Articles Posted in Police Misconduct and Wrongful Imprisonment

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Eddie Fernandez
As I read the recent stories across the county of police officers using excessive force and taking the life of two men; I was reminded of the events of August 12th, 2012 right here in the Bronx.  28 year old, Eddie Fernandez, enjoying a day in his neighborhood was run down by a NYPD Police officer who decided to use his vehicle as a dangerous weapon and take the life of this young man.

Whether it was the shooting death of Alton Sterling in Baton Rouge, Louisiana, or the killing of Philandro Castile in St. Paul, Minnesota, the ongoing debate rages around the country.  When should or can a police officer use a level of force they know will or likely to cause serious injury.   Under the general definition an officer may use deadly force when he or she is threatened with the same force or the perpetrator is acting in a way that causes a likelihood of serious injury to others.

When my firm was retained by Eusebia Ramirez to represent her on behalf of her son, Eddie Fernandez for the unlawful and excessive force used, I immediately hoped that some video would exist that would show what happened that day.  Luckily, video surveillance does exist and the story it tells, rivals those recently shown around the country in the recent shootings.

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It was with great anger that I read the article from the NY Times discussing a South Carolina man who was fatally shot by a police officer after being pulled over for a broken taillight on his vehicle. As Walter Scott the driver was outside the vehicle, a scuffle ensued. Certainly we would expect the officer to use that force necessary. However, due to video captured by a bystander, Mr. Scott is seen running away, when Officer William Slager fires multiple shots at him when he is at least 15-20 feet away. What is captured on video next is terrible.

The officer approaches Mr. Scott see that he has been wounded, handcuffs him, but then walks back to where the vehicle was, picks up his Taser gun and drops it right at the foot of a dying Mr. Scott. This, he hoped, would be his alibi that he feared for his safety and that Mr. Scott had used the Taser on him and fled with it.

Officer Slager is being charged with murder.

The brazen acts of this officer are both shocking and upsetting. It reminded me of the matter in which my firm, Leav & Steinberg, LLP is representing the Estate of Eddie Fernandez who was killed by NYPD Office McClain in August 2012. At that moment, Eddie was riding away on his dirt bike, when officer McClain, who had already used his police vehicle to strike one dirt bike rider, makes a U-turn and crosses into oncoming traffic and strikes the back of Eddie’s dirt bike with his vehicle. Clearly using his vehicle as a deadly weapon. Eddie died as a result of the very serious injuries sustained. A young man, who had taken care of his mother was gone. The distraught family has sought criminal and civil charges against Officer McClain and also Federal Civil Rights violations against the officer and the NYPD.

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Leav & Steinberg, LLP recently took on a new matter involving a dirt bike incident which occurred in the Bronx at the intersection of Randall Avenue and Coster Street on August 11, 2012. A police officer slammed the front of his vehicle into the rear of a dirt bike while in pursuit of the driver, Adalberto Gonzalez, for insignificant charges. The driver was thrown from his bike and onto the sidewalk from the impact. The police vehicle then made a u-turn, accelerated, and slammed into the rear of a second dirt bike. Though the first driver survived with serious injuries, the second, Eddie Fernandez, was fatally injured from the hit. He was pronounced dead at the hospital. NBC covered the incident.

Surveillance video obtained by NBC 4 New York shows an NYPD patrol car slamming into two men on a dirt bike in the Bronx last August, killing the passenger.

The passenger of the dirt bike, Adam Gonzalez, is expected to appear before a judge on Monday to face several charges stemming from the accident. In the meantime, his attorney has filed a […] claim to bring a civil suit to trial, saying Gonzalez has suffered psychologically from the crash.

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In a recent decision in Castilla v. City of New York, by the United States District Court for the Southern District of New York, the court determined that New York City is not liable for a sexual assault allegedly committed by one of its police detectives.

On February 16, 2008, Oscar Sandino and several other New York City police officers entered the plaintiff’s apartment to execute a search warrant as part of a drug investigation of her then-boyfriend. At some point after entering the apartment, Sandino ordered the plaintiff into a bedroom where he forced her to undress while he watched. He made sexual comments to her and only left when a female officer entered the bedroom. A few hours later, Sandino took the plaintiff in his car to the police station, threatening the plaintiff with the removal of her children if she did not have sex with him. At the precinct, Sandino brought the plaintiff into an interrogation room and asked for an answer to his sexual proposition. Then Sandino touched the plaintiff inappropriately and forced her to perform oral sex on him in a bathroom. Over the next few weeks, Sandino repeatedly called and texted the plaintiff to arrange sexual encounters.

Under federal law, any person that acts with the power of the law who deprives a citizen of his or her rights under the Constitution can be held liable. A municipality, like New York City, can be held liable under the same law as a “person.” However, in order to be liable, the plaintiff needed to demonstrate that a New York City police department policy or custom was the reason behind Sandino’s illegal behavior. For example, she needed to show evidence of a formal department policy or based on widespread practice. In addition, she could show that Sandino was an authorized decision-maker, whose actions could essentially create policy. Finally, the plaintiff could present evidence that New York City failed to properly train or supervise its agents rising to the level of deliberate indifference.

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Sustaining an injury, whether it is a slip and fall or a car accident or something else entirely, can be a scary and confusing time. For many people, sustaining a serious injury is among the lowest points in their lives. It can be particularly confusing when someone else is at fault for your injury. While no one wants to think about bringing a lawsuit immediately after an injury occurs, it is in your best interest to prepare as though a lawsuit will occur.

First, you need to make sure that your medical needs are taken care of. It will not do you any good to start any of the other steps if you have not ensured that your medical needs are met. In fact, it may hurt your lawsuit if you neglect your medical needs, as the defendant could argue that your injuries were increased by a failure to seek immediate medical attention.

Evidence

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The doctrine of sovereign immunity dates back quite some time. Essentially, the doctrine states that you cannot sue the government. Fortunately, Congress passed the Federal Tort Claims Act, where the federal government agreed to waive sovereign immunity in certain types of cases, particularly those against federal employees acting within the scope of their employment.

Allowing people to sue the government for torts committed by federal employees is more significant than many people realize. In fact, most people are not aware of the number of times they come in contact with federal government employees or government property. For example, if you share a road with a postal truck, visit a national park or receive treatment at a military hospital, you are being cared for by government personnel or using federal government property. And if you are injured while doing so, the Federal Tort Claims Act allows you to bring a lawsuit against the federal government.

Liability Limits

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Where is there no liability (on the part of the premise owner or operator)? Some facilities require patrons to sign waiver clauses or exculpatory clauses before partaking in the activities they offer. Whether these clauses will apply is fact dependent.

The General Obligations Law section 5-326 explicitly voids certain exculpatory clauses. It specifically names “pools, gymnasiums, places of public amusement or recreation” and also “similar establishments”. Here is the wording of the statute:

“Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”