This Month’s Personal Injury Wrap Up- January 2017
Our New York City police brutality lawyers have handled numerous cases for inmates who were mistreated at Rikers Islands and suffered injuries, both by guards and other inmates. While cover ups and fabricated stories to justify guards behaviors are common place, Court papers this week exposed a new low.City investigators who were investigating an inmate’s sexual assault allegations on Rikers Island lost track of key biological evidence for four days before it surfaced with signs of tampering.
The inmate claims a Rikers correction officer sexually abused her in May 2013 by forcing her to perform oral sex on him and says that she put his semen on her pants after performing the sex actand then turned it over to city investigators as evidence. While a Department of Correction investigator collected the woman’s pants, the employee who ultimately took custody of the pants could not account for the garment’s whereabouts until for four days when the New York City Police Department received the clothing, After the pants went missing, the city Medical Examiner tested the pants after the NYPD received them and didn’t find any semen. Of course the lack of semen was the reason that the police and prosecutors declined to prosecute the officer. However, when the victims personal injury lawyers had the pants tested by an independent laboratory, the independent lab found results which revealed the presence of male DNA, on the left, right and crotch areas of the pants, which was consistent with the pants being washed before being tested. Our New York City inmate assault attorneys often retain independent experts in these types of cases and the results can be shocking.
While sexual relationships between inmates and guards are not a new phenomena, it must be remembered that under New York law, an inmate cannot legally consent to sexual activity, so any sexual act between a guard and an inmate is rape. The fundamental underlying rationale is the inherently coercive environment that a jail is and no one is really free to refuse. Despite the clear law that is intended to protect inmates, the practice of investigating criminal behavior by guards and abuses in general at prisons, especially at Rikers is far from ideal. But in this case, evidence tampering to presumably protect the guard from criminal prosecution is a new low. In this case, the guard has not been criminally charges and in fact, even though another woman is suing him for sexual abuse, he is still employed as a corrections officer at Rikers Island. This of course begs the question, how many times does a corrections officer have to break the law before he will be charged and how many more women need to be raped before he is prosecuted, or at least removed from his post.
Our prison brutality lawyers have offices in Manhattan and White Plains and handle inmate injury cases from the New York City jails, as well as the Westchester County and Rockland County Jails. Our consultations are always fee and there is no fee unless you win.
There is no question that the relationship between the community and police has deteriorated as a result of recent use of force cases. Our New York police brutality lawyers know that whether the use of deadly force is deemed justified or unjustified, the gap between police and public seems to grow. Too often cases which are rules justified, really did cross the line and the failure to punish heavy handed officers sends the message that they are above the law and will not be punished, which in turn leads to more excessive force. In Chicago, multiple excessive force complaints, coupled with public outcry and protest, have lead to an extensive investigation into the city’s police department and the circumstances surrounding different use of force cases.
A year-long investigation into the Chicago Police Department revealed “systematic” violations of the civil rights of Chicago citizens. The investigation uncovered multiple deadly force cases in which the individual posed no threat to police, copious amounts of evidence suggesting the unlawful use of less than lethal force, and racially discriminatory behavior.
In one use of deadly force case, a video captured a man shot in the back after a foot pursuit. The man was determined to not have been a threat yet the officer fired sixteen rounds at the man, killing him. A dashboard camera captured the same officer standing over the man and firing off three rounds into the man’s back. The officer fabricated his report claiming that the man “charged with an apparent firearm,” which was quickly disputed by the video evidence. Our New York lawyers have long fought against fabricated cases which officers use contrived evidence to justify their behavior.
The investigation was not limited to fatal shootings and looked into less than lethal use of force. The term “less than lethal” refers the use of tools or weapons, such as a taser or baton, designed to briefly subdue an individual to allow the officer to gain control of the situation. Although these items are characterized as “less than lethal” they still have the ability to kill if used incorrectly, excessively, or if something randomly goes wrong. Police are trained to do what is necessary to control the scene all while using the least amount of force necessary. This can be difficult to balance and it can be even more difficult for police to make a split second decision in a chaotic situation that will be scrutinized later, at a time when the scenario can be discussed and ran through multiple times.
The investigation revealed that some officers were using less than lethal force for convenience as opposed to necessity. In one incident, a suspected thief ran from a store and was shot with a taser causing him to fall, hit his head, and die. The officer took action in a split second in an attempt to apprehend a thief and reacted by using a taser instead of giving chase. Although the use of force was deemed justified, the investigation categorized the use of the taser as “unnecessary.”
It was also determined that officers used force against minorities ten times more than against whites. The investigation stated that force was most prominently used in the “most challenged” neighborhoods. Although crime rates may be higher in these “challenged” areas, a citizen’s constitutional protections are infringed upon when an officer determines the level of force to be utilized is based on the area being policed and not the specific situation an officer is confronting.
Another unsettling revelation was the discriminatory behavior by Police when interacting with the community. Discrimination based on race, religion, gender, and national origin was confirmed by officers within the department attesting to the racist remarks made by other officers. Victims of this discrimination were interviewed during the investigation and, understandably, felt dehumanized by Police which only served to further the “us versus them” mentality.
The multiple accounts of unjustified deadly and non-deadly force as well as the discriminatory behavior were accredited to insufficient training and a lack of accountability. Police are constantly trained and maintain certifications in order to qualify them to perform their jobs. However, the investigation determined that Chicago’s insufficient teaching and outdated material was only hurting its officers. For example, the department’s use of force class included a thirty-five year old video tape explaining outdated information concerning the reasonableness of use of force. Further, new police recruits were being trained in the academy through hours of Powerpoint presentation instead of more complex hands on training simply to “check” a box required for the curriculum.
In situations where improper use of force or procedure was complained of it was simply swept under the rug. It was determined that only two percent of the 30,000 police misconduct complaints were actually investigated. The department’s oversight and failure to hold its officers accountable for misconduct undoubtedly contributed to the repetitive cycle of police wrongdoing.
What this investigation has uncovered is eyeopening to say the least and without question will lead to changes of policy and staff within the Chicago Police Department. Hopefully this investigation will allow other departments to learn from these mistakes and improve their departments as well as work to bridge the gap between the community and police.
A common question which our New York City police misconduct attorneys hear is when can a state prison such as downstate or Sing, Sing, Fishkill or a local correctional facility like the Westchester County jail or Rikers Island in New York City be held liable for personal injuries cased when one inmate assaults another. Another common question our Westchester police misconduct attorneys hear is what do I have to do to sue for an injury I got from an assault in jail.
Technically, the prisons or correctional facilities are divisions of either the State or the local municipalities. For example, New York State facilities like Sing Sing in Ossining are owned and operated by the State and must be brought in the Court of Claims, which has a strict claim filing requirement. For local correctional facilities such as Rikers Island, the barge, Manhattan House of Detention (the Tombs) or Bronx House of Detention, which are operated by New York City, a notice of claim must be filed within 90 days of the injury with the City Of New York. New York Corporation Counsel at 100 Church Street in New York accepts these notices of claims. For personal injuries that occur in the Westchester County Jail in Valhalla, the County of Westchester is responsible and the notice of claim must be filed with the Westchester County Attorney’s office at 148 Martine Avenue in White Plains.
The County or State is not responsible for every injury that occurs in a New York State or local correctional facility. Under New York State law, a correctional facility is required to use reasonable care to protect inmates from foreseeable risks of harm, including the risk of assault by other inmates. However, not every assault from a fellow inmate renders the County or State liable for the injuries. A municipality’s duty to prisoners does not require constant surveillance under all circumstances, and the government is not an insurer of the safety of its inmates. Rather, the facilities are only required to use reasonable care and the risk of harm must be foreseeable. In the case of an inmate assault, to hold the City, County or State liable, the injured inmate must prove that the assault was reasonably foreseeable.
To establish liability in an inmate assault case, the injured inmate must prove that the facility knew or should have known that inmate was at risk of being assaulted but failed to provide the inmate with reasonable protection. The injured inmate must also prove that the State knew or should have known that the attacker was prone to perpetrating such an assault and the facility did not take proper precautionary measures, or that the facility had knew about the danger and had an opportunity to intervene but did not act. The fact that a correction officer is not present at the time and place of an assault does not establish negligence unless the injured inmate can prove that the correctional facility officials had notice of a foreseeable dangerous situation and failed to take reasonable precautions to protect the inmate.
Our White Plains civil rights lawyers keep on top of developments in the law concerning lawsuits against the government. The killing of Kenneth Chamberlain, Sr., occurred on November 19, 2011, in White Plains, New York. He was a 68-year-old African American, a former Marine and a 20-year veteran of the Westchester County Department of Corrections. After his Life Aid medical alert necklace was inadvertently triggered, White Plains police officers arrived at his home and demanded to be let in. Chamberlain, who wore the necklace for his chronic heart problem, tried to explain that he did not need help, and he refused to open the door. The police proceeded to break down Chamberlain’s door. They tasered him before shooting him dead.
Kenneth Chamberlain, Sr. was fatally shot on the night of November 19, 2011 in his apartment by officers with the White Plains, NY police department. That evening, police officers responded to an accidental activation of Chamberlain’s medical alert device. When the police arrived on scene the 68-year-old former U.S. Marine Corps officer and 20-year veteran of the Westchester County Department of Corrections, told the officers that there was no need for assistance and that he was fine. The police officers forced entry into the home nonetheless and then tasered him upon entry. According to the complaint, the taser was improperly deployed, after which one of the officers began firing bean bag bullets from a shotgun. Shortly thereafter, an officer fired two shots that killed Mr. Chamberlain. He died several hours later in a local hospital.
In 2012, a Westchester County grand jury found no crime had been committed in the Nov. 19 killing. District Attorney Janet DiFiore called the killing “a tragedy on many levels” but said the grand jury found no reasonable cause for an indictment. The victim’s son, Kenneth Chamberlain Jr., moved forward with lawsuit naming the City of White Plains, the White Plains Housing Authority, and eight members of the White Plains Police Department as defendants.
On September 17, 2014, during the deposition of Police Chief James Bradley, the two parties came to odds over the issue of evidentiary privilege. When something is privileged, the holder of the privilege may refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding. One well known privilege is the attorney-client privilege, protecting confidential communications between a client and his or her legal adviser for the dominant purpose of legal advice. The rationale is that clients ought to be able to communicate freely with their lawyers, in order to facilitate the proper functioning of the legal system.
Here, Chief Bradley’s deposition testimony showed that the White Plains Police Department had performed and internal investigation (an “After Action Report”). The Report had not been produced during discovery in response to Plaintiff’s requests for production. The Defense attorneys indicated that they would instruct Chief Bradley not to answer questions about the content of the Report on the basis of the “self-critical analysis privilege,” a lesser known, and somewhat dubious, privilege. The self-critical analysis privilege applies to those materials created for candid self-assessments and self-evaluations, such as After-Action Reports, which are fairly commonplace in organizations such as the military and law enforcement. The privilege was created for the public policy reason that it is more important for organizations to confidentially evaluate their legal and regulatory compliance than it is for an opposing party to be allowed to use those evaluations in their discovery process. The privilege thus allows organizations and people to self-monitor and improve without fear that these evaluations will become admissible evidence used against them by an opposing party.
Since it originated in 1970, however, most courts have refused to apply the self-critical analysis privilege beyond the peer-review medical context. It is not universally accepted, either. Courts that do choose to apply the privilege will use a balancing test. Unfortunately, this test has not been consistently applied by trial courts, and the results have been conflicting decisions and wildly inconsistent applications of the privilege. Generally speaking, however, Courts that do allow the privilege will first require four criteria before being willing to apply it: (1) The information must result from self-critical analysis performed by the party claiming the privilege; (2) The free flow of this type of information must advance a strong public interest; (3) The information sought must result from the type of analysis that would be curtailed if discovery were allowed; and (4) The document sought to be protected was prepared with the expectation that it would be kept confidential, and in fact has remained so.
In ruling against the Police Department’s right to invoke the privilege, Federal Judge Cathy Seibel of the Southern District of New York, did not explicitly reject the entire privilege, but held that “if it exists, [it] does not apply in this circumstance” for a few reasons. While skeptical on the privilege’s existence within the Circuit’s jurisdiction, the Court was more skeptical of the Defendants’ assertion that discovery of the material would have a chilling effect on the free flow of information necessary to effectively undertake the analysis in question. The Court found them to have failed to demonstrate that the department would be less likely to undertake this type of internal investigation in the future if the resulting after-action reports were discoverable in litigation.
In ordering the report to go forward and be disclosed to the Plaintiff, it seems abundantly clear that the self-critical analysis privilege remains an elusive and tricky privilege, and certainly not something that litigants should rely on when seeking to prevent disclosures in pretrial discovery.
In general, whoever caused the accident is responsible. If it was the employer or a co-employee who caused the accident, you are usually barred by workers compensation laws from suing them because you’re getting comp you can’t bring a lawsuit. However, if the employer did not have workers compensation, you can sue the employer directly and the owners personally for failing to securing payment of compensation. Additionally, who’s liable often depends on how the accident happened. In general, under the labor laws, the work site owner or the owner of the construction site and the general contractor are always liable… Read More
The biggest misconception is that people think that they only get comp. A lot of people don’t realize there are all these other remedies out there that can protect them and there are these other laws under which they can bring a lawsuit and get compensated for what they went through. Another misconception we see, particularly among the immigrant community and undocumented immigrants, is that they can’t sue because they arrived here illegally. We’ve handled a number of these cases successfully and the courts were pretty clear that the immigration status doesn’t matter because if you get hurt in the… Read More
Como un abogado de accidentes de coche en Nueva York, quetambién asiste en un gran número de accidentes de camiones comerciales, hemanejado numerosos casos de lesiones personales que impliquan a losautomovilistas de otro estado que causan accidentes de tráfico en Nueva York. Una de las primeras preguntas que todas las víctimas de lesiones personales en un accidente de coche le pide a su abogado de accidentede coche es donde puedo demandar. La respuesta es que la ley de Nueva York establece la jurisdicción sobre el demandado si el accidente se produjo en Nueva York. En general, el abogado tendrá que… Read More
This week a wrongful death was suffered by an unfortunate tenant in fire in a Yonkers building. Fire crews battled the fire for several hours prior to getting it under control. Fires present dangers of both person injury and death to both those who live in buildings and the firefighters who battle them. Our accident attorneys have extensive experience in handling fire cases both in New York City and in Westchester. While the insurance industry will claim that fires which are accidental, are not the fault of anybody and just happen. Our New York City and White Plains Personal injury attorneys… Read More
Our New York construction accident lawyers have extensive experience in representing construction workers who have sustained personal injuries in worksite accidents. One of the most frequent questions our construction accident attorneys hear is do I have a case. While most construction workers are familiar with New York’s Ladder or Scaffold Law, which is known as Labor Law 240. This law generally imposes liability for falls from unsafe scaffolds or ladders, but there are a number of situations in which a construction worker who is injured on the job can sue for damages. One of the most comprehensive New York Laws… Read More
Construction continues to be one of the most dangerous professions, and this week, thousands of New York City construction workers assembled to mourn the 30 wrongful deaths and fatilities of their fellow construction workers who died in construction accidents over the past two years. The construction worker are calling for new legislation to protect them and enforce job safety in an urgent call for action to help prevent future job-site fatalities. Our New York construction accident lawyers support new legislation and increased enforcement for job safety. Across New York City there have been vocal outcries and protests for greater work place… Read More
The first week of February has proven to be a deadly week, with a number of tragic car accidents in the Bronx. Our New York City wrongful death and car accident lawyers know all to well how dramatically a car accident can affect someone’s life. An off-duty New York City Police Officer suffered an unfortunate wrongful death in a car accident in the Bronx this week. The passenger in the vehicle,who was a housing officer, also suffered serious personal injuries. The officer’s car flipped over and then caught fire in a traffic circle in the Pelham Bay section of the… Read More
The federal government’s Occupational Safety and Health Administration is fining the Tappan Zee Constructors more than $12,000 for last July’s crane collapse. In particular OSHA found that the contractors failed to keep a safe work site, and exposed employees to the risk of injury caused by the falling crane. The incident occurred when a crane, which was driving piles for the new Tappan Zee Bridge’s Westchester-bound bridge collapsed across all lanes of the current bridge. While cranes collapses in Manhattan have become somewhat of an epidemic. there are only a few Westchester maritime construction accidents, who are familiar with the interplay of maritime law… Read More
Our New York City police brutality lawyers have handled numerous cases for inmates who were mistreated at Rikers Islands and suffered injuries, both by guards and other inmates. While cover ups and fabricated stories to justify guards behaviors are common place, Court papers this week exposed a new low.City investigators who were investigating an inmate’s sexual assault allegations on Rikers Island lost track of key biological evidence for four days before it surfaced with signs of tampering. The inmate claims a Rikers correction officer sexually abused her in May 2013 by forcing her to perform oral sex on him and says… Read More
In a recent case, our White Plains Lawyer, Michael Joseph won a summary judgment motion for a client who backed out of a parking spot and was hit by another vehicle. Summary judgment is used to expedite a case when there is no dispute as to the important facts of the case. When there are no issues of fact, it can be determined which party is entitled to judgment without having to proceed to trial. Michael Joseph is considered to be one of the most experienced car accident lawyers in Westchester and has won numerous summary judgment decisions in favor… Read More