Sometimes you can see the policy reasons behind a decision, but they don't necessarily fit the facts of a particular case.

Yesterday's decision in Johnson v. City of New York, a case that was decided by a divided Court of Appeals (New York State's highest court), is one of those cases. In Johnson, the court was confronted by the question of whether the claim by a woman who was injured in the crossfire between New York City's police and a criminal suspect should be barred as a matter of law.

In affirming the lower appellate court's decision to dismiss the case, the Court of Appeals asserted that in electing to discharge their weapons, the officers in question were clearly using their professional judgment, and therefore immunized from civil liability (i.e., negligence) arising out of their actions.

While I agree that police officers should certainly be afforded a great deal of latitude in using their professional judgment, here's what troubles me. Police Procedure No. 203.12, entitled "Deadly Physical Force," which sets forth the guidelines for the use of firearms, states that "(b) Police officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons."  And in this particular case, the officers testified under oath that they did not look for bystanders while they were shooting at the suspect. Under the circumstances, I don't understand why a jury should be completely barred from considering whether the officers violated these guidelines "by failing to even ascertain whether innocent persons were unnecessarily endangered at the time they discharged their weapons."
Jonathan Cooper
Connect with me
Non-Compete, Trade Secret and School Negligence Lawyer
Post A Comment