| Pacheco v City of New York |
| 2013 NY Slip Op 01899 [104 AD3d 548] |
| March 21, 2013 |
| Appellate Division, First Department |
| Carlos Pacheco, Respondent, v City of New Yorket al., Appellants, et al., Defendants. |
—[*1] Burns & Harris, New York (Christopher J. Donadio of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered April 8,2011, upon a jury verdict, awarding plaintiff the principal amount of $2,042,499,unanimously reversed, on the law, without costs, and the complaint dismissed. Appealfrom order, same court and Justice, entered June 11, 2012, which denieddefendants-appellants' motion to set aside the verdict, unanimously dismissed, withoutcosts, as subsumed in the appeal from the judgment. The Clerk is directed to enterjudgment dismissing the complaint.
In this action, plaintiff sought damages for injuries he allegedly suffered when apolice sergeant used a Taser "stun gun" to subdue him so that he could be transported byambulance to a hospital. Plaintiff claims, inter alia, that the use of the Taser constitutedan assault and amounted to excessive force in violation of his rights under 42 USC§ 1983.
The evidence adduced at trial disclosed that, in response to an emergency 911 callfrom plaintiff's girlfriend that he had suffered one or more seizures, two police officers,two emergency medical technicians, two paramedics, and several fire fighters arrived atplaintiff's apartment to aid him. After the EMTs examined plaintiff and informed himthat he needed to be hospitalized, he became uncooperative. His girlfriend testified thatthis was the result of another seizure. The police officers testified and other evidenceindicates that plaintiff refused to go to the hospital, became extremely violent andagitated, and attacked the personnel trying to help him. The officers further testified that,while kicking out at them, plaintiff broke a dresser in the room.
Thereafter, six or seven responders were needed to restrain plaintiff, handcuff himbehind his back, and strap him across his lap and chest into an EMT transport chair. Theofficers testified that while strapped in the chair, plaintiff still kicked out at them, tried tostand, and bit one officer's arm and broke his skin. After the officers called for additionalassistance, a police sergeant arrived who, after unsuccessfully trying to calm plaintiffdown with words, subdued him with a Taser. Thereafter, EMTs were able to transportplaintiff from his upstairs apartment into [*2]anambulance on the street.
To prevail on an excessive force claim, a plaintiff must show that law enforcementpersonnel exceeded the standard of objective reasonableness under the FourthAmendment (Koeiman v City ofNew York, 36 AD3d 451, 453 [1st Dept 2007], lv denied 8 NY3d 814[2007]; see also Graham v Connor, 490 US 386, 396-397 [1989]). Indetermining whether the use of force was reasonable, the trier of fact must allow forpolice officers' frequent need to make "split-second" judgments about how much force isnecessary "in circumstances that are tense, uncertain, and rapidly evolving"(Graham, 490 US at 396-397). Other important considerations include whetherthe suspect actively resisted arrest and posed an immediate threat to the officers' safety(Vizzari v Hernandez, 1AD3d 431, 432 [2d Dept 2003], citing Graham, 490 US at 396).
"Viewing the evidence in the light most favorable to plaintiff and according [him]the benefit of every reasonable inference, we find that it was insufficient as a matter oflaw to permit the jury to find that the officers used excessive force" (Koeiman, 36AD3d at 453 [citation omitted]). Here, given plaintiff's repeated outbursts and the policeofficers' testimony that he was emotionally disturbed, it was reasonable to taser him sothat he could be hospitalized. Since the Patrol Guide of the New York City PoliceDepartment permits an officer to use a Taser to restrain an emotionally disturbed personwho threatens injury to himself or others (Procedure No. 216-05 at 5), the officer's actioncomported with acceptable police practice. Plaintiff's expert witness, a retired policeofficer who testified to the contrary, did not furnish any basis for his conclusion that theofficers departed from established protocol. Accordingly, we reverse the judgment anddismiss the complaint. Concur—Andrias, J.P., Renwick, Freedman and Gische, JJ.