No discretionary immunity in police shooting case, and a question about "special duty" under state law

This police misconduct action involved a no-knock warrant. The police entered a house looking for someone who had allegedly robbed drug dealers. When they got in the house early in the morning, they saw plaintiff Ferreira, who was an overnight guest. They shot plaintiff in the stomach, claiming he was a threat. As for the shooting, the jury entered a verdict for the officer, Miller, but also said the City of Binghamton was liable for its negligent failure to prepare for the raid, causing plaintiff's injuries. The jury found against the city on this claim, awarding plaintiff $3 million in damages. The trial court took away that verdict, and now the case has been handed off the New York Court of Appeals to decide a tricky state law question.

The case is Ferreira v. City of Binghamton, issued on September 23. When the case ended in the district court, plaintiff's claims were all lost, as the trial court (as noted) overturned the verdict against the city, holding that plaintiff did not show any "special relationship" between him and the city that would have allowed him to proceed against the city under state law. The trial court also said the city was not liable because it had discretionary authority to plan for the botched raid.

On the discretionary immunity argument, the Court of Appeals (Leval, Pooler and Livingston) summarizes the law in this area: this immunity only applies when a public employee is negligent in performing a discretionary as opposed to a ministerial act (which would involve a governing ruling with a compulsory result). That's a fine distinction that allows public employees to do their jobs without fear of a lawsuit. There is no discretionary immunity when a police officer violates acceptable police practice. Under this legal rule, 

The actions of City police officers in planning the raid were discretionary (and not ministerial) in nature because they involved the exercise of judgment, not “direct adherence to a governing rule or standard with a compulsory result. The doctrine of discretionary immunity therefore protects the City unless its officers’ actions “violat[ed] [the City’s] own internal rules and policies,”or “acceptable police practice.”

Under this principle, the jury had a basis to render a verdict against the city on the negligence claim, and the city cannot invoke discretionary immunity. The trial court was wrong to conclude otherwise. The Court of Appeals says "the jury could have reasonably concluded 16 that the City was not only negligent but further violated acceptable police practice by failing to conduct adequate pre-raid surveillance and failing to seek to obtain a floor plan of the residence." Police practice in the city dictated that the police obtain a floor plan to ensure they do not needlessly expose members of the public to any harm. That negligent failure led to plaintiff's injury. Also, the police did not properly surveil their intended target to ensure that he was even in the house at the time of the raid. The failure to properly conduct surveillance left the police unaware of who, if anyone, would be in the house at the time of the raid. 

But there is more. In New York, there is no municipal liability unless the police violate a "special duty" between the police and the victim. To show a special duty,

a plaintiff must show “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.”

The problem is that state law is not clear on this issue when the harm is committed by governmental actors. The classic special duty case arises when the plaintiff is injured by someone else and the government does not intervene. The Second Circuit, after reviewing the state law cases in this area, says that the mid-level appellate rulings on this issue are all over the place, and that "Applying the special duty requirement to cases of government-inflicted injury would appear to extend the rule far beyond its underlying rationale, as articulated by the Court of Appeals, which recognized the need for some limitation because 'the government is not an insurer against harm suffered by its citizenry at the hands of third parties.'” In cases like this, the Second Circuit will send this issue over to the State Court of Appeals to issue a definitive ruling on a state law issue. When that happens, the Second Circuit will take on this case against and resolve the case under the new State Court of Appeals ruling.