POLICE DEMAND A RIGHT TO SUE IF BROKEN RULES CAUSE INJURIES

New legislation pending in Albany has rekindled an old and bitter debate
between New York City and its police unions over the extent to which an
injured officer should be able to sue a fellow officer or the city for
negligence.

For years, the courts have limited the rights of officers to sue in such
cases, holding that police officers and firefighters assume a certain level
of risk when they take their dangerous jobs.

But the police and fire unions are urging Gov. George E. Pataki to sign a
bill that would expand the rights of injured officers or firefighters to
sue in cases where a colleague or the city violated the internal rules of
the agency.

Officers and firefighters can now sue only if they can show they were
injured because a colleague or the city violated a criminal or civil law, a
city code or other regulations that generally govern the conduct of the
public, not just emergency workers.

The legislation, which won approval in the Senate and the Assembly by wide
margins, was written in response to the case of Officer Joseph Galapo, who
died after being accidentally shot in the face by a colleague while trying
to arrest a drug suspect in 1988. A civil court jury later found that
Officer Galapo's colleague had improperly cocked his gun, in violation of
police guidelines, and awarded Officer Galapo's widow, Helen, nearly $18
million. But the verdict was reversed on appeal by the state's highest
court, which ruled that the violation of an internal police guideline was
insufficient grounds for a lawsuit.

Supporters of the bill, which include the Detectives Endowment Association
and the Patrolmen's Benevolent Association, say the decision was faulty
because a private citizen in an identical situation would be able to
collect damages.

"It seems unfair that people like my Joe, who put their lives on the line
for this city, cannot get justice when they get hurt," Mrs. Galapo said.
"Governor Pataki has the chance to be our hero and right this wrong."

Aligned against Mrs. Galapo, the unions and other police widows are 49
counties and 25 cities, including New York, who say the bill would open the
floodgates to costly lawsuits and foster internal dissent as officers and
firefighters blamed one another for accidents.

The police unions have long had considerable legislative success in Albany,
and the change they are proposing now comes at a time when the sacrifices
made by police officers and firefighters have become vividly evident. But
the city has stressed to the governor that looming budget deficits make
this a difficult time to impose new financial obligations on the city.

Mr. Pataki has until Feb. 8 to sign the bill or it will be automatically
vetoed. A spokesman, Michael McKeon, said the governor is still reviewing it.

For many years, the so-called fireman's rule in the law had precluded
firefighters, and later police officers, from suing anyone to recover for
injuries they suffered on the job. Over the years, however, many of the
obstacles to such suits have fallen away.

The law was amended, for example, to allow officers and firefighters to
file negligence suits against third parties. In more limited circumstances,
they can sue the city or a colleague but only if the mistake that caused
injury could also be shown to have been a violation of a law or an
administrative code or a regulation.

As a result, officers injured when their partners ran red lights have been
able to sue because the mistakes were also traffic violations. Similarly,
firefighters injured in falls in city-owned buildings have sued on the
basis that the city violated administrative codes by failing to maintain a
safe premise.

But the Court of Appeals ruled that Officer Galapo's widow had no grounds
to sue because the Police Department's firearm safety rules are internal
standards set by the agency's Patrol Guide, the guidebook it gives to
officers, not a law or public regulation.

The police unions, however, contend the court misinterpreted the law.

"The existing law," said Barry Washor, the lawyer for several police
unions, "clearly contemplated that violations of patrol guidelines would
serve as the basis for suits, given that these guidelines are routinely
used to discipline officers and, on many occasions, to dismiss them. This
amendment just serves to clarify that issue."

Mr. Washor said that, contrary to the city's claim, only a handful of
lawsuits would be enabled by the bill each year because few officers are
injured by the procedural mistakes of colleagues. He said the public would
benefit from the bill because the threat of lawsuits would lead to stricter
enforcement of internal rules.

The city's lawyers countered that the bill all but eliminates the obstacles
to suing the city that had been envisioned when the fireman's rule was
enacted decades ago. In a letter to the governor, the lawyers said New York
already recognizes the risks its uniformed employees take by awarding them
unlimited sick leave and "generous health and retirement benefits."

Beyond that, the letter said, the legislation treats the Patrol Guide as a
set of hard and fast rules when in reality its guidelines are discretionary
and do not have to be followed in every circumstance.

"Police officers have to make split-second decisions in the field," said
Barry Schwartz, a lawyer for the city. "We think it is conceivable that a
police officer would hesitate if he feared that he was going to be dragged
through the mud."

After the Galapo shooting, in fact, the department's Firearms Discharge
Review Board concluded that the sergeant who had accidentally fired his gun
had not acted improperly. But the jury in a subsequent civil trial found
that the sergeant had improperly cocked his gun, in violation of the Patrol
Guide, and that the mistake had allowed the gun to go off when one of the
suspects jostled him.