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When is an off-duty peace officer using deadly force acting in the scope of his employment?
New York civil rights attorneys Christopher Nyberg and Alan Fuchsberg presented an appellate argument on this very issue, in a New York State Court. The case involves an off-duty corrections officer who was behind an SUV at a red light. The light turned green but the SUV didn't move. The correction officer honked to get the SUV to move, but the SUV remained stationary. The corrections officer decided to pull alongside the SUV.What ensued was an argument between the two vehicles that resulted in the passenger of the SUV getting out of his car to confront the corrections officer. According to eyewitness testimony and that of the corrections officer, a fight broke out between the officer and the passenger of the SUV. The corrections officer then identified himself as an officer, drew his weapon, and tragically the weapon went off and killed the driver of the SUV, our client, who also had gotten out of the vehicle shortly after his passenger.The corrections officer testified that during the quarrel he announced he was an officer. He stated that he drew his firearm to deter the men from attacking him and that he intended to handcuff and arrest them. He claims he had no intention to discharge his firearm, and that the weapon went off by mistake because his hand was knocked by one of the men from the SUV during the altercation.New York Peace Officers and the Scope of EmploymentUnder New York law, the corrections officer is also a peace officer. He is trained on how to make arrests when he witnesses unlawful conduct; he need not retreat but can use his weapon, and he is authorized and trained to do this.Is this officer acting within the scope of his employment?Are these fact-intensive issues requiring a trial?We have to wait and see what the Court rules.Our client left behind two small children, a fiancé, and a fine career in computer technology.Unfortunately, this story will seem all too familiar to us in the wake of the trial of George Zimmerman and the tragic death of Trayvon Martin. Similar to the circumstances of that infamous case, our client was confronted by a peace officer where the unnecessary use of deadly force exacted a terrible price. If you have questions about what constitutes police misconduct, contact our law firm 212-869-3500.