CITY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS ACTION STEMMING FROM THE POLICE-KILLING OF AN 18-YEAR-OLD BOY AFTER HIS MOTHER CALLED 911 SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the City defendants’ motion for summary judgment in this negligence, wrongful death and civil-rights-violation action should not have been granted. Plaintiffs’ decedent, 18 years old, was shot and killed by police after his mother called 911. The Second Department noted that Supreme Court properly granted summary judgment to defendants on the cause of action based upon defendants’ alleged failure to follow the Patrol Guide for the apprehension of barricaded and emotionally disturbed persons because the relevant actions were discretionary and thus entitled to governmental immunity:

… [A] municipal defendant cannot be held liable for the negligent acts of its employee police officers where it establishes that the alleged negligent acts involved the exercise of discretionary authority … . Discretionary acts “involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” … . …

… [T]he defendants submitted the deposition testimony of each of the defendant officers who fired at the decedent, as well as the deposition testimony of a nonparty civilian who observed the incident. … [T]he testimonies of these witnesses demonstrate the existence of triable issues of fact as to whether … the decedent posed a threat of imminent death or serious physical injury to the defendant officers or others sufficient to justify the officers’ use of deadly physical force against the decedent … . …  [T]he City may not rely on the defense of governmental immunity because the defendant officers’ actions, if negligent, would be in violation of the Patrol Guide’s prohibition against the use of deadly physical force, and therefore, not discretionary … . …

… [Re: 42 USC 1983] the defendants failed to demonstrate, prima facie, the absence of triable issues of fact as to whether the defendant officers’ use of deadly physical force against the decedent was objectively reasonable under the circumstances … . The defendants further failed to establish, prima facie, the absence of triable issues of fact as to whether a reasonable officer, facing the same situation, could have believed that deadly physical force was necessary to protect himself or herself or others from death or serious physical injury, and that the defendant officers are thus entitled to qualified immunity … . Owens v City of New York, 2020 NY Slip Op 03019, Second Dept 5-27-20