Sent: Wednesday, August 29, 2001 6:32 AMSubject: No Immunity Given to Police for Civil Rights Violations in NY Ruling http://www.law.com/cgi-bin/nwlink.cgi?ACG=ZZZHKWVCYQC

No Immunity Given to Police for Civil Rights Violations in New York Ruling

 John Caher
 New York Law Journal
 August 29, 2001

 Police officers who violate a citizen's civil  rights are not immune to a lawsuit even if they  were enforcing a departmental practice or  policy, a federal judge with the U.S. District  Court for the Northern District of New York has  ruled.

 Judge Lawrence E. Kahn's decision in Sampson  v. Schenectady, 99-CV-1331, is apparently the  first in the 2nd Circuit to address just what  "extraordinary circumstances" will justify an  extension of qualified immunity to officers who  violate the Constitution. Kahn adopted a high  standard and held that even officers who are  following orders or performing in accordance  with their training or the department's  policies are not immune if their conduct was as  self-evidently wrong as in the case at bar.

 The opinion arises in a case where two City of  Schenectady, N.Y., police officers are accused  of picking up a black man from a city street,  transporting him outside city limits at night  and leaving him in remote, rural environs after  hurling his shoes into the woods. Officers have  testified that the department had an unwritten  policy of picking up drunks and suspected drug  users and dealers and depositing them in other  communities. The police chief has denied there  was any such policy or practice.

 Regardless, Judge Kahn said that whether there  was or was not a relocation policy, officers  Richard Barnett and Michael Siler are not owed  qualified immunity under the "extraordinary  circumstance" provision in the U.S. Supreme  Court's major opinion on the subject, Harlow  v. Fitzgerald, 457 U.S. 800 (1982).

 In Harlow, the justices denied senior aides of  President Richard M. Nixon derivative absolute  presidential immunity. However, they held that  public officials "are shielded from liability  for civil damages insofar as their conduct does  not violate clearly established statutory or  constitutional rights of which a reasonable  person would have known." In the view of many  observers and lower courts, the justices made  it much more difficult to hold government authorities liable for constitutional torts.

 "If the official pleading the [immunity]  defense claims extraordinary circumstances and  can prove that he neither knew nor should have  known of the relevant legal standard, the  defense should be sustained," the Supreme Court  said in a divided opinion.

 However, neither the Supreme Court, nor  subsequently, the 2nd U.S. Circuit Court of  Appeals, has provided any guidance into what  constitutes an "extraordinary circumstance."  Judge Kahn did not exactly define  "extraordinary circumstance" either, but he did  find that whatever that term means, it cannot be applied to the Sampson case.

 David Sampson, who was apparently known to  local police because of prior drug matters, was  confronted by Officers Barnett and Siler on the  night of July 28, 1999. Eventually, Sampson was  placed in the back of a patrol car and driven  about 10 miles outside the Schenectady City  limits to the town of Glenville, where he was  left without his shoes. Sampson alleges he was  struck and subjected to racial slurs,  allegations which the officers deny.

 UNOFFICIAL POLICY

 Kahn's ruling stemmed from a summary judgment  motion filed by Sampson. In opposition, the  defendants argued that even if their conduct  clearly violated the Fourth Amendment, the  city's unofficial relocation policy created an  extraordinary circumstance that would invoke  qualified immunity. Judge Kahn disagreed, saying that "given the clarity of existing case  law and the flagrancy with which the officers  violated it," he will "not allow [the  defendants'] city policy and negligent training  claims to cloak their unlawful conduct with the  veil of objective reasonableness."

 The court said that even if the defendants were  able to establish probable cause for their  seizure of Sampson, the relocation of the  suspect was obviously improper. Judge Kahn  noted that the New York Court of Appeals held  nearly a quarter century ago that police  officers cannot arrest a person "for the sole purpose of running him out of town or ... once  having arrested such a person, to follow a  practice of running him out of town to avoid  guardhouse chores for the police." (Parvi v.  Kingston, 41 NY2d 553, 1977).

 Barnett has since pleaded guilty to unrelated  crimes of drug distribution and extortion.  Siler has since pleaded guilty to other  unrelated felony charges.

 Appearing were: Kevin A. Luibrand of Tobin &  Dempf in Albany for Sampson; Daniel J. Stewart  of Dreyer Boyajian in Albany for Barnett;  Michael L. Koenig of O'Connell and Aronowitz in  Albany for Siler; and Michael J. Murphy of  Carter, Conboy, Case, Blackmore, Maloney &  Laird in Albany for the city of Schenectady.

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