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LEGAL REVIEW (R)
|Vol. 40 No. 1||January / February 2011|
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Highlights of This Issue
United States Supreme Court
Federal and State Decisions
United States Supreme Court
Arrest, Search and Seizure
Crimes; Evidence; Trial Issues
Civil Liability/Personnel Law
Renewal/Order Form: Internet Service
Special BulletinSpecial Bulletin: Police Liability for Gunfire When Bystanders Are Present; Professional Judgment Rule; Guidelines
Johnson v. City of N.Y., No. 192 (N.Y.Ct.App.)
Five police officers engaged in a shoot out with an armed robber on a residential street. All of the officers testified that they saw no members of the public present. Plaintiff brought a negligence action against the city after being grazed by a bullet as she hid under a car with her 18-month-old daughter. The court ruled that since the officers did not violate a department rule against discharging firearms where it would “unnecessarily endanger innocent persons,” the “professional judgment rule” protected the city from negligence liability.
“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  quoting Kenavan v City of New York, 70 NY2d 558, 569 ). 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  quoting Haddock v City of New York, 75 NY2d at 484 ). 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 guideline here calls for such judgment, i.e., the police must not discharge their firearms if doing so would ‘unnecessarily endanger innocent persons.’ It does not prohibit officers from discharging their weapons when innocent bystanders are present in every instance. Rather, the guideline grants officers the discretion to make a judgment call as to when, and under what circumstances, it is necessary to discharge their weapons.”
“. . . The fact that the officers did not observe the bystanders who were present at the time they were exercising that judgment does not raise an issue as to whether they unnecessarily endangered innocent persons.”
Three out of the seven judges on New York’s highest court dissented.
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