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Police Liability and Litigation with Terrence P. Dwyer, Esq.

The legal system versus inflammatory rhetoric

Implications that the officers acted with such disregard as “depraved indifference” under a criminal legal standard reserved for accused murderers are inflammatory and harmful to public discourse

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The unfortunate death of 72-year-old Robert Hudson in Queens Village on January 14, 2011 is to be mourned, but, are the police to be held accountable for his death? What reportedly began as a traffic stop for a passenger (Mrs. Hudson) failing to wear a seatbelt has turned into a full-scale media vilification of the involved officers. The loss of life in any circumstance is tragic. However, it is becoming something of a sport in our society to respond to such tragedy by coupling blame and causation for a particular loss with inflammatory rhetoric and accusations against the police.

Aside from the NYPD spokesperson’s refutation of the version of events portrayed to the news media, the officers’ have not been heard from (and with good reason). If there was misconduct on the part of the officers it will be investigated internally and handled accordingly. In the meantime, there is the specter of a wrongful death lawsuit against the City of New York. No matter how some attorneys may otherwise endeavor to proceed, cases are tried in courtrooms before impartial juries, not a roomful of media microphones.

Even the issue of whether or not Mrs. Hudson had her seat belt fastened is being litigated in the media — her attorney has stated that Mrs. Hudson had her seat belt fastened. This is not the crucial issue here — there is a forum for that argument within the New York City Administrative Adjudication Bureau for traffic-related charges. Of course, there is the one additional (and often-overlooked) fact that these officers retain fundamental rights at law — and within their collective bargaining agreement — in any investigation. These rights must be protected.

For a moment, though, let us consider the incident itself and the allegations.

On January 14, 2011 at approximately 1530 hours, NYPD patrol officers pulled over a vehicle being operated by Mr. Hudson. In the passenger seat was his wife, Doris Hudson, who according to a news statement, had just removed her seatbelt when approaching the neighborhood pharmacy. Mrs. Hudson had no identification with her and that is where this unfortunate tale begins toward its tragic end.

The version of events told by Mrs. Hudson and her lawyer is that the police officers “forced” her husband to “run” the half-mile back to the Hudson home to retrieve her identification and bring it back to the scene. A span of forty-five minutes is alleged to have elapsed between the time Mr. Hudson left and returned with the identification.

The police version is that the officers never ordered Mr. Hudson to return home and retrieve the identification. The NYPD spokesperson stated the officers told the couple they had enough information from her prescription to complete the summons, but that Mr. Hudson insisted on getting the identification from their home. It is hard to believe that any rational police officer would order a 72-year-old man on a cold day to return home for his wife’s identification, especially for a minor traffic offense.

What is harder to reconcile in this story, however, is what would possess the officers to allow him to leave the scene in the first place, no matter on how insistent he may have been? The Fourth Amendment is implicated on any traffic stop — even a temporary street stop of a pedestrian has Fourth Amendment implications. Once a police officer pulls over a vehicle, the operator and all of the occupants are seized Breindlin v. California, 551 U.S. 249 (2007). The U.S. Supreme Court has provided the police great leeway when it comes to ordering the operator (Pennsylvania v. Mimms) and passengers (Maryland v. Wilson) to exit the vehicle.

On such a stop, the police have the right to detain individuals. Mr. Hudson could have been lawfully detained by the officers and prevented from leaving the scene as a result of the traffic violation witnessed within his vehicle. Why he was not detained is a question the officers will ultimately have to answer. While it may have been a lapse of judgment on the officers’ part, even that is a far cry from the exaggerated claim of Mrs. Hudson’s attorney, Bonita Zelman, who has accused the officers of acting with “depraved indifference.”

This is a standard of criminal conduct under the New York State homicide statute, section 125.25(2), which describes the behavior as:

“recklessly engag[ing] in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

Implications that the officers acted with such disregard under a criminal legal standard reserved for accused murderers are inflammatory and harmful to public discourse. In a time when police officers are being indiscriminately shot and killed across the country this is not a responsible tone for an officer of the court to take.

Mrs. Hudson’s loss is to be mourned and all sympathy with her but there is a disputation of facts which need to be resolved. There are open questions as to what occurred at the scene. Internal investigation will follow as will the external processes through the courts. There is also the ultimate legal question as to whether the conduct of the officers — either as alleged by the spouse or as alleged by the NYPD — was the proximate cause of Mr. Hudson’s death. This determination will require medical expertise and testimony. Police officers are often told to trust in the system and this is a situation in which all the parties involved will benefit by doing the same. If there is malfeasance it will be addressed — if the facts prove otherwise then two officers will have been pre-judged without the benefit of being heard.