A Federal Judge has ruled the city cannot be held liable in a lawsuit involving an off-duty Police Officer who allegedly drew his weapon and threatened to kill two people who intervened in what they thought was a domestic dispute involving the officer.
U.S. District Judge Lewis A. Kaplan agreed March 31 with the city’s contention that Daniel V. was not acting “under color of law” when the incident occurred March 7, 2009.
Bottle Thrown as Distraction
According to legal papers, plaintiffs Clark Stoeckley and Jason Nicholas were sitting near a New York University dormitory at 2 a.m. when they saw Mr. V. confronting a woman. Fearing for her well-being, they said, one threw a bottle into the middle of 13th St. to “distract” Mr. V.
He confronted the two and asked who had thrown the bottle and, when Mr. Nicholas admitted he threw it, “removed a firearm from his waistband, pointed the weapon at Stoeckley and Nicholas and threatened to kill them,” according to the lawsuit.
The woman with Mr. V. persuaded him to walk away. “But he turned, came back to Stoeckley and Nicholas and, before finally leaving the scene, told them he would be ‘coming back to kill each of’ them,” the court papers say.
After the incident, Officer V. was relieved of his firearm, placed on modified duty and investigated by the Internal Affairs Bureau. He eventually forfeited 10 vacation days and was returned to full duty, according to the Police Department.
Among other things, the lawsuit contended that the city was negligent in hiring Mr. V. and that city policies and practices caused him to act as he did.
Judge Kaplan ruled that Mr. V. was not acting as a Police Officer at the time of the incident—that he was not in uniform, did not show a badge and did not identify himself as an officer. He said the papers failed to show any evidence that his alleged actions were caused by city policies.
The Judge also found that the claim was not made within 90 days of the incident, as required by law. The notice of claim was served on the city on March 19, 2010, nine months late, the Judge said.
“We don’t believe the decision is correct,” Wylie M. Stecklow, attorney for the plaintiffs, said in an interview. He added he had new depositions and other evidence he had wanted Judge Kaplan to examine, but the judge made his ruling without reviewing them. “We’re exploring all avenues” for reversing the decision and restoring the city as a defendant, he said.
Judge Kaplan said in his ruling that the case “was a product of bad judgment”—by Mr. Stoeckley and Mr. Nicholas as well as by Mr. V.
Contradicts the decision of the off-duty PO and FF on the parade float in Queens that were fired, who did far less than menace people at gun-point and threaten to return and kill them.Judge Kaplan ruled that Mr. V. was not acting as a Police
Officer at the time of the incident—that he was not in uniform, did not
show a badge and did not identify himself as an officer. He said the
papers failed to show any evidence that his alleged actions were caused
by city policies.