In A Split Second

In 2010, the New York Court of Appeals held that as long as the police were justified in shooting the bad guy, they could shoot anybody else in the area as well. No, it wasn’t that they could do it for fun and profit, but the usual litany of excuses, accidents happen and, of course, they have to make “split-second decisions.”

In Johnson v. City of New York, a divided court upheld the “professional judgment rule”:

The professional judgment rule insulates a municipality from liability for its employees’ performance of their duties “`where the . . . conduct involves the exercise of professional judgment such as electing one among many acceptable methods of carrying out tasks, or making tactical decisions'” (McCormack v City of New York, 80 N.Y.2d 808, 811 [1992], quoting Kenavan v City of New York, 70 N.Y.2d 558, 569 [1987]). Immunity under the professional judgment rule

“`reflects a value judgment that—despite injury to a member of the public—the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second-guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury'” (Mon v City of New York, 78 N.Y.2d 309, 313 [1991], quoting Haddock v City of New York, 75 N.Y.2d 478, 484 [1990]).

This immunity, however, presupposes that judgment and discretion are exercised in compliance with the municipality’s procedures, because “the very basis for the value judgment supporting immunity and denying individual recovery becomes irrelevant where the municipality violates its own internal rules and policies and exercises no judgment or discretion” (Haddock, 75 NY2d at 485).

The critical detail that grounds the rule is that discretion is exercised in “compliance with the municipality’s procedures.”  The looser, more vague, more generous the City’s procedures toward its own conduct, the lesser the potential for liability.  And, of course, whatever procedures the NYPD decides to adopt is up to them. Under current consideration, just in case Bill de Blasio didn’t win the recent election, was this new deadly force procedure: Shoot all you want. We’ll make more. Whether the new mayor will adopt the policy has yet to be seen.

The New York Times notes that, as a result of the Johnson decision, it’s taken a “no-pay” position when claims are made by people shot by police.  Not the bad dudes. Not even the mistaken bad dudes. Nope, just the people who, to their grave misfortune, happened to be in the area when the gang that couldn’t shoot straight made their best effort.

Outside the Empire State Building in Midtown one mild morning in the summer of 2012, the crowd consisted of tourists and office workers — and a solitary gunman who was fleeing the site of a murder. As the police closed in, the gunman drew his .45-caliber handgun, and two officers opened fire, discharging 16 shots in all.

Ten people were hit: the gunman, who was killed, and nine pedestrians caught in the hail and ricochet of police bullets.

Remember this? The City does.

In the months since, however, lawyers for the City of New York have presented a far more aggressive stance against the wounded bystanders who have sued, essentially refusing to settle the cases and moving to have them thrown out before trial.

At the time, screams were heard about how the innocent victims of the police fusillade would get “millions” for their suffering. It’s always millions.  To their dismay, I was the wet blanket.

Nor is there likely to be any recompense for the nine people shot.  Maybe the City will show some sympathy of their own volition, but it’s hard to nail down anything the police did wrong.  Sometimes bad things just happen when they do their job.  Sometimes, the cops aren’t breaking rules or violating rights, and still people get hurt.

Under the rules of engagement, the police were lawfully entitled to shoot. They shot. They missed. Stercus accidit.  What else could they do? I also wrote:

Yet, our minds somehow play a game that allows us to feel badly for the nine people shot without connecting the harm to them with the need to exercise force.

The nine bystanders, wholly innocent of doing anything deserving of being shot that day, have endured a life-changing condition, pain and suffering, medical costs, lost earnings, the full gamut suffered by anyone who had a bullet enter their body. For what?

But the law doesn’t require compensation because someone who did nothing wrong suffered damages. Lots of innocent people suffer damages.  The obligation arises from a wrong committed by the party from whom compensation is sought.

The Court of Appeals decision in Johnson is an extension of the authority conferred on police, that in order to their job, they are entitled to great deference.  We shouldn’t “second guess” them, as they are on the street, protecting us from bad dudes, and have to make “split second decisions.”

Judge Pigott did a fine job empathizing with the very hard choices a police officer faces in the performance of his duty.  While acknowledging that the ruling doesn’t give the police the authority to “unnecessarily” endanger people, what constitutes necessary danger is largely left to the officer to decide.

If the cops decide to save us any better, we’ll all be dead.  We could limit the damage if we stopped adoring their “split second decisions” and started protecting them for their thoughtful, deliberate decisions.  The ones where they shoot as few innocent bystanders as possible.  To borrow Judge Pigott’s words, if the police get to choose from “one among many acceptable methods of carrying out tasks,” why can’t the “professional judgment rule” require them to choose the one that harms the fewest innocent people?


6 thoughts on “In A Split Second

  1. Jim Majkowski

    As desirable as the rule your last sentence states may be, it is logically inconsistent to permit choice from many acceptable options yet limit those choices to one.

    OTOH, IMHO, the fusillade let loose in this case is inconsistent with any sort of deliberative process, however brief, and is evidence that the NYPD had not taken any steps, whether by training or selection, to guard against the by now well-known tendency of frightened armed men to pull triggers, possibly with their eyes closed, until they start hitting on empty chambers. If they are entitled to great deference because they are highly trained professionals who volunteer to take on a dangerous job, they ought to act like it.

    The reason for recovery is not only to compensate those unlucky enough to be close enough to suffer the fallout of “the first rule of policing.” Earl Warren settled for the exclusionary rule when he didn’t see his preferred result: state actors punished for violating the constitution.

    1. SHG Post author

      Ah, but Judge Pigott permits choice. I would not. When the options range from harming innocent people to not harming innocent people, I fail to see any choice involved.

  2. Fubar

    SHG wrote:

    The critical detail that grounds the rule is that discretion is exercised in “compliance with the municipality’s procedures.” The looser, more vague, more generous the City’s procedures toward its own conduct, the lesser the potential for liability. And, of course, whatever procedures the NYPD decides to adopt is up to them.

    For a branch of government that congenitally has argued adherence to precedent is necessary to prevent chaos, the judiciary is strangely blind to the perverse incentives for chaos which its own rule creates.

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