Brown v City of New York
Annotate this CaseDecided on February 20, 2009
Supreme Court, Kings County
Dexter M. Brown and Robbin Brown, Plaintiffs,
against
City of New York, New York City Police Department, Luis Lopez, Kenneth Cullen, Louis Anemone, Joseph Esposito, Thomas J. Nizza and James Murray, Defendants.
7003/99
Counsel for petitioner
Bonita E. Zelman, Esq.
2001 Marcus Avenue, Suite S150
New Hyde Park, New York 11042
Counsel for respondent
Corporation Counsel
100 Church Street
New York, New York
Karen B. Rothenberg, J.
Upon the foregoing papers, the City of New York, the Police Department of the City of New York (the NYPD), Luis Lopez, Kenneth Cullen, Louis Anemone, Joseph Esposito, Thomas J. Nizza and James Murray (collectively, defendants) move for an order, pursuant to CPLR 3211 (a) (7) or, alternatively, CPLR 3212, dismissing the complaint of plaintiff Dexter M. Brown (plaintiff) in its entirety.[FN1] Plaintiff cross-moves for an order, pursuant to CPLR 3212, granting him partial summary judgment under General Municipal Law § 205-e and for leave, pursuant to [*2]CPLR 3025 (b), to serve a supplemental bill of particulars.
Summary
Plaintiff, an African-American NYPD Sergeant, was shot and wounded during a "buy and bust" undercover narcotics operation at a Bedford-Stuyvesant crack house 11 years ago. Plaintiff testified at his pre-trial deposition that, at the conclusion of the operation, his subordinate, a Latino undercover officer Luis Lopez (Lopez), intentionally shot him in the back twice. According to plaintiff, at the time Lopez shot him, neither plaintiff nor Lopez were in danger as plaintiff had already subdued a suspect, a male later identified as Steven Service (Service). In direct contradiction to plaintiff's version of events, Lopez testified at his pre-trial deposition that he was shooting at Service who, at that time, was engaged in a life-and-death struggle with plaintiff for the latter's gun.
A Caucasian member of plaintiff's team, Kenneth Cullen (Cullen), arrived at the crime scene while Lopez was firing, and shot Service wounding him. Cullen's single shot did not strike plaintiff. Like Lopez, Cullen had worked with plaintiff on his team for approximately 1-1/2 years prior to the incident.
The NYPD's internal investigation found that Lopez' and Cullen's discharges of their firearms were within departmental guidelines and imposed no discipline. With respect to plaintiff, however, it recommended that he undergo tactical training because he had attempted to arrest a suspect without a back-up. The Office of the District Attorney (the D.A.) brought no criminal charges against Lopez or Cullen.
For the reasons set forth below, defendants' motion for summary judgment to dismiss all of the eight causes of action asserted in the complaint is decided as follows:
(1-2) plaintiff's common-law assault and battery causes of action against Lopez and the City survive and shall be determined at trial (First and Second Causes of Action);
(3) plaintiff's common-law negligence cause of action against Lopez and the City is dismissed (Third Cause of Action);
(4) plaintiff's 42 USC § 1983 cause of action against the individual defendants, excluding Lopez, is dismissed, and as to Lopez, such cause of action is not dismissed and shall be determined at trial (Fourth Cause of Action);
(5) plaintiff's 42 USC § 1983 cause of action against the City is dismissed (Fifth Cause of Action);
(6) plaintiff's cause of action against all defendants alleging failure to adequately and properly train or supervise Lopez and Cullen and further alleging a cover-up and deficient investigation is dismissed (Sixth Cause of Action);
(7) plaintiff's General Municipal Law § 205-e cause of action against the City is dismissed, except to the extent that it is based on Lopez' alleged violations of the Penal Law, and as to Lopez, such cause of action is not dismissed and shall be determined at trial (Seventh Cause of Action); and
(8) Robbin Brown's derivative claim based on plaintiff's General Municipal Law § 205-e cause of action is dismissed (Eighth Cause of Action).
All claims against the NYPD are dismissed. [*3]
Plaintiff's cross motion for partial summary judgment against the City pursuant to General Municipal Law § 205-e is denied.
Plaintiff's request for leave to serve a supplemental bill of particulars is granted with respect to Penal Law §§ 120.05 (4) and 120.00 (2), and is denied with respect to Labor Law § 27-A and, to the extent granted, the supplemental bill of particulars is deemed served on all defendants.
Factual Background
On February 26-27, 2008, plaintiff was working a 9:25 p.m. to 6 a.m. tour of duty as the supervisor of the 79th Precinct Narcotics Module No.1 in charge of narcotics investigations, narcotics funds, and overseeing police officers and detectives (Plaintiff 50-h Hearing Tr. at 7). Plaintiff's team on that night consisted of eight officers:
Name/RankRaceAssigned Role
Plaintiff/Sergeant
BlackSupervisor
Greg Wright/Police OfficerBlackArresting Officer
(paired with Supervisor)
Anton Molloy/UndercoverMinority
(not otherwise specified)Undercover
Luis Lopez/Undercover DetectiveHispanicUndercover
Kenneth Cullen/DetectiveWhiteApprehension/Back-up
Michael Decker/Police OfficerWhiteApprehension/Back-up
Joseph Gulloto/Police OfficerWhitePrisoner Van
Richard Ekberg/DetectiveWhitePrisoner Van
Prior to the incident, plaintiff, then a 12-year veteran of the NYPD, had specialized in the field of narcotics enforcement for six to eight years and was the most senior member of his team (Plaintiff EBT Tr. at 48). Plaintiff had worked with each of Lopez and Cullen in the narcotics module since September 1996, or for approximately 1-1/2 years prior to the incident (Plaintiff EBT Tr. at 43). At the time of the incident, Lopez had been on the force 5-1/2 years, and Cullen, 7-1/2 years.
Plaintiff and his team assembled at the 79th Precinct Module Office for a tactical meeting preparatory to beginning the night's work. During the ten-minute meeting, buy money was copied, personnel and vehicles were assigned, and equipment was distributed.
Each team member had a Motorola-type point-to-point radio which enabled communication with each team member at a radio frequency that was selected by plaintiff. As an undercover, Lopez was also equipped with an earphones/speaker set to enable him to transmit messages without taking out his radio.
Plaintiff wore a department-issued bullet-proof vest. Lopez, as an undercover, wore no vest so as not to arouse suspicion.
Plaintiff was armed with a 9 mm. Glock pistol; Lopez, also with a 9 mm. Glock; and Cullen, with a 9 mm. Smith & Wesson.
In his tactical plan, plaintiff listed ten Brooklyn locations for the possible "buy and bust" operations, with the personnel assignments to remain the same for all ten locations throughout [*4]the night. The building at 325 Franklin Avenue was not one of the original locations. Plaintiff had not planned to go to that location that night but en route to the first location his team passed the area of Franklin Avenue and Clifton Place in Brooklyn and observed possible drug dealing in the area. After successfully completing a "buy and bust" at the first planned location, plaintiff radioed to his team, sometime between 12:00 and 12:15 a.m. on February 27, 1998, to move to the location on Franklin Avenue near Clifton Place. Plaintiff directed Cullen and Decker as apprehension officers, along with Gulloto and Ekberg in the prisoner van, to a position north of the location on Franklin Avenue. Plaintiff also directed undercovers Malloy and Lopez to enter the location and start the operation. Malloy and Lopez decided between themselves that Malloy would act as the buyer and Lopez as the "ghost."
Positioning himself and his partner Wright on Franklin Avenue between Lafayette and DeKalb Avenues, plaintiff awaited the results of the buy attempt by Molloy. Molloy was able to make a contact with a female (a steerer) who led him inside 325 Franklin Avenue, a three-story brick residential building with a store front near Clifton Place (the building), at which Molloy bought crack cocaine from a black male in a dark coat who was later identified as Service. After emerging from the building, Molloy made a positive "buy" sign to Lopez and then walked off the location. Lopez transmitted to his team the building location and the description of the steerer and Service. Plaintiff then radioed to his team that he and Wright would enter the location.[FN2] Plaintiff stated that he did so because he and Wright were the only black officers on his team and that if the others would enter the location, it would cause the suspects to run away. Plaintiff and Wright drove their vehicle to Franklin Avenue and Lafayette Avenue where they parked and then walked towards the building. While on Franklin Avenue, plaintiff observed the female steerer who answered Lopez' description and had Wright apprehend her. At plaintiff's order, his back-up team was on a stand-by, waiting to respond when he would call them. Plaintiff saw Lopez on the opposite side of the street near a fire hydrant, which was his correct position (Plaintiff EBT Tr. at 106), and radioed to Lopez that he was doing the "bust." Plaintiff did not request a back-up from his team.
Plaintiff alone walked towards the door of 325 Franklin Avenue. At the door, plaintiff observed Service standing in the doorway with the door slightly ajar and his head sticking out of the entrance. Plaintiff displayed his shield to Service, announced "Police," and unholstered his weapon with his right hand. In response, Service attempted to push plaintiff out of the building by closing the door on him (the door opened to the inside), and a brief period of pushing between the two occurred. Plaintiff was able to push the door open. Service, who was then partially behind the door, grabbed with his left hand plaintiff's gun hand. Plaintiff observed that Service had in his right hand an unidentifiable object, which plaintiff believed to be a weapon. Plaintiff reached for Service's left hand with his right hand and grabbed it by the wrist. During the struggle, the door partially separated plaintiff and Service. As the struggle continued, another male suspect came from within the lobby (entrance into the building proper) and, with both [*5]hands, grabbed plaintiff's neck. The second suspect pulled plaintiff into the building vestibule and the door closed behind him. Plaintiff's struggle with Service continued inside the building, with the second suspect attempting to pull plaintiff to the ground from behind using a choke hold. Plaintiff feared that if either suspect could take his weapon from him, he would be killed. Plaintiff stated that as soon as he was able to position his weapon towards Service, he fired three times at him. In reaction to the firearm discharges, plaintiff saw Service fall to the floor and reach for his leg, and the second suspect released his hold on plaintiff and ran inside the building. What happened next is disputed.
Plaintiff described what happened next as follows. Standing in the lobby, plaintiff returned his attention to Service who was then on the floor. Plaintiff grabbed the front door and, pressing his body against the front door, pinned Service behind it. Plaintiff at that time still had his weapon in his right hand. Reaching into his inner pocket with his left hand, he took out his radio and at that moment he heard gunfire and felt that he was shot (Plaintiff EBT Tr. at 94). Turning towards his right he prepared himself to face what he believed to be another suspect (Plaintiff EBT Tr. at 94). However, he saw Lopez standing 4-8 feet away in a combat stance (Plaintiff EBT Tr. at 94). Plaintiff testified that he shouted at Lopez, "What are you shooting at me for?", at which point Lopez lowered his weapon (Plaintiff EBT Tr. at 95). Plaintiff then observed Service begin to crawl from behind the door and move directly in front of him, toward the street. Service used the door jamb to partially lift himself up so that he could exit the building (Plaintiff EBT Tr. at 97). Plaintiff then observed Lopez raise his weapon again and resume firing. Plaintiff yelled to Lopez, "Stop firing!" two or three times, but Lopez continued to fire at Service as the latter fell down in front of plaintiff (Plaintiff EBT Tr. at 98). Service's body fell face down in the door frame of the building (Plaintiff EBT Tr. at 99). It is undisputed that the second volley of rounds shot by Lopez did not strike plaintiff.
At his 50-h hearing, however, plaintiff offered conflicting versions of when exactly he was shot. Initially, plaintiff stated, consistent with his EBT testimony, that he was shot after he had subdued Service and while he was preparing to call for a back-up (Plaintiff 50-h Hearing Tr. at 42). On further questioning at that hearing, however, plaintiff testified that he was shot while he was attempting to pin Service behind the door (Plaintiff 50-h Hearing Tr. at 59).
According to Lopez, after he heard shots fired inside the building, he radioed his team members and requested that they move in immediately.[FN3] Lopez ran towards the building, entering by pushing or kicking the door open. He observed plaintiff and Service wrestling for plaintiff's weapon. Lopez did not observe the second suspect. Plaintiff and Service turned sideways and Lopez could see the sides of both plaintiff and Service. Lopez believed that Service had a weapon, and he was in fear for plaintiff's life. He was approximately 3-4 feet away from Service when he discharged his weapon three or four times using a two-handed supported stance. Lopez further stated that his rounds apparently had no effect on Service or plaintiff, and he then saw Service moving towards him. Lopez started backing out of the doorway and fired four more rounds while Service was coming out of the door. Lopez was approximately five feet from Service at that time. According to Lopez, while Service was falling to the ground he stopped [*6]shooting and retreated to the side of the building for cover. Lopez denied that plaintiff made any statements to him during the incident.
Cullen, a member of the apprehension/back-up team, arrived on the scene while Lopez was firing his second volley of shots. Cullen testified that he heard Lopez transmit over the radio a command "move in, move in" and then "shots fired, shots fired." As Cullen was pulling up to the building, he heard gunfire. He saw Lopez back out of the door and he saw Service coming out of the door and moving towards Lopez who was firing at Service. Cullen exited his vehicle and, using it as a cover, shot Service once. At that time, Service went down and Lopez also stopped firing. Cullen could not see Service's right hand. Cullen believed that Service was armed and that Lopez' life was in danger, he had a clear shot at Service so he fired his weapon. Cullen estimated the distance between himself and Service to be about 16 feet. At the time Cullen fired, he did not see plaintiff, nor did he know where plaintiff was.
Plaintiff was shot twice. One bullet was stopped by plaintiff's bullet-proof vest, while the other bullet entered and exited his body below his vest. Following recuperation from his injuries, plaintiff was placed on restricted duty. He retired from the NYPD on April 30, 1999.
Service died from his gunshot wounds. Neither Lopez nor Cullen sustained any firearm-related injuries. No firearms were recovered at the crime scene. A knife blade was recovered at the crime scene (Burton Tr. at 16).[FN4]
The bullets from plaintiff's and Lopez' respective weapons (11 of the 12 shots fired) could not be traced by the NYPD crime laboratory back to their source weapons, while Cullen's bullet was traced back to Service's body.
Procedural Background
On April 27, 1998, plaintiff served a notice of claim on the City of New York (the City). On August 24, 1998, plaintiff testified at a hearing held pursuant to General Municipal Law § 50-h. On February 26, 1999, plaintiff commenced the instant action against: (1) the City;[FN5] (2) Lopez; (3) Cullen; (4) Captain Thomas J. Nizza who headed the investigation of the incident; (5) Sergeant James Murray who investigated the incident; (6) Chief Joseph Esposito (Esposito), the current Chief of the NYPD; and (7) Louis Anemone (Anemone), the former Chief of the NYPD.[FN6]
The Office of the Corporation Counsel of the City of New York, by its Special Litigation Unit of the Tort Division, appeared and answered on behalf of all defendants. [*7]
Plaintiff filed the note of issue on December 26, 2007. Defendants served their motion to dismiss and for summary judgment on April 22, 2008. Plaintiff served his cross motion for partial summary judgment on August 20, 2008. The court heard oral arguments on the motion and cross motion on October 22, 2008 and reserved decision.
The NYPD Investigation of the Incident
In accordance with Interim Order No. 139 of October 5, 1995,[FN7] each of the officers who discharged their weapons in the incident filed a Firearms Discharge/Assault Report with the NYPD. In his report, plaintiff provided the following description of the incident: "At t/p/o [the place of occurrence] sergeant listed above was working in his official capacity as supervisor of Narcotics module team #1 in the confines of the 79 Pct. The sergeant did engage in a life and death struggle for his firearm with two suspects. The officer believing his life was in imminent danger fired his weapon wounding one of the perpetrators. After the sergeant secured the wounded perpetrator and was attempting to call for assitan[ce] from the investigators of his team, he was shot in the back by the ghosting officer of his team."The ghosting officer failed to follow dept. procedure and responded to a scene of an incident [which] he was not trained or equipped to handle. He further failed to observe that the situation was being controlled by the supervisor on the scene. He subsequently fired his weapon recklessly and needlessly injuring another MOS [member of service] namely Sergeant Dexter Brown the supervisor on the scene."
Lopez explained his reasons for the shooting, as follows: "I observed Sgt. Brown and perp struggling over a weapon, inside 325 Franklin Ave. I heard shots and thought that perp had Sgt. Brown's gun. I fired 3-4 rounds at perp, inside the hallway. As I backed out, the perp advanced towards me and I fired 3-4 more rounds. Each time I fired, I thought that the perp was armed."
Finally, Cullen described his involvement in the incident, as follows: "After hearing report to move in by the ghost, Det[.] Lopez, regarding an arrest at Franklin and Clifton I responded to the arrest location and heard shots being fired. I observed Det. Lopez firing his weapon at a perp who I believed was armed. I fired one round from behind my department vehicle."
Firearm discharges by police officers are reviewed, as follows:
A.At the patrol borough level, a shooting team leader (an NYPD captain) conducts an investigation of the shooting immediately upon its occurrence and completes a comprehensive report [*8]on the date of the shooting or shortly thereafter.
B.The shooting team leader follows through on the investigation through interviewing the subject officer(s), interacting with the D.A., and determining the justification of the shooting pursuant to Article 35 of the Penal Law. The Shooting Team Leader prepares a final report that must contain one of the four following findings as to each officer who discharged his weapon: (1) "No Violation of Department Firearms Guidelines";[FN8] (2) "Violation of Department Guidelines"; (3) "Accidental Discharge — Violation"; and (4) "Accidental Discharge — No Violation." The final report must also contain one or more of the following recommendations as to each officer who discharged his weapon: (1) "No corrective action to be taken"; (2) "Member concerned to review the law and instructions"; (3) "Member concerned to have additional firearms instructions"; (4) "Retraining in tactics re: __________"; (5) Current assignment of member be reviewed" and (6) "Other (Command Discipline, Charges and Specifications, etc.) re __________."
C.Patrol Borough Firearms Discharge Review Boards, which are established in all eight patrol boroughs (two per borough), review the report, findings and conclusions of the shooting team leader (the Borough Board), and may endorse the conclusions already reached or it may modify them as it deems appropriate.
D.The Chief of Department's Firearms Discharge Review Board (the Headquarters Board) reviews all pertinent facts of the shooting incident and may accept, reject or modify the Borough Board's findings. The Headquarters Board is chaired by the Chief of Department, who was Chief Anemone at the time of the incident and Chief Esposito at the time the Headquarters Board voted on the incident (See Appendix J to NYPD Working Group Report on Accidental Police Shootings dated April 26, 1996, outlining the "Four-Fold Review System").
Captain Thomas J. Nizza (Nizza), the shooting team leader for the Brooklyn North patrol district, and his subordinate, Sergeant James Murray (Murray), investigated the incident. Captain Nizza prepared a preliminary report of February 27, 1998 (the Preliminary Report) for the Borough Board. The Preliminary Report stated, in pertinent part: "26. TACTICS:"Although none of the subject officers were interviewed, it is apparent from the initial investigation that tactical errors were committed during the execution of this operation. Sergeant Brown's decision to enter the location alone, knowing that a confirmed narcotic's buy had just transpired, may have been improper. This issue will be fully addressed upon completion of this investigation."[*9]
The Preliminary Report made no recommendations pending the completion of investigation, including interviews of plaintiff, Lopez and Cullen.
Captain Nizza prepared a final report on the investigation of the incident on August 17, 2000 (the Final Report).[FN9] The Final Report found "No Violation of Department Firearms Guidelines" with regard to the firearm discharges by each of the officers involved in the incident and recommended that "[n]o corrective action . . . be taken" against Lopez and Cullen. With respect to plaintiff, however, the Final Report recommended "retraining specifically in the area of effecting arrests." In so doing, the report relied on the opinion of Sergeant James Henry, a training officer for the Organized Crime Control Bureau (OCCB) - Narcotics, who faulted plaintiff for entering a known drug location without a partner when plaintiff had a back-up team at his disposal. Concerning plaintiff's tactics, the Final Report stated:
"In reviewing the facts and circumstances of this incident, it was quite apparent to the undersigned that the actions of Sgt. Brown were not tactically sound. His decision to enter an inside location where a confirmed drug buy had taken place minutes earlier, without the benefit of backup from any members of his team, placed not only himself but his entire team in jeopardy. . . [H]e went on to state that after he directed the arrest of the female steerer and was by himself[,] he continued towards the buy location without directing his team to move in as backup. He further stated that when he was close to 325 Franklin Ave. and observed the subject he still refused to request assistance because he felt that the subject might have an opportunity to escape."In effect Sgt. Brown placed more importance on effecting an arrest than on his and his team's safety. It is my feeling that Sgt. Brown's ill advised tactics greatly impacted in precipitating the almost tragic facts and circumstances of this incident."
(See Final Report, § E ["Tactics"]).
The Final Report stated that "Sgt. Brown's gunshot injuries were inflicted using a Glock 9 mm and were apparently the result of fire from U/C 2659's [Lopez'] weapon," although the ballistics evidence could not trace the bullets which injured plaintiff back to Lopez' weapon.[FN10]
The Final Report acknowledged the inconsistencies in the testimonies of plaintiff and Lopez, suggesting that: "the errors may be attributable to the passage of time and/or anxiety or fear experienced during a life and death situation. Some of the conflicting testimony was explained and clarified through scientific evidence. However, for much of the testimonies there is inconclusive scientific/forensic evidence to prove or disprove [*10]either side. Therefore, much of the conflicting statements made by the interested parties can not be proven or disproved" (emphasis added).
On September 22, 2000, the Borough Board met and reviewed the facts and circumstances of the incident. All five members of the Borough Board (which did not include Captain Nizza or Sergeant Murray) concurred with the Final Report's conclusions concerning the firearm discharges and corrective action.
On December 12, 2000, the Headquarters Board met and reviewed the facts and circumstances of this incident. In a memorandum dated December 14, 2000, which was separately prepared for each officer involved, Esposito as the Chief of the Headquarters Board endorsed the findings of the Borough Board.
In addition to the pre-trial testimony of plaintiff, Lopez and Cullen, the other pertinent evidence before the court included the pre-trial testimony of Chiefs Anemone and Esposito, statistical evidence on police-related shootings, and the affidavits by plaintiff's proposed experts.[FN11]Anemone was the Chief of the NYPD at the time of the incident, and he was familiar with the incident because, in accordance with the NYPD practice, he received regular briefings of firearm discharges by police officers on the morning of the next business day after their occurrence (Anemone Tr., July 11, 2003, at 53). Anemone also served as the Chairman of the Headquarters Board, where he personally reviewed "[p]robably a thousand" of reports of firearm discharges by police officers, including a "dozen" of friendly fire shootings (Anemone Tr., July 11, 2003, at 63-64).
Chief Anemone testified at his pre-trial deposition that plaintiff's tactics were flawed: "The decision that Sergeant Brown made to enter that hallway by himself, ahead of the other officers set the stage for the ensuing events and I think was tactically flawed" (Anemone Tr., Oct. 20, 2004, at 260).
Chief Anemone also "had concerns with the tactics that were employed by all the officers involved in that incident" (Anemone Tr., Oct. 20, 2004, at 204). With respect to Lopez specifically, Chief Anemone stated that Lopez' "actions created a danger to another member of the service" due to "[t]he firing of his weapon at the perpetrator while the sergeant was in close proximity to that perpetrator" (Anemone Tr., Oct. 20, 2004, at 205). Chief Anemone's "analysis was along the lines [that] the use of the firearm was not indicated at that particular point" and that he "would have preferred hand-to-hand combat to rescue Sergeant Brown" (Anemone Tr., Oct. 20, 2004, at 205-206). In that regard, Chief Anemone testified:
"My analysis of this particular case led me to believe that officer Lopez, although I have much sympathy for the job he had to do that night, had other options available to him rather than the use of his firearm.
* * *
"He and his partners and the other officers could have entered the building initially [*11]together rather than Sergeant Brown going in alone."Barring that, they could have rushed the location and physically disarmed and or arrested the perpetrators who were struggling with Sergeant Brown. That would have been a use of force to what is below the use of deadly physical force."
(Anemone Tr., Oct. 20, 2004, at 212).
With respect to police officer training, Chief Anemone testified that, prior to the incident, he had determined that additional training was required in the area of plainclothes policing in order to reduce the opportunities for officers to fire their weapons (Anemone Tr., July 11, 2003, at 83-84). In 1996, a three-day plainclothes policing course was developed for the patrol, housing and transit officers, but not for the narcotics officers (Anemone Tr., July 11, 2003, at 143-144). In addition, he had received a letter from an officer who raised an issue of police-on-police shootings. As a result of that letter and in memory of that officer's subsequent death, he had his staff develop a training program, Safe Approach For Everyone (SAFE), which was added as a regular course to the police academy curriculum (Anemone Tr., July 11, 2003, at 87-88). Moreover, on February 18, 1998, or nine days prior to the incident, he directed the institution of standardized plainclothes training at the NYPD, including the narcotics division (Anemone Tr., Sept. 12, 2003, at 135-136).
Regarding additional training of narcotics officers specifically, Chief Anemone left that training to the narcotics division and the OCCB (Anemone Tr., July 11, 2003, at 89). Chief Anemone had "a general sense that there was some dissatisfaction with the training provided to undercovers in particular, in the narcotics division" (Anemone Tr., July 11, 2003, at 91). Such dissatisfaction was "with the level of experience of some of the investigators and/or some of the undercovers, mistakes in techniques, in tactics, that same general dissatisfaction with the knowledge of some of the supervisors in narcotics as well" (Anemone Tr., July 11, 2003, at 93). Based on his visits of different command centers throughout the city and speaking to officers in precincts, Chief Anemone obtained "a general sense that safety should be improved, equipment should be state of the art, a better job done with the investigators. There was a certain lack of confidence from some undercovers about the abilities of some investigators" (Anemone Tr., Sept. 12, 2003, at 159). He believed that "those concerns were subsequently addressed with changes to the training regimen, the curriculum and administrative matters" (Anemone Tr., July 11, 2003, at 91), but he could not "recollect any specific training that was directed at [his] insistence towards the narcotics division" (Anemone Tr., Sept. 12, 2003, at 153).
Regarding the training facilities at the NYPD, Chief Anemone recalled that the Deputy Commissioner of Training had talked to him "about a plan to update the facilities, to make the training more realistic. . . The colloquialism was it was the fun house, it was the place where the officers were going to be trained in shoot/don't shoot situations" (Anemone Tr., Sept. 12, 2003, at 191). Chief Anemone stated:
"[T]he facility that was there was — it was a plan to upgrade it, to make it more state of the art, so that the judgment could be taught to officers going through it as to whether to shoot or don't shoot. They had a facility like that, it was rather limited."[*12]
(Anemone Tr., Sept. 12, 2003, at 191). He testified that, prior to 1999, the facilities at the firearms range had been updated (Anemone Tr., Sept. 12, 2003, at 195).
At the time of the incident, Chief Esposito was in charge of Brooklyn North and supervised the investigation of the incident. He was the Chairman of the Department at the time the Headquarters Board voted on the incident.[FN12]
Chief Esposito maintained at his pre-trial deposition that there was no conclusive proof that Lopez shot plaintiff: "There is no ballistics [report] that says that the bullets that hit the Sergeant came from Detective Lopez" (Esposito Tr., Dec. 11, 2007, at 23)."I don't think that anyone fired at Sergeant Brown, except maybe the bad guy which we have not even gone to. It's very possible that Sergeant Brown is shot by someone in that hall [who] attacked him. We have not raised that. That is very, very possible" (Esposito Tr., Dec. 11, 2007, at 86).
Chief Esposito defended the Headquarters Board's determination that Lopez' discharge of his weapon was within the NYPD guidelines: "We took in the facts that the Sergeant was in a life-and-death struggle for his weapon. The possibility of the subject being armed with weapons. As the undercover testified he saw what he thought was a gun in the fellow's hand. When we take in the facts[,] all the facts together[,] we felt that his firing of the weapon was within the guidelines" (Esposito Tr., Dec. 11, 2007, at 53)."[W]ith the observation by Lopez and him testifying that he saw a gun in the hand of Mr. Service, I am very comfortable with him firing at Mr. Service" (Esposito Tr., Dec. 11, 2007, at 72)."Whether he [plaintiff] is shot in the front or the back, the shooting is justified" (Esposito Tr., Dec. 11, 2007, at 123).
Nonetheless, Chief Esposito admitted that if plaintiff's version of the facts were correct, Lopez' shooting of him would be unjustified (Esposito Tr., Dec. 11, 2007, at 89).
In opposition to the motion, plaintiff submits: (1) the NYPD Working Group Report on Accidental Police Shootings dated April 26, 1996 (the 1996 Accidental Police Shootings Report), and (2) the 1999 Special Briefing to the Police Commissioner (the 1999 Special Briefing) (see [*13]Exhibits K and L).[FN13]
The Accidental Police Shootings Report analyzed accidental police shootings from 1993 through 1995. The categories of accidental police shootings covered by that report were: (1) an officer shooting himself or herself (excluding suicides or suicide attempts); (2) officers accidentally shooting other officers; (3) officers shooting other officers because of mistaken identity; (4) accidental discharge during a struggle with a suspect; and (5) accidental discharge when no struggle with a suspect was involved.
According to the report, there was a total of 42 accidental police shootings in 1993, 74 accidental police shootings in 1994, and 75 accidental police shootings in 1995 (Appendix A, at 1). The line-of-fire (officer shooting another officer) incidents represented 2.3% (1 in 42) of accidental police shootings in 1993, 1.3% (1 in 74) of accidental police shootings in 1994, and 4% (3 in 75) of accidental police shootings in 1995 (Appendix A, at 1). In addition, there was 1 mistaken identity case in 1993, but no mistaken identity cases in 1994 and 1995 (Appendix A, at 4).
The report noted "a significant increase in instances of officers shooting other MOS [members of service] in cases of non-mistaken identity from 1993 to 1995 — from one case in 1993 to eleven cases in 1995 . . ." (Report, at 7). There was one line-of-fire incident in 1993, one line-of-fire incident in 1994, and three line-of-fire incidents in 1995 (Appendix A, at 1). The one line-of-fire incident in 1993 involved a patrol officer who "[s]hot other MOS [member of service] on stairway after apt. robbery - Startled when perp ran past" (Appendix B, at 4).
As is relevant to this case, the Accidental Police Shootings Report arrived at the following conclusions:
(1) The 9 mm. weapons (such as the Glocks and the Smith & Wesson fired in this case) were not highly represented in the incidents studied where enforcement action was concerned.
(2) Those assigned to patrol with less than five years of experience with the NYPD were involved in nearly two thirds of the 1995 incidents.
(3) Mistaken identity was rarely a factor in officers shooting other officers.
The Accidental Police Shootings Report recommended additional training in the firearm handling and, where appropriate, the imposition of informal discipline to supplement formal discipline.
The number of police-related shootings in 1998 (the year of the incident) was 249, which represented a 1.6% decrease in the number of police-related shootings in 1997. The total number of rounds fired by the police in 1998 was 526, or 28% less than the total number of rounds fired by the police in 1997. Of the 526 rounds fired by the police in 1998, only 111 rounds were fired intentionally. The report further stated that an average number of rounds per officer fired in 1998 was 2.69 rounds and the average number of rounds per incident fired in 1998 was 3.43. As stated above, Lopez alone fired 8 rounds in the incident and the total number of rounds fired in the incident [*14]was 12.[FN14]
Plaintiff also submits an affidavit of Henry C. Branche and an affidavit of Roger Able (Exhibits H and M).
Mr. Branche, a Certified Protection Professional, served 23 years in the NYPD, including five years as a Patrol Training Sergeant. He stated that he also "investigated allegations of internal corruption, misconduct or brutality and the use of excessive physical force by police officers," but did not mention the length of those assignments. In preparing his affidavit, he reviewed transcripts (or portions) of depositions of plaintiff, Lopez, Cullen, Anemone, Esposito, Nizza and Murray; crime scene unit reports, ballistics reports, the autopsy report, the Preliminary Report and the August 28, 1998 report (which has not been submitted into evidence). The pertinent part of Mr. Branche's affidavit states:
"In my opinion within a reasonable degree of certainty, . . . [d]efendants Lopez and Cullen violated the above referenced sections of the New York State Penal Law [relating to assault and endangerment] and departed from standard and acceptable police practices and procedures in their use of deadly physical force in this shooting which was a substantial cause of the bullet wound injuries sustained by Sgt. Brown. Furthermore, defendant Lopez's failure to acknowledge even shooting his Sergeant displaces his consciousness of guilt by shifting blame from himself through patently false explanation and denial of events."
(Branche Aff., ¶ 18).
Plaintiff's other proposed expert is Roger Able, who retired as a Detective Second Grade after working 28 years for the NYPD, and who was the President of the National Black Police Association - Northeast Region from 1982 to 1983 and then from 2004 to the present. Mr. Able compiled statistics and studied police shootings of African-American members of the service by Caucasian police officers. He lists seven incidents (in addition to plaintiff's incident) from 1983 to 1998 when African-American officers were allegedly shot at or were shot by Caucasian police officers. He attests that "never in the history of the NYC Police Department was there a white police officer shot by a black police officer." He further attests that he "raised the issue of unnecessary and unjustifiable deadly physical force against police officers of color to the NYC Police Commissioners William Bratton and Howard Safir and they nevertheless failed to correct the situation."
A motion to dismiss pursuant to CPLR 3211 may be converted to a summary judgment motion by the court after giving the parties adequate notice (see CPLR 3211 [c]). The notice requirement may be obviated in cases where it can be found that the parties "deliberately chart a summary judgment course" (Backer v Bouza Falco Co., 28 AD3d 503, 504 [2d Dept 2006] lv denied 7 NY3d 707 [2006]). The court finds that, through the submission of extensive evidence consisting of five volumes of exhibits on defendants' part and one volume of exhibits on plaintiff's part, as well as the alternative designation of defendants' motion as one for summary judgment, the parties have deliberately charted a summary judgment course. The court, therefore, considers defendants' motion as one solely for summary judgment and will apply the standards of review applicable to summary judgments. [*15]
Summary judgment is a drastic remedy which should not be granted if there is any doubt as to the existence of a triable issue of fact (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]). The evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion giving it the benefit of every favorable inference (see Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Where, however, one seeking summary judgment tenders evidentiary proof in admissible form establishing its defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, the burden falls upon the opposing party to show, also by evidentiary proof in admissible form, that there is a material issue of fact requiring a trial of the matter (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). On a motion for summary judgment the court must not weigh the credibility of witnesses unless it clearly appears that the issues are feigned and not genuine (see 6243 Jericho Realty Corp. v AutoZone, Inc., 27 AD3d 447, 449 [2d Dept 2006]).
Plaintiff contends that Lopez is liable for intentionally shooting plaintiff and that the City is vicariously liable for Lopez' actions. Defendants respond that Lopez "accidentally" shot plaintiff and that there is no cause of action for a "negligent assault."
Plaintiff unequivocally testified at his pre-trial deposition that Lopez intentionally shot him (Plaintiff EBT Tr. at 115-116 ["I believe that the firing of Detective Lopez' weapon . . . was an intent to inflict bodily harm on an individual, particularly myself"]). In contrast, Lopez repeatedly denied shooting plaintiff. The NYPD's Final Report acknowledged the clear inconsistency between the testimonies of plaintiff and Lopez.
The Final Report states that Lopez "apparently" shot plaintiff, but, as Chief Esposito noted at his deposition, that was not conclusive. In light of the conflicting testimony as to whether Lopez came upon the scene during or after plaintiff's struggle with Service, whether Lopez shot plaintiff and, if so, whether his shooting of plaintiff was intentional, that branch of defendants' motion seeking dismissal of plaintiff's common-law assault and battery claims is denied. The intent, which is the essential element of an assault and battery claim, is at issue (see Flamer v City of Yonkers, 309 NY 114, 118 [1955]). It is plaintiff's right to have these material factual issues decided by the jury (see McCummings v New York Tr. Auth., 81 NY2d 923, 927 [1993]).
Defendants argue that General Obligations Law § 11-106 bars plaintiff's common-law assault and battery claim against the City and Lopez as a matter of law. General Obligations Law § 11-106, which went into effect prior to the commencement of this action, provides that: "1. In addition to any other right of action or recovery otherwise available under law, whenever any police officer . . . suffers any injury, disease or death while in the lawful discharge of his official duties and that injury, disease or death is proximately caused by the neglect, willful omission, or intentional, willful or culpable conduct of any person or entity, other than that police officer's . . . employer or co-employee, the police officer . . . suffering that injury or disease, or, in the case of death, a representative of that police officer . . . may seek recovery and damages from the person or entity whose neglect, willful omission, or intentional, willful or culpable conduct resulted in that injury, disease or death."2. Nothing in this section shall be deemed to expand or restrict the existing liability of an employer or co-employee at common-law . . . for injuries or death sustained in [*16]the line-of-duty by any police officer . . ." (emphasis added)
Defendants urge the court to interpret the statute restrictively by barring all suits against a police officer's employer or co-employee under Section 11-106. However, the plain language of Section 11-106 is not so narrow as it provides that "[n]othing in this section shall be deemed to . . . restrict the existing liability of an employer or co-employee at common-law" (emphasis added). Prior to the passage of Section 11-106, courts held that police officers were entitled to recover for their line-of-duty injuries resulting from intentional misconduct (see Phalen v Kane, 192 AD2d 186, 188-189 [4th Dept 1993]; Cristiano v Marinaccio, 145 Misc 2d 791, 792 [1989]). Since Section 11-106 expressly continues prior law with respect to intentional torts, the court holds that Section 11-106 does not bar plaintiff's common-law assault and battery claim against Lopez and the City.
Plaintiff further contends that Lopez negligently shot plaintiff. Defendants contend that plaintiff's common-law negligence claim is barred by the "firefighter's rule" which was subsequently extended to cover police officers (see Santangelo v State of New York, 71 NY2d 393, 397 [1988]). "The firefighter's rule,' a product of this State's long-standing common law, preclude[d] firefighters and police officers from recovering damages for injuries caused by negligence in the very situations that create[d] the occasion for their services" (Zanghi v Niagara Frontier Trans. Comm., 85 NY2d 423, 438 [1995] [internal quotation marks and citation omitted]). Moreover, a police officer could not recover for injuries caused by the negligence of a fellow police officer when the injury was related to the dangers that were associated with police functions — as, for example, an injury caused from an improper apprehension of a suspect (see Cooper v City of New York, 81 NY2d 584, 592 [1993]).[FN15]
To mitigate the harshness of the firefighter's rule, courts created a narrow exception for situations in which there was a sufficient degree of separation between the negligent act causing the injury and the event which occasioned the performance of the firefighting or police services (see Cooper, 81 NY2d at 586). However, courts cautioned that "where some act taken in furtherance of a specific police or firefighting function exposed the officer to a heightened risk of sustaining the particular injury, he or she may not recover damages for common law negligence" (Zanghi, 85 NY2d at 439).
It is unquestionable that plaintiff's participation in the drug raid exposed him to a heightened risk. As tragic as this case is, gunshot injuries are an inherent risk that police officers assume when carrying out their duties as law enforcers. Plaintiff's injuries are directly related to the police service he was performing and his function as a supervising officer. Therefore, plaintiff's common-law negligence cause of action against Lopez and the City is dismissed.[FN16] [*17]
Plaintiff also alleges that individual defendants violated his rights under the Fourth, Eighth and Fourteenth Amendments of the United States Constitution by causing or permitting the use of "unjustifiable and deadly physical force" upon his person.[FN17] He further alleges that the supervisory individual defendants, Anemone, Esposito, Nizza and Murray, failed to remedy the alleged wrong and adopted a policy in which constitutional violations occurred and demonstrated gross negligence or deliberate indifference to plaintiff's constitutional rights by failing to act on information that such unconstitutional practices were taking place. The individual defendants respond that their conduct is shielded by the doctrine of qualified immunity. Plaintiff does not address the qualified immunity defense in his reply.
In Saucier v Katz (533 US 194, 201 [2001]), the Supreme Court mandated a two-step sequence for resolving a qualified immunity claim: the "constitutional inquiry" and the "qualified immunity inquiry."[FN18] As a threshold matter, the court inquires whether, taken in the light most favorable to the plaintiff, "the facts alleged show the officer's conduct violated a constitutional right" (id.). If so, a court would then turn to the "qualified immunity inquiry" and ask if the right was clearly established at the relevant time so that a reasonable officer would understand that his actions would violate that right (id. at 201-202).
A Fourth Amendment violation necessitates an arrest, investigatory stop or other "seizure" of a citizen by government (see Graham v Connor, 490 US 386, 394 [1989]). Plaintiff was not a suspect, nor was he arrested or stopped when he was shot. Thus, plaintiff's Fourth Amendment claim fails.
The Eighth Amendment, which is designed to protect individuals convicted of crimes, applies only post-conviction (see Whitley v Albers, 475 US 312, 318 [1986]). Plaintiff was not convicted of any crime and, thus, his Eighth Amendment claim likewise fails.
Finally, the Fourteenth Amendment's guarantee of substantive due process protects [*18]individuals from excessive force utilized by police officers outside the context of an arrest (Rodriguez v Phillips, 66 F3d 470, 477 [2d Cir 1995] [substantive due process protects individuals from excessive force in non-seizure, non-prisoner context]). To state a substantive due process violation for excessive force, plaintiff must show that Lopez' conduct " shocks the conscience'" (see Hemphill v Scott, 141 F3d 412, 419 [2d Cir 1998]). This test examines "such factors as the need of the application of force, the relationship between the need and the amount of force that was used, the extent of the 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, 141 F3d at 419).[FN19]
Viewing the evidence in the light most favorable to plaintiff, there is an issue of fact as to whether Lopez[FN20] used excessive force against plaintiff. In fact, Chief Anemone suggested that Lopez use hand-to-hand combat to rescue plaintiff in lieu of using deadly physical force (Anemone Tr., Oct. 20, 2004, at 205-206). Accordingly, there is an issue of fact as to whether Lopez used excessive force.
The court must then determine whether it was objectively reasonable for Lopez to believe that his action did not violate such law (i.e., whether he is entitled to qualified immunity). The testimony concerning what plaintiff was doing when Lopez fired his first volley of rounds is sharply conflicting. If plaintiff's version of what happened were correct (i.e., that he had already subdued Service before Lopez fired his volley), then, according to Chief Esposito, Lopez' shooting of plaintiff was unjustified. Even if Lopez' version of the incident were accepted, a rational jury could nevertheless find, based on Chief Anemone's testimony, that Lopez' decision to discharge his weapon in close proximity to plaintiff "was so flawed that no reasonable officer would have made a similar choice" (Colao v Mills, 39 AD3d 1048, 1052 [3d Dept 2007] [internal quotation marks and citation omitted]). Chief Anemone specifically testified that Lopez' "actions created a danger to another member of the service" due to "[t]he firing of his weapon at the perpetrator while the sergeant was in close proximity to that perpetrator" (Anemone Tr., Oct. 20, 2004, at 205).
In light of the sharply disputed testimony, summary judgment for Lopez is not appropriate on this cause of action, and plaintiff's Section 1983 claim against Lopez will proceed.
A supervisor "may not be held liable under section 1983 because his subordinate committed [*19]a constitutional tort" (Poe v Leonard, 282 F3d 123, 140 [2d Cir 2002]). To hold Chiefs Anemone and Esposito liable as supervisors for a constitutional violation by Lopez, plaintiff must demonstrate that the supervisor: (1) directly participated in the underlying constitutional violation; (2) failed to remedy the violation upon learning of it; (3) established a custom or policy fostering the violation or allowed such custom or policy to continue after learning of the violation; (4) was grossly negligent in the supervision of the subordinates who committed the violation; or (5) acted with deliberate indifference to the rights of plaintiff by failing to act on allegations of the subordinate's misconduct (see Colon v Coughlin, 58 F3d 865, 873 [2d Cir 1995]).
The evidence proffered by plaintiff with respect to Chiefs Anemone and Esposito meets none of the Colon factors. Accordingly, plaintiff has alleged no viable Section 1983 claim against Chiefs Anemone and Esposito.
Plaintiff likewise has no viable Section 1983 claim against Cullen. Cullen, who fired only one shot which struck Service, did not shoot at plaintiff, nor did he injure plaintiff. The record contains no evidence indicating that Cullen utilized excessive force against plaintiff.[FN21]
Finally, plaintiff offers no evidence that Captain Nizza and Sergeant Murray, both of whom investigated the incident, acted in a constitutionally impermissible manner. Thus, plaintiff's Section 1983 claim against Nizza and Murray is dismissed as well. Accordingly, all Section 1983 claims against the individual defendants, excluding Lopez, are dismissed.
Plaintiff alleges that the City is liable to him under Section 1983 because the City: (1) subjected plaintiff to the "constitutional injuries by virtue of a municipal policy or custom"; (2) failed to provide adequate training, retraining and supervision of its police officers with respect to the use of force generally and deadly physical force particularly; (3) failed to train its employees which constituted a deliberate indifference to the rights of the City's residents; and (4) caused or allowed a pattern and practice of illegal use of force by the NYPD, including the use of excessive and illegal force on its minority members (Complaint ¶¶ 50-52, 54). The City responds that plaintiff produced no evidence of a municipal policy, custom or practice demonstrating that the City racially discriminated against him, nor has plaintiff established that the City failed to adequately or properly train or supervise its police officers with respect to the use of deadly physical force so as to constitute a deliberate indifference to the rights of its residents.
"For a cause of action pursuant to 42 USC § 1983 to lie against a municipality, the action that is alleged to be unconstitutional must implement[ ] or execute[ ] a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers or have occurred pursuant to a practice so permanent and well settled as to constitute a custom or usage' with the force of law" (Pendleton v City of New York, 44 AD3d 733, 736 [2d Dept 2007] [internal quotation marks and citations omitted]). Furthermore, the plaintiff must establish an affirmative link between the municipal policy and the injuries sustained by him or her (Monell v Department of Social Services of City of New York, 436 US 658, 692 [1978]). Thus, the plaintiff must demonstrate that [*20]his or her injury arose from the acts of the officer in the course of executing a municipal policy or custom (see Town of Orangetown v Magee, 88 NY2d 41, 49 [1996]). Such custom or policy, however, need not be contained in an explicitly adopted rule or regulation or have received formal approval by official decisionmakers (Id.).[FN22]
It is generally recognized that there are four situations in which a municipality may be held liable under Section 1983: "(1) an officially promulgated policy endorsed or ordered by the municipality;(2) a custom or practice that is so widespread that the municipality had either actual or constructive knowledge of it; (3) actions taken or decisions made by the municipal employee who, as a matter of state law, is responsible for establishing municipal policies with respect to the area in which the action is taken; or (4) where the failure of the municipality to train its employees rises to the level of deliberate indifference to the constitutional rights of others" (see Wahhab v City of New York, 386 F Supp 2d 277, 285 [SD NY 2005] [internal citations omitted; emphasis added]).
Before liability can be triggered under any of the four scenarios set forth above, plaintiff must show that his constitutional rights were violated during the incident. As stated above, there is an issue of fact as to whether Lopez used excessive physical force against plaintiff and thereby violated his Fourteenth Amendment right. Accordingly, viewing the evidence in the light most favorable to plaintiff, the court assumes that plaintiff's Fourteenth Amendment right was violated, and then examines the merits of plaintiff's allegations that the City had a widespread custom or practice of allowing the use of excessive force upon its minority members of service, and that the City failed or was deficient in training and supervising its officers with regard to the use of deadly physical force so as to amount to a deliberate indifference to the rights of the persons with whom the police came into contact.
Plaintiff's Section 1983 claim against the City is dismissed to the extent plaintiff alleges that his shooting was part of the City's widespread custom or practice of allowing the use of excessive force upon its minority officers. The only tangentially relevant evidence offered by plaintiff in this regard is the affidavit of Roger Able, the President of the National Black Police Association — Northeast Region, listing seven alleged instances (excluding plaintiff's incident) in which Caucasian police officers shot African-American police officers and further asserting that an African-American officer never shot a Caucasian officer in the history of the NYPD. [*21]
Plaintiff further relies on the 1996 Accidental Police Shootings Report, which documented 42 accidental police shootings in 1993, 74 accidental police shootings in 1994, and 75 accidental police shootings in 1995. The only shootings relevant to this case are those involving line-of-fire incidents, as opposed to other categories such as canine shootings and firearm discharges during weapon cleaning. Of the total 191 accidental police shootings from 1993 through 1995, there were six line of fire shootings only one of which was in the field of narcotics when in 1994, one officer shot another in the foot during a struggle with a suspect. In none of the six line-of-fire incidents, was the race of the victim and the shooter noted. None of the other statistical evidence offered by plaintiff related to the police-on-police shootings.
In his pre-trial testimony, plaintiff was unable to present any tangible evidence of racial discrimination. He testified that he felt discriminated: (1) when, on several occasions, Caucasian sergeants received work assignments that were preferential compared to plaintiff's assignments, and (2) when he received less overtime than Caucasian officers (Plaintiff EBT Tr. at 121-124). However, plaintiff failed to recall the specifics (Plaintiff EBT Tr. at 121) and never complained to anyone that he was a victim of racism (Plaintiff EBT Tr. at 125).
As far as the incident itself is concerned, plaintiff testified that he believed himself to be a victim of racism "due to the fact that myself, being a minority sergeant, was shot by another officer, and, to date, that officer was never charged with a crime" (Plaintiff EBT Tr. at 124). Yet, he testified that, prior to the incident, he had no personal disagreements or conflicts with Lopez, Cullen or the other members of his team (Plaintiff 50-h Hearing Tr. at 101-102). He recalled no incidents of racial comments by team members or by his commander directed at him (Plaintiff 50-h Hearing Tr. at 105-106). Nor was he aware of his team members discriminating against each other (Plaintiff EBT Tr. at 48). He could recall no performance problems with Lopez or Cullen during the time that plaintiff supervised them (Plaintiff EBT Tr. at 38-40). Following the incident, plaintiff filed no complaint of any kind with the NYPD Internal Affairs unit, which had visited the crime scene, with regards to Lopez or Cullen or otherwise raised that issue with the NYPD (Plaintiff 50-h Hearing Tr. at 111; Plaintiff EBT Tr. at 127; Murray Tr. at 36-37).
Plaintiff has failed to produce any evidence demonstrating the existence of triable issues of fact with respect to the existence of "a custom or practice that is so widespread that the municipality had either actual or constructive knowledge of" the use of excessive force against minority members of the NYPD by its Caucasian members. Plaintiff's conclusory allegations that he was a victim of racism merely because Lopez, a Latino officer, shot him and was not charged with a crime are insufficient to defeat a motion for summary judgment.
Additionally, plaintiff argues that the City failed to train or supervise its police officers with respect to the use of deadly physical force so as to constitute a deliberate indifference to the rights of its residents. At the outset, the court rejects the City's position that at the time of the incident (February 1998) its training and supervision of undercover narcotics officers (as opposed to patrol officers) regarding the use of their firearms was sufficient as a matter of law. The evidence indicates that, prior to the incident, Chief Anemone had been aware of the general dissatisfaction with the training of the undercover narcotics officers and that the training of narcotics officers did not involve apprehension and arrest. Indeed, Lopez stated that he was not trained in apprehension and arrest, and admitted that he did not know either when it was appropriate to use deadly physical force or the law of justification for such use (Lopez Tr. at 19, 23, 25). [*22]
"[T]hree requirements must be met before a municipality's failure to train or supervise constitutes deliberate indifference to the constitutional rights of citizens. First, plaintiffs must show that the policymaker knows to a moral certainty' that employees will encounter a given situation . . . Second, plaintiffs must show that the situation either presents the employee with a difficult choice, the kind which training will make less difficult, or that there is a history of employees mishandling the situation. Finally, plaintiffs must show that the wrong choice by the municipal employee will frequently result in the deprivation of a citizen's constitutional rights" (Johnson v Kings County District Attorney's Office, 308 AD2d 278, 278 [2d Dept 2003] [citing Walker v City of New York, 974 F2d 293, 297-298 (2d Cir 1992), cert denied 507 US 961 (1993), cert denied 507 US 972 (1993)]). Plaintiff has not satisfied the third element of this test.
With respect to the first requirement, there is no question that the City knew to a moral certainty that its undercover narcotics officers may encounter a situation when they have to determine whether to discharge their weapons. As a recruit in the police academy, Lopez received "about a week" of firearms training consisting of both in-class lectures and at the range (Lopez Tr. at 15-16; 20).[FN23] After graduation from the academy, all officers, including Lopez, attended qualifying rounds at the firearms range twice a year. Lopez also received a week's training as a narcotics officer (Lopez Tr. at 40-41). Moreover, prior to the incident, Lopez worked as an undercover officer for "about 20 months" (Lopez Tr. at 46), which included a 90-day probationary period which Lopez passed by making the required 30 undercover narcotics purchases (Lopez Tr. at 38-39). When he acted as an undercover ghosting officer, Lopez' obligation was to "watch the primary undercover's back, make sure he doesn't get hurt" and "make sure he is not getting robbed" (Lopez Tr. at 46; 42). Thus, the City can be said to have known "to a moral certainty" that Lopez may be required to discharge his firearm either to protect himself or another officer.[FN24]
With respect to the second requirement, the court is satisfied that the situation presented Lopez with a difficult choice, the kind which training will make less difficult, and that, additionally, there was a history of employees of the same level of experience mishandling the situation. Chief Anemone testified that his "analysis of this particular case led me to believe that officer Lopez . . . had other options available to him rather than the use of his firearm," but that Lopez' mistake could be corrected by training (Anemone Tr., Oct. 20, 2004, at 212, 246). Chief Anemone testified that, at the time of the incident, the shoot/don't shoot facility at which officers could be trained in [*23]determining whether to shoot was "rather limited" and needed an upgrade (Anemone Tr., Sept. 12, 2003, at 191). Furthermore, Lopez testified that his training in narcotics was limited to the identification of different types of narcotics, field testing of narcotics, and simulation of a narcotics buy at a tactical house (Lopez Tr. at 24-25). In addition, the number of rounds fired by Lopez (eight) was far in excess of the average number of 2.69 rounds per officer fired in 1998. Accordingly, the second requirement is also satisfied.
With respect to the third and final requirement, however, plaintiff has failed to demonstrate that the wrong choice by the municipal employee will "frequently" result in the deprivation of a citizen's constitutional rights. As stated above, although there was a significant increase in the friendly fire, non-mistaken identity incidents from one case in 1993 to eleven cases in 1995, there was only one line-of-fire (officer shooting another officer) incident in 1993 and three line-of-fire incidents in 1995. None of the three line-of-fire incidents in 1995 involved narcotics enforcement. Thus, it does not appear that the allegedly inadequate training of the narcotics officers "frequently" resulted in constitutional violations prior to the incident, and the City did not "consciously disregarded a risk of future violations of clearly established constitutional rights by badly trained employees" (Amnesty America v Town of West Hartford, 361 F3d 113, 127, n 8 [2d Cir 2004] [emphasis in the original]).
For the foregoing reasons, plaintiff's Section 1983 claim against the City based on its alleged failure to properly train Lopez is dismissed.
The court reaches a similar conclusion with respect to plaintiff's claim that Lopez was inadequately or improperly supervised. For approximately 1-1/2 years prior to the incident, plaintiff had been Lopez' direct supervisor (Plaintiff EBT Tr. at 43). Plaintiff had the right to discipline Lopez when plaintiff felt it was appropriate (Plaintiff EBT Tr. at 41-42). On the night in question, plaintiff alone developed the "buy and bust" strategy. Plaintiff had not designated a specific team member to serve as his second in command (Plaintiff EBT Tr. at 107-108). When, during his struggle with the suspects, plaintiff discharged his weapon multiple times inside the building, Lopez radioed the team, "shots fired," and requested them to move in immediately. As plaintiff was Lopez' supervisor for the 1-1/2 year period preceding the incident, as well as on the date of the incident itself, a claim for inadequate or improper supervision will not lie. Both the Borough Board and the Headquarters Board found plaintiff to be tactically deficient in executing his operation. Accordingly, plaintiff's Section 1983 claim against the City based on its improper or inadequate supervision is also granted.
Plaintiff alleges that the City was negligent in its failure to adequately or properly perform its investigatory functions; specifically, in hiring and retaining police officers who acted with excessive use of physical force, in failing to conduct sufficient background checks, in failing to properly train and educate police officers, in conspiring to cover up for the unlawful use of deadly physical force on plaintiff, in committing official misconduct by causing false entries and deliberate omissions of material fact in official NYPD reports relative to the incident, in failing to hold Lopez accountable for shooting plaintiff, in failing to conduct a full and fair investigation of the incident, and in violations of plaintiff's constitutional, civil and human rights (Complaint, ¶ 60). The City responds that there is no cause of action for negligent investigation in New York and that there is no constitutional right to an investigation by government officials.
The record reveals that the handling of the subject incident by the NYPD followed the established procedures governing the investigation of firearm discharges by police officers. Captain [*24]Nizza, the dedicated shooting team leader for Brooklyn North, promptly prepared his Preliminary Report on the incident. The incident was briefed to Chief Anemone on the next business day after the shooting. Captain Nizza subsequently prepared the Final Report, which remedied the deficiencies and inaccuracies of the Preliminary Report. The Final Report, together with the supporting documents, was transmitted to the Borough Board and subsequently to the Headquarters Board. The members of the respective Boards met and voted on the matter. The court will not second guess the actions of the two Boards in finding that Lopez' discharge of his weapon was within the NYPD guidelines.
Plaintiff's claim for negligent hiring must be dismissed, as there is no evidence that Lopez had an alleged propensity to commit the acts alleged. At the time of the incident, Lopez had no disciplinary violations in his file and his use of the firearm in the incident was his first, excluding training at the range.
The court agrees with the City that there is no cause of action for negligent police investigation in New York (see Coyne v State of New York, 120 AD2d 769, 770 [3d Dept 1986]). Under federal law, there is no constitutional right to investigation by government officials unless there is another recognized constitutional right involved (see Stone v Department of Investigation of City of New York, 1992 WL 25202, *2 [SD NY 1992]).
The record discloses no cover-up in the investigation of this incident. At his pre-trial deposition, plaintiff had difficulty articulating how the investigation of the incident was covered up. Therefore, plaintiff's sixth cause of action is dismissed.
Lastly, plaintiff asserts a cause of action pursuant to General Municipal Law § 205-e, predicated on the alleged violations of the Penal Law,[FN25] the NYPD Patrol Guide, and the Narcotics Division Manual Procedures. Plaintiff cross-moves for partial summary judgment on liability on his cause of action against the City under General Municipal Law § 205-e based on the intentional and reckless assault provisions of Penal Law §§ 120.10 (1) and (3), 120.05 (4) and 120.25 with respect to Lopez, and the reckless endangerment provision of Penal Law § 120.20 with respect to Cullen.[FN26] Defendants move to dismiss plaintiff's claim against the City under General Municipal Law § 205-e in its entirety.
In conjunction with his motion for partial summary judgment, plaintiff seeks leave to serve a supplemental bill of particulars (Exhibit A to his motion) to assert liability based on Penal Law § 120.05 (4), Penal Law § 120.00 (2), and Labor Law § 27-A.
Amendment of a bill of particulars should be distinguished from its supplementation. CPLR 3043 (b) provides that in personal injury actions, "[a] party may serve a supplemental bill of [*25]particulars with respect to claims of continuing special damages and disabilities without leave of court at any time, but not less than thirty days prior to trial." Such service is permitted "[p]rovided however that no new cause of action may be alleged or new injury claimed." Where new claims or injuries are alleged, however, the bill of particulars must be amended pursuant to CPLR 3042 (b). CPLR 3042 (b) provides that "a party may amend his bill of particulars once as of course before trial, prior to the filing of a note of issue." "[W]here an action has long been certified as ready for trial and the moving party had full knowledge of the new cause of action, in the absence of good cause for the failure to move to amend at an earlier date, the motion should be denied on the ground of gross laches alone" (Felix v Lettre, 204 AD2d 679, 680 [2d Dept 1994]).
Plaintiff's request to plead Penal Law § 120.05 (4) (assault in the second degree) with respect to Lopez constitutes a supplementation of his bill of particulars, rather than an amendment, because the original bill of particulars alleges "reckless" injury by Lopez by means of a deadly weapon (¶ 13 [a]) and, therefore, will be permitted. For the same reasons, plaintiff's request to plead Penal Law § 120.00 (2) (assault in the third degree) with respect to Cullen as to whom reckless injury is also pled in the original bill of particulars (¶13 [b]), is likewise permitted. The court deems the supplemental bill of particulars with respect to Penal Law §§ 120.05 (4) and 120.00 (2) to be served on defendants.
However, plaintiff's request to plead Labor Law 27-A ("Safety and Health Standards for Public Employees") constitutes a new theory of liability not pled in his complaint or original bill of particulars and, therefore, is in the nature of an amendment. Since plaintiff proposes to serve it after the note of issue was filed, he is required to demonstrate good cause for his failure to move to amend at an earlier date. Plaintiff, however, has not addressed his new theory of liability in his papers, much less demonstrated any basis for allowing a late amendment. Accordingly, plaintiff's request for leave to plead a violation of Labor Law § 27-A is denied.
General Municipal Law § 205-e provides that a police officer can maintain a cause of action for a line-of-duty injury or death which "occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state . . . or city governments or of any and all their departments, divisions and bureaus" (see Jones v Fried, 21 AD3d 1057, 1058 [2d Dept 2005]).
"To make out a claim under section 205-e, a plaintiff must [1] identify the statute or ordinance with which the defendant failed to comply, [2] describe the manner in which the [police officer] was injured, and [3] set forth those facts from which it may be inferred that the defendant's negligence directly or indirectly caused the harm" (Williams v City of New York, 2 NY3d 352, 363 [2004] [internal quotation marks and citation omitted]). Plaintiff is not precluded from pursuing his section 205-e claims against the City merely because his claims are raised against his former employer (see Gonzalez v Iocovello, 93 NY2d 539, 549 [1999]).
Plaintiff alleges that Lopez violated: (1) Penal Law § 120.10 (1) (assault in the first degree — intent); (2) Penal Law §120.10 (3) (assault in the first degree — deprived indifference); (3) Penal Law § 120.11 (aggravated assault on a police officer); (4) Penal Law § 120.05 (4) (assault in the second degree — recklessness); and (5) Penal Law § 120.25 (reckless endangerment). With respect to Cullen, plaintiff alleges that Cullen violated Penal Law § 120.20 (reckless endangerment in the second degree). [*26]
Violations of the Penal Law are proper predicates for liability under General Municipal Law § 205-e (see Williams, 2 NY3d at 365). The record establishes that the D.A. was notified of this incident, permitted the NYPD to question Lopez and Cullen,[FN27] but brought no criminal charges against them. In that regard, the Court of Appeals held that: "where no criminal charges have been brought against a section 205-e defendant, a rebuttable presumption exists that the Penal Law has not been violated. A defendant who has not been charged with a crime is entitled to summary judgment on a section 205-e claim predicated on the Penal Law where a reasonable view of the evidence supports the conclusion that no prohibited conduct took place or that a justification defense exists" (Williams, 2 NY3d at 366).
The Court of Appeals further held that it is plaintiff's burden to produce "compelling evidence demonstrating a material question of fact as to whether the conduct was criminal and not justified." (ld. at 367). Furthermore, "because the provisions that plaintiff claims were violated require proof beyond a reasonable doubt and even then, otherwise criminal conduct is excused if justified, [his] burden is substantial in the absence of a conviction" (Id. at 366).
The court rejects the affidavit of Henry C. Branche, a retired Police Sergeant, who opined that Lopez and Cullen violated the Penal Law. Notwithstanding his curriculum vitae, Mr. Branche is not a ballistic's expert and presents no special expertise in firearms training or the Penal Law which would permit him to opine that Lopez' or Cullen's actions violated the Penal Law (see Ferriolo v City of New York, 2008 NY Slip Op 30671 [U] [2008]).[FN28]
As stated above, the parties' testimony concerning Lopez' intent is sharply conflicting and cannot be resolved at this juncture. As a proponent of a cross motion, plaintiff is not entitled to summary judgment on his Section 205-e claim against the City because his testimony is not sufficiently compelling evidence to meet his substantial burden to provide proof that Lopez acted with the requisite intent to constitute any violation of the Penal Law. Yet, in opposition to the City's motion for summary judgment, plaintiff's testimony that Lopez intentionally shot him is sufficient to defeat it. Accordingly, plaintiff's General Municipal Law § 205-e claim against the City with respect to Lopez will be determined at trial.
However, the evidence is palpably insufficient with respect to Cullen who came to Lopez' aid while Lopez was firing at Service who was advancing towards Lopez, and fired a single shot hitting Service. Plaintiff has not presented substantial evidence demonstrating that Cullen was criminally reckless. Accordingly, to the extent it is based on Cullen's actions, plaintiff's Section 205-[*27]e claim against the City is dismissed.
In his complaint, plaintiff also relies on the NYPD Patrol Guide and the Narcotics Division Manual Procedures as the additional predicates for liability under General Municipal Law § 205-e. Plaintiff's reliance on the NYPD Patrol Guide and the Narcotics Division Manual Procedures is misplaced.
The Court of Appeals in Galapo v City of New York (95 NY2d 568 [2000]) held that the NYPD Patrol Guide is an internal manual and "is not a body of law or regulation establishing clear legal duties that should serve as a basis for civil liability of municipalities." Insofar as a violation of the NYPD Patrol Guide would not constitute non-compliance with a requirement found in a "well-developed body of law and regulation" which "imposes clear duties," there can be no Section 205-e liability based thereon (Galapo, 95 NY2d at 574 [2000]; see Desmond v City of New York, 88 NY2d 455, 464 [1996], rearg denied 89 NY2d 861 [1996]).
For the same reasons, a violation of provisions of the Narcotics Division Manual Procedures, which document is not even in the record, cannot give rise to Section 205-e liability. "There is absolutely no authority for the proposition that internal agency procedures, no matter how they are prepared, whether compiled into a booklet or not, and whether approved by top command officials or not, somehow become mandatory in nature so that any deviation therefrom subjects the governmental entity in question to civil liability" (Pascarella v City of New York, 146 AD2d 61, 70 [1st Dept 1989]).
Accordingly, plaintiff's claims based on alleged violations of the Patrol Guide and the Narcotics Division Manual Procedures are dismissed.
The derivative claim of plaintiff's wife, Robbin Brown, is dismissed to the extent it is based on General Municipal Law § 205-e because no cause of action for loss of consortium is authorized under that section (see Korfman v Parkway Vil. Assocs., 110 AD2d 886, 887 [2d Dept 1985]).
Conclusion
Defendants' motion to dismiss is denied with respect to: (1) plaintiff's claim against Lopez and the City for assault and battery (First and Second Causes of Action), (2) plaintiff's Section 1983 claim against Lopez (Fourth Cause of Action); (3) plaintiff's General Municipal Law § 205-e claim, as predicated on the alleged violations of the Penal Law, against the City with respect to Lopez (Seventh Cause of Action); and (4) Robbin Brown's derivative claim relating to plaintiff's claim against Lopez and the City for assault and battery and plaintiff's Section 1983 claim against Lopez (Eighth Cause of Action); and such motion is otherwise granted.
Plaintiff's cross motion for partial summary judgment is denied. Plaintiff's motion for leave to serve a supplemental bill of particulars is granted with respect to Penal Law §§ 120.05 (4) and 120.00 (2), and is denied with respect to Labor Law § 27-A, and, to the extent granted, the supplemental bill of particulars is deemed served on all defendants.
The foregoing constitutes the decision and order of the court.
E N T E R,
/s/ Karen B. Rothenberg
J. S. C.
Footnotes
Footnote 1: Plaintiff's wife, Robbin Brown, has brought a derivative claim.
Footnote 2: As the supervisor of his team, plaintiff's standing order to his officers was that "as far as arrest apprehension goes, that I, myself, would normally be what I call the point man or I would be the one that would direct who would make what arrest and who would apprehend who" (Plaintiff 50-h Hearing Tr. at 13).
Footnote 3: Although under normal circumstances plaintiff as the sergeant would give a signal to move in, any person could give such a signal when the situation arose (Plaintiff EBT Tr. at 106-107).
Footnote 4: A crime scene investigator, Detective Burton, testified, "I recovered one latent fingerprint from a knife blade that was at the scene" (Burton Tr. at 16). The record is silent regarding whose fingerprint was on the knife blade.
Footnote 5: Although separately named as a defendant, the NYPD is not an incorporated entity and has no independent legal existence, but merely serves as an agency of the City (see New York City Charter § 396).
Footnote 6: The parties address Mr. Anemone as Chief, notwithstanding his retirement from the NYPD, and the court will do so as well.
Footnote 7: Exhibit K to plaintiff's cross motion.
Footnote 8: The NYPD guidelines on the use of deadly physical force by the police provide, in relevant part:
"Police officers shall not use deadly physical force against another person unless they have probable cause to believe they must protect themselves or another person present from imminent death or serious physical injury.
"Police officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons" (See Firearms Discharge Investigation Manual at 2, annexed as Exhibit P to plaintiff's cross motion).
Footnote 9: Apparently, there was a prior report of August 25, 1998, but the parties failed to include it in the record before the court.
Footnote 10: Captain Nizza, the author of the Final Report, explained: "the inside of the Glock is too soft to put a marking on the bullet, so therefore, you cannot fire the gun and have markings on the bullets to tell which gun the bullet came from" (Nizza Feb. 9, 2006 Tr. at 42-43).
Footnote 11: The court also reviewed the deposition transcripts of Thomas Nizza, James Murray, and Victoria Burton and cites to them in this decision when relevant.
Footnote 12: Chief Anemone had retired from the NYPD by the time the Headquarters Board voted on the incident. Esposito was Anemone's successor, although not an immediate successor, as the Chief of the NYPD. The two men worked together for approximately two years: Esposito as the Commanding Officer of Brooklyn North and Anemone as the Chief of the NYPD.
Footnote 13: Plaintiff also submits as Exhibit N the excerpts from the 1996 and 1997 Firearms Discharge Assault Reports showing the total number of shots fired by police officers at suspects and other crime-related statistics, none of which address the friendly fire incidents. In the same exhibit, plaintiff includes two pages from the US Census Bureau: State and County Quick Facts stating that the population of New York City in 2000 included 26.6% of African Americans, 27% of Hispanics, and 44.7% Caucasians. The unauthenticated census data are irrelevant.
Footnote 14: Lopez fired eight rounds; plaintiff, three; and Cullen, one.
Footnote 15: In 1989, the firefighter's rule was abrogated by the passage of General Municipal Law § 205-e. However, plaintiff does not rely on this statute to support his third cause of action.
Footnote 16: As stated above, General Obligations Law § 11-106, which abolishes the firefighter's rule and restores the rights of police officers to recover for on-duty injuries, nevertheless exempts the injured party's employer and co-employees from the abolition of the firefighter's rule (see Rodriguez v County of Rockland, 43 AD3d 1026, 1029 [2d Dept 2007]). Thus, notwithstanding the passage of General Obligations Law § 11-106, the firefighter's rule continues to bar common-law negligence claims against plaintiff's employer and co-employees.
Footnote 17: Plaintiff relies on 42 USC § 1983 (Section 1983), which provides, in relevant part, that "[e]very person who, under color of any statute, ordinance, regulation, custom or usage . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured." Section 1983 itself creates no substantive rights and provides only a procedure for dress for the deprivation of rights established elsewhere (see Thomas v Roach, 165 F3d 137, 142 [2d Cir 1999]).
Footnote 18: In Pearson v Callahan (___ US ___, 129 S Ct 808, 818 [2009]), the Supreme Court reconsidered the procedure required in Saucier and concluded that, while the sequence set forth therein is often appropriate, it should no longer be regarded as mandatory. Judges "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand" (Pearson, 129 S Ct at 818). The court sees no reason for departing from the two-step analysis of Saucier in this case.
Footnote 19: The United States Court of Appeals for the Second Circuit in Hemphill cited to its earlier decision in Johnson v Glick (481 F2d 1028, 1033 [2d Cir 1973], cert denied sub nom Employee-Officer John, #1765 Badge Number v Johnson, 414 US [1973]) regarding the factors to be utilized under the "shock the conscience" standard. Although Johnson was subsequently overruled in Graham v Connor (490 US 386, 393-394 [1989]) with respect to the Fourth Amendment's claim of excessive force, the Johnson factors continue to apply in the non-seizure, non-prisoner context of the Fourteenth Amendment (see Bisignano v Harrison Central School Dist., 113 F Supp 2d 591, 599-600 [SD NY 2000]; Lizardo v Denny's, Inc., 2000 WL 976808, *10 [ED NY 2000]).
Footnote 20: Plaintiff's claim with respect to Cullen's shooting of Service is a red herring because Cullen did not shoot at, nor injured, plaintiff and, thus, did not use excessive force against plaintiff. Accordingly, the court limits its discussion to Lopez in this section.
Footnote 21: Plaintiff's allegation that Cullen did not report to his supervising officer plaintiff's statement to Cullen that Lopez had shot plaintiff amounts, at best, to a violation of the internal NYPD procedures and is not a violation of plaintiff's Fourteenth Amendment rights. Plaintiff subsequently filed with the NYPD a Firearms Discharge/Assault Report explicitly claiming that Lopez shot him, thereby putting the NYPD on notice that Lopez allegedly shot plaintiff.
Footnote 22: ln Turpin v Mailet (619 F2d 196, 201 [2d Cir 1980], cert denied sub nom Tumin v City of West Haven, 449 US 1016 [1980]), the United States Court of Appeals for the Second Circuit held that an official policy may also be predicated on inaction or omission, such as where subordinate employees have engaged in a pattern of constitutionally offensive conduct, and supervisory officials have or should have had knowledge of such violations and yet failed to take proper remedial steps or corrective actions despite the power and ability to do so. In such a case, a de facto policy, by implied authorization, approval or encouragement of the offensive conduct may be inferred "if the superior's inaction amounts to deliberate indifference or to tacit authorization of the offensive acts" (id.).
Footnote 23: Following Lopez' graduation from the police academy, additional plainclothes training course (SAFE) was instituted at the police academy at the request of Chief Anemone (Anemone Tr., July 11, 2003, at 87-88).
Footnote 24: The United States Supreme Court in (City of Canton, Ohio v Harris, 489 US 378 [1989]) offered as an example of deliberate indifference a municipality's failure to train police officers on the proper use of deadly force. The Supreme Court noted that "city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons" (City of Canton, 489 US at 390 n 10). Moreover, "[t]he city has armed its officers with firearms, in part to accomplish this task" (id). In such a situation, "the need to train officers in the constitutional limitations on the use of deadly force . . . can be said to be so obvious' that failure to do so would properly be characterized as deliberate indifference' to constitutional rights" (id).
Footnote 25: According to the complaint, the Penal Law provisions are "Section[s] 110/125.27, 110/125.25; Article 120, Section[s] 120.10 (1) and (3)" (¶ 65). The Bill of Particulars elaborates that plaintiff relies on Sections 110/125.27 (1), 110/125.25 (1) (2), 110/125.20 (1) (2), 120.20, 120.25, 120.11, and 120.10 (1) (3) (¶ 13).
Footnote 26: In one section of his cross motion, plaintiff lists additional predicates, the Fourth and the Fourteenth Amendments of the United States Constitution (Cross Motion, ¶ 3), but does not discuss them elsewhere in his moving papers or his reply papers. The court will not consider the Fourth and the Fourteenth Amendments as the predicates for plaintiff's cross motion.
Footnote 27: Sergeant Murray who, with Captain Nizza, conducted the investigation of the incident, explained: "In cases where there's a hit in a police involved shooting, the District Attorney's office requests that we do not question the shooting officer[]s pending their investigation and once they have completed their investigation then they will allow us to interview the subject officers . . ." (Murray Tr. at 27).
Footnote 28: Because Mr. Branche does not qualify as an expert in this case, the court need not determine whether plaintiff's belated disclosure of Mr. Branche's affidavit is subject to preclusion under CPLR 3101 (d) (1).
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