Pro Bono Client Secures Second Circuit Affirmance of Trial Victory in Excessive Force Case

Paul, Weiss secured the affirmance by the Second Circuit of pro bono client Steven Thomas’s trial victory in his Section 1983 excessive-force claim against Nassau County Police Officer John Wellenreuther. The Second Circuit left undisturbed the judgment of the Eastern District of New York that Wellenreuther violated Thomas’s Fourth Amendment right to be free from excessive force, and its award of $475,000 in compensatory damages for Thomas’s physical and emotional pain and suffering.

In October 2011, Wellenreuther shot Thomas in the back of his neck as Thomas, unarmed, fled the site of a robbery at a gas station convenience store. Wellenreuther believed Thomas had committed the robbery, and shot at him in the station parking lot, missing him. Wellenreuther then saw Thomas discard a BB gun, and saw the gun fall into to the street. When Thomas ran, Wellenreuther gave chase and shot at Thomas again, this time hitting the back of Thomas’s neck. Thomas was taken by ambulance to a hospital. After the shooting, Thomas suffered from anxiety, depression and PTSD.

Following a one-day bench trial, in which litigation associate Robert O’Loughlin conducted the direct examination of our client, the trial court concluded that, because Wellenreuther took the second shot knowing Thomas was unarmed and fleeing, it constituted excessive force in violation of Thomas’s constitutional rights: Wellenreuther did not have a reasonable basis to believe that Thomas posed an immediate danger to Wellenreuther or to others. The court awarded Thomas $400,000 in compensatory damages for his physical injuries and $75,000 for his emotional injuries.

The Second Circuit affirmed the trial court’s judgment in all respects, rejecting Wellenreuther’s challenges to the trial court’s factual findings and legal conclusions, as well as its rulings excluding certain evidence from trial, and concluding that Wellenreuther had waived any qualified immunity defense by failing to develop it before trial. The Second Circuit also rejected Wellenreuther’s argument that the trial court’s damages award was excessive.

The Paul, Weiss team included, among others, litigation associates Nina Kovalenko, who argued the appeal, Eric Abrams, Rajdeep Dhaliwal, Jessica Fuhrman and Robert O’Loughlin.