$475k in damages for excessive force against Nassau County police officer

The Court of Appeals has sustained an excessive force verdict against a Nassau County police officer, finding that the trial court properly found liability and awarded the plaintiff $475,000 for pain and suffering, even without expert testimony.

The case is Thomas v. Wellenreuther, a summary order issued on April 6. The defendant officer shot plaintiff twice. After the defendant police officer went to a gas station following his shift, he saw a holdup inside the store. Plaintiff-robber then ran out of the store with money hanging out of his pocket, and the attendant told the officer (who was outside the store) that plaintiff had robbed him. When defendant identified himself as a police officer, plaintiff turned around to face him, and the officer thought plaintiff had a gun. Actually, it was a BB gun. The officer fired his gun at plaintiff but missed, and plaintiff then ran away and threw his BB gun away from him. Plaintiff then ran through someone's yard and jumped over a fence. Plaintiff then reached into his waistband and spun around toward the officer, who then fired a second shot, hitting plaintiff in the neck 20 feet away. The trial court said plaintiff was running away from the officer when the officer shot him the second time. 

The second shot was excessive force, the trial court said following a bench trial. The deciding factor for the judge was the fact that plaintiff was running away from the officer when the officer fired at him, and the bullet hit the back of his neck. Shooting a fleeing robber who has already discarded his weapon is excessive force. I can see why plaintiff opted for a bench trial. Jurors may not be sympathetic toward a plaintiff who was ultimately convicted of robbery and ran away from the police. 

What about qualified immunity? The officer's lawyer waived that defense for some reason. It was asserted in the Answer to the Complaint but counsel did not litigate that issue afterwards. Perhaps the trial court would have rejected immunity even without waiver, as she might have found the second shot into plaintiff's neck violated clearly-established law, but many cases are dismissed on immunity grounds, and for defendants, asserting that defense is worth a shot. 

The damages are not too high. The trial court ruling, at 2021 WL 2024770 (EDNY May 21, 2021), provides a good summary of where things stand on pain and suffering in police misconduct cases. The Court of Appeals finds the damages award does not shock the conscience, which is the federal standard in assessing the propriety of damages awards. Even without an expert witness, the trial judge was satisfied that plaintiff's award was appropriate. She writes, "the pain of being shot in the neck is impossible for others to imagine[.]" Also, she notes that plaintiff was fortunate to make a complete recovery, as plaintiff is a hemophiliac. He was also in the hospital for a week. And he suffered depression as a result of the incident, requiring medication.