May 27, 2016

Appellate Judges Toss $5M Judgment, Find Cops Acted Properly


PATRICK J. LYNCH: Stop the frivolous lawsuits     

An Appellate Division panel of State Supreme Court has tossed a $5-million damage award to a mentally-ill man whom a jury three years ago found was the victim of police officers who used excessive force that led to his breaking a hip during a 2005 confrontation, saying that the cops’ actions were reasonable given the exigent circumstances.

The four-judge panel unanimously concluded that while, as the plaintiff’s lawyer argued, a case could be made that the officers should have awaited the arrival of Emergency Services Unit cops to deal with the man rather than initiating the confrontation, it was not negligent on the officers’ part to seek to subdue him after — following several 911 calls reporting a disturbance in the building — they encountered Demetrio Davila in a stairwell wearing nothing but a pair of underpants he had pulled down to his lower legs.

Punched Cop, Then Fled

When they attempted to approach him, Mr. Davila punched one of the cops in the face and fled up the stairs while screaming. They pursued and caught him, and during a struggle, all of them fell down a flight of stairs, with Mr. Davila suffering a broken hip.

The appellate panel found fault with both the jury verdict and the failure by the trial judge to grant motions by the city to dismiss some of the complaints made in Mr. Davila’s civil suit.

“A claim that a law-enforcement official used excessive force during the course of an arrest, investigatory stop, or other ‘seizure’ of the person is to be analyzed under the ‘objective reasonableness’ standard of the Fourth Amendment,” the panel sta­ted in its four-page ruling. Citing several precedent rulings, it continued, “In determining whether the use of force was reasonable, the jury must take into account police officers’ frequent need to make ‘split-second judgments’ about how much force is necessary ‘in circumstances that are tense, uncertain, and rapidly evolving,’ and avoid applying ‘the 20/20 vision of hindsight’… it is reasonable for police to move quickly if delay would gravely endanger their lives or the lives of others.”

The appellate judges noted that by the time that officers arrived at the Brownsville building, the emotionally disturbed man “had started or attempted to start a fire, and that he had been throwing items out of the window of the apartment where he lives with his parents.”

Discount ‘Expert’ Testimony

A retired police officer who served as an expert witness for the man aided his case by testifying that the officers had not followed accepted police practice, but the judges stated that he “did not furnish any basis for his conclusion.”

They said the trial judge should have granted part of the city’s motion dismissing the claim of excessive force and another motion to dismiss the claim of negligence on the part of the cops. While the trial judge ruled that the motion regarding the negligence claim was not filed in a timely fashion, the judges disagreed.

Law Department spokes­man Nick Paolucci said in a statement, “We believe that the Appellate Division’s ruling dismissing the action is legally correct and confirms that the police officers acted appropriately.”

Patrolmen’s Benevolent Association President Pa­trick J. Lynch said May 25 that while he wasn’t fully familiar with the details of the case, “We’re looking to stop the frivolous lawsuits that make no sense.”