Bystanders Accidently Shot By Police Face Uphill Battle In New York Personal Injury Lawsuits

I came across a New York Times’ article the other day titled, “Bystanders Shot by the Police Face an Uphill Fight to Win Lawsuits.” We don’t get a lot of cases brought by bystanders struck by police bullets in my neck of the woods (Central New York), but the article interested me because it deals with an area of law I write and speak about frequently; “governmental immunity”.

First, a bit of background. The legal doctrine of “governmental immunity” in very general terms says this: As long as a governmental actor, such as a police officer, exercises his or her discretion in making a decision, the victim of any negligence can’t sue for the harm. This doctrine is meant to protect our governmental agencies, such as police departments, from a barrage of lawsuits and allow them to make their sometimes necessarily spur-of-the-moment decisions without fear of being sued. It also protects all of us taxpayers from getting hit with huge bills for lawsuit verdicts.

But recently, in my opinion, the Court of Appeals has taken the doctrine too far. As a result, it seems almost impossible to hold a police officer liable for his or her negligence. For example, in 2010 the Court threw out a lawsuit brought by a bystander struck by police bullets intended for an armed robbery suspect, even though the police officers testified THEY NEVER EVEN LOOKED TO SEE IF THERE WERE BYSTANDERS NEARBY BEFORE THEY STARTED FIRING. The police won that suit by relying on police guidelines stating that officers should not fire their weapons when “in their professional judgment, doing so will unnecessarily endanger innocent persons”. They claimed they had exercised their “professional judgment”, and thus were off the hook. But how could they even exercise that “judgment” if they never looked to see whether there were any bystanders? Four of the seven justices said it did not matter; the police were acting within their discretion when they fired, and thus were protected by “governmental immunity”.

As a result of cases like JOHNSON, the City has now taken an “aggressive stance” against claims brought by wounded bystanders who sue for injuries caused by stray police bullets. Recent example: In September two officers near Times Square mistakenly believed, wrongly, that a man was holding a gun, shot at him, missed, and instead struck two female bystanders standing in a crowd nearby that was clearly visible to the two officers. One of them has sued for negligence. The City’s legal department’s stance? This is a “no-pay” case. Won’t negotiate a settlement.

I’m not saying that the police should pay for any and all “collateral damage” resulting from their admirable and sometimes heroic efforts to protect us all. Some discretion and mistakes should be allowed for in the heat of battle. All I’m saying is the scale seems to have tilted too far in favor of the police right now, and that means police departments can, with impunity, allow their officers to act carelessly and even recklessly, thus endangering all of us, without paying the price.

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