High Court Sides With NYPD in 2005 Shootout

Shooting injured mother, daughter playing nearby sight of fracas

By Michael Gormley
|  Tuesday, Nov 23, 2010  |  Updated 1:15 PM EDT
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High Court Sides With NYPD in 2005 Shootout

New York City police officers were justified in shooting at an armed suspect on a Harlem street in 2005, a shootout that injured a mother and daughter playing nearby, New York's highest court ruled Tuesday.

The officers had probable cause to open fire on the armed man, because he had shot at them, the court said in a 4-3 decision that threw out a negligence lawsuit filed by the woman. The suspect died in the shootout.

"It is uncontroverted that all of the officers who fired at the suspect did so when they had a clear view of him, and all testified that they did not see any bystanders in the area while firing," Judge Eugene Pigott Jr. wrote in the majority opinion.

The victims' attorney Barry Gutterman claimed — and photos supported — that at least eight innocent people were nearby during the shooting. Two of the officers acknowledged not looking to see if there were any people around, at least until afterward.

Harlem resident Tammy Johnson, her 18-month-old daughter, another couple and their child were playing ball outside with on the sidewalk in May 2005 with when police chased the suspect onto the street and opened fire.

Johnson's elbow was shattered by a police bullet as she lay atop her daughter behind an SUV, one of two vehicles parked between her and the suspect, according to her attorney. She is facing a second elbow reconstruction surgery.

Judge Theodore Jones Jr., who wrote a dissent, said city rules state that officers should not discharge their weapons "when doing so will unnecessarily endanger innocent persons."

"While I acknowledge the difficulties faced by police officers ... I find it troubling that some of the officers in this incident failed to observe the surrounding area prior to firing their weapons," Jones wrote.

He said where "there is evidence that police officers failed to look for innocent persons before firing their weapons, it does not seem possible to conclude as a matter of law that the necessary judgment was exercised and ... that there was no violation of the guideline against unnecessarily endangering innocent persons."

The city is generally immune from liability for conduct involving police who follow policy with proper discretion and reasoned judgment.

Johnson's lawsuit had accused the police of negligence. A lower court judge said a trial should be held to determine whether the officers had followed the police guidelines, but a divided midlevel court dismissed the lawsuit. The high court upheld the dismissal.

Last year, city officials reached a $6 million settlement with Wilson Ramos, a bystander shot in the forehead during a police gunfight with a robbery suspect in the Bronx in 2000. The suspect had stabbed a man, hijacked a city bus and taken a woman hostage to use as a human shield, authorities said.

Ramos lost the use of one leg and both arms, among other injuries, and has spent years in hospitals and rehabilitation facilities, said his lawyer, William Cooper.

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