The question in this case is whether the City of Buffalo rationally determined that a police officer was not acting within the scope of his employment when he assaulted an unarmed civilian.
Municipalities must defend and indemnify a police officer for torts committed “within the scope of his employment.” General Municipal Law § 50-j(1). Petitioner in this case, a Buffalo police officer, assaulted an unarmed civilian in a 2014 incident that was captured on video. The office was indicted on federal civil rights charges for the assault, and he was sued by the victim of the assault in a civil action for damages.
Petitioner then sought indemnification and a defense in the civil action from respondent the City of Buffalo. The city denied petitioner’s request, asserting that he had not been acting within the scope of his employment during the assault, and petitioner challenged that determination in an CPLR article 78 proceeding.
Supreme Court, Erie County agreed annulled respondent’s determination on the ground that it lacked a rational basis, and the Fourth Department affirmed in a 3-2 decision. The majority held that the indictment and video footage were not sufficient evidence to support a rational conclusion that petitioner was acting outside the scope of his employment during the assault. The dissenters disagreed, observing that if a city could not “withhold a taxpayer-funded defense when a police officer is caught red-handed assaulting a citizen,” then it would be difficult to imagine any circumstances in which a city “could validly exercise the discretion conferred by law to decline to defend a police officer at taxpayer expense.”
Respondent appealed to the Court of Appeals as of right.
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