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Velez v. City of New York

United States Court of Appeals, Second Circuit

September 18, 2013

Towanda Velez, as personal representative of the Estate of Anthony Velez, deceased, Plaintiff-Appellant,
v.
City of New York, Rudolph Hall, and Michael Ruggiero, Defendants-Appellees

Argued: March 6, 2013

Plaintiff-appellant Towanda Velez, representing the estate of her son, Anthony Velez, sued the City of New York and several named and unnamed police officers in the United States District Court for the Eastern District of New York (Eric N. Vitaliano, Judge), alleging that the defendants were liable for her son's death. Anthony Velez was murdered after the defendant police officers searched an apartment based on a confidential tip from Velez. A jury found for the defendants. On appeal, plaintiff principally contends that the district court erred in instructing the jury that New York law required the plaintiff, as a prerequisite to liability, to establish a special relationship between the defendants and Velez. Because we find no error entitling plaintiff to a new trial, we affirm the judgment of the district court.

Michael G. O'Neill, Esq., New York, New York, for Plaintiff-Appellant.

Kathy H. Chang, Assistant Corporation Counsel (Larry A. Sonnenshein, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, for Defendants-Appellees.

Before: Lynch, Lohier, and Carney, Circuit Judges. [*]

Gerard E. Lynch, Circuit Judge

Plaintiff-appellant Towanda Velez ("plaintiff"), representing the estate of her deceased son, Anthony Velez, brought this action against defendants- appellees the City of New York, and two New York City police officers, Rudolph Hall and Michael Ruggiero, in the United States District Court for the Eastern District of New York (Eric N. Vitaliano, Judge), alleging that the defendants were liable for her son's death.[1] Anthony Velez ("Velez") was shot and killed shortly after a team of officers acting under Ruggiero's supervision searched an apartment based on a confidential tip from Velez. A jury found that the defendants were not liable for Velez's death. On appeal, plaintiff contends that she is entitled to a new trial for two reasons. First, plaintiff takes issue with the district court's jury instructions, which required the jury to find that Hall and/or Ruggiero had a "special relationship" with Velez in order to find them or the City liable for negligently causing Velez's death. Plaintiff contends the instructions were erroneous because (1) a special relationship existed as a matter of law; (2) the special relationship rule is limited to cases of nonfeasance as opposed to misfeasance; and (3) the City could be found to have a "special relationship" with Velez based on the acts or knowledge of some combination of City agents, not limited to Hall and Ruggiero. Second, she asserts that the district court erred by dismissing plaintiff's state law negligent training claims against the City on the grounds that the officers were acting within the scope of their employment. Because we find no error entitling plaintiff to a new trial, we AFFIRM the judgment of the district court.

BACKGROUND

I. Underlying Events[2]

In 2002, after becoming acquainted with Officer Hall, Velez began working with the New York City Police Department as a confidential informant. Hall, who was Velez's secondary handler, sometimes received tips from Velez regarding criminal activity. Velez's tips were used to support search warrant applications until early 2004, when a state trial court judge deemed Velez unreliable. From that point, although Velez may no longer have been an official confidential informant, he continued to communicate with Hall, conveying information concerning criminal activity.[3]

In February 2004, Velez contacted Hall regarding a criminal named "Sonny, "and advised that he had seen drugs and weapons at Sonny's apartment. Velez asked Hall for the telephone number for Gunstoppers, a program that provides monetary awards to individuals who anonymously report information about guns.[4] Hall gave Velez the number, and advised his supervisor, Michael Ruggiero, that the department would receive a Gunstoppers tip. While Hall never revealed the source of the tip, Ruggiero had a "pretty good idea" that it had come from Velez.

Velez's Gunstoppers tip was referred to Ruggiero's unit. Ruggiero ran computer checks on the apartment location and found five active arrest warrants, including a parole warrant, for persons residing at that address. None of the warrants was for anyone named Sonny. Ruggiero explained to his team that they would proceed to the apartment and arrest any of the subjects of the arrest warrants, and debrief those persons later at the station house to determine whether any had information that might support a search warrant. No officers discussed Velez as the possible source of the tip.

When Ruggiero and the other officers arrived at the apartment, Velez unexpectedly appeared at the doorway. Although Ruggiero recognized Velez, he did not alert any of the other squad members of Velez's identity. Ruggiero instructed another officer to hold Velez in the hallway, while the rest of the squad entered the apartment, where they saw a woman and another man.[5] The woman gave the officers permission to search the rear bedroom, where they found a gun inside a dresser drawer, and drugs in plain view. Ruggiero arrested the woman and the man, who was the subject of the outstanding parole warrant. Sonny was not at the apartment.

The officers did not arrest Velez, as he did not fit the description of anyone named in the arrest warrants. Shortly after officers arrived back at the precinct with the arrestees, Ruggiero learned that a man had been shot outside the entrance of the apartment. The victim, as it turned out, was Velez. When police arrived at the scene, Velez, who was still conscious, told ...


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