Suffolk County has agreed to a $1.7 million settlement with a Patchogue man who was shot in 2018 by an off-duty Fifth Precinct officer who mistook him for a robbery suspect, federal court records show.

Steven Kelly, 41, was walking home from withdrawing cash at a 7-Eleven ATM on Waverly Avenue in Patchogue shortly after 2:15 a.m. on Dec. 3, 2018, when a man pulled up alongside him in his personal vehicle and said he was a police officer looking for a robbery suspect, according to a 2021 civil complaint. As Kelly attempted to walk away from the officer, he was punched, kicked, struck with a Taser and eventually shot in the midsection, requiring "lifesaving surgery," according to the complaint.

“This is a set of circumstances that caused some life-altering injuries that should never have happened,” said Kelly’s attorney, Frederick Brewington of Hempstead. “No matter what amount he's paid, it’s never going to undo the serious bodily injury that he suffered.”

Kelly spent eight days at Long Island Community Hospital in East Patchogue and had emergency surgery to remove bullet fragments from his chest and torso, according to the complaint. He also suffered a fractured rib, facial laceration, perforated colon and bowel, and had his spleen removed following the shooting, the suit alleges.

“Thank goodness for the health care providers that saved his life, but his life never should have been in jeopardy by the hands of an overzealous police officer who violated his rights," Brewington said. 

In a February 2022 letter to the court, Suffolk County alleged the officer, Kevin Muller, was in uniform and had just left the precinct when he spotted Kelly walking down Waverly Avenue near Third Street in Patchogue. The county alleged Kelly was combative and Muller only shot him after the Taser did not work and Kelly continued to punch him.

A second officer, who Muller asked to assist him before approaching Kelly, arrived at the scene moments later and subdued Kelly, according to the county.

Brewington said surveillance footage of the altercation showed Muller “struck the first blow” before his client fought back not knowing for certain if Muller was a police officer. The attorney also alleged that the robbery suspect was described as Black or Hispanic. He said Kelly is white and was dressed differently than the description from the robbery, which occurred earlier that night.

Brewington said Muller was not disciplined by the department following the shooting.

Kelly was arrested and charged with second-degree obstructing governmental administration, though the criminal case was dropped following an adjournment in contemplation of dismissal in January 2020, court records show.

The 1 a.m. walk to and from the 7-Eleven store, which is about a mile from Kelly’s apartment, was part of a routine on the third day of every month, according to the complaint. Diagnosed with schizophrenia, Kelly has been receiving monthly Social Security disability benefits that are deposited into his bank account on that day since he was a teenager, the suit states.

Kelly alleged in the complaint that Muller did not show him a badge or identification.

Kelly said he showed the officer his own identification after it was requested and was attempting to walk away when the incident turned physical.

In separate court filings, both men alleged they feared for their lives.

Kelly claimed false arrest, fabrication of evidence, abuse of process, and unreasonable and excessive use of force in the complaint. He also made claims for violation of the Americans with Disabilities Act and Municipal Liability.

Kelly had sought $15 million in compensatory damages and $20 million in punitive damages in the civil suit, which named Suffolk County, its police department and Muller as defendants. The case was before United States Magistrate Judge James M. Wicks in Central Islip.

The county informed Wicks of the settlement agreement in writing Nov. 1. County officials did not immediately respond to a request for comment Monday.

The settlement, which was approved by the legislature in October, is one of several recent payouts by Suffolk County to residents alleging police misconduct.

In August, a federal jury awarded $35 million to the family of Kenny Lazo, a Bay Shore man who died after he was beaten by Suffolk police following a 2008 traffic stop. The county that same month also paid $500,000 to settle a federal lawsuit brought by Steven McCune of Commack, a construction worker who said police brutally beat him during a 2012 altercation in a union hall parking lot.

The Lazo family and McCune were also represented by Brewington.

Suffolk County has agreed to a $1.7 million settlement with a Patchogue man who was shot in 2018 by an off-duty Fifth Precinct officer who mistook him for a robbery suspect, federal court records show.

Steven Kelly, 41, was walking home from withdrawing cash at a 7-Eleven ATM on Waverly Avenue in Patchogue shortly after 2:15 a.m. on Dec. 3, 2018, when a man pulled up alongside him in his personal vehicle and said he was a police officer looking for a robbery suspect, according to a 2021 civil complaint. As Kelly attempted to walk away from the officer, he was punched, kicked, struck with a Taser and eventually shot in the midsection, requiring "lifesaving surgery," according to the complaint.

“This is a set of circumstances that caused some life-altering injuries that should never have happened,” said Kelly’s attorney, Frederick Brewington of Hempstead. “No matter what amount he's paid, it’s never going to undo the serious bodily injury that he suffered.”

Kelly spent eight days at Long Island Community Hospital in East Patchogue and had emergency surgery to remove bullet fragments from his chest and torso, according to the complaint. He also suffered a fractured rib, facial laceration, perforated colon and bowel, and had his spleen removed following the shooting, the suit alleges.

“Thank goodness for the health care providers that saved his life, but his life never should have been in jeopardy by the hands of an overzealous police officer who violated his rights," Brewington said. 

In a February 2022 letter to the court, Suffolk County alleged the officer, Kevin Muller, was in uniform and had just left the precinct when he spotted Kelly walking down Waverly Avenue near Third Street in Patchogue. The county alleged Kelly was combative and Muller only shot him after the Taser did not work and Kelly continued to punch him.

A second officer, who Muller asked to assist him before approaching Kelly, arrived at the scene moments later and subdued Kelly, according to the county.

Brewington said surveillance footage of the altercation showed Muller “struck the first blow” before his client fought back not knowing for certain if Muller was a police officer. The attorney also alleged that the robbery suspect was described as Black or Hispanic. He said Kelly is white and was dressed differently than the description from the robbery, which occurred earlier that night.

Brewington said Muller was not disciplined by the department following the shooting.

Kelly was arrested and charged with second-degree obstructing governmental administration, though the criminal case was dropped following an adjournment in contemplation of dismissal in January 2020, court records show.

The 1 a.m. walk to and from the 7-Eleven store, which is about a mile from Kelly’s apartment, was part of a routine on the third day of every month, according to the complaint. Diagnosed with schizophrenia, Kelly has been receiving monthly Social Security disability benefits that are deposited into his bank account on that day since he was a teenager, the suit states.

Kelly alleged in the complaint that Muller did not show him a badge or identification.

Kelly said he showed the officer his own identification after it was requested and was attempting to walk away when the incident turned physical.

In separate court filings, both men alleged they feared for their lives.

Kelly claimed false arrest, fabrication of evidence, abuse of process, and unreasonable and excessive use of force in the complaint. He also made claims for violation of the Americans with Disabilities Act and Municipal Liability.

Kelly had sought $15 million in compensatory damages and $20 million in punitive damages in the civil suit, which named Suffolk County, its police department and Muller as defendants. The case was before United States Magistrate Judge James M. Wicks in Central Islip.

The county informed Wicks of the settlement agreement in writing Nov. 1. County officials did not immediately respond to a request for comment Monday.

The settlement, which was approved by the legislature in October, is one of several recent payouts by Suffolk County to residents alleging police misconduct.

In August, a federal jury awarded $35 million to the family of Kenny Lazo, a Bay Shore man who died after he was beaten by Suffolk police following a 2008 traffic stop. The county that same month also paid $500,000 to settle a federal lawsuit brought by Steven McCune of Commack, a construction worker who said police brutally beat him during a 2012 altercation in a union hall parking lot.

The Lazo family and McCune were also represented by Brewington.

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