Pape v. City of Stamford

          MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          WARREN W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE.

         This is an excessive force action by plaintiff Richard G. Pape on behalf of the decedent, Dylan J. Pape. Plaintiff alleges excessive force in violation of the Fourth Amendment against the individual defendant police officers and municipal liability against the City of Stamford. Defendants have moved for summary judgment. For the following reasons, defendants' motion will be granted.

         BACKGROUND

         On March 21, 2016, at 7:41 p.m., Dylan Pape called 9-1-1 from his parents' residence, pretending to be his father. Pape informed Stamford emergency dispatch that “his son” had a gun and required police assistance.

         A large force of police, including officers Baker and Perrotta, responded to the scene, where they found Pape in his driveway with a handgun. The pistol was later found to be a BB gun, which Pape had purchased earlier that afternoon. During the incident, the officers on the scene did not know that the gun was a BB gun.

         During an hour-long confrontation, many officers ordered Pape to put the gun down, but he refused to comply. Eventually, Pape, gun in hand, abruptly began walking directly toward Baker. Baker quickly looked around to determine if there was any other place that he could go that would provide cover. He saw officers behind him and knew Pape's parents were behind him as well. The street was filled with police vehicles and people. Pape began closing the distance between himself and Baker, and Baker again yelled for Pape to put the gun down.

         Another officer warned Pape that he would release a police K-9, but Pape refused to surrender or otherwise change his conduct. The officer then released the dog, which ran toward Pape. The K-9 contacted Pape in the middle of the street as Pape was quickly advancing toward Baker's position. Baker continued to scream commands at Pape to drop the gun. Notwithstanding, Pape continued moving into the street as the K-9 grasped his leg. As the dog latched onto his leg, Pape raised his right arm, gun in hand, pointing it in the direction of the officers. Baker and Perrotta fired a total of three shots, which struck and killed Pape.

         DISCUSSION

         A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only when reasonable minds could not differ as to the import of the evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849 (1991).

         The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. American International Group, Inc. v. London American International Corp., 664 F.2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         If a nonmoving party has failed to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof, then summary judgment is appropriate. Celotex Corp., 477 U.S. at 323. If the nonmoving party submits evidence which is "merely colorable," legally sufficient opposition to the motion for summary judgment is not met. Anderson, 477 U.S. at 249.

         Excessive Force and Qualified Immunity

         “[T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7 (1985).

         “[A]ll claims that law enforcement officers have used excessive force- deadly or not-in the course of an arrest, investigatory stop, or other ‘seizure' of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness' standard, rather than under a ...