Ferreira v. City of Binghamton, Docket No. 17-3234

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtLEVAL, Circuit Judge
Citation975 F.3d 255
Parties Jesus FERREIRA, Plaintiff-Appellant, v. CITY OF BINGHAMTON, Kevin Miller, Police Officer, Defendants-Appellees, and City of Binghamton Police Department, Joseph Zikuski, as Police Chief of the Binghamton Police Department, John Does 1 Through 10, whose names are fictitious and identities are not currently known, John Spano, Police Sergeant, Larry Hendrickson, Police Sergeant, Robert Burnett, Police Sergeant, Defendants.
Decision Date23 September 2020
Docket NumberDocket No. 17-3234,August Term, 2018

975 F.3d 255

Jesus FERREIRA, Plaintiff-Appellant,
v.
CITY OF BINGHAMTON, Kevin Miller, Police Officer, Defendants-Appellees,
and
City of Binghamton Police Department, Joseph Zikuski, as Police Chief of the Binghamton Police Department, John Does 1 Through 10, whose names are fictitious and identities are not currently known, John Spano, Police Sergeant, Larry Hendrickson, Police Sergeant, Robert Burnett, Police Sergeant, Defendants.

Docket No. 17-3234
August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: January 11, 2019
Decided: September 23, 2020


Alexander J. Wulwick (Robert J. Genis, on the brief), New York, NY, for Plaintiff-Appellant.

Brian S. Sokoloff, Sokoloff Stern LLP, Carle Place, NY, for Defendants-Appellees.

Before: LIVINGSTON, Chief Judge, LEVAL and POOLER, Circuit Judges.

LEVAL, Circuit Judge:

Plaintiff Jesus Ferreira appeals from the judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, J. ) in favor of defendants the City of Binghamton and Binghamton Police Officer Kevin Miller.

975 F.3d 262

Ferreira, while unarmed, was shot in the stomach by Officer Miller in the course of Miller's executing a no-knock search warrant. He brought this action under 42 U.S.C. § 1983 and New York state law. His federal claim alleged that Officer Miller violated his constitutional rights by using excessive force. Under New York state law, he claimed that Miller was negligent, and that the City was liable under respondeat superior for Miller's negligence, as well as for the negligence of the police department in the planning of the raid.

At trial, the jury gave a verdict in Ferreira's favor against the City, finding it liable for the police department's negligence regarding the raid. At the same time, the jury found that Ferreira's own negligence was partially (10%) responsible for his injuries. It awarded him $3 million in damages. On the other hand, the jury gave a verdict in favor of Officer Miller, finding neither negligence nor use of excessive force on his part.

The City moved for judgment as a matter of law (JMOL) to set aside the verdict against it, and Plaintiff moved for JMOL (or alternatively a new trial) seeking to set aside the verdict in favor of Officer Miller. The district court granted the City's motion, setting aside the damage award against it, on the grounds that Ferreira had failed to establish that the City owed him a "special duty," and alternatively because the City enjoyed discretionary immunity. The court denied Plaintiff's post-trial motion to overturn the verdict in favor of Officer Miller. Plaintiff appeals from those rulings.1

We hold that the district court did not err in denying Plaintiff's motions for JMOL or new trial. Regarding the City's motion, we find that Ferreira's evidence was sufficient to support a jury finding that certain failures on the part of the City in planning the raid violated acceptable police practice, so that discretionary immunity did not apply, and that these failures caused Ferreira's injury. On the other hand, we find conflicting guidance from the New York Court of Appeals on the question whether the so-called "special duty" requirement applies only to claims that the government was negligent in response to an ongoing or threatened injury inflicted by a third party, or whether the requirement applies also to claims, such as Ferreira's, that the government itself negligently inflicted injury. Because it is impossible to discern from precedent which of these two competing views is favored by New York's highest court, and because the question is essentially one of state policy rather than law, we certify the question of the scope of the special duty requirement to the New York Court of Appeals.

I. BACKGROUND

A. Factual Background

On August 19, 2011, a confidential informant notified Police Officer James Hawley that Michael Pride had recently robbed local drug dealers, was armed, and was staying at his girlfriend's apartment at 11 Vine Street ("the residence"). Based on the tip, the police obtained a "no-knock" search warrant for the residence, which was signed on the afternoon of August 24, 2011. That evening, Binghamton police officers conducted an hour of surveillance of the residence from about 8:00 p.m. to 9:00 p.m. During that time, officers observed the suspect Pride and another man in front of the residence engaged in "activity consistent with a drug transaction," although they did not see weapons or drugs. (Sometime after the raid the officers determined that no drug transaction in fact took place

975 F.3d 263

at that time.) Pride was last seen by the officers in the Clinton Street area of Binghamton, having left Vine Street and traveled across the East Clinton Street Bridge. No additional surveillance was conducted before the raid the next morning to determine whether Pride had returned to the apartment, and no attempt was made by Hawley, members of the SWAT unit, or others to obtain a blueprint or layout of the residence.

In light of the expectation that Pride would be armed and dangerous, the Police Department ("the Department") activated a SWAT team unit on the evening of August 24 to conduct a "dynamic entry" into the residence the following morning. In a dynamic entry, police force entry and use speed and surprise to secure an area before occupants have time to access weapons or otherwise resist. To force entry, the team planned to use a battering ram to open the front door, and then enter quickly in a tight, single-file "stack" formation. Although the Department owns heavier, two-person battering rams, the SWAT team brought only a lighter, single-person ram for the raid. The team did not bring beanbag guns, tasers, flash bangs, chemical deterrents, or other less-lethal weapons, nor did it bring ballistic shields or pole cameras. Each officer was assigned a particular position in the stack, with specific responsibilities and areas of focus upon entry to the residence. Defendant Miller was assigned the front position – to enter first once the door was breached. This is, of course, the most vulnerable and dangerous position.

In the early morning of August 25, the SWAT team arrived at the residence to execute the search warrant. The light battering ram failed, however, in the initial efforts to breach the door. According to officers on the scene, the ram operator needed as many as ten strikes, over a period of 30 seconds to a minute, to succeed in breaching the door. During that time, the officers yelled through the door to announce police presence. Once the door was eventually breached at approximately 6:37 a.m., Miller entered at the head of the stack. He immediately encountered Plaintiff Ferreira, who had slept as an overnight guest on the living room couch near the front door. Miller, according to his testimony, took two or three steps into the room and, within a couple of seconds and at a distance of three to six feet, shot Ferreira in the stomach with his assault rifle. Multiple other officers testified that the shot rang out "immediately" after the door was breached.

At trial, the parties disputed what were Ferreira's actions during the second or two after Miller's entry. Because the other officers at the scene testified that they did not see Ferreira prior to his being shot, the only testimony on this issue came from Miller and Ferreira, who disagreed in significant part.

According to Miller's testimony, as he entered the room, he saw Ferreira rising from the couch. Miller yelled "down, down, down," but Ferreira walked toward him, disobeying his command. Miller acknowledged that Ferreira did not verbally threaten Miller, or attempt to leave the room or conceal anything. According to Miller, however, Ferreira was holding a gray Xbox controller in his hand, which Miller mistook for a .38 caliber gray snubnosed revolver. As a result, Miller believed that Ferreira posed an immediate danger to himself and the other officers, and shot him.

According to Ferreira's testimony, on the previous night he had watched a movie sitting on the couch and had used the Xbox controller to control the DVD player. He had left the controller on the floor by the couch when he fell asleep. The next morning,

975 F.3d 264

he awoke to the sound of yelling and banging in the hallway. Just before the door flew open, he sat up slightly from the couch, raised his arms above his head, and turned his torso slightly toward the door so that he would not be perceived as a threat. He denied having heard anyone yell "get down" before the shot. "In the same instant" that the door flew open, Miller shot him in the stomach. The officers then flipped him on his stomach on the couch, frisked him, and handcuffed him. Ferreira testified that, while he was handcuffed on his stomach, he heard one of the officers say something to the effect of, "Why did you have that joystick in your hand?" and "Put the joystick in his hand and be quiet." That testimony, if believed, would support an inference that Miller fabricated that Ferreira had been holding the Xbox controller after the fact in order to justify the shooting.

B. The District Court's Ruling ...

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9 practice notes
  • Khan v. Yale University, 21-95-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 4, 2022
    ...We do not ignore these concerns, which are present, to some extent, in any certification. See Ferreira v. City of Binghamton , 975 F.3d 255, 291 (2d Cir. 2020). Nevertheless, we think those concerns are outweighed here by the benefit of obtaining determinative answers from Connecticut's hig......
  • Walker v. City of N.Y., 20-CV-5240 (PKC) (LB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 7, 2021
    ...[any City] employee," his claim against the City under the doctrine of respondeat superior fails. See Ferreira v. City of Binghamton, 975 F.3d 255, 278 (2d Cir. 2020). C. Negligence Plaintiff asserts that the City "was grossly negligent upon setting in place a contractual agreement between,......
  • Ferreira v. City of Binghamton, 2022-01953
    • United States
    • New York Court of Appeals
    • March 22, 2022
    ...premised upon a municipality's negligent "failure to protect the plaintiff from an injury inflicted other than by a municipal employee" (975 F.3d 255, 291 [2d Cir 2020]). Consistent with our precedent and the purpose of the special duty rule, we reiterate that plaintiffs must establish that......
  • Karlyg v. Merino, 20-CV-991 (PKC) (CLP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 15, 2021
    ...care; (2) the defendant breached that duty; and (3) the plaintiff suffered damage as a proximate result.” Ferreira v. City of Binghamton, 975 F.3d 255, 266 (2d Cir. 2020) (quotations omitted). “[U]nder New York law, a plaintiff may not recover under general negligence principles for a claim......
  • Request a trial to view additional results
9 cases
  • Khan v. Yale University, 21-95-cv
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 4, 2022
    ...We do not ignore these concerns, which are present, to some extent, in any certification. See Ferreira v. City of Binghamton , 975 F.3d 255, 291 (2d Cir. 2020). Nevertheless, we think those concerns are outweighed here by the benefit of obtaining determinative answers from Connecticut's hig......
  • Walker v. City of N.Y., 20-CV-5240 (PKC) (LB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 7, 2021
    ...[any City] employee," his claim against the City under the doctrine of respondeat superior fails. See Ferreira v. City of Binghamton, 975 F.3d 255, 278 (2d Cir. 2020). C. Negligence Plaintiff asserts that the City "was grossly negligent upon setting in place a contractual agreement between,......
  • Ferreira v. City of Binghamton, 2022-01953
    • United States
    • New York Court of Appeals
    • March 22, 2022
    ...premised upon a municipality's negligent "failure to protect the plaintiff from an injury inflicted other than by a municipal employee" (975 F.3d 255, 291 [2d Cir 2020]). Consistent with our precedent and the purpose of the special duty rule, we reiterate that plaintiffs must establish that......
  • Karlyg v. Merino, 20-CV-991 (PKC) (CLP)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 15, 2021
    ...care; (2) the defendant breached that duty; and (3) the plaintiff suffered damage as a proximate result.” Ferreira v. City of Binghamton, 975 F.3d 255, 266 (2d Cir. 2020) (quotations omitted). “[U]nder New York law, a plaintiff may not recover under general negligence principles for a claim......
  • Request a trial to view additional results

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