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Articles Posted in Police Negligence

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A few weeks ago, Breonna Taylor’s family received $12 million in settlement for their wrongful death case against the City of Louisville, Kentucky and its police department for their botched “no-knock” warrant raid in which Ms. Taylor was killed. When news broke about that settlement, I asked myself, “would she have gotten such a settlement in New York State”?  My answer was “no”.  That’s because New York’s highest court, the Court of Appeals, has, in the last decade or so, narrowed and toughened a rule of law called the “public duty” rule, also called the “special duty” or “special relationship” rule.  Under the recent version of this rule, no one injured by the negligence of a governmental entity (such as a city or its police) can sue for money damages unless the victim can show that the blameworthy officials had a “special duty” toward him or her.  In cases like Breonna Taylor’s, that means that in New York her family would have to show that the police had some kind of verbal communication with Breonna, before she was shot, that made her feel she was safe or protected from harm.

But Breonna Taylor had absolutely no communications at all with the police before they burst open the door in the apartment where she was staying and shot her.  Thus, under New York law, the police did not have a “special duty” toward her.  It is very possible that a New York Court would thus have felt compelled to throw her case out based on lack of “special duty”.

In fact, this is exactly what happened in the recent New York case of Ferreira v. City of BinghamtonThe facts in that case were, in all relevant ways, exactly the same as in the Taylor case.  Jesus Ferreira was staying in a friend’s apartment when a SWAT team burst in with a “no-knock” warrant.  The lead officer wasted no time in firing bullets into the unarmed Ferreira.  Ferreira had done nothing wrong. Fortunately, unlike Taylor, Ferreira did not die.

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I sue for a living. I say that with pride.  I help injured folks get compensation from wrongdoers.  But when the wrongdoer is the Government, it gets tricky. And when I say “the government”, I mean not just “THE” Government, but all the cities, towns, counties, school districts legally deemed subdivisions of the State of New York. On the road to victory against such defendants lies a minefield of bombs.

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The procedural requirements for suing the government are rigorous.  On the way to the finish line, government lawyers will be watching for your mistakes.  But not just watching.  Slung across their wool suit jackets, they carry a quiver packed with sharp arrows, legal defenses that are available only to government entities.

Why is suing the government so hard?  Because the legislature has deliberately set up an obstacle course between the injured victim and government money.

You’ve probably already seen this video:

First we see a Southern California man fleeing on horseback from a posse of deputy sheriffs in a dessert landscape. How quaint. That could never happen in New York. Then we see the deputies catch him and beat the s—- out of him. Now that feels more like New York!

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”.

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