[Hellgate] Family of Allan Feliz Sues NYPD Commissioner Tisch for Refusing to Fire the Cop Who Killed Him
- JC Team
- 17 hours ago
- 4 min read
Tisch unlawfully swept aside damning evidence when making her decision to not fire Lieutenant Jonathan Rivera, the lawsuit claims.
by Nick Pinto
The family and supporters of Allan Feliz have filed a lawsuit against NYPD Commissioner Jessica Tisch Wednesday night over her decision this summer not to discipline Lieutenant Jonathan Rivera, who shot Feliz to death in his car in the Bronx in 2019.
Tisch's decision to let Rivera—who is still on active duty and has since been promoted to Lieutenant—skate without consequences for the killing made headlines in July in part because her determination overturned the recommendation of her own department. NYPD Deputy Commissioner of Trials Rosemarie Maldonado, who had presided over Rivera's disciplinary trial, which included copious testimony by Rivera himself, determined that Rivera's testimony was simply not credible. Rivera made "self-serving statements fabricated to minimize his culpability" Maldonado concluded. His story was a "carefully constructed departure from the truth" that "could not be reconciled with the totality of circumstances and fell apart under the weight of the credible evidence." Maldonado ruled that Rivera should be fired.
But Maldonado is not the final word on police discipline. Even in matters where civilian investigators have found misconduct and she has endorsed that finding, it is the police commissioner who makes the department's final decision on disciplinary matters.
The Feliz family's lawsuit is an Article 78 petition—effectively asking a judge to reverse Tisch's decision on the grounds that it is arbitrary and capricious.
"Failing to consider five years of new evidence, including the hearing officer’s findings, is textbook arbitrary and capricious agency action," the Feliz family argues in one of its filings. "This was illegal."
In overturning Maldonado's recommendation, Tisch leaned heavily on a five-year-old investigation by the state Attorney General's office, which ended without criminal charges against Rivera because his use of force couldn't be "proven to be unjustified beyond a reasonable doubt." The Attorney General's Office found at the time "no obvious reason to doubt that Sgt. Rivera actually believed what he claimed to believe," that it was necessary to shoot Feliz to prevent his car from rolling over and injuring a fellow officer.
But a lot has happened since that report was issued: The Civilian Complaint Review Board recommended discipline for Rivera, finding, among other things, that he lied about Feliz telling someone to grab a gun and that there wasn't any good reason for him to fear for his fellow officer. There was also the matter of Rivera's remarks minutes after the shooting, caught on body-worn camera, that, "The engine was on, man. I was fighting. My hand was getting tired."
Pressed on this statement by CCRB investigators and at trial, Rivera claimed that he was actually talking about administering CPR to Feliz, a claim that Maldonado said "defies logic" and found was part of an "attempt to mislead" her.
All told, Maldonado concluded, "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."
Maldonado, an NYPD employee who functions as a sort of trial judge for departmental disciplinary hearings, is hardly a light touch for victims of police violence. In more than a decade in her position, she has only recommended firing one other officer: Daniel Pantaleo, the cop who killed Eric Garner with an illegal chokehold in 2014.
But despite this voluminous record and hundreds of hours of investigation and deliberation by her own department, Tisch threw out Maldonado's recommendation with only passing mention to "giving due weight to the Commissioner’s findings, including her assessment of witness credibility."
Reached for comment, an NYPD spokesperson dismissed the premise of the lawsuit. "The City Charter is clear on this," the spokesperson wrote, before quoting the relevant section. "'The commissioner shall have cognizance and control of the government, administration, disposition and discipline of the department, and of the police force of the department.'"
That's true, the Feliz family's lawyers concede, but the commissioner's discretion over disciplinary matters isn't unbounded. Like many realms of government authority, it's subject to judicial review—particularly when the commissioner exercises her control in a way that's arbitrary and capricious. What qualifies as arbitrary and capricious? According to the case law, a decision can fit that description if it's made "without sound basis in reason" and "without regard to the facts," if it deviates from the department's own established protocols, or if it allows the department to act without "objective standards."
Tisch's decision fits that bill, Feliz's family argues in their filings. By relying on the five-year-old Attorney General's report and discounting all the evidence that had emerged in the meantime and dismissing her department's own fact-finder's determination that Rivera was lying, she did act arbitrarily and capriciously.
To get anywhere with the lawsuit, the Feliz family and the Justice Committee, an organization that advocates for the families of people killed by the NYPD, will also have to convince a judge that they even have standing to sue at all, which requires showing that Tisch's decision not to fire Rivera hurt them specifically. They made their best case for that at a press conference in front of police headquarters on Thursday. "Allan, to me, was more than a brother," Samy Feliz told reporters. "He was a confidant and also a father figure, a source of care, love to us all, Allan's death has left us bottomless and with a void at every holiday, family function, and event."
Ashley Verdeja, Feliz's sister, agreed. "I miss Allan every day," she said. "He was my big brother, my friend, my protector, losing him was losing an angel amongst us. He was such a big part of our lives. The past six years have been excruciating and exhausting."
Julie Aquino, Feliz's partner and the mother of his son Eli, who was six months old when Rivera killed Feliz, said Eli still asks for his father every day.
"No child should have to go through this," she said. "Eli looks so much like his father, but when I tell him this, he says, 'don't say that, the police are going to come and kill me like they killed my dad'. I want to tell Eli not to worry. But how can I do that if Lieutenant Rivera is still patrolling our streets?"
Comments