Ten people were hit: the gunman, who was killed, and nine pedestrians caught in the hail and ricochet of police bullets.
Mayor Michael R. Bloomberg described the shooting in August 2012 as an appropriate, heroic response by the officers, but sympathized with those wounded. “It’s sad that anybody else was injured,” he said then.
In the months since, however, New York City lawyers have presented a far more aggressive stance against the wounded bystanders who have sued, essentially refusing to settle the cases and moving to have them thrown out before trial.
Since 2011, 16 bystanders have been struck by police bullets in New York City. The most recent case occurred last month, when two officers near Times Square shot at a man they mistakenly believed had a gun. The man was not wounded, but two female bystanders were. One of the women, Sahar Khoshakhlagh, has filed a notice of claim, the precursor to a lawsuit, alleging in papers received by the city in October that the officers were negligent in opening fire. If she files suit, Ms. Khoshakhlagh will almost certainly face a battle in court.
Since 2010, after the State Court of Appeals threw out a lawsuit by a bystander hit by police bullets, city lawyers have taken the position that most bystander cases should be similarly dismissed.
“The state’s highest court has recognized that police officers’ split-second decisions to use deadly force must be protected from this kind of second-guessing,” Michael A. Cardozo, who is in charge of the city’s Law Department, said in a statement, after a woman wounded in the Empire State Building shooting sued.
For city lawyers, the hard-line stance is an extension of the city’s strategy in fighting most policing lawsuits, contesting cases that they believe have little legal merit, and designating them as “no-pay cases.” But for those suing the police, the prospect of a protracted legal fight presents an odd experience: to be shot by police officers, then to have the city defend the shooting and deny any responsibility for it.
“On the one hand they’re trying to protect people,” said Jeffrey L. Seglin, an ethicist and lecturer on public policy at the John F. Kennedy School of Government at Harvard. “On the other hand, you think they would try to take care of people who get hurt in that process. The legal thing isn’t always the right thing.”
Law Department officials would not comment on the strategy, in part because it involved continuing cases. A spokeswoman for the Law Department said the city evaluated “each case based on its individual merit.” But several defense lawyers who are representing bystanders wounded by the police said they had been told the same thing: The city is not interested in negotiating a settlement.
“They said it’s a no-pay case,” said Amy Marion, a lawyer representing a woman from North Carolina, Chenin Duclos, who was wounded near the Empire State Building. “They said to me, ‘Absolutely we feel that the law is very clear in this area.’ That’s their position. That’s what it’s about for them. It’s nuts and bolts.”
How other cities handle bystander lawsuits can vary greatly. For six years, the Chicago Law Department battled a 13-year-old who was wounded by officers firing at a fleeing suspect, before winning at trial in 2010. “So a 13-year-old girl who was shot in the shoulder ended up getting nothing,” her lawyer, Russell Ainsworth, said. Philadelphia reportedly reached a $ 1.8 million settlement last year in the case of a bystander fatally shot in 2008 by officers aiming at an armed suspect; they were cleared of wrongdoing.
New York’s legal strategy does not call for contesting every lawsuit involving a bystander shot by the police, especially in cases where the officers’ actions cannot be justified, or if plaintiffs are willing to accept small awards. Bystanders can apply to the state Office of Victim Services for reimbursement of their medical bills and other expenses.
Since 2010, the city has chosen to settle three bystander cases stemming from two police shootings. In total, the city has paid more than $ 18 million in 21 bystander cases since 2003, according to the city comptroller’s office, mostly from shootings in the 1990s and early 2000s. About $ 9.8 million came in three substantial jury awards.
Yahoo Local News – New York Times
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