TRIAL: KANE v. BOND ET AL.

You have been selected as a juror for the civil trial of Larry Kane vs. Michael Bond, Robert Sullivan, and the City of Bayshore. This is a civil rights action brought in federal court under 42 U.S.C. § 1983, based on a police officer shooting a young man during the course of a routine traffic accident investigation. The victim of the shooting (Larry Kane) is suing the police officer for using excessive force, the chief of police (Robert Sullivan) for negligent supervision, and the city for having policies that condoned the use of force by its officers. He seeks compensatory and punitive damages. The police officer claims he only used reasonably necessary force in self-defense. The police chief denies negligent supervision. The city claims the officer was acting outside his authority and against city policies. The events took place in July two years ago, at an apartment complex in a fictional city called Bayshore, Columbia (population 150,000). Compensatory damages have been stipulated, and the only issues to be resolved by the jury are who, if anyone, is liable for plaintiff's injuries, and whether any defendant acted sufficiently outrageously that punitive damages should be assessed.

Plaintiff alleges that Michael Bond was a police officer cadet employed by the Bayshore Police Department and supervised by Police Chief Robert Suillivan, and was acting within the scope of his authority as a police officer under color of state law on July 6, 2001, at or about 7:30 p.m., at or near the Knightridge Apartments, 2412 Rockport Road, plaintiff was detained by defendant Michael Bond for questioning concerning a traffic accident. In the course of the stop, Michael Bond intentionally and without provocation, struck plaintiff on the head with a "nightstick" and the butt of a handgun, causing injury. Without warning, Michael Bond intentionally shot plaintiff in the back and wrist, causing serious injury. As a result of the conduct described above, plaintiff experienced humiliation, emotional distress, pain and suffering, incurred expenses including legal fees and medical expenses, was physically injured requiring hospitalization, and was otherwise damaged. Plaintiff believes that defendant Michael Bond was acting in accordance with official policies and practices of the Bayshore Police Department and Chief Sullivan which permitted untrained police officer cadets to carry and use guns without adequate training or supervision.

Defendant Michael Bond generally denies the allegations, and claims that if he did any of the acts complained of, he did so in self-defense of his person and the general public, using no greater force than was reasonable and necessary to protect himself and the public from imminent serious bodily harm. He believes that his actions were justified and within his statutory authorization as a police officer of the State of Columbia in the course of an attempt to lawfully apprehend plaintiff.

The City of Bayshore and Chief Sullivan are jointly represented by a single attorney. They also deny the allegations. They argue that in a civil rights case, the employer cannot be liable respondeat superior, but must be shown to have personally engaged in wrongdoing. If defendant Michael Lowell Bond did the acts alleged, they claim he did so in his personal capacity for personal reasons contrary to the policies and practices of the City of Bayshore Police Department and without authorization, and therefore was not acting under color of state law.

The essential elements of a §1983 action against an individual police officer are:
a. The plaintiff is a citizen of the United States.
b. The plaintiff was deprived of some right, privilege or immunity secured by the Constitution of the United States. The use of excessive force by the police in apprehending a criminal suspect is a violation of the Fourth Amendment right to be free from unreasonable seizures, which is applicable to the states through the Due Process clause of the Fourteenth Amendment. Whether the force used is excessive is an objective standard (the subjective intent of the officer is irrelevant). Given the circumstances as they appeared to be, how much force would a reasonable police officer have used, considering 1) the severity of crime for which the suspect was being arrested; 2) whether plaintiff posed an immediate threat to the police or others; and 3) whether plaintiff resisted arrest or tried to flee. The use of deadly force is reasonable only if the officer has probable cause to believe that serious physical harm to himself or others is imminent. Usually a warning must be given before deadly force is used, if feasible.
c. Plaintiff was injured.
d. The deprivation of rights proximately caused the injuries.
e. Defendant acted under color of state law (within the apparent authority of a statute, ordinance, custom, usage or regulation). Employees and agents of the state are presumed to be acting under color of law if they are engaged in activities within the scope of their apparent authority.
f. The defendant acted intentionally.

The essential elements of a §1983 action against a municipality or supervisor are slightly different. In addition to proving the elements listed above, plaintiff must prove that the city or the supervising officer has either an implicit or explicit policy or practice of depriving persons like plaintiff of their rights. In excessive force cases, city policy has been shown in several ways:
1. The police department has a custom or policy condoning excessive force.
2. The police department has a specific policy, practice or regulation that caused the use of force.
3. Failure to train or discipline officers, demonstrating deliberate indifference to their use of force against citizens.
4. Failure to act on previous reports of excessive force.
Cities are not liable under a theory of respondeat superior. Plaintiff must prove that a police department policy led to the use of excessive force.

It is a defense to a §1983 action that the police officer was acting wholly outside his or her official duties. Under such circumstances, the officer is not operating under color of state law. However, it is not a defense that the officer was acting without specific authorization.

It is also a defense that the force used was reasonable and necessary under the circumstances, either to protect the officer, protect the public, prevent the escape of a criminal suspect, or apprehend a person when the officer has probable cause to believe they have committed a crime.

THE PLAINTIFF AS ITS FIRST WITNESS CALLS LARRY KANE.

CLERK: Mr. Kane, do you swear to answer truthfully all questions asked during this deposition?

MR. KANE: I do.

Q: State your name and address please.

A: Larry Kane, 1711 Miller Drive, Bayshore.

Q: What is your date of birth?

A: February 16, 1976

Q: When did you decide to bring suit against the city?

A: As I was recovering in the hospital. I talked to a lawyer after I got out.

Q: Why did you decide to bring a lawsuit?

A: Because that trigger-happy cop shot me for no reason.

Q: Tell me about yourself, like where you live, if you're married, and so forth.

A: I live by myself in an apartment. I'm single. I moved here three years ago after college at Pepperdine. I got a job working part-time with a marine biologist collecting sea animals. It brings in enough money to live on. I'm working out in the open and around the ocean.

Q: What were your interests in college?

A: I was a biology major, and I was active in the Pepperdine Environmental Society. I also was involved for awhile in the California Nonviolent Peace Coalition.

Q: What's that?

A: A group that used nonviolent civil disobedience to fight for environmental issues, like interfering with whale fishing or blocking the entrance to nuclear power plants under construction.

Q: In the course of that, did you break any laws like trespassing on private property or interfering with law enforcement officers?

A: Yes, it was necessary some times.

Q: Were you ever convicted?

A: No.

Q: Do you generally like the police?

A: Not really. I think they are violent and dangerous.

Q: Tell me about your current social life. Do you have a girlfriend?

A: Sort of. Victoria Curtin and I see each other sometimes. It's not a steady thing.

Q: Do you sleep together?

A: Sometimes.

Q: How often?

A: Maybe once a week.

Q: Was this relationship ongoing in July?

A: Yes. We'd been going out for a year or so.

Q: Do you have a criminal record?

A: I was convicted for malicious mischief three years ago. I paid a $50 fine.

Q: What happened?

A: I got drunk and dumped garbage in the front seat of a guy's car.

Q: Why?

A: He was a bartender at Jason's Pub where I go sometimes, and he'd thrown me out of the bar for being rowdy a couple of days before. I wanted to get even.

Q: Let's start with the July fourth incident. In your own words, what happened on July 4, 2001?

A: I was at a party at Vicki Curtin's apartment. She lives in apartment 3-B at the Knightridge Apartments on Rockport Road. It was a Fourth of July party, and there was a lot of drinking going on, and so I guess we were being pretty noisy. Bond, in his police uniform, came in and pulled the plug on the stereo. Then he said, "All right, kids, the party's over. You've got to quiet down or I'll run you all in for disorderly conduct." Then he turned and left. I followed him outside and said we were guests on private property and we were entitled to have a good time on the fourth of July. I think he was just mad because he had to work. He turned on me and said he'd run me in to the station any damn time he pleased. I was a little drunk and feeling tough, so I said, "Try it any time, bozo." He pulled out his gun and pointed it at me telling me, "Don't fuck with the cops. Just get in your car and leave." He said he never wanted to see me at Vickie's apartment again. I explained that she had invited me, but he didn't look like he wanted to hear it. I got in my car and drove off. I may have shouted an obscenity at him as I drove off.

Q: What exactly did you say?

A: I said, "I'll get you for this, you son of a bitch."

Q: What did you mean by that?

A: That I would report him, or file a complaint or something. But I never did.

Q: Do you know how Bond knew Victoria Curtin?

A: Yes. I called Vickie and explained what had happened. She said "I'm not surprised. That guy's a creep. He used to work here as a security guard and he was always hanging around, watching me and trying to look in my windows at night." Then she asked if I wanted to come over on July 6 to go swimming and eat dinner. I said yes.

Q: Please describe in detail what happened on July 6, 2001.

A: I went over to Vickie's about 2:00. We swam and laid out in the sun until about 5:00. Then we set up a charcoal grill and cooked a steak and ate dinner. I cooked the steak and Vickie made a salad. I started to leave about 7:30, after Vickie said she had something to do that evening.

Q: Did you and Vickie have sex on that occasion?

A: No, we didn't.

Q: Were you disappointed or angry when you left?

A: I guess maybe a little disappointed, but not angry.

Q: What happened next?

A: I went outside, got in my car, started it up, and backed out. Then my car stalled, and as I was restarting it, some woman in a Mercedes backed into me.

Q: What kind of car do you have?

A: A 1999 Ford Mustang.

Q: What happened next?

A: I got out of my car. The woman, named Alexandra Spiro, I think, got out and came toward me. She accused me of backing into her, but I pointed out that she was the one who ran into me. We argued about it for a few minutes. Vickie came out of her apartment and told me to calm down. About this time, Bond arrived in his big police car, came up to me, and said, "I'll bet this is your fault. I thought I told you not to come back here." He kept crowding me, you know, stepping real close, and then I would step back, and he would crowd in again.

Q: Had you been drinking?

A: I'd had one beer for dinner.

Q: Any other alcohol that day?

A: No, not that I remember.

Q: Had you taken any drugs that day?

A: No.

Q: Have you ever taken drugs illegally?

A: Sure. I've smoked marijuana, and I tried cocaine a couple of times. I took amphetamines during exams when I was in college. So what? Everyone does that sort of thing.

Q: What happened after Mr. Bond started crowding you?

A: He backed me all the way up to my car. Then he sort of smiled, and turned to Ms. Spiro and said, "I'm sorry this kid ran into you. He's been trouble here before." I stepped forward and said, "It wasn't my fault." Vickie grabbed my arm and said to forget it. I pushed her arm away and said, "I won't forget it. This is an outrage."

Q: How far away was Bond?

A: About five feet. He wheeled around and told me to shut up or he'd shut me up. I was starting to get mad. I told him the police weren't supposed to take sides, and asked him to call another police car. Bond said he could arrest me and lock me up if I didn't shut up. Then he walked away. I asked Vickie to call 9-1-1, but he said I should just calm down and forget it. I said I was not going to forget it, that this was a free country and we had laws, and that the police couldn't just harass people. I went to sit in my car.

Q: Did you tell anyone what you were doing?

A: No. I was mad, and not thinking too clearly.

Q: So it could have appeared to Bond that you were trying to leave the scene?

A: I don't know.

Q: What happened next?

A: Bond came over and yelled at me to get out of my car. He ran up and yanked open my car door, screaming that I was under arrest. He pulled the door so hard that he fell over backwards. I started to laugh. He jumped up and he was red in the face. He said, "Get out of the car or I'll come in and get you." I said, "Hey, let's not get personal about this." He pushed me toward the passenger seat and pulled the keys out of the ignition. He pulled out his nightstick, held it out, and told me to get out of the car. When I did, he hit me on the head with it for no reason. I said, "If you weren't a cop I'd take that stick away from you and shove it up your ass." Bond took his badge off, tossed it aside, and said, "Just try it, tough guy." Then he swung a second time, and I grabbed his arm and pulled the stick away from him. Then he pulled out his gun and told me to throw down the stick. I tossed it aside.

Q: How were you holding it?

A: Down at my side.

Q: Did you threaten Bond with it or try to hit him?

A: No.

Q: Did you raise the nightstick over your head or throw it at him?

A: No, I didn't do either of those things.

Q: What direction did you toss it?

A: I don't remember. I wasn't going to argue with a madman holding a gun.

Q: What happened next?

A: Bond put the gun back into its holster. No, wait, first, I took a step for-ward to get clear of the car door in case I had to run. I turned to see where Vickie was. I was going to ask her again to call 9-1-1. I couldn't tell what hit me because my back was turned, but I think Bond hit me twice on the head with his gun butt. I fell to my knees. I was stunned and it's all a little blurry after this. Bond put the gun back in his holster and stepped up to me. I raised my arms to protect my head because I thought he was going to hit me again. He reached for his gun. I grabbed him around the waist, and put my hand over his so he couldn't pull the gun out. I was sure he was going to kill me. There was a wild, crazy look in his eyes. I pushed him back.

Q: Did he say anything?

A: Not that I remember.

Q: What did you do next?

A: I went over to my car and reached under the seat with my left hand for the extra set of car keys I keep there. I wanted to get out of there. I thought I heard a noise, so I turned around quickly. As I turned around, I saw Bond on one knee aiming his gun at me. I tried to run but hit the car door. The next thing I remember is waking up in the hospital.

Q: Do you remember being shot?

A: No.

Q: Did you hear a gunshot?

A: No.

Q: You didn't see Bond shoot you?

A: No.

Q: As best you can, describe where you were and where Bond was?

A: In the middle of the parking lot, about 10 feet away from the two cars that had crashed.

Q: Before Bond fired his gun, did he say anything?

A: Not that I remember?

Q: What happened in the hospital?

A: They put a cast on my right wrist, the one the bullet had broken, put three stitches in my head, and had to operate on me to remove a bullet from my liver. I had tubes coming out of me for drainage for a few days after they operated. And they gave me medication of some kind.

Q: How do you know?

A: I could see the cast. The doctor told me about the other stuff. He said I had been shot in the back.

Q: Who was your doctor?

A: Dr. Linton.

Q: When was the operation?

A: I guess immediately when I got to the hospital, because it was all over by the time I woke up. I was in the hospital for a week while they checked on me, and then I was released. Dr. Linton removed the cast three weeks later.

Q: Did you and Dr. Linton talk about the incident?

A: Not really. He'd just bustle in and spend two minutes with me, and then leave.

Q: Are you right or left-handed?

A: Right handed.

Q: How's your wrist?

A: It still hurts and it's real stiff. It doesn't hurt as bad as it did at first. For the first six weeks or so, it was always painful, sort of a dull throbbing. I still can't use it much or play sports or anything, but the doctors say it should be healed by Christmas. When the cast was on, it used to itch all the time.

Q: How's your abdomen?

A: Okay, I guess. It hurt for a week or so, but that's gone away and I don't seem to have any real problems with it. You can still see the scar on my stomach, though.

Q: How about your head?

A: Well, I was pretty embarrassed for awhile because they had to shave the top of my head to put in stitches, but that's grown back now. I had real bad headaches for two weeks. But they've gone away. I had a pretty bad time in the hospital, what with the headaches and my wrist throbbing and itching. I didn't sleep well -- I kept waking up. The first two days were really bad because they strapped me down so I wouldn't tear open the surgery. But I was pretty drugged up those first two days and don't remember much.

Q: Larry, did you start the fight?

A: No, sir.

Q: Did you ever attack Michael Bond?

A: No.

PLAINTIFF'S WITNESS #2 -- VICTORIA CURTIN (SUMMARY OF TESTIMONY)

My name is Victoria Leigh Curtin. I am 26 years old. I was born in 1976 in Atlanta, Georgia, but moved here when I was four years old. I was an economics and business major at Ohio State University, graduating with my B.A. in 1999. After college, I travelled around Europe for six months and then got a job as an assistant manager at Citibank in New York City. Two years ago my mother became quite ill, so I returned to Bayshore. I got a job a few weeks after I got here as the business manager of the downtown Women's Health Club, an exercise center and figure salon for women. I am in excellent health, have good hearing and eyesight, and a good memory. I currently live at 2412 Rockport Road, the Knightridge Apartments number 3-B, here in Bayshore. I have one older brother, Bruce, who is a pilot in the Navy. My parents have just retired.

On July 4, 2001, I had a Fourth of July party at my apartment. There were a lot of people there, including Larry Kane. I have known Larry for about a year and a half. I like him but he is not my only male friend. Larry and I have occasionally had sexual relations, but not on a regular basis. My sex life is my own business. I am not promiscuous, but I will say that Larry is not my only sexual partner. The party on the Fourth of July got a little wild. Apparently Michael Bond, a police officer, had to come over and quiet things down. I was in the swimming pool when this happened, so all I know is what I was told. Later that night Larry called and said that Mr. Bond had run him off the property after they had gotten into a tussle. He asked me out for July 6th, but I already had a date that evening. It was my day off, so I invited him over for the afternoon to go swimming.

I am personally acquainted with Michael Bond. He used to work as a security guard at Knightridge Apartments. I had a lot of problems with him when he worked here. Bond was always hanging around the pool and ogling the women in bathing suits. He came by my apartment sometimes and he called me up about every two weeks to ask me out. I told him I was not interested, but he kept calling me. He also tried to look in my bedroom window. I used to see him outside my apartment at night, close to my windows. He also has hassled other men I've gone out with.

On July 6, 2001, Larry came over about 2:00 p.m. We went swimming and ate dinner. As I recall we grilled a steak, but I am not certain. Larry had consumed four or five beers while we cooked and ate, but was certainly not drunk. This was between 5:00 and 7:30 p.m. Larry left about 7:30 because I had another date at 8:00. I think this made Larry mad. He is sort of possessive and can be immature. We had an argument about our relationship just before he left.

A few minutes later, I heard a crash, and looked out my window. Larry had crashed into another car. I do not know the other person. I went outside. Larry looked really mad and all tense. He was arguing with the other driver. I went up to Larry and told him to calm down and tell me what happened. He said something like, "Look at that mess. That woman backed right into me." About that time Bond arrived. He came up to Larry and accused him of being at fault. Larry said that it was not his fault, but Bond turned his back and walked away. I tried to calm Larry down. He yelled something at Bond, and Bond told him to shut his mouth or he would shut it for him. Larry said something about the police and got into his car. I could tell he was still pretty agitated. I figured it was over, so I started to walk back to my apartment.

I'd only taken three or four steps when I saw Bond run over to Larry's car. I was now about 15 feet from the car. Bond pulled open the door and fell backwards. I could not tell whether Bond pulled the door or Larry pushed it open. But I could definitely see Bond's hand on the door handle. Then they got into a fight. Bond was grabbing at Larry and pulled him out of the car. Then Bond hit Larry with his nightstick a couple of times on the head for no reason. I ran over and screamed at them to stop fighting. Then I ran over to some people who had gathered at the edge of the parking lot and screamed for someone to break up the fight and call the police, that Bond was beating Larry up.

When I looked up again, Bond had his gun out. I heard him call Larry a son of a bitch. Larry took a step forward and then turned away from Bond and leaned forward like he was about to run, but Bond hit him on the head with his gun before Larry could get away. Larry fell down, and Bond put the gun back in its holster. Then they went at it again. I can't remember exactly who did what. I ran to my apartment to call the police. When I was inside I heard what sounded like a lot of gunshots. I ran back out and saw Larry lying next to his car, bleeding. Bond was in his police uniform the whole time. No other police were on the scene until after the shooting was over.

I went with Larry to the hospital. They rushed him into surgery. Larry was in the hospital for two weeks. He had a cast on his right arm and tubes sticking out of his side. Larry told me he had been shot in the wrist and in the back. He complained a lot about headaches and that his wrist hurt when I saw him in the hospital. I've seen him since then, and he still complains that his wrist hurts. He was over at my apartment once that I remember in late August and picked up a beer in his right hand. As he started to drink it he cried out in pain and dropped the beer. He said his wrist still hurt if he moved it the wrong way.

PLAINTIFF'S WITNESS #3 -- SUMMARY OF TESTIMONY OF GORDON LINTON

I am the surgeon who attended Mr. Kane when he was brought to the Monroe County Hospital Emergency Room on July 6, 2001. I am on the staff at Monroe County Hospital.

I performed an exploratory laparotomy and cleaned and set a wound to his right wrist. Kane had been hit by two bullets, one hit the right wrist breaking some bones, and the other entered his lower back on the right side and exited from the front. It is impossible to tell which bullet hit first. Neither did any permanent damage. Mr. Kane had a blood alcohol level of .05 percent, the equivalent of 3 to 4 glasses of wine or twelve-ounce beers. At that level he would be uninhibited but not yet seriously drunk. In my opinion, Mr. Kane would have been in extreme pain for two or three days, moderate pain for a week, and only occasional mild pain in the wrist from ten days to a month after that.

I saw Mr. Kane only three times briefly after the operation; twice in the hospital to verify that he was making satisfactory progress, and once to remove the cast in mid-August. We did not discuss the shooting incident.

The complete medical record is as follows:

ADMISSION: This approximately 25-year-old male was admitted to the ER following a shooting. He was unconscious. Examination in the ER revealed a missile wound with point of entry and point of exit at about the level of the ninth rib and lateral lower chest wall. There was also a missle wound involving the right wrist. X-rays revealed some lead fragments along the course of the missle tract overlying the liver. There was no evidence of entry into the pleural space on the x-rays. X-rays of the wrist revealed a fracture in the site of the styloid process of the radius. He had a laceration on the head.and two wounds involving the lateral aspect of the right lower chest at the level of the 9th rib; one is in the posterior axillary line and one is in the anterior axillary line, slightly more medial than the anterior axillary line. The anterior one is the larger one, and is assumed for that reason to be the point of exit. There is a recent abrasion in the midline between the xyphoid and the umbilicus. Admitting diagnosis is gunshot wound, right lower chest wall with laceration of the liver, and wound involving the right wrist. Lacerations on the scalp of unknown origin.

PHYSICAL EXAMINATION: Revealed a well-developed, well-nourished male appearing the stated age. Positive physical findings revealed a missile injury with the apparent entrance site in the posterior axillary line at the level of the 9th rib with an apparent exit site in the anterior axillary line at the level of the 9th rib. Lungs were clear and well expanded. The abdomen revealed some guarding in the right upper quadrant, otherwise was unremarkable. Extremities were within normal limits, with the exception of the right wrist where there was a missile injury involving the area of the styloid process of the radius. There was a heavy odor of alcohol on his breath. The patient was unconscious.

ACCESSORY CLINICAL FINDINGS: On admission the hematocrit was 41, urinalysis revealed 2+ sugar; on July 7, serum electrolytes were within normal limits on several occasions. Hematocrit on July 9 was 29 and on July 11, 35. Drainage from the lower chest wall wound on July 10th revealed no growth in 48 hours. On July 18, white blood cell count was within normal limits, as was the urinalysis and the hematocrit was 36.5%. Chest x-rays on several occasions were negative.

COURSE IN HOSPITAL: The patient was taken immediately to the operating room from the ER where an exploratory laparotomy was done through upper paramedian incision. There was a laceration involving the lateral surface of the right lobe of the liver at the level of the 8th or 9th rib. No active bleeding was noted from it. As it was inaccessible for suturing it was elected to drain the area with two Penrose drains at a lateral stab wound. The was done and the entry and exit site of the chest wall were debrided and drained. The postoperative course was uneventful. The patient was initially treated with Achromycin and Bupronex for three days, and later changed to Keflex. At the time of discharge he was given Keftabs. All wounds healed and were clean at the time of discharge. The patient was afebrile for three days prior to discharge. At the time of the exploratory laparotomy the right wrist was debrided and the wound drained and placed in appropriate cast. This was dressed at periodic intervals and will be followed by removal of the cast, four weeks from the time of the original injury. The lacerations of the scalp were stitched closed.

FINAL DIAGNOSIS: Gunshot wound of the lower chest wall and upper abdomen with laceration of the liver. Gunshot wound of the right wrist with comminuted fracture of the articulate surface of the radius. Superficial laceration of head.

OPERATION: Exploratory laparotomy with drainage of liver and debridement of wound and repair of left wrist gunshot wound. Stitches in scalp.

DISCHARGE MEDICATION: Keftabs 250 mg. every 6 hours for 7 days.

DEFENSE WITNESS #1 -- MICHAEL BOND

Q: Will you state your full name, address and place of employment?

A: Michael Lowell Bond, 1752 South Walnut Street, Bayshore, Columbia. I work as a patrol officer for the Bayshore Police Department.

Q: How long have you worked there?

A: Since April 16, 2001.

Q: What are your duties?

A: I am assigned to a radio car and I patrol Bayshore. I handle routine complaints, make traffic stops, and investigate traffic accidents. From April 16, 2001 to October 15, I was a police officer cadet undergoing training in addition to my field assignments.

Q: Please tell me about your personal and family background.

A: I was born January 23, YR-26. I went to Bayshore High School. My mother has passed away, but my father still lives here. I am not married. I was married but I got divorced after only a year. I have one child that I send support to. I worked at a Grand Union Supermarket for two years, doing stock work and patrolling the aisles for people who eat food, and then got a job as a security guard at Knightridge. I worked there for four years and finally got a job here. I always wanted to be a police officer.

Q. Did you receive any law enforcement training?

A: Well, I had on-the-job training as a private security guard . . .

Q: No, I mean at the Bayshore Police Department.

A: Yes. The Department hires you as a cadet and you receive six months of training before you become a full patrol officer. For the first two weeks, you read a training manual that contains a lot of stuff in it on traffic laws and how to fill out a ticket, and basic procedures like reading suspects their rights. You have to pass a written multiple-choice test. Then you are assigned to work with an experienced officer so you learn the routine, go to court, learn how to take fingerprints, preserve evidence, and so on. Then after a couple of months they put you out in the field by yourself. It's like flying solo when you're taking flying lessons.

Q: Did you attend the Columbia Police Academy?

A: No. With the budget cuts, the Department couldn't afford it. They have to pay tuition, you know. So the Department instituted the on-the-job training program instead.

Q: Did you receive any training in the use of firearms?

A: Yes. We had to put in 20 hours at the pistol range with the instructor. We had to pass a proficiency test.

Q: Did you receive any training specifically in when to use your firearm in a confrontation with a suspect?

A: No live training, but there was a written policy in the training manual which I read.

Q: Do you think the Department adequately prepared you for the confrontation with Larry Kane on July 6?

A: No, but other officers say that nothing prepares you for your first life-and-death situation.

Q: Did you know Larry Kane prior to July 6, 2001?

A: Yes.

Q: Will you explain that acquaintance in detail?

A: I first encountered Kane on July 4, 2001. I responded to a call from a resident of the Knightridge apartments to investigate excessive noise at a party. I went to apartment 3-B which belongs to Victoria Curtin where a Fourth of July party was in progress. I asked them to please keep the noise down. Larry Kane followed me out of the apartment, shouting obscenities. I told him to be quiet or I would arrest him. He picked up a stick and said, "Just try it, bozo." I pulled my revolver and ordered him to put down the weapon or I would arrest him as drunk and disorderly. He said, "Fuck, you," but he put down the stick. Then he got into his car and drove away.

Q: That's where you used to work as a security guard?

A: Yes.

Q: Was this gun issued by the Bayshore Police Department?

A: No, it was my personal gun. Cadet officers are not issued guns by the Department until they are promoted to patrol officer status.

Q: Did the Department know you were carrying your own gun?

A: Sure. Everyone carried them.

Q: Did you report this incident?

A: Not officially because there was no arrest, but I told Chief Sullivan about the incident. He criticized my handling of the incident and said I had to control the situation whenever a suspect had a weapon because they pose a danger to the public.

Q: Did you tell Sullivan that you were carrying a personal firearm?

A: Sure -- he knew about it anyway. He didn't say anything to me about not carrying it. In fact, all the experienced officers tell you to carry an extra firearm because you're a target whenever you're out in the field in a police uniform.

Q: Were you by yourself on July 4?

A: Yes. At that time it was customary for cadets in their third month of training to go out solo.

Q: Is that policy still in effect, to your knowledge?

A: No. Chief Sullivan put a new guy in charge of cadets shortly after this incident and he required that cadet officers be accompanied by an experienced officer in the field.

Q: Okay. Turning to July 6, please describe what happened.

A: I went on duty at 4:00 p.m., and was assigned to patrol the area on the southeast side of Bayshore. Things were uneventful until a little before 7:30 when I got a radio run to investigate a vehicular accident at building B, Knightridge Apartments. I proceeded to the scene and saw two vehicles had run into each other. It appeared that a 1999 Ford Mustang had backed into a Mercedes. I recognized Larry Kane who was arguing with a woman identified as Alexandra Spiro. As I approached, I also recognized Victoria Curtin from apartment 3-B. I heard her telling Kane to calm down, and she had her hand on his arm. I asked him if he was Larry Kane and he said, "I'm not going to tell you anything." He was very loud and his face was red and it smelled like he had been drinking. I turned to ask Ms. Spiro her name and to tell me about the accident when I heard Kane scream, "Get out of my face." I turned and saw him push Ms. Curtin away.

I then told Kane to be quiet or I would hold him for disorderly conduct. Kane said, "You ain't gonna hold me any goddam place." Some other tenants had gathered, so I went back to my car and radioed for a back-up unit. At this time my back was to Kane, but I heard Ms. Curtin tell him again to be quiet, and he was shouting something like, "I'm not going to shut up and that kindergarten cop can't arrest me. I know my rights. I'm going home." I turned around and Kane was getting in his car. I ran over and told him he was being detained and could not leave until I had completed my investigation. I was standing beside the door to his car. He said, "You're not arresting me." I put my hand on the car door. Kane suddenly opened the door and pushed it into me, knocking me to the ground. I jumped up and grabbed his arm before he could close the door. I reached over and snatched his keys out of the ignition and stepped back. I pulled my nightstick and ordered him out of the car. He jumped at me, and I swung with the nightstick, hitting him once on the head. It didn't even phase him. I began to wonder if maybe he was on drugs, like angel dust.

We struggled and Kane pulled the nightstick out of my hand. He raised it over his head in a clenched fist. I pulled my revolver and pointed it at him and told him to put it down. He threw it at me, but missed. I jumped out of the way. Kane rushed at me again, and grabbed me in a bear hug. I hit him several times on the head with my gun, and then scrambled free. I put the gun back in its holster. Kane jumped me again and tried to get my gun. I pulled free but he knocked me down.

I got up on one knee, a little stunned. I saw Kane about ten feet away at the open door of his car. He was reaching under the seat. I thought he was going for a weapon, and I saw something metal in his left hand, and I drew my revolver and fired six times. I emptied the chamber. I was in shock. I don't remember firing all six times, just the sound of the gun clicking after all the bullets were used up. Kane was lying on the ground, bleeding. A few minutes later, the back-up unit arrived.

Q: Please describe exactly the positions of the Mustang and the Mercedes when you first arrived.

A: They were right in the middle the parking lot, each car about 10 feet from a parking place. The back ends of the cars had hit.

Q: In other words, both cars appeared to have been backing out of parking places when they collided?

A: Ms. Spiro was backing out. Kane's car was already out.

Q: Was Spiro's car the last one in her row?

A: I'm not certain, either last or next to last.

Q: How could you tell Kane and Spiro were arguing?

A: I could hear them yelling and see them pointing at cars and making angry gestures.

Q: How close were you to Kane when you first confronted him?

A: Two or three feet away.

Q: When Kane pushed Victoria Curtin, did she fall down?

A: No.

Q: Did she ask for your help?

A: No.

Q: Can you mark on exhibit one where Kane and Spiro were arguing?

A: Sure.

Q: When Kane jumped at you the first time, describe exactly what he did.

A: He got out of the car fast, put his feet on the ground, and then lunged at me with him arms out like he was going to grab me around the waist.

Q: What did you mean when you said Kane was trying to pull your gun out of its holster?

A: His hand was on the gun and my hand was on his. I could feel him trying to pull upwards when I was pushing downwards.

Q: Now, just before you fired your gun, could you mark exhibit one with your location?

A: Okay.

Q: Was your back against a parked car?

A: No. I was a few feet away.

Q: Was anything obstructing you to the left or right?

A: No. That's just open parking lot.

Q: As far as you know, you followed Police Department practice and custom in this encounter?

A: Yes, sir.

Q: At the point at which you first pulled your gun and pointed it at Mr. Kane, was he under arrest or a suspect in any crime?

A: No. Well, maybe trying to leave the scene of an accident.

Q: Were you aware that Larry Kane was dating Victoria Curtin?

A: Yes.

Q: And you knew Victoria, didn't you?

A: Yes.

Q: What kind of relationship do you have with Victoria Curtin?

A: What do you mean?

Q: Did you have a social or personal relationship with her?

A: Not exactly.

Q: What do you mean?

A: Well, I liked her. I met her when I worked as the apartment security guard. She was good-looking. I talked to her sometimes. I asked her out a couple of times but she said no.

Q: Were you jealous of Larry Kane?

A: Sure, a little. But that had nothing to do with the shooting.

Q: Before you fired your gun, did you give Mr. Kane any warning?

A: No. It all happened fast.

Q: Are you aware you shot him in the back?

A: No.

Q: Were you injured in any way?

A: No.

Q: Mr. Bond, did you hold any malice toward Mr. Kane?

A: No. I didn't like him much, but I wouldn't say I had any strong feelings about him.

Q: Why did you pull the trigger?

A: I was afraid for my life. I thought he was going for a gun.

Q: Did you think you had any other choice?

A: No, there was no alternative.

DEFENSE WITNESS #2 -- ALEXANDRA SPIRO (summary of testimony)

I was a witness to a police shooting incident that took place on July 6, 2001, at approximately 7:30 pm, in the parking lot of my apartment building at the Knightridge Apartments, 2412 Rockport Road, Bayshore.

I am 34 years old, born June 9, 1966. I am an X-ray technician at Monroe County Hospital. I am single, and live in apartment 15-B, Knightridge Apartments, Bayshore. When I graduated from high school, I went to one year of college and didn't like it, so I enlisted in the Navy. I served as a medical technician for six years. I was stationed in San Diego, Guam, and Naples. In 1992, I was arrested by military police for possession of marijuana. Because it was my third offense, I was given 30 days in the brig and a medical discharge. I moved to Bayshore and got a job in the radiology department at Monroe County Hospital. I have worked there continuously since then, and have had no further problems with drugs. While working at the hospital, I completed the medical technician program at Monroe Community and Technical College, and am now a certified X-ray technician.

I am vaguely acquainted with Michael Bond. He worked as a security guard at the Knightridge Apartments for several years. He always seemed pleasant, professional, and even-tempered. He always talked to me when he saw me. I do not recall him ever being violent or angry. I heard several residents of the apartment complex express similar surprise at this shooting incident, because they also remembered him as a nice, even-tempered guy. He has run errands for me, and let service people into my apartment when I was working. He also has helped me move furniture on a couple of occasions.

On July 6, 2001, I left the house at 7:30 to run an errand. I backed my Mercedes out of its parking place at the very end of the lot. As I was looking over my shoulder, I saw a Ford Mustang back out of a parking place across the lot very quickly. He backed about twenty feet, then slammed on the brakes. His car skidded backwards into mine. I got out to look, and the damage was very minor. The driver of the other car ran over to me and started yelling that it was my fault. I had never seen him before, but I now know him to be Larry Kane. Mr. Kane was upset and appeared slightly intoxicated. I let him yell, and then suggested that we let our insurance companies settle it.

A few minutes after the accident, Michael Bond showed up. He went up to Mr. Kane and asked him something. I think he asked to see his driver's license. Mr. Kane responded that he wasn't going to tell Bond anything. So, Mr. Bond came over to me and I explained what happened, showed him the damage, and told him it was no big deal. A young woman, whom I understand to be Victoria Curtin, went over to Mr. Kane and I heard her tell him to be quiet and calm down. Mr. Kane pushed her away, almost knocking her down. I had walked over and was standing by the door of my car. Mr. Kane and Ms. Curtin were by the front end of his car. Mr. Kane did not look normal. His face was red and his muscles were tense and his movements were very fast and jerky. He was agitated. I did not get close enough to see his eyes so I cannot be sure, but he looked like he might be having a drug reaction, probably to cocaine. I saw a lot of that in the Navy.

Mr. Kane then got into his car and shut the door. Bond walked over and I heard him ask Kane to step out of his car. He said something about arresting Kane, but I didn't hear it all. He was about a foot from the car, and his hands were at his side. Bond did not appear angry to me. Kane then pushed open the car door, and it hit Bond and knocked him down. Bond stood up and pulled out his nightstick. He told Kane to get out of the car. I moved to get well out of the way. I walked to my car. I looked back, and Kane and Bond were struggling together. I did not see who started it. Kane got the nightstick away from Bond and raised it over his head as if to hit Bond. Bond pulled his gun, pointed it at Kane, and told him to drop it. Kane threw the nightstick off to one side. I decided to get in my car for protection in case they started shooting. I got in and looked out through the back window and saw that Kane and Bond were wrestling again, but at least Bond had put his gun away. I decided to move my car back into its parking place and out of the way of the fight. I have no idea why moving my car seemed important at that moment.

I turned away and reached for the ignition and heard the sounds of gunshots. I did not see what caused it, because I ducked. I then looked out and saw Bond standing up with the gun in his hand. I couldn't see Kane, so I got out. I saw him lying next to his car, bleeding heavily from the abdomen. He was unconscious but alive. Kane did not have a weapon in his hands as far as I could tell. A few minutes later, more police arrived. They put Kane in a police car and took him to the hospital.

In my opinion, Kane had several opportunities to stop the struggle. All he had to do was stop struggling and trying to get away. If he had just done what Bond wanted, or if he had just stood quietly with his arms at his side, none of this would have happened.

DEFENSE WITNESS #3 -- ROBERT SULLIVAN (Summary of testimony)

My name is Robert C. Sullivan. I am 48 years old, married, with two children in high school. I have lived in Bayshore since 1992. I have worked for the Bayshore Police Department ever since I arrived here. I started out in 1977 working for the New York City Police Department, 12th precinct in Manhattan. I was trained at the New York City Police Academy, took night classes in criminal justice at Pace University, attended three summer sessions at the FBI Academy in criminal investigation techniques, and passed my sergeant's exam on the first try in 1987.

In 1991, my wife was assaulted and seriously injured by three male juveniles on the street in front of our apartment building. We decided that it was time to leave New York. I sent letters and resumes to all the police departments in medium and small cities that had relatively low crime rates. I got several responses, including one from Bayshore, which was looking for a Chief of Detectives. I accepted the Bayshore job. I was Chief of Detectives from 1992 to 1996. I was selected by the police commission to replace Chief Donaldson when he retired in June, 1996, and I have been in that position ever since.

I was Chief of Police for Bayshore at the time of the altercation between Larry Kane and one of my cadets, Mike Bond. I was in charge of Police Department policy, including the hiring and training of cadets. I report to the civilian police commission which is appointed by the mayor of Bayshore. Our annual budget is set by the Bayshore City Council based upon my recommendation. I have no personal knowledge of any of the events that occurred around the fourth of July weekend, 2001. I was out of town with my family. I found out about the shooting on July 7.

I understand from the police reports and my interview with Officer Mike Bond that Kane was injured, but that it was as much Kane's own fault as Bond's. I was satisfied at the time that Bond acted in self-defense and the shooting was justified, so I approved Bond to continue working for the police department. Shortly thereafter, he qualified to become a regular patrol officer.

According to our records, Michael Bond was hired as a police officer cadet on April 16, 2001. I am responsible for the cadet program and am its immediate supervisor. The program was instituted in 2000 in response to budget cuts made by the City Council. We used to send rookie police officers to a six-week training program at the state police academy, but it cost us $8500 per person. Under the two-year budget approved by the Council in 2000, we had to trim almost $100,000 a year out of our expenses. We could make part of the amount by not purchasing new patrol vehicles for two years, but the remaining amount could only be met by either reducing the number of officers or eliminating the training program. I recommended to the mayor, and he agreed, that we could provide adequate training here in Bayshore, so that eliminating the training program was preferable to reducing the size of the police force.

To make up for the absence of a formal training program, I instituted a new policy that gave preference in hiring new officers to applicants with prior law enforcement or security experience, and then put them on a six-month on-the-job training program as a cadet. Bond was one of the applicants we hired because he said he had experience in private security work. I do not recall who he worked for. I have no specific memory of running a background check on him, but it is my practice to run such a check on every person we hire to verify prior employment and see if he has a criminal record. There is nothing in Bond's personnel file to indicate a prior criminal record or a problem with verifying his prior employment.

In lieu of sending new cadets to the academy, we provide on-the-job training by assigning them to experienced police officers for six months. They spend most of their time working with senior patrol officers, because that is where they will start out. We make sure they spend at least a little time with the detective squad, so that they can be trained in crime scene and evidence preservation. During this time cadets are in uniform, and are issued all standard police department gear except a service revolver. They have to complete twenty hours of firearm instruction before the end of their six-month training in order to be hired permanently as a patrol officer. It has always been official policy that no officer may carry a personal firearm or any weapon that is not issued by the Department. However, it is well known that many officers violate the policy and carry a back-up gun. If we find out about it, we enter a disciplinary warning in their file, which can result in loss of seniority points and can delay promotion. I had no specific knowledge prior to the shooting incident that Bond was carrying a personal firearm, and he was not given permission to do so. After this incident, I strengthened the policy against personal weapons, and instituted a mandatory two-day suspension without pay for any officer caught with a personal firearm while on duty.

As I had envisioned the cadet program, our trainee officers would initially be teamed with experienced officers in the field, and then sent into the field in relatively safe areas by themselves occasionally to give them confidence they could handle the job. These "solo days" were kind of an experiment that had been going on for several months without incident. Bond was unsupervised on the day of the incident. After the shooting, I eliminated the "solo days". If an experienced officer had been accompanying Bond on July 6, this whole regrettable incident might not have happened. Bond could have watched someone defuse a tense situation and learned from it.

On the day of the shooting, it was official Police Department policy that cadet officers were not to carry weapons, were to go into the field only when supervised by a senior officer, and were not to become involved in citizen confrontations without the approval of a supervisor. Bond violated these policies and therefore was acting outside the scope of his official duties when he confronted and shot Larry Kane.

JURY INSTRUCTIONS

Members of the Jury, it is now my duty as judge to instruct you in the law that applies to this case. It is your duty as jurors to follow these instructions and to apply the rules of law to the facts as you find them from the evidence. The evidence which you are to consider in this case consists only of the testimony of the witnesses and the exhibits. Although you are to consider only the evidence in the case in reaching a verdict, you must bring to the consideration of the evidence your everyday common sense and judgment as reasonable men and women. Thus, you are not limited solely to what you see and hear as the witnesses testify. You may draw reasonable inferences from the evidence which you feel are justified in the light of common experience, keeping in mind that such inferences should not be based on speculation or guess.

A verdict may never be influenced by sympathy, prejudice or public opinion. Your decision should be the product of sincere judgment and sound discretion in accordance with these rules of law.

The plaintiff has the burden to prove that he was injured, that the defendant deprived him of a constitutional right under color of state law, and that such act was a proximate cause of his injuries.

The defendant has the burden of proving, as an affirmative defense, that he had a reasonable belief that the force he used was necessary and lawful.

In a civil case, whenever a party must prove something, they must prove it is true by a preponderance of the evidence. The term "preponderance of the evidence" means such evidence as, when weighed with that opposed to it, has more convincing force, and from which it appears that the greater probability of truth lies therein.

A proximate cause of injury is a cause which, in natural and continuous sequence, is a significant factor in producing the injury, and without which the injury would not have occurred.

The plaintiff, Larry Kane, seeks to establish that the defendant Michael Bond violated his civil rights. To prove his case, plaintiff must prove by a preponderance of the evidence that the defendant intentionally used excessive force in apprehending him. In considering whether excessive force was used, you may consider the severity of the crime, whether plaintiff posed an immediate threat, whether plaintiff resisted or tried to flee, and what a reasonable police officer would have done. If the evidence convinces you that the defendants deprived plaintiff of his civil rights, you should return a verdict for the plaintiff.

To prove a case against the defendant Robert Sullivan, the plaintiff must prove by a preponderance of the evidence that the defendant personally behaved in an unreasonable or negligent manner that showed a disregard for the safety of the public, and failed to properly supervise Mr. Bond. The failure to properly supervise Mr. Bond must be a proximate cause of his injuries.

To prove a case against the defendant City of Bayshore, the plaintiff must prove by a preponderance of the evidence that the City deprived plaintiff of his constitutional right to be free from unreasonable seizures by establishing, maintaining, or condoning a pattern, practice or policy of deliberate indifference to the rights of inhabitants similarly situated to plaintiff, and that Plaintiff was injured as a proximate result of conduct by a police officer that resulted from the pattern or practice of the defendant municipality.

The defendant Michael Bond claims that any force he used was justified. To prove his case, the defendant Michael Bond must establish by a preponderance of the evidence that the force used was necessary for self-defense or part of his lawful duties. Any person who reasonably believes he is under attack may use such force in self-defense as reasonably appears necessary under the circumstances, but may not use excessive force.

A police officer is lawfully entitled to use force to apprehend a person if the officer has probable cause to believe the person has committed a crime, is an imminent threat to the safety of any person, or is attempting to resist arrest or flee from custody, but an officer may not use excessive force. In this case, defendant Bond used deadly force, which is permitted only if he had probable cause to believe that serious physical harm to himself or others was imminent and gave a warning to plaintiff if feasible. If the evidence convinces you that Bond's actions were justified, you should return a verdict for the defendants.

The defendants Sullivan and the City of Bayshore claims that the acts of Michael Bond were wholly outside his official duties and therefore were not done under color of state law or under the supervision of Sullivan. To prove its case, the defendants must establish by a preponderance of the evidence that the conduct of Michael Bond was outside the scope of his authority and that at the time of the conduct complained of, Bond was acting as a private citizen and not as a police officer. If the evidence convinces you of this fact, you should return a verdict in favor of the City of Bayshore and Robert Sullivan.

If you find for the plaintiff, you do not have to award damages to compensate him for his injuries. The attorneys have agreed that the the reasonable value of his injuries, medical care, lost income, and pain and suffering is $500,000. There are two questions before you: Who bears legal responsibility for those injuries, and did anyone act outrageously enough that they should be made to pay additional punitive damages.

With respect to responsibility, your job will be to assign a percentage to each party that represents their share of the blame. That percentage may range from 0 to 100. There are four parties -- The Plaintiff Larry Kane and the three defendants. The total of the percentages you assign must add up to 100.

If you find against either Bond or Sullivan, you may consider whether you should award additional damages against either or both for the sake of example and punishment. You are not required to award these punitive damages; it is entirely up to you. You may award punitive damages only if you find by a preponderance of the evidence that the defendant deliberately deprived plaintiff of his civil rights, or was guilty of actual malice. Actual malice means the defendant's motives were primarily to harass, annoy or injure plaintiff. The law provides no fixed standard as to the amount of punitive damages, but leaves that to the sound discretion of the jury.

Your verdict must be unanimous.