Cox v. Village of Pleasantville (271 F. Supp. 3d 591, 2017)

United States District Court for the Southern District of New York 2017-09-26

Citations

Full opinion text

OPINION & ORDER

KENNETH M. KARAS, District Judge:

• Plaintiff Brandon Cox filed this suit against Defendants the Village of Pleas-antville, New York; the Town of Mount Pleasant, New York; Police Officer Aaron Hess; Police Officer Ronald Beckley; Police Officer Ronald Gagnon; the.County of Westchester; and John Does # 1-30, alleging violations of his constitutional and state law rights arising out of an incident in the evening on October 16, 2010 in which Plaintiff was shot in the arm by Defendant Aaron Hess. (See Compl. (Dkt. No. 1).) The claims against Defendants Town of Mount Pleasant, Ronald Beckley, and Ronald Gagnon were resolved by way of an offer of judgment pursuant to Federal Rule of Civil Procedure 68. (See Dkt. No, 17.) The claims against'the'.County of Westchester were voluntarily dismissed by stipulation. (See Dkt.. No. 107.) Before the Court are Defendants Aaron Hess’s and the Village of Pleasantville’s (collectively, “Defendants”) Motions for Summary Judgment. (See Dkt. Nos. 110, 113.) For the following reasons, the Motions are granted in part and denied in part.

I. Background

A. Factual Background

In resolving Defendants’ Motions for Summary Judgment, the Court will recite only either undisputed facts or those set forth by Plaintiff and supported by the record. The Court will not} except as noted, set forth Defendants’ version of the facts where disputed.

1. Football Game and Finnegan’s

In October 2010, Plaintiff was a junior at Stonehill College in Massachusetts. (See Decl. of Debra L, Greenberger (“Green-berger Decl.”) Ex. 1 (“Cox Dep.”) 360, 422-23 (Dkt. No. 119); see also PL Brandon Cox’s Statement of Additional Disputed Facts Pursuant to Local Rule 66.1(B) (“Pl.’s 66.1”) ¶ 2 (Dkt. No. 121); Def. Aaron Hess’ Resp. to PL’s Statement of Additional Facts Pursuant to Local Civil Rule 66.1(“Def.’s 66.1 Resp.”) ¶2 (Dkt. No. 127).) On October 16, 2010, Plaintiff was in Westchester County to play in a homecoming football game against Pace University, where his best friend from high school, D.J. Henry, also played football. (See Cox Dep. 38-41; see also PL’s 56.1 ¶ 3; Def.’s 66.1Resp. ¶ 3.) Brandon, D.J., and their families went out to dinner after the game, (see Cox Dep. 43-44; see also PL’s 56.1 ¶ 4; Def.’s 56.1 Resp. ¶ 4), after which Brandon, D.J., and some of D.J.’s friends went to Finnegan’s, a restaurant and bar in Mount Pleasant, New York, (see- Cox Dep. 52-53; see also PL’s 56.1 ¶ 5; Def.’s 56.1 Resp. ¶ 5).

Around 1:10 AM, after an incident involving some patrons of Finnegan’s unrelated to Plaintiff or his friends, Stephen Van Ostrand, the owner of Finnegan’s, turned the lights up and informed all of the patrons in Finnegan’s (including Plaintiff and D.J.) that they would have to leave. (See Greenberger Decl. Ex. 5 (“Van Ostrand Dep.”) 186-92; see also PL’s 56.1 ¶ 6; Def.’s 56.1 Resp. ¶ 6.) Van Ostrand directed the bartender, Robert Nugent, to call the Mount Pleasant Police to ask for assistance with the unruly patrons that had been the cause of the disturbance, and Nugent did so. (See Van Ostrand Dep. 187-88; see also Def. Aaron Hess’ Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.1 (“Def.’s 56.1”) ¶ 18 (Dkt. No. 116); PL’s Resp. to Def. Hess’s Local Rule 56.1 Statement (“PL’s 56.1Resp.”) ¶ 18 (Dkt. No. 120).) Desmond Hinds, one of D,J.’s friends present that night, estimated that at the time the lights came on, there were approximately 50 to 70 people at Finnegan’s. (See Greenberger Decl. Ex. 2 (“Hinds Dep.”) 616; see also PL’s 56.1 Resp. ¶ 20.)

2. Arrival of Police

At all relevant times, Aaron Hess was a member of the Village of Pleasantville Police Department. (See Decl.- in Supp. of Mot. for Summ. J. (“Sokoloff Decl.”) Ex. A (“Hess Dep.”) 45-46 (Dkt. No. 114); see also Del’s 56.1 ¶ 23; PL’s 56.1 Resp. ¶ 23.) Around 1:20 AM,' the Town of Mount Pleasant Police Department sent out a radio dispatch requesting units to respond to a fight in progress at Finnegan’s, (see Sok-oloff Decl..Ex. M, at MP 001786; Sokoloff Decl. Ex. N; see also Def.’s 56.1 ¶ 25; PL’s 56.1Resp. ¶25), though subsequent dispatches sent less than two minutes later clarified that there were “no fights in progress” and the “place [was] clearing out,” (see Sokoloff Decl. Ex. M, at MP 001786; see also PL’s - 56.1 Resp. ¶ 25).

Hess heard the dispatches requesting assistance at Finnegan’s and drove toward one of the entrances of the Thornwood Shopping Center, where Finnegan’s was located, (see Hess Dep. 110, 114; see also Defi’s 56.1 ¶¶ 26-27; PL’s 66.1 Resp. ¶¶ 26-27). Upon viewing the crowd in front and around Finnegan’s, Hess pulled into the shopping-center, (see Hess Dep. 119, 134; Defi’s 56.1 ¶ 30; PL’s 56.1 Resp. 30), and radioed the Pleasantville Police Department and instructed the desk officer to notify the Mount Pleasant Police Department of a large crowd in front of Finnegan’s, (see Hess Dep. 126; Sokoloff Ex. M, at MP 001786; Sokoloff Ex. W (“Gilmartin Dep.”) 30-31; see also Def.’s 56.1 ¶ 31; PL’s 56.1 Resp. ¶ 31).

Hess parked his police vehicle in the roadway in front of Finnegan’s, (see Hess Dep. 121-22; see also Def.’s 56.1 ¶32; Pl.’s 56.1 Resp. ¶ 32), and sometime thereafter exited the vehicle, (see Hess Dep. 123-24, 712; Def.’s 56.1 ¶ 34; PL’s 56.1 Resp. ¶ 34). Officer Carl Castagna, a member of the Mount Pleasant Police Department, arrived on the scene next and parked his police vehicle behind Hess’s. (See Hess Dep. 124-25; Sokoloff Decl. Ex. Y (“Castagna Dep.”) 54; see also Def.’s 56.1¶¶ 35-36; PL’s 56.1 Resp. ¶¶ 35-36.) Officer Castagna exited his vehicle and joined Hess. (See Hess Dep. 127; Castag-na Dep. 56-57, 64; see also Def.’s 56.1 ¶ 37; PL’s 56.1 Resp. ¶ 37.) After Officer Castagna, Pleasantville Police Department Officer Kevin Gilmartin arrived on the scene, parked his car behind Officer Cas-tagna’s vehicle, and exited his vehicle. (See Hess Dep. 138-39; Gilmartin Dep. 54-57; see also Defi’s 56.1 ¶¶ 38-39; PL’s 56.1 Resp. ¶¶ 38-39.) After Officer Gilmartin, Mount Pleasant Police Department Officer Justin Jacobsen arrived at the scene, parked behind Gilmartin’s vehicle, and exited his vehicle. (See Sokoloff Decl. Ex. V (“Jacobsen Dep.”) 85-87; Castagna Dep. 68; see also Defi’s 56.1 ¶¶ 40-41; PL’s 56.1 Resp. ¶¶ 40^41.)

The Parties dispute the nature of the scene when the police officers arrived. (See, e.g., Def’s 56.1 ¶¶ 43-45; PL’s 56.1 Resp. ¶¶ 43-45.) Hess testified that the crowd around Finnegan’s was generally walking toward the parking lot, but noted that there were also people dispersing toward the sidewalk area across from where his vehicle was parked. (See Hess Dep. 129.) Hess did not recall feeling threatened by anything going on. (See id. at 213.) Officer Castagna did not see any fighting, (see Castagna Dep. 54-55, 60-63), and Officer Gagnon, another officer at the scene, did not see any violent activity, (see Soko-loff Decl. Ex. UU, at 187-88). Other witnesses, however, described the scene as “chaotic,” and Officer Gilmartin described that “[tjhere were ’ people yelling and screaming and arguing throughout the entire parking lot and up onto the sidewalk by Finnegan’s.” (Gilmartin Dep. 136.) Hess and Castagna believed that a number of patrons leaving Finnegan’s were intoxicated and were slurring their speech, (see Hess Dep. 127-28, .217-18; Castagna Dep. 442-43; see also Def.’s 56.1 ¶¶ 50-51; PL’s 56.1Resp. ¶¶ 50-51), but could not have been certain that any individuals were actually drunk, (see PL’s 56.1 Resp. ¶ 50). Hess witnessed at least five individuals acting in an aggressive manner, (see Hess Dep. 116), and Officer Gilmartin saw two individuals being separated so that they would not fight, (see Gilmartin Dep. 139). Because there is some dispute of fact, the Court will assume, at this stage, that Plaintiffs account, which details a largely peaceful and orderly exit from Finnegan’s with only scattered pockets of minor disturbances, is more accurate.

For some period of time, Hess and Officer Castagna remained near their vehicles watching the crowd exit Finnegan’s and disperse. (See- Hess Dep. 122,128-31,143-44; Castagna Dep. 61; see also Def.’s 56.1 ¶¶46-47; PL’s 56.1 Resp. ¶¶46-47.) Van. Ostrand eventually came out of Finnegan’s and approached Hess and Castagna. (See Hess Dep. 140, Castagna Dep. 64-65, 68; Van Ostrand Dep. 49, 221; see also Def.’s 56.1¶ 55; PL’s 56.1 Resp. ¶ 55.) Van Ost-rand told the officers that he just wanted the patron who had caused the disturbance to get out of there, although Van Ostrand noted that none of the officers took any action with respect to that comment. (See Van Ostrand Dep. 205-06.) Van Ostrand estimated that he spoke with the officers for about thirty seconds or a minute, and testified that he told the officers he wanted to “get everybody out of [t]here safely.” (Id. at 206-07.) Around this time, Castagna dispatched over his radio, “respond with caution, only verbal at this time,” (Green-berger Deel. Ex. 4 (“Beckley Dep.”) 193; see also PL’s 56.1 ¶ 9; Def.’s 56.1 Resp. ¶ 9), which Officer Ronald Beckley, another police officer on his way to the scene, understood to mean that there was “no physical activity, no fighting going on,” (Beckley Dep. 194).

3. Plaintiff and D.J.’s Departure

Plaintiff and D.J., who by this time had exited Finnegan’s, got into D.J.’s car in the parking' lot and pulled up to the curb in front of Finnegan’s to wait for their friends — D.J. was driving and Cox was in the front passenger seat. (See Cox Dep. 213-14; see also PL’s 56.1 ¶ 11; Def.’s 56.1 Resp. ¶ 11.) The curb where they stopped was mai’ked as a fire lane. (See Cox Dep. 213-14; see also Pl.’s 56.1 ¶ 11; Def.’s 56.1 Resp. ¶ 11.) Hinds soon joined them and sat in the backseat; the three stayed in the fire lane, awaiting the rest of their friends. (See Cox Dep. 202-03; see also PL’s 56.1 ¶ 11; Defi’s 56.1 Resp. ¶ 11.) While Plaintiff was looking at his smart-phone, he heard a “thump” on the driver’s-side window. (See Cox Dep. 214, 218-20; see also PL’s 56.1 ¶ 12; Def.’s 56.1 Resp. ¶ 12.) Plaintiff turned and saw Officer Gagr non motioning with his hands, which Cox and Hinds both interpreted as a direction to move out of the fire lane. (See Cox Dep. 218-20; Hinds Dep. 191.) D.J. moveji his car in response to the apparent direction. (See Cox Dep. 221, 301; see also PL’s 56.1 ¶ 13; Def.’s 56.1 Resp. ¶ 13.)

The record is unclear as to what speed D.J. drove the car away. Plaintiff testified that the vehicle travelled at “regular parking lot speed.” (Cox Dep. 274-75.) He also testified, however, that the speed of the vehicle was probably somewhere between 5 and 20 mph. (See Cox Dep. 275.) Hinds testified that the car travelled “slowly,” (Hinds Dep. 198), but told the police that the vehicle was moving at a “decent” speed, (Deck in Further Supp. of Mot. for Summ. J. (“Reply Decl.”) Ex. HHH (Dkt. No. 125)). Plaintiffs accident reconstruction expert, Gregory Witte, estimated that DJ.’s vehicle reached a speed of approximately 17.3 mph. (See Greenberger Deck Ex. 11 (“Witte Revised Report”) 13.) As Witte’s calculation, provided by Plaintiff, is the only speed estimated with any precision, the Court will presume, for purposes of this Motion, that D.J.’s vehicle reached a top speed of approximately 17.3 mph as it pulled' away from the fire lane.

4. Collision with Hess

As Hess was talking to Van Ostrand, Hess’s attention was drawn to D.J.’s vehicle. Hess testified that he heard, an .engine rev, (see Hess Dep. 152), an account corroborated by the testimony of Officer Gil-martin, Officer Castagna, Officer Jacobsen, and Van Ostrand, (see Van Ostrand Dep. 10; Jacobsen Dep. 123, 514; Gilmartin Dep. 146; Castagna Dep. 424). Cox and Hinds, however, denied that the car made any sound when D.J. pulled away from the fire lane, (see.Cox Dep. 234; Hinds Dep. 203), and Officer Beckley, who was on the scene by this time, did not hear any engine revving, (see Beckley Dep. 19, 423-24). Because there is a dispute of fact, the Court assumes at this stage that D.J.’s car made no .distinct engine revving sound when it pulled out of the fire lane. At any rate, Hess saw D.J.’s car moving, though he admitted he did not see whether it had been parked in the fire lane. (See Hess Dep. 145-47.)

The stories of the various witnesses diverge somewhat significantly at this point. The Court will relay Plaintiffs (the non-movant’s) version of the incident, with the understanding that Defendants dispute many of these facts. As the vehicle pulled around a curve in the road in the parking lot, Plaintiff saw Hess “running from' in between two cop cars with his gun in his hand[s].” (Cox Dep. 235.) Hess was running into the roadway toward D.J.’s- vehicle (which was in motion by this time). (See id. at 240.) After Hess ran into the roadway; Cox felt the car slow down “almost to a complete stop.” (Greenberger Deck Ex., 9 (“Cox 50-h Testimony”) 71; see also Hinds Dep.. 229.) Witte estimated that as the vehicle pulled around the curve, it decelerated from 17.3 mph to 6.1 mph,. before accelerating back to 8.16 mph, (see Witte Revised Report 13), although he testified at his deposition that because of some issues with the quality of the security video he reviewed, it was more likely that the vehicle decelerated from 17.3 mph to about 10 mph, without any subsequent acceleration during the time the vehicle was in view of the security camera, (see Green-berger Deck Ex. 7, at 80-81).

Plaintiff testified that after Hess ran in front of the vehicle and as the vehicle was slowing down, Hess fired a shot at the vehicle. (See Cox Dep. 242-44; Cox 50-h Testimony 71-72.) Plaintiffs account is corroborated by the testimony of Hinds, (see Greenberger Deck Ex. 10, at 60), Officer Beckley, (see Beckley Dep. 23-24), and Officer Jacobsen, (see Jacobsen Dep. 377-78), who all testified that they heard a shot before Hess came into contact with the hood-of the vehicle. Defendants object that no one testified that Hess actually fired- a shot at the vehicle before he came into contact with the vehicle, (see Def.’s 56.1 Resp. ¶ 23 n.13), but Plaintiff testified that he heard a shot go off as Hess had his weapon held up and pointed at the vehicle, (see Cox 50-h Testimony 70-72). And, in any event, the remainder of the testimony does not indicate in which direction the shot was fired, and a jury would not be required to accept Defendants’ theory that the shot was fired in some direction other than toward the vehicle. The Court notes also that Witte testified as to his belief that Hess did -not fire before he made contact with the vehicle, (see Reply Deck Ex. NNN, at 72), but as the Court must construe all disputed facts in Plaintiffs favor, the Court will assume at this stage that Hess first fired at the vehicle before he made contact with the hood. Plaintiff additionally testified that he ducked down in his seat to avoid further shots. (See Cox Dep. 242-43; Cox 50-h Testimony 73-74.)

After the first shot was fired, and while he was ducking down, Plaintiff heard a “thud” on the hood of the vehicle. (See Cox 50-h Testimony 73-74.) Plaintiff looked up and saw Hess on the hood firing his weapon. (See Cox Dep. 244, 414.) One non-party witness stated that Hess had “jump[ed] onto the hood,” (Greenberger Deck Ex. 8 (“Scott Dep.”) 37), and Officer Beckley testified that' Hess had “mount[ed] the vehicle as he was firing,” (Beckley Dep. 22-2E). While on the hood of the vehicle, Hess reached up with his left hand and grabbed the space at the top of the hood. (See Hess Dep. 187; see also Def.’s 56.1 ¶ 81; Pl.’s 56.1 Resp. ¶ 81.) Hess testified that it was his belief that he would be killed if the car did not come to a stop, (see Hess Dep. 402, 440), though Plaintiff disputes that such a belief was reasonable, (see Pl.’s 56.1 Resp. ¶ 84). Hess shot a total of four times in an effort to stop the driver of the vehicle. (See Hess Dep. 504, 803.)

Witte’s expert report estimated that about 1.0-1.3 seconds passed between when Hess stepped in front of the vehicle and. when it collided with him, (See Witte Revised, Report 20.) According to Witte, the average reaction time in normal circumstances is approximately 1.6 seconds, and 2.9-3.6 seconds in the specific circumstances here. (See id. at 20-22.) Under either scenario, Witte opined that D.J. did not have enough time to stop the vehicle before colliding with Hess. (See id. at 22.) Witte estimated that the speed of the vehicle when it collided with Hess was no more than 5 mph (assuming Hess lunged at the vehicle), (see id. at 16-20), or less than 5 mph (assuming Hess was stationary), (see Greenberger Decl. Ex. 12).

While Hess was on the hood of the vehicle, Officer Beckley, a 30-year police veteran who had arrived on the scene shortly after Hess, heard the first shot and turned to see a then-unknown figure (whom the Parties now agree was Hess) mounting a vehicle as he was firing his weapon. (See Beckley Dep. 22-23; see also Pl.’s 56.1 1131; Def.’s 56.1 Resp. ¶31.) Officer Beckley, believing the person on the hood to be the aggressor, drew his weapon and fired at Hess. (See Beckley Dep. 28-29; see also Pl.’s 56.1 ¶ 32; Def.’s 56.1 Resp. ¶ 32.)

As Hess.shot through the windshield of the vehicle, one of the bullets struck Plaintiff in the arm. (See Cox Dep. 245; Cox 50-h Testimony 15.) Multiplé bullets struck D.J. (See PL’s 56.1 ¶ 42; Def.’s 56.1 Resp. ¶ 42.) Hess testified that he could not see the faces of anyone in the vehicle and was merély aiming at the silhouette of the figure driving the vehicle. (See Hess Dep. 166.) Hess also claimed that he did not know if there were any passengers. (See id. at 166.) Plaintiff disputes this account, arguing that a jury, could discredit Hess’s claim that he could not see the driver or ■the passengers, given that there has been no explanation (condensation, fog, tinted windows, etc.) for his inability to see through the front windshield of-the vehicle. (See PL’s 56.1 Resp. ¶¶ 95, 99.) Plaintiff also points out that one of the bullet holes appears to be closer to the passenger side, and thus may indicate that- Hess was aware that a passenger was in the vehicle and fired his weapon in that direction as well. (See id, ¶ 95.)

After the first shot was fired, the vehicle began to. accelerate, (See Cox Dep, 245-46; see also PL’s 56.1 ¶ 39; Def.’s 56.1 Resp. ¶ 39.) At .some point after the shooting began and after the , vehicle accelerated, the vehicle swerved, hit a.police vehicle, and came to a stop. (See Hess Dep. 168; Cox Dep. 245-46; Jacobsen Dep. 119; see also PL’s 56.1 ¶ 39; Def.’s 56.1 Resp. ¶ 39.) According to Witte, D.J.’s vehicle reached a top speed of approximately 24 rpph on its way to the collision with the police vehicle. (See Witte Revised Report ll.)

After the vehicle stopped, Hess “fell to the ground.” (Scott Dep. 78.) Hess landed on the roadway and rolled toward the median. (See Hess Dep. 191; see also Def.’s 56.1 Hit 115-16; Pl.’s 56.1 Resp. ¶¶ 115-16.) Hess radioed dispatch and relayed, “You got to call a hotline, you got to get everyone over.here, I,got hit by a car.” (Sokoloff Decl. Ex. M; Sokoloff Decl. Ex. GGG; see also Def.’s 56.1 ¶ 117; Pl.’s 56.1 Resp. ¶ 117.) As a result of the incident, Hess’s knee was injured. (See Hess Dep. 191, 659; see also Def.’s 56.1 ¶ 118; Pl.’s 56.1 Resp. ¶ 118.)

Meanwhile, Plaintiff, who had been crouched near the door to protect his body, looked up. (See Cox Dep. 245, 288-89; see also PL’s 56.1 ¶ 40; Def.’s 56.1 Resp. ¶ 40.) D.J. told Plaintiff and Hinds, “They shot me. They shot me.” (Cox Dep. 291; Cox 50-h Testimony 75; Hinds Dep. 309; see also PL’s 56.1 ¶ 41; Def.’s 56.1 Resp. ¶ 41.) Indeed, D.J. had been shot multiple times, and he thereafter died from his wounds. (See Hess Dep. 165; Hinds Dep. 309, 377; see also PL’s 56.1 ¶ 42; Def.’s 56.1 Resp. ¶ 42.)

5. Additional Allegations

There are some additional allegations raised by Plaintiff that warrant attention. First, Plaintiff points out that at the time Hess ran into the roadway in front of the vehicle, Hess had no knowledge or belief that the driver of the vehicle had committed a crime or that any criminal activity was afoot. (See PL’s 56.1 ¶ 27.) Defendants object to this statement of fact, (see Def.’s 56.1 Resp. ¶27), but Plaintiff has supported hié contention with citations to the record indicating that Hess was not “aware of any criminal behavior going on in [the] parking lot” at the time, (Hess Dep. 179). The Court will thus assume at this stage that Hess had no reason to believe, the vehicle or its occupants (all located in the parking, lot) were engaged in criminal activity.

Plaintiff also cites to a number of police policies regarding the use of deadly force against a moving vehicle, (see Pl.’s 56.1 ¶¶ 34-38), the existence of which are undisputed by Defendants, (see Def.’s 56.1 Resp. ¶¶ 34-38). But even assuming all of these policies, some of which apply only to New York City police officers, are applicable to the facts at hand, the Court agrees with Defendants that their relevance is in doubt. (See, e.g., Def.’s 56.1 Resp. ¶34 & n.19.) As far as the Court is aware, and as far as Plaintiff has argued, thei’e is nothing illegal or constitutionally impermissible about failing to comply with department policy. Internal policy may very well go abové-and-beyond the bare-minimum requirements imposed by law, and a police officer is not more or less liable based on his or her compliance with departmental policy. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir. 1998) (“A violation or state law neither gives [a] plaintiff a § 1983 claim nor deprives defendants of the defense of qualified immunity to a proper § 1983 claim. Without more, the fact that [the] defendants violated New York procedural requirements does not support liability under § 1983.” (alterations, citation, and internal quotation marks omitted)); see also Rivera v. Madan, No. 10-CV-4136, 2013 WL 4860116, at *8 n.7 (S.D.N.Y. Sept. 12, 2013) (“[T]he issue here is not whether [the] [defendants violated a DOCCS policy, but rather whether conducting the body cavity' search violated [the plaintiffs] constitutional rights.”). Thus, while the Court will accept as true the existence of these policies, they will not be relied on in deciding these Motions.

■ B. Procedural History

Plaintiff filed the Complaint on September 19, 2011, naming as" Defendants the Village of Pleasantville, the Town of Mount Pleasant, Officer Hess, Officer Beckley, Officer Gagnon, the County of Westches-ter, and John Does # 1-30. (See Compl. (Dkt. No. 1).) This case is one of several arising out of the events of October 16; 2010 and has been accepted as related to ll-CV-2707 (DJ.’s family’s case against Hess and the Village of Pleasantville). On October 24, 2011, all Defendants except the County of Westchester filed their Answers, (see Dkt. Nos. 10-11, 13); the County of Westchester filed its Answer on April 13, 2012, (see Dkt. No. 28). The Action was consolidated for discovery purposes with a number of other cases arising out of the events of October 16, 2010. (See Order (Dkt. No. 16).) On .December 7, 2011, partial final judgment was entered on consent in the amount of $100,000 against Defendants Town of Mount Pleasant, Officer Beckley, and Officer Gagnon. (See Dkt. No. 17.) The judgment also disposed of the claims against John Does # 11-20. (See id.)

Discovery thereafter proceeded. Due partly to the consolidation of discovery with other cases, and partly to the sheer number of witnesses and experts involved, discover was extended on request of the Parties several times. (See, e.g., Dkt. Nos. 32, 63, 64, 63, 70, 84, 89.) Discovery has now finally concluded, however, and on September 30, 2016, Plaintiff wrote the Court requesting a pretrial conference to discuss any proposed motions. (See Dkt. No. 94.) On October 11 and 12, 2016, the remaining Defendants filed premotion letters requesting leave to file motions for summary judgment. (See Dkt. Nos. 99, 101,102.) On November 9, 2016, the Court held a premotion conference wherein it set a briefing schedule for the proposed motions and counsel for Plaintiff expressed their intention to stipulate to dismissal of the claims against the County of West-chester, (see Dkt. (minute entry for Nov. 9, 2016)); a stipulation to that effect was entered, the same day, (see Dkt. No. 107).

Pursuant to the briefing schedule, (see Dkt. No. 108), the remaining Defendants (Hess and the Village of Pleasantville) each filed their Motions for Summary Judgment and accompanying papers on January 9, 2017, (see Dkt. Nos. 110-116). In its memorandum of law, the Village of Pleasantville acknowledged that if Hess is found liable under state law for assault and battery, it would be liable under a theory of respondeat superior. (See Dkt. No. 112.) On February 17, 2017, Plaintiff filed his opposition. (See Dkt. Nos. 119-22.) On, March 15 and 16, 2017, Hess filed his reply papers, (see Dkt. Nos. 127-28), and the Village of Pleasantville filed a letter on March 17, 2017 indicating that it would not file reply papers, (see Dkt. No. 129).

II. Discussion

A, Standard of Review

Summary judgment is appropriate where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir. 2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the fact's in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y. 2014) (same). “It is the movant’s burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v. Marchinkowski, 137 F.Supp.3d 495, 521 (S.D.N.Y. 2015) (same).

“However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to’ a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration and internal quotation marks omitted). Further,' “[t]o survive a [summary judgment] motion ..., [a nonmovant] need[s] to create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific fact’s showing that’ there is a genuine issue for trial,’ ” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), “and cannot rely on the mere allegations or denials contained in the pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F.Supp.3d 310, 322 (S.D.N.Y. 2014) (internal quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading .... ”).

“On a motion for summai’y judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At this stage, “[t]he role of, the court, is not to resolve disputed issues of fact but to assess whether there are any factual issues,to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted).. Thus, a.court’s goal should be.“to isolate .and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 266 (1986)).

When ruling on a motion for summary judgment, a district court should consider only evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits- ... to establish facts, the statements ‘must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated.’” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4)); see also Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988) (“Rule 56. requires a motion for summary judgment to be supported with affidavits based on personal knowledge .... ”); Baity v. Kralik, 51 F.Supp.3d 414, 419 (S.D.N.Y. 2014) (disregarding “statements not based on [the] [plaintiffs personal knowledge”); Flaherty v. Filardi, No. 03-CV-2167, 2007 WL 163112, at *5 (S.D.N.Y. Jan. 24, 2007) (“The test for admissibility is whether a reasonable trier of fact could believe the witness had personal knowledge.” (internal quotation marks omitted)).

B. Analysis

■Plaintiffs remaining causes of action against Defendants are for violations under the Fourth and Fourteenth Amendments pursuant to 42 U.S.C. § 1988 and for assault and battery under New York state law. (See Dkt. No. 104.) The Court will address each claim in turn.

1. Fourth Amendment Seizure

a. Applicable Law

The Fourth Amendment proscribes unreasonable searches and seizures, See U.S. Const, amend. IV. A Fourth Amendment seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied.” County of Sacramento v. Lewis, 523 U.S. 833, 844, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (emphasis and internal quotation marks omitted). However, the Fourth Amendment “permits brief investigative stops — such as [a] traffic stop ... — when a law enforcement officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Navarette v. California, — U.S. —, 134 S.Ct. 1683, 1687, 188 L.Ed.2d 680 (2014) (internal quotation marks omitted). "[A]pprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); see also Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (“[A ]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard .... ”). The Second Circuit has held that “[i]t is not objectively reasonable for an officer to use deadly force to apprehend a suspect unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” O’Bert ex rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 36 (2d Cir. 2003).

b. Seizure of Plaintiff

' Defendants first argue that Plaintiffs claim for a Fourth Amendment violation fails at the starting line because Hess never seized Plaintiff. (See Mem. of .Law in Supp. of Def. Aaron Hess’ Mot. for Summ. J. (“Def.’s Mem.’’) 12 (Dkt. No. 115).) Specifically, Defendants argue that no seizure was effected because D.J. did not comply with Hess’s instruction to stop, (see id.), and because Hess’s use of force was not directed at Plaintiff, (see id. at 16, 105 S.Ct. 1694); .

With respect to the first argument, Defendants cite cases holding that “[a] police officer’s- order to stop constitutes a seizure if a reasonable person would have believed that he was not free to leave, and the person complies with the officer’s order to stop.” United States v. Simmons, 560 F.3d 98, 105-06 (2d Cir. 2009) (citation and internal quotation marks omitted); see also California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (“[The Fourth Amendment] does not remotely apply .;. to the prospect of a policeman yelling “Stop, in the name of the law!” at a fleeing form that continues to flee. That is no seizure,”); United States v. Swindle, 407 F.3d 562, 572 (2d Cir. 2005) (“[A]n order to stop must be obeyed or enforced physically to constitute a seizure.”). According to Defendants, “[i]t is undisputed [D. J.] did not comply with Officer Hess’[s] instruction to stop.” (See Def.’s Mem. 13.) But Defendants are misguided in this contention in a number of ways.

Plaintiff has not argued that Hess violated his Fourth Amendment rights when he allegedly raised his hand in an attempt to stop the vehicle; indeed, Plaintiff disputes that Hess ever yelled “Stop!” or made a gesture to indicate the vehicle should stop, (see PL’s 56.1 Resp. ¶70), and as that objection is supported by at least some record evidence, (see, e.g., Cox Dep. 234-35; Hinds Dep. 205-06), that testimony must be credited at this stage. In any event, however, Plaintiff has alleged that the vehicle decelerated as it approached Hess, (see Pl’s 56.1 ¶¶ 16-17), an account backed up by Witte’s expert opinion that the vehicle slowed from 17 mph to 10 mph as it rounded the curve, (see Greenberger Decl. Ex. 7, at 80-81), and ended up striking Hess going no faster than 5 mph, (see Witte Revised Report 16-20). A seizure occurs when the target “submitfs] to police authority,” United States v. Baldwin, 496 F.3d 215, 218 (2d Cir. 2007), and a “traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the' driver,” Brendlin v. California, 551 U.S. 249, 257, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). While the vehicle did not come to a stop until several moments later, when it careened into the side of a police vehicle, that was, from Plaintiffs point of view, only because Hess fired at the vehicle and prevented it from coming to a lawful stop. Indeed, Witte opined that D.J. could not have brought the vehicle to a complete stop before striking Hess, (see Witte Revised Report 20-22), thus allowing a jury to conclude that D.J. made every effort to fully submit to the authority of Hess’s presence in the roadway.

But the more difficult question is whether Plaintiff was also seized when Hess struck him with a bullet, notwith: standing Hess’s testimony that he was aiming only at the silhouette of the driver of the vehicle. As noted above, it is well settled that “apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Garner, 471 U.S. at 7, 105 S.Ct. 1694. The issue becomes more complicated, however, if the victim is not the intended target of the deadly force. In Medeiros v. O’Connell, 150 F.3d 164 (2d Cir. 1998), the Second Circuit considered whether a hostage was seized within the meaning of the Fourth Amendment when a bullet meant for the hostage’s captor, who had commandeered a van and taken the three passengers hostage, deflected off a metal support bar and struck one of the hostages. Id. at 166-67. The Second Circuit concluded that the victim had not been seized, citing the Supreme Court’s holding in Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), that although “[a] violation of the Fourth Amendment requires an intentional acquisition of physical control,” “[a] seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful.” Medeiros, 150 F.3d at 167 (internal quotation marks omitted). Although the victim argued that “Brower’s, references to intention and willfulness bear upon the deliberateness of the means employed,” the Second Circuit rejected that argument, noting that other Courts of Appeals have “had -little trouble with the issue,” concluding that “the accidental shooting of a hostage or innocent bystander” does not give rise to a Fourth Amendment claim. Id. at 168. Accordingly, because the claim in the case “vindieate[d] no interest protected by the Fourth Amendment,” as “[s]o far from seeking to restrain [the victim’s] freedom, the troopers’ every effort was bent on delivering all the. hostages from deadly • peril,” id., there was no Fourth Amendment violation.

In Brendlin, decided several years after Medeiros, the Supreme Court held that, consistent with its prior precedent, a stop of a vehicle by a show of authority effects a seizure of all of the occupants in the vehicle, not just the driver. Id. at 256-59, 127 S.Ct. 2400. The Supreme Court relied on the .test announced in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), wherein Justice Stewart opined that “a seizure occurs if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Brendlin, 551 U.S. at 255, 127 S.Ct. 2400 (internal-quotation marks omitted). Using this test, the Supreme Court reasoned that in the. circumstances of a typical traffic stop, “any reasonable passenger would have understood the police officers to be exercising control to the point that no one in' the car was free to depart without police permission,” because “[a] traffic stop necessarily curtails the travel a passenger has chosen just as much as'it halts the driver.” Id. at 257, 127 S.Ct. 2400. The Supreme Court additionally noted that its holding comported with the views of all nine Federal Courts of Appeals to have addressed the question, although the string cite following this assertion omits any reference to the Second Circuit. Id. at 258, 127 S.Ct. 2400.

The facts in this case are an imperfect fit with either of the cases cited above. Plaintiff argues that Brendlin forecloses any inquiry into the subjective intent of Hess when he fired into the vehicle, (see Pl.’s Mem. of Law in Opp’n to Defs.’ Mots. for Summ. J. (“Pl.’s Opp’n”) 10-11 (Dkt. No. 122)), but this assertion overstates the holding in Brendlin. The Supreme Court in Brendlin addressed only the question of whether the seizure of a vehicle — the show of authority intended to induce the driver of the vehicle to pull over — amounts to a seizure of a passenger. As set forth above, there is no question in this case that when Hess stepped in front of the vehicle and induced D. J. to decelerate the vehicle in an effort to stop (and thereby submit to the authority of Hess), a seizure was effected as to all passengers in- the car. But that proposition does not go far enough to establish that the intentional use of force directed at a specific individual within the vehicle, i.e., the driver, gives rise to a Fourth Amendment claim on behalf of all of the passengers.

To be sure, as Plaintiff points out, Medeiros is an imperfect fit as well. In Medeiros, there was no question that the purpose of the police officer’s shots was to rescue the hostage from the kidnapper. See 150 F.3d at 167, Here, however, the purpose was not rescue — Hess denies even knowing that Plaintiff was in the passenger seat, (see Hess Dep. 166) — but rather to disable the driver and bring the vehicle to a stop, (see id. at 440, 521). But while the Second Circuit in Medeiros acknowledged the unique circumstances of a kidnapper-hostage situation, the court’s holding was grounded in the notion that “[t]he Fourth Amendment addresses misuse .of power, not the accidental effects of otherwise lawful government conduct,” 150 F.3d at 168 (alteration and internal quotation marks omitted), and “unintended consequence[s] of government action .,. cannot form the basis for a [Fjourth [Ajmendment violation,” id. at 169 (internal quotation marks omitted). Indeed, the Second Circuit made clear the central holding of the case: “We hold that no Fourth Amendment seizure occurred in the present case, because the police did not intend to restrain [the victim].” Id. Thus, nothing in the Second Circuit’s opinion limited its holding to rescue attempts.

Courts in the Second Circuit have not interpreted Medeiros as narrowly as Plaintiff does. See, e.g., Malay v. City of Syracuse, No. 08-CV-599, 2011 WL 4595201, at *9 (N.D.N.Y. Sept. 30, 2011) (dismissing the plaintiffs Fourth Amendment claim where the plaintiff was the unintentional victim óf a gas attack because the “[plaintiff was not injured by force' that was deliberately applied to her”); Pickering v. Mercado, No. 03-CV-5654, 2006 WL 1026677, at *7 (E.D.N.Y. Apr. 17, 2006) (holding that where the passenger of a vehicle was shot when the driver refused to show his hands, the passenger had no Fourth Amendment claim because “there [was] simply no evidence in the record establishing that [the plaintiff] was the intended object of the force exerted by [the defendant]”); Hickey v. City of New York, No. 01-CV-6506, 2004 WL 2724079, at *14 (S.D.N.Y. Nov. 29, 2004) (“Therefore, in order for [the plaintiff] to have a Fourth Amendment claim, she must show as a threshold matter that she was the intended object of the force exerted by [the officer].”)," aff'd, 173 Fed.Appx. 893 (2d Cir. 2006). Plaintiff contends that these cases are inapposite because they do not involve a moving vehicle. (See Pl.’s Opp’n 11 n.3.) But this argument does nothing to rebut the fact that courts in the Second Circuit have not limited Medeiros to its facts, and while perhaps some additional issues could arise in situations where a vehicle is in motion, at least one court has applied Medeiros to facts similar to those here without finding or even addressing any potential conflict with Brendlin. See Longwa v. Larregui, No. 07-CV-733, 2011 WL 4005406, at *4 (D. Conn. Sept. 9, 2011) (holding that where an officer fired at a driver in a vehicle moving toward him and accidentally struck the passenger, the passenger did not' have a Fourth Amendment claim because “the [officers did not intend to shoot [the passenger]; and thus did not seize him within the meaning of the Fourth Amendment”). Thus, while Medei-ros was decided before Brendlin, there is no authority supporting Plaintiffs contention that the two are in conflict.

Admittedly, however, there is some tension between Medeiros and Brendlin in that the officers firing into vehicles in Me-deiros and its progeny did so for the purpose of stopping the vehicle, the same purpose pursued by the officer in Brend-lin. But while future Second Circuit and Supreme Court cases may later elaborate on the interaction between these two cases, this Court is constrained .to follow the law as it exists, and unless and until the Second Circuit clarifies or overrules Medeiros in contexts such as this one, the Court is- bound to accept its holding. Accordingly, under Medeiros, a victim of a shooting is not seized if the victim was not the intended target of the force.

Notwithstanding this legal hurdle, Plaintiff contends, in a footnote, .that .circumstantial evidence . “casts doubt on Hess’s claim not to have seen [Plaintiff] when he shot,” and that “[a] jury would likely conclude [Hess] also saw [Plaintiffs] ‘silhouette’ next to D.J.’s and knew that firing, his gun. would stop, both driver and passenger.” (Pl.’s Opp’n 10 n.2.) The Court acknowledges that, as Plaintiff notes, “[circumstantial evidence may permit a factfinder to infer that a witness -had knowledge of a particular fact despite his testimonial denial of knowledge,” In re Dana Corp., 574 F.3d 129, 153 (2d Cir. 2009), but even assuming there is sufficient evidence from which a jury could infer that Hess saw Plaintiff, there Is no evidence, that Hess actually directed his shots at Plaintiff. Plaintiff notes that “[t]he bullet pattern is. consistent with shooting at both the driver and the front seat passenger,” (Pl.’s Mem. 10 n.2), but this fact does nothing to advance the case — all Parties agree that Plaintiff was shot, so pointing to the fact that one bullet traveled on a trajectory leading to Plaintiff adds nothing. Nor does the fact that Plaintiff was in the vehicle with D.J., the individual at whom Hess admits he was aiming, prove that he was also the target of force. A court has rejected similar arguments in a similar, circumstance, calling them, nothing but “loose allegations.” Hickey, 2004 WL 2724079, at *14 (dismissing Fourth Amendment claim because the “plaintiffs [had] produced no actual evidence indicating that [the officer] was attempting to restrain [the victim] when he fired,” and the victim’s “proximity to [the intended target] on the porch does not in of itself give rise to the inference that the officers intended to restrain her”), And not only is Plaintiffs contention unsupported by the evidence, it is simply illogical — Hess testified without contradiction that it was his intent to stop the vehicle, an objective that shooting a passenger in the vehicle would not have served to effect. Finally, Plaintiffs decision to relegate this argument to a footnote is suggestive of its weakness and an inappropriate means of raising substantive arguments. See In re MF Global Holdings Ltd. Inv. Litig., No. 11-CV-7866, 2014 WL 8184606, at *2 (S.D.N.Y. Mar. 11, 2014) (“It is generally inappropriate to make substantive arguments in footnotes.”), aff'd, 611 Fed.Appx. 34 (2d Cir. 2015); In re Crude Oil Commodity Litig., No. 06-CV-6677, 2007 WL 2589482, at *3 (S.D.N.Y. Sept. 8, 2007) (“Arguments which appear in.footnotes are generally deemed to have been waived.”).

Thus, although Hess effected a seizure of Plaintiff (and the other occupants of the vehicle) when he stepped in front of the vehicle and compelled D.J. to slow the car down in an attempt to submit to Hess’s authority, Hess did not. effect a seizure of Plaintiff when he fired into the vehicle, aiming at D.J. and accidentally striking Plaintiff. Plaintiff may very well have some recourse against Hess arising out the shots he fired into the vehicle, but it is not by way of the Fourth Amendment. See Hickey, 2004 WL 2724079, at *15 (“Police misconduct outside of the context of Fourth Amendment seizures may still give rise to claims under the substantive due process protections of the Fourteenth Amendment.”).

c. Reasonableness of Suspicion

The Court must next assess whether Hess’s seizure of the vehicle was supported by “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Navarette, 134 S.Ct. at 1687 (internal quotation marks omitted). “The reasonable suspicion necessary to justify-such a stop is dependent upon both the content of information possessed by police and its degree of reliability.” Id. (internal quotation marks omitted). “[Reasonable suspicion of a traffic violation provides a sufficient basis under the Fourth Amendment for law enforcement officers to make a traffic stop.” United States v. Stewart, 551 F.3d 187, 193 (2d Cir. 2009).

Defendants contend that there were several factors that gave rise to reasonable suspicion in this case: (1) Hess saw and heard the ear accelerate from a stopped position in a fire lane, where stopping is prohibited under Town of Mount .Pleasant Code § 206-16; (2) he saw the vehicle knock Officer . Gagnon off balance; (3) he heard Officer Gagnon yell, “Stop!” or “Stop that car!”; and (4) he saw the vehicle accelerate to an unsafe speed. (See Def.’s Mem. 15.) As Plaintiff rightly points out, (see Pl.’s Opp’n 12-13), all of these facts are disputed. First, Hess admitted that he never saw the vehicle when it was stopped in the fire lane, only saw the vehicle after it had started moving, and could not even tell whether the vehicle was still in.the fire lane when he saw it, (See Hess Dep. 146-47.) Second, Plaintiff disputes that the vehicle knocked Officer Gagnon off. balance, (see Pl.’s 56.1 Resp. ¶ 60), and there is evidence to support this assertion, (see Van Ostrand Dep. 261 (testifying that he did not witness the vehicle come into contact with anyone except Hess); Gilmartin Dep. 149-50 (testifying that he did not witness the vehicle hit anyone except Hess)). Third, Plaintiff disputes that Officer Gagnon yelled for the vehicle to stop, (see Pl.’s 56.1 Resp. ¶ 61), and, again, there is some evidence to support this, (see Beckley Dep. 19 (testifying that he did not hear an airhorn or anybody yelling)).

Finally, the Court rejects Defendants’ argument that a reasonable officer seeing a.vehicle traveling at 17 mph in a parking lot would suspect illegal activity. There was no speed limit posted in, the parking lot, (see Hinds Dep. 232; Greenberger Decl. Ex. 22), and Mt. Pleasant’s traffic code does not generally set speed limits for parking lots where none is posted, (see Pl.’s 56.1 Resp. ¶ 65 (citing Mt. Pleasant Code §§ 145-2, 145-3, 145-9, 145-14, 145-15, 145-16, 145-21, http://ecode360.com/ 9606637# 9606672).) Moreover, the vehicle’s speed peaked at 17 mph prior to its collision with Hess, but it was not traveling at that speed for all or even most of the time before impact. (See Witte Revised Report 12-13.) And while Hess opined that the vehicle was “speeding imprudently in an area with lots of people,” (Hess Dep. 732), other testimony contradicts or calls into question the accuracy of that statement, (see Cox Dep. 274-75 (the vehicle traveled at “regular parking lot speed”); Hinds Dep. 198 (the vehicle travelled “slowly”)). And Hess himself admitted that he did not recall any pedestrians being in the roadway during the incident. (See Hess Dep. 157-60.) Under these circumstances, it cannot be said that the vehicle’s mere acceleration to 17 mph was so dramatic or unsafe as to create a reasonable suspicion of illegal, behavior. Cf. Whren v. United States, 517 U.S. 806, 808, 819, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (finding reasonable suspicion- where the vehicle was in a “high drug area” of the city in an unmarked car with temporary license plates, remained stopped at a stop sign for an unusually long period of time, made an abrupt right turn without signaling, and sped off at an “unreasonable” speed) (internal quotation marks omitted); Cooper v. City of Hartford, No. 07-CV-823, 2009 WL 2163127, at *8 (D. Conn. July 21, 2009) (holding that although “the vehicle was traveling at a high rate of speed,” the “totality of the circumstances, viewed in the light most favorable to the plaintiff, did not provide the officers with a particularized and objective basis for suspecting that the occupants of [the] vehicle were engaged in criminal activity”); United States v. Culmer, 736 F.Supp. 474, 477-78 (S.D.N.Y. 1990) (finding reasonable suspicion where the officer observed the occupants of the vehicle peering at ' him through the rear window, the vehicle trav-elled at an “excessive rate of speed” and made an illegal right turn, and several other circumstances indicated criminal activity).

Defendants cite, for the first time in their reply brief, (see Reply Mem. of Law in Supp. of Def. Aaron Hess’ Mot. for Summ. J. (“Defi’s Reply”) 9 (Dkt. No. 128)), to New York Vehicle and Traffic Law § 1180(a), which provides that “[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” But while it is undisputed that D.J.’s vehicle was traveling, for at least a moment in time, at 17 mph, New York courts have generally held that whether a vehicle is moving at “a speed greater than is reasonable and prudent under the conditions” is a question of fact. See St. Andrew v. O’Brien, 45 A.D.3d 1024, 845 N.Y.S.2d 184, 188 (2007) (“[WJhether the driver’s speed was reasonable under the particular circumstances in which she knowingly proceeded is a question for the trier of fact to resolve.” (citation omitted)); Smart v. Wozniak, 58 A.D.2d 993, 397 N.Y.S.2d 489, 491 (1977) (“Whether [the plaintiffs] speed was reasonable under the conditions was a question of fact for the jury.” (citation omitted)). To be sure, Defendants need not prove that D.J. actually violated § 1180(a), only that Hess had reasonable suspicion that he had. But in these circumstances, where the evidence shows only that the vehicle was traveling at a maximum speed of 17 mph (for only a moment) through a driving lane in which no pedestrians were standing, the Court cannot conclude as a matter of law that Hess reasonably suspected the vehicle was traveling at a speed imprudent under the circumstances.

Because Defendants’ arguments for reasonable suspicion all rest on disputed facts, the Court cannot, at this stage, hold that Plaintiffs Fourth Amendment claim arising out of the seizure of the vehicle fails as a matter of law.' Accordingly, while Plaintiffs Fourth Amendment claim arising out of Hess’s shooting into the vehicle is dismissed, Plaintiff has established grounds for a Fourth Amendment claim arising out of Hess’s seizure of the vehicle by way of stepping into the roadway and causing D.J. to submit to this authority.

2. Substantive Due Process

Notwithstanding that the shooting of the vehicle does not give rise to a Fourth Amendment claim, Plaintiff may still proceed with that claim under the theory that Hess violated Plaintiffs substantive due process rights. Whenever “a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the moré generalized notion of substantive due process, must be- the guide for analyzing th[o]se claims.” Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (internal quotation marks omitted). However, a substantive due process analysis is appropriate where the claim is not covered by the Fourth Amendment. See County of Sacramento, 523 U.S. at 843, 118 S.Ct. 1708.

The “touchstone of due process is protection of the individual against arbitrary action of government,” Id. at 845, 118 S.Ct. 1708 (alteration and internal quotation marks omitted). “Alleged abuses of the police power are sufficiently arbitrary to rise to constitutional magnitude only when the conduct at issue ‘shocks the conscience.’” Medeiros, 150 F.3d at 170. Although “the measure of what is conscience shocking is no calibrated yard stick,” County of Sacramento, 523 U.S. at 847, 118 S.Ct. 1708, “conduct intended to injure in some way'unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level,” id. at 849, 118 S.Ct. 1708. Where a claim for excessive force is raised under the Fourteenth Amendment, the Court should consider “the need for the application of force, the relationship between the need and the. amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Hemphill v. Schott, 141 F.3d 412, 419 (2d Cir. 1998) (internal quotation marks omitted).

Defendants first argue that Plaintiff cannot raise a substantive due process claim because it was not properly pleaded in the Complaint. (See Def.’s Mem. 21.) The First Cause of Action in the Complaint raises a claim under 42 U.S.C. § 1983 arising out of violations of.Plaintiff s “rights guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution.” (Compl. ¶ 72.) The Complaint does not, however, specifically use the.terra “due. process.”

Nevertheless, Plaintiff is correct that the Complaint is sufficient to raise a substantive due process claim. The First Cause of Action unambiguously invokes Plaintiffs rights under the Fourteenth Amendment and references Hess’s use of “excessive force,” Which form’s the basis for Plaintiffs due process claim. (Id.) “[A] complaint need not correctly plead every legal theory supporting the claim;” although the plaintiff must at least “set' forth facts that will allow each party to tailor its discovery to prepare an appropriate defense.” Beckman v. U.S. Postal Serv., 79 F.Supp.2d 394, 407 (S.D.N.Y. 2000). Plaintiffs invocation of the Fourteenth Amendment accompanied by the factual allegations giving rise to a substantive due process claim plainly satisfies this standard. See Marbury Mgmt., Inc. v. Kohn, 629 F.2d 705, 712 n.4 (2d Cir. 1980) (“Generally a complaint that gives full notice of the circumstances giving rise to the plaintiffs claim for relief need not also correctly plead the legal theory or theories and statutory basis supporting the claim.”).

Moreover, there is no prejudice to Defendants for considering the claim. Importantly, Plaintiff did not raise the substantive due process claim in his opposition papers in an attempt to salvage an otherwise doomed, claim for excessive force, which-would have been inappropriate. See Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 170 F.R.D. 111, 119 (S.D.N.Y. 1997) (“[I]t is inappropriate to raise new claims for the first time in submissions in opposition to summary judgment.”). Instead, Hess’s premotion letter references the substantive due process claim and explains its purported deficiencies (although the letter does not suggest that the claim was . inadequately pled) — Hess therefore appears, to have been put on notice before the briefing on this Motion as to the existence of the due process .claim. (See Letter from Brian S. Sokoloff, Esq., to Court (Oct. 11, 2016) (Dkt. No. 101).) And the factual basis for the due process claim is the same as the Fourth Amendment claim; there is thus no undue surprise to Defendants that would warrant disregarding the claim at this stage.

The cases cited by Defendants on this point are inapposite. In each, of them, the issue was not the formal structure of the pleadings, but rather the absence of any allegations of . a violation of due process. See Vessa v. City of White Plains, No. 12-CV-6989, 2014 WL 1271230, at *2 n.7 (S.D.N.Y. Mar. 27, 2014) (noting that a “mere passing reference to the Fourteenth Amendment” was insufficient to state a due process claim “absent any allegations that [the] [defendants did,, in fact, violate [the] [p]laintiffs Due Process rights”), aff'd, 588 Fed.Appx. 9 (2d Cir. 2014); Koltun v. Berry, No. 13-CV-1612, 2013 WL 11933966, at *9 (S.D.N.Y. Oct. 25, 2013) (recommending dismissal of due process claims because “the complaint’s references to due process under the Fourteenth Amendment [were] entirely opaque and [did] not appear to allege anything beyond the claims previously addressed”) (report and recommendation); DeFilippo v. N.Y. State Unified Ct. Sys., No. 00-CV-2109, 2006 WL 842400, at *20 (E.D.N.Y. Mar. 27, 2006) (“While the court notes that the [p]laintiff did mention the [Fourteenth] Amendment in his complaint and did reference ‘the due process of law[,]’ it is plain that the [a]mended [c]omplaint does not allege a due process violation in connection with the [p]laintiff s disciplinary hearing.”) (citation omitted), aff'd 223 Fed.Appx. 45 (2d Cir. 2007); Balaber-Strauss v. Town/Village of Harrison, 405 F.Supp.2d 427, 434 (S.D.N.Y. 2005) (dismissing due process claims because “[t]he [c]omplaint contained] no allegations supporting th[o]se alleged constitutional violations”). None of these cases addresses the situation where, as here, a plaintiff pleads the factual basis for a substantive- due process claim and unambiguously invokes the Fourteenth Amendment in the context of a claim of excessive force in the first cause of action, The Court is satisfied that Plaintiff adequately pleaded a substantive due process claim and that consideration of the claim works no prejudice against Defendants.

- With respect to the merits of thé substantive due' proc