Collado v. City of N.Y.

396 F.Supp.3d 265

Amarilis COLLADO, as Administratrix of the Estate of Her Husband John Collado, Sr., Plaintiff,

v.The CITY OF NEW YORK, New York City Police Department ("NYPD") Detective James Connolly, Shield # 4294, Defendants.

11 Civ. 9041 (DC)

United States District Court, S.D. New York.

Signed August 23, 2019

EMERY CELLI BRINCKERHOFF & ABADY LLP, Attorneys for Plaintiff, By: Earl S. Ward, Esq., Samuel Shapiro, Esq., 600 Fifth Avenue, 10th Floor, New York, NY 10020

ZACHARY W. CARTER, Esq., Corporation Counsel of the City of New York, Attorney for Defendants, By: Brian Francolla, Esq., Melanie Speight, Esq., 100 Church Street, New York, NY 10007

OPINION

DENNY CHIN, United States Circuit Judge Sitting by Designation

On September 6, 2011, defendant James Connolly, a New York City Police Department ("NYPD") detective, was part of a field team engaged in narcotics enforcement operations in the Inwood area of Manhattan. Connolly was conducting "observations," in plain clothes, on Post Avenue. He saw suspicious activity and concluded that drugs were being sold at 26 Post Avenue. He entered the lobby of the building and observed two men in an apparent drug transaction. Connolly identified himself as a police officer and began to arrest the man he believed to be the seller. The man, however, lunged at Connolly, knocking him to the ground, and tried to run out to the street. Connolly grabbed him, but the man managed to drag Connolly through the lobby doors and out of the building. Outside on Post Avenue, Connolly and the man continued to struggle as the man tried to escape.

John Collado, Sr. ("Collado"), who lived nearby, saw the altercation from up the block. He ran to intervene. He inserted himself into the altercation by grabbing Connolly. At that point, Connolly pulled his firearm and fired one shot into Collado's stomach. Collado died several hours later.

Collado's widow, Amarilis Collado ("Mrs. Collado"), brought this action pursuant to 42 U.S.C. § 1983 and New York State law, contending, inter alia , that Connolly violated Collado's civil rights by using excessive force. On November 1, 2018, at the conclusion of the second trial in this case (the first trial had ended in a mistrial), the jury found in favor of Mrs. Collado and against Connolly, awarding compensatory and punitive damages totaling $14,325,000.

Before the Court are Connolly's motions for judgment as a matter of law pursuant to Fed. R. Civ. P. 50, for a new trial pursuant to Fed. R. Civ. P. 59, and for remittitur. For the reasons set forth below, the motions are granted in part and denied in part.

STATEMENT OF THE CASE

A. The Facts ¹

On September 6, 2011, Connolly was conducting "observations" as a member of an NYPD field team assigned to the Inwood area of Manhattan. (Second Trial Tr. at 169-70).² He was in plain clothes -- a green rain jacket and jeans -- and was carrying a gun and pepper spray as well as handcuffs, a radio, and a cell phone; his gun and badge were underneath his jacket and could not be seen. (Id. at 162, 170-71, 182). Four other officers were part of the team, in three different cars. (Id. at 29-32, 162, 170, 294-95, 297).

At approximately 5:00 pm, Connolly proceeded on foot northbound on Post Avenue, looking for drug activity. (Id. at 31-32, 170-71, 176-77). Neither he nor his partner (Detective James White) informed other team members that Connolly was walking up Post Avenue alone. (Id. at 32-33, 295, 303-04). While on Post Avenue, Connolly saw what he believed to be drug activity, and he entered 17-23 Post Avenue to get a better vantage point. (Id. at 174-77). In the lobby, he spoke briefly with Steven Polanco. (Id. at 179, 181). Based on the conversation, Connolly concluded that Polanco "was going across the street to buy drugs." (Id. at 180). Without radioing anyone from his team, Connolly exited the building, stepped aside, and waited as Polanco left the building and proceeded across the street. (Id. at 33-34, 180-82, 295, 303). Polanco entered 26 Post Avenue. (Id. at 182-84).

Connolly hurried across the street and was able to catch the door to 26 Post Avenue before it shut. (Id. at 183-85). In the lobby, he saw Polanco handing money to an individual later identified as Rangel Batista. (Id. at 185). Batista was holding "a large clear bag with a bunch of small zips of marijuana inside" along with money. (Id. at 185-87; see DX E).³ Connolly displayed his police shield, verbally identified himself as a police officer, and warned the two men not to move. (Id. at 187). As Connolly was about to handcuff Batista, Batista lunged toward Connolly, slamming him against the wall. (Id. at 187-88). Connolly fell to the ground, and Batista ran to get out of the building. (Id. ). Connolly got to his feet, gave chase, and managed to grab Batista just as Batista reached the first of two doors. (Id. ). Batista proceeded to drag Connolly out, through two doors and onto the street. (Id. at 188-89).

Outside on Post Avenue, Connolly and Batista continued to struggle. (Id. at 189-90). As Connolly held on, Batista dragged him across to the east side of Post Avenue, trying to escape. (Id. at 136-37, 189-90, 334-35). Out on the street, Connolly shouted "police," although he did not do so repeatedly. (Id. at 451; Doc. No. 140). Bartolo Diaz was heading up the block when he saw his "friend" Collado walking toward him. (Second Trial Tr. at 88-89). As they exchanged pleasantries, a woman passing by said to them "[t]hose two are going to kill each other." (Id. at 89). Several witnesses described Connolly and Batista as "fighting" (id. at 90 (Diaz)), "struggling with each other, one trying to get off, one trying to grab the other" (id. at 309 (Perez)), and "[f]orcing against each other" (id. at 327-28 (Peralta Lopez)). Batista "was pushing [Connolly] in order to escape," "shoving him, trying to push him away." (Id. at 335 (Peralta Lopez)).

Referring to Batista as "Carlota" and to Connolly as "the light-skinned man," Diaz testified that the two were on the ground, "scuffling" and "holding each other's hands," with Carlota "on top of the light-skinned man." (Id. at 91; see also id. at 100-01).⁴ He heard the light-skinned man -- "the one on the bottom" -- saying "Please, please, please.'" (Id. at 91; accord id. at 101 ("I heard [the light-skinned man] begging, ‘Please, please, please.’ ")). Both men were tired, "beat." (See id. at 315-16; see also id. at 189-90). The two had been struggling for approximately a minute and a half. (See PX 44B (clock readings).

At that point, Collado interceded, as he tried to separate the two; he reached down, grabbed Connolly by the arm and shoulder, and "yanked him out." (Id. at 92; see also id. at 317 (Perez testifying that Collado grabbed Connolly from behind, pulling him back by the shoulders), 331 (Peralta Lopez testifying that Collado "grabbed hold of the policeman, as to separate him from [Batista]," "like around his neck").⁵ Collado let go of Connolly, and Batista tried to run. (Id. at 92, 311). But Connolly grabbed hold of him again, and the two were struggling again, standing. (Id. at 92-93). Collado got in between them to try to separate them, with his arms open and both hands out, on the other two men's chests. (Id. at 93-95). Collado was saying "Stop, stop, stop." (Id. at 94). A shot was fired. (Id. at 94, 311-312). Connolly had pulled his weapon and, without saying anything, shot Collado in the stomach. (Id. at 93-95, 115, 322; see also PX 5).

Connolly and Collado were close to each other when the shot was fired, facing each other, touching each other. (Id. at 93, 115-16, 311-12, 332-33). One witness described them as "wrestling." (Id. at 311). Despite Connolly's testimony to the contrary, Collado did not at any time put Connolly in a headlock or choke him or slam him into a car. (Id. at 100, 312, 320, 335, 337, 339, 451; Doc. No. 140).⁶ One witness (Peralta Lopez), however, saw Batista pushing Connolly as Connolly was against a car. (Id. at 335). She also testified that Collado had his arm around Connolly's neck, and that he "grabbed hold from the neck," although she clarified that it was "very brief," "no more than three seconds." (Second Trial Tr. at 337-38, 341).⁷

After he was shot, Collado held his hip, on the right side, and then stumbled, falling to the ground. (Id. at 95). As he lay on the street, he remained conscious, "moaning" in pain. (Id. at 57). After White arrived on the scene, Collado told White that he had been shot. (Id. at 57). White saw that Collado was bleeding, but handcuffed him anyway. (Id. at 57-58). An ambulance eventually took Collado to a hospital; he was "screaming in pain" while in the ambulance. (Id. at 128-29; PX 14). He was conscious for 50 minutes before he was given anesthesia at the hospital for surgery. (Second Trial Tr. at 234). The bullet had traveled through "many loops of bowels, small intestine, large intestine, many blood vessels in the abdomen, and many nerves in the abdomen." (Id. ). He had no more pain after he was administered anesthesia. (Id. at 235). He died a few hours later; the cause of death was a gunshot wound to the abdomen. (Id. ; PX 5).

On September 6, 2011, Collado was 43 years old (PX 7, 24) and lived at 17 Post Avenue with his wife (Mrs. Collado), their two-year-old son (John J.), and his mother, who suffered from Alzheimer's. (Second Trial Tr. at 124, 126). Collado had five other children: Jenny, John, Jr., Amy, Kariel, and John II.⁸ (Id. at 123). He was home, on disability, and was not working. (Id. ). He had gone out to buy some groceries when he ran into Diaz and then intervened in the fight. (Id. at 89-90, 128).

B. Prior Proceedings

Mrs. Collado commenced this action against Connolly on December 12, 2011. (Doc. No. 1). By amended complaint filed November 5, 2012, Mrs. Collado added the NYPD and the City of New York (the "City") as defendants. (Doc. No. 17). By second amended complaint filed April 12, 2013, Mrs. Collado also added claims against the...