The New York Personal Injury Blog

How Does Qualified Immunity Affect Wrongful Death Claims?

Police officers are often confronted with very difficult decisions. When a dangerous situation appears to escalate, officers must often make a judgment call: Either try to diffuse the situation verbally or pull the trigger on the suspect. When an officer opts for the latter, he opens himself up to a potential wrongful death suit.

Wrongful death lawsuits against the police, however, differ from traditional wrongful death suits.

Wrongful Death Claims Against the Police

In a wrongful death suit, immediate family members can get financial compensation when a person is killed due to someone's negligence or misconduct. But suing the police for wrongful death is tougher because it doesn't follow the traditional negligence standard.

A wrongful death lawsuit involving an officer in the line of duty has the higher standard of proof: Generally, the officer's actions must be "intentionally unreasonable."

But What About Qualified Immunity?

Government workers like police officers can claim "qualified immunity" from being sued for injuries that result while they are performing their responsibilities.

Though qualified immunity is broad, it is not meant to be an absolute protection for everything a federal or state employee might do. Even while acting in the scope of their employment, federal, state, and local officers can still be sued for intentionally violating a person's constitutional rights. Qualified immunity ends when an official fails to act in good faith and with due care.

Getting to the Lawsuit

If a deceased person's family decides to pursue a wrongful death claim, they must jump through a number of hoops before even filing a lawsuit. First the family must give notice to the city, and give the city a chance to respond.

In New York, there is a 90-day deadline from the time of an incident for plaintiffs to file a notice of claim with the city. But if the government rejects their claim, or fails to respond within the allotted time -- in New York, within a year -- then the family can generally proceed with a full-fledged lawsuit.

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