Tammy D. Johnson v. City of New York
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 192
Tammy D. Johnson &c., et al.,
Appellants,
v.
City of New York, et al.,
Respondents.
(And Another Action.)
Barry A. Gutterman, for appellants.
Susan Paulson, for respondents.
PIGOTT, J.:
On May 27, 2005 at approximately 6:30 p.m., New York
City Police Officers Williams and Loor received a complaint from
a pedestrian that two men had just attempted to rob him with a
gun.
The officers pursued one of the suspects from 125th Street,
along Lenox Avenue, onto 126th Street.
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Officer Williams
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No. 192
transmitted the attempted robbery complaint over the radio while
Officer Loor drove their police cruiser to the corner of 126th
Street and Lenox Avenue, parking two car lengths away from the
suspect.
When the officers got out of the cruiser and ordered
the suspect to drop his weapon, he pointed the gun at them and
started shooting.
The officers returned fire and sought cover
behind a trailer on the south side of the street; the suspect hid
behind a van farther up 126th Street on the same side.
Officer Loor then ran from the south side of 126th
Street to the north side positioning himself behind a tree
directly across the street from the suspect.
at Officer Loor, who responded in kind.
The suspect fired
According to the
pretrial testimony, Officer Loor did not see any bystanders in
the area while he was shooting, and the area near the suspect was
clear of pedestrians.
Officer Williams--who continued using the
trailer for cover--observed the suspect back onto the sidewalk
from behind the van and, having a view of the suspect's profile
and being concerned for Officer Loor's safety, fired one or two
shots at the suspect.
She testified that she did not observe any
pedestrians in the area when discharging her weapon.
During the melee, three other officers appeared on the
scene.
Officer Garcia heard a scream from the direction of Lenox
Avenue.
He walked toward the commotion and observed the suspect
shoot at Officers Williams and Loor and then hide behind the van.
Officer Garcia took cover in a brownstone well on the north side
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No. 192
He had a clear view of the suspect and fired at
him out of concern for Officer Loor, who was taking fire; Officer
Garcia did not see any pedestrians or bystanders on the street.
Officers Beddows and Eckert separately responded to the
scene.
Officer Beddows took cover on the north side of the
street behind a cruiser.
from behind the van.
He observed the suspect firing shots
Officer Beddows had a clear view when he
fired two shots at the suspect, and he saw no pedestrians on the
street other than the suspect.
Officer Eckert positioned his cruiser in front of the
van.
He observed only the suspect and did not see any other
pedestrians on the block.
He walked toward the rear of his
cruiser and took cover behind a car on the south side of the
street.
During the exchange of gunfire between Officer Loor and
the suspect, the suspect moved to the sidewalk and Officer
Eckert, having a clear view, fired one shot at the suspect.
Officer Eckert reholstered his weapon and saw Officer Loor
walking toward the suspect, who was lying face down on the
ground.
Officers Loor and Eckert met near the suspect and
Officer Loor kicked the firearm away from the suspect's hand.
Plaintiff Tammy Johnson was playing with her 18-monthold daughter and socializing with neighbors on 126th Street near
her residence when she heard gunshots, which sent her neighbors
fleeing into the house.
Johnson saw two men running toward her,
one of whom was carrying a gun.
Johnson and her daughter lay on
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No. 192
the ground behind a white SUV, which was two vehicles away from
the van behind which the suspect was hiding.
She looked under
the SUV and saw the suspect on the south side of the street lying
on the ground shooting at a police officer across the street.
An
errant bullet struck Johnson's elbow.1
Johnson, individually and on behalf of her daughter,
commenced this negligence action against the City and police
officers alleging, among other things, that the officers
negligently discharged their firearms in violation of department
guidelines.
The City interposed an answer and, upon completion
of discovery, moved for summary judgment on the ground that the
officers exercised their professional judgment and acted
reasonably in returning fire once fired upon.
Johnson opposed the City's motion and cross moved for
summary judgment on liability, claiming that the officers
violated Police Procedure No. 203.12, entitled "Deadly Physical
Force," which sets forth the guidelines for the use of firearms.
The relevant guidelines state that:
"(a) Police officers shall not use deadly
physical force against another person unless
they have probable cause to believe that they
must protect themselves or another person
present from imminent death or serious
physical injury.
(b) Police officers shall not discharge their
weapons when doing so will unnecessarily
1
The evidence in the record indicates that Johnson's
daughter may have been grazed by a bullet but received no
treatment for it.
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No. 192
endanger innocent persons."
Johnson argued that the officers violated subsection (b).
Supreme Court denied Johnson's cross motion insofar as
relevant to this appeal, and the City's motion for summary
judgment, holding that although the City met its burden of
establishing that the officers exercised their professional
judgment, there was an issue of fact as to whether the officers
violated police guidelines by discharging their weapons.
The Appellate Division, in a 3-2 decision, reversed and
dismissed the complaint, holding that Johnson failed to show that
the officers violated any of the guidelines.
The court pointed
to the uncontradicted testimony of the officers that there were
no pedestrians in sight as the officers "sought to protect
themselves and their fellow officers by returning fire" (65 AD3d
476, 477 [1st Dept 2009]).
It concluded that, absent any proof
that there were pedestrians in view, the report from Johnson's
expert that there were questions of fact as to whether the
officers violated police guidelines was without merit (see id. at
477-478).
The dissenters, on the other hand, concluded that the
deposition testimonies of Officers Garcia and Beddows, where they
testified that they did not look for bystanders while they were
shooting at the suspect, raised an issue of fact as to whether
those officers violated police guidelines "by failing to even
ascertain whether innocent persons were unnecessarily endangered
at the time they discharged their weapons" (id. at 479-480).
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We
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No. 192
now affirm.
The professional judgment rule insulates a municipality
from liability for its employees' performance of their duties
"'where the . . . conduct involves the exercise of professional
judgment such as electing one among many acceptable methods of
carrying out tasks, or making tactical decisions . . .'"
(McCormack v City of New York, 80 NY2d 808, 811 [1992] quoting
Kenavan v City of New York, 70 NY2d 558, 569 [1987]).
Immunity
under the professional judgment rule "'reflects a value judgment
that--despite injury to a member of the public--the broader
interest in having government officers and employees free to
exercise judgment and discretion in their official functions,
unhampered by fear of second-guessing and retaliatory lawsuits,
outweighs the benefits to be had from imposing liability for that
injury'" (Mon v City of New York, 78 NY2d 309, 313 [1991] quoting
Haddock v City of New York, 75 NY2d at 484 [1990]).
This
immunity, however, presupposes that judgment and discretion are
exercised in compliance with the municipality's procedures,
because "the very basis for the value judgment supporting
immunity and denying individual recovery becomes irrelevant where
the municipality violates its own internal rules and policies and
exercises no judgment or discretion" (Haddock, 75 NY2d at 485).
The guideline here calls for such judgment, i.e., the
police must not discharge their firearms if doing so would
"unnecessarily endanger innocent persons."
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It does not prohibit
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No. 192
officers from discharging their weapons when innocent bystanders
are present in every instance.
Rather, the guideline grants
officers the discretion to make a judgment call as to when, and
under what circumstances, it is necessary to discharge their
weapons.
The officers clearly had probable cause to fire their
weapons at the suspect:
they were in pursuit of an armed
individual who opened fire on them on a public street,
endangering the lives of the officers and the public.
Johnson
asserts, however, that she met her burden of raising a question
of fact that the officers violated the guideline because they did
not survey the area to see if bystanders were present before
firing at the suspect.
However, on this record, it is
uncontroverted that all of the officers who fired at the suspect
did so when they had a clear view of him, and all testified that
they did not see any bystanders in the area while firing, such
that it cannot be said that the officers failed to exercise
discretion in discharging their weapons.
Nor is there any
evidence that Johnson and her daughter were in the line of fire
during the melee such that a question of fact was presented as to
whether officers' discharge of their firearms violated the
guideline (cf. Lubecki v City of New York, 304 AD2d 224 [1st
Dept] lv denied 2 NY3d 701 [2003] [violation of guideline where
officers failed to call hostage negotiator and also fired at
suspect when he was using hostage as a shield]; Rodriguez v City
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No. 192
of New York, 189 AD2d 166 [1st Dept 1993] [officer violated
police procedure by discharging weapon at suspect when there was
a crowd between them]).
Although Johnson submitted an affidavit
from an expert who claimed that Johnson and her daughter were
"totally exposed" to Officer Garcia, the expert's claim that
Officer Garcia must have seen them does not answer the more basic
question--did the officers exercise their judgment when
confronted with an armed suspect firing at them?
evidence that they did not.
There is no
The fact that the officers did not
observe the bystanders who were present at the time they were
exercising that judgment does not raise an issue as to whether
they unnecessarily endangered innocent persons.
Accordingly, the order of the Appellate Division should
be affirmed, with costs.
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Johnson v City of New York
No. 192
JONES, J. (dissenting):
Because there is an issue of fact as to whether the
police officers violated a New York City Police Department
guideline that prohibits unnecessarily endangering innocent
persons by failing to ascertain the presence of bystanders before
firing their weapons, I respectfully dissent and would reverse
the order of the Appellate Division.
Generally, municipalities are immunized from liability
for the exercise of discretion by their agencies or officials.
When official acts, including those of police officers (see
Rodriguez v City of New York, 189 AD2d 166, 178 [1st Dept 1993])
involve the exercise of discretion or reasoned judgment, there is
no liability for injuries even if the official action is
negligent or malicious (see Tango v Tulevech, 61 NY2d 34, 40
[1983]).
However, this broad protection is neither absolute, nor
automatically afforded, as the municipality must exercise
discretion in compliance with its own procedures (see Haddock v
City of New York, 75 NY2d 478, 486 [1990]).
Governmental
immunity will not be provided "where the municipality violates
its own internal rules and policies and exercises no judgment or
discretion" (id. at 485).
In the context of police officers,
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No. 192
immunity "does not extend to situations where the employee, a
police officer, violates acceptable police practice" (Rodriguez,
189 AD2d at 178).
New York City Police Department Procedure No. 203.12,
entitled "Deadly Physical Force," as relevant here, commands
that:
"(b) Police officers shall not discharge
their weapons when doing so will
unnecessarily endanger innocent persons."
Here, there is an issue of fact as to whether the
police officers violated this elemental requirement.
Record
evidence establishes the presence of bystanders in the immediate
area of the shooting.
For example, photographic evidence
indicates plaintiffs were in close proximity to the suspect, who
was positioned approximately two car lengths away.
A crime scene
sketch, created by the Police Department Crime Scene Unit,
showing the relative positions of all the individuals involved in
the incident indicates that when Officer Garcia fired his weapon,
he was positioned across the street from plaintiffs and the
suspect.
The sketch also supports the inference that plaintiffs,
who were taking cover behind a parked vehicle, should have been
plainly visible to Officer Garcia as he fired at the suspect just
beyond them.
Further, when questioned about the incident, Officer
Garcia answered that he never affirmatively looked for
pedestrians before firing his weapon.
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Officer Beddows similarly
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No. 192
testified that he did not determine whether pedestrians were
present before firing his weapon.
In fact, he stated that he did
not look for bystanders until "after pretty much everything was
done."
Given the close proximity of plaintiffs to the suspect,
the admitted failure of some officers to look for bystanders
before firing their weapons creates a triable issue as to whether
the police violated departmental guidelines prohibiting actions
that unnecessarily endanger innocent persons.
While I acknowledge the difficulties faced by police
officers in the performance of their duties, I find it troubling
that some of the officers in this incident failed to observe the
surrounding area prior to firing their weapons.
Our governmental
immunity precedent is premised on the inherent requirement that
reasoned judgment be used in exercising discretion.
And where,
as here, there is evidence that police officers failed to look
for innocent persons before firing their weapons, it does not
seem possible to conclude as a matter of law that the necessary
judgment was exercised and, concomitantly, that there was no
violation of the guideline against unnecessarily endangering
innocent persons.
As this Court has previously stated, immunity
will not be provided where "[t]here is no indication that . . .
the City made any effort to comply with its own personal
procedures" (Haddock, 75 NY2d at 485).
The majority relies on Rodriguez and Lubecki v City of
New York (304 AD2d 224 [1st Dept 2003]) to conclude that there is
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No. 192
no issue of fact as to whether the officers violated guidelines
because plaintiffs were not in the line of police fire.
However,
the applicable guideline does not merely prohibit police from
discharging their weapons when there is a civilian directly in
the path of police fire.
Rodriguez and Lubecki dealt with facts
indicating clear violations of police guidelines because of
certain injury to innocent persons.
In Rodriguez, an officer
fired through a crowd, at a suspect, and in Lubecki, officers
fired at a suspect holding an innocent person hostage.
While
these cases present classic scenarios of endangerment, they
should not be understood to be the exclusive examples of
violations of the applicable guideline.
For the subject
guideline's intended purpose and protections to be afforded, the
exercise of reasoned judgment must be extended to situations
where civilians are close enough to a target to be endangered.
Here, the record establishes the presence of plaintiffs in the
immediate area of the suspect and the affirmative failure of the
officers to look for innocent persons before firing their
weapons.
In a summary judgment context particularly, where a
court's function is "issue finding, rather than issuedetermination" (Pirrelli v Long Island R.R., 226 AD2d 166
[1996]), plaintiffs have raised sufficient questions of fact on
the issue of unnecessary endangerment to warrant a trial.
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No. 192
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Order affirmed, with costs. Opinion by Judge Pigott. Judges
Graffeo, Read and Smith concur. Judge Jones dissents and votes
to reverse in an opinion in which Chief Judge Lippman and Judge
Ciparick concur.
Decided November 23, 2010
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