Ferreira v Binghampton NYCLA amicus amicus brief

CTQ 2020-00007

COURT OF APPEALS

OF THE

STATE OF NEW YORK

JESUS FERREIRA,

Plaintiff-Appellant,

– against–

CITY OF BINGHAMPTON, BINGHAMTON POLICE DEPARTMENT,

Defendants-Respondents,

– and–

POLICE OFFICER KEVIN MILLER et al.,

Defendants.

CERTIFIED QUESTION FROM UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT CTQ 2020-00007

BRIEF OF AMICUS CURIAE
THE NEW YORK COUNTY LAWYERS ASSOCIATION AND NATIONAL POLICE ACCOUNTABILITY PROJECT

Robert Rickner

Elliot Dolby Shields

Co-Chairs, Civil Rights Committee

New York County Lawyers Association

Attorneys for Amicus Curiae

New York County Lawyers Association and

the National Police Accountability Project

7 World Trade Center, 46th Floor

250 Greenwich Street

New York, New York 10007

(212) 300-6506

rob@ricknerpllc.com

New York County Clerk’s Index No.: 154388/2015

APPELLATE INNOVATIONS

(914) 948-2240

17191

TABLE OF CONTENTS
TABLE OF CONTENTS		I
TABLE OF AUTHORITIES		II
QUESTION PRESENTED		1
INTERESTS OF AMICUS CURIAE		1
STATEMENT OF FACTS		2
SUMMARY OF ARGUMENT		6
ARGUMENT		7
I. No-knock Raids Are Dangerous		9
II. Police Raids Are Insufficiently Regulated		14
III. The Negligent Planning of the City in This Case is Exactly the Type of Behavior That Standard Common-Law Tort Liability is Designed to Remedy and Deter	15
A. The City was in the Best Position to Protect Ferreira		16
B. Finding a Duty of Care Here Will Not Lead to a Proliferation of Claims or Insurer-Like Liability		18
C. It is Reasonable for the City, Ferreira, and Society Generally, to Expect a Duty of Care Here		19
D. It is Morally Right to Compensate Innocent Victims Like Ferreira		21
IV The “Special Duty” Doctrine Should Be Limited To Cases The Municipality Fails Adequately To Protect Against Or Where Respond To Harms Committed By A Third Party		22
V The Governmental And Discretionary Functions Exemptions Should Also Not Be Applied		25
VI. Alternatively, This Court Should Hold There Is A Special Duty in Instances Where Municipal Actors’ Negligence Created a Dangerous Harm Situation that Directly Caused the Harm		27
Conclusion		28

TABLE OF AUTHORITIES Cases
532 Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc., 96 N.Y.2d 280, 288 [2001]	18
Applewhite v Accuhealth, Inc., 995 N.E.2d 131, 135 [2013]	4
Castle v Duryea, 32 Barb. 480, 483 [NY Gen Term 1860], aff’d sub nom. Castle v Duryee, 1 Abb.Dec. 327 [1865]	17
Cuffy v City of New York, 505 N.E.2d 937, 940 [1987]	22
Davis v S. Nassau Communities Hosp., 26 N.Y.3d 563, 572 [2015]	16
Endresz v Friedberg, 24 N.Y.2d 478, 484 [1969]	21
Ferreira v City of Binghamton, 975 F.3d 255 [2d Cir 2020]	passim
Flamer v City of Yonkers, 309 N.Y. 114 [1955]	20
Gonzalez v City of New York, 133 A.D.3d 65 [1st Dept 2015]	17
Hamilton v Beretta U.S.A. Corp., 96 N.Y.2d 222, 233 [2001]	16
Hamilton v Beretta, et al., 264 F.3d 21 [2d Cir 2001]	17
Hudson v Michigan	20
Jones v City of Buffalo, 267 A.D.2d 1101 [4th Dept 1999]	17
Lauer v City of New York, 95 N.Y.2d 95 [2000]	6, 24
McColley v County of Rensselaer, 740 F3d 817 [2d Cir 2014]	10


McCummings v New York City Transit Auth., 81 N.Y.2d 923, 925 [1993], cert. denied, 510 U.S. 991 [1993]	20
McLean v City of New York, 905 N.E.2d 1167 [2009]	24, 28
Meistinsky v City of New York, 309 N.Y. 998 [1956]	20
Moch Co. v Rensselaer Water Co., 247 N.Y. 160, 165 [1928]	18
Palka v Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 586 [1994]	16
Richards v Wisconsin, 520 U.S. 385 [1997]	10
Rodriguez v City of New York, 189 A.D.2d 166, 177-78 [1st Dept 1993]	20
See Landon v Kroll Lab’y Specialists, Inc., 91 A.D.3d 79, 87-88 [2d Dept 2011], affd, 22 N.Y.3d 1 [2013]	19
Smullen v City of New York, 28 N.Y.2d 66, 71 [1971]	28
Tenuto v Lederle Labs., Div of Am. Cyanamid Co., 90 N.Y.2d 606, 612 [1997]	.16
Valdez v City of New York, 960 N.E.2d 356, 361 [2011]	24
Wilkes v City of New York, 308 N.Y. 726 [1954]	20
Wyatt v State, 176 A.D.2d 574 [1st Dept 1991]	17
Statutes
42 U.S.C. §1983	3
General Municipal Law § 50–j(l)	20

Other Authorities
Brian A. Reaves, Bur. of Justice Statistics, Census of State and Local Law Enforcement Agencies 2008, at 15 [NCJ 233982, July 2011]		15
Dan Herbeck & Bill Michelmore, ‘Stun’ Device Burns Woman in Drug Raid, Buffalo News [Jan. 21, 2005]		12
Excessive Force: Qualified Immunity: Seventh Circuit Rules SWAT Raid Based on Perfunctory Investigation Unreasonable, 129 Harv L. Rev 1779, 1784 [2016]		18
James C. Brazelton, Stanislaus County District Attorney & Attorney General of the State of California, Report and Evaluation of the Applicability of Criminal Charges to the Circumstances Surrounding the Death of Alberto Sepulveda at 6–7 [Feb. 22,2001]		11
James C. McKinley Jr., After Police Raid Kills Man, 69, Family Asks Why Trigger Was Pulled, N.Y. Times [Dec. 13, 2017]		11
Kevin Sack, Door-Busting Drug Raids Leave a Trail of Blood, N.Y. Times [Mar. 18, 2017]	10, 13
Kevin Sack, Murder or Self-Defense if Officer Is Killed in Raid?, N.Y. Times [Mar. 18, 2017]		13
Lisa Donovan et al., Melee Breaks Out after Police Shooting, Saint Paul Pioneer Press [Aug. 23, 2003]		11

Maryland police shot entering “wrong address” on warrant in Prince George’s County, CBS News [Sept. 21, 2018]			13
NYS Off. of the Att’y General, Preliminary Report on the New York City Police Department’s Response to Demonstrations Following the Death of George Floyd, at 5 [July 2020]			22
Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America, Cato Institute at 4–5 [2006]	passim
Richard A. Oppel Jr., Derrick Bryson Taylor & Nicholas Bogel-Burroughs, What to Know About Breonna Taylor’s Death, N.Y. Times [Oct. 30, 2020]			10
Sean Gardiner and Daryl Kahn, Woman dies after NY police botch apartment raid, Chicago Tribune [May 18, 2003]			12
Theodore Eisenberg & Christoph Engel, Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13 J. Empirical L. Stud. 116, 117 [2016]			21
Tina Chen, Baby in Coma After Police ‘Grenade’ Dropped in Crib During Drug Raid, ABC News [May 30, 2014]			11
War Comes Home: The Excessive Militarization of American Policing, American Civil Liberties Union [2014]		9, 10
Treatises
Dan B. Dobbs et al., Torts § 348 [2d ed. 2011]			17

QUESTION PRESENTED

Does the “special duty” requirement—that, to sustain liability in negligence against a municipality, the plaintiff must show that the duty breached is greater than that owed to the public generally—apply to bar recovery where a police officer executing a no-knock warrant shot an unarmed occupant of a residence?

Amicus contends that the answer to this question is no.

INTERESTS OF AMICUS CURIAE

The New York County Lawyers Association is a not-for-profit organization of approximately 7,000 members committed to applying their knowledge and experience in the field of law to the promotion of the public good and ensuring access to justice for all. The Civil Rights and Liberties Committee of the New York County Lawyers Association produces comments and reports on local, state and national issues relating to civil and constitutional rights.

The National Police Accountability Project (NPAP) was founded in 1999 by members of the National Lawyers Guild to address allegations of misconduct by law enforcement officers through coordinating and assisting civil rights lawyers representing their victims. NPAP has approximately 600 attorney members practicing in every region of the United States and dozens of members in New York. Every year, NPAP members litigate the thousands of cases of law enforcement abuse that do not make news headlines as well as the high-profile cases that capture national attention. NPAP provides training and support for these attorneys and other legal workers, public education and information on issues related to law enforcement misconduct and accountability, and resources for non-profit organizations and community groups involved with victims of such misconduct. NPAP supports legislative efforts aimed at increasing accountability for law enforcement and appears regularly as amicus curiae in cases such as this one presenting issues of particular importance for its member lawyers and their clients.

STATEMENT OF FACTS

This Amicus brief relies on the Statements of Facts contained within the Brief of Plaintiff-Appellant and the Decision of the Second Circuit, Ferreira v City of Binghamton, 975 F.3d 255 [2d Cir 2020]. The pertinent facts, as related by the Second Circuit, are as follows:

This case arises out of an early morning “no knock” search warrant executed on August 23, 2011. City of Binghamton Police Officer Kevin Miller (“Officer Miller”) led the “stack” into Michael Pride’s apartment, suspecting drugs. Unknown to the police, Jesus Ferreira was also there, in the living room on the couch. Because Ferreira was holding what Officer Miller testified he thought was a gun, and which turned out to be an X-Box controller, Officer Miller shot Ferreira at the outset of the raid. While Ferreira survived, he had to have his spleen removed. He brought suit in federal court alleging a violation of his constitutional rights under 42 U.S.C. §1983 as well as pendent state law claims. Pertinent here, in his state law claims Ferreira alleged that (1) Officer Miller acted negligently in shooting him; and (2) the City was liable for negligence, either under a theory of respondeat superior or because the Binghamton police failed to exercise due care in planning the raid.

The case proceeded to a jury trial before Hon. Thomas J. McAvoy of the United States District Court for the Northern District of New York. The jury’s verdict absolved Officer Miller of liability for negligence but held the City of Binghamton 90% liable (finding that Ferreira was 10% liable under a theory of comparative negligence). Judge McAvoy, however, granted the City’s motion to set aside the verdict, holding that a municipality may not be held liable under a respondeat superior theory where the officer himself had not acted negligently, and that New York’s “special duty” rule foreclosed municipal liability for negligent planning of the raid.

Ferreira appealed to the Second Circuit. In a comprehensive, 84-page opinion authored by the Honorable Pierre Leval, the court explained that while Officer Miller might not have been negligent in executing the warrant, the Binghamton Police Department could be said to have been negligent in planning it. Specifically, because they surveilled the building for only an hour the night before, the Binghamton police did not know someone else besides Mr. Pride was there; because they did not obtain a floor plan, the police did not know that they would be entering the apartment’s living room. If there was an unrelated third party in the apartment in the early morning, it would be logical that he might be on the couch in the living room and be the first person encountered in the raid. That person turned out to be Ferreira. There were also issues of negligence in how the Binghamton police department was alleged to have established policies for the exercise of “no-knock” warrants, and how it trained and supervised the SWAT teams that executed them.

With respect to the “special duty” question certified to this Court, the Second Circuit noted that this Court,

has specified that a special duty can arise in three situations: “(1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition.” Applewhite v Accuhealth, Inc., 995 N.E.2d 131. 135 (N.Y. 2013)

(Op. at 281). It added:

A plaintiff may separately satisfy the special duty requirement by showing that “the plaintiff belonged to a class for whose benefit a statute was enacted,” or that “the municipality took positive control of a known and dangerous safety condition.” Applewhite 995 N.E.2d at 135

(Op. at 282).

Ferreira argued that those “special duty” requirements should only apply when a municipality or state agency fails to respond adequately to, or protect from an injury brought about by, a third party (Op. at 282). In this regard, the Second Circuit observed:

The Court of Appeals has long applied the special duty requirement to suits involving third-party-inflicted injury, and it has long not applied the requirement to claims that the government itself negligently injured the plaintiff. This decades-long decisional pattern suggests that Ferreira’s interpretation of the special duty rule is correct, and that there is no requirement to establish a special duty when the alleged injury is inflicted by a municipal employee. This interpretation, moreover, is consistent with the stated rationale for the rule, which seeks to shield the government’s decisions on the allocation of its limited protective resources and to prevent the government from becoming an insurer against harm inflicted by third parties.

(Op. at 282). In other words, in that court’s view, the “special duty” doctrine should be limited to circumstances where the government has failed adequately to protect a plaintiff against the actions (or even inactions) of a third party, but not to injuries inflicted by government employees themselves.

Here, there is no question that the alleged injury was caused by the shooting, which Ferreira argues was itself brought about by the negligent planning of the raid. No third party was involved. Thus, according to Ferreira—and Judge Level—the “special duty” doctrine should not apply, and standard common law negligence principles should apply instead.

The Second Circuit recognized, however, that there is arguably conflicting, and certainly confusing, other authority from the Court of Appeals.

On the other hand, more recently, the Court of Appeals has frequently stated in dictum that the special duty requirement applies whenever the municipality acts in a governmental capacity. Read literally, these dicta suggest that the special duty requirement applies regardless of whether the alleged injury is inflicted by a municipal employee or by a third party, so long as the government- defendant was acting in a governmental capacity. Moreover, the Court of Appeals has, in at least one case, applied the special duty requirement to dismiss a claim of injury inflicted by municipal employees. See Lauer, 733 N.E.2d at 189 (Lauer v City of New York, 95 N.Y.2d 95 [2000])

(Op. at 282). It concluded its reasons for certification as follows:

We are inclined to think that Ferreira’s interpretation of the special duty rule is more logical– and more consistent with the rule’s stated rationale– than the broader version of the rule favored by the City, which would immunize a municipality from liability in many cases in which its employee or agent negligently inflicts harm. Nevertheless, because it is impossible to discern from precedent which view is favored by New York’s highest court, and because the issue is more a question of state policy than law, we certify the question of the applicability of the special duty requirement to the New York Court of Appeals.

(Id.)

SUMMARY OF ARGUMENT

The purpose of the “special duty” doctrine is to prevent a municipality from becoming, in effect, an insurer for the negligent actions (or inactions) of third parties. A “special duty” requirement reduces the potential breadth of that liability. But that logic disappears when the municipality itself is the direct and primary, even if not sole, tortfeasor.

Moreover, the factual context in which this case arises—a no-knock raid in which an unarmed person was shot by the police—cries out for a remedy in tort. “No-knock” raids are inherently dangerous to occupants and police alike, and circumstances can easily arise where disaster strikes. That is what occurred here. Police departments should be incentivized to surveil and plan such raids carefully and to develop policies and procedures, including training, for the execution of such raids, to avoid unnecessary injury or death. The acts in question are solely those of the police; there is no third party to blame, or to recover from. It is hard to conceive of any sensible reason why the “special duty” doctrine should be used to prevent recovery under such circumstances.

ARGUMENT

The execution of a no-knock warrant is a jarring experience for police and residents alike. For a resident of the premises, the first thing he might hear at 6 a.m. is a battering ram cracking the front door off its hinges. Officers clad in body armor and carrying military-style rifles might then enter in formation, scream orders that sleep-weary residents can barely understand, and handcuff everyone they find. The police will then tear through the home, opening every drawer and closet, and turning over furniture, until they find (or don’t find) whatever contraband they were looking for.

To be sure, to obtain such a warrant, the police must have probable cause to justify the search, and they must convince a judge that imminent danger—or a risk that evidence will be destroyed—justifies the no-knock entry. Necessarily, however, these warrants are issued ex parte, and the information possessed by the police might be far from complete. For instance, the police might have no idea whether any children live in the “target” home, or whether an innocent friend might be sleeping on the couch. And when the raids go wrong, people can get hurt—residents, bystanders, and even the police themselves. Given the risks involved, it is essential that no-knock raids be planned carefully.

The “special duty” doctrine, if applied here, would remove a strong incentive for municipalities to create policies and implement training that would protect both citizens and police. This Court should take into account the unique dangers caused by no-knock warrants, along with the factors this Court has considered under the common law of negligence, and find that the City owed Ferreira a duty of care under ordinary negligence principles. No-knock raids, by design, take people by surprise; the City was in the best, and only, position, through planning and training, to ensure the raid was as safe as it could be. People expect that their home will be a safe place, both for themselves and their family and friends. When people are unnecessarily injured in their home by police negligence, they reasonably expect the police (i.e., the municipality) to be financially responsible.

Permitting liability in this narrow way would not start an avalanche of claims. Instead, it would allow Ferreira, and a limited number of other people injured by police negligence in these raids, to obtain some compensation for the severe injuries such as the one Ferreira sustained from being shot in the stomach.

No-knock Raids Are Dangerous

To execute a no-knock warrant, police departments often—as they did here— “activate[] a SWAT team unit . . . to conduct a ‘dynamic entry’ into the premises” where the police “use speed and surprise to secure an area before occupants have time to access weapons or otherwise resist” (Ferreira v City of Binghamton, 975 F.3d 255, 263 [2d Cir 2020]). From the perspective of the people inside the home, “using speed and surprise” looks like “militaristic tactics once reserved for urban warfare” (Radley Balko, Overkill: The Rise of Paramilitary Police Raids in America, Cato Institute at 4-5 [2006] [hereinafter, “Cato Report”]). Late at night or early in the morning, officers in battle fatigues and Kevlar armor use a battering ram, or even explosives, to break open the door. They might throw a flashbang grenade to disorient the occupants, and enter under its cover, guns first. (Id.) These raids, thus, “involve significant levels of violence” (War Comes Home: The Excessive Militarization of American Policing at 40, ACLU [2014] [hereinafter, “ACLU Report”]). After entry, police hold captive everyone inside the home by handcuffing them and forcing them to lay prone on the floor, often at gunpoint, while police ransack their home, often demolishing their furniture and possessions (Cato Report at 5, 19–20, 46–50).

No-knock warrants are invariably executed with these dynamic entries because they are only issued when police claim that knocking would render the search “dangerous or futile” (McColley v County of Rensselaer, 740 F3d 817, 827–832 [2d Cir 2014] [citing Richards v Wisconsin, 520 U.S. 385, 393—94 (1997)]). These raids are therefore intentionally and inherently abrupt, and can (as here), result in civilians and police being seriously injured or killed.

Between 2010 and 2016, at least 81 civilians died in no-knock and other similar raids across the country, and scores more were injured (Kevin Sack, Door- Busting Drug Raids Leave a Trail of Blood, N.Y. Times [Mar. 18, 2017]). One of the most prominent recent examples is the death of Breonna Taylor, the Black medical worker killed in a botched no-knock raid in Louisville, Kentucky (See Richard A. Oppel Jr., Derrick Bryson Taylor & Nicholas Bogel-Burroughs, What to Know About Breonna Taylor’s Death, N.Y. Times [Oct. 30, 2020]). But her death is hardly the only example. Seven-year-old Aiyana Stanley-Jones was killed during a no-knock raid in Detroit while she was sleeping on her grandmother’s couch (ACLU Report at 21). Eleven-year-old Alberto Sepulveda was also killed in a botched raid while lying on the floor of his bedroom in California (James C. Brazelton, Stanislaus County District Attorney & Attorney General of the State of California, Report and Evaluation of the Applicability of Criminal Charges to the Circumstances Surrounding the Death of Alberto Sepulveda at 6–7 [Feb. 22, 2001]). In Georgia, police threw a flashbang grenade into the crib of a 19-month-old toddler during a raid, burning him so severely that he was placed into a medically-induced coma (Tina Chen, Baby in Coma After Police ‘Grenade ’ Dropped in Crib During Drug Raid, ABC News [May 30, 2014]). While eleven-year-old Julius Powell was taking out the trash, police conducting a raid tried to shoot the family dog just outside his house, but the bullet ricocheted and struck Powell (Lisa Donovan et al., Melee Breaks Out after Police Shooting, Saint Paul Pioneer Press [Aug. 23, 2003]). In Pennsylvania, police shot James Hoskins, who was not the subject of the drug warrant they executed, while he was rising from bed and trying to cover his nudity, injuring him so severely that he was comatose for several weeks and had to have his leg amputated (Cato Report at 65).

Here in New York, police recently shot and killed 69-year-old Mario Sanabria, who spoke no English, during a predawn no-knock raid of his Bronx home, while searching for a man who did not in fact live in that apartment (James C. McKinley Jr., After Police Raid Kills Man, 69, Family Asks Why Trigger Was Pulled, N.Y. Times [Dec. 13, 2017]). Alberta Spruill, a 57-year old civil servant, died from a heart attack after the NYPD threw a flashbang grenade into her apartment during a no-knock raid, even though the suspect they were looking for lived in a different apartment and had already been arrested (Sean Gardiner and Daryl Kahn. Woman dies after NY police botch apartment raid. Chicago Tribune [Mav 18. 2003]). During a pre-dawn raid in Niagara Falls, police threw a flashbang grenade that exploded on the bed where 18-year-old Rhiannon Kephart was sleeping, causing her to be hospitalized with severe bums; she was not who the police were looking for (Dan Herbeck & Bill Michelmore. ‘Stun ’ Device Burns Woman in Drug Raid, Buffalo News [Jan. 21, 2005]). In Syracuse, while police were holding 13- year-old Ronnie Goodwin on the living room floor at gunpoint as part of a raid, a deputy fired off several shots at the Goodwin’s dog, one of which ricocheted and hit Ronnie in the leg (Cato Report at 64). There have been numerous other incidents of New York police holding children—some as young as one month old—at gunpoint during these raids.

These no-knock raids are also dangerous for police. For example, in December 2013, Henry Magee shot and killed a police officer during a pre-dawn, no-knock drug raid on his Texas home, believing his home was being invaded (Kevin Sack, Murder or Self-Defense if Officer Is Killed in Raid?, N.Y. Times [Mar. 18, 2017]). Another police officer was killed in the same way in May of 2015 (id.). Baltimore prosecutors declined to prosecute a man who shot two police officers who entered his home without announcing themselves, because prosecutors determined that he acted out of reasonable fear, to defend himself, his home, and his family (Maryland police shot entering “wrong address” on warrant in Prince George’s County, CBS News [Sept. 21, 2018]). Similarly, it was Breonna Taylor’s boyfriend who fired the first shot, out of similar fears, and there was a similar decision not to prosecute him, notwithstanding the disastrous results. Try to imagine what could have happened in this case to Officer Miller and other Binghamton police officers had Ferreira been holding a gun, as Officer Miller testified he thought was the case, instead of an Xbox controller.

The equipment that police use to create confusion can also harm police themselves. In Massachusetts, a SWAT team accidentally burned down an apartment complex after deploying flashbang grenades in a no-knock raid, injuring six police officers and leaving 24 people homeless (Cato Report at 81).

Police Raids Are Insufficiently Regulated

Despite the undeniable dangers posed by no-knock raids, their execution is largely unregulated. To be sure, a neutral magistrate must find probable cause for the entry and sufficient exigent circumstances to justify a no-knock warrant. An issuing judge, however, does not and cannot micromanage the manner in which the warrant is executed once it is issued. That task falls to the police and, by extension, the municipality.

As this case demonstrates, there is often insufficient oversight over how and when warrants are executed. In that regard, before executing the warrant, the police observed the target, Mr. Pride, leave his girlfriend’s home, but never saw him return (Ferreira, 975 F.3d at 274). Detective Hawley, the officer who applied for the warrant, admitted that he “didn’t know who was in the apartment” or how many people were inside when they started the raid (SA80; SA262). The SWAT team did not do any additional surveillance beyond a single hour the night before to determine if their target was in the home, if he was armed, or if there were any other people—like Ferreira, asleep on the couch—in the apartment (SA413).

There are no laws or state regulations that govern how a raid must be conducted. There is no state-wide training or licensing of SWAT teams. There is no New York State department overseeing these raids. There is no body of law or code that requires a municipality or police force to institute any particular training or guidelines to make these dangerous raids as safe as they can be. Instead, each of the more than 500 individual police forces across the state is responsible for determining how its police will execute no-knock warrants, and how those police will be trained (Brian A. Reaves. Bur, of Justice Statistics. Census of State and Local Law Enforcement Agencies 2008, at 15 [NCJ 233982. July 2011] [cataloging the more than 500 separate police forces in New York]).

Under these circumstances, claims for common law negligence are practically the only remedy for a no-knock raid gone wrong, and the only way to incentivize police departments to plan and execute their raids with due care. If the “special duty” doctrine is applied to eliminate the possibility of securing any meaningful remedy for innocent victims of such raids, no such incentives will exist.

III. The Negligent Planning of the City in This Case is Exactly the Type of Behavior That Standard Common-Law Tort Liability is Designed to Remedy and Deter

Police raids are dangerous and insufficiently regulated, and the victims—who have no warning, and sometimes not even any connection to the underlying criminal investigation—are in a home, where they should be able to feel safe. These unique factors, and this Court’s precedents, all point towards finding that the City owed Ferreira a duty of care—and show why requiring a special duty would create the wrong incentives, and would be bad public policy.

Finding a duty of care is not a mechanical exercise. Rather, as this Court recently stated:

‘Courts resolve legal duty questions by resort to common concepts of morality, logic and consideration of the social consequences of imposing the duty’ … Said another way, our calculus is such that we assign the responsibility of care to the person or entity that can most effectively fulfill that obligation at the lowest cost

(Davis v S. Nassau Communities Hosy., 26 N.Y.3d 563, 572 [2015] [quoting Tenuto v Lederle Labs., Div of Am. Cyanamid Co., 90 N.Y.2d 606, 612 [1997]). This Court has also balanced multiple other factors, “including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of liability” (Palka v Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 586 [1994]). All of these factors support finding a duty of care here.

The City was in the Best Position to Protect Ferreira

This Court has observed that “the key in [finding a duty] is that the defendant’s relationship with either the tortfeasor or the plaintiff places the defendant in the best position to protect against the risk of harm” (Hamilton v Beretta U.S.A. Corp., 96 N.Y.2d222, 233 [2001], op. after certified question answered, Hamilton v Beretta, et al., 264 F.3d 21 [2d Cir 2001]). In planning and executing a raid, the city is the only party able to protect against the risk of harm: it had ample time to plan the raid and surveil the apartment, to ensure its officers were properly trained, and to implement policies to make raids safer, while everyone in the home was (by design) taken by surprise.

New York courts recognize that municipalities should be liable when they negligently place an officer in a position where they could and did cause significant bodily harm or death. (See, e.g., Gonzalez v City of New York. 133 A.D.3d 65 [1st Dep’t 20151 [finding that the city was liable for negligently failing to train and supervise an officer, and entrusting him with a firearm, prior to a fatal shooting]; Jones v City of Buffalo. 267 A.D.2d 1101 [4th Dep’t 1999]; Wyatt v Stale, 176 A. D.2d 574 [1st Dept 1991] [same].) Further, firearms are dangerous, and New York courts have recognized for over 160 years that people wielding them must exercise the “highest degree of care” (Castle v Duryea, 32 Barb. 480. 483 [NY Gen Term 1860]. affd sub nom. Castle v Duryee, 1 Abb.Dec. 327 [1865]). It follows, then, that when the City plans a raid to be executed by heavily-armed officers—bringing military-style weapons into what can easily escalate into a violent and chaotic environment—it must also exercise a high degree of care in planning that raid, especially because it both created the dangerous situation and is the only party in control of it (Cf. 2 Dan B. Dobbs et al., Torts § 348 [2d ed. 2011] [collecting cases where ordinary negligence standards apply when police action “involve[s] affirmatively dangerous conduct that creates risks to the plaintiff’]).

Ultimately, this would protect both police officers and civilians. If a municipality must compensate people injured as a result of its negligent planning or execution of a raid, it will be more likely to train police to investigate more thoroughly and deploy force more carefully, reducing the chance of negligence (Excessive Force: Qualified Immunity: Seventh Circuit Rules SWAT Raid Based on Perfunctory Investigation Unreasonable, 129 Harv L. Rev 1779, 1784 [2016] [hereinafter “Excessive Force”]).

Finding a Duty of Care Here Will Not Lead to a Proliferation of Claims or Insurer-Like Liability

Confirming that the City has a duty of care here under ordinary tort law will not lead to an avalanche of new lawsuits, the feared “proliferation of claims” (532 Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc.. 96 N.Y.2d 280. 288 [2001]). Nor will it make municipalities liable for widespread injuries suffered by the public at large, a “crushing burden” of limitless liability (See Moch Co. v Rensselaer Water Co., 247 N.Y. 160. 165 [1928]). To protect against unnecessarily expanding tort liability to an unlimited number of incidents or injuries, this Court has only found a duty where “[t]he duty alleged in the complaint relates only to a narrow class of specific and readily identifiable individuals” and “the nexus between the defendant. . . and the plaintiff. . . was not remote or attenuated, and it existed at the time the alleged negligence occurred” (See Landon v Kroll Lab v Specialists, Inc.. 91 A.D.3d 79. 87-88 [2d Dept 2011]. aff’d, 22 N.Y.3d 1 [2013].) These, like the common-law negligence doctrine, are general tort law principles of causation. The “special duty” doctrine is unnecessary to apply them.

The duty proposed here is appropriately narrow. As a result of the City’s negligent planning, Officer Miller “shot Ferreira in the stomach with his assault rifle” (Ferreira, 975 F.3d at 263). Ferreira was directly harmed by the City’s negligence, and the duty he asks this Court to impose is sensible and limited. Simply put, the City had a duty to take reasonable measures to ensure the safety of unarmed occupants of a residence searched pursuant to a no-knock warrant. Any other conclusion would place innocent civilians in mortal danger during no-knock raids with no possibility of recompense. And, because there is an easily identifiable nexus between Ferreira’s injury and the police planning and execution of the raid, finding a duty here would be consistent with this Court’s jurisprudence and would not open the City to endless liability from a vast, unknown group of litigants.

It is Reasonable for the City, Ferreira, and Society Generally, to Expect a Duty of Care Here

It is reasonable for the City, Ferreira, and society at large to expect that the City—through its police officers—will carefully plan dangerous raids into unsuspecting persons’ homes. People expect the law to protect them in their homes. Further, New Yorkers have a right, and expectation, that they will be compensated for injuries caused by the “active negligence” of police (Rodriguez v City of New York, 189 A.D.2d 166, 177-78 [1st Dept 1993]). This Court has ruled that police officers “in employing deadly physical force in an effort to apprehend [a] plaintiff’ have a duty to “exercise that degree of care which would reasonably be required of a police officer under similar circumstances,” and that under New York tort law, that liability extends to the municipality (McCummings v New York City Transit Auth.. 81 N.Y.2d 923, 925 [1993], cert, denied, 510 U.S. 991 [1993] [upholding jury verdict finding municipal defendant liable for common law negligence where plaintiff was injured in the course of arrest]; Meistinsky v City of New York, 309 N.Y. 998 [1956] [upholding possibility of municipal tort liability for negligent actions of police officer using a deadly weapon]; Flamer v City of Yonkers, 309 N.Y. 114 [1955] [same]; Wilkes v City of New York, 308 N.Y. 726 [1954] [same]; see also General Municipal Law § 50–i(1) [providing for municipal liability for “any negligent act or tort” committed by a police officer within the scope of employment]).

Even the Supreme Court expects tort liability to regulate police officers. In Hudson v. Michigan the Court found that suppressing evidence was not necessary because “civil liability is an effective deterrent here” especially since it “exposes municipalities to financial liability” (547 U.S. 586, 598-99 [2006] [Scalia, J.]). Finding a duty of care here would hardly be a surprise; finding no duty would be an aberration.

It is Morally Right to Compensate Innocent Victims Like Ferreira

It is morally right to compensate innocent victims such as Ferreira, and wrong to force an innocent victim to bear all the costs of being hurt by someone else’s mistake. One of the main purposes of tort law is to ensure that innocent victims are compensated when they are injured (Endresz v Friedberg. 24 N.Y.2d 478, 484 [1969] [“A fundamental basis of tort law is the provision for compensation of an innocent plaintiff for the loss he has suffered”]; Theodore Eisenberg & Christoph Engel, Unpacking Negligence Liability: Experimentally Testing the Governance Effect, 13 J. Empirical L. Stud. 116, 117 [2016] [“[E]xposing bystanders to risk is not morally desirable or neutral”]). Ferreira should not have to bear the cost of his injury without compensation when it was the City’s own negligent planning that caused him to be shot and severely injured.

It is also only fair and morally right to require the police to be careful when they invade peoples’ homes. The home is afforded special protection under the law. Thus, if the police negligently invade a home and cause injury, it is sensible and fair to impose municipal liability.

Beyond that, finding no duty of care would erode trust in the police. Last summer, after the deaths of Breonna Taylor and George Floyd, protests erupted across the country, fueled by a legitimate fear that the police would not be held accountable. The New York Attorney General recently noted that “too many New Yorkers no longer trust the police to do their jobs effectively and fairly” (NYS Off. of the Att’y General, Preliminary Report on the New York City Police Department’s Response to Demonstrations Following the Death of George Floyd, at 5 [July 2020]). When a city is found liable and pays restitution in cases where police negligently injure people, this restitution can help “restore trust in law enforcement and, by extension, the law” (Excessive Force at 1785). On the other hand, finding that the City is not liable here would have the opposite effect.

THE “SPECIAL DUTY” DOCTRINE SHOULD BE LIMITED TO CASESWHERE THEMUNICIPALITY FAILS ADEQUATELY TO PROTECT AGAINSTOR RESPOND TOHARMS COMMITTED BY A THIRD PARTY

As a general exception to municipal liability for negligence, the “special duty” doctrine should be limited and strictly construed, and found to be inapplicable here. As the Second Circuit explained:

The special duty requirement “is derived from the principle that a municipality’s duty to provide police protection is ordinarily one owed to the public at large and not to any particular individual or class of individuals,” and that “a municipality’s provision of police protection to its citizenry has long been regarded as a resource- allocation function that is better left to the discretion of the policy makers” (Cuffv v City of New York. 505 N.E.2d 937.940 [1987])

***

Courts have thus applied the special duty rule in cases involved the government’s alleged failure to adequately protect from or respond to injuries inflicted by third parties.

(Op. at 284).

The court went on to highlight the many New York cases applying the “special duty” doctrine to limit liability for a municipality’s failure to protect against or respond to harms committed by third parties (Op. at 286). These rulings, it said,

are consistent with the stated rationale of the special duty rule: where government employees have inflicted the injury, municipal liability is not based on an alleged misallocation of protective resources. While the special duty rule is necessary in the content of third-party-inflicted harm because “a different rule ‘could and would inevitably determine how the limited police resources of the community should be allocated and without predictable limits’”, this concern is absent when the government itself inflicts the injury.

(id. [citations omitted]). It also rejected any notion that the application of the “special duty” doctrine was based on the distinction between “‘misfeasance’ or ‘nonfeasance’” (id.). The “special duty” doctrine, it reasoned, “turns not on whether the government conduct was ‘misfeasance’ or ‘nonfeasance’ but rather on who inflicted the injury” (id.).

The Second Circuit noted, however:

The Court of Appeals has frequently stated in dictum that the special duty requirement applies whenever the municipal defendant acts in a governmental capacity. Read literally, these dicta suggest that the special duty requirement applies regardless of whether the injury was inflicted by a third party or by a governmental actor, so long as the government was acting in a governmental (rather than proprietary) capacity.

****

In addition, in at least one case involving government-inflicted injury, see [Lauer v City of New York, 95 N.Y 2d 95 (2000)], the Court of Appeals has applied the special duty requirement to dismiss the complaint. Thus, we cannot say with certainty that Ferreira’s is the correct reading of New York law.

(Op. at 287). Hence this certification.

As a policy matter, we submit that the Second Circuit’s careful interpretation of this Court’s “special duty” cases should be held to be correct. That interpretation correctly allocates risk, and prevents municipalities from becoming insurers of all third party harms while still promoting the core tort law policies of deterring harm and incentivizing careful behavior.

The Second Circuit noted that the “special duty” doctrine is often articulated in terms of a duty owed to a special class rather than to the public generally:

The core principle is that to “sustain liability against a municipality, the duty breached must be more than that owed to the public generally” (quoting [Valdez v City of New York, 960 N.E.2d 356, 361 (2011)]; [McLean v City of New York, 905 N.E.2d 1167, 1171 (2009)] (“We have long followed the rule that an agency of government is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person in contrast to a general duty owed to the public.” (internal quotation marks omitted))

(Op. at 287). That is consistent with limiting the “special duty” doctrine to third party harms, where there has been a failure by the municipality to respond to or protect against such harm. By requiring a duty to a particular class of people, the doctrine protects against unduly broad liability. But when the municipality itself is the primary tortfeasor, those fears of liability overbreadth cease to be relevant and basic law principles should govern.

Indeed, as the Second Circuit points out, if the City of Binghamton’s interpretation of the “special duty” doctrine were to be adopted by this Court, New York’s century-old abrogation of sovereign immunity would be substantially eviscerated. The consequence of such an outcome shows that Binghamton’s interpretation must be wrong.

The “special duty” doctrine of course applies to more than “no-knock” warrant cases. The facts of this case do demonstrate however, why the “special duty” doctrine should not be applied here. There was no third party involved in causing Ferreira’s harm. Since the jury specifically found no negligence in the execution of the warrant, all of the harm was brought about by the City’s police department in its planning which the jury found inadequate. That is where responsibility should lie.

THE GOVERNMENTAL AND DISCRETIONARY FUNCTIONS EXEMPTIONS SHOULD ALSO NOT BE APPLIED

In an evident admission of the weakness of its “special duty” position, the City encourages this Court to avoid the certified question entirely by holding that the “governmental” or “discretionary” functions doctrine applies. While the Second Circuit did invite this Court “to reformulate or expand upon this question [i.e., the scope of the ‘special duty’ doctrine] as it deems appropriate” (Op. at 291), that was not an invitation to ignore the question entirely. In any event, the City’s position—that the planning for this raid, and the setting of policy as to how raids should be conducted generally, falls within the “governmental” or “discretionary” functions exemption—proves too much.

To hold that the conduct at issue here falls within the “governmental” or “discretionary” function exemption would effectively immunize virtually all conduct by a municipal actor, again abrogating New York’s waiver of sovereign immunity. Indeed, taken to its logical extreme, the City’s interpretation of this doctrine would immunize “discretionary” decisions as minor as a bus driver’s choice to change lanes, causing an accident. That result, of course, would stretch the definition of “discretionary” far beyond its ordinary meaning.

Instead, the purpose of the “governmental” or “discretionary” functions exemption is to limit municipal liability for major policy decisions, not the day-to- day execution of those decisions. Thus, for instance, a policy decision to create a SWAT team that executes no-knock warrants might be discretionary, and even a decision to seek a specific warrant might qualify as an exercise of discretion. But the planning and execution of a warrant by a SWAT team does not involve a discretionary decision; it is merely a routine function of the SWAT unit. The SWAT team does not, itself, make policy; instead, it merely carries out the polices enacted by others. Thus, any negligence in the planning and execution of the warrant should not be protected by the immunity afforded to policymakers for the exercise of their governmental decision-making authority.

Simply put, it strains the English language to characterize on-the-ground decisions made by the police in planning and executing a warrant as “discretionary.” Instead, those decisions are more properly understood as the routine actions of law enforcement. And, whether police officers on the ground acted reasonably under the circumstances, considering all the exigencies, can best be assessed under general principles of tort law, i.e., the common law of negligence. Certainly, a municipality should not escape liability where its negligent planning of a no-knock raid results in the shooting of an innocent bystander. After all, the officers who plan the raid do not have the “discretion” to decide not to take reasonable precautions to ensure the safety of innocent bystanders like Ferreira.

Alternatively, This Court Should Hold There Is A Special Duty in Instances Where Municipal Actors’ Negligence Created a Dangerous Situation that Directly Caused the Harm

In the alternative, if the special duty rule applies, this Court should find that there is a special duty here because of the dangerous situation the officers, and the City, created. This raid is an example of a municipality “assum[ing] positive direction and control in the face of a known, blatant and dangerous safety violation” (McLean v City of New York, 12 N.Y.3d 194, 199 [2009]). This Court has found municipal liability under the special duty rule when a municipal agent had control over “an ‘inherently dangerous’ instrumentality which is in the same class as an explosive substance, inflammable material, a live electric wire or a spring gun” (Smullen v City of New York, 28 N.Y.2d 66, 71 [1971]). In this case, as in Smullen, municipal officials were physically present at the scene, were aware of that inherent danger, and acted positively in assuming direction and control at the accident site (in Smullen, by representing that an area was safe to enter, and in the instant case by affirmatively creating a dangerous situation through their negligent planning). Indeed, here, Ferreira was among a limited class of people for whom the City assumed a duty in executing the “no-knock” warrant.

Conclusion

For the above-stated reasons, we ask this Court to find that the special duty rule does not apply—and therefore that standard tort law does apply—to claims such as Ferreira’s, where the negligence of municipal agents creates a dangerous situation that directly causes injury.

Dated: December 19, 2021

New York, New York

Respectfully Submitted,

Robert RIckNer

Elliot Dolby Shields

Co-Chairs, Civil Rights Committee

New York County Lawyers

Association

7 World Trade Center, 46th Floor

250 Greenwich Street

New York, New York 10007

CERTIFICATION PURSUANT TO RULE 500.13

I hereby certify pursuant to 22 NYCRR § 500.13 that the foregoing amicus brief was prepared on a computer using Microsoft Word.

Type. A proportionally spaced typeface was used, per the following specifications:

Name of Typeface: Times New Roman

Point Size: 14 Point (12 for footnotes)

Line Spacing: Double

Word Count. The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, or regulations is 6,989.

Dated: December 29, 2021

New York, New York

New York County Lawyers Association

7 World Trade Center, 46th Floor

250 Greenwich Street

New York, New York 10007

AFFIDAVIT OF SERVICE

STATE OF NEW YORK )

)

COUNTY OF WESTCHESTER )

Ivan Diaz, being duly sworn, deposes and says that deponent is not a party to the action, is over 18 years of age, and resides at 2160 Holland Avenue, Bronx, New York 10462.

That on the 12th day of January, 2022, deponent served the within:

BRIEF OF AMICUS CURIAE

THE NEW YORK COUNTY LAWYERS ASSOCIATION AND

NATIONAL POLICE ACCOUNTABILITY PROJECT

upon designated counsel for the parties indicated herein at the addresses provided below by depositing 2 true copies thereof enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State.

Robert J. Genis, Esq

Sonin & Genis

Attorney for Plaintiff

One Fordham Plaza, Suite 907

New York, New York 10458

Brian Sokoloff Esq.

Sokoloff Stern, LLP

Attorney for Defendant

179 Westbury Avenue, Suite 201

Carle Place, New York 11514

Sworn to before me this

12th day of January, 2022

ERIC R. LARKE

Notary Public, State of New York

No. 01LA5067236

Qualified in Westchester County

Commission Expires March 5, 2023

17191

Footnotes

1. See, e.g., Cato Report at 47 (“Police broke into the Harlem home of Sara Perez and put a shotgun to her head. They held her children and grandchildren at gunpoint, including one-month-old twins. . . . Perez later learned that the raid was based on faulty information supplied by a 15- year old informant.”); see also id. at 38 (“NYPD officers conducted a botched predawn, no-knock raid on the Coney Island home of Mini Matos and her two children. The three were pulled from their beds early in the morning. Matos, who is deaf and speech-impaired and has asthma, was handcuffed at gunpoint in front of her children, ages eight and five. Police had the wrong apartment.”); id. at 47 (“[A]bout 20 police officers broke down the door of the West Harlem home of Kim Stevenson . . . [and] kept their weapons fixed on her 12-year-old daughter. . . . [Stevenson] was never charged with a crime.”); Brief of Amicus Curiae NY Civil Liberties Union (“NYCLU Amicus”) § III(A), at 16-20.

2. Numerals preceded by “SA” refer to the pages of the supplemental appendix filed with the Reply Brief of Plaintiff-Appellant.

3. Counsel would like to thank law students Maya Ghose and Eva Stevenson for their invaluable work on the brief.

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