NYPD Officer Loses Battle To Get Gun Back During Investigation

Manuel Gomez, a New York City police officer, was a plaintiff and one of five class members who opted out of the class action brought on behalf of all Latino and African-American members of NYPD that settled in 2004.

In April 2004, Gomez received mobilization orders from the United States Army and went on military leave. Just before he reported for duty, he was telephoned by the Department and told he was required to fill out departmental paperwork before he departed. Claiming that he lacked sufficient time to do so before reporting to duty, he departed without complying with the requirement. He also left without turning in his shield as required by the Department’s patrol guide.

Gomez returned from Army service in Afghanistan a year later, and retrieved his service revolver from the NYPD property clerk, something that was possible only because he had retained his shield when he went in the Army. Within a month, Gomez had been involved in a domestic dispute. The New York State Police responded to the incident and took Gomez’s service revolver, a rifle and a hunting knife into custody. The rifle and knife later were returned, but the service revolver was retained by NYPD.

When Gomez demanded the return of his gun, the Department rebuffed his request on the grounds that he would first have to undergo firearms retraining, that the Department wanted to conclude its investigation of the domestic disturbance, and Gomez’s failure to complete paperwork before going on military leave. Gomez then filed a lawsuit against the Department, contending that his treatment was the product of retaliation for his participation in the earlier class action lawsuit. As his second lawsuit was pending, Gomez requested that the Court order NYPD to return his firearm. The basis for Gomez’s request was that in 2003, an individual Gomez and his partner arrested had urged a crowd to overwhelm the officers and threatened to shoot them “when I get out.” The individual who made the threat was apparently currently incarcerated.

The Court rejected Gomez’s request for the return of his firearm. The Court acknowledged that “threats of bodily harm to police officers or, for that matter, anyone else are serious business. Injuries inflicted if they are carried out truly may be irreparable injury.

“Nevertheless, given the facts that this threat occurred almost two years ago, that it was made in an extremely overheated situation, that the individual who made the threat was arrested at the time and knows full well that the police know exactly who to look for in the event of an attempt on Gomez, the threat of irreparable injury and consequence of Gomez’s deprivation of his service revolver is more speculative than imminent, and does not justify this Court issuing an injunction.”

The Court was also concerned about how the public interest would be served if Gomez’s firearm was returned: “Gomez retained his shield while on Army duty, which enabled him to retrieve his service revolver upon his return and before reporting back to NYPD. While in the possession of his service revolver, he was involved in a domestic dispute that resulted in a law enforcement response. While all of this may have been entirely innocent, there is strong reason to allow NYPD promptly to complete its investigation of these matters, and of Gomez’s fitness to return to full duty and to bear a firearm, before the revolver is returned to him.”

Gomez v. City of New York, 2005 WL 1790134 (S.D.N.Y. 2005).

This article appears in the September 2005 issue