HARFENIST KRAUT & PERLSTEIN LLP - NEWS10 ABCHKP | HARFENIST KRAUT & PERLSTEIN LLP 3000 Marcus Avenue, Suite 2E1 Lake Success, NY 11042 T – 516.355.9600 F – 516.355.9601 2975 Westchester

HKP| HARFENIST KRAUT & PERLSTEIN LLP

3000 Marcus Avenue, Suite 2E1 Lake Success, NY 11042

T – 516.355.9600 F – 516.355.9601

2975 Westchester Avenue, Suite 415, Purchase, NY 10577

T – 914.701.0800 F – 914-708-0808.

July 24, 2019 U.S. Magistrate Judge Daniel J. Stewart James T. Foley U.S. Courthouse 445 Broadway - 4th Floor Albany, New York 12207 FILED UNDER SEAL

Re: Cinthia Thevenin, et al. v. The City of Troy, et al. Docket No: 16-CV-01115(DJS)

Dear Magistrate Judge Stewart: As the Court is aware, the firm of Harfenist Kraut and Perlstein, LLP along with Hach &

Rose, LLP, represents the Plaintiff in this matter. We submit the instant letter brief under seal, pursuant to the Court’s directive in its Order of July 19, 2019. (DE 124) to address the impact of the Inspectional Services Bureau Report (“ISB Report”) prepared by Troy Police Captain Joseph L. Centanni on the pending Rule 56 motion.

A review of the ISB Report, its conclusion and its factual underpinnings shows why questions

of fact exist as to the objective reasonableness of Officer French’s actions and whether he is entitled to qualified immunity. I. The Court May Consider the ISB Report in Determining the Rule 56 Motion

Under FRE 803(Exceptions to the Rule Against Hearsay--Regardless of Whether the Declarant Is Available as a Witness) a document is “not excluded by the rule against hearsay” when it is “a record or statement of a public office and “it sets out the office’s activities…in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation.” FRE 803(8)(A)(iii).

District Courts in this Circuit have uniformly applied FRE 803(8) to admit Internal Affairs

Bureau and Civilian Complaint Review Board reports within the context of Rule 56 motions. See generally Hill v. City of New York, 2005 WL 3591719, at fn.1 (E.D.N.Y. Dec. 30, 2005) (Permitting use of CCRB’s conclusions as part of opposition to a Rule 56 Motion, as “[t]he CCRB report clearly represents the factual findings of the investigation of plaintiff's complaint. Barrett simply asserts that the CCRB report is hearsay, but he fails to provide any evidence indicating that the sources of the report lack trustworthiness. Thus, the court concludes that the CCRB report is admissible as a public record pursuant to Rule 803(8)(C) of the Federal Rules of Evidence”). See also Garcia v. City of New York, 2018 WL 3489643, at *3 (S.D.N.Y. July 9, 2018) (Denying Rule 56 motion, in part due to the report of “an investigation by the DHS PD found that Sergeant Romero tasered Plaintiff after she was handcuffed”); Moses v. Westchester Cty. Dep't of Correction, 2017 WL 4386362, at *10–11

NEIL TORCZYNER Attorney at Law

DIRECT TEL.: 516.355.9612 DIRECT FAX: 516.355.9613

[email protected]

Case 1:16-cv-01115-DJS Document 125 Filed 07/24/19 Page 1 of 5

mailto:[email protected]

HKP U.S. Magistrate Daniel J. Stewart July 24, 2019 Page 2 of 5

(S.D.N.Y. Sept. 29, 2017), aff'd sub nom. 739 F. App'x 66 (2d Cir. 2018) (Permitting use of Department of Justice Report on local jail in connection with Rule 56 motion as “[t]he DOJ Report and accompanying press release satisfy the criteria of Rule 803(8)—they contain factual findings from an investigation carried out by the DOJ, and County Defendants have not suggested that the Report lack trustworthiness”); Williams v. McCarthy, 2007 WL 3125314, at *5 (S.D.N.Y. Oct. 25, 2007) (permitting use of CCRB investigation into plaintiff's claims in upcoming trial) and Jefferson v. Grauer, 2014 WL 558695, at *2 (E.D.N.Y. Feb. 10, 2014) (Ruling that IAB Report would be admissible at trial).

II. The ISB Report’s Facts & Conclusions Further Demonstrate that the Defendants’ Rule 56 Motion Should be Denied as Material Facts are in Dispute

In opposing the Defendants’ Motion, Plaintiff cited to Second Circuit authority holding that qualified immunity is not ripe for adjudication when material facts (such as those in the case at bar) are in dispute. See generally Kerman v. City of New York, 261 F.3d 229, 240 (2d Cir. 2001) (“Summary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness”). See also Aczel v. Labonia, 92 F. App'x 17, 19–20 (2d Cir. 2004).1

Specifically, Plaintiff cited to testimony from eyewitnesses Matthew Montanino

(“Montanino”), Phillip Gross (“Gross”) and Keith Millington (“Millington”) which contradicted Defendant Randall French’s (“French”) version of the events and questioning whether French was in fear for his safety when he shot and killed Thevenin.

Although Defendants’ Rule 7.1(a)(3) Statement of Facts and Brief assert that all the shots

were fired while French was pinned upon exiting his vehicle, this asserting is contradicted by other witnesses. Specifically, Gross testified that all the shots were fired while Edson’s vehicle was stopped having backed into Montanino’s car and before French was “pinned.”

Montanino provides a different version of events. He testified that French had exited the

vehicle and approached Edson’s car when he saw Edson’s vehicle move backwards and that Montanino was unsure of the sequence of the shots and French being pinned between the vehicles. Millington testified that when the Honda started moving forward the shooting happened and Millington believed that the shooting started as French was being struck by the Honda. (Defendants’ Brief at pp.4-9).

Although the inconsistencies between the eyewitnesses and the version of the facts that

French testified to during his deposition are striking, the facts elicited by the ISB Report and its ultimate conclusions firmly demonstrate that a jury must determine what occurred before any ruling can be made on qualified immunity. This is particularly true as to the crucial factual issue- was 1 Defendants’ Reply Memorandum of Law underscored this point, as Defendants cited to Kisela v. Hughes, 138 S. Ct. 1148, 200 L. Ed. 2d 449 (2018) for the principle that “in claims of excessive force, ‘police officers are entitled to qualified immunity unless existing precedent 'squarely governs' the specific facts at issue.’" (Defendants Brief at p.2, emphasis in the original).



Thevenin’s car moving towards French when he began firing at Thevenin or had he backed into Montanino’s car and stopped, thereby not pinning French, when French opened fire at Thevenin

A. French’s Interview with ISB The ISB Report details an interview with French which took place on May 10, 2018. (ISB

Report at pp.14-17). On page 16 of the report, French acknowledges that his version of the events in which he testified that he exited the car and was standing next to door when struck was impossible. As noted in the report:

Initially, Sergeant French was uncertain of his location upon stepping from his vehicle but acknowledged (at the conclusion of viewing the vehicle positions in the sketch) that if he was standing next to his (Sergeant French's) driver door upon exiting, Thevenin's vehicle couldn't strike him. Sergeant French indicated his positioning upon being immobilized as between the center of Thevenin' s hood and passenger headlamp.

(ISB Report at p.16).

At the end of the report of the interview, French was presented with the photograph of the bullet holes in Thevenin’s vehicle and asked whether it was possible that he fired two shots, then moved and became immobilized before firing six more shots and gave an evasive answer. The report states that:

Lastly, the ISB Captain presented Sergeant French with ISB Item 28 (photograph of Thevenin's windshield with bullet holes) and asked Sergeant French if it was possible he stepped from his police vehicle, drew his weapon, fired two shots into the driver area of Thevenin's windshield, then moved from his (Sergeant French's) right to left between the vehicles, became immobilized and fired the remaining six rounds into the passenger side of Thevenin's windshield from this immobilized position. Sergeant French stated, "I don't know. All I can tell you is what I recall." Also, Sergeant French stated, "I can't say ... that is what I remember happening. I understand your question and I'm telling you I remember it one way. There's only one way I remember it and I don't ... I'm not gonna deviate from that...I can't deviate from that...that is my memory."


B. The Charges and Conclusions in the ISB Report On page 22 of the ISB Report, the Troy Inspectional Services Bureau specifies four (4)

“allegations” against French.2 The allegations relate to: (1) French’s use of force upon immediately

2 A fifth allegation is made against another officer. As that officer is not a defendant in this action and was found in the report to be “exonerated”, the allegation and the identity of the officer are not referenced herein.



exiting his vehicle; (2) French’s use of deadly physical force after being immobilized; (3) French’s initiation of a crash into the Thevenin vehicle, and (4) French’s false testimony during his ISB interviews. Each of these allegations were sustained.

In discussing the first allegation, the ISB report makes the conclusion that French’s

description of the first set of shots is “inconceivable” and “implausible” as it states:

Sergeant French is dogmatic that he fired all eight rounds while immobilized between the rear driver wheel area of his vehicle and the front passenger side bumper area of Thevenin's vehicle. Based on the empirical information as it relates to Sergeant French's shooting position, the hollow groupings in Thevenin's windshield and witness testimony, Sergeant French's version is inconceivable. For example, the two hollow entries in the driver side of Thevenin's windshield enter from a largely straight on direction which indicates that Sergeant French fired these two rounds while positioned at or near his driver door and not from the immobilized position Sergeant French described. Additionally, minimal movement to Sergeant French's left or right away from his driver door would render this same largely straight on trajectory implausible.

(ISB Report at p.23). After reviewing this finding as well as the ISB interview of Millington and Montanino, the ISB Report states “[b]ased on the above information, the ISB investigation determined Sergeant French did not shoot all eight projectiles from the immobilized position.” (ISB Report at p.24). Later in the ISB Report, the author again takes issue with French’s lack of honesty in describing the first set of shots, stating:

Also, Sergeant French describes the moments just prior to the crash with Thevenin, along with the moments after discharging his (Sergeant French's) first two shots with great clarity and conviction but provides several mendacious statements (See Allegation #4) related to multiple critical factors surrounding the discharging of the first two shots. Sergeant French's false statements cause disquiet because they're all interconnected as they relate to his (Sergeant French's) justification surrounding the first two shots which occur prior to him (Sergeant French) becoming immobilized between the vehicles.


Based on the results of its investigation, the ISB Report sustained Allegation #1 against French related to his use of deadly physical force against Thevenin upon French’s immediate exit from his vehicle. (ISB Report at p.45).



III. The Defendants’ Rule 56 Motion Should be Denied as Material Facts are in Dispute

At the time that Plaintiff submitted opposition to the Defendants’ Rule 56 Motion, Plaintiff was unaware of the ISB Report, but was able to demonstrate material facts in dispute based on the inconsistencies between the eyewitnesses and French’s version of the facts. Having reviewed the ISB Report’s description of French’s “inconceivable” and “implausible” testimony about the shooting, along with the ultimate conclusion which sustained Allegation #1 against French related to his use of deadly physical force against Thevenin, it is respectfully submitted that the Defendants’ motion must be denied.

The Plaintiff thanks the Court for its consideration of this request.

Respectfully Submitted HARFENIST KRAUT & PERLSTEIN, LLP Attorneys for Plaintiff

By: Neil Torczyner Steven J. Harfenist

Neil Torczyner


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