What is Excessive Police Force Injury ? - Penalty, Termination for Premeditated Beating & Injuries

A Sample Excessive Police Force Case: Respondents were alleged to have used excessive force against a prisoner while on duty on April 15, 1995. Respondents were summoned to the scene of an arrest of two individuals who were in an altercation with two other police officers. One of the complainants injured one of the arresting officers. Two of the respondents arrived on the scene and transported the complainant to the precinct. En route they were alleged to have discussed where to beat her up. They also were alleged to have taken her to the precinct, where, accompanied by one other officer, they took her into the bathroom where they punched and kicked her perforating her ear drum. Respondents were charged as acting in concert. All three respondents were found guilty. Termination recommended because beating was planned, premeditated and retaliatory rather than an act of momentary excess in the heart of a difficult situation

One respondent was served well after the limitations period. However, he was found to have incurred principal liability for the crime of assault in the third degree as an accessory. In order to invoke the crimes exception, two requirements had to be met. The pleadings had to give the respondent reasonable notice that a crime has been alleged, and the petitioner had to prove by a preponderance that a crime was committed. Police Department v. Foppiano and Brummerloh, OATH Index Nos. 784-85/98, rep. and rec. at 2-3, n. 2 (Aug. 14, 1998). In this case, respondent Frink was charged with using excessive force in concert with Officers Murray and Vogt. Hence, the charges readily advised respondent Frink that the crime of assault had been alleged. For purposes of the Penal Law, crime means a misdemeanor or a felony, and "physical injury" means impairment of physical condition or substantial pain. Penal Law §10.00 (McKinney 1998). In this case, the complainant sustained a perforated ear drum, pain for several days after the incident, and a 40-50% hearing loss for seven months afterward, clearly meeting the evidentiary standard to support a finding of assault in the third degree.

The facts indicate, however, that respondent Frink kicked Ms. Ryan while she was on the floor of the bathroom and was not responsible for her punctured ear drum. At a minimum, the definition of "physical injury" was intended to exclude such things as "petty slaps, shoves, kicks and the like." See W. Donnino, Practice Commentaries, N.Y. Penal Law §10.00, at 20 (McKinney 1998).

However, the Penal Law section on accessorial conduct found in section 20.00 provides as follows:

When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct. Penal Law § 20.00 (McKinney 1998).

Section 20.00 imposes accessorial liability on an accomplice not for aiding or encouraging another to reach a particular mental state, but rather for intentionally aiding another to engage in conduct which constitutes the charged offense while himself "acting with the mental culpability required for the commission" of that offense. People v. Flayhart, 72 N.Y. 2d 737, 741, 536 N.Y.S.2d 727, 728 (1988). Traditionally, in the criminal context, it has been permissible to charge and admit evidence convicting a defendant as an accessory where an indictment charges only conduct as a principal, as was the case here. People v. Rivera, 84 N.Y.2d 766, 622 N.Y.S.2d 671 (1995). Moreover, no distinction exists between liability as a principal, and criminal culpability as an accessory, and the status for which the defendant is convicted has no bearing upon the theory of the prosecution. Rivera, 84 N.Y.2d at 769, 622 N.Y.S.2d 671, at 769; People v. Duncan, 46 N.Y.2d 74-80, 412 N.Y.S.2d 833, 837(1978), cert. den., 442 U.S. 910, 99 S. Ct. 2823 (1979). Hence, even though respondent Frink was charged as a principal, he may be found to be an accessory and to carry the same liability as the principal. In order to prevent the imposition of criminal liability for the principal's crime on someone who may have been merely present, the courts require proof that the aider or abettor "shared the intent or purpose of the principal actor."

People v. La Belle, 18 N.Y.2d 405, 412, 276 N.Y.S.2d 105, 110 (1966). The credible evidence established that Officer Frink discussed the assault with Officer Murray on the way to the 67th Precinct, and with the officers in the second RMP. Once at the precinct, respondent Frink escorted Ms. Ryan into the bathroom and participated in the assault. Hence, Officer Frink not only knew what was going to happen to Ms. Ryan, but he also discussed the logistics of doing it, and aided in the act itself. Respondent Frink clearly had the mental culpability necessary to find him guilty of conduct, which if proved in a court of appropriate jurisdiction, would constitute the crime of assault in the third degree.

Read more at 

http://www.nyc.gov/html/oath/

http://www.usdoj.gov/crs/pubs/pdexcess.htm