Judge: Mount Vernon not liable for off-duty officer's menacing in Brooklyn
Mount Vernon has been dismissed from a lawsuit accusing the city of failing to adequately train, supervise and discipline a police officer who twice was convicted for misusing a gun.
Acting state Supreme Court Justice Demaris Torrent ruled last week that the city could not be held responsible for a September 2019 incident in Brooklyn where Orville Kitson, while off-duty, pulled a gun on a security guard who forcibly kept him from entering a Coney Island party.
Kitson was convicted this past summer of menacing in that incident and sentenced to probation. He was fired after nine years with the Mount Vernon Police Department. He had been allowed to remain a police officer after a previous misdemeanor conviction in Westchester for firing his gun in the air while off-duty outside a Mount Vernon bar in 2016.
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Although Kitson was placed on modified duty after that shooting, it took months for police to notify the District Attorney's Office. He was charged and pleaded guilty 20 months later.
Lawyers for Aaron Nickey, the security guard who sued Mount Vernon and Kitson in 2020, plan to appeal Torrent's ruling, saying it should be left to a jury to decide if the city's negligence contributed to the Brooklyn incident.
Nickey sought to hold the city responsible because the police department did not adequately discipline Kitson after the first conviction. The lawsuit alleged assault and battery, negligent and intentional infliction of emotional distress, and negligent hiring, training, supervision and retention.
A Coney Island party
Kitson was attending an outdoor party in Coney Island on Sept. 15, 2019, when he went to get his car and returned to the party to get his wife. According to court documents, Nickey would not let him go back in until enough guests had left. When Kitson started to reenter, Nickey grabbed him in a bear hug and threw him to the ground after Kitson head-butted him several times. Kitson then got up and pointed a gun at Nickey, who said he heard a "click" like the trigger had been pulled. No bullet was fired.
Both sides agreed that Kitson was off-duty and never identified himself as a police officer when he pulled the gun on Nickey. Because the incident occurred outside the scope of Kitson's employment, Torrent ruled that the city could not be held liable for the assault and emotional distress claims.
The judge agreed with the city's lawyers from the Quinn Law Firm that Mount Vernon officials could not anticipate that Kitson might act the way he did in Brooklyn. The shooting incident in Mount Vernon three years earlier was not an act of violence against anyone, they argued, so was not similar conduct that would have put the city on notice. They also emphasized that the city had put Kitson on modified duty and required him to take additional training before he was reinstated.
But Gabriel Harvis, one of Nickey's lawyers, said Wednesday "there was more evidence of similarity" between the two cases than the judge's decision reflects and that the city should have known that another firearm offense was likely if they continued allowing Kitson access to guns.
Firing Kitson would have almost certainly meant he no longer would have had a license to carry a gun at the time of the Brooklyn party, Harvis argued.
"The City believes the Supreme Court correctly applied the prevailing law," Mount Vernon Corporation Counsel said in a statement. "Should plaintiff appeal, we will continue to defend the City's interests aggressively."
Torrent granted Nickey summary judgement for his claims against Kitson. The former officer's lawyer did not challenge the motion because Kitson had lost his case in criminal court. With liability already established, barring a settlement, a trial will be held to determine how much Kitson should have to pay in damages.
This article originally appeared on Rockland/Westchester Journal News: Judge rules Mount Vernon not liable over off-duty cop in Brooklyn gun incident
