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Feb 13 2016

Two Verdicts Reflect Trend to Criminalize Civil Wrongs

This past week, juries rendered two “Guilty” verdicts in cases that were in some ways circumstances of their times as many verdicts in high-profile cases are. But they were also reflective of the growing trend to criminalize what used to be considered civil wrongs. While this trend has been seen mostly in the Byzantine matrix of Federal and State regulations that now carry criminal penalties for their violation or in cases where landlords who split their apartments up are held criminally responsible for the deaths of firefighters or tenants who die in house fires, these two recent cases are basic cases that long ago would have just been viewed as “tragic accidents.”

Rookie Officer Peter Liang was found guilty of manslaughter for the stairwell shooting of Akai Gurley in Brooklyn. Liang claimed he was trying to open a door with his service revolver in his hand when, while turning the knob, it accidentally went off; the bullet struck a wall and ricocheted into Mr. Gurley killing him. In my early lawyer days, I was a trial lawyer for the NYC Law Department, representing the City of NY in lawsuits. We saw cases involving the mishandling of a police weapon like this all the time. For example, I defended the City in a case where a police officer was practicing in his apartment before his target practice qualification and forgot to unload his weapon. The bullet went through the wall and struck his neighbor in the back of his head, requiring the victim to undergo surgery and receive a metal plate in his skull. The thought of prosecuting the officer for his blatant stupidity was never part of the equation.

lady justiceMeanwhile on Long Island, 28-year-old James Ryan of Oakdale was found guilty on 10 charges, including manslaughter and aggravated criminally negligent homicide for his role in the death of Police Officer Joseph Olivieri, Jr.According to prosecutors, Ryan’s Toyota first hit a BMW on the expressway shortly before 5 a.m., stopped 1,500 feet down the road in the high-occupancy lane and then was hit by another car. A few minutes later, an SUV driver apparently did not see Ryan’s vehicle, which had been turned sideways from the earlier crashes, and smashed into Ryan’s car before hitting Olivieri who had parked on the other side of the LIE and was walking towards the Ryan accident scene when he was struck. Yes, Ryan was drunk (he blew a 0.13 on the breathalyzer, well over the .08 legal limit for intoxication) and driving over the speed limit on the Long Island Expressway. But at the time Officer Olivieri was killed Ryan’s car was at a full stop. Did Ryan’s reckless conduct “cause” the death of Officer Olivieri. Ironically, in a civil case (which has a lower burden of proof), the answer would very likely be “No.” NY case law has long established that there is a difference between creating the condition for an occurrence and causing an occurrence. The first case establishing this doctrine was Sheehan v. NYC Transit Authority way back in 1976. A bus driver negligently pulled his bus over into a bus stop leaving the tail end of his bus across the travel lanes of E.138th Street. Along came a City sanitation truck whose driver was not paying attention and rear-ended the bus, injuring Tim Sheehan, a bus passenger. While the jury found both drivers responsible, the appellate courts said only the City sanitation driver was at fault because a stopped vehicle cannot cause an accident – it can only provide the condition for the accident’s occurrence. SSheehan has been cited untold times to dismiss cases where -yes- the first driver was clearly reckless or negligent in getting into an accident but where it was the second person who drove into a stationary object that was held to be responsible for the injuries caused by that collision. The danger here is that this theory of criminal liability could extend next to someone who was merely negligent or say got pulled over for a speeding ticket only to have the citing officer get hit by another motorist who was not paying attention. The lines can get very blurry, very quickly indeed.

Both of these cases were “victims of their times.” The Nassau DA’s Office has long seen itself as a crusading agency against the perils of DWI in a county where our cars and our roads are central to our way of life. And Vehicular Crimes Chief Maureen McCormack, who tried the Ryan case, has made it her life mission to push DWI laws and penalties to their limits. So I am sure she saw the Ryan case as just the next extension in her single-minded campaign. That this verdict may greatly increase criminal liability beyond DWI cases is not an argument that would resonate with her or cause her to not try to stretch the law to this extent. In Brooklyn, the Liang trial did not arise in a vacuum, either. It followed the un-prosecuted deaths of Eric Garner, Michael Brown, Tamir Rice and others who died at the hands of police officers. Kings County DA Ken Thompson must have felt pressure from the Brooklyn community to finally hold a police officer accountable for the death of another unarmed man. “Wrong place wrong time” in the Liang case meant more than the Pink Houses stairwell he found himself in that night.

But while these societal pressures may have indeed played a role in the bringing of these cases, they also continue the trend of criminalizing conduct normally dealt with in the civil courts. But there are specific reasons we separate criminal and civil law. In a personal injury case, a person’s money, insurance policy, home, can all be up for grabs and a monetary large verdict can severely impact a person’s economic future and circumstances. But to be found criminally liable often means losing one’s liberty and in these cases, due to the high level of the convictions, the length of the sentences are likely to be long and impactful. We used to reserve those sentences for those whose acts deliberately or wantonly but directly caused the harm. Today those lines are blurred more than ever and the consequences of imprudent conduct could very well be years and years in State prison.

4 comments

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  1. Ravi Patel

    Exceptionally well-written article. Kudos to the author.

    1. Oscar Michelen

      Thanks

  2. Theresa Fox

    Beautifully written piece.

    I am a mom of two 23 yo/soon to be 24 yo sons. I constantly worry about them living in very conservative areas of PA while I reside in Philadelphia. They are very well-rounded and thoughtful/respectful young men whose socialization came in those very areas (they went to school in York and Hanover and live in Gettysburg and York), so they don’t feel suited to live in a city like Philadelphia. I’m concerned about the police and courts harassing them as that is how those townships earn their keep (through nuisance fines for petty offenses and minor traffic violations that can have you paying installments for years on end). Yes, they both have had run-ins with officers for traffic violations and marijuana. These occurrences came about because the police officers actually sat at the end of their driveway and manufactured reasons to engage them, already knowing that they were kids (like most of the others in their group of friends) who smoked marijuana. These were really minor occurrences that my husband and I when we were their age were never violated by the police for (yes we were hippy potheads for a time) and grew up in big cities where police had bigger fish to fry than who was smoking pot on a Friday night in their own driveway/backyard. Yet, those skirmishes have made more of a conservative citizen out of them, knowing that malfeasance no matter how small will net them fees and fines that they no longer want to be saddled with. Good for them!! I digress.

    I felt heartbroken for Officer Liang. I really believe in my heart that the city was reaching in charging him (was it murder/manslaughter?) for the obvious and clear accidental discharge of his firearm. One could even say he was very frightened of being in that boogie man stairwell and kind of understand him having his handgun engaged–(that I almost can’t forgive a cop too frightened to do his job effectively without killing anyone), but I do not believe that he purposely killed anybody–and it’s beyond a stretch to say that’s what occurred. I believe that the city singled him out and prosecuted him because he is an ethnic minority. This to me was a dog whistle ‘tough on our own’ type statement. They historically wouldn’t and haven’t swiftly tried and convicted a white officer who has committed heinous crimes and claimed accident or fear as a justification. It was a clear miscarriage of justice in the name of ‘placating the natives.’ This way they can go on brutalizing and profiling blacks and Latinos, denying people’s basic humanity, and then point to ‘Officer Liang’ when we cry foul. Shame on NY.

    1. Oscar Michelen

      Thanks for you thoughtful comment.

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