BROOKLYN, N.Y. (CN) – New York City cops cannot dismiss a lawsuit that accuses them of knowingly shooting an unarmed man in the face, even though that same man pointed a semi-automatic firearm at them minutes earlier while they chased him down for firing the gun near a crowd of rush-hour commuters, a federal judge ruled.
Patrick Ledger, suing from prison, is serving a 13-year sentence at Elmira Correctional Facility after pleading guilty to attempted murder in the second degree in Queens Supreme Court on April 17, 2008. The police deny Ledger was unarmed when they shot him, and sought to toss his case in a motion for summary judgment.
On Wednesday, U.S. District Judge Allyne Ross said cops will have to prove their claims to a jury.
“At around rush hour on November 13, 2006, near a crowded subway station and bus stop in Queens, plaintiff pointed a large semiautomatic weapon in the air and discharged five rounds while yelling incoherently,” the order states.
According to his complaint, Ledger said he was trying to defend himself from men who had threatened to kill him and his family, and the shots he fired in the air were meant to clear the area of bystanders.
Those gunshots prompted several 911 calls, and Sgt. Brian O’Toole and Officer Ronald Martiny responded to the scene. Ledger fled when he heard police sirens and saw cop cars.
According to court documents, both parties agreed that Ledger pulled out the weapon and pointed it at the cops, who thought it was a machine gun. Ledger said he then entered a Radio Shack parking lot in Jamaica, Queens, and crouched between two cars parked beside a cement wall with a chain link fence on top of it.
This is where the accounts diverge.
The cops said Ledger ignored their commands to drop his firearm and drew them into a gunfight. They claimed that Ledger, firearm in hand, scaled the chain-link fence, and turned to shoot while hanging by one hand.
Officer Martiny said he fired at that moment, hitting Ledger’s left eye and causing the suspect to fall on one side of the fence with his gun on the other. The police said they arrested him and did not attack him again.
Ledger, on the other hand, said he threw his gun over the fence and yelled, “Don’t shoot, don’t shoot, don’t shoot.” Then he allegedly put his hands in the air and stood up slowly. He said the alley was lit well enough for the cops to see that he was unarmed, but they shot him in the head and “busted [his] head open” until he was unconscious.
Court documents say that the NYPD recovered two live .45-caliber bullets and a bag containing an extra magazine from the space where plaintiff had crouched. A Masterpiece ACP firearm for these bullets also lay on the far side of the fence.
When the weapon was recovered, its trigger was locked in the “safe” position, but its bullet casings were recovered from the parking-lot area, the order states.
Ledger sued New York City, the NYPD, Martiny, O’Toole, Detective Jeffrey Katz and two unidentified officers on May 22, 2009, more than a year after his guilty plea.
In a motion to toss the suit, the defendants said that no reasonably jury could believe the cops used excessive force.
“Even if the court were to credit plaintiffs self-serving assertion that he did not have the gun in his possession at the time he was shot, then the court must also look to plaintiff’s admitted actions up to that point-taking out a large firearm, in a crowded area, raising it in the air, firing it into the air five times, running away from police officers, and crouching behind a car, all with the weapon in his possession – all of which would lead no reasonable officer to believe that plaintiff would safely surrender, and no reasonable juror to find that plaintiff’s Fourth Amendment rights were violated,” according to the motion to dismiss.
Judge Ross was not convinced.
“If a jury believed plaintiff in this case, it could find that defendants knew that he posed no significant or immediate threat at the moment that he was shot and, thus, that his Fourth Amendment rights were violated,” the nine-page order states.
Ledger’s allegation that the cops beat him when he was down is ripe for a jury, too, Ross ruled.
“If a jury believed plaintiff in this case, it could find that defendants knew that he posed no significant or immediate threat at the moment that he was shot and, thus, that his Fourth Amendment rights were violated,” he stated.
In a footnote, Ross added that cops may be splitting hairs by saying that they did not beat Ledger after he was handcuffed.
“[T]hey do not specifically address what force may have been used from the time plaintiff was shot to the time he was placed in handcuffs,” he wrote.
The unpublished order was signed July 21 and filed today (Wednesday).