(Photo: Nick Allen/flickr_) (Photo: Nick Allen/flickr_)

I feel compelled to respond to Joel Berger’s article that was published in the New York Law Journal on March 8th regarding punitive damages against New York City Police Officers. Like Mr. Berger, I served on the Executive Staff of the Corporation Counsel’s Office and worked extensively on matters relating to the NYPD and litigation brought against it and its officers.

Since leaving government in 1996, Mr. Berger has made his livelihood bringing lawsuits against the NYPD and the City and has been a frequent critic of law enforcement. In his recently published article, he suggests that the City’s indemnification of officers for punitive damages is nefarious and leaves officers “unscathed” and unpunished. That is not the case.

When a civil action is filed against an NYPD officer, the NYPD and the Law Department engage in separate but collaborative reviews of the facts and make independent assessments regarding how to proceed. If the NYPD believes that the officer has engaged in misconduct, the officer is disciplined. Similarly, if the Law Department concludes that there was misconduct, the City denies the officer representation, and in most cases the officer is ineligible for indemnification. Conversely, if the Law Department determines that an officer was acting within the scope of his duties and not in violation of any NYPD rule or regulation, a decision is made to represent the officer (and indemnify him if necessary). The General Municipal Law (§50-k) has long recognized the need to defend and indemnify public employees, and the policy rationale is never more clear than when dealing with the often split-second decisions that officers make in complex and dangerous situations. While a jury may one day conclude—with the benefit of hindsight—that the officer got it wrong, such a finding should not negate the considered determination of the Law Department regarding the officer’s conduct.

For decades, Corporation Counsels have abided by the notion that if the City makes the decision to represent an officer at trial and through appeal, the officer should be indemnified for any judgment against him. That includes punitive damages. Corporation Counsel Paul A. Crotty’s determination in 1994, which was referenced in Mr. Berger’s article, was no different from that of his predecessors and successors. It represents fidelity to the notion that a subsequent jury decision should not undermine the Law Department’s initial determination. Exposing a police officer to personal, financial ruin is not the proper result when the Law Department has made a considered determination that the officer’s conduct is defensible.

Mr. Berger attempts to create the impression that police officers who engage in misconduct face no consequence. New York City police officers, however, are among the most closely supervised and scrutinized in the nation. The disciplinary process can be improved—an outside panel led by Mary Jo White has recently made recommendations for improvements—but to say that officers are not disciplined is false. Moreover, New York City police officers operate within the jurisdiction of five District Attorney’s, two U.S. Attorneys and an active State Attorney General. Perhaps most relevant to Mr. Berger’s article, their conduct is carefully examined by the Law Department—perhaps the most sophisticated municipal law office in the country—by an elite group of attorneys in the Special Federal Litigation section. (The section was created by Paul Crotty during his time as Corporation Counsel to ensure that such cases are handled in the most professional fashion.) Those experienced civil rights attorneys make the decision as to whether an officer is represented and thus indemnified.

We live in a time of hyperbole and extremism, and Mr. Berger’s views fit right in. Sadly, the truth is often the victim of hyperbole, and such is the case here.

Daniel Connolly is the managing partner of Bracewell’s New York office. Prior to private practice, he served on the Executive Staff of the New York City Law Department from 1997-2001, and as an Assistant District Attorney in the Manhattan DA’s Office.