HBO, Videographer Spared Liability for Shooting in Raid

, New York Law Journal

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A woman shot by police as a videographer filmed a search warrant's execution cannot hold HBO and a production company liable, said a Brooklyn appellate court. The Appellate Division, Second Department, on Thursday upheld a lower court's rejection of Vivian Rodriguez's bid to hold HBO and Eames Yates Productions responsible for her injury under a theory of concerted action liability.

In early 2001, the production company entered an agreement with HBO to obtain footage of the New York City Police Department's Emergency Services Unit for a possible series or documentary.

In 2003, a production company videographer filmed a unit squad planning a search warrant on an apartment suspected of storing stolen goods. The videographer recorded from outside the building and picked up audio from a microphone affixed to one squad member. In the raid, police found Rodriguez and several other "customers." A detective shot her in the abdomen, mistakenly thinking she had a gun.

Rodriguez claimed that the media defendants and police planned for excessive force, but Brooklyn Supreme Court Justice Sylvia Ash rejected the argument and granted summary judgment motions from HBO and the production company in December 2011.

The Second Department panel agreed with Ash, saying, "Yates and HBO demonstrated that they did not make any suggestion or recommendation as to how the police should conduct themselves during the execution of the search warrant. In addition, contrary to the plaintiff's contention, the evidence submitted by Yates and HBO demonstrated that the videographer never entered the building, let alone the apartment in which the plaintiff was shot."

Alexander Fotopoulos of Fotopoulos, Rosenblatt & Green represented Rodriguez. Jay Ward Brown of Levine Sullivan Koch & Schulz represented Eames Yates Productions and HBO.

Presiding Justice Randall Eng (See Profile) and Justices Mark Dillon (See Profile), Thomas Dickerson (See Profile) and Sandra Sgroi (See Profile) decided Rodriguez v. City of New York, 2012-01631.

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