BRONX TIMES REPORTER, A 38 PR. 23-29, 2021 BTR
BY TONY SALIMBENE
Remember at our May meeting
we will have nominations
for post offi cer positions. Won’t
you consider giving it a try?
There are many of us available
to help you learn the ropes, ask
those who stepped up and they
will tell you what a rewarding
and interesting experience they
had.
Quick retraction and apology.
I mentioned the current
Sars- Covid pandemic by a country
name used by the former
President. My slip, I assure you I
meant no ill will to Asian Americans,
especially Asian American
Veterans!
I recall as a kid watching
‘Go For Broke’ a movie about
the 442nd Infantry Regiment,
2nd generation Japanese Americans,
the highest decorated unit
in WW2 with the highest casualties.
Their families back in the
US were not treated so well as
we know!
I need an SAL member to
take over some paperwork next
year, once a year, real easy. It’s
our fathers, our neighborhood
and especially our post that we
represent, at least on record. The
numbers do count. Be proud.
Until Next Time: “If you want
the rainbows, you have to put up
with the rain.” – Dolly Parton
BY FRANK VERNUCCIO
This article was provided
by the distinguished jurist
John H, Wilson (ret.) It is no
secret that crime in New York
City has risen at an alarming
rate, in a short period of time.
As reported by the New York
Post, “(t)he number of shootings
soared 97% from 777 in
2019 to 1,531 in 2020 and murders
jumped by 44% from
319 to 462, according to the
NYPD…(b)urglaries also shot
up 42% from 10,909 to 15,463
and car thefts soared by 67%
from 5,422 to 9,038, offi cials
said.”
New York’s ABC affi liate,
Eyewitness News, reports that
“(i)n the (fi rst) 11 months of
2020, shootings in New York
City…surged to levels unseen
in years…(w)hile overall
crime overall remains fl at,
the number of shootings increased
again in November,
this time by 112%…Police say
there were 115 shootings (in
November of 2020) vs. 51 in November
of 2019.”
And just what is the New
York City Council doing to
control this extreme surge in
violent crime? “The New York
City Council moved to end
qualifi ed immunity for Police
Offi cers…making it the fi rst
big city in the nation to do so.”
The legislation, which
awaits Mayor Bill DeBlasio’s
signature, amends the New
York City Administrative
Code to repeat the protections
against unreasonable searches
and seizures enshrined in the
4th Amendment to the United
States Constitution. There is
also the addition of the right
to bring a civil action; “A person
aggrieved may make a
claim…in any court of competent
jurisdiction by fi ling a
complaint setting forth facts
pertaining to the deprivation
of any right created, granted
or protected by (this section)
and requesting such relief as
such person aggrieved considers
necessary to insure the
full enjoyment of such right.”
These restatements of already
existing rights would be
of little concern, but for the addition
of this provision; “It is
not a defense to liability pursuant
to this chapter that a
covered individual has qualifi
ed immunity or any other
substantially equivalent immunity.”
What exactly is qualifi ed
immunity, and why is its abolition
as a defense a problem
for law enforcement?
According to FBI Academy
Instructor Richard Schott,
quoting from the US Supreme
Court case of Harlow v. Fitzgerald
(457 U.S. 800 (1982)), “government
offi cials performing
discretionary functions generally
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.”
Justice Powell, writing for
the majority, continued:
“our decisions have recognized
immunity defenses of
two kinds. For offi cials whose
special functions or constitutional
status requires complete
protection from suit, we
have recognized the defense
of “absolute immunity.” The
absolute immunity of legislators,
in their legislative functions,
and of judges, in their
judicial functions, now is well
settled. Our decisions also
have extended absolute immunity
to certain offi cials of
the Executive Branch. These
include prosecutors and similar
offi cials, executive offi cers
engaged in adjudicative functions,
and the President of the
United States. For executive
offi cials in general, however,
our cases make plain that
qualifi ed immunity represents
the norm. We have acknowledged
that high offi cials
require greater protection
than those with less complex
discretionary responsibilities.”
In language particularly
relevant, Justice Powell stated
that “public offi cers require
this protection to shield them
from undue interference with
their duties and from potentially
disabling threats of liability.”
“(L)aw enforcement offi -
cers are government offi cials
who perform discretionary
functions and may be protected
by qualifi ed immunity.
This shield of immunity is
an objective test designed to
protect all but ‘the plainly incompetent
or those who knowingly
violate the law’…offi cers
are not liable for damages ‘as
long as their actions reasonably
could have been thought
consistent with the rights they
are alleged to have violated’…
qualifi ed immunity is not appropriate
if a law enforcement
offi cer violates a clearly established
constitutional right.”
According to Attorney Rebecca
Pirius, “(j)udges created
the qualifi ed immunity shield
as a way to balance the competing
needs of (1) public offi -
cials to perform discretionary
duties without the constant
fear of being sued and (2) victims
to hold public offi cials
accountable for acting in violation
of the law…Proponents
of the current rule argue it’s
needed so public offi cials can
perform their duties without
hesitation. And, because lawsuits
won against public offi -
cials almost always end up being
paid for by the government
entity, the fi nancial burden of
loosening the standard would
fall to local and state governments
and taxpayers. Opponents
argue that the ‘clearly
established rights’ standard is
so high that victims can only
win if they can point to a case
with nearly identical facts
and circumstances. Given
this high bar, critics maintain
public offi cials are not
accountable for their actions,
and victims effectively have
no remedy under the law for
violations.”
There is no denying that in
certain instances, the application
of the qualifi ed immunity
doctrine has led to unfair
results. In the case of Dukes
v. Deaton (852 F.3d 1035 (11th
Cir. 2017)), an offi cer executing
a “No-knock” search warrant,
tossed a fl ash-bang grenade
through the bedroom
window of the residence to be
searched, without looking to
see whether anyone was present.
One of the two occupants
of the bedroom was seriously
burned by the grenade.
In dismissing the case,
the 11th Circuit ruled that “(a)
lthough we agree with Dukes
that Deaton used excessive
force, we also agree with the
district court that Deaton is
entitled to qualifi ed immunity
because it was not clearly established
that his conduct violated
the Constitution. And he
is entitled to offi cial immunity
because Dukes offers no proof
that Deaton intended to injure
Dukes.”
A case like this clearly
points to the necessity of reforming
the law of qualifi ed
immunity. However, rather
than look for an approach that
would protect both Police Offi
cers trying to do their jobs,
and people whose rights have
been violated, the New York
City Council almost literally
throws the baby out with
the bathwater. As described
by Fox News, “(o)pponents of
the bill said it might discourage
some from getting into
law enforcement. ‘Ending
qualifi ed immunity will prevent
the best young men and
women in our city from joining
the police force,’ Councilman
Robert F. Holden said as
he voted no, according to the
New York Times…’New Yorkers
are getting shot, and police
offi cers are on the streets
day and night, trying to stop
the bloodshed,’ Patrick Lynch,
president of the Police Benevolent
Association, said in a
statement, adding that the new
bill would ‘chill the operations
of law enforcement.’”
It would seem prudent and
reasonable, that at a time of
increased violent criminal
activity, the City of New York
would want their police force
unfettered by worries of civil
liability. Instead, the City
Council prefers its law enforcement
offi cers to act with
the threat of personal liability
for their actions hanging over
their every move.
In this environment, who
would want to wear the onceproud
uniform of the NYPD?
CIVIC CENTER
Community Action
Civic Association
BY LYNN GERBINO
Our next Zoom meeting
will be held on Tuesday, April
27, at 7:30 p.m. Con Edison will
be on the call to talk about the
new gas lines going in our community.
Join us and become
informed about your community.
Use these numbers to log
on:Lynn Gerbino is inviting
you to a scheduled Zoom meeting.
Topic:Throggs Neck Homeowner’s
Zoom Meeting
Time: Apr 27, 2021 07:30 PM
Eastern Time (US and Canada)
Join Zoom Meeting
https://us02web.zoom.us/j
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6OVo5dVdPQWl1eGtQL3dpdz
09Meeting ID: 884 5905 7801
Passcode: 846375
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York)Meeting ID: 884 5905
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Passcode: 846375This meeting
will take place on our
regularly scheduled meeting
night. If anyone has any topics
discussed, please shoot us
a message on our Facebook
page Throggs Neck Homeowners
Association or call 718-
823-0327. We put all timely information
on that page.All are
welcome to attend our meeting.
Our last meeting went
well as we are getting a few
more visitors as we go along.
Please have a good week! Stay
healthy and safe!
CIVIC CENTER
Throggs Neck Home
Owners Association
CIVIC CENTER
Korony Post 253
VISIT US AT BXTIMES.COM
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