the fire. Consistent with this testimony, Sergeant Johns and Fireman Stonitch testified that the claimant struggled with the Troopers and appeared agitated. In fact, Fireman Stonitch testified that it appeared as though the claimant used his free hand to try to punch one of the Troopers. The claimant's son, Lloyd Sawyer, testified in his direct examination that a Trooper touched his father's arm, causing him to pull his arm away. On cross-examination, however, Lloyd admitted that he had given a prior statement to the police in which he stated that his father "pushed" the Troopers after they "were trying to encourage him away" from the place where he was standing (Exhibit E). The Court finds the largely unrefuted evidence to the effect that the claimant was agitated, uncooperative and belligerent, if not combative, to be credible.
The Court finds the testimony of Troopers Waldron and Liebman in which they denied any knowledge of how the claimant came to be on the ground to be vague and incomplete, at best. In this regard, although Fireman Stonitch testified that he looked away before the claimant was placed on the ground, he gave a prior inconsistent statement in which he stated that "[t]he troopers grabbed Ralph and put him on the ground" (Exhibit F). Despite concerns that neither Trooper Waldron nor Trooper Liebman were fully forthright in their testimony in this regard, the Court is unable to conclude that excessive force was used to restrain the claimant and remove him from the scene. A structure was on fire, firefighters had arrived at the scene but had not yet charged their hoses with water and, according to Lieutenant LaVallie, the claimant was standing in an area in close proximity to the fire where the uncharged hoses had been laid. The claimant was asked by Lieutenant LaVallie to move, but did not. Lieutenant LaVallie then requested that Troopers Waldron and Liebman remove the claimant from the area. In addition to the testimony elicited at trial, various contemporaneous statements provide credible evidence that the claimant physically struggled to resist the Troopers' efforts to move him from the scene (e.g. Exhibit C, Supporting Affidavit of Mark Johns ["I observed Ralph then start struggling with the 2 troopers"; Exhibit F, Statement of Kyle Stonitch ["One trooper reached for Ralph's left arm and Ralph came around with his right arm . . . He started flailing his arms"]; Exhibit D, Supporting Deposition of Michael LaVallie ["The man took an aggressive stance facing the [T]roopers"]). Under these circumstances the use of reasonable force to remove the claimant from the area was appropriate.
As to the actual amount of force used, several witnesses testified that although they observed some portion of the encounter between the claimant and Troopers Waldron and Liebman, they did not observe how it was that the claimant came to be lying face down on the ground. Leia Harrington testified both at trial and in a supporting deposition (Exhibit A) that the Troopers grabbed the claimant and threw him to the ground, face first. They then placed their knees on the claimant's back and handcuffed him. She also testified, however, that claimant spun with his right elbow elevated when the Troopers first attempted to take hold of his arms. Lloyd Sawyer testified in his Supporting Deposition (Exhibit E) that the Troopers pulled the claimant's arms behind his back and "slammed him to the ground". However, he also stated in the same document, consistent with his testimony at trial, that the Troopers initially grasped the claimant by his arms "like they were trying to encourage him away" and the claimant "pushed them away".
In the Court's view the use of force described by those who witnessed the incident was reasonable under the circumstances existing at the time and not excessive. This conclusion is based on a finding that the claimant was, in fact, forced to the ground and handcuffed by Troopers Waldron and Liebman. However, the Court further finds that such actions were proper given the ongoing emergency situation, the claimant's failure to comply with the requests of Lieutenant LaVallie and Trooper Waldron and his physical resistance to the Troopers as they sought to move him from the area. The Court therefore concludes that the claimant failed to meet his burden of establishing by a preponderance of the credible evidence that excessive force was used.
In addition to the claim for excessive force, claimant alleges claims for false arrest and malicious prosecution. In order to establish a cause of action for false arrest the claimant must establish that the "defendant's police officer intentionally arrested and confined him against his consent, and without . . . lawful privilege" (Smith v County of Nassau, 34 NY2d 18, 22 ; see also Broughton v State of New York, 37 NY2d 451, 458 , cert den sub nom. Schanbarger v Kellogg, 423 US 929 ). Where the arrest is effected without a warrant, a presumption arises that the arrest is unlawful and the burden of proving probable cause for the arrest is an affirmative defense to be established by the defendant (Smith, 34 NY2d at 23; Wallace v City of Albany, 283 AD2d 872 ).(2) A warrantless arrest is sanctioned when, as pertinent here, a police officer has "reasonable cause" to believe that a crime or petty offense has been committed in his presence (Criminal Procedure Law § 140.10  [a]).(3) Reasonable cause and probable cause are terms that are used interchangeably (Veras v Truth Verification Corp., 87 AD2d 381 , affd 57 NY2d 947 ; Stratton v City of Albany, 204 AD2d 924 ). "Probable cause is defined as such grounds as would induce an ordinarily prudent and cautious person, under the circumstances, to believe that plaintiff had committed the [offense]" (Saunders v County of Washington, 255 AD2d 788, 790  [internal quotation marks omitted]). In the Court's view, defendant met its burden of establishing probable cause for the arrest.
Claimant was charged with a violation of Penal Law § 195.05 which provides, in part, that "[a] person is guilty of obstructing governmental administration when he intentionally . . . prevents or attempts to prevent a public servant from performing an official function, by means of intimidation, physical force or interference, or by means of any independently unlawful act . . ." The term "physical" has been held to modify both the term "force" and the term "interference" and thus to exclude culpability under that provision for words alone (People v Case, 42 NY2d 98, 99 ). As set forth above, defendant sufficiently established that the claimant's presence in close proximity to the fire and the uncharged hoses, together with his refusal to move, was interfering with the efforts of the fire personnel to fight the fire. The testimony at trial additionally established that the claimant physically resisted the Troopers as they attempted to perform their official duties. Probable cause for the arrest having been established, the claim for false arrest must be dismissed.
With respect to the claim for malicious prosecution, the Court of Appeals made clear in Broughton (supra) that the essence of such a claim is the perversion of proper legal procedures. "To succeed on a claim for malicious prosecution, a plaintiff must show the initiation of an action or proceeding that terminated in favor of the plaintiff, lack of probable cause for the prior action or proceeding, malice and special injury" (Fink v Shawangunk Conservancy, Inc., 15 AD3d 754, 754  [internal quotation marks and citation omitted]; see also Martinez v City of Schenectady, 97 NY2d 78, 84 ; Broughton v State of New York, supra; Perryman v Village of Saranac Lake, 41 AD3d 1080, 1081 ). As set forth above, defendant met its burden of establishing probable cause for the arrest of the claimant for obstructing governmental administration in violation of Penal Law § 195.05.(4) As probable cause is also a complete defense to a claim for malicious prosecution, this claim fails for the same reason (see Fortunato v City of New York, 63 AD3d 880 ; Saunders v County of Washington, supra). Additionally, there were no facts alleged in the claim nor proven at trial which would rise to the level of "actual malice", which is defined as "some deliberate act punctuated with awareness of conscious falsity" (Santoro v Town of Smithtown, 40 AD3d 736  [internal quotation marks and citations omitted]). Accordingly, the claim for malicious prosecution is subject to dismissal on this basis.
Based on the foregoing, the claim is dismissed.
Let judgment be entered accordingly.
August 31, 2009
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Consistent with this standard, Penal Law § 35.30  provides, in part:
"A police officer ... in the course of effecting or attempting to effect an arrest... of a person whom he or she reasonably believes to have committed an offense, may use physical force when and to the extent he or she reasonably believes such to be necessary to effect the arrest..."
2. Defendant raised as its fourth defense in its answer that its actions were "justified and based upon probable cause."
3. The geographical limitations in which a warrantless arrest may be made for a petty offenses are not in issue (see Criminal Procedure Law § 140.10 ) .
4. While the claimant was also charged with obstructing firefighting operations in violation of Penal Law § 195.15 (Exhibit 6) and resisting arrest in violation of Penal Law § 205.30, these charges were withdrawn. As the final disposition did not involve the merits and was not indicative of the claimant's innocence, no claim for malicious prosecution with respect to these charges may stand (MacFawn v Kresler, 88 NY2d 859 ; Slatkin v Lancer Litho Packaging Corp., 33 AD3d 421 ).