Opinion writer

In August 2011, a SWAT team in Binghamton, N.Y., conducted an early morning drug raid. As one of the officers took a battering ram to the door, Jesus Ferreira was sleeping on the couch. Ferreira wasn’t a suspect. He happened to be visiting. Within seconds, one officer shot him, claiming that Ferriera was “moving toward him” and had something in his hand. Ferreira suffered significant injuries, and doctors later had to remove his spleen.

No one disputes that Ferreira was unarmed. But the police claim he had a video-game controller in his hand, which the officer who shot him mistook for a gun. Ferreira and his lawyers say that he was sleeping at the time of the raid, that he raised his hands when the police entered and that they put the controller in his hand after the fact to retroactively justify the shooting.

Ferriera sued. The result of that lawsuit demonstrates yet again just how difficult it is for even completely innocent people shot by police to get any sort of justice.

In Ferreira’s case, the jury found that the officer who shot him was not personally at fault, but that the City of Binghamton was liable for not properly training the SWAT team. There’s good evidence for this. The raiding cops brought the wrong-sized battering ram, making it difficult for them to get inside quickly. One of the officers shot Ferreira within seconds, despite the fact that he was unarmed. They had no layout of the house. They weren’t aware of the fact that Ferriera was a guest on the night of the raid, which is at least suggestive of little or no surveillance. The jury awarded Ferreira $500,000 in damages, plus more than $2 million in future damages for his ongoing pain, suffering and medical care.

Both Ferreira and the city appealed. The city, of course, appealed the finding against it, and Ferreira appealed the jury’s finding that the officer who shot him wasn’t liable for his injuries. Late last month U.S. district court judge Thomas McAvoy issued his decision. Ferreira is out of luck. McAvoy first upheld the finding of no liability for the officer. He then found that the City of Binghamton isn’t liable, either.

Let’s first look at the officer’s individual liability. First, the judge’s decision was probably correct under the law. It is nearly impossible to overturn a jury verdict in a case like this. It’s basically Ferreira’s version of what happened vs. the police narrative. The jurors believed the police narrative. My guess is that the jury didn’t want to find the officer personally liable but did believe Ferreira was wronged, so it decided that the city should pay instead. Note this ruling by McAvoy during pretrial motions, in which he bars Ferreira’s attorneys from telling the jury that if the officers are found individually liable, they’ll be indemnified by the city. It takes a lot to overturn that.

But it does illustrate the core problem with these raids. Even taking the police version of the story at face value, there’s zero evidence that Ferreira attacked them. They aren’t even arguing as much. They’re arguing that it was reasonable for the officer who shot Ferreira to think Ferreira was attacking him.

At worst, Ferreira was holding a video-game controller and moving toward the SWAT team as it came in. There are any number of reasons he might do that. He may have just been getting up to flee from the armed intruders. He might not have known they were police. He might have simply been trying to get his bearings and process what was happening. As Ferreira’s lawyers argue, for him to willingly attack a raiding SWAT team with a video-game controller would have been suicidal. At worst, he woke up and was processing a mental state somewhere between disoriented and terrified. Here’s the thing: That’s exactly what these raids are designed to do. Even taking the police narrative at face value, Ferreira, an innocent man, did not act in any way different from how you would suspect someone to act in these circumstances. These raids are intended to surprise, to disorient and to instill fear. That’s why there’s no knock or announcement, or if there is, the police don’t wait long enough for anyone to come to the door to avoid the violence. It’s why they often wear masks. It’s why they yell. It’s why they do all of this in the wee hours of the morning. Of course, by Ferreira’s account, he didn’t move toward the police, wasn’t holding a video-game controller and did comply with police commands.

One other thing: McAvoy notes in his ruling that the city argues that these raids are extremely volatile, and therefore officers should be granted a great deal of leeway when making mistakes such as shooting innocent people. The city is right. These raids are extremely volatile. But the police themselves created that volatility. They didn’t have to go in with a SWAT team early in the morning. They chose to. And despite the fact that the police have the advantage of both training and of being the party that is aware of what’s happening, the police are given extraordinary leeway to make mistakes during these raids. The people on the receiving end of the raids are not. This case again is a perfect example. In the heat of the moment, the cop who shot Ferreira shot an innocent, unarmed man. He did this despite his training, and despite the fact that he knew what was happening as it was happening. The city of Binghamton argued in court that Ferreira bore the ultimate responsibility for his own injuries. Because he rose up and moved toward the officers with a video-game controller as the raid went down, he had no one to blame but himself. The cop who shot Ferreira can make mistakes that end lives. Ferreira was expected to react perfectly — to wake up, immediately realize that the armed men breaking into the home were police and immediately know how to surrender in a manner that could in no possible way be interpreted as a threat.

Even the jury that seemed to want to side with Ferreira found him 10 percent liable for his own injuries. McAvoy found him completely liable. Moreover, McAvoy found that the SWAT team’s own mistakes further shield them from liability:

The SWAT team entered the apartment after being informed that the occupants of the apartment likely had weapons, and after they had lost the element of surprise because the ram did not immediately open the door.

One more thing on this particular point. The police and city argued — and McAvoy agreed. He quoted this line from the shooting officer’s testimony:

[T]he only time we get called is if somebody reasonably believes or has done, you know, an investigation and they have a belief that there’s you know, firearms or something, that they’re a violent individual. Anything that would require that next step which is what we are. We’re not your standard knock on your door, pull a car over, something like that.

Perhaps that was true in this case, too. Usually in these types of cases, the police immediately release what they found in the raid. Local press accounts indicate whether any drugs or weapons were found in the house. In fact, the Binghamton Press & Sun-Bulletin reported in 2014 that it had requested documents such as the search warrant and affidavit and return sheet (listing what police found in the raid) under New York open-records laws. The request was denied. The city had apparently requested that the files be sealed. In pretrial motions, McAvoy did rule against Ferreira’s lawyers’ attempt to exclude as prejudicial any “drugs or drug paraphernalia” found at the scene. That suggests that police found at least something. But there is no mention of any weapons. And the fact that the police never disclosed the quantity of drugs at least suggests — but isn’t necessarily proof — that what they did find was negligible.

Let’s now look at the city’s liability. McAvoy writes that under controlling case law for the 2nd Circuit, a municipality is liable only for injuries due to negligence to a third party if the city has a “special relationship” with that party. The injured party has to meet four criteria to establish this relationship:

(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.

McAvoy ruled that Ferreira did not meet these criteria.

Plaintiff admits that he was “not the subject of the no-knock warrant for 11 Vine Street on the morning of August 25, 2011, and the police did not know he was in the apartment.” No evidence at trial or in the record indicates that Plaintiff ever had any direct contact with the Binghamton Police or any Binghamton official before the SWAT team arrived to execute the no-knock warrant. Likewise, no evidence produced at trial indicated that the Defendant City ever took on any particular duty to the Plaintiff. Under those circumstances, no claim against the City for negligence could lie.

Ponder that for a moment. Under McAvoy’s ruling, when the police break down the door to a house, rush inside and shoot someone, they owe a duty of care to the person named on the warrant, but not to any innocent people who may be inside. McAvoy’s very innocence precludes him from suing the city.

I don’t know enough about the controlling 2nd Circuit case law to know if McAvoy is right on the law here. But if he is, the law is awful. You could make a pretty strong argument that once SWAT officers break down a door, they’ve established a “special relationship” with anyone they may encounter inside the home. Under McAvoy’s interpretation, if a poorly trained SWAT team raids the wrong house and kills everyone inside because, say, it got the wrong address, there wouldn’t be enough of a “special relationship” with the victims to establish municipal liability.

Let’s also talk about the city’s decision to go to court. The city didn’t need to. It chose to. An innocent man was severely injured due to mistakes by a raiding SWAT team and an additional, potentially deadly mistake by one of its members. Instead of admitting as much and trying to help make Ferreira whole, the city decided to fight him in court. The city won, despite the fact that Ferreira was not suspected of any criminal activity, did not point a gun at the SWAT officers and was never charged with any crime after the raid. Unless he wins on appeal, he’ll have to foot the bill for his medical expenses on his own.

In the end, the city of Binghamton is arguing that (a) the officer who shot Ferreira followed all the proper protocols and procedures, and (b) nothing about those protocols and procedures needs to be changed. In short, the City of Binghamton argued that an innocent man losing his spleen is a perfectly acceptable outcome from a drug raid. And a federal court agreed.