Breitkopf v. Gentile
41 F. Supp. 3d 220
E.D.N.Y2014Background
- On March 12, 2011, after Nassau County police shot and killed Anthony DiGeronimo at his home, plainclothes NCPD BSO Officer Geoffrey Breitkopf approached the scene carrying an AR-15/M4-style rifle; he wore plain clothes and his shield may or may not have been visible. MTAPD Officers Gentile and Ramos responded and became involved in the aftermath.
- Retired NYPD Sergeant John Cafarella, at the scene, shouted words to the effect of “gun” or “drop your weapon” upon seeing a man (Breitkopf) with a rifle; witnesses differ as to wording and timing.
- Ramos grabbed Breitkopf’s shoulder and attempted to control the rifle; within about a second Gentile (about 5–10 feet away) fired one shot that killed Breitkopf. Factual disputes exist about whether there was a struggle, whether Breitkopf’s shield was visible, where the rifle was pointed, and whether any warnings were given.
- Plaintiff (Breitkopf’s wife/executor) sued Gentile, Ramos, the MTA/MTAPD, the City of New York, Cafarella, the DiGeronimos, and others under 42 U.S.C. § 1983 (excessive force and municipal failure-to-train), state tort claims (battery, negligence, wrongful death), and GML § 205‑e (penal-based liability).
- The County DA declined to bring criminal charges as to Gentile. The court considered cross-motions for summary judgment and viewed all disputes in the light most favorable to plaintiff.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excessive force by Gentile (deadly force) | Gentile shot a plainclothes officer who had not been clearly identified; no warning was given and rifle was pointed downward — factual disputes make force unreasonable | Gentile reasonably perceived an imminent threat (struggle/weapon raising) and made a split-second decision to use deadly force | Denied summary judgment for Gentile on excessive force and qualified immunity — genuine disputes of material fact preclude resolution at summary judgment |
| Excessive force by Ramos (seizure/grab) | Ramos grabbed Breitkopf precipitously and without warning, precipitating the shooting | Ramos reacted to a shouted “gun/drop your weapon,” observed an armed, unidentified person nearby, and used only de minimis force to subdue an apparent threat | Granted summary judgment for Ramos on excessive force and alternative qualified immunity — force was de minimis and objectively reasonable |
| Municipal liability (MTA and City) — failure to train/supervise | MTAPD/NYPD training was inadequate, particularly on identifying plainclothes officers and realistic scenario training; MTA/City were deliberately indifferent | MTA and NYPD Academy provided training on use of deadly force and plainclothes confrontations; no pattern of similar violations and no evidence training was tantamount to no training | Granted summary judgment to MTA and City on Monell failure-to-train claims — no deliberate indifference or causal link shown; City also shielded by contractual/causal limits and plaintiff failed to file required local notice re: negligence claim against City |
| GML § 205‑e and negligence for Cafarella’s conduct | Cafarella’s words/actions (ordering people and yelling “gun”) created a false impression of authority and negligently induced officers to act, proximately causing death; also criminal-impersonation theory under Penal Law § 190.25(3) | Cafarella was a retired sergeant who identified himself; he had no intent to impersonate or obstruct police and did not cause the shooting | Denied summary judgment as to Cafarella on negligence/wrongful death and GML § 205‑e claim based on Penal Law § 190.25(3) — factual disputes about his conduct, perceived authority, and causation survive summary judgment |
| Liability of DiGeronimos (parents) for Anthony’s possession of knives / negligence | Parents negligently entrusted weapons to Anthony and should be liable for resulting police response/friendly-fire death | The parents had no duty to prevent a police-on-police friendly-fire shooting and their acts did not proximately cause Breitkopf’s death | Granted summary judgment for the DiGeronimos — no duty or proximate causal connection to the shooting; Penal‑based § 205‑e claims against them fail |
Key Cases Cited
- Graham v. Connor, 490 U.S. 386 (objectively reasonable standard for force under the Fourth Amendment)
- Tennessee v. Garner, 471 U.S. 1 (deadly force justified only where officer has probable cause to believe suspect poses significant threat)
- Monell v. Dep’t of Social Servs. of City of New York, 436 U.S. 658 (municipal liability requires policy, custom, or deliberate indifference)
- Canton v. Harris, 489 U.S. 378 (failure-to-train theory; single-incident liability narrow and requires obvious need)
- Connick v. Thompson, 563 U.S. 51 (pattern ordinarily required to establish deliberate indifference; single-incident exception limited)
- Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756 (2d Cir. 2003) (deadly-force objective-reasonableness analysis)
- Salim v. Proulx, 93 F.3d 86 (2d Cir. 1996) (qualified immunity — split-second deadly force inquiry focuses on officer’s knowledge immediately prior to shooting)
- O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29 (2d Cir. 2003) (same; evaluation of split-second decision and qualified immunity)