Family of man fatally shot by NYPD sergeant files suit challenging Tisch decision to save cop’s job

The family of a man fatally shot by police during a Bronx traffic stop six years ago is taking Police Commissioner Jessica Tisch to court over her decision to save the job of the NYPD lieutenant who pulled the trigger, the Daily News has learned.

In what’s believed to be an unprecedented move, relatives of Allan Feliz and advocates, which include the Justice Committee, filed a lawsuit in Manhattan Supreme Court late Wednesday, asking a judge to void the Commissioner’s decision not to terminate Lt. Jonathan Rivera’s employment over the shooting during the 2019 traffic stop.

They are also asking a judge to order Rivera’s termination, the initial recommendation handed down by NYPD trial judge Deputy Commissioner Rosemarie Maldonado in March after finding him guilty in an administrative proceeding of first-degree assault following a disciplinary trial.

“After hearing Rivera’s testimony at the administrative hearing, Maldonado found Rivera obstinate, defensive, and not credible, and she explained the same in her decision, which found Rivera guilty and recommended that Rivera be fired,” the lawsuit states. “Nonetheless, and despite these findings, Police Commissioner Jessica Tisch issued a memorandum stating that, based on her review of the record, she believed that Deputy Commissioner Maldonado was wrong, and the investigators from the (state attorney general’s office) were right.”

Rivera contended that he fired believing that Feliz was about to run over a cop on the other side of the car. The attorney general’s report, filed in 2020, concluded that there was “insufficient evidence” to establish that Rivera, who was a sergeant at the time of the shooting, committed a crime.

“Although Sgt. Rivera’s perception of the risk to (the other officer), as provided in his account of the incident, was not ultimately accurate, it was a reasonable perception – or at least not an obviously unreasonable one – particularly in light of the considerable video evidence consistent with his account,” the AG report stated. “Therefore, the OAG has determined that Sgt. Rivera’s use of deadly physical force could not – as the legal standard requires – be proven to be unjustified beyond a reasonable doubt.”

While the New York City charter gives the police commissioner authority and final say over all administration and disciplinary matters involving NYPD officers, and can impose stricter or more lenient sentencing if she wishes, attorneys for the Feliz family claim in court papers that Tisch’s “discretion is limited.”

“Failing to consider five years of new evidence, including the hearing officer’s findings, is textbook arbitrary and capricious agency action. And overturning a hearing officer’s credibility findings — something even a court cannot do — is an abuse of her discretion,” attorneys wrote.

The lawsuit is the first step in an Article 78 proceeding, which challenges a decision by a city agency. The city has 20 days to respond to the claims and oral arguments may be held before a judge renders a decision.

Attorneys who regularly handle cases in the NYPD trial room claim they have never heard of the family of someone shot by police asking a supreme court judge to overturn the police commissioner’s decision in a disciplinary matter.

“There’s no chance of success,” one attorney, who wished not to be named, said. “The city gives police guns and when they give police guns, the police commissioner is the final arbiter. They’ll never take that away from him or her and I doubt there’s anything in this case that could compel a judge to do so.”

A second attorney said that the lawsuit would most likely be dismissed since the Feliz family wasn’t part of the disciplinary case and couldn’t legally be considered an aggrieved party.

But attorney Andrew Case, who is representing Feliz’s family, said that city employees like cops and teachers routinely ask for a Article 78 proceedings when the have been fired or feel they have been penalized too harshly over a disciplinary matter. “The only thing that’s novel in this case is instead of an employee saying this punishment is too severe, we have a family saying this punishment is not adequate,” Case said.

Feliz’s family has been calling for Rivera’s firing for years.

“Allan’s death has left a bottomless void at every holiday, family gathering, and event,” Samy Feliz, Allan’s brother said in written affirmation attached to the court document. “I hoped and prayed that the investigations and the NYPD discipline process would not only lead to holding Rivera accountable for killing my brother, but also to his removal from the police force.”

On Oct. 17, 2019, Rivera and two other officers pulled Feliz over in his Volkswagen near Woodlawn Cemetery in the Bronx for not wearing a seat belt, according to police. For some reason, Feliz handed them a driver’s license that actually belonged to his brother, Samy, who had three minor warrants — for spitting, littering and disorderly conduct — according to police. The officers reportedly asked him to step out of the car so they could pat him down, but Feliz hit the gas and tried to drive away while an officer was trying to pull him out of the car, officials said.

Rivera fired his Taser at Feliz, then got into the car on the passenger’s side and threatened to shoot Rivera as a physical struggle ensued, according to body camera footage, as another officer attempted to yank Feliz out of the vehicle.

“Yo! If I have to end up f—–g shooting you, bro!” Lt. Rivera is heard screaming.

Moments later, as the car lurched forward and a cop on the other side of the Volkswagen fell backward, Rivera shot Feliz in the chest. Feliz later died at Montefiore Medical Center.

In her recommendation to fire Rivera, Maldonado said that “the credible evidence casts serious doubt on, and ultimately disproves, (Rivera’s) assertion that when he fired the fatal shot directly into Mr. Feliz’s chest, he actually believed it was necessary to protect (the other officer) from imminent deadly force.”

The family’s lawsuit noted that in her 11 years as a Deputy Commissioner of Trails for the NYPD, Maldonado only twice recommended the firing of a police officer. The only other time was when she rendered her decision against Police Officer Daniel Pantaleo, a cop who was terminated in 2019 over the killing of Eric Garner in an illegal chokehold.

Commissioner Tisch conducted an exhaustive review of Maldonado’s findings and issued a nine-page decision on Aug. 15 indicating she sided with the attorney general’s report.

On Aug. 19, the Civilian Complaint Review Board sent Tisch a letter asking to reconsider her decision. She responded last month, stating in her letter that she went over Maldonado’s recommendation “one point at a time” but still disagreed with her recommendation.

The NYPD and the city Law Department declined to comment, saying they haven’t yet seen a copy of the lawsuit.