In their continued attack on law enforcement, on Thursday, March 25, 2021, the New York City Council passed a slate of bills relating to their efforts to “reform” or “reimagine” policing in this City. This was done with little if no input from us – the very people who are entrusted with keeping this City safe. Many of these regulations and stipulations tie our hands and make it extremely difficult for us to do our jobs.
One of the provisions passed by the NYC Council on March 25, 2021, adds a new chapter to the NYC Administrative Code – Chapter 8 – entitled “THE RIGHT OF SECURITY AGAINST UNREASONABLE SEARCH AND SEIZURE AND AGAINST EXCESSIVE FORCE.” In short, it states that a person who alleges that his or her Constitutional right to be free from unreasonable searches and seizures (which includes the right to be free from excessive force) has been violated, “may make a claim in a civil action in any court of competent jurisdiction by filing a complaint[.]” Further, “it is not a defense to liability . . . that an individual has qualified immunity.” A person has three years to make any such claim.
There has been much discussion as to what implications this new law will have for our members. The short answer is this: not much. Points to consider are the following:
This law does not create any new Constitutional right for citizens. Rather, it merely regurgitates the Fourth Amendment to the U.S. Constitution regarding unreasonable searches and seizures, which has always applied to the actions of Police Officers since the founding of our country.
This law does not create any new right to sue that doesn’t already exist. Citizens have always had the right to sue Officers under both federal and state law, in either federal or state court, for alleged Constitutional violations. In fact, many of you have been personally sued under these already existing laws. All that this law accomplishes is adding an additional statute for lawyers to cite in bringing these claims, namely Administrative Code section 8-803.
This law does not alter or diminish a member’s right to be represented and indemnified by the City of New York in any such lawsuit. Where a member is acting in the lawful scope of his or her duties and is not in violation of any Department rules or regulations, the Officer is entitled to representation and indemnification under New York State General Municipal Law section 50-k. This law doesn’t change that entitlement. The original version of this bill mandated that members would have to contribute up to $ 25,000 towards any settlement or judgment in lawsuits brought under this statute. Through the efforts of the DEA and the Department, among others, that provision was removed and is not part of what was passed yesterday.
The employer of a Police Officer (in this case, the NYPD and City) “is liable, based upon the conduct of the [officer] to the person aggrieved for legal or equitable relief.”
Although the law eliminates “qualified immunity” as a defense in claims brought under this Admin. Code provision, it does not (and legally cannot) eliminate QI as a defense under federal and state law. So, where a member is sued in federal court, or under New York law, he or she may still utilize that defense. Nevertheless, remember — even though the QI is not available as defense to an Admin. Code claim, a member still has the right to be represented and indemnified by the City of New York in any such lawsuit where the suit arises from actions taken in the lawful performance of your duty and not in violation of any rule or regulation.
Finally, although this law eliminates QI as defense solely under NYC law, qualified immunity is simply not as widely used – or given by a court – as often as people have made it out to be. Although at times courts will grant judgment in an Officer’s favor under this doctrine, that is the exception, not the norm. If there are any disputed facts in a case – which there almost always is – courts will routinely deny summary judgment and hold that a jury must decide the issue. Remember, you can still claim QI in federal and state lawsuits.
Based on the above points, we do not see this new Administrative Code provision being the monumental change some are making it out to be. That being said, it is no time to let our guard down. This package of bills illustrates the utter contempt our so-called leaders have for the dangerous and important job you do. It is a clear sign to proceed with caution in any enforcement action and only take action when absolutely necessary, lest you be subjected to possible civil liability. The City Council has sent a message as to how they want you to police: reactive, not proactive; hands off, not hands on. Be guided accordingly.
The “handwriting is on the wall.” Protect yourself and protect your partner, and the DEA will protect you.
Paul DiGiacomo
President
& The Board of Officers
