| Johnson v City of New York |
| 2009 NY Slip Op 06225 [65 AD3d 476] |
| August 18, 2009 |
| Appellate Division, First Department |
| Tammy D. Johnson et al., Respondents, v City of NewYork et al., Appellants. (And Another Action.) |
—[*1] Gutterman & Speiser, New York (Barry A. Gutterman of counsel), for respondents.
Order, Supreme Court, New York County (Karen Smith, J.), entered July 31, 2008, whichdenied defendants' motion for summary judgment dismissing the complaint, reversed, on the law,without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enteredjudgment accordingly.
This negligence action arises from an exchange of gunfire involving police officers and anarmed robbery suspect on a residential street in Manhattan. The officers had followed two menwho were armed robbery suspects, from 125th Street, along Lenox Avenue, and then onto 126thStreet in the direction of Fifth Avenue. All of the officers involved testified that as they entered126th Street they did not see any bystanders. On 126th Street they exited their police car, andordered one of the suspects to drop a gun which they observed him to be carrying. Instead ofcomplying he began to fire his weapon at them, and they returned his fire.
Plaintiff testified that she was outside her residence on 126th Street when she heard shotsbeing fired. She grabbed her daughter, and took cover behind a truck. She did not notice thepolice officers as the shooting began, and only saw two men running down the street.
As a general rule, a municipal defendant is immune from liability for conduct involving theexercise of discretion and reasoned judgment (see Mon v City of New York, 78 NY2d309 [1991]). However, the judgment error rule does not immunize municipal defendants when aninnocent bystander is injured by the action of a police officer "in an altercation involving aviolation of established police guidelines governing the use of deadly physical force by policeofficers" (Lubecki v City of New York, 304 AD2d 224, 234 [2003], lv denied 2NY3d 701 [2004]; see Rodriguez v City of New York, 189 AD2d 166, 178 [1993]).
In this case, there has been no showing that any police guidelines were violated. There is noevidence that innocent persons were unnecessarily endangered, because nothing indicates that atthe time the robbery suspect opened fire there were any bystanders, including the plaintiffs, inview. To the contrary, the uncontradicted testimony of the police officers was that they saw nobystanders as they sought to protect themselves and their fellow officers by returning fire. Thepolice took appropriate measures to protect themselves, as well as the public, which was clearly[*2]endangered by the actions of this fleeing felon. Furthermore,in view of the absence of proof that there were any bystanders in view, the report of theplaintiffs' expert suggesting that there were questions of fact as to whether police guidelineswere violated must be rejected.
Under such circumstances, the officers' exercise of their professional judgment in decidingwhether to use appropriate force as they pursued an individual who was firing at them is notactionable. Concur—Andrias, J.P., Nardelli and McGuire, JJ.
Acosta and DeGrasse, JJ., dissent in a memorandum by DeGrasse, J., as follows: Irespectfully dissent. Plaintiffs are bystanders who were shot during a daylight exchange ofgunfire between police officers and a robbery suspect. Five police officers, including OfficersBeddows and Garcia, discharged their weapons during the incident. All of the police officersinvolved used 9 millimeter weapons as opposed to the .380 caliber pistol fired by the suspect.Plaintiffs' ballistics expert opined that a bullet fragment taken from plaintiff Tammy Johnson'sarm is "consistent with having been fired from one of the Police officers weapons [sic]."The City's ballistics expert added that the fragment recovered from Johnson's body could havecome from the weapon fired by either Beddows, Garcia or Williams, another officer. West 126thStreet is a one-way street running east to west. During the relevant part of the gunfire, thesuspect was crouched behind a van parked in front of 60 West 126th Street, on the south side ofthe street. Beddows fired from a position behind a vehicle which was parked across the street, infront of 69 West 126th Street. Garcia fired his weapon from the north side of the street, directlyacross the street from 40 West 126th Street. Johnson testified that she, her then 19-month-olddaughter and plaintiff Garnold King were wounded while crouched at the tail end of an SUVwhich was parked facing west in front of 58 West 126th Street. The next parked vehicle behindthe SUV was 2½ car lengths away.
The complaint includes allegations of negligence. Citing Mon v City of New York(78 NY2d 309 [1991]) and other cases, the City moved for summary judgment on the groundthat municipalities are immune from liability for conduct involving the exercise of discretion andreasoned judgment. Supreme Court denied the motion, finding an issue of fact as to whether thepolice officers failed to follow their department's procedures by discharging their weapons in away that unnecessarily endangered innocent persons. Citing Lubecki v City of New York(304 AD2d 224 [2003], lv denied 2 NY3d 701 [2004]) and Rodriguez v City of NewYork (189 AD2d 166 [1993]), the majority has reversed the order below finding no showingthat police guidelines were violated. I disagree and would affirm Supreme Court's decision forthe reasons that follow.
A municipality is immune from liability for the injurious consequences of conduct involvingthe exercise of discretion and reasoned judgment (see Mon, 78 NY2d at 313-316). Suchimmunity applies to the actions of police officers engaged in law enforcement activities, but doesnot apply where police officers act in violation of acceptable police practice (see e.g.Lubecki, 304 AD2d at 233-234). This case presents the question of whether plaintiffs'injuries were brought about by a departure from acceptable police practice.
The Police Department's procedure No. 203.12 sets forth the following relevant guidelineswith respect to the use of firearms:[*3]
"a. Police officers shall not use deadly physical forceagainst another person unless they have probable cause to believe they must protect themselvesor another person present from imminent death or serious physical injury.
"b. Police officers shall not discharge their weapons when doing so will unnecessarilyendanger innocent persons."
As to the first guideline, based on the conduct of the armed robbery suspect there wasprobable cause for the use of firearms by those police officers who could do so withoutendangering innocent bystanders. As to the second guideline, the majority concludes that"[t]here is no evidence that innocent persons were unnecessarily endangered, because nothingindicates that at the time the robbery suspect opened fire there were any bystanders, includingplaintiffs, in view." A sketch prepared by the Police Department's Crime Scene Unit depicts anobtuse triangle formed by the positions of Officer Garcia, the robbery suspect and plaintiffs withthe longest side extending between Garcia and the suspect and the shortest between the suspectand plaintiffs, two brownstones away. Garcia testified that he saw the suspect but did not seeplaintiffs. Nevertheless, evidence indicates that when Garcia fired his weapon plaintiffs werecloser than the suspect, with 2½ empty parking spaces behind them on the side Garcia wasfacing. Garcia testified at his deposition as follows:
"Q. While you were shooting, did you look to see whether there were any pedestrians orbystanders on the street.
"A. No."
Similarly, Beddows gave the following testimony:
"Q. Did you see any pedestrians or civilians on the street at the time other than the perp?
"A. No.
"Q. Did you look to see if there were any around?
"A. I looked after pretty much everything was done."
I submit that the foregoing creates a triable factual issue as to whether Garcia and Beddows[*4]violated the Police Department's guideline by failing to evenascertain whether innocent persons were unnecessarily endangered at the time they dischargedtheir weapons.