While the facts and details surrounding Friday’s tragic Empire State Building shooting have yet to be fully developed, the reports thus far indicate that several (as many as nine) bystanders were wounded by police bullets.
This raises the question of what, if any, liability will be imposed on the City of New York and/or the responding officers in the litigation that is certain to follow. The issue is as timely as ever, as Friday’s shooting is the second this month in which the police used deadly force against a weapon-wielding suspect in a public place. (The other incident, in which the police shot and killed knife-wielding Darrius Kennedy, apparently did not result in any bystander injuries.)
While the police undoubtedly have a difficult job, what they do not have is unlimited discretion: their conduct must still comply with relevant guidelines.
Johnson v. City of New York
A 2010 New York Court of Appeals decision, Johnson v. City of New York, 15 NY3d 676 (Nov. 23, 2010), , may provide some guidance as to how such litigation may play out. In that case, the injured bystander lost.
There, Plaintiff Tammy Johnson was struck by an errant bullet fired by the police during a shootout with a robbery suspect. Johnson sued the City of New York and the officers, alleging that the officers negligently fired their guns in violation of department guidelines for the use of firearms (namely, NYPD Department Procedure No. 203-12). Specifically, she argued that the officers violated the section of the guidelines providing that “[p]olice officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons.”
The trial court denied the parties’ respective motions to dismiss, holding that although the City established that the officers exercised their professional judgment, there was an issue of fact as to whether the officers violated police guidelines by discharging their weapons. The appellate court disagreed and dismissed the complaint, and the Court of Appeals affirmed.
The Professional Judgment Rule
Initially, the court stated the rule that limits municipal liability where the conduct at issue involves judgment and discretion:
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. … 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. …
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.
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 Court found that the officers were entitled to the protections of the rule, notwithstanding plaintiff’s argument that the officers improperly failed to check for bystanders before firing:
The officers clearly had probable cause to fire their weapons at the suspect: they were in pursuit of an armed individual who opened fire on them on a public street, endangering the lives of the officers and the public. Johnson asserts, however, that she met her burden of raising a question of fact that the officers violated the guideline because they did not survey the area to see if bystanders were present before firing at the suspect. However, on this record, it is uncontroverted that all of the officers who fired at the suspect did so when they had a clear view of him, and all testified that they did not see any bystanders in the area while firing, such that it cannot be said that the officers failed to exercise discretion in discharging their weapons. Nor is there any evidence that Johnson and her daughter were in the line of fire during the melee such that a question of fact was presented as to whether officers’ discharge of their firearms violated the guideline (cf. Lubecki v City of New York, 304 AD2d 224 [1st Dept 2003], lv denied 2 NY3d 701  [violation of guideline where officers failed to call hostage negotiator and also fired at suspect when he was using hostage as a shield]; Rodriguez v City of New York, 189 AD2d 166 [1st Dept 1993] [officer violated police procedure by discharging weapon at suspect when there was a crowd between them]).
Although Johnson submitted an affidavit from an expert who claimed that Johnson and her daughter were “totally exposed” to Officer Garcia, the expert’s claim that Officer Garcia must have seen them does not answer the more basic question—did the officers exercise their judgment when confronted with an armed suspect firing at them? There is no evidence that they did not. 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. (Emphasis added.)
In dissent, Judge Jones argued that there was an issue of fact as to whether the officers violated the guideline by “failing to ascertain the presence of bystanders before firing their weapons.”
The facts of Friday’s shooting appear to be different than Johnson’s. However, as Johnson and cases like it make clear, liability does not automatically attach when bystanders are injured as a result of a confrontation between the police and a weapon-wielding suspect; each case must be carefully analyzed on its own merit.