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Personal Injury & Medical Malpractice Blog

Tuesday, June 28, 2016

Police Shootings—Did The Officer Go Too Far?

There are two sides to every shooting.   This is all too familiar to a mother who lost her son as a result of a police shooting.   The victim was a father of only twenty-five years old and was shot and killed by a police officer in the Bronx.   There were several conflicting views as to whether the fatal shot was warranted.   A total of thirty-one shots were fired by police, whereas, no bullets hit any officers. 

Police argue that the man refused to drop his gun when ordered—this was corroborated by someone who called 911 at the time.  Yet, others purport that officers continued to shoot even though the man was no longer moving, as confirmed by a nearby neighborhood resident.   The victim’s mother also contemplated whether her son was high on drugs at the time of the incident and not taking his medicine for mental illness.  Additionally, the deceased man had a record of arrests and crimes, including possession of drugs and robbery.  The conflicting statements left many questions unanswered for those affected by the shooting.  Was there an alternative way for dealing with the situation, rather than fatally wounding this man?  This is the issue that will confront a judge and jury.

To prevail on a cause of action for battery committed in the performance of a public duty, a victim (a plaintiff in a lawsuit) must establish that the police officer used excessive force (see Disla v New York, 117 AD3d 617, 986 NYS2d 463 [1st Dept 2014]).  Only such force that is reasonably believed necessary under the circumstances may be used (Holland v Poughkeepsie, 90 AD3d 841, 935 NYS2d 583 [2d Dept 2011]). Depending on an officer’s knowledge and skill, an officer is only permitted to use force equal to that exerted against the officer in handling an emergency situation, protecting bystanders and other officers from injury, and in order to maintain control.  Every situation is different and the “reasonableness” of an officer’s actions is decided on a case-by-case basis.  

Generally, using force is the last resort for a police officer and should rarely be used as an initial tactic.  However, sometimes officers make the wrong decisions under pressure and cause undue harm to other citizens. 

The use of excessive force against you by a police officer may be a violation of your civil rights.  Claims that law enforcement personnel used excessive force are analyzed under the Fourth Amendment standard of reasonableness, which requires a balancing of the nature and quality of the intrusion on the victim's Fourth Amendment rights against the countervailing governmental interests (Holland v Poughkeepsie, 90 AD3d 841, 935 NYS2d 583 [2d Dept 2011]). Due to the extremely factual nature of the inquiry, the issue is one that should be left to the jury to decide (Woods v New York, 29 AD2d 550, 285 NYS2d 149 [2d Dept 1967], aff'd, 23 NY2d 934, 298 NYS2d 513, 246 NE2d 362 [1969]; Holland v Poughkeepsie, cited above; see McCummings v New York City Transit Authority, 81 NY2d 923, 597 NYS2d 653, 613 NE2d 559 [1993]).

Force is excessive when it goes beyond what the police officer reasonably believes necessary (Stein v State, 53 AD2d 988, 385 NYS2d 874 [3d Dept 1976], Penal Law § 35.30; Restatement, Second, Torts § 132). What force is reasonably believed necessary is to be judged in light of all the circumstances existing at the time the force is used (Jones v State, 33 NY2d 275, 352 NYS2d 169, 307 NE2d 236 [1973]).  Use of force is improper and unlawful when force is unnecessary, such as an unprovoked attack by state hospital attendant on mental patient (Rauppius v State, 15 Misc2d 384, 180 NYS2d 805 [Ct Cl 1958]) or shooting an unarmed parolee who made no threatening gesture (see Fletcher v State, 15 Misc2d 1014, 183 NYS2d 265 [Ct Cl 1959], aff'd, 9 AD2d 862, 194 NYS2d 456 [4th Dept 1959]).  The general rule that words, no matter how offensive, do not justify use of force if unaccompanied by any overt act of hostility also applies to a public official, like a state trooper (Winant v State, 33 Misc2d 990, 227 NYS2d 106 [Ct Cl 1962] or a supervisor at State Industrial School (Brown v State, 24 Misc2d 358, 205 NYS2d 73 [Ct Cl 1960]).

Under Penal Law § 35.301(1), a police officer or other peace officer is justified in using physical force, other than deadly physical force, in the course of making an arrest or preventing an escape from custody, when and to the extent the officer reasonably believes it necessary to effect the arrest or prevent the escape, or to defend him or herself or a third person from what the officer reasonably believes to be the use or imminent use of physical force. Liability turns not on whether victim was in fact resisting arrest or attempting escape or whether the force used was in fact necessary, but rather on whether police officer reasonably believed the victim to have committed an offense and whether it was reasonable for police officer to believe that the force he or she used was necessary.

In addition, other officers who witnessed the excessive force, but neglected to interfere, could also be liable to a victim.  It is also worth noting that even if a police officer had good intentions, a case can still prevail when there is proof of excessive force.  

Excessive force actions and other civil rights suits are rarely clear-cut.  For example, an officer may have immunity from suit or a “qualified immunity defense.”  These immunities exist to facilitate some discretion on the part of police officers in making decisions to implement the law.  Nevertheless, every citizen has a right to be free from police misbehavior pursuant to our constitution. 

Cases involving police officers and police departments are quite expensive due to the amount of evidence required to litigate a case.  An attorney can advise you on whether you have a valid case.  There are strict time limits to make a claim and institute a lawsuit, so if you believe you or a family member was the victim of police misconduct, you should consult me immediately


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