Ferreira v. City of Binghamton

975 F.3d 255

• Court: Court of Appeals for the Second Circuit
• Decided: September 23, 2020
• Docket: 17-3234-cv
• Status: Published

Opinion

17-3234-cv Ferreira v. City of Binghamton

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2018 5 6 (Argued: January 11, 2019 Decided: September 23, 2020) 7 8 Docket No. 17-3234 9 10 11 _____________________________________ 12 13 JESUS FERREIRA, 14 15 Plaintiff-Appellant, 16 17 v. 18 19 CITY OF BINGHAMTON, KEVIN MILLER, Police Officer, 20 21 Defendants-Appellees, 22 23 and 24 25 CITY OF BINGHAMTON POLICE DEPARTMENT, JOSEPH ZIKUSKI, as 26 Police Chief of the Binghamton Police Department, JOHN DOES 1 Through 27 10, whose names are fictitious and identities are not currently known, JOHN 28 SPANO, Police Sergeant, LARRY HENDRICKSON, Police Sergeant, ROBERT 29 BURNETT, Police Sergeant, 30 31 Defendants. 32 _____________________________________ 33 34 Before: 35 36 LIVINGSTON, Chief Judge, LEVAL and POOLER, Circuit Judges. 37 38 Plaintiff Jesus Ferreira, who was shot in the stomach by City of 39 Binghamton Police Officer Kevin Miller in the course of Miller’s executing a 1 no-knock search warrant, appeals from the judgment of the United States 2 District Court for the Northern District of New York (Thomas J. McAvoy, J.). 3 Plaintiff alleged he was the victim of negligence on the part of both Miller and 4 other police personnel involved in the planning of the raid. Following a jury 5 verdict in Plaintiff’s favor finding negligence against the City of Binghamton, 6 awarding Plaintiff $3 million in damages, but a verdict in favor of Officer 7 Miller, denying Plaintiff’s claim that the officer was negligent, the City moved 8 for judgment as a matter of law to set aside the jury verdict against it, and 9 Plaintiff moved for judgment as a matter of law to set aside the jury verdict in 10 favor of Miller. The district court granted the City’s motion, setting aside the 11 damage award against it, and denied Plaintiff’s post-trial motion to overturn 12 the verdict in favor of the police officer. Held, there was no error in the 13 district court’s denial of Plaintiff’s motion to overturn the jury verdict in favor 14 of Officer Miller. As to the City’s motion, we conclude that the district court 15 erred in granting judgment as a matter of law on the basis of New York’s bar 16 on claims for “negligent investigation,” because that rule does not apply to 17 Plaintiff’s claim. We further conclude that Plaintiff’s evidence was sufficient 18 to support a jury finding that the City, through its employees, violated 19 acceptable police practice, so that discretionary immunity did not apply, and 20 that those violations caused his injury. On the other hand, we find conflicting 21 guidance from the New York Court of Appeals as to whether the district 22 court correctly held that Ferreira’s claim was barred by New York’s “special 23 duty” rule. Because we cannot reach a confident conclusion how the highest 24 court of New York would rule on the scope of the special duty rule, and 25 because the issue is essentially a question of state policy, we CERTIFY a 26 question to the New York Court of Appeals. 27 28 ALEXANDER J. WULWICK (Robert J. 29 Genis, on the brief), New York, NY, for 30 Plaintiff-Appellant. 31 32 BRIAN S. SOKOLOFF, Sokoloff Stern LLP, 33 Carle Place, NY, for Defendants-Appellees. 34 35 LEVAL, Circuit Judge:

36 Plaintiff Jesus Ferreira appeals from the judgment of the United States

37 District Court for the Northern District of New York (Thomas J. McAvoy, J.)

38 in favor of defendants the City of Binghamton and Binghamton Police Officer

2 1 Kevin Miller. Ferreira, while unarmed, was shot in the stomach by Officer

2 Miller in the course of Miller’s executing a no-knock search warrant. He

3 brought this action under 42 U.S.C. § 1983 and New York state law. His

4 federal claim alleged that Officer Miller violated his constitutional rights by

5 using excessive force. Under New York state law, he claimed that Miller was

6 negligent, and that the City was liable under respondeat superior for Miller’s

7 negligence, as well as for the negligence of the police department in the

8 planning of the raid.

9 At trial, the jury gave a verdict in Ferreira’s favor against the City,

10 finding it liable for the police department’s negligence regarding the raid. At

11 the same time, the jury found that Ferreira’s own negligence was partially

12 (10%) responsible for his injuries. It awarded him $3 million in damages. On

13 the other hand, the jury gave a verdict in favor of Officer Miller, finding

14 neither negligence nor use of excessive force on his part.

15 The City moved for judgment as a matter of law (JMOL) to set aside the

16 verdict against it, and Plaintiff moved for JMOL (or alternatively a new trial)

17 seeking to set aside the verdict in favor of Officer Miller. The district court

18 granted the City’s motion, setting aside the damage award against it, on the

3 1 grounds that Ferreira had failed to establish that the City owed him a ”special

2 duty,” and alternatively because the City enjoyed discretionary immunity.

3 The court denied Plaintiff’s post-trial motion to overturn the verdict in favor

4 of Officer Miller. Plaintiff appeals from those rulings. 1

5 We hold that the district court did not err in denying Plaintiff’s motions

6 for JMOL or new trial. Regarding the City’s motion, we find that Ferreira’s

7 evidence was sufficient to support a jury finding that certain failures on the

8 part of the City in planning the raid violated acceptable police practice, so

9 that discretionary immunity did not apply, and that these failures caused

10 Ferreira’s injury. On the other hand, we find conflicting guidance from the

11 New York Court of Appeals on the question whether the so-called “special

12 duty” requirement applies only to claims that the government was negligent

13 in response to an ongoing or threatened injury inflicted by a third party, or

14 whether the requirement applies also to claims, such as Ferreira’s, that the

15 government itself negligently inflicted injury. Because it is impossible to

16 discern from precedent which of these two competing views is favored by

17 New York’s highest court, and because the question is essentially one of state

1Plaintiff does not appeal with respect to the denial of his federal claim of excessive force. 4 1 policy rather than law, we certify the question of the scope of the special duty

2 requirement to the New York Court of Appeals.

3 I. BACKGROUND

4 A. Factual Background

5 On August 19, 2011, a confidential informant notified Police Officer

6 James Hawley that Michael Pride had recently robbed local drug dealers, was

7 armed, and was staying at his girlfriend’s apartment at 11 Vine Street (“the

8 residence”). Based on the tip, the police obtained a “no-knock” search warrant

9 for the residence, which was signed on the afternoon of August 24, 2011. That

10 evening, Binghamton police officers conducted an hour of surveillance of the

11 residence from about 8:00 p.m. to 9:00 p.m. During that time, officers

12 observed the suspect Pride and another man in front of the residence engaged

13 in “activity consistent with a drug transaction,” although they did not see

14 weapons or drugs. (Sometime after the raid the officers determined that no

15 drug transaction in fact took place at that time.) Pride was last seen by the

16 officers in the Clinton Street area of Binghamton, having left Vine Street and

17 traveled across the East Clinton Street Bridge. No additional surveillance was

18 conducted before the raid the next morning to determine whether Pride had

5 1 returned to the apartment, and no attempt was made by Hawley, members of

2 the SWAT unit, or others to obtain a blueprint or layout of the residence.

3 In light of the expectation that Pride would be armed and dangerous,

4 the Police Department (“the Department”) activated a SWAT team unit on the

5 evening of August 24 to conduct a “dynamic entry” into the residence the

6 following morning. In a dynamic entry, police force entry and use speed and

7 surprise to secure an area before occupants have time to access weapons or

8 otherwise resist. To force entry, the team planned to use a battering ram to

9 open the front door, and then enter quickly in a tight, single-file “stack”

10 formation. Although the Department owns heavier, two-person battering

11 rams, the SWAT team brought only a lighter, single-person ram for the raid.

12 The team did not bring beanbag guns, tasers, flash bangs, chemical deterrents,

13 or other less-lethal weapons, nor did it bring ballistic shields or pole cameras.

14 Each officer was assigned a particular position in the stack, with specific

15 responsibilities and areas of focus upon entry to the residence. Defendant

16 Miller was assigned the front position – to enter first once the door was

17 breached. This is, of course, the most vulnerable and dangerous position.

6 1 In the early morning of August 25, the SWAT team arrived at the

2 residence to execute the search warrant. The light battering ram failed,

3 however, in the initial efforts to breach the door. According to officers on the

4 scene, the ram operator needed as many as ten strikes, over a period of 30

5 seconds to a minute, to succeed in breaching the door. During that time, the

6 officers yelled through the door to announce police presence. Once the door

7 was eventually breached at approximately 6:37 a.m., Miller entered at the

8 head of the stack. He immediately encountered Plaintiff Ferreira, who had

9 slept as an overnight guest on the living room couch near the front door.

10 Miller, according to his testimony, took two or three steps into the room and,

11 within a couple of seconds and at a distance of three to six feet, shot Ferreira

12 in the stomach with his assault rifle. Multiple other officers testified that the

13 shot rang out “immediately” after the door was breached.

14 At trial, the parties disputed what were Ferreira’s actions during the

15 second or two after Miller’s entry. Because the other officers at the scene

16 testified that they did not see Ferreira prior to his being shot, the only

17 testimony on this issue came from Miller and Ferreira, who disagreed in

18 significant part.

7 1 According to Miller’s testimony, as he entered the room, he saw

2 Ferreira rising from the couch. Miller yelled “down, down, down,” but

3 Ferreira walked toward him, disobeying his command. Miller acknowledged

4 that Ferreira did not verbally threaten Miller, or attempt to leave the room or

5 conceal anything. According to Miller, however, Ferreira was holding a gray

6 Xbox controller in his hand, which Miller mistook for a .38 caliber gray snub-

7 nosed revolver. As a result, Miller believed that Ferreira posed an immediate

8 danger to himself and the other officers, and shot him.

9 According to Ferreira’s testimony, on the previous night he had

10 watched a movie sitting on the couch and had used the Xbox controller to

11 control the DVD player. He had left the controller on the floor by the couch

12 when he fell asleep. The next morning, he awoke to the sound of yelling and

13 banging in the hallway. Just before the door flew open, he sat up slightly from

14 the couch, raised his arms above his head, and turned his torso slightly

15 toward the door so that he would not be perceived as a threat. He denied

16 having heard anyone yell “get down” before the shot. “In the same instant”

17 that the door flew open, Miller shot him in the stomach. The officers then

18 flipped him on his stomach on the couch, frisked him, and handcuffed him.

8 1 Ferreira testified that, while he was handcuffed on his stomach, he heard one

2 of the officers say something to the effect of, “Why did you have that joystick

3 in your hand?” and “Put the joystick in his hand and be quiet.” That

4 testimony, if believed, would support an inference that Miller fabricated that

5 Ferreira had been holding the Xbox controller after the fact in order to justify

6 the shooting.

7 B. The District Court’s Ruling

8 The court instructed the jury that it could find the City liable for

9 negligence either on the basis of negligence on the part of Miller in shooting

10 Ferreira or on the basis of negligence of the other police officers in their

11 preparation for the entry. The jury found negligence on the part of the City

12 (partially offset by a finding of 10% comparative fault on Ferreira’s part). It

13 rendered an award of $3 million against the City. But it found no negligence

14 on the part of Officer Miller and rendered a verdict in his favor.

15 In granting JMOL in favor of the City, the district court concluded that

16 New York state law requires a plaintiff to demonstrate the existence of a

17 “special relationship” in order to sustain the duty element of a negligence

18 claim against a municipality, and that Ferreira had failed to adduce evidence

9 1 supporting such a relationship. Ferreira v. City of Binghamton, No. 3:13-CV-107,

2 2017 WL 4286626, at *5–6 (N.D.N.Y. Sept. 27, 2017). The court noted that

3 Plaintiff was not the subject of the no-knock warrant, no evidence indicated

4 that he ever had direct contact with the Binghamton Police or any municipal

5 official, and no evidence indicated the City took on any particular duty

6 toward him. The court reasoned that, because no special relationship existed,

7 the City owed Ferreira no particular duty, and therefore his negligence claim

8 against the municipality failed as a matter of law.

9 In a footnote, the court further concluded that (1) even if a special

10 relationship existed, the City enjoyed discretionary immunity as to Miller’s

11 actions, and (2) insofar as the City’s liability was predicated on a theory that it

12 had been negligent in planning the raid, such a theory was foreclosed under

13 New York state law. Id. at *6 n.3. The court noted that discretionary immunity

14 does not apply in “situations where the employee, a police officer, violates

15 acceptable police practice.” Id. (quoting Lubecki v. City of New York, 758

16 N.Y.S.2d 610, 617 (App. Div. 2003)). However, because the jury found that

17 Miller had neither been negligent or nor used excessive force, the court

18 reasoned that his actions could not be said to violate acceptable police

10 1 practice, so that discretionary immunity protected the City with regard to

2 those claims. The district court also concluded that Ferreira’s claim of

3 negligent planning, in addition to failing for lack of a special relationship, was

4 foreclosed under New York state law as an impermissible claim for

5 “negligent investigation.” Id. (quoting Ellsworth v. City of Gloversville, 703

6 N.Y.S.2d 294, 297 (App. Div. 2000)). 2

7 In denying Ferreira’s motions for JMOL or new trial as to Miller, 3 the

8 court reasoned that Miller entered the residence with reason to believe he

9 would encounter a dangerous person, and the jury could have reasonably

10 accepted Miller’s testimony that he believed as he entered that he was in fact

11 menaced by an armed and dangerous person. Id. at *5. The SWAT team had

12 been informed, based on the tip from the informant, that Pride may have had

13 a weapon. A jury could reasonably credit Miller’s testimony that he saw

14 Ferreira advancing on him with a device in his hand that appeared to be a

2The court did not address Defendants’ argument that the verdict against the City was inconsistent with the jury’s finding that Miller was not negligent because the City’s liability was based on a theory of respondeat superior. Defendants raise that argument on appeal, and we address it below.

3Ferreira appeals this decision only as to his negligence claim, and not as to the battery and excessive force claims. 11 1 gun, and discredit Ferreira’s testimony to the contrary. Although Miller’s

2 belief that he had encountered a dangerous person appears to have been

3 mistaken, the court ruled that, given the dangerous circumstances, the

4 mistake and resultant shooting do not “indicate that he violated the standard

5 of care in a manner in which no reasonable juror could fail to assign him

6 liability.” Id. The court further concluded that even if Miller was negligent,

7 discretionary immunity would protect him from liability because his actions

8 did not violate acceptable police practice and were therefore protected by

9 discretionary immunity. Id. at *5 n.1 (citing Rodriguez v. City of New York, 595

10 N.Y.S.2d 421, 428 (App. Div. 1993)).

11 Similarly, in denying Ferreira’s motion for a new trial, the district court

12 determined that the jury must have credited Miller’s testimony as to the

13 moments just before the shooting and rejected Ferreira’s. It ruled that such a

14 finding was neither “seriously erroneous” nor a “miscarriage of justice” in

15 light of the evidence presented at trial. Id. at *5.

16 II. DISCUSSION

17 We review de novo the district court’s ruling on the parties’ motions for

18 judgment as a matter of law, “applying the same standards as the district

12 1 court to determine whether judgment as a matter of law was appropriate.”

2 Izzarelli v. R.J. Reynolds Tobacco Co., 731 F.3d 164, 167 (2d Cir. 2013) (quoting

3 Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 120 (2d Cir. 1998)). We

4 review for abuse of discretion the district court’s ruling on motions for new

5 trial, Dailey v. Societe Generale, 108 F.3d 451, 458 (2d Cir. 1997), with the

6 exception that the denial of a motion for new trial made on the ground that the

7 verdict was against the weight of the evidence is not reviewable on appeal,

8 Rasanen v. Doe, 723 F.3d 325, 330 (2d Cir. 2013).

9 A. Ferreira’s Motion for New Trial on the Negligence Claim Against 10 Miller and the Finding of Comparative Negligence

11 Ferreira asks us to review the district court’s decision to deny his

12 motion for a new trial as to the negligence claim against Miller. He argues

13 that the jury verdict in that regard was against the weight of evidence. Under

14 this Circuit’s case law, the denial of a new trial on the ground that the verdict

15 was not against the weight of the evidence is not subject to appellate review.

16 In Stonewall Insurance Co. v. Asbestos Claims Management Corp., we held that

17 appellate review of a district court’s decision as to whether a jury verdict was

18 against the weight of evidence “is warranted in the rare case where a trial

19 judge rejects a jury’s verdict as against the weight of the evidence . . . but is

13 1 not warranted in the far more frequent circumstance where a trial judge

2 denies a ‘weight of the evidence’ challenge and leaves in place a jury verdict

3 supported by legally sufficient evidence. In the latter circumstance, the loser’s

4 only appellate recourse is to challenge the legal sufficiency of the evidence.

5 The loser is also entitled to argue to the trial judge that the verdict is against

6 the weight of the evidence and to obtain a new trial if the judge can be

7 persuaded, but the denial of that challenge is one of those few rulings that is

8 simply unavailable for appellate review.” Stonewall Ins. Co. v. Asbestos Claims

9 Mgmt. Corp., 73 F.3d 1178, 1199 (2d Cir. 1995), modified on other grounds, 85

10 F.3d 49 (2d Cir. 1996); see also Rasanen, 723 F.3d at 330.

11 Among Ferreira’s arguments on this appeal is that he is entitled to a

12 new trial against Miller because the jury’s verdict was “a miscarriage of

13 justice and against the weight of evidence.” The term “miscarriage of justice”

14 is a part of the standard for a determination of whether a verdict is “against

15 the weight of evidence”—not a separate ground for granting a new trial

16 under Rule 59. Farrior v. Waterford Bd. of Educ., 277 F.3d 633, 635 (2d Cir. 2002).

17 Because the denial of such a motion is not subject to appellate review,

18 Ferreira’s contention on appeal fails.

14 1 B. Judgment as a Matter of Law on the Negligence Claim Against 2 Miller

3 Ferreira also appeals the denial of his motion for JMOL against Miller

4 on the negligence claim. Although he points to some compelling evidence,

5 that evidence is not so “overwhelming” as to compel a reasonable jury to find

6 negligence. See SEC v. Ginder, 752 F.3d 569, 574 (2d Cir. 2014).

7 To show negligence under New York state law, a plaintiff must

8 demonstrate “(1) the defendant owed the plaintiff a cognizable duty of care;

9 (2) the defendant breached that duty; and (3) the plaintiff suffered damage as

10 a proximate result.” Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116

11 (2d Cir. 2006) (quoting Stagl v. Delta Airlines, Inc., 52 F.3d 463, 467 (2d Cir.

12 1995)).

13 Ferreira’s argument essentially relies on three factors. 4 First, he points

14 out that Miller’s version of events was not corroborated by the police incident

15 report, other officers’ testimony, or expert forensic evidence, and contends

16 that it could not have been credited by a reasonable jury. Second, Ferreira

17 insists that the Xbox controller objectively does not resemble a gun, so that

4To the extent that Ferreira relies on evidence not specifically discussed in this section, the court finds that evidence unpersuasive. 15 1 Miller could not have credibly mistaken it for a gun (or that such a mistake

2 would have been objectively negligent). Third, he asserts that even if Miller’s

3 testimony were credited, and even if the controller were reasonably mistaken

4 for a gun, the circumstances were still such that Ferreira did not reasonably

5 pose a threat to the officers and the shooting was negligent.

6 As to the first argument, Ferreira points to the fact that the police

7 incident record prepared the next day by Police Officer Hawley did not say

8 that Ferreira was standing or advancing toward Miller, disobeying Miller’s

9 commands, or holding an Xbox controller. Hawley testified that he would

10 have included such information in the report had he known it, because it

11 would have been “very important.” Miller also had a strong incentive to

12 record any facts that tended to justify the shooting. Miller’s failure to

13 contemporaneously record his asserted justifications for the shooting in the

14 incident report or elsewhere argues strongly, Ferreira contends, that they

15 were subsequently fabricated.

16 In support of this argument, Ferreira cites to this court’s opinion in

17 Manhattan by Sail, Inc. v. Tagle, 873 F.3d 177 (2d Cir. 2017) for the proposition

18 that negligence must be inferred as a matter of law from the failure of the

16 1 incident report to state a non-negligent reason for Miller’s actions. That,

2 however, does not accurately describe the Tagle ruling. In Tagle, the plaintiff, a

3 sightseeing passenger on a sailing vessel, brought a negligence suit against

4 the operator of the vessel after a deckhand lost control of a weighted halyard,

5 which swung free and struck her in the head. We held that the deckhand’s

6 failure, despite knowing instantly that a passenger had been injured when he

7 lost control of the halyard, to provide any explanation to rebut the inference

8 of his negligence, together with the failure of the defendant to offer any

9 evidence of justification for the accident, entitled the plaintiff to judgment as a

10 matter of law.

11 Tagle, however, did not rule that negligence was established as a matter

12 of law merely because the incident report did not state a non-negligent reason

13 for defendants’ actions. To the contrary, we explicitly recognized that the

14 defendants might have provided evidence other than the incident report

15 sufficient to rebut negligence, but failed to do so. Id. at 181–82. In any case,

16 Tagle does not apply in the manner Ferreira suggests. In Tagle, all of the

17 evidence presented at trial supported negligence. None of the evidence

18 supported absence of negligence. The seaman in Tagle did not testify to the

17 1 occurrence of any circumstance that justified his loss of control of the halyard.

2 Here, in contrast, Miller’s testimony, if believed, rebutted his negligence. This

3 case would more closely resemble Tagle if Miller had not testified that Ferreira

4 rose and came toward him holding the Xbox controller, but had testified

5 instead that a person in Ferreira’s position might have done so. And while

6 Ferreira makes strong arguments that a factfinder had good reasons not to

7 credit Miller’s self-serving testimony, the reasons for doubting his veracity are

8 not so strong as to make his testimony not credible as a matter of law.

9 Ferreira also cites a range of forensic evidence to argue that, contrary to

10 Miller’s version of events, he was lying on the couch when shot, and that the

11 shooting was therefore negligent. He points to the conclusion of Plaintiff’s

12 expert Scott LaPoint that, based on the bullet trajectory, Ferreira could not

13 have been standing when shot. He also claims that the testimony of

14 Defendants’ expert James Terzian supports this conclusion, because Terzian

15 acknowledged that the existence of multiple bullet holes in Ferreira’s shirt

16 suggested that he was lying down with the shirt bunched up when he was

17 shot. However, as Defendants point out, Terzian concluded based on “the

18 trajectory of the wound” that Ferreira “was standing up or at least partly

18 1 standing up when he was shot and facing the shooter”; he further explained

2 that the bullet trajectory could have changed after striking a rib. The district

3 court noted this conflicting testimony in its opinion. A jury could have

4 reasonably credited Defendants’ expert, Terzian, and discredited inconsistent

5 testimony from LaPoint. In other words, Defendants provided expert

6 testimony that tended to corroborate Miller’s version of events and

7 undermined inconsistent testimony from Plaintiff’s expert.

8 Ferreira further emphasizes that none of the other officers at the scene

9 corroborated Miller’s testimony regarding Ferreira’s actions in those initial

10 one or two seconds prior to the shooting, and argues that the absence of such

11 corroboration establishes as a matter of law that Miller’s testimony was false.

12 However, given that the officers were positioned behind each other in stack

13 formation and wearing bulky gear, and that the shooting took place so

14 quickly upon entry, a jury could have reasonably concluded that other

15 officers did not see Ferreira prior to the shooting, so that their silence on the

16 issue shows nothing that favors either side.

17 Ferreira further argues that, to credit Miller’s testimony that Ferreira

18 disobeyed Miller’s commands and advanced toward the officers, the jury

19 1 would have had to believe that he was “suicidal” and “had a death wish,”

2 and that it would be unreasonable for them to do so. The argument is not

3 unreasonable, but it is not so strong as to compel disbelief of Miller. In the

4 frightening circumstance where one is awakened from sleep by the beating

5 down of the door, one does not necessarily behave in the most logical, best

6 considered fashion. Ferreira’s behavior, as described in Miller’s version, was

7 not so improbable that a jury could not reasonably have believed Miller’s

8 testimony.

9 Next, Ferreira argues that the Xbox controller looks sufficiently unlike a

10 gun that either Miller’s testimony should have been discredited, or, if

11 believed, showed that Miller was negligent in mistaking it for a gun. We

12 accept that some objects may be so dissimilar from a gun that, as a matter of

13 law, they could not under the circumstances of this case have been reasonably

14 or credibly mistaken for a gun. However, we do not find this argument

15 persuasive with respect to the white-gray Xbox controller. Given Miller’s

16 exposure to danger of gunfire when he led the stack into the premises

17 believed to be occupied by an armed and dangerous criminal, after at least 30

18 seconds of unsuccessful efforts to knock down the door, it is not inherently

20 1 improbable that he would mistake the Xbox device for a gun. Because of the

2 botched entry, the team had lost the element of surprise, and could have

3 expected those inside to be on alert and ready to shoot. A jury could have

4 reasonably concluded that, upon encountering Ferreira under these

5 frightening circumstances, Miller might credibly have believed the white-

6 gray, handheld device was a gun. His claim of misidentification is not per se

7 incredible, nor does it establish as a matter of law that Miller failed to exercise

8 reasonable care under the circumstances.

9 Finally, Ferreira argues that, even if Miller’s testimony were reasonably

10 credited, Miller’s negligence was established under Miller’s version of the

11 events. He relies on the undisputed facts that he did not verbally threaten

12 Miller, attempt to leave the room, or conceal himself. His argument fails. If

13 the jury believed that Ferreira was advancing on Miller, disobeying Miller’s

14 commands to get down, and holding what Miller believed was a gun, the jury

15 could reasonably conclude that Miller was not negligent in believing himself

16 threatened and shooting Ferreira.

17 While Ferreira advanced reasonable arguments to the jury which might

18 well have persuaded them to believe his version of the events and find Miller

21 1 negligent, his arguments, whether assessed one-by-one or in aggregate, are

2 not sufficient to establish either that Miller’s testimony was incredible as a

3 matter of law, or that Miller was negligent as a matter of law. 5

4 C. Judgment as a Matter of Law on Ferreira’s Negligence Claim 5 Against the City

6 We next consider the district court’s grant of JMOL on Ferreira’s

7 negligence claim against the City. The district court held that Ferreira’s

8 assertion of negligence liability against the City fails as a matter of law

9 because New York law requires a plaintiff to demonstrate the existence of a

10 “special relationship” in order to sustain a negligence claim against a

11 municipality, and Ferreira failed to show such a relationship. Ferreira, 2017

12 WL 4286626, at *5–6. 6 The court also concluded in a footnote that the City

13 enjoyed discretionary immunity, and that Ferreira’s “negligent planning”

5For substantially the same reasons, we are compelled to reject Ferreira’s argument that the evidence was insufficient to support the jury’s finding of Ferreira’s comparative negligence.

6 We note that although “the existence of a special relationship is a question of fact that may be properly submitted to a jury,” Velez v. City of New York, 730 F.3d 128, 135 (2d Cir. 2013) (citing Applewhite v. Accuhealth, Inc., 995 N.E.2d 131, 143–44 (N.Y. 2013)), that question was not presented to the jury in the trial. 22 1 claim was barred by New York’s prohibition on “negligent investigation”

2 claims against law enforcement.

3 We conclude as follows: (i) with respect to the district court’s ruling

4 that Ferreira’s negligent planning claim against the City is barred by New

5 York’s prohibition on claims of negligent investigation, we disagree; (ii) with

6 respect to whether the City was entitled to discretionary immunity, we

7 conclude that discretionary immunity did not bar Ferreira’s claims because

8 certain actions of City employees in the planning of the raid violated

9 acceptable police practice, and the jury could have reasonably concluded that

10 those violations were a proximate cause of Ferreira’s injury; and (iii) with

11 respect to whether New York’s special duty rule applies to claims of injury

12 inflicted through municipal negligence, or applies only when the

13 municipality’s negligence lies in its failure to protect the plaintiff from an

14 injury inflicted other than by a municipal employee, we find conflicting

15 authority in the rulings of the Court of Appeals. Because we cannot discern

16 from precedent which view is favored by New York’s highest court, and

17 because the issue is essentially one of state policy, we certify this question to

18 the New York Court of Appeals.

23 1 1. Discretionary Immunity

2 Ferreira challenges the district court’s ruling that the City was entitled

3 to judgment as a matter of law because discretionary immunity protects its

4 actions in planning and executing the raid. We conclude that discretionary

5 immunity does not apply because, according to the testimony of the City’s

6 own police officers, certain actions of the City’s employees in the planning of

7 the raid violated acceptable police practice.

8 The doctrine of discretionary immunity draws a distinction between

9 “discretionary” and “ministerial” government acts. Where a public employee

10 is negligent in the performance of a discretionary act (in contrast to negligent

11 performance of a ministerial act, generally meaning conduct requiring

12 adherence to a governing rule, with a compulsory result), discretionary

13 immunity may protect the municipality from liability. See Lauer v. City of New

14 York, 733 N.E.2d 184, 187 (N.Y. 2000). This common-law limitation on

15 municipal liability “reflects separation of powers principles and is intended to

16 ensure that public servants are free to exercise their decision-making

17 authority without interference from the courts. It further ‘reflects a value

18 judgment that—despite injury to a member of the public—the broader

24 1 interest in having government officers and employees free to exercise

2 judgment and discretion in their official functions, unhampered by fear of

3 second-guessing and retaliatory lawsuits, outweighs the benefits to be had

4 from imposing liability for that injury.’” Valdez v. City of New York, 960 N.E.2d

5 356, 362 (N.Y. 2011) (quoting Mon v. City of New York, 579 N.E.2d 689, 692

6 (N.Y. 1991)).

7 Discretionary immunity applies only if “the discretion possessed by

8 [the municipal defendant’s] employees was in fact exercised in relation to the

9 conduct on which the liability is predicated.” Valdez, 960 N.E.2d at 362 (citing

10 Mon, 579 N.E.2d 689, and Haddock v. City of New York, 553 N.E.2d 987 (N.Y.

11 1990)). Otherwise-discretionary actions of municipal employees do not result

12 in discretionary immunity for the municipality unless the injury-producing

13 act involved “the exercise of reasoned judgment which could typically

14 produce different acceptable results,” Valdez, 960 N.E.2d at 364 (quoting Tango

15 v. Tulevech, 459 N.E.2d 182, 186 (N.Y. 1983)), and complied with a

16 municipality’s own rules and policies, see Johnson v. City of New York, 942

17 N.E.2d 219, 222 (N.Y. 2010); Haddock, 553 N.E.2d at 991. In addition, in the

18 context of police officers, courts do not apply discretionary immunity where

25 1 “the employee, a police officer, violates acceptable police practice.” Lubecki,

2 758 N.Y.S.2d at 617; accord Newsome v. County of Suffolk, 971 N.Y.S.2d 208, 208

3 (App. Div. 2013); Rodriguez, 595 N.Y.S.2d at 429; Velez v. City of New York, 556

4 N.Y.S.2d 537, 539–40 (App. Div. 1990). We note that because discretionary

5 immunity is an affirmative defense, see Metz v. State of New York, 982 N.E.2d

6 76, 78–79 (N.Y. 2012), the function of which is to preclude liability where a

7 City employee’s conduct is negligent or otherwise tortious, see Lauer, 733

8 N.E.2d at 187, the standard for conduct that “violates acceptable police

9 practice” cannot be synonymous with conduct that would otherwise incur

10 liability.

11 The actions of City police officers in planning the raid were

12 discretionary (and not ministerial) in nature because they involved the

13 exercise of judgment, not “direct adherence to a governing rule or standard

14 with a compulsory result.” Tango, 459 N.E.2d at 186. The doctrine of

15 discretionary immunity therefore protects the City unless its officers’ actions

16 “violat[ed] [the City’s] own internal rules and policies,” Johnson, 942 N.E.2d at

17 222, or “acceptable police practice,” Lubecki, 758 N.Y.S.2d at 617.

26 1 At oral argument, the parties were asked to submit additional letter

2 briefs on whether the City’s actions in planning the raid were contrary to

3 established policies or procedures or violated acceptable police practice, such

4 that they were not protected by discretionary immunity.

5 In its post-argument letter brief, the City contends that in order to

6 defeat discretionary immunity, Ferreira must cite “specific departmental

7 rules” in the form of “governing internal rules or policies,” rather than

8 “general standards outside of the police department.” Appellees’ Letter Br. at

9 2–3. In support of this argument, the City cites to language from Johnson

10 referring to the violation of a “municipality’s procedures” and “its own

11 internal rules and policies.” Id. at 2 (citing Johnson, 942 N.E.2d at 222). The

12 City notes that in Johnson the plaintiff alleged that a police shooting violated a

13 specific, enumerated New York City Police Department procedure. In

14 addition, the City relies on Malay v. City of Syracuse, 57 N.Y.S.3d 267 (App.

15 Div. 2017), in which a New York appellate court held that discretionary

16 immunity could not be defeated based on an allegation that the defendant

17 had violated a standard from a private manufacturer’s chemical munitions

27 1 manual, because there was no evidence that the standard had been adopted

2 by the defendant municipality.

3 The City’s argument implicitly raises two related but distinct legal

4 questions, which the New York Court of Appeals has apparently not

5 explicitly addressed: 1) whether, to defeat discretionary immunity, a plaintiff

6 must demonstrate that a government employee violated rules or policies that

7 are internally recognized by the municipal department or entity, and 2) whether

8 those rules or policies must be formalized, as in a written manual.

9 We need not reach the question whether the policy must be internally

10 adopted by the department or municipality, because the testimony of

11 Binghamton police officers and SWAT team members showed that the

12 relevant policies were in fact espoused—however informally—by the City.

13 This case is therefore unlike Malay, in which the plaintiff relied on a private,

14 third-party munitions manual.

15 To the extent that the City argues that a plaintiff must cite to a

16 formalized, written procedure or policy, we know of no New York precedent

17 supporting such a rule. Moreover, we reject that argument as inconsistent

18 with New York case law regarding discretionary immunity in general, and in

28 1 the police context in particular. “The defense [of governmental function

2 immunity] precludes liability for a ‘mere error of judgment’ but this

3 immunity is not available unless . . . the action taken actually resulted from

4 discretionary decision-making—i.e., ‘the exercise of reasoned judgment which

5 could typically produce different acceptable results.’” Valdez, 960 N.E.2d at

6 364 (quoting Tango, 459 N.E.2d at 186). Discretionary immunity thus protects

7 a range of government action that would otherwise be negligent or subject to

8 liability, but which is not so unreasoned that it “could [not] typically produce

9 different acceptable results,” see id. Whether an action rises to this level of

10 being so unreasoned or egregious does not depend on the existence of a

11 formal policy to the contrary. In addition, discretionary immunity does not

12 extend to situations where “the employee, a police officer, violates acceptable

13 police practice.” Lubecki, 758 N.Y.S.2d at 617 (emphasis added); accord Newsome,

14 971 N.Y.S.2d at 208; Rodriguez, 595 N.Y.S.2d at 429; Velez, 556 N.Y.S.2d at 539–

15 40. While, as discussed, this language must mean something more than

16 ordinary negligence or any circumstance in which a police officer would be

17 liable, it plainly sweeps beyond formal written policies. Moreover, the

18 passages in Johnson quoted in the City’s letter brief, which refer to a

29 1 “municipality’s procedures” and “its own internal rules and policies,” say

2 nothing regarding the particular form those policies must take, nor the form

3 of evidence necessary to demonstrate their existence. We decline the City’s

4 invitation to fashion for New York a heightened requirement that plaintiffs

5 demonstrate the violation of a formal written policy in order to defeat

6 discretionary immunity—particularly given that under this doctrine plaintiffs

7 are already required to demonstrate more than is otherwise required to

8 establish liability.

9 Moreover, the practical desirability of avoiding such a formalistic

10 requirement is apparent. In the first place, under such a rule, municipalities

11 would escape liability for negligent actions in violation of their own policies

12 by simply declining to write those policies down – thus decreasing the

13 likelihood of observance of the policies. In addition, there may be policies that

14 are so obviously in the interest of public safety that they would be universally

15 understood without need for a writing. Discretionary immunity is surely not

16 intended to shield violations of such important policies by actions that do not

17 reflect “the exercise of reasoned judgment which could typically produce

18 different acceptable results.’” Valdez, 960 N.E.2d at 364.

30 1 Ferreira catalogs several alleged deficiencies in the City’s planning and

2 preparation for the raid, which he argues violate acceptable police practice

3 and are therefore not protected by discretionary immunity. These include: the

4 SWAT team’s failure to bring a two-person battering ram, failure to have a

5 backup plan, failure to bring pole cameras or under-the-door mirrors, failure

6 to bring various less-lethal weapons or ballistic shields, failure to conduct

7 adequate pre-raid surveillance of the residence or gather other intelligence,

8 and failure to attempt to obtain a floor plan or layout of the residence. After a

9 careful review of the trial record, we conclude that some of the failures he

10 alleges as violations of acceptable police practice were not sustained by the

11 evidence. On the other hand, Ferreira elicited sufficient evidence to support a

12 jury finding that the City, through the actions of its employees in the police

13 department and SWAT unit, violated established police procedures and

14 acceptable police practice by, first, failing to conduct adequate pre-raid

15 surveillance of the residence or gather other intelligence, and, second, failing

16 to attempt to obtain a floor plan or layout of the residence.

17 Ferreira first asserts that the City violated acceptable police practice by

18 failing to bring a heavier, two-person battering ram to break down the door

31 1 when the lighter ram failed. Using the lighter, one-person battering ram, the

2 SWAT team needed numerous blows before it succeeded in breaching the

3 door and therefore lost the element of surprise, making the police entry far

4 more dangerous than it would have been if the door had been broken by the

5 first blow when the occupants were asleep. The failure to bring a sufficiently

6 heavy battering ram, according to Ferreira’s argument, heightened the danger

7 perceived by Miller upon entering and therefore contributed to causing him

8 to shoot Ferreira.

9 We reject that argument. The evidence is insufficient to support a jury

10 finding that the City’s failure to bring the two-person battering ram violated

11 acceptable police practice. There is no evidence that it is standard police

12 practice to bring a two-person battering ram to conduct a dynamic entry,

13 much less that it violates “acceptable practice” for police to fail to do so. 7

7Ferreira also relies on similarly broad, indefinite principles, such as that “police are never allowed to unnecessarily expose members of community to unnecessary danger,” see Appellant’s Letter Br. at 2. A conclusion that a police officer “unnecessarily exposed members of the public to danger” is insufficient as a matter of law for a jury to conclude that the City violated acceptable police practice so as to defeat discretionary immunity. Were this not the case, then discretionary immunity would essentially serve no function, because it would be defeated in any case in which the police would otherwise be liable. While we conclude that the alleged policy that was

32 1 Captain Hendrickson testified that two-person rams are not often used

2 because they are “big and cumbersome,” and Miller testified that the

3 one-person ram is his SWAT unit’s “standard ram.” Moreover, failure to

4 bring the heavier ram could not have caused Ferreira’s injury because,

5 according to the testimony of Miller and Officer Robert Charpinsky, the hall

6 outside the doorway was too narrow to allow use of the larger ram.

7 Next, Ferreira contends the City violated acceptable police practice by

8 the SWAT team’s failure to have adopted a contingency backup plan for use

9 in the event the door was not rapidly breached. This argument fails at least

10 for the reason that, while the team did not immediately prior to the raid adopt

11 a particular backup plan, there was uncontroverted testimony that it had

12 conducted “failure drills” anticipating circumstances in which an operation

13 does not go according to plan. While no specific backup plan was adopted at

14 the outset of this raid, the team had trained and conducted contingency

15 exercises for such circumstances, and had such plans in place. Ferreira did not

16 elicit evidence that acceptable practice requires police to discuss backup plans

17 immediately prior to the operation in question.

violated need not be a formalized, written policy, see supra, it must be sufficiently definite so as not to devolve into general standards of care. 33 1 Ferreira’s next argument is that the SWAT team should have been

2 provided with less-lethal weapons in the form of bean bag guns, tasers, flash

3 bangs, chemical restraints, or ballistic shields, and that the failure to do so

4 resulted in his being injured more severely than necessary by Miller’s

5 shooting him with an AR-15 rifle. But Ferreira presented no evidence that

6 acceptable police practice requires dynamic entry teams to carry such

7 equipment. In fact, given that Pride was expected to be armed with guns, the

8 evidence suggested that such equipment would have been inappropriate, in

9 part because such added equipment would have been bulky and would have

10 hampered speed and efficiency. Similarly, Hendrickson’s unrebutted

11 testimony was that “no SWAT team would ever use” an under-the-door

12 camera or mirror during a dynamic entry.

13 Finally, Ferreira contends that the City violated acceptable police

14 practice by failing to conduct adequate pre-raid surveillance and failing to

15 obtain (or attempt to obtain) a floor plan. We agree that, in this respect,

16 Ferreira showed a failure to conform to acceptable police practice. Chief

17 Zikuski testified that in order for police to ensure that they do not

18 unnecessarily expose themselves and members of the public to harm, they

34 1 must obtain and use all available and reliable intelligence. He testified that it

2 would violate police “rules of the road” and professional standards to not

3 provide police officers with sufficient and proper intelligence to perform their

4 duties with relative safety. Hendrickson testified that proper preparation for a

5 raid includes pre-raid surveillance of the suspects and location, and an

6 advance site survey of the location to determine avenues of approach and

7 escape. He agreed that it is accepted police practice to obtain, if at all possible,

8 a sketch or photographs of the location. Hawley stated that the SWAT unit

9 normally conducts its own reconnaissance for the type of mission. In

10 addition, Officer Miller testified that it would be important to know before

11 entering a residence if the people inside had serious firearms, and that it is

12 accepted police practice for a supervisor to tell a SWAT team about any

13 surveillance conducted, and any relevant intelligence generally, during a pre-

14 operation briefing. As to the building layout, Zikuski agreed that it was his

15 position as chief to “always try to find out the layout of an apartment before .

16 . . send[ing officers] out on a mission.” He agreed that doing so complies with

17 professional police standards of care, accepted police practices, and the

18 department’s training. In addition, Hawley acknowledged that failure to

35 1 obtain and use adequate intelligence can unnecessarily expose members of

2 the public to unnecessary harm, and Miller similarly testified that when

3 officers have more intelligence they are in a better position to avoid use of

4 dangerous force. Based on this evidence, the jury could reasonably have

5 concluded that acceptable police practice required attempting to learn the

6 building layout before sending out officers on a home raid mission.

7 Despite this evidence establishing the importance of seeking a building

8 layout in preparation for such an operation, it appears there was no attempt

9 to do so. Indeed, the officers who may have been responsible for this task

10 pointed fingers at each other in their testimony, indicating both that no one

11 sought to obtain a floor plan and that there was internal confusion as to who

12 was responsible for this important task.

13 The evidence further supported a finding of inadequate surveillance to

14 conform to acceptable practice. The sole intended purpose of the raid was to

15 catch Pride unaware. The night before the raid, the police surveilled the

16 residence for no more than the hour from 8:00 p.m. to 9:00 p.m. Pride was

17 seen by the police leaving the area and heading away across the East Clinton

18 Street Bridge. No surveillance was conducted thereafter to determine whether

36 1 he had returned before the raid was conducted. If surveillance had been

2 conducted and showed that Pride had not returned to the apartment, the no-

3 knock pre-dawn raid, with all of its attendant dangers, would have been

4 pointless. (It turned out, however, that Pride had returned and was in the

5 apartment at the time of the raid.) Because of the failure to conduct

6 surveillance, the police also acquired no information as to how many people,

7 and of what description, would be found in the residence. Hawley testified

8 that, on the morning of the raid, the SWAT team had “no idea” how many

9 people were inside the residence and whether those inside were awake or

10 asleep. Depending on the answers to those questions, it might have been

11 useless to conduct a dangerous pre-dawn no-knock raid that morning, or at

12 least inadvisable to expose the officers and other persons to the inevitable

13 risks of such an operation, as an alternative to more conservative procedures

14 such as waiting to arrest Pride at an opportune moment, and executing the

15 search warrant at that time.

16 Based on the above evidence, a jury could have reasonably concluded

17 that the City was not only negligent but further violated acceptable police

18 practice by failing to conduct adequate pre-raid surveillance and failing to

37 1 seek to obtain a floor plan of the residence. Accordingly, the City was not

2 entitled to discretionary immunity as to these failures.

3 The question remains whether these failures on the part of the City to

4 conform to acceptable police practice were a proximate cause of Miller’s

5 shooting the unarmed Ferreira. Because of the district court’s erroneous

6 ruling that the City was shielded from liability for its failures, the court never

7 considered the question of causation. A defendant’s negligence “qualifies as a

8 proximate cause where it is a substantial cause of the events which produced

9 the injury.” Hain v. Jamison, 68 N.E.3d 1233, 1237 (N.Y. 2016) (internal

10 quotation marks omitted). Although we find that Ferreira’s evidence was

11 insufficient to show that the City’s failure to attempt to learn the layout of the

12 apartment was a substantial cause of Miller’s shooting Ferreira, we reach the

13 opposite conclusion as to the City’s failure to conduct additional surveillance:

14 a jury could reasonably have concluded that this failure was a proximate

15 cause of Ferreira’s injury.

16 As to the floor plan, Ferreira did not elicit any evidence that possession

17 of floor plans would have changed the course of events. Miller’s testimony,

18 which was apparently credited by the jury, was that he fired his weapon

38 1 because he saw a figure advancing on him, holding a gray object in his hands

2 and disobeying Miller’s commands to “get down.” No evidence suggested

3 that anything would have happened differently if the police had known in

4 advance the layout of the premises. Although Ferreira asserts that the City’s

5 (and by extension Miller’s) lack of knowledge about the floor plan

6 “heighten[ed] the danger and increas[ed] the likelihood of . . . deadly force,”

7 we find such generalizations insufficient to show that the City’s failure to

8 attempt to obtain a floor plan was a substantial cause of the shooting.

9 On the other hand, as to the failure to conduct additional surveillance,

10 we conclude that Ferreira’s evidence was sufficient to support a jury finding

11 that this failure contributed to the cause of Miller’s shooting of Ferreira.

12 Although the SWAT team was aware that a woman and child might be

13 present in addition to Pride, there is no evidence that the SWAT team

14 expected to encounter anyone in the apartment other than those three

15 individuals. Moreover, Chief Zikuski agreed at trial that “who is in the

16 apartment” can be an “important fact,” that knowing the number of people in

17 the apartment can result in a “safer operation with a greater chance of

18 success,” and that this would generally result in a “better likelihood of not

39 1 exposing the public to unnecessary harm.” Based on this testimony, the jury

2 could have reasonably concluded that additional surveillance would have

3 alerted the SWAT team to Ferreira’s presence, and that this would have

4 caused the team to conduct the raid differently, or to wait until no one was

5 present other than the regular occupants of the apartment. We conclude that

6 Ferreira’s evidence was sufficient to support a jury verdict that the City’s

7 violation of acceptable police practice was a proximate cause of his injury.

8 2. Bar on Claim for “Negligent Investigation”

9 The district court further concluded that Ferreira’s negligence claim

10 against the City fails as a matter of law to the extent it is based on the

11 Department’s planning of the raid because “an action for negligent . . .

12 investigation does not exist in the State of New York.” Ferreira, 2017 WL

13 4286626, at *6 n.3 (quoting Ellsworth, 703 N.Y.S.2d at 297). Ferreira appeals

14 that conclusion, arguing that Ellsworth is inapplicable because his “negligent

15 planning” claim relates to the operation of the raid, and does not challenge

16 the underlying search warrant or police investigation. We agree with Ferreira

17 that New York’s prohibition on claims of negligent investigation does not bar

18 his claim against the City.

40 1 In Ellsworth, the plaintiff Steven Ellsworth was arrested in Gloversville,

2 New York for criminal trespass pursuant to an arrest warrant, and the

3 criminal complaint was later dismissed based on the facial insufficiency of the

4 allegations. 703 N.Y.S.2d at 295. Ellsworth subsequently sued the City of

5 Gloversville and others, challenging the validity of the arrest warrant, and

6 alleging false arrest and imprisonment, malicious prosecution, negligent

7 investigation and arrest, and negligent training in investigative procedures.

8 The trial court granted summary judgment for the defendants on all claims.

9 The Appellate Division affirmed, holding that the evidence was insufficient as

10 to the plaintiff’s malicious prosecution and false arrest claims, and further

11 stating, “It is well settled that an action for negligent arrest and investigation

12 does not exist in the State of New York.” Id. at 296–97. For that proposition,

13 the Appellate Division cited Hernandez v. State of New York, 644 N.Y.S.2d 380

14 (App. Div. 1996) and Higgins v. City of Oneonta, 617 N.Y.S.2d 566 (App. Div.

15 1994). Both of those cases involved claims of “negligent investigation” which,

16 alongside claims of false arrest or malicious prosecution, challenged the

17 validity of an arrest. In explaining why a negligent investigation claim did not

18 lie, the Hernandez court had observed, “New York does not recognize an

41 1 action alleging negligent investigation or prosecution of a crime, as the police

2 are not obligated to follow every lead that may yield evidence beneficial to

3 the accused.” 644 N.Y.S.2d at 382. In reaching a similar conclusion, the

4 Higgins court had reasoned, “Plaintiff’s negligence cause of action was

5 properly dismissed since a party seeking damages for an injury resulting

6 from a wrongful arrest and detention is relegated to the traditional remedies

7 of false arrest and imprisonment.” 617 N.Y.S.2d at 568.

8 Those precedents are limited to claims challenging the validity of an

9 arrest. They reasoned that (a) plaintiffs challenging the validity of an arrest or

10 prosecution have no need for a claim of negligent investigation because,

11 under New York law, they can avail themselves of claims for false arrest and

12 malicious prosecution, and (b) apart from evaluating the existence vel non of

13 probable cause, courts will not scrutinize what investigative leads police

14 should have followed to establish or verify the basis for a warrant. In those

15 cases, the alleged harm for which the plaintiff sought damages was the arrest

16 itself (and subsequent detention), not the conduct of the police during or prior

17 to the arrest.

42 1 By contrast, Ferreira’s “negligent planning” claim against the City does

2 not attack the validity of the search warrant or the lawfulness of the search,

3 but rather alleges that negligent planning deficiencies rendered the search

4 needlessly dangerous. The injury here is not an arrest, for which the plaintiff

5 would be protected by other theories of false arrest or malicious prosecution,

6 but the physical harm Ferreira sustained. Such a claim is not foreclosed as

7 “negligent investigation” merely because the allegedly negligent police

8 actions in question occurred during the course of an investigation. It is well

9 established that New York courts recognize negligence actions against

10 municipalities for injuries inflicted by police officers, notwithstanding the fact

11 that they occur in the course of police investigations. See, e.g., Johnson, 942

12 N.E.2d 219; Lubecki, 758 N.Y.S.2d 610; Rodriguez, 595 N.Y.S.2d 421. In sum, the

13 Ellsworth line of cases is inapplicable and does not bar Ferreira’s claim that

14 negligent planning exposed him to an unreasonable risk of injury.

15 3. Respondeat Superior

16 The City contends that the verdict against it must be set aside because

17 the jury found that Miller was not negligent, so that the City cannot be held

18 liable for Miller’s actions based on a theory of respondeat superior. As to

43 1 Ferreira’s negligence claims, the verdict form asked, “Was Officer Miller

2 negligent with respect to the incident on August 25, 2011?” See Verdict Sheet

3 Form at 2, Ferreira v. City of Binghamton, No. 3:13-cv-107 (N.D.N.Y. Jan. 27,

4 2017), ECF No. 170. The jury responded, “No.” The form then asked, “Is the

5 City of Binghamton liable for negligence with respect to the incident on

6 August 25, 2011 under a respondeat superior theory?” Id. The jury responded,

7 “Yes.” The City contends that, given that the verdict form stated that the City

8 was liable in “under a respondeat superior theory,” that verdict is

9 inconsistent with the finding that Miller was not negligent and cannot stand.

10 The City’s argument fails because although the jury found Miller was

11 not negligent, the City may nonetheless be liable in respondeat superior for

12 negligence of other City employees. Because the verdict form did not specify

13 that the jury could only impose respondeat superior liability on the City on the

14 basis of Miller’s actions, and because there was sufficient evidence at trial for

15 the jury to reasonably conclude that other City employees were negligent,

16 there is no inherent inconsistency.

17 “When confronted with a potentially inconsistent jury verdict,

18 the court must adopt a view of the case, if there is one, that resolves any

44 1 seeming inconsistency. Before a court may set aside a special verdict as

2 inconsistent and remand the case for a new trial, it must make every attempt

3 to reconcile the jury's findings, by exegesis if necessary.” Turley v. Police Dep't

4 of New York, 167 F.3d 757, 760 (2d Cir.1999) (internal quotation marks and

5 citations omitted). Only where a special verdict is “ineluctably inconsistent”

6 and cannot be “harmonized rationally” does the Seventh Amendment require

7 that judgment be vacated. Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d

8 Cir. 2004) (internal quotation marks omitted). In looking for consistency, “we

9 bear in mind that the jury was entitled to believe some parts and disbelieve

10 other parts of the testimony of any given witness.” Tolbert v. Queens Coll., 242

11 F.3d 58, 74 (2d Cir. 2001).

12 As an initial matter, we note that the remedy for an inconsistent verdict

13 is not, as the City urges, to selectively uphold that portion of the verdict that

14 one party prefers. “When such an inconsistency occurs, proper deference to

15 the parties’ Seventh Amendment rights to trial by jury precludes entry of a

16 judgment that disregards any material jury finding.” Tolbert, 242 F.3d at 74.

17 Indeed, if the jury could only impose respondeat superior liability on the City

18 on the basis of Miller’s actions, one could argue no less aptly based on the

45 1 verdict here that, because the jury found the City liable, the jury must have

2 been mistaken in finding no liability for Miller, and that the verdict should be

3 harmonized by finding for Plaintiff on both claims. However, for obvious

4 reasons, the “correct course, if the answers were ineluctably inconsistent,”

5 would not be to change the jury’s reported verdict either into one finding

6 liability against both Miller and the City or into one finding in favor of both

7 Miller and the City, but rather to order a new trial. Id.

8 Such a remedy is unnecessary here, however, because the jury verdict is

9 consistent. As the district court repeatedly recognized at trial, Ferreira argued

10 that the City was liable under New York law in negligence on two separate

11 theories: first, because of Miller’s negligent shooting of Ferreira, and, second,

12 because of the negligent planning of the raid by police personnel. With regard

13 to the latter theory, Ferreira catalogued a list of alleged deficiencies,

14 including, as discussed above, failure to conduct adequate surveillance and

15 failure to obtain (or attempt to obtain) a floor plan of the residence. Allegedly

16 negligent acts and omissions were committed by individuals responsible for

17 planning the SWAT raid, within the scope of their employment.

46 1 As discussed above, Ferreira adduced evidence at trial sufficient for the

2 jury to conclude that City employees other than Miller were negligent in the

3 planning of the raid. Accordingly, the jury’s finding that “the City of

4 Binghamton [is] liable for negligence with respect to the incident on August

5 25, 2011 under a respondeat superior theory” is sufficient to encompass

6 Ferreira’s negligent planning claim, and is consistent with a finding that

7 Miller was not negligent. The jury apparently concluded that, while Miller’s

8 decision to shoot Ferreira was objectively reasonable under the circumstances,

9 he had been negligently placed in that unnecessarily dangerous position, with

10 an unnecessarily heightened likelihood of shooting someone, by negligent

11 planning on the part of other police employees.

12 The conclusion that the respondeat superior liability contemplated by the

13 verdict form is not limited to Miller’s actions but also encompasses Ferreira’s

14 negligent planning claim is further reinforced by the district court’s jury

15 charge and by other sections of the verdict form. The jury instructions made

16 clear that the City could be liable for negligence “through the actions of its

17 agents,” App. at 1587 (emphasis added), and the instruction on respondeat

18 superior specified that the doctrine applied because “Officer Miller and the

47 1 other police officers were acting in the course of official duties,” App. at 1591

2 (emphasis added). 8 Moreover, in discussing an appropriate jury charge, the

3 district court acknowledged both theories of the City’s negligence and stated

4 that it would put both to the jury. However, the question about the City’s

5 respondeat superior liability was the only place on the verdict form that the jury

6 could find the City liable for negligence. There was no separate “negligent

7 planning” section on the jury form, indicating, in light of the court’s prior

8 statement, that the single question regarding the City’s negligence was meant

9 to encompass both Miller’s shooting and the planning of the raid by other

10 officers. There is no reason to believe the jury understood it otherwise.

11 The City asserts that a respondeat superior claim cannot survive unless

12 based on a demonstrated entitlement to recover against its employee. This is

13 certainly correct. Nonetheless, the plaintiff is not obligated to sue the

14 employee in order to obtain respondeat superior liability of the employer. See,

15 e.g., Trivedi v. Golub, 847 N.Y.S.2d 211 (App. Div. 2007); Rock v. County of

16 Suffolk, 623 N.Y.S.2d 9 (App. Div. 1995); Rieser v. District of Columbia, 563 F.2d

8Additionally, the section of the verdict form pertaining to battery asked whether the City was liable “for the damages caused by the state law battery by [Miller] or any other officer under a respondeat superior theory.” Verdict Sheet Form at 2. 48 1 462, 469 n.39 (D.C. Cir. 1977). Even if he were so required, Ferreira did in fact

2 bring suit against Chief Zikuski, Captain Hendrickson, Officer Burnett, and

3 Officer Spano, but later stipulated to the dismissal of his claims against those

4 defendants precisely based upon the understanding that they “were all

5 members and employees of the City of Binghamton Police Department, and

6 were all acting within the scope of their employment, and the City of

7 Binghamton and Binghamton Police Department are vicariously responsible

8 and liable for all their acts and omissions, if any, made in connection with the

9 above encaptioned matter.” Stipulation of Partial Discontinuance at 1, Ferreira

10 v. City of Binghamton, No. 3:13-CV-107 (N.D.N.Y Jan. 8, 2015), ECF No. 42. In

11 other words, Ferreira brought suit against these other employees, but agreed

12 to dismiss them as defendants on the understanding that the City would be

13 liable under respondeat superior for their actions, so that it was redundant and

14 unnecessary to name them separately as defendants.

15 In sum, the jury’s conclusion that Miller was not negligent is in no way

16 inconsistent with its conclusion that the City was negligent “under a

49 1 respondeat superior theory”: we must assume that the jury found the City

2 vicariously liable for negligent planning of the raid by other employees. 9

3 4. Salim and Mendez

4 The City further argues that Ferreira’s negligent planning claim fails as

5 a matter of law, first, citing Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996),

6 because the “actions leading up to the shooting are irrelevant to the objective

7 reasonableness of [the officer’s] conduct at the moment he decided to employ

8 deadly force,” and because such a claim runs afoul of the U.S. Supreme

9 Court’s decision in County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017). This

10 argument misses the mark because Ferreira’s claim is not that Miller’s

11 decision to shoot him was itself negligent, due to the City’s prior failures in

12 planning the raid; rather, his claim is the City was negligent in its planning of

13 the raid, and that this negligence played a part in causing Miller to shoot

14 Ferreira.

15 Salim and Mendez do not support the City’s argument. In Salim, the

16 mother of a juvenile brought a Fourth Amendment excessive force claim

9If the City was concerned that the jury might have imposed liability on it for Miller’s shooting of Ferreira without finding negligence on Miller’s part, the proper course would have been to ask the trial judge to inquire of the jury on which of the possible bases it found the City liable. 50 1 regarding an altercation in which her son was shot and killed by a police

2 officer. Under the plaintiff’s statement of facts, “at the moment [the officer]

3 fired his weapon, [the juvenile] was actively resisting arrest, and [the officer]

4 was being pummelled by more than five people” who were trying to prevent

5 the arrest. 93 F.3d at 91. “The police officer subsequently shot [the juvenile]

6 ‘instinctively’ in reaction to seeing [the juvenile’s] hand on the barrel of his

7 gun while the two were locked in a struggle.” Id. Although the officer’s

8 decision to use deadly force was clearly reasonable at the moment it occurred,

9 the plaintiff argued that he was “liable for using excessive force because he

10 created a situation in which the use of deadly force became necessary,” due to

11 “failing to carry a radio or call for back-up, and also for failing to disengage

12 when the other children entered the fray.” Id. at 92. Given that the plaintiff’s

13 claim was not negligence but violation of the Fourth Amendment by using

14 excessive force, our Circuit rejected this argument, holding that “[the

15 officer’s] actions leading up to the shooting are irrelevant to the objective

16 reasonableness of his conduct at the moment he decided to employ deadly

17 force. The reasonableness inquiry depends only upon the officer’s knowledge

18 of circumstances immediately prior to and at the moment that he made the

51 1 split-second decision to employ deadly force.” Id. Because it was “objectively

2 reasonable” for the officer to believe at the time of the shooting that his

3 actions did not violate the juvenile’s Fourth Amendment rights, he was

4 entitled to qualified immunity. The court further noted, “even if plaintiff

5 conclusively established that [the officer] acted negligently, an issue on which

6 we express no opinion, a claim that a state actor acted negligently does not

7 state a deprivation of constitutional rights.” Id.

8 Our conclusion is reinforced, not undermined, by the Mendez decision.

9 In that case, the Supreme Court considered the Ninth Circuit’s “provocation

10 rule,” under which “an officer’s otherwise reasonable (and lawful) defensive

11 use of force is unreasonable as a matter of law, if (1) the officer intentionally

12 or recklessly provoked a violent response, and (2) that provocation is an

13 independent constitutional violation.” 137 S. Ct. at 1545. There, two police

14 officers entered a shack in the rear of a residence without a search warrant

15 and without knocking or announcing their presence. Id. at 1544–45. One of the

16 plaintiffs, who mistakenly believed the noise was made by a fellow resident,

17 reached for a BB gun to help lift himself out of bed. The officers, seeing the BB

18 gun, mistook it for a rifle, and fired several rounds, injuring the plaintiffs. The

52 1 district court concluded, and the Ninth Circuit affirmed, that, although the

2 officers’ shooting was otherwise reasonable under the applicable standard for

3 excessive force, the officers had engaged in excessive force under the

4 provocation rule due to the prior warrantless entry.

5 The Supreme Court reversed, rejecting the provocation rule as

6 inconsistent with its Fourth Amendment excessive force jurisprudence. As the

7 Court explained, its “case law sets forth a settled and exclusive framework for

8 analyzing whether the force used in making a seizure complies with the

9 Fourth Amendment,” which looks at “the information the officers had when

10 the conduct occurred.” Id. at 1546–47 (quoting Saucier v. Katz, 533 U.S. 194, 207

11 (2001)). “The basic problem with the provocation rule,” however, “is that it

12 fails to stop there.” Id. Instead, “it instructs courts to look back in time to see if

13 there was a different Fourth Amendment violation that is somehow tied to the

14 eventual use of force. That distinct violation, rather than the forceful seizure

15 itself, may then serve as the foundation of the plaintiff’s excessive force claim.

16 . . . This approach mistakenly conflates distinct Fourth Amendment claims.”

17 Id. at 1547 (emphasis in original). Yet, as Mendez noted, there is ”no need to

18 distort the excessive force inquiry” or to “dress up every Fourth Amendment

53 1 claim as an excessive force claim” in order to “hold law enforcement officers

2 liable for the foreseeable consequences of all of their constitutional torts.” Id.

3 at 1548. “[I]f the plaintiffs . . . cannot recover on their excessive force claim,

4 that will not foreclose recovery for injuries proximately caused by the

5 warrantless entry. The harm proximately caused by these two torts may

6 overlap, but the two claims should not be confused.” Id. (emphasis in

7 original).

8 Far from supporting the City’s argument, Mendez clarifies that even

9 where there is no viable constitutional claim of excessive force, an officer’s

10 use of force may give rise to damages where it was proximately caused by

11 other tortious conduct. The problem with the provocation rule, then—like the

12 problem with the plaintiff’s theory in Salim—was that it impermissibly

13 expanded the relevant time frame for the excessive force inquiry, and thus

14 “dressed up” a different (permissible) claim as a claim of excessive force.

15 Here, Ferreira’s negligent planning claim is separate from his claim of

16 excessive force, and, as Mendez makes clear, is not dependent on a conclusion

17 that Miller engaged in excessive force.

54 1 5. Special Duty Rule

2 Finally, the district court concluded that Ferreira’s negligence claim

3 against the City fails as a matter of law because Ferreira did not show that the

4 City owed him a “special duty.” In the district court’s view, such a showing

5 was necessary to sustain a negligence claim against a municipality. The court

6 explained, “When a municipality . . . acts in a governmental capacity, a

7 plaintiff may not recover without proving that the municipality owed a

8 ‘special duty’ to the injured party,” which “must be more than that owed the

9 public generally.” Ferreira, 2017 WL 4286626, at *5 (internal quotation marks

10 omitted) (quoting Velez v. City of New York, 730 F.3d 128, 135 (2d Cir. 2013)).

11 To demonstrate such a duty, according to the district court’s analysis

12 based on our ruling in Velez v. City of New York, a plaintiff must show “(1) an

13 assumption by the municipality, through promises or actions, of an

14 affirmative duty to act on behalf of the party who was injured; (2) knowledge

15 on the part of the municipality’s agents that inaction could lead to harm; (3)

16 some form of direct contact between the municipality’s agents and the injured

17 party; and (4) that party’s justifiable reliance on the municipality’s affirmative

18 undertaking.” Id. at *6 (quoting Velez, 730 F.3d at 135).

55 1 There is no dispute that a special relationship did not exist between

2 Ferreira and the City. Rather, Ferreira makes two arguments as to why the

3 special duty requirement does not apply to his claim against the City. First, he

4 argues that this requirement is inapplicable because the City’s conduct in

5 planning the raid, or Miller’s conduct during the raid, violated “acceptable

6 police practices” and “established procedures and guidelines,” and, in such

7 circumstances, no special duty is required. Br. Appellant at 45–46 (citing, inter

8 alia, Lubecki, 758 N.Y.S.2d at 617, and Rodriguez, 595 N.Y.S.2d 421). Second, he

9 argues that “where the police inflict the injury,” as opposed to where they

10 negligently fail to provide police protection, “there is no requirement for a

11 special duty.” Id. at 50 (citing Ohdan v. City of New York, 706 N.Y.S.2d 419, 425

12 (App. Div. 2000) (Rosenberger, J.P., dissenting)).

13 As an initial matter, the district court did not correctly identify the

14 standard for demonstrating the existence of a special duty. The New York

15 Court of Appeals has specified that a special duty can arise in three situations:

16 “(1) the plaintiff belonged to a class for whose benefit a statute was enacted;

17 (2) the government entity voluntarily assumed a duty to the plaintiff beyond

18 what was owed to the public generally; or (3) the municipality took positive

56 1 control of a known and dangerous safety condition.” Applewhite v. Accuhealth,

2 Inc., 995 N.E.2d 131, 135 (N.Y. 2013). The four-part test quoted by the district

3 court from Velez applies only to the second circumstance—to determine

4 whether a government entity has “voluntarily assume[d] a duty to the

5 plaintiff.” See Coleson v. City of New York, 24 N.E.3d 1074, 1077–78 (N.Y. 2014)

6 (quoting Cuffy v. City of New York, 505 N.E.2d 937, 940 (N.Y. 1987)). A plaintiff

7 may separately satisfy the special duty requirement by showing that “the

8 plaintiff belonged to a class for whose benefit a statute was enacted,” or that

9 “the municipality took positive control of a known and dangerous safety

10 condition.” Applewhite, 995 N.E.2d at 135.

11 In any event, Ferreira’s first argument that no special relationship was

12 required because the conduct of City employees violated acceptable police

13 practice fails. As Defendants correctly note, plaintiff’s argument conflates the

14 special duty rule with the rule of discretionary immunity. Under the latter

15 doctrine, acts that would otherwise be discretionary are deemed to have not

16 been an actual exercise of discretion, and therefore not protected by

17 immunity, where they violate a municipality’s “internal rules and policies,”

18 Johnson, 942 N.E.2d at 222, or “acceptable police practice,” Lubecki, 758

57 1 N.Y.S.2d at 617; accord Newsome, 971 N.Y.S.2d at 208; Rodriguez, 595 N.Y.S.2d

2 at 429; Velez v. City of New York, 556 N.Y.S.2d at 539–40. However, because the

3 special duty rule “operates independently of the governmental function

4 immunity defense,” Valdez, 960 N.E.2d at 363, whether government conduct

5 was contrary to acceptable police practice is inapposite to determining

6 whether a special duty was required or in fact existed.

7 As to Ferreira’s second argument—that the special duty requirement

8 applies only in cases in which the allegedly negligent government conduct is

9 the failure to protect from or respond adequately to a separately imposed

10 injury, but does not apply where the negligent conduct alleged involves the

11 municipal government’s own infliction of injury—we find conflicting

12 guidance from the New York Court of Appeals.

13 On the one hand, Ferreira’s interpretation comports with both the

14 longstanding practice of the Court of Appeals in applying the special duty

15 requirement and the Court’s articulated rationale for that requirement. The

16 Court of Appeals has long applied the special duty requirement to suits

17 involving third-party-inflicted injury, and it has long not applied the

18 requirement to claims that the government itself negligently injured the

58 1 plaintiff. This decades-long decisional pattern suggests that Ferreira’s

2 interpretation of the special duty rule is correct, and that there is no

3 requirement to establish a special duty when the alleged injury is inflicted by

4 a municipal employee. This interpretation, moreover, is consistent with the

5 stated rationale for the rule, which seeks to shield the government’s decisions

6 on the allocation of its limited protective resources and to prevent the

7 government from becoming an insurer against harm inflicted by third parties.

8 On the other hand, more recently, the Court of Appeals has frequently

9 stated in dictum that the special duty requirement applies whenever the

10 municipality acts in a governmental capacity. Read literally, these dicta

11 suggest that the special duty requirement applies regardless of whether the

12 alleged injury is inflicted by a municipal employee or by a third party, so long

13 as the government-defendant was acting in a governmental capacity.

14 Moreover, the Court of Appeals has, in at least one case, applied the special

15 duty requirement to dismiss a claim of injury inflicted by municipal

16 employees. See Lauer, 733 N.E.2d at 189.

17 We are inclined to think that Ferreira’s interpretation of the special

18 duty rule is more logical—and more consistent with the rule’s stated

59 1 rationale—than the broader version of the rule favored by the City, which

2 would immunize a municipality from liability in many cases in which its

3 employee or agent negligently inflicts harm. Nevertheless, because it is

4 impossible to discern from precedent which view is favored by New York’s

5 highest court, and because the issue is more a question of state policy than

6 law, we certify the question of the applicability of the special duty

7 requirement to the New York Court of Appeals.

8 In order to understand the conflicting guidance regarding the

9 applicability of the special duty requirement, we look to how the New York

10 Court of Appeals has shaped the complex doctrine of exceptions to municipal

11 liability.

12 The State of New York in 1929 generally waived its sovereign

13 immunity from suit (and by extension the immunity of its municipalities). See

14 Schuster v. City of New York, 154 N.E.2d 534, 538 (N.Y. 1958) (citing section 8 of

15 the Court of Claims Act of 1929). New York courts have long recognized that,

16 based upon this waiver, municipalities may be liable in negligence for the

17 actions of their employees. Bernardine v. City of New York, 62 N.E.2d 604, 605

18 (N.Y. 1945) (recognizing that, based on this waiver of sovereign immunity,

60 1 “the civil divisions of the State are answerable . . . for wrongs of officers and

2 employees”). The Court of Appeals in Bernardine thus held that, due to this

3 waiver, the City of New York could incur liability in negligence for injuries

4 sustained from a runaway police horse. Id.

5 Nonetheless, the Court of Appeals has applied a number of restrictions

6 on municipal liability for negligence of municipal employees. See Haddock, 553

7 N.E.2d at 990–91 (“Despite the sovereign’s own statutory surrender of

8 common-law tort immunity for the misfeasance of its employees,

9 governmental entities somewhat incongruously claim—and unquestionably

10 continue to enjoy—a significant measure of immunity fashioned for their

11 protection by the courts.”). First, New York courts have retained “the

12 common-law doctrine of governmental immunity [which] shield[s] public

13 entities from liability for discretionary actions taken during the performance of

14 governmental functions.” Valdez, 960 N.E.2d at 361 (emphasis added). As

15 discussed above, discretionary immunity may protect the municipality from

16 liability for discretionary (as opposed to ministerial) acts. See Lauer, 733

17 N.E.2d at 187. Otherwise-discretionary actions of municipal employees are

18 not protected by discretionary immunity, however, if they fail to comply with

61 1 a municipality’s own rules and policies, see Johnson, 942 N.E.2d at 222;

2 Haddock, 553 N.E.2d at 991, or if they “violate[] acceptable police practice,”

3 Lubecki, 758 N.Y.S.2d at 617; accord Newsome, 971 N.Y.S.2d at 208; Rodriguez,

4 595 N.Y.S.2d at 429; Velez, 556 N.Y.S.2d at 539–40.

5 The Court of Appeals has articulated another doctrine related to suits

6 to hold a municipality liable for the negligence of its employees: the so-called

7 “special duty” requirement. As with any negligence claim, a plaintiff who

8 sues a municipality for negligence cannot recover unless she demonstrates the

9 existence of a duty on the part of the municipality running to the plaintiff. See

10 Lauer, 733 N.E.2d at 187, 190. The special duty rule provides that, “[t]o sustain

11 liability against a municipality, the duty breached must be more than that

12 owed the public generally.” Id. at 188. Under this rule, to establish such a

13 negligence claim, the plaintiff must show that the government owed “a

14 special duty to the injured person, in contrast to a general duty owed to the

15 public.” McLean v. City of New York, 905 N.E.2d 1167, 1171 (N.Y. 2009)

16 (quoting Garrett v. Holiday Inns, Inc., 447 N.E.2d 717, 721 (N.Y. 1983)). 10 New

10When a municipality is engaged in a “proprietary” rather than a “governmental” role, it is subject to the ordinary of rules of negligence that apply to private parties, so that neither discretionary immunity nor the

62 1 York courts have recognized the existence of such a duty where either “(1) the

2 plaintiff belonged to a class for whose benefit a statute was enacted; (2) the

3 government entity voluntarily assumed a duty to the plaintiff beyond what

4 was owed to the public generally; or (3) the municipality took positive control

5 of a known and dangerous safety condition.” Applewhite, 995 N.E.2d at 135.

6 Unlike discretionary immunity, which is an affirmative defense, the existence

7 of a special duty “is an essential element of the negligence claim itself,” which

8 the plaintiff must prove. Id.

9 The special duty requirement “is derived from the principle that a

10 municipality’s duty to provide police protection is ordinarily one owed to the

11 public at large and not to any particular individual or class of individuals,”

12 and that “a municipality’s provision of police protection to its citizenry has

13 long been regarded as a resource-allocating function that is better left to the

14 discretion of the policy makers.” Cuffy, 505 N.E.2d at 940. It “springs from a

special duty rule apply. See Applewhite, 995 N.E.2d at 134. “A government entity performs a purely proprietary role when its activities essentially substitute for or supplement traditionally private enterprises”; by contrast, it performs a governmental role “when its acts are undertaken for the protection and safety of the public pursuant to the general police powers.” Id. (internal quotation marks omitted). Policing is a “long-recognized, quintessential governmental function[].” Id.; accord Velez, 730 F.3d at 134–35. 63 1 recognition that the City has limited resources and cannot be in all places at

2 one time.” Rodriguez, 595 N.Y.S.2d at 425.

3 Courts have thus applied the special duty rule in cases involving the

4 government’s alleged failure to adequately protect from or respond to injuries

5 inflicted by third parties including domestic partners, see Coleson, 24 N.E.3d

6 1074 (N.Y. 2014); Valdez, 960 N.E.2d 356 (N.Y. 2011); Yearwood v. Town of

7 Brighton, 475 N.Y.S.2d 958 (App. Div. 1984); see also Riss v. City of New York,

8 240 N.E.2d 860 (N.Y. 1968) (attacker hired by rejected suitor), abusive parents,

9 see Sorichetti v. City of New York, 482 N.E.2d 70 (N.Y. 1985), daycare providers,

10 see McLean, 905 N.E.2d 1167 (N.Y. 2009), criminals, see Velez, 730 F.3d 128 (2d

11 Cir. 2013); De Long v. County of Erie, 457 N.E.2d 717 (N.Y. 1983); Schuster, 154

12 N.E.2d 534 (N.Y. 1958), classroom students, see Dinardo v. City of New York,

13 921 N.E.2d 585 (N.Y. 2009), building tenants, see Cuffy, 505 N.E.2d 937 (N.Y.

14 1987), livestock in the middle of a highway, see Shinder v. State of New York,

15 468 N.E.2d 27 (N.Y. 1984) (bull); Napolitano v. County of Suffolk, 462 N.E.2d

16 1179 (N.Y. 1984) (horse), intoxicated drivers, see Evers v. Westerberg, 329

17 N.Y.S.2d 615 (App. Div. 1972), aff’d, 296 N.E.2d 257 (N.Y. 1973), and private

18 taxicabs, see Florence v. Goldberg, 375 N.E.2d 763 (N.Y. 1978).

64 1 By contrast, in cases where plaintiffs seek to hold municipalities liable

2 for injuries inflicted by negligent acts of municipal employees, although

3 applying discretionary immunity where appropriate, New York courts have

4 generally not applied the special duty rule. See Johnson, 942 N.E.2d 219 (N.Y.

5 2010) (police shooting of bystanders during shootout); McCummings v. N.Y.C.

6 Transit Auth., 613 N.E.2d 559 (N.Y. 1993) (shooting of fleeing criminal suspect

7 by municipal officer); Mon, 579 N.E.2d 689 (N.Y. 1991) (probationary police

8 officer shooting of two suspects); Meistinsky v. City of New York, 132 N.E.2d

9 900 (N.Y. 1956) (police shooting of robbery victim); Flamer v. City of Yonkers,

10 127 N.E.2d 838 (N.Y. 1955) (police shooting of man who made disturbance

11 while intoxicated); Wilkes v. City of New York, 124 N.E.2d 338 (N.Y. 1954)

12 (police shooting of bystander); Haddock v. City of New York, 532 N.Y.S.2d 379

13 (App. Div. 1988), aff’d, 553 N.E.2d 987 (N.Y. 1990) (Parks Department

14 employee rape of plaintiff); Lubecki, 758 N.Y.S.2d 610 (App. Div. 2003) (police

15 shooting of hostage); Rodriguez, 595 N.Y.S.2d 421 (App. Div. 1993) (police

16 shooting of bystander during shootout). 11

11To be sure, in Johnson and Mon, the Court of Appeals held that the defendants’ actions were protected by discretionary immunity, so there was arguably no need to discuss whether the plaintiffs had adequately established

65 1 For example, in Haddock, the plaintiff claimed that the city had

2 negligently retained a Parks Department employee after learning of his

3 violent past, which resulted in her being raped by the employee in a public

4 park. As in our case, the Haddock trial court granted the defendant city’s

5 post-trial motion for judgment notwithstanding the verdict, on the basis that

6 the city owed no special duty to the plaintiff. The Appellate Division

7 reversed, explaining that the special duty rule had no application to such

8 facts, and the Court of Appeals affirmed the Appellate Division (although

9 without further discussion of the special duty rule). See Haddock, 532 N.Y.S.2d

10 379, aff’d, 553 N.E.2d 987.

11 Similarly, in McCummings, the Court of Appeals upheld municipal

12 liability based on negligence of an officer of the New York City Transit

13 Authority who had shot the plaintiff, a fleeing robbery suspect. McCummings,

14 613 N.E.2d at 560–62. The theory of the case, as submitted to the jury, was

15 common law negligence. Id. at 560. The Court of Appeals upheld the jury

a special duty. See Johnson, 942 N.E.2d at 222–23; Mon, 579 N.E.2d at 694. In the other cases cited, however, the court permitted the plaintiffs to recover without requiring proof of a special duty. 66 1 award for the plaintiff without addressing whether the officer owed him a

2 special duty. Id.

3 The rulings of the Court of Appeals in Haddock and McCummings are

4 consistent with the stated rationale of the special duty rule: where

5 government employees have inflicted the injury, municipal liability is not

6 based on an alleged misallocation of protective resources. While the special

7 duty rule is necessary in the context of third-party-inflicted harm because “a

8 different rule ‘could and would inevitably determine how the limited police

9 resources of the community should be allocated and without predictable

10 limits,’” Sorichetti, 482 N.E.2d at 75 (quoting Riss, 240 N.E.2d at 861), this

11 concern is absent when the government itself inflicts the injury. The Haddock

12 and McCummings line of cases, therefore, along with the underlying rationale

13 for the special duty rule as articulated by the Court of Appeals, supports

14 Ferreira’s argument that the special duty requirement has no applicability in a

15 case in which the harm is inflicted by governmental actors.

16 It should be stressed that Ferreira’s proposed rule does not depend on

17 the distinction between “misfeasance” and “nonfeasance,” a distinction that

18 the Court of Appeals has declared to be irrelevant to the special duty analysis.

67 1 The City incorrectly characterizes Ferreira as arguing that the special duty

2 requirement does not apply to cases of police “misfeasance,” while correctly

3 noting that this court, following the Court of Appeals, has rejected such a

4 rule.

5 In Velez v. City of New York, New York City police officers received a tip

6 from a former police informant, Anthony Velez, that he had seen drugs and

7 weapons at an apartment. 730 F.3d at 131. In response, police conducted a

8 search of the apartment. Id. at 132. The commanding officer recognized Velez

9 at the scene, and had another officer hold him in the hallway. The officers

10 arrested two people, but did not arrest Velez. After the police left, Velez was

11 shot outside the entrance of the apartment and died. His mother brought suit

12 against the City of New York, arguing that, by not arresting Velez, the police

13 officers had negligently disclosed that he was an informant, resulting in his

14 murder. The plaintiff argued that she did not need to demonstrate the

15 existence of a special duty because the actions of the police officers

16 constituted affirmative misconduct, rather than a failure to act. The court

17 disagreed, citing Applewhite v. Accuhealth, Inc. for the proposition that a

18 special duty is still required when the alleged negligence involves

68 1 “misfeasance” rather than “nonfeasance.” Id. at 136. Accordingly, it held that

2 the special duty rule was applicable.

3 In Applewhite, the plaintiff, a 12-year-old girl, suffered anaphylactic

4 shock in her home after being administered an apparently noxious

5 medication by a visiting nurse. The plaintiff’s mother called 911, and two

6 emergency medical technicians (EMTs) employed by the city arrived at her

7 home. They administered treatment, but declined the mother’s request to take

8 the girl immediately to a nearby hospital. The plaintiff suffered brain damage.

9 The plaintiff argued that because the EMTs’ actions there involved

10 “misfeasance” rather than “nonfeasance”—that is, wrongful action in the

11 administration of treatment, rather than the failure to act—the special duty

12 requirement did not apply. The Court of Appeals ruled that the special duty

13 rule did apply. In a footnote, it rejected the plaintiff’s argument, stating,

14 “Contrary to the parties’ arguments, our precedent does not differentiate

15 between misfeasance and nonfeasance, and such a distinction is irrelevant to

16 the special duty analysis.” 995 N.E.2d at 135 n.1.

17 The City’s reliance on Velez, and by extension Applewhite, is misplaced.

18 In both cases, the theory of liability was municipal failure to protect against

69 1 harm inflicted otherwise than by municipal employees. In Applewhite, where

2 the actions of a non-governmental nurse had caused the danger prior to the

3 arrival of the municipal EMT employees, the claim of municipal liability was

4 predicated on the failure of the municipal EMTs to respond adequately to an

5 injury inflicted by another. Similarly, in Velez, although the plaintiff alleged

6 that the police officers had acted wrongfully in failing to arrest Velez, Velez’s

7 injury was inflicted by a third party.

8 Both cases are consistent with the rule set forth by Ferreira: both

9 applied the special duty rule in a case involving the government’s failure to

10 respond adequately to or protect against an injury inflicted by a third party.

11 In both cases, the fact that the allegedly negligent conduct was action, rather

12 than inaction, was irrelevant for the special duty analysis. But Ferreira’s

13 proposed rule, consistent with the Haddock line of cases, turns not on whether

14 the government conduct was “misfeasance” or “nonfeasance” but rather on

15 who inflicted the injury. As the facts of Velez and Applewhite make clear, this

16 inquiry is distinct from the misfeasance/nonfeasance distinction. Just as the

17 government can simply fail to respond to an ongoing or threatened injury

18 (i.e., nonfeasance), it can actively respond to the injury in a negligent manner

70 1 (i.e., misfeasance). According to Ferreira’s argument, the special duty rule

2 applies in both types of case, so long as the injury was inflicted by a third

3 party rather than the government itself. But neither Velez nor Applewhite

4 engaged with, much less purported to overrule, the Haddock line of cases, in

5 which New York courts have declined to apply the special duty requirement

6 to claims of government-inflicted injury.

7 Although the longstanding practice of the Court of Appeals and the

8 underlying rationale for the special duty rule thus support Ferreira’s reading

9 of the rule, the Court of Appeals has frequently stated in dictum that the

10 special duty requirement applies whenever the municipal defendant acts in a

11 governmental capacity. Read literally, these dicta suggest that the special

12 duty requirement applies regardless of whether the injury was inflicted by a

13 third party or by a governmental actor, so long as the government was acting

14 in a governmental (rather than proprietary) capacity. In addition, in at least

15 one case involving government-inflicted injury, see Lauer, 733 N.E.2d 184, the

16 Court of Appeals has applied the special duty requirement to dismiss the

17 complaint. Thus, we cannot say with certainty that Ferreira’s is the correct

18 reading of New York law.

71 1 Noting first the Court of Appeals’s broad statements in dicta of a

2 special duty requirement without mention of its applicability only to cases

3 where liability would be predicated on negligent failure to protect against

4 injury inflicted by third parties, in Florence v. Goldberg, in 1978, the Court of

5 Appeals wrote that “to sustain liability against a municipality, the duty

6 breached must be more than a duty owing to the general public.” Florence, 375

7 N.E.2d at 766. In Lauer v. City of New York, the Court of Appeals stated

8 broadly that “[t]o sustain liability against a municipality, the duty breached

9 must be more than that owed the public generally.” Lauer, 733 N.E.2d at 188;

10 see also Connolly v. Long Island Power Auth., 94 N.E.3d 471, 476 (N.Y. 2018)

11 (“Assuming the government entity was acting in a governmental [i.e., not

12 proprietary] capacity, the plaintiff may nevertheless state a viable claim by

13 alleging the existence of a special duty to the plaintiff.”); Turturro v. City of

14 New York, 68 N.E.3d 693, 700 (N.Y. 2016) (“If a municipality was acting in a

15 governmental capacity, then the plaintiff must prove the existence of a special

16 duty.”); Applewhite, 995 N.E.2d at 135 (“If it is determined that a municipality

17 was exercising a governmental function, the next inquiry focuses on the

18 extent to which the municipality owed a ‘special duty’ to the injured party.

72 1 The core principle is that to ‘sustain liability against a municipality, the duty

2 breached must be more than that owed to the public generally.” (quoting

3 Valdez, 960 N.E.2d at 361)); McLean, 905 N.E.2d at 1171 (“We have long

4 followed the rule that an agency of government is not liable for the negligent

5 performance of a governmental function unless there existed a special duty to

6 the injured person, in contrast to a general duty owed to the public.” (internal

7 quotation marks omitted)). 12

8 Almost all of these statements were made in the context of “failure to

9 protect”-type cases. See Connolly, 94 N.E.3d at 474 (damage caused by failure

10 to de-energize electrical grid in preparation for hurricane); Turturro, 68 N.E.3d

11 at 697 (failure to adequately consider traffic calming measures, resulting in

12 car accident); Applewhite, 995 N.E.2d at 133 (emergency medical response to

13 anaphylactic shock caused by a non-governmental actor); McLean, 905 N.E.2d

14 at 1169–70 (municipality’s referral of day care provider in whose care infant

12Despite these broad statements regarding the special duty rule’s applicability, in 2011 the Court of Appeals in Valdez v. City of New York described the rule as a “well-established ground[] for a municipality to secure dismissal of a tort claim brought against it by a private citizen injured by a third party.” 960 N.E.2d at 361 (emphasis added). It further observed, “We have deemed it necessary to restrict the scope of duty in this manner because the government is not an insurer against harm suffered by its citizenry at the hands of third parties.” Id. (emphasis added). 73 1 was injured); 13 Florence, 375 N.E.2d at 764 (negligent failure to station a guard

2 at a school crossing, resulting in plaintiff’s child being struck by an

13 The Court of Appeals wrote in McLean that “[g]overnment action, if discretionary, may not be a basis of liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff.” McLean, 905 N.E.2d at 1173. That language, taken in isolation, might be read to suggest that the special duty requirement applies only to ministerial actions, and therefore does not apply to Ferreira’s claim that the City’s discretionary decisions in planning the raid negligently resulted in his injury, even though discretionary immunity does not apply because the City violated acceptable police practices. That interpretation of the statement from McLean cannot be correct, however, as it is incompatible with the Court of Appeals’s resolution of that case. The Court “assume[d], in [the plaintiff’s] favor, that the conduct she complain[ed] of was ministerial,” and then concluded that there could be no liability because she had not shown a special duty. Id. at 1174. If the special duty rule does not apply to discretionary actions, even those that are not protected by discretionary immunity, then the Court of Appeals could not have dismissed the complaint for lack of special duty by “assum[ing],” without deciding, that the tortious conduct was ministerial. It would have also been required to consider whether, if the conduct was discretionary, the City could nonetheless have been liable because it violated its own policies. This conclusion is further confirmed by Valdez v. City of New York, in which the plaintiffs alleged that the police negligently failed to protect against a threatened attack. 960 N.E.2d at 359. Without deciding whether the City’s conduct was ministerial or discretionary, the Court of Appeals explained, “if plaintiffs cannot overcome the threshold burden of demonstrating that defendant owed [them a special duty], there will be no occasion to address whether defendant can avoid liability by relying on the [discretionary] immunity defense.” Id. at 365. Because the Court held that the plaintiffs’ claim failed for lack of special duty, it had no occasion to address the discretionary immunity defense. Id. at 368; see also id. at 365 n.7 (“That was the situation in McLean . . . — [the] plaintiff[] . . . failed to establish that a special duty existed,

74 1 automobile). They did not involve injuries inflicted by government

2 employees, and therefore they could not overrule the Haddock line of cases,

3 which declined to apply a special duty requirement where the plaintiff’s

4 injury was inflicted by a municipal employee. Any suggestion in these cases

5 that, contrary to the Haddock line, the special duty rule applies to cases of

6 municipally inflicted injury was dictum.

7 In Lauer, however, the Court of Appeals dismissed a complaint alleging

8 an injury inflicted by the municipality on the basis of lack of special duty. The

9 plaintiff was investigated by police following the death of his infant son

10 because the New York City medical examiner’s initial autopsy report

11 indicated that the cause of death was homicide by blunt force. 733 N.E.2d at

12 186. Two months after the child’s death, the medical examiner changed his

13 conclusion, now determining that a ruptured brain aneurysm caused the

thereby rendering any further discussion concerning the availability of the [discretionary] immunity defense unnecessary.”). If it were true that the special duty requirement does not apply to discretionary actions, the lack of special duty alone would not require dismissal of the complaint. We further note that the Court of Appeals has long applied the special duty requirement to apparently discretionary acts, such as the failure to provide police protection. See, e.g., Cuffy, 505 N.E.2d at 940. For these reasons, we do not understand McLean to hold that the special duty requirement applies only to ministerial acts. 75 1 death. The medical examiner, however, failed to correct the autopsy report or

2 notify the police. Id. The police investigation continued for seventeen more

3 months, predicated on the subsequently discredited initial autopsy report.

4 The plaintiff sued the medical examiner and the City for, inter alia, negligent

5 infliction of emotional distress based on the failure to correct the reports and

6 accurately inform the authorities. Id. 14

7 In discussing the element of duty, the Court of Appeals stated that “[t]o

8 sustain liability against a municipality [for negligence], the duty breached

9 must be more than that owed to the public generally.” Id. at 188 (citing, inter

10 alia, Florence, 375 N.E.2d 763). The Court continued: “Indeed, we have

11 consistently refused to impose liability for a municipality in performing a

12 public function absent ‘a duty to use due care for the benefit of particular

13 persons or classes of persons.’” Id. (quoting Motyka v. City of Amsterdam, 204

14 N.E.2d 635, 637 (N.Y. 1965)). The Court rejected the plaintiff’s argument that

15 New York City Charter § 557, which established the New York City Office of

16 the Chief Medical Examiner and its responsibilities, provided such a duty,

14It was undisputed before the Court of Appeals that the examiner’s initial error in conducting the autopsy was protected by discretionary immunity. Lauer, 733 N.E.2d at 186–87. 76 1 concluding that the charter provision was not enacted for the special benefit

2 of potential suspects in criminal investigations. Id. at 188–89. The Court also

3 found that the City had not voluntarily assumed a duty to him beyond that

4 owed to the public generally, applying the four-factor Cuffy test. See id. at 189.

5 Finally, the Court rejected the dissents’ suggestion of a duty running from the

6 City to the plaintiff based simply on the City’s negligent creation of a

7 foreseeable harm: “Nor can we agree with the dissenting Judges’ proposed

8 new duty, based on negligent initiation of a course of events with foreseeable

9 harm. This is simply not a prudent expansion of the law.” Id. at 190. Finding

10 no duty running from the municipal defendants to the plaintiff, the Court

11 ordered the dismissal of the complaint.

12 Thus, in Lauer, the Court of Appeals held that a negligence complaint

13 failed for lack of special duty notwithstanding that the injury—emotional

14 distress resulting from a seventeen-month police investigation—was inflicted

15 by the government. Although Lauer did not address, much less purport to

16 overrule, the Haddock line of cases, it nonetheless leaves in doubt the

17 continued validity of the Haddock approach—that the special duty

18 requirement applies only to cases where the claim of municipal liability is

77 1 predicated on the municipality’s negligent failure to protect the plaintiff from

2 harm inflicted by another. 15

3 We cannot confidently predict, on the basis of Court of Appeals

4 precedents, whether that Court will continue to consider the Haddock line of

5 cases to be good law. Applying the special duty requirement to cases of

6 government-inflicted injury would appear to extend the rule far beyond its

7 underlying rationale, as articulated by the Court of Appeals, which

8 recognized the need for some limitation because “the government is not an

9 insurer against harm suffered by its citizenry at the hands of third parties.”

10 Valdez, 960 N.E.2d at 361; see also Schuster, 154 N.E.2d 534 (complaint stated a

11 claim for negligence based on the government having undertaken a duty to

12 protect a highly publicized informant and then failing to do so). The Court of

13 Appeals had also explained that, because the government necessarily has

14 limited resources to allocate for public benefit, no particular member of the

15 public enjoys a particular claim to those resources absent some special

15To be sure, Lauer also contended that the examiner’s negligence caused injuries that were inflicted by third parties, such as being ridiculed throughout New York City. See Lauer, 733 N.E.2d at 186. That some of Lauer’s claimed injuries were inflicted by third parties has no bearing on the theory that the police investigation itself caused him emotional anguish. 78 1 relationship, and to hold otherwise “could and would inevitably determine

2 how the limited police resources of the community should be allocated and

3 without predictable limits,” Mastroianni v. County of Suffolk, 691 N.E.2d 613,

4 615 (N.Y. 1997) (citation omitted). These concerns have no relevance where

5 the government itself inflicts the injury. In such a case, the plaintiff is not

6 claiming a special entitlement to resources or protection from the

7 municipality, but rather that the government itself has culpably inflicted

8 injury.

9 Moreover, to embrace Defendants’ position that municipalities cannot

10 be liable under New York law for injuries inflicted by their employees acting

11 in a governmental capacity, absent a special duty, would shield

12 municipalities from liability for a range of harms that may be inflicted on a

13 member of the public in a “one-off” capacity—for instance, where police

14 negligently shoot hostages and bystanders in ways that violate their

15 department guidelines or acceptable police practice, see, e.g., Johnson, 942

16 N.E.2d 219; Lubecki, 758 N.Y.S.2d 610; Rodriguez, 595 N.Y.S.2d 421, or where a

17 municipality’s negligence results in its employee assaulting a member of the

18 general public, see Haddock, 553 N.E.2d 987. We would find it surprising that

79 1 the New York Court of Appeals intends to shield municipalities from liability

2 in these circumstances, which would go very far towards reinstituting the

3 very immunity that New York’s legislature disavowed in 1929. We are not

4 persuaded that Lauer—or any subsequent case containing a broad statement

5 in dictum of the special duty rule—was intended to overturn, sub silentio, the

6 longstanding Haddock line of cases in which the Court of Appeals did not

7 apply the special duty requirement to claims of government-inflicted injury.

8 Based on the conflicting precedents reviewed above, we find it very difficult

9 to reach a conclusion on the scope of the special duty requirement—which is

10 more a matter of state policy than of law.

11 The Rules of Practice of the New York Court of Appeals provide that

12 we may certify a dispositive question of law to that Court “[w]henever it

13 appears . . . that determinative questions of New York law are involved in a

14 case . . . for which no controlling precedent of the Court of Appeals exists.” 22

15 N.Y.C.R.R. § 500.27(a); see also 2d Cir. R. 27.2(a) (permitting certification as

16 provided by state law). In determining whether to exercise our discretionary

17 power to certify a question to the Court of Appeals, we consider “whether the

18 New York Court of Appeals has not squarely addressed an issue and other

80 1 decisions by New York courts are insufficient to predict how the New York

2 Court of Appeals would resolve it; . . . whether a decision on the merits

3 requires value judgments and important public policy choices that the New

4 York Court of Appeals is better situated than we [are] to make; and whether

5 the questions certified will control the outcome of the case,” Haar v.

6 Nationwide Mut. Fire Ins. Co., 918 F.3d 231, 235 (2d Cir. 2019) (internal

7 quotation marks omitted), as well as the expense and delay that certification

8 imposes on the parties, and, in cases falling under the diversity jurisdiction of

9 federal courts, the constitutionally recognized entitlement of a party to have

10 the case decided by a federal court.

11 Here, these factors favor certification. As discussed above, we find

12 conflicting guidance in the decisions of the Court of Appeals on the question

13 whether the special duty requirement applies to cases of government-inflicted

14 injury. The scope of municipal liability is essentially a question of policy that

15 the Court of Appeals is better situated than we are to decide. See Lauer, 733

16 N.E.2d at 187. Finally, the question certified will control our disposition of the

17 case. As discussed above, we reject the City’s other arguments for upholding

18 the district court’s grant of JMOL. Thus, if Ferreira must establish a special

81 1 duty to sustain his claim that the City’s negligent planning of the raid caused

2 Miller to shoot him, the City is entitled to judgment as a matter of law.

3 Otherwise, the judgment of the district court should be vacated, and the jury

4 verdict awarding very substantial damages to Ferreira should stand. 16

5 Accordingly, we respectfully request the guidance of the New York

6 Court of Appeals, and certify to it the question set forth in the conclusion

7 below.

8 We invite the Court of Appeals to reformulate or expand upon this

9 question as it deems appropriate to determine whether Ferreira has failed to

10 establish the City’s liability for its negligence in planning the raid in view of

16We note that, under the Haddock approach, the special duty rule is inapplicable regardless of whether the negligent municipal action alleged is the immediate cause of injury, such as the negligent firing of a gun, or an earlier negligent action that results in a government employee inflicting injury. In Haddock, the plaintiff claimed that the City had negligently retained a Parks Department employee with a violent past, which resulted in her being raped by the employee while attending at a public park. The Appellate Division rejected the defendant’s argument that the special duty rule applied, explaining that the case “does not . . . involve the concept of a ‘special duty’” because “plaintiff is not complaining of a general failure to provide police protection, but is rather alleging the negligent retention of a dangerous employee.” Haddock, 532 N.Y.S.2d at 381, aff’d, 553 N.E.2d 987. Similarly, if Haddock remains good law, the special duty rule is inapplicable to Ferreira’s claim that the City’s negligent planning caused Miller to shoot him. 82 1 the fact that, as Ferreira concedes, the City owed no special duty to him

2 beyond the duty of care it owed to the public generally.

3 CONCLUSION

4 For the foregoing reasons, we certify to the New York Court of Appeals

5 the following question:

6 Does the “special duty” requirement—that, to sustain liability in

7 negligence against a municipality, the plaintiff must show that the duty

8 breached is greater than that owed to the public generally—apply to

9 claims of injury inflicted through municipal negligence, or does it apply

10 only when the municipality’s negligence lies in its failure to protect the

11 plaintiff from an injury inflicted other than by a municipal employee?

12 It is hereby ORDERED that the Clerk of this Court transmit to the Clerk

13 of the New York Court of Appeals this opinion as our certificate, together

14 with a complete set of briefs, appendices, and the record filed in this case by

15 the parties. The parties shall bear equally any fees and costs that may be

16 imposed by the New York Court of Appeals in connection with this

17 certification. This panel retains jurisdiction for purposes of resolving this

83 1 appeal once the New York Court of Appeals has responded to our

2 certification.

3 CERTIFICATE

4 The foregoing is hereby certified to the New York Court of Appeals

5 pursuant to 22 N.Y.C.R.R. § 500.27(a) and 2d Cir. R. 27.2(a), as ordered by the

6 United States Court of Appeals for the Second Circuit.