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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
DARRELL A. CABEY, by his legal guardian and proposed conservator,
BERNHARD HUGO GOETZ,
Index No. 6747-1985
COMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES AND PERMANENT INJUNCTION
Plaintiff, by SHIRLEY CABEY, his legal guardian and proposed
conservator, complaining of the defendant herein, alleges as follows:
1. Plaintiff DARRELL A. CABEY is a Black youth, aged nineteen years,
who is presently in a comatose condition at St. Vincent's Hospital in
the City, County and State of New York, because of defendant's actions
as more fully set forth below. This action is being maintained on his
behalf by SHIRLEY CABEY, his mother and legal guardian, who will shortly
petition the appropriate court for her appointment as his conservator
pursuant to Sections 1201 et seq., Civil Practice Law and Rules (CPLR).
Both plaintiff and his said mother are residents of the County of Bronx,
City and State of New York, and are citizens of the United States.
2. Defendant BERNHARD HUGO GOETZ is a white male adult who has just
been indicted by a Grand Jury of the County of New York on one felony
and two misdemeanor charges for the illegal possession of firearms.
Upon information and belief, said defendant is a resident of the City,
County and State of New York, and is a citizen of the United States.
3. As set forth above, both plaintiff and his mother reside in the
County of Bronx, City and State of New York, and venue is properly laid
therein pursuant to Section 503, CPLR.
FOR A FIRST SEPARATE AND DISTINCT CAUSE OF ACTION:
4. On December 22, 1984, plaintiff was a passenger on a southbound No.
2 subway train on the Seventh Avenue IRT subway line, an underground
rapid transit system owned by the City of New York, and operated and
administered therefor by the New York City Metropolitan Transit
5. Plaintiff had earlier boarded said subway train in the company of
three other Black youths, namely, Troy Canty, Barry Allen and James
6. At approximately 1:45 p.m. on said date, defendant boarded the said
subway train and took a seat in the car in which plaintiff and his
companions were then riding.
7. Upon information and belief, on that date and at that time and
place, defendant was carrying a fully loaded holster, in violation of
the applicable laws of the City and State of New York and of the United
8. Upon information and belief, defendant's weapon was loaded with at
least three (3) soft-nosed hollow point bullets--commonly referred to as
"dum dum" bullets--designed to cause a maximum of serious physical
injury and pain to a victim. Upon information and belief, said
ammunition is outlawed by both the City and State of New York and the
United States, and its use is prohibited in warfare by international
treaties and understandings.
9. Upon information and belief, one of plaintiff's companions, namely
Troy Canty, approached defendant and asked him for five dollars ($5.00),
whereupon defendant, without provocation or advance warning, drew his
weapon and shot said Canty, following which he then opened fire upon the
other Black youths, including plaintiff. When plaintiff attempted to
flee, defendant deliberately, willfully and with malice aforethought,
aimed at his back and fired his weapon thereat, severing his spinal
10. Defendant then fled from the subway car in which the aforesaid
incident had taken place, and left the City and State of New York,
eventually arriving in Concord, New Hampshire, where, on or About
December 31, 1984, he surrendered to the local authorities, and, upon
information and belief, confessed and admitted to the above actions on
11. At all times relevant hereto, defendant acted knowingly, willfully,
deliberately, intentionally, and with malice aforethought to cause the
death of or to inflict serious physical injury on plaintiff.
12. At all times relevant hereto, defendant acted with actual malice, to
a. Upon information and belief, defendant later stated that he had a
desire to keep on shooting plaintiff and his companions;
b. Upon information and belief, defendant later expressed regret that
he had run out of ammunition;
c. Upon information and belief, defendant later stated a desire to
gouge out the eyes of some or all of his victims;
d. Upon information and belief, defendant later expressed a regret that
he had not taken his car keys and gouged out the eyes of some or all of
e. Upon information and belief, defendant later stated that he behaved
"visciously and savagely, just like a rat" toward his victims.
f. Upon information and belief, defendant had previously publicly
expressed racial epithets and slurs concerning Black and Hispanic
g. Upon information and belief, defendant has stated that he has no
remorse about the shooting.
FOR A SECOND SEPARATE AND DISTINCT CAUSE OF ACTION:
13. Plaintiff repeats and realleges the paragraphs of the complaint
numbered and designated "1" through "12" as if they were more fully here
14. The actions of defendant as set forth above were intended to place
plaintiff in great fear of serious and imminent bodily harm.
15. The actions of defendant as set forth above caused plaintiff to be
in great fear of imminent and serious bodily harm.
FOR A THIRD SEPARATE AND DISTINCT CAUSE OF ACTION:
16. Plaintiff repeats and realleges the paragraphs of the complaint
numbered and designated "1" through "12" and "14" through "15" as if
they were more fully here set forth.
17. Defendant recklessly and negligently used excessive force against
plaintiff without legal justification and in the absence of any
contributory negligence on plaintiff's part.
FOR A FOURTH SEPARATE AND DISTINCT CAUSE OF ACTION:
18. Plaintiff repeats and realleges the paragraphs of the complaint
numbered and designated "1" through "12, "14" through "15" and "17" as
if they were more fully here set forth.
19. Defendant's actions, as set forth above, violated the civil rights
of defendant as guaranteed to him by the Constitution of the United
States, and, in particular, the Fifth, Sixth, Eighth, Thirteenth and
Fourteenth Amendments thereto, as well as the laws of the United States,
and, in particular, 42 U.S.C. Section 1981 et seq.
FOR A FIFTH SEPARATE AND DISTINCT CAUSE OF ACTION:
20. Plaintiff repeats and realleges the paragraphs of the complaint
numbered and designated "1" through "12""14" through "15", "17" and "19"
as if they were more fully here set forth.
21. Defendant's actions, as set forth above, violated the civil rights
of plaintiff as guaranteed to him by the Constitution of the State of
New York and, in particular, Article I, Sections 1, 11, and, if
applicable, the Human Rights Law of the State of New York, Section 290
et seq., Executive Law.
22. Defendant's actions have caused plaintiff to suffer the following
damages, all or most of which are expected to be permanent:
a. paralysis of the lower extremeties;
b. an as yet undetermined amount of brain damage; c. enormous and
continuing pain and agony; and d. great emotional anguish.
23. Defendant's said actions have caused plaintiff and his family to
receive numberous death threats and other hate mail, copies of some of
which are attached hereto as Exhibit
A. Some excerpts thereof are as follows:
a. "You lousy creep. You got what you deserve. God punishes." b. "I'm
glad Daryl [sic] is paralyzed he need to sit his black ass in a
wheelchair for the rest of his life. I'm so sorry that the other 3
can't join him." c. "I guess you won't be break dancing anymore. Don't
worry, if you're a good boy, I'll buy you a pair of roller skates." d.
"Beware, there is another nut out there who may just harm your family to
[sic] I am not kidding try me. e. "Your days are numbered. And wehn
[sic] your kind are removed from our streets, New York will fullfil its
destiny to be the greatest city of all times. f. "May you be confined
to a wheelchair for the rest of your life. I hope you never walk again
Nigger." g. "I am writing to tell you how lucky you are that you are
paralyzed. Because being a Green Beret from NAM, I'm on the same subway
every day, had I had the same oppurtunity [sic] to raise my gun to you,
you would be dead!! Best wishes."
24. With respect to the injunctive relief hereinafter demanded,
plaintiff has no adequate remedy at law.
WHEREFORE, plaintiff prays for the following relief from this Court:
A. Compensatory damages in the amount of $25,000.000; B. Punitive
damages in the amount of $25,000,000; C. A declaratory judgment,
pursuant to Section 3001 et seq., CPLR, declaring that defendant
knowingly, willfully, deliberately and maliciously violated the civil
and human rights of plaintiff and is a danger to the community in
general and Black youths in particular; D. A permanent injunction
prohibiting defendant from using or possessing firearms of any kind or
sort whatsoever; and E. Such other and further relief as may seem just
and proper in the premises.
Dated: New York, N.Y.
January 30, 1985
RANDOLPH M. SCOTT-McLAUGHLIN
BETTY LAWRENCE BAILEY
Center for Constitutional Rights
New York, N.Y. 10003
WILLIAM M. KUNSTLER
RONALD L. KUBY
13 Gay Street
New York, N.Y. 10014
C. VERNON MASON
New York, N.Y. 10013
Attorneys for Plaintiff
Dated: New York, N.Y.
January 30, 1985
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