More than a decade after he was shot by a notorious gang member who was under surveillance by police, Kofi Patrong has won a lengthy, roller-coaster of a legal battle for the right to sue the Toronto Police Service for negligence.

Following a years-long court process that included a previous failed attempt to sue, a Toronto judge on Thursday gave the now 30-year-old father of two the green light to proceed with his $9-million lawsuit alleging police could have prevented the now-convicted murderer, Tyshan Riley, from pumping three bullets into Patrong in a case of mistaken identity.

“I’m feeling great, I’m feeling blessed,” said an ecstatic Patrong. “I was going crazy, I was crying, it was very emotional.”

Patrong was 19 when he was shot in the leg on April 19, 2004, at the height of gang warfare between two rival Scarborough gangs, the Galloway Boyz and the Malvern Crew. Patrong, who had no gang affiliations or criminal record, was one of several young black men in Malvern who were shot by Riley, who mistakenly thought they were members of the rival Malvern Crew.

At the time of the shooting, Riley — since convicted of murder and attempted murder — was a suspect in a previous shooting, was thought to pose a major threat to public safety, and was being wiretapped and trailed by police.

Although police had both the opportunity and the grounds to arrest Riley before Patrong was shot, the lawsuit alleges, they did not.

“This unfortunate young man has been maimed for life. The police could have arrested Riley and taken him off the street, but they allowed him to run free hoping to gather evidence in a murder case they were investigating,” Barry Swadron, one of the lawyers representing Patrong, told the Star.

The lawsuit names the Toronto Police Services Board, then-police chief Julian Fantino, and two homicide detectives investigating Riley at the time of Patrong’s shooting, Al Comeau and Wayne Banks.

David Elman, the lawyer representing the defendants, said Thursday that no decision had yet been made about filing an appeal.

In a 2008 pretrial hearing in a case involving Riley, Comeau testified that police were afraid Riley may shoot more people, but felt that letting him go free was the best way to gather evidence.

Patrong’s lawsuit is modelled after the famous Jane Doe case, which saw a rape victim successfully sue Toronto police for not warning women about the “balcony rapist.”

In that case, police failed to notify possible victims of the balcony rapist because they didn’t want to scare off the attacker. The now-convicted rapist, Paul Callow, had a very specific pattern of attack: he entered the apartments of single, white women living in first-, second- and third-floor units with balconies in the Wellesley and Church Sts. area, then raped them at knifepoint.

In Patrong’s case, he and his mother, Rose Patrong, make a similar argument, alleging police should have known that Patrong fell within a category of men who were likely targets of Riley’s drive-by shootings: young, black men living in Malvern who could be perceived as gang members.

Ontario Superior Court Justice Frederick Myers — the same judge who earlier this month awarded a Sudanese man $27,000 in a carding lawsuit against police — was clear in his ruling that the allegations in the lawsuit have not yet been proven.

But if they are proven, he said, “it is fair, just and reasonable that the defendants ought to compensate the plaintiffs for the injuries that (were) sustained due to the defendants’ wrongful acts.”

“(Patrong) and others in the neighbourhood had the right to expect the police to arrest Riley before he committed another drive-by shooting. There was a court order prohibiting him from entering Scarborough. The senior police officers had ordered his arrest. The police knew the drive-by shooting was imminent. They knew it was likely to occur in a very defined area.”

Myers wrote that he wonders whether police would have made the same decision they are alleged to have made — to allow Riley to drive around without arresting him — if he had been heading into Forest Hill or Rosedale rather than Malvern, “but that is for another day.”

Myers’ decision overrules a previous finding from 2013, in which Ontario Superior Court Justice Victoria Chiappetta rejected the suit, ruling that it was “plain and obvious” that the negligence claim had no reasonable prospect of success at trial.

Chiappetta, however, allowed for the Patrongs to change to the lawsuit to address its problems, which included that their statement of claim at the time did “not support that Patrong was readily known to the police as a target of the foreseeable harm.”

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The new claim states that police knew Riley drove into Malvern intending to kill young black males who might be Malvern crew members. It also states that police would have known Patrong, as they had “carded” him several times.

Indeed, after the failed 2013 attempt to sue, Patrong and his legal team requested the police carding documentation on Patrong, showing he had been “carded” — the practice of police stopping, questioning and documenting people not suspected of a crime — as many as eight times, including just one week before the shooting.

In that instance, officers stopped Patrong because they were looking for gang members, according to the claim.

“This, the plaintiffs say, indicates that the police believed that Mr. Patrong was a gang member or at least that he shared characteristics with gang members,” and was therefore at a greater threat to be one of Riley’s victims.

“That’s where the carding issue becomes important,” said Kelley Bryan, one of Patrong’s lawyers. “That’s where we say the police knew directly about Kofi, he wasn’t just an unidentifiable member of the vast number of people in the public.”

After the shooting, Patrong spent 36 days in hospital, and has since undergone six surgeries. He is in constant pain and walks with a pronounced limp. He did not go to college as planned as is currently on the Ontario Disability Support program.