NYPD Deadly Force Policy Revision Does Nothing To Insulate Officers From Liability, Lawyers Say

Legal Experts say a new change to the New York Police Department's policy for using deadly force will do nothing to shield officers from liability in lawsuits brought by innocent bystanders injured in crossfire. 

The NYPD guide, a department-wide training manual, used to say cops could not shoot if doing so would unnecessarily endanger bystanders. The guide now allows officers to make that call according to their “professional judgment."

The department defines "professional judgment" as taking into account "the knowledge, experience and training" of police officers.

Gerald Cohen, an attorney who has brought several cases against the police department, said courts already look at those factors in negligence lawsuits.

"All of those things — the judgment of the officer, his experience, his or her training — all that would be considered," Cohen said.

Other lawyers said any police officer who thinks this provision will insulate him from liability in a bystander lawsuit is fooling himself because the provision adds no protection that current law doesn't already provide.

"It's like giving ice to Eskimos," said Andrew Stoll, a civil rights lawyer who has brought several lawsuits against the police department. 

The change to the Patrol Guide came just days before officers fatally shot a Harlem man in a subway station on Tuesday afternoon. 

According to The New York Daily News, the police said the revision was prompted by a 2010 state Court of Appeals decision that rejected a suit by a bystander shot in Harlem in 2005 when police were trying to shoot an armed robber.  The court ruled that officers can use their professional judgment when deciding whether to shoot when bystanders are nearby.

But Cynthia Conti-Cook, a lawyer who has brought several police misconduct cases against the city and police department, said courts have for years looked to an officer's thought process when assessing whether he acted reasonably when shooting with people nearby.

She said, for example, courts will consider the proximity of the bystanders, the number of nearby bystanders, their visibility and whether the officers really looked before shooting.  Conti-Cook said all those factors ask the same question the Patrol Guide asks:  did the officer exercise proper professional judgment?  That question might be answered more leniently during an internal department inquiry, she said.

"It perhaps gives them more protection from internal NYPD prosecution, but as far for the purposes of negligence litigation, it doesn't change anything," Conti-Cook said.

Even if a Patrol Guide revision gave officers greater protection than what current law provided, lawyers said courts hold officers accountable according to the standards outlined in law, not in the NYPD training manual. 

"The Patrol Guide is an internal document. It's a guide. It's not the law," said Cohen.  "It's not something that the courts are bound to."