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Auxiliary Police Officer Authority & Liability for Negligence

the Center for Accident Assistance

Auxiliary Police Authority & Liability for Negligence

By Philip L. Franckel, Esq.

Background

Auxiliary Police were organized in New York State pursuant to the New York State Defense Emergency Act 1951 784/51 (the Act) and NYS CPL 2.10 ¶26 (designation of Peace Officer) and CPL 2.20 (powers of Peace Officers), which came about as a result of the federal Civil Defense Act of 1950.  At the time, there was substantial federal and state concern about a nuclear attack by the Soviet Union and other communist countries. A comprehensive plan was needed to ensure the safety and survival of the citizens of New York in the event of an anticipated or actual nuclear attack.

Article 1 §3 ¶25 of the Act defines auxiliary police, auxiliary firemen, bomb squads, radiological units, rescue squads, emergency medical units, monitoring and decontamination squads, and all other similar forces having duties and responsibilities in connection with civil defense as "Volunteer Agencies".

The Act imposes, upon  virtually every county in the state, the obligation to recruit, train, equip and discharge auxiliary police officers.  Article 3 §23 of the Act, Specific requirements in cities and counties, states that each county, except those contained in the city of New York, and each city shall "...in order to prepare for attack and for the period of rehabilitation and recovery following an attack" (Article 3 §23 ¶22 Recruit, equip and train auxiliary police or special deputy sheriffs in sufficient number to maintain order and control traffic in the event of an attack and to perform such other police and emergency civil defense functions as may be required during and subsequent to attack. (emphasis added)

Although benefits provided to volunteer firefighters have not been provided to volunteer auxiliary police officers, it is interesting to note that the Act also created the requirement for volunteer firefighters.  Article 3 §23 ¶24 required the counties to "Recruit, equip and train either directly or through other political subdivisions of the state auxiliary firemen in sufficient numbers to permit the most effective utilization of all fire apparatus and to perform such other fire fighting and emergency civil defense functions as may be required during and subsequent to attack."

The Act also provides Worker's Compensation coverage and immunity (Article 9 §113) for negligent acts only when auxiliary police officers are performing duties "relating to civil defense, including but not limited to activities pursuant thereto, in preparation for anticipated attack, during attack, or following attack or false warning thereof, or in connection with an authorized drill or test".

 

Authority & Powers of Auxiliary Police - Authorized Scope of Duties

In anticipation of an attack by a foreign nation, Auxiliary Police were given the authority to perform duties only during specifically limited instances related to that fear.

Peace Officer Powers. Article 8 §105 states, "The local legislative body of any county, town, city or village may by resolution confer or authorize the conferring upon members of the auxiliary police the powers of peace officers, subject to such restrictions as such body shall impose, and subject to the provisions of subdivision twenty-six of section 2.10 and section 2.20 of the criminal procedure law." CPL §2.10 ¶26 provides the restrictions that auxiliary police officers shall have the power of peace officer set forth in CPL §2.20 only during a period of imminent or actual attack by enemy forces and during drills authorized under §29-b of Article 2-B of the executive law, providing for the use of civil defense forces in disasters.

Traffic Control. CPL §2.10 ¶26 also provides that auxiliary police officers shall have the more limited power to direct and control traffic during official drills in preparation for an attack by enemy forces or in preparation for combating natural or man-made disasters; however, this does not include peace officer powers and seems to contradict the earlier part of the paragraph.

Other than directing traffic during official drills, there is no statutory authority which permits auxiliary police officers to conduct any of the duties discussed below in Current Scope of Duties-Evolution.

Authorized Drills. An authorized drill does not include routine patrols and can not be an ongoing exercise without time limitation.  An authorized drill, permissible under the scope of the Act, would include an “occasional” training exercise on a specific date for a specific purpose and reported in advance to the state in writing.

Finding that routine patrols do not constitute an authorized drill, the Supreme Court, Appellate Division, Second Department stated in Fitzgibbon, infra:

"Although the Act provides, inter alia, for the deployment of auxiliary police to maintain "public order" through pedestrian and traffic control during drills..., its provisions reveal no intent to extend the scope of immunity to the patrolling duties..."

"In short, the record reveals that the patrolling activities in question constitute a vehicle [mechanism] by which local citizens may regularly participate in crime prevention. Further, it is notable that the enabling regulations, denominated by the defendants as constituting a statutory "drill" (see, McKinney's Uncons. Laws § 9103[14] provide for no identifiable commencement or termination of the Auxiliary Unit's "drill" duties, thereby sanctioning a perpetual schedule of activities to which the immunity provision would presumably attach."

 

Current Scope of Duties - Evolution
Today, Auxiliary Police are trained and extensively utilized by police departments for a myriad of activities far outside of the original intent, scope and authorization of the New York State Defense Emergency Act.  In Fitzgibbon, infra, the Supreme Court, Appellate Division, Second Department found,

"...it is clear that the contemporary functions of auxiliary police units have evolved beyond those contemplated by the framers of the Act...  ...there is little question that auxiliary police units have been principally deployed in order to assist law enforcement personnel in combating the threat of crime from within, and less so as the statutorily envisaged civilian reserve to be mobilized in preparation for the perceived threat of external invasion or natural disaster."

Today, auxiliary police officers wear uniforms almost identical to regular police, drive police cars which look almost identical to regular police cars and which are equipped with the same emergency lights, sirens and police radios.  Auxiliary police officers usually carry police batons (a potentially deadly weapon) and handcuffs.  Recently, after two New York City Auxiliary Police Officers were shot and killed while on a routine patrol, police departments have begun to outfit auxiliary police officers with bullet resistant vests.  Some police departments permit auxiliary police officers to carry mace and guns when they receive the same training as regular police officers.

The duties and activities of auxiliary police vary among different police departments and may include the following routine functions not authorized by the Act:

  • Directing vehicular traffic at accidents, inoperative traffic lights, parades, fairs, special events, religious events; 
  • Crowd control at special events;
  • Neighborhood patrols in marked and unmarked patrol cars as the "eyes and ears" of the police department for the purpose of detecting and reporting crime, accidents, and searching for missing persons;
  • Auxiliary police may patrol trains, train stations, subway stations and bus terminals;
  • In some counties, auxiliary police perform duties such as issuing summonses for handicap parking violations, checking vacation homes, participating in emergency rescues, riding as second man in patrol cars and performing administrative work for police departments.

 

In THE PEOPLE &C., RESPONDENT, v. WILFREDO ROSARIO, APPELLANT, infra, the New York State Court of Appeals stated with regard to the New York City Auxiliary Police Program:

"The New York City Auxiliary Police program is the largest in the United States, comprising more than eight thousand men and women. These men and women, whose uniforms are similar to police officers, assist the police in crime deterrence by their uniformed presence..."

"Although auxiliary officers perform foot patrol, traffic and crowd control, cover special events and conduct other nonhazardous jobs that a regular police officer would perform in uniform, their primary function is to observe and report ongoing criminal activity."

"In keeping with their responsibilities as aides to the police department, auxiliary officers are required to undergo an extensive training program. They must complete a fifty-two hour course which includes instruction in police science, criminal law, self-defense, first aid, police procedure and crowd psychology."

 

On March 14, 2007, two New York City Auxiliary Police Officers, Yevgeniy (Eugene) Marshalik and Nicholas Pekearo, were shot and killed on routine patrol while following a killer who had just murdered a pizza shop employee. Because they were on a routine patrol which is not authorized by the Act, they did not have peace officer status and the Department of Justice determined that they were not eligible for federal death benefits.  It took the substantial efforts of New York City Police Commissioner Raymond W. Kelly and US Senator Charles E. Schumer to reverse the decision of the Department of Justice.

Following is an excerpt from the New York City Police Department website:

“Auxiliary Police Officers Eugene Marshalik and Nicholas Pekearo acted with immense bravery on behalf of the public in the face of a deranged and armed individual,” Commissioner Kelly said. “They were killed in the line of duty and were laid to rest with full honors befitting their heroism. The City of New York has already awarded the death benefits available to Auxiliary Police Officers. It only makes sense that the Department of Justice follow suit and recognize Eugene and Nicholas as public safety officers within the meaning of the law. This was a wrong-headed decision. It needs to be reversed.” (emphasis added)

Senator Schumer said, “Following the one year anniversary of their sons' tragic deaths, the Pekearo and Marshalik families are facing another tragedy, having to prove yet again that their sons' heroic actions were committed in the line of duty as public safety officers. Officers Pekearo and Marshalik, in uniform and with the authority of the NYPD, risked their lives to stop a raving gunman. I think that any New Yorker would agree, there is no more fundamental testament to their role as public safety officers than the heroic actions they took that night. I am hopeful that the DOJ can only agree, and will reverse its misinterpretation of the law." (emphasis added)

Unfortunately, both the Police Commissioner and Senator Schumer are wrong.  This was not a legally wrong decision and the law was not misinterpreted.  The auxiliary police officers were acting under the orders and authority of the New York City Police Department, but outside of the scope of authority of the Act and thus did not have peace officer status and are not entitled to benefits.

Although an exception was made and the Department of Justice finally awarded benefits due to substantial public outcry, what should happen the next time an auxiliary police officer is killed in the line of duty?  Should the Department of Justice make an exception each time or should the law be changed to provide auxiliary police offices with peace officer status?

It is currently not a legally wrong decision, but is a morally wrong decision to deny available benefits to any auxiliary police officer killed in the line of duty.  The law needs to be changed to reflect the current day duties of auxiliary police officers and provide them with peace officer status.

The NYC Police Department website also states:

The mission of the NYPD’s Auxiliary Police Program is to provide an enhanced, uniformed community presence in order to prevent crimes from occurring and to quickly report crimes when they do occur. In the event of an emergency, the Police Commissioner, Mayor or New York State Legislature have the authority to confer peace officer status upon Auxiliary Police Officers. (emphasis added)

The NYC Police Department website clearly shows that the modern-day function of the auxiliary police has changed from policing during an attack by a foreign nation to not only reporting crimes, but also preventing crimes.

It need not take a decision by the New York State Court of Appeals, Appellate Division, New York State Supreme Court, or the statements of the NYC Police Commissioner and Senator Schumer to come to the realization that auxiliary police officers are now extensively used by police departments in New York State for routine crime prevention and other duties.

Clearly, with the lack of imminent threat of attack from the Soviet Union, the auxiliary police program has substantially evolved over the years to a point never envisioned by the original framers of the Act and substantially outside of its scope.

 

Auxiliary Police Officer Liability
The simple fact is that auxiliary police officers work every day of the year without any legal authority to perform their duties while on routine patrols.  The lack of legal authority creates a myriad of legal issues, one of which is liability for negligent acts.

As stated above, the Act provides immunity (Article 9 §113) to auxiliary police officers for negligent acts only when performing duties "relating to civil defense, including but not limited to activities pursuant thereto, in preparation for anticipated attack, during attack, or following attack or false warning thereof, or in connection with an authorized drill or test".

In FITZGIBBON v. The COUNTY OF NASSAU, et al., 541 N.Y.S.2d 845 147 A.D.2d 40 (N.Y.A.D. 2 Dept., 1989), the plaintiff David Fitzgibbon, Jr., was crossing a street in Massapequa Park, Nassau County, at approximately 11:00 P.M., when he was struck and injured by a marked RMP (patrol car) owned by the defendant Nassau Auxiliary Police Unit 316, and operated by the defendant Auxiliary Police Officer Frank Dennis, Jr.  APO Dennis was in uniform and on patrol at the time of the accident.

The plaintiff alleged that APO Dennis operated the patrol car in a negligent manner and that he had done so with the "consent and permission" of the defendant, County of Nassau.

The defendants moved for summary judgment to dismiss the plaintiff's complaint, arguing, that the New York State Defense Emergency Act conferred complete immunity with regard to any claim premised upon Officer Dennis' alleged negligence because the functions performed were part of a statutory civil defense "drill" or training exercise to which the immunity provision of the Act applied.

It was also alleged that the defendant County of Nassau was negligent in its supervision of Officer Dennis and vicariously liable for his conduct under the doctrine of respondeat superior.  Interestingly, in an effort to afford liability, the defendant Nassau County also argued that it did not direct, maintain or control the Auxiliary Unit's activities and, accordingly, was not responsible to the plaintiff under the doctrine.

The Supreme Court denied the respective motions of the defendants, thereby precluding the granting of summary judgment. The court also found that questions of fact existed with respect to the County's vicarious liability for Dennis's alleged negligence.

The defendants appealed the denial of the Supreme Court.  The Appellate Division upheld the decision, and for the reasons quoted above in this document, ruled that APO Dennis' patrol was a routine patrol and not a "drill" or training exercise entitling the defendants, including APO Dennis, to immunity.

The Justices of the Appellate Division finalized their decision by stating "...it must be concluded that the activities in question are not among those to which the shield of immunity was intended to apply."

The rationale of the decision of the Appellate Division is sound and it is the opinion of the author of this article that the decision will not be overturned.

How Fitzgibbon affects Auxiliary Police Officers in New York State. The result of Fitzgibbon is that an auxiliary police officer who is performing routine functions, which includes but is not limited to patrols in an RMP, does not have the immunity from liability or workers compensation coverage provided by the Act.  The auxiliary police officer is personally liable for his or her negligent actions which result from volunteer work with the intention of nothing more than to help the community.  This means that an auxiliary police officer is left alone to defend, by paying a lawyer, a claim or lawsuit for damages or injuries resulting from an alleged negligent act and to possibly compensate an injured party in settlement or judgment.

Nassau County protects against Fitzgibbon.  Auxiliary police officers in Nassau County now have the protection of the Nassau County Charter §2105(b) page 160, which provides:

"Volunteer workers shall be county employees for the purpose of receiving benefits pursuant to the workers' compensation law and shall be indemnified, defended and held harmless by the county against any claim, demand, suit or judgment for property damages, personal injury, including death, and any other liability which may be assessed against volunteer workers by reason of alleged negligence or other act committed by volunteer workers who were acting in the discharge of their duties within the scope of their employment or authorized volunteer duties."

Therefore, auxiliary police officers working in Nassau County, while on a function not authorized by the Act, should have the protection of the Nassau County charter as a volunteer worker (barring the county filing for bankruptcy).  The above provision in the Nassau County Charter provides the following benefits to any volunteer:

  • Worker's Compensation benefits (includes payment of medical benefits, disability benefits and other benefits).

  • Indemnification (payment of any settlement or judgment against you for a negligent act).

  • Defense (providing an attorney to represent you in the defense of any claim or legal action).

  • Hold harmless (Nassau County cannot ask a volunteer to repay to the county any money which was paid for an alleged negligent act).

This section appears to have been amended in 1986 subsequent to the Fitzgibbon case.  It is unknown and doubtful whether all other New York counties have similar provisions their charter.

Recommendation pursuant to Fitzgibbon.  It is important that auxiliary police officers in every New York State County (other than Nassau County) determine whether their county charter includes a provision, such as the Nassau County Charter, to indemnify, defend and hold harmless the auxiliary police officer from negligent acts and provide workers compensation coverage.

Without an indemnification, defense and hold harmless provision, it is strongly advised that the auxiliary police officer privately purchase an automobile liability insurance policy with high bodily injury and property damage limits.  The Auxiliary Police officer should also check with his or her homeowners insurance company or apartment renters insurance company to find out if there is liability coverage available for incidents not involving an automobile.

An auxiliary police officer who is involved in a motor vehicle accident, while on routine patrol, or other incident, which does not have the protection of the Act, should immediately notify his or her own insurance company within the time period required by the insurance policy.  The failure of an auxiliary police officer to timely notify his/her insurance company could leave the auxiliary police officer both without liability coverage and without coverage for the costs of legal defense.

One of the rarely thought of the benefits of an insurance policy is that the insurance company will not only pay any judgment or settlement against you, but will also pay for the lawyer to defend you. 

The cost of retaining a lawyer to defend you in an action for negligence can cost as much as $25,000-$50,000 or more. 

If your county charter does not provide workers compensation coverage, you must be sure to have a good major medical insurance policy and disability insurance policy if you are not retired.

 

"Fellow Officer" Rule

The "fellow officer" rule entitles police officers and police agencies to pass along probable cause from one police officer to another.

Under the rule, a police officer  is entitled to assume the reliability of information obtained from a radio bulletin, telephone, teletype alert and to make a warrantless arrest based upon that information, when the source of the information is a "fellow police officer" or police department  (People v Lypka, 36 NY2d 210, 213).  If the probable cause existed prior to being transmitted to the arresting officer, then the arresting officer has probable cause to make the arrest.

When a defendant challenges an arresting officer's warrantless arrest, the People must establish that the police officer or agency providing the information, possessed sufficient probable cause to make the arrest if they had done so themselves (see, People v Lypka, supra at 214; see also, Whiteley v Warden, 401 US 560, 568; People v Jennings, 54 NY2d 518, 522; see generally, 2 LaFave, Search and Seizure § 3.5).

If the original police officer providing the information had sufficient probable cause, then the warrantless arrest by the police officer receiving the information may be deemed lawful.

The "fellow officer" rule has been applied whether the communication was between different agencies and even between officials in different states as well as between federal and state or local authorities.

The question here is whether the "fellow officer" rule applies to an auxiliary police officer who is not a police officer or a peace officer while on routine patrol.  Because auxiliary police officers often assist regular police officers, the answer to this question can determine whether a defendant was properly arrested and whether any statements made during the course of the arrest can be admissible evidence.  An answer in the negative can result in a murderer being freed.

This issue was considered by the New York State Court of Appeals in THE PEOPLE &C., RESPONDENT, v. WILFREDO ROSARIO, APPELLANT, 78 N.Y.2d 583, 585 N.E.2d 766, 578 N.Y.S.2d 454 (1991).  In that case, a New York City Auxiliary Police Officer, while on routine patrol,  received a radio transmission about a murder suspect and upon spotting the murder suspect, advised a regular police officer who then made the arrest. 

The arrest, made by a regular police officer, was based upon information obtained from an auxiliary police officer who obtained the information from a radio transmission by the New York City Police Department.  It should be noted that New York City Auxiliary Police use the same police radios as the regular police and receive the same radio transmissions. 

The New York State Court of Appeals found in People v. Rosario, as mentioned above, that the auxiliary police officer received extensive training which was sufficient to pass along probable cause under the "fellow officer" rule and decided that the lack of peace officer status did not prevent the rule from applying to a New York City Auxiliary Police Officer.

A question to ponder is what would the court decide if a regular police officer arrested a murder suspect based upon information relayed by an auxiliary police officer obtained from a radio transmission that came from an auxiliary police radio operator on an auxiliary police frequency and not from a regular police operator (some police departments use auxiliary police operators and auxiliary police frequencies).  Chances are that if the information provided to the auxiliary police radio operator came from a regular police source and not from an auxiliary police officer, the "Fellow Officer Rule" would apply.  If instead, the information was relayed by another auxiliary police officer, the outcome could be different and result in a violent defendant being released.

Furthermore, the New York State Court of Appeals could reverse itself in a future case, which could result in a violent defendant being released.  The best way to avoid future questions for the New York State Court of Appeals is to grant peace officer status to auxiliary police officers.

 

Conclusion

Every year, police departments and taxpayers receive substantial financial savings from auxiliary police forces which provide large numbers of highly trained auxiliary police officers when needed.  Besides a potential catastrophic emergency such as extreme weather or terrorism, there are many county details throughout the year such as parades, county fairs, fireworks shows, concerts, etc. when an auxiliary police force provides as many as 50 or more auxiliary police officers for crowd control and traffic control.

Special events are extremely taxing upon communities and police departments because unusually large numbers of police officers are needed for a short period of time.  Auxiliary police officers allow communities and police departments to have the assistance of volunteers without the huge expense of hiring an extra 50 police officers just for one or two events per month.

The communities and taxpayers simply do not have the funds available to hire the large number of full-time police officers needed to replace auxiliary police officers at special events.  The use of auxiliary police does not deprive regular police of earning additional income from overtime pay.  Instead of hiring additional police officers or paying substantial overtime costs to police these events, many communities would simply cancel many public events.

The additional benefits realized by using auxiliary police for routine daily patrols and in other functions assisting regular police officers have been invaluable to police departments, communities and taxpayers.  Regular police officers usually get along very well with auxiliary police officers and have come to realize that auxiliary police officers are an added safety factor and do much of the work that regular police officers do not want to do.

It is patently clear that police departments want and need auxiliary police officers.  This is evident by the fact that each year, police departments have increased use of auxiliary police officers substantially beyond the scope of the Act.  Although the trend to increase auxiliary police duties continues, the number of auxiliary police officers has been declining substantially over the years as volunteers have had to take on two or even three jobs and have not had the time to volunteer.

If police departments wish to continue using auxiliary police as they have, it is legally necessary to enact legislation providing peace officer powers so that auxiliary police officers may legally perform their duties.  Just as volunteer fire departments have had to provide benefits to attract new volunteers, benefits should be provided to auxiliary police officers to prevent the declining number of volunteers.  Finally, it is morally right to enact legislation providing the same benefits provided to volunteer firefighters.

This article is for informational purposes only, is not an exhaustive study of the subject, is the opinion of the author and is not meant to provide legal advice.

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