Despite a plea by the city’s Civilian Complaint Review Board that she reconsider, NYPD Commissioner Jessica Tisch on Friday made final a ruling that Lt. Jonathan Rivera should not face discipline for the October 2019 shooting death of a 31-year-old driver following a car stop in The Bronx, according to documents obtained by THE CITY.
It’s the first high-profile disciplinary decision for Tisch, who has announced several efforts to boost officer accountability since she was tapped as commissioner by Mayor Eric Adams in November.
Tisch ruled, contrary to the recommendation of an NYPD administrative judge, that Rivera should not be terminated.
The judge, Deputy Trial Commissioner Rosemarie Maldonado, had found that evidence presented at Rivera’s disciplinary trial established that he was not justified in shooting Allan Feliz point blank in the chest, out of his stated fear for the safety of a fellow officer.
“Looking at the totality of what transpired during the car stop and subsequent struggle, I am convinced that [Rivera] shot Mr. Feliz because he believed that doing so was necessary to save Officer Barrett’s life,” Tisch wrote in her August 15 decision.
According to summaries of the incident by Tisch and the administrative judge, Feliz was driving a rented Volkswagen SUV in Williamsbridge on Oct. 17, 2019, when then-Sgt. Rivera and officers Edward Barrett and Michelle Almanzar pulled him over for allegedly not wearing a seatbelt.
Feliz, who was driving with an unidentified passenger, handed Barrett his brother’s drivers license, which came back with open warrants for minor violations when Barrett checked it. The red flag prompted Barrett to ask Feliz to step out of the car.
It was later revealed that Feliz was on federal parole for sale of a controlled substance, and items found on him after his death tested positive for cocaine and methamphetamine.
The summaries say Feliz got out of the vehicle, but before he could be patted down, he darted back into the car and tried to drive off — at which point Barrett grabbed him and tried to pull him out of the vehicle and fought to keep the car in park.
As they struggled, Rivera jumped over the passenger in the front seat and tried to help Barrett disengage Feliz from the gearshift. Rivera initially shot Feliz with a Taser and then threatened to shoot him with his drawn gun, before reholstering it.
At one point, the vehicle surged forward a few feet with Barrett standing at the open driver’s side door, with Rivera still slumped over the passenger and engaging Feliz. Seconds later, the vehicle surged backward — sending Barrett away from the vehicle as the driver’s door slammed shut.
Two seconds later, according to the summaries, just as Barrett returned to the driver’s side window, Rivera shot Feliz in the chest.
Rivera said he shot Feliz because after he lost sight of Barrett when the car veered backward, he worried that Barrett might be under the vehicle, and that any further movement of the car could injure or kill him.
Family members said nothing justified Barrett’s shooting.
“Me and my family are outraged and also devastated as well,” Samy Feliz, Allan’s 35-year-old brother, told THE CITY. “[Tisch] has claimed and spoken to all New Yorkers stating that she was going to be reforming and cleaning the NYPD. But her intentions are super clear, her intentions are to continue protecting killer cops.”
James Moschella, an attorney for Rivera, called Tisch’s decision “unassailable.”
“It is the only reasonable decision possible under the tragic circumstances of this incident,” said Moschella, of the firm Karasyk & Moschella, LLP. “It recognizes the undeniable fact that it was the decedent who drove this encounter, both literally and figuratively, to its tragic conclusion.”
An NYPD spokesperson responded to a request for comment by referring to Tisch’s decision letter.
Tisch’s ruling affirms a preliminary decision she made July 3rd, which relied in part on a report released in September 2020 by the office of State Attorney General Letitia James, which is tasked with investigating civilian deaths by law enforcement officers.
That report, which summarized the investigation of whether Rivera committed a crime, found that Rivera’s explanation that he feared for Barrett’s safety after the vehicle lurched backwards and Barrett disappeared from sight could not be disproven beyond a reasonable doubt in court.
Tisch’s ruling also detailed multiple instances where she differed from assessments by Maldonado, the judge in the case, that Rivera’s trial testimony and explanations lacked credibility.
In one instance, Maldonado said Rivera suggested he couldn’t see Barrett right before firing his gun because Barrett was obscured by the narrow divide at the back of the driver’s window, which she found hard to believe based on Barrett’s size.
Tisch didn’t read Rivera’s testimony that way, and attributed the confusion over what he meant to “the sometimes messiness of testimony at trial.”
The case was brought by the Civilian Complaint Review Board, a city agency that investigates certain police misconduct — most notably use of force — and prosecutes the most serious cases in disciplinary hearings before NYPD judges like Maldonado. Final disciplinary decisions are made by the police commissioner.
The executive director and lead prosecutor of the board submitted a letter on July 11 in response to Tisch’s preliminary decision arguing that Maldonado was best suited to judge Rivera’s credibility, and that courts have ruled that deference should be given to judges to make such determinations.
“In her decision Deputy Trial Commissioner Maldonado, having had the benefit of witnessing Lieutenant Rivera’s live testimony, found that, ‘[Rivera’s] carefully constructed departure from the truth could not be reconciled with the totality of circumstances and fell apart under the weight of credible evidence,’” the CCRB officials wrote.
They also quoted Maldonado as writing in her decision that “‘critical portions of [Rivera’s] account were self-serving [statements] fabricated to minimize his culpability.’”
Since the CCRB was granted the power in 2012 to prosecute cases where its board substantiates significant misconduct by cops, only one NYPD officer has been terminated by the police commissioner: Daniel Pantaleo, five years after the chokehold death of Eric Garner on Staten Island in 2014.
CCRB interim Chair Dr. Mohammad Khalid said the board “stands by our investigation and the conclusion of the administrative trial.”
One of Tisch’s predecessors as NYPD commissioner under Adams, Keechant Sewell, similarly overruled an administrative judge’s recommendation that an officer be terminated.
In 2022, Sewell ruled that an officer who called an injured suspect the N-word should face significant discipline but that he could keep his job.
‘It Hurts’
The CCRB prosecutors faced a higher bar than usual to prove misconduct against Rivera because their agency missed the statute of limitations to file disciplinary charges against him.
This was largely because the NYPD’s Force Investigation Division, which investigated first and cleared Rivera of wrongdoing, didn’t provide the board with key evidence until a week after the statute of limitations expired.
The missed deadline meant prosecutors had to prove by a preponderance of the evidence that in shooting Feliz, Rivera had committed assault, rather than simply proving he violated NYPD procedures. They also charged Rivera with menacing for threatening to shoot Feliz earlier in their encounter, but Maldonado found Rivera not guilty of the charge.
Maldonado sought to determine whether Rivera was justified in shooting Feliz based both on whether Rivera truly feared that Barrett’s safety was in imminent harm and also whether that belief was reasonable.
On both accounts, she found that Rivera’s justification fell short — largely because of issues with his credibility.
Among the issues that troubled her was that Rivera didn’t ask about Barrett’s well-being in the immediate aftermath of the shooting, and he didn’t mention his concerns about Barrett’s safety when Almanazar talked with him about his being stuck in the car during the struggle.
“The engine was on, man. I was fighting. My hand was getting tired,” Rivera responded, according to Maldonado’s ruling.
Maldonado found that the statement “raises serious doubts” about Rivera’s assertions about fearing for Barrett’s safety.
“The logical inference is that his excited utterance constituted an admission that [Rivera] discharged his firearm because he was not able to control the subject and sought to terminate the encounter because, in his own words, he was ‘tired,’” she wrote.
Tisch disagreed on both points. She said Rivera didn’t inquire about Barrett’s status after the shooting because Barrett had reappeared at the driver’s window just as Rivera fired his gun, so that Rivera knew he was OK.
She didn’t view Rivera’s statement as an admission of any sort, but an acknowledgement that he was tired by the 90-second struggle with Feliz, and worried that Feliz could overpower him and put the car into drive while he believed that Barrett could be underneath it.
Maldonado and Tisch also viewed Rivera’s threat to shoot Feliz earlier in the struggle from different vantage points.
Maldonado saw it as a “mindset to use lethal force,” while Tisch saw it as an example of restraint: She wrote that Rivera tried deploying his Taser, strikes to the face, and threatening Feliz with a gun that he subsequently reholstered, and only when he lost sight of his colleague did he fire his weapon.
Maldonado also disputed that Rivera was reasonable in concluding that Barrett was in imminent danger at the time of the shooting, based on a number of factors — including nothing to corroborate his theory that Barrett might have fallen to the ground.
“For deadly force to be justified under the Penal Law, it is critical that officers act upon more than a mere possibility, particularly when there is no visual confirmation of the imagined danger,” she wrote.
And while Maldonado found Rivera “flippant and dismissive,” in part because he said he didn’t have time to yell out and wait for a response from his colleagues, Tisch found that justification credible.
“[Rivera] and Mr. Feliz were engaged in an intense physical struggle. [Rivera] was not in a position to call a time-out and scour the driver side of the car to figure out where Officer Barrett was positioned,” she wrote. “I see that as a fair and realistic assessment of an incredibly fast-moving, dangerous situation.”
Samy Feliz said the family plans to gather on Wednesday for a rally at NYPD headquarters in Lower Manhattan.
He said they also plan to challenge her ruling in court, and will continue to advocate for legislation to strip police commissioners of final say in disciplinary matters.
Samy Feliz added Wednesday that his brother’s son, who was 6 months old at the time of his father’s death, is now 6 years old.
“It hurts to see that child every day ask for his father,” he told THE CITY.