New York City Not Liable to Bystanders Shot By Police During Daylight Exchange of Gunfire on Public Street

In the Court of Appeals decision in Johnson v. City of New York, 2010 WL 4720753 (November 23, 2010), five police officers got into a shootout with a robbery suspect at 126th Street and Lenox Avenue in Manhattan.

Plaintiff Tammy Johnson was playing with her 18-month-old daughter and socializing with neighbors on 126th Street near her residence when she heard gunshots, and she and her daughter took cover by lying on the ground behind an SUV. An errant bullet struck Johnson’s elbow, and she commenced a negligence action against the City on behalf of herself and her daughter.

A divided Court of Appeals affirmed the Appellate Divisions dismissal of the suit. 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 endanger innocent persons. Johnson argued that the officers violated subsection (b).

The 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. To a large extent the case boiled down to whether it was sufficient that the police officers did not actually see any bystanders in the area while firing their weapons, without regard to whether in the exercise of reasonable care they should have.

The majority opinion concluded: 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 endanger innocent persons.

The dissent would have found that there was an issue of fact as to whether the police officers violated the Police Department guideline that prohibits unnecessarily endangering innocent persons by failing to ascertain the presence of bystanders before firing their weapons. The dissent highlighted testimony by two of the police officers that they did not look for pedestrians before firing their weapons, and the plaintiffs were in close proximity to the suspect being fired at.

Having failed to look for innocent persons before firing, the dissent felt it impossible to conclude as a matter of law that the officers exercised the necessary judgment and did not violate the guideline against unnecessarily endangering innocent persons. It appears to me that the majority, without saying so, was holding the police officers to a standard of gross negligence or recklessness, rather than to negligence.

The majority stressed that it was uncontroverted that all of the officers who fired at the suspect did so when they had a clear view of him and they did not see any bystanders in the area while firing. The decision distinguished Johnson from cases where there was a violation of guideline where officers failed to call hostage negotiator and also fired at the suspect when he was using a hostage as a shield, and where an officer violated police procedure by discharging a weapon at the suspect when there was a crowd between them.

The majority also noted that some of the police officers testified that they were concerned for other officers safety. Apparently given the hectic, highly-charged pace of the event with the very real dangers posed by a shootout on a public street with an armed and dangerous robbery suspect, the Court of Appeals was not ready to second-guess the judgment of the police officers who were at the scene.

The lawyers at Levine & Slavit have decades of experience handling personal injury claims. For over 50 years spanning 3 generations, we have obtained results for satisfied clients. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens, and surrounding areas. If you or someone close to you has been injured in a serious accident, contact the personal injury lawyers at Levine & Slavit for their help. To learn more, watch our videos.

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