May 2020 E-Newsletter

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Trial Moves Forward for Mastic Resident Suing Suffolk County Police Department for Use of Excessive Force and Intentional Infliction of Emotional Distress

A judge ruled in favor of Al M. Kirby, a resident of Mastic who was granted a jury trial after filing an action against the Suffolk County Police Department, Officers Donald Santamaria and John Does 1-4 for violations of his federal constitutional rights, state law claims of negligence, battery, abuse of process, and intentional infliction of emotional distress. The defendants moved for summary judgment for the federal claims and urged the Court to decline to exercise jurisdiction over the state law claims.

On January 29, 2016, Mr. Kirby went to a bar in Mastic to meet with some friends. After four hours, he decided to take a cab home. When he arrived home, he realized he left his wallet, which contained 25 credit cards, in his vehicle, which he left back at the bar. Fearing his car might be broken into, he took his wife’s car to the bar and retrieved his wallet and returned home.

During testimony, Mr. Kirby admitted he “didn’t fully stop” at a stop sign at the intersection of Main Street and River Road, but added he was driving the speed limit. Officer Santamaria claimed Mr. Kirby was driving at 40 miles per hour then accelerated to 70 miles per hour; when he put on his emergency lights, he said, Mr. Kirby failed to pull over. Mr. Kirby said he drove “some distance” before noticing the emergency lights.

Mr. Kirby, a U.S Marine veteran, indicated he pulled over under a streetlight, turned off the ignition, opened his driver’s window and placed the keys to the car on the dashboard. He sat as he waited for the officer to approach. Although the officer disputes Mr. Kirby’s account, it was not disputed that Officer Santamaria produced his pistol and shot a round into the side of Mr. Kirby’s vehicle. Mr. Kirby was not hit. The officer claimed that Mr. Kirby did not lower his window; however, the evidence proved that there was a bullet hole in the outside of the car door and a bullet hole through the window. Since there is no dispute that there was only one shot fired, the credibility of the officer is a serious issue in this case.

According to Mr. Kirby, Officer Santamaria ordered him to open the door, get out of the car, walk backwards, get on his knees and place his hands behind his head. Mr. Kirby testified that he told the officer that he could not fully place his hands behind his back because of a titanium plate and screws in his neck and added that he has a medical condition. Officer Santamaria claimed he called for a supervisor and additional units to respond. He said Officer Jeff Cline patted down Mr. Kirby, after which Mr. Kirby stood up on his own.

It was not disputed that Mr. Kirby was arrested for having driven the car after drinking, to which he admitted. He was arrested and transported to the Seventh Precinct, where he was charged with operating a motor vehicle while intoxicated in the first degree, operating a motor vehicle while impaired by alcohol, and traffic violations. He was released on his own recognizance and later pleaded guilty to a lesser charge of driving while being impaired by alcohol.

After his arrest, Mr. Kirby received medical treatment for his neck, back and knee injuries and for post-traumatic stress disorder (PTSD). He also testified that he suffered a heart attack in September 2016 due to anxiety and a panic attack that resulted from the arrest.

On March 19, Judge Eric N. Vitaliano of the United States District Court, Eastern District of New York, ruled in favor of Mr. Kirby, ruling that Officer Santamaria displayed excessive force. Judge Vitaliano ruled, “[A]lthough the absence of physical injury is often dispositive of reasonableness, a plaintiff may always defeat a summary judgment motion by supplying evidence that the force applied by an officer was unreasonable, and that the plaintiff suffered compensable injury as a result.” The Court also found that “psychological injury can be compensable in an excessive force case. Bathed in that light, having created a genuine issue as to the circumstances leading to Officer Santamaria’s discharging his firearm and the extent of Kirby’s injuries, Kirby is entitled to a jury’s determination of reasonableness.”

The Court also agreed with Mr. Kirby’s documented medical records that he suffered from PTSD as a result of the incident and the arrest. The defense argued that Mr. Kirby failed to produce a medical expert during the trial, as mandated by Federal Rule of Civil Procedure 26(a)(2), but, the Court argued, “[C]ontrary to the argument defendants advance, medical records evidencing PTSD may, on a summary judgment motion, be considered by the Court and may form the basis for defeating the motion, even in the absence of medical testimony.”

Mr. Brewington, along with Cathryn Harris-Marchesi of The Law Offices of Frederick K. Brewington, represented the plaintiff in this motion.

To read the decision, click here.

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