Highlights of This Issue

Special Bulletin

• Police Liability for Use of Gunfire When Bystanders Are Present on the Street; the Role of Department Guidelines

United States Supreme Court

• Civil Rights Act Liability of Municipalities Applies to Prospective Relief Such as Injunctions
• Selected Pending Cases: Title VII Gender Discrimination; Exigent Circumstances for Search of Premises

Federal and State Decisions

• Arrest, Search and Seizure Issues: search; what constitutes; DNA testing of discarded cigarette butt; night vision goggles; warrantless search; automobile; probable cause; citizen informer; officer safety; school searches; “special needs” rule; stop and frisk; reasonable suspicion; information from another officer; dangerousness in drug cases; handcuffing before frisking; officer safety; consent; suspect’s admission of having “Weed”; minivan; scope; pulling back panels; inevitable discovery doctrine; valid tow and inventory of vehicle
• Interrogation Issues: Miranda; custody; casual questioning; need to give warnings; search warrant execution; two-stage interrogations; Missouri v. Seibert; voluntariness; “get on the bus”; “cut a deal”; illegal prior arrest; attentuation doctrine; proof of crimes; the need to corroborate a confession
• Crimes; Evidence; Trial Issues: DUI; reasonable suspicion and probable cause; evidence of gang operations in drug cases; police witnesses; effect of misconduct in unrelated matters; admissibility of drug modus operandi and drug courier profile testimony
• Civil Liability/Personnel Law: false arrest; probable cause; misdemeanors; failure to train; failure to protect; use of hobble; medical assistance; drunk left at road side; special relationship; deadly force; firing all bullets into armed suspect; use of tasers on non-violent misdemeanants; sexual harassment in recruit training; department liability; age discrimination; denial of transfer; discipline; associating with drug addict

Contents

Special Bulletin
United States Supreme Court
Arrest, Search and Seizure
Interrogation
Crimes; Evidence; Trial Issues
Civil Liability/Personnel Law
Renewal/Order Form: Internet Service

Special Bulletin

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 [1992] quoting Kenavan v City of New York, 70 NY2d 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 NY2d 309, 313 [1991] quoting Haddock v City of New York, 75 NY2d at 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 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.