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Sep 28 2011

Medford Pharmacy Shooting Lawsuits Will Not Succeed

I guess it should be expected that the families of the tragic shooting of four people in a pharmacy in Medford, NY, would want to attach blame to the Suffolk County Police Department for its failure to remove guns from the shooter David Laffer after it had received a complaint that brought the SCPD to his home where they learned of his possession of several handguns and rifles. The responding officer to the Laffer home called the Pistol Bureau to confirm that all of the guns were properly licensed (they were) and suggested they should follow up on whether this guy should remain licensed. They never did.

But I guess I was more hopeful that the attorneys who had been contacted by the families would have the backbone to tell them that this issue had long ago been decided and that the police are immune from such claims. For more than four decades NY Courts have been readily dismissing lawsuits on facts much worse than those in Medford brought by victims and their families who are claiming a “failure to provide police protection.” That is, a claim that had the police acted and intervened in some way the criminal would not have perpetrated his crime.

Without getting into a lengthy legal discussion, the only exception to this hard and fast rule is if a “special relationship” existed between the victim and the police department. That requires the victim proving that the police made a specific promise directly to him/her to provide protection; that the person then relied on that promise and did something they would not have done without receiving that promise; and that the police then negligently failed to provide the promised protection though they knew the potential consequences of a failure to do so. The most common example of this is where a woman with an order of protection against her boyfriend/husband/baby’s father tells the police that loser is threatening her again or is coming over to her house in violation of the order of protection AND the police tell her to stay put that they are on the way, then they don’t show up and the victim is assaulted or murdered because she didn’t run when she could have.

The reason for this long-established doctrine is simple. We cannot allow lawsuits to be field every time the police slip up or fail to do something they should have done. The general obligation of police to protect us from criminals is an obligation they owe to the public at large and not to a specific individual. Without this law, nearly every crime victim in a high crime area would be able to sue because police were on notice that a crime could occur and failed to do something about it. As the Court of Appeals (NY highest court) put it many years ago:

We have municipal immunity because of what we demand from public officials in the performance of their duties. If liability flowed from every negligent action, officials would be trained to shrink from their responsibility so as to avoid possible costs to their municipal employers. We expect better of our government, and therefore protect the discretion of its agents so municipalities will encourage them to carry out their duties in the service of the public.

Here, there was no contact between the victims and the SCPD, no promises were made, therefore no promises were broken. Its open and shut. In a case out of Brooklyn, a few years ago, a woman got into a traffic accident. The police arrived and saw that she was visibly shaken, trembling and upset. Security officers from a nearby hospital who saw the accident testified that she was “hysterical.” Despite all the evidence that she was unfit to drive, the responding police officer told her to move her car forward and out of the way of traffic. She drove backward instead of forward and crushed the legs of someone standing behind her car. A jury found the City 100% responsible but the Court of Appeals threw out the case because there was no contact between the victim and the police.

In a case right out of Suffolk County in 2005, the Court of Appeals threw out a case where the plaintiff pulled his car over on the highway because he had chest pains. He told the responding officer that he had “chest pains and was not feeling well.” The police officer told him to move his car off the shoulder and into the nearest service station. The plaintiff did so, had a heart attack and crashed his car receiving injuries. The Court said because there was no indication that the plaintiff was unfit to drive, the SCPD had no reason to believe that his action could lead to harm and the case was thrown out. Here, the SCPD responded to the Laffer home because he was accused of taking money illegally out of his mother’s bank account. His Mom did not want him arrested. There was no violence or drug abuse alleged. What about this incident would put the SCPD on notice that Laffer would four or five months later shoot and kill 4 people?

One last example the send the message – In 1984, in Jamestown NY, a couple witnessed a man assaulting a woman in the parking lot of a pharmacy. As they drove by the scene they spotted a police officer down the road assisting a disabled vehicle and drove to him. They told him what they saw (the man of the couple knew the police officer personally). They gave him the license plate of the assailant’s car and the victim’s car. The cop said he would call it in and respond to the parking lot. He never did either of those things. In the interim, the assailant forced the woman into his car repeatedly raped and assaulted her, fracturing her larynx and inflicting numerous other injuries. After brutalizing her, Blanco locked plaintiff in the trunk of her car from which she was rescued some 12 hours later. Horrible, right? I mean the cop was given the license plate of the car, he was told an emergency was in progress and he forgot to call it in or respond to the scene? I mean its Jamestown for crying out loud, issue an APB and shut the town down, it probably only has two stoplights! Nevertheless the Court of Appeals, after first declaring that prior Court decisions dismissing these kinds of cases are “legion,” stated:

Our consistent refusal to impose liability in the absence of such a relationship rests primarily upon the commonly recognized principle that a municipality’s duty to provide police protection ordinarily is one owed to the public-at-large and not to a specific person or class.Moreover, a municipality’s provision of police protection to its citizenry has long been regarded as a resource-allocating function that is better left to the discretion of the policy makers

So I know what you’re thinking- if its so clear why would a lawyer take this case? I don’t know! Publicity? An inability to do legal research? Hoping for maybe a nuisance settlement? Off his meds? What is interesting is that the first family to sue told Newsday that they were not planning on filing a lawsuit until “a family member was contacted by a New York City-based law enforcement source who advised them to get a lawyer and pursue a negligence action.” What? That sounds highly unusual – did he refer them to a lawyer as well? Of course, once one family filed, another didn’t want to get left behind and filed a claim as well.

All of the above cases and the Laffer case as well, sound like the County should be responsible. In fact, I overheard a conversation this morning about how the County was “Gonna get hit big” with this case that prompted me to write this. My sympathies go out to the victims’ families and in a perfect world, maybe the police should follow up on every hunch, hint, or potential problem that may arise, but we live in the real world and in the real world, these cases have no chance in court.

1 comment

  1. The_Truth

    Ambulance chasers will sue anyone

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