Although you might be tempted to think that standard negligence principles would apply when evaluating whether New York City should be held liable for injuries sustained by innocent bystanders to police action - particularly in cases involving an accidental shooting - that is not the case under New York law. Nor should it be.

Rather, in these cases the Court's inquiry is whether the police officers followed police guidelines in electing to fire their weapons, and whether they did so in the proper use of their professional judgment. (For additional information on police liability for auto accidents under New York law, please see "Police Must Still Drive Responsibly, Even When Responding to Emergency, NY High Court Holds.") The Court of Appeals articulated the standard as follows:

"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 NY2d 808, 811 [1992] quoting Kenavan v. City of New York, 70 NY2d 558, 569 [1987])."

The Court further specified the reasoning behind this rule, stating:

"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 NY2d 309, 313 [1991] quoting Haddock v. City of New York, 75 NY2d at 484 [1990])."

That said, there are some limitations on this rule - i.e., where the officers are actually using professional judgment and not in clear violation of the Police Department's own guidelines: 

"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).

Jonathan Cooper
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