Monday, July 21, 2008

An attack of gas

Holy Smokes!

No pun intended.

Ok, a pun was intended.

So pun_ish me.

Tear gas suit's dismissal urged
Syracuse responds to woman gassed during police standoff with her neighbor in 2007.
By Douglass Dowty Staff writer

The city of Syracuse has asked a federal judge to dismiss a lawsuit by a woman whose 303 Gere Ave. apartment was gassed last year during a police standoff with her neighbor.

The motion to dismiss, filed this week in U.S. District Court, responded for the first time to Eileen Malay's allegations that police violated her constitutional rights March 17, 2007, during a 29-hour standoff with her landlord, Thach Ros, 62.

Ros, who lived in an attached house, fatally shot his son and wounded his wife before eventually killing himself.

While arguing Malay, 59, has no grounds to sue the city, the motion did not dispute Malay's account of the gassing. She fled the apartment that day and hasn't been back.

In the motion, the city argues police officers were confronted with a deadly situation and didn't know whether Malay was in her apartment.

"A reasonable police officer would not believe that deploying gas to diffuse a lethal situation could (violate) Plantiff's civil rights, particularly if they were not even aware that she was inside the apartment," wrote Jennifer Savion, assistant corporation counsel.

Also, the city argued, police didn't violate Malay's constitutional right to be free of unreasonable search and seizure because of the imminent danger the gunman posed.

"There can be no doubt that there were exigent circumstances sufficient to allow police action to try and diffuse the situation," Savion wrote. "That meant using CS gas inside the property to try to disarm Ros."

CS gas is a type of tear gas that the U.S. military has agreed under international treaty not to use in warfare.

Hearing shotguns used to fire the gas, Malay ran frantically from room to room until she called 911 to arrange her escape, her lawsuit states.

The gas contaminated all of her belongings and her apartment, causing her to lose her life's possessions and leaving her with post-traumatic stress disorder, she said.

She now sleeps on an air mattress in an apartment in Eastwood.

Her lawyer, Frank Gattuso, said he would file a response to the city's motion soon. Both parties will go to court Sept. 9.