Police Assertion of Qualified Immunity Insufficient to Gain Dismissal of Civil Rights Claim For Death Resulting from Use of Excessive Force

Plaintiff Leroy Rasanen, in Rasanen v. Brown, — F.Supp.2d —-, 2009 WL 766205 (E.D.N.Y.,2009.) (decided March 25, 2009) brought this civil rights action pursuant to 42 U.S.C.1983 (“Section 1983”), alleging that New York State Troopers used excessive force in fatally shooting his son John Rasanen (“Rasanen”) during a search of Rasanen’s home. The plaintiff alleged that the shooting constituted excessive force in violation of the Fourth Amendment and that the Defendants were negligent in failing to conduct the search and deal with Rasanen’s shooting “in accordance with professional norms and standards.”

The defendants moved for summary judgment dismissing the complaint on the ground that Brown’s use of deadly force in response to the perceived threat posed by Rasanen was objectively reasonable and that they are therefore entitled to qualified immunity. According to the decision of Judge Arthur D. Spatt, in December of 2000, the New York State Police Narcotics Enforcement Unit (“NEU”) received information from a confidential informant that Rasanen was selling drugs out of multiple locations on the East End of Long Island. In concert with the Suffolk County Police Department, the NEU used surveillance, wiretaps, and undercover operations to gather information about Rasanen and his alleged drug activities.

Pursuant to this investigation, a search warrant was issued for Rasanen’s residence at 12 Overlook Drive in Aquebogue, New York. The warrant was executed by the New York State Police’s Mobile Response Team (“MRT”), an eight-person contingent that included Defendants Daniel Brown, Michael Etherton, David Verne, Scott Dibble, Paul Antonovich, Robert Buell, and Timothy Pidgeon. Prior to executing the warrant, the MRT received two operational briefings.

During these briefings the officers discussed, among other issues, intelligence that suggested Rasanen was in possession of firearms and had previously threatened police officers. Brown and Etherton were the first pair of officers to arrive at Rasanen’s front door and entered the residence after Brown breached the door with a battering ram. The Officers made their way down the hallway with Brown proceeding in front of Etherton until they came to Rasanen’s bedroom door.

With Etherton positioned behind him, Brown kicked open Rasanen’s bedroom door yelling “police, get down!” By this time Rasanen had been wakened and was standing close to his bedroom door. Browns testimony was that when he entered the bedroom, a struggle ensued during which Rasanen was shot. The only other eyewitness to the shooting denied that Rasanen ever lunged at or struggled with Brown before or at the time the fatal shot was fired.

In order to state a valid claim under 42 U.S.C. 1983, a plaintiff must show that the conduct in question deprived him of a right, privilege, or immunity secured by the Constitution or the laws of the United States, and that the acts were attributable at least in part to a person acting under color of state law. The doctrine of qualified immunity “balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Courts perform a two-part inquiry to determine whether an official is entitled to qualified immunity. Courts generally look first to whether the plaintiff’s allegations, if true, establish a constitutional violation. If the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Judge Spatt had no doubt that the plaintiff alleged a violation of a clearly-established constitutional right in contending that Brown used excessive force in shooting Rasanen inasmuch as it is recognized that the Fourth Amendment “protects against the use of excessive force by police officers in carrying out an arrest.”

The Second Circuit, however, has long recognized that plaintiffs asserting claims under Section 1983 must allege the personal involvement of each defendant. Under Section 1983, a police officer is personally involved in the use of excessive force only if he either directly participates in the conduct giving rise to the claim or was present and yet failed to intercede on behalf of the victim even though he had a reasonable opportunity to do so. In this case, none of the defendants other than Brown and Etherton had the requisite personal involvement because they were not in Brown’s presence when he shot Rasanen and therefore could not possibly have had a reasonable opportunity to intervene, and were granted summary judgment.

As to the defendants Brown and Etherton, the Court found that the testimony of the witness and of the plaintiffs ballistics expert raised material issues of fact that go to whether Brown’s conduct was objectively unreasonable. Inasmuch as any reasonable trier of fact could find that the defendants’ actions were objectively unreasonable, the defendants were not entitled to summary judgment.

The defendant failed to address plaintiffs allegations that the defendants were negligent: in failing to adequately plan the search; in failing to provide an on-site medical technician in the event of an injury; in failing to administer appropriate first aid; and in “creating a mind-set of ‘shoot first and ask questions later,’ ” by sharing intelligence that suggested Rasanen was armed and violent with MRT officers. In the absence of proof, the Court denied the defendants’ motion for summary judgment on the Plaintiff’s negligence cause of action.

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