Pain and Suffering Damages Award against Police Department Addressed on Appeal in Excessive Force Case
On February 13, 2009, at 5 a.m., Anthony Shimukonas was asleep in his East Harlem apartment when he was awakened by what sounded like an explosion. It was a squad of officers from the New York City Police Department forcibly breaching and ramming through the door to execute a no knock search warrant based upon information that Mr. Shimukonas was in possession of illegal drugs and guns.
In the ensuing moments, after the lead officer approached him with a four foot long, two foot wide bullet resistant shield, the 23 year old Shimukonas was handcuffed and arrested.
In the melee, Shimukonas sustained a broken nose. He was taken to the local emergency room for minor treatment before he was booked at the police station and taken to the prison at Rikers Island. He ultimately pled guilty to various crimes and spent eight years in jail.
Shimukonas sued the police department claiming that the officers used excessive force during the arrest and that as a result he was injured. In early 2018, a Manhattan jury agreed that the force was excessive but they declined to award any compensation at all for either past or future pain and suffering.
Plaintiff appealed and in Shimukonas v. City of New York (1st Dept. 2019), the court ruled that the jury’s failure to award damages for past pain and suffering was contrary to a fair interpretation of the evidence and deviated from what would be reasonable compensation. The appellate court ordered an increase in pain and suffering damages to the sum of $200,000 (all past – nine years). The award of zero damages for future pain and suffering was not disturbed.
The court’s decision indicated that plaintiff sustained a broken nose and orbital fractures. Here are the injury details:
- traumatic nasal deformity – significant deviation of one side of bony dorsum with valve collapse
- facial lacerations requiring stitches
- open rhinoplasty (reconstructive nasal surgery) with osteotomy, dorsal spreader graft and alar rim graft
No doctors testified for either side; instead, the parties agreed that there would be no need for medical testimony. Records from the emergency room on the date of the incident and from the hospital where plaintiff underwent surgery five months later were accepted as trial exhibits.
Plaintiff testified that for two weeks after the incident he could not see out of one eye, had difficulty breathing and lost his sense of smell. He claimed at trial that his major remaining complaint was that he still had no sense of smell (except for brief intervals, about one day a month).
Inside Information:
- There is no mention of any orbital fracture in the medical records.
- When the police entered plaintiff’as apartment, he did indeed have guns – an AK-47 assault rifle in his bed and a loaded Glock 9 MM handgun on his nightstand. While there was no claim that plaintiff grabbed either weapon, the police claimed they used the shield to pin the plaintiff against a wall because he stood up, was moving around and disobeyed their commands to lay down on the floor,
- Plaintiff’s pre-trial settlement demand was $25,000. In his summation, plaintiff’s attorney asked for $850,000. After the verdict, he asked for an award of $250,000.
