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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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