Phillips v. The City of Middletown

Background

Richard G. Dinneny called 911 from a residence in Middletown on July 13, 2016. He reportedly said that he was intoxicated, armed, wanted to die, and would shoot his girlfriend and responding officers. Officers George Neilson, Jason Berman, David Franck, and Jordan McInerney responded. They saw Dinneny holding what appeared to be a black handgun. Although the weapon was later determined to be a pellet gun, the court noted that it resembled a real handgun.

The officers repeatedly ordered Dinneny to drop the gun. He refused and said words to the effect of “shoot me” or “kill me.” The court treated as undisputed that Dinneny raised his arm with the gun in the direction of the officers, who were within approximately twelve feet of him. Berman and Neilson fired, and Dinneny died at the hospital.

Phillips asserted federal claims under the Fourth, Eighth, and Fourteenth Amendments and state-law claims. After an earlier ruling, the claims remaining for this motion were Fourth Amendment excessive force against the four officers, assault and battery against those officers, and wrongful death against the officers and the City.

Summary-judgment standard

The court explained that summary judgment is appropriate when the evidence shows no genuine dispute over a fact that could affect the result and the moving party is entitled to judgment under the law. The nonmoving party must present evidence from which a reasonable jury could rule in that party’s favor; speculation and unsupported assertions are insufficient.

The court also considered qualified immunity, which generally protects government officials from civil damages when their conduct did not violate a clearly established right or when reasonable officials could disagree about whether the conduct was lawful.

Fourth Amendment excessive-force claim

The court analyzed the shooting under the Fourth Amendment’s objective-reasonableness standard. It focused on the circumstances at the moment the officers used deadly force, particularly whether Dinneny posed an immediate threat of death or serious physical injury.

The court rejected theories that it had previously found could not support the claim, including arguments concerning alleged violations of police procedures and whether the officers should have recognized the weapon as a pellet gun. The court stated that the officers reasonably could treat a pellet gun resembling a handgun as a real handgun.

The court concluded that the evidence did not create a material factual dispute. Dinneny was holding the gun, refused commands to drop it, and raised it toward the officers. The court found that a reasonable jury could not conclude that the officers acted unreasonably by using deadly force in response to that threat. It also found that Dinneny’s mental state, intoxication, suicidal statements, and alleged lack of criminal intent did not eliminate the immediate threat created by his conduct in the seconds before the shooting.

The court separately considered forensic evidence from Dr. Zhongxue Hua concerning the position of Dinneny’s wrist and gun when he was shot. It held that this evidence did not establish where the gun was pointing when the officers first fired and could not defeat summary judgment without speculation. The court also found that the other alleged inconsistencies identified by Phillips were either unsupported or immaterial to whether Dinneny posed an immediate threat.

The court therefore granted summary judgment on the excessive-force claim. In addition, the court held that, at minimum, the officers were entitled to qualified immunity because not every reasonable officer would have disagreed that deadly force was necessary in the situation.

State-law claims

The court held that New York assault and battery claims against police officers are evaluated under the same standard as Fourth Amendment excessive-force claims. Because the court granted summary judgment on the excessive-force claim, it also granted summary judgment on the assault and battery claims.

The court further held that the wrongful-death claim could not proceed because the negligence claim had already been dismissed and the court had now granted summary judgment on the excessive-force, assault, and battery claims. Without an underlying wrongful act, neglect, or default, the wrongful-death claim could not be established.

Disposition

The court granted Defendants’ second motion for summary judgment, directed the clerk to enter judgment for Defendants and close the case, and ordered Plaintiff’s counsel to provide Phillips with a copy of the Opinion and Order.