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Boston ordered to pay $100,000 negligence award to woman injured in shootout between police and her sister's boyfriend

The Massachusetts Appeals Court ruled today a Boston police officer's negligence sparked a fatal 2011 shootout that left one man dead and a police officer and the man's acquaintance shot - and that the negligence went beyond the limits set by a state law that normally bars suits against cities and towns.

The ruling upholds a $100,000 negligence verdict against the city of Boston in favor of Niquel Reid, who was shot in the leg during an exchange of gunfire on Dunbar Avenue between two police officers and her sister's boyfriend, Tyrone Cummings, who suffered gunshot wounds that later killed him.

The city had sought to have the Suffolk Superior Court award overturned, arguing it was shielded by a state law that bars suits involving "a failure to provide police protection," and that, in any case, the officers who opened fire were not the ones who put a bullet in Niquel Reid's leg.

But the appeals court said there are limits to the law and officers and their employing city are not absolved in all cases of negligence. The court ruled that in this case, the shootout was sparked by negligence by a third officer in the incident, because he decided by himself, without telling the other officers or Cummings, that he was about to grab Cummings from behind and conduct a pat frisk.

The entire incident started when Reid's sister and Cummings got into an argument and the sister called 911, although Cummings was calmly standing outside her apartment - and talking to Reid - as Reid's sister got her child ready for school when police arrived, according to a court summary of the case.

But one of the officers spotted Cummings neck artery "pounding" and noted his unusual stance and so suddenly grabbed him from behind to frisk him. And here's where things went wrong, the court said:

[Officer Charbel] Kamel's sudden action caught his partner [Shawn] Marando by surprise because he was in the middle of "deescalating" the situation and making sure everyone was calm. Marando testified that he would not have made "an aggressive move" such as initiating a patfrisk in such circumstances.

In response to being grabbed, Cummings pulled out a gun and began shooting - and kept shooting even after he himself was shot. One of his bullets went through Reid's leg, another into Marado.

The city argued that a section of the state Municipal Tort Claims Act that bars suits over police negligence that later lets somebody commit a crime applied to Reid getting shot in the leg by Cummings after police had arrived in response to a 911 call that Cummings might have been yelling at Reid. The justices gave several examples of how the law applies, including:

A town could not be held liable for a fatal automobile accident that occurred after a police officer first failed to prevent a person the officer knew to be drunk from getting into a car and driving away, and then abandoned pursuit when the driver did not stop
for the officer's flashing lights.

But, the court continued, that was not the case here:

Here, the plaintiff's successful theory of liability was not that the police officers failed to protect her from a threat, but rather that the officers' affirmative conduct created a danger that did not previously exist.

In other words, had the officer not grabbed Cummings from behind, there might not have been a shootout and Reid might not have been shot.

The plaintiff prevailed at trial not by showing that the police failed to prevent Cummings from committing a crime, and not by showing that the police failed to provide adequate protection to the public in an emergency situation, but rather by showing that the officers' negligent actions in performing their duties created a harm that did not otherwise exist, causing her injury. [The law] does not bar such a claim.

Specifically, the court said:

Officer Kamel's intervention placed the plaintiff in a worse position than she was in previously. By approaching Cummings from behind and suddenly seizing him -- without informing his fellow officers, or Cummings, of his intent - Kamel escalated what had previously been a calm, controlled encounter into a shootout. ...

Cummings's violent reaction was a reasonably foreseeable result of the officers' preshooting negligence. The city's manual on the use of force recognizes that patfrisks are dangerous because the subject "may have a dangerous weapon." The plaintiff's expert, and the officers themselves, testified that it is reasonably foreseeable that the subject of a patfrisk will be armed and dangerous. Kamel agreed that patfrisks are dangerous because the subject may be expected to possess a weapon, remove it, and cause an altercation. Indeed, Kamel testified that based on the way Cummings was standing, and the fact that his carotid artery was "pounding," he was probably armed. A rational view of the evidence allowed the jury to find that Cummings's acts were reasonably foreseeable and, indeed, actually foreseen.

The court continued it did not buy the city argument that upholding the verdict would "create a disincentive for police officers" to conduct patdowns or take other steps during an investigation of somebody:

Municipalities will not be liable every time an attempted patfrisk goes awry. To prevail, a plaintiff must show that the officers acted negligently, breached their duty of care, and actually caused injury -- inherently fact-specific inquiries. And this case presents unique facts. The officers failed to read supplemental text messages informing them of information crucial to responding appropriately to the scene. When the officers arrived, they did not separate the parties, who were within arm's reach of each other. Kamel failed to inform the other officers that he intended to conduct a patfrisk, and then proceeded to do so without restraining Cummings or taking any necessary precautions. Moreover, as the plaintiff's expert in police practices testified, the officers did not encounter a dangerous, fast-moving situation. When confronting a perilous and quickly evolving emergency, even officers' hasty actions may be reasonable in the circumstances, or injury to bystanders unavoidable. The jury reasonably concluded that that was not the case here.

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