On March 1, 2000 at about 6:30 p.m., New York City Police Officer Luis Rivera was patrolling a high crime area in the Bronx. He was with members of his special narcotics unit and he was acting undercover, in plainclothes. Noticing four men acting suspiciously at the entrance to a four story building on Boynton Avenue, Rivera approached the building and pushed open the door.

Here is 1045 Boynton Avenue, Bronx, New York, where events unfolded that fateful night:

As he entered and after identifying himself as a police officer, the four suspects ran away but Rivera caught Malcolm Ferguson by the arm. Continuing to run away, Ferguson dragged Rivera but when they reached a stair landing and tumbled to the ground Ferguson made it no further and died right then and there.

The 23 year old unarmed Malcolm Ferguson had been shot in the head point blank by Police Officer Rivera while the two of them struggled on the ground.

Rivera said he pulled his gun because he feared for his safety given that it was pitch black in the stairwell and he didn’t know where the other three men were. The officer claimed he hadn’t intended to shoot Ferguson, that the gun went off by accident when he had to grab Ferguson with his gun hand that he hadn’t been able to re-holster due to the struggle.

The Bronx County District Attorney conducted a full investigation and concluded that the evidence supported Officer Rivera’s statement that the shooting was accidental. Nonetheless, Mr. Ferguson’s mother, Juanita Young, brought a wrongful death lawsuit against the officer and the city. After hearing from the officer and his colleagues, the Bronx jury ruled that excessive force had been used and therefore Ferguson’s estate was entitled to damages in the sum of $3,000,000 for pain and suffering and fear of impending death.

Additionally, the jury awarded $7,000,000 in punitive damages finding that the police officer’s actions were wanton and reckless.

In a post-trial decision, the trial judge vacated the pain and suffering award and ordered a new trial as to the punitive damages award.

This week in Ferguson v. City of New York, the appellate court ruled as follows:

  1. the $3,000,000 pain and suffering award dismissal by the trial judge was affirmed and
  2. the punitive damages award was reduced from $7,000,000 to $2,700,000.

As we’ve discussed before, here and here, to support an award for pre-death pain and suffering, there must be proof that the decedent was conscious for some period of time after the underlying incident. Without pre-death cognitive awareness of pain, the courts have consistently held that there can be no sustainable damages for pain and suffering. In other words, there has to be proof that the decedent actually suffered pain and there is no such proof possible when death is instantaneous.

In Malcolm Ferguson’s case, the defense prevailed on their claim that there should be no pre-death pain and suffering award because the decedent died within 60 seconds (according to the coroner) and there were no facts indicating he was conscious for even a moment after the shooting or that he groaned or in any way was aware of his impending death.

The appeals court rejected plaintiff’s claim that the award should be sustained because Malcolm feared his impending death from the moment the chase and struggle began. The evidence indicated that Rivera pulled his gun only a moment before the shooting and Ferguson never even knew the gun had been pulled, was inches from the back of his head and he was about to be shot. He never saw it coming and thus there were no facts to support a claim of fear if impending death.

The court did not discuss but implicitly distinguished and rejected a case relied upon by the plaintiff – Lubecki v. City of New York (1st. Dept. 2003) in which a $3,000,000 pre-death pain and suffering award was affirmed in another type of excessive force by police officers case. There, the officers shot a bank robbery hostage after a standoff. There was evidence that the decedent turned her head and tried to speak to her sister as she lay mortally wounded but before she was pronounced dead an hour later. Additionally and perhaps most critically, before the three gunshots (first to her thigh, then her ankle and finally her chest), the appellate court noted that the decedent experienced pre-impact terror which, along with the significant injuries sustained before her death, supported the pain and suffering award in Lubecki v. City of New York.

As to punitive damages in Ferguson v. City of New York, the appellate court found that there was sufficient evidence for the jury to conclude – as they did – that the officer’s actions were wanton, reckless or malicious. It was therefore within the jury’s power to render an award of punitive damages; however, the court held that $7,000,000 was excessive and it ordered a reduction of the punitive damages to $2,700,000.

Inside Information:

  • The jury in Ferguson v. City of New York also awarded about $317,000 in economic damages to the decedent’s mother with whom he had resided. There was credible evidence that Malcolm had contributed $50 per week to help support his mother and that he helped her with household chores and that he’d have continued to do both for 25 more years.
  • Ferguson’s death was just a month after the acquittal of police officers in the notorious Amadou Diallo case (the civil suit with respect to which later settled for $3,000,000). Five days before his death, Malcolm had been among demonstrators protesting the acquittal and spent the night in jail for disorderly conduct and resisting arrest.
  • In a separate matter, Malcolm Ferguson’s mother, Juanita Young, won $450,000 in pain and suffering damages for wrist injuries caused by the city police. As we discussed, here, Ms. Young was injured when she fell down stairs in 2003 while being arrested in connection with her eviction from her apartment.