Claiming the affirmative defense of "privilege"
Casey v State of New York, 2017 NY Slip Op 01922, Appellate Division, Third Department
Office of Court Administration's [OCA] sole contention is that the Court of Claims court should have found that its "detention" of Colleen Casey, a senior court officer, was privileged* on the ground that a designated superior's authority to command Casey through lawful orders carried with it a privilege to keep Casey under the supervisor's supervision and to control her movements when Casey did not immediately comply with the lawful order to surrender her personal firearms.
The Appellate Division, observing that OCA bore the burden of proof to establish any claim of an affirmative defense of privilege, said that "There is nothing in this testimony that supports [OCA's] current claim that [Casey] was so noncompliant that it was reasonably necessary to confine her or restrict her movements to ensure her compliance, or so distraught that close supervision was required to ensure her safety and that of others until the firearms [sought] were secured."
OCA, relying upon Casey's testimony in her Court of Claims action to support its claim of privilege, argued that the testimony that Casey she was upset and uncooperative establishes that it was reasonable under the circumstances for the supervisor and the other officers to confine her and restrict her movements. However, said the Appellate Division, as it "previously noted, it was [OCA's] burden, not [Casey's], to prove the claim of privilege."
Having made no claim at trial that the officers' actions were based in any way upon Casey's alleged insubordination or required by any threat to public safety, and having instead presented contradictory evidence to the effect that Casey consented to almost everything she was directed to do, "[OCA] cannot now meet its burden by relying on the same testimony that it sought to discredit at trial."
Addressing OCA's contention that the supervisor "was privileged to confine [Casey] restrict her movements," under the governing rules and procedures to ensure Casey's compliance with lawful orders, the Appellate Division observed that "the rules that require court officers to comply with their supervisors' lawful orders and to turn over their firearms when directed to do so are solely directed at the subordinate officer's obligations, and do not directly address the extent of a supervisor's authority to compel compliance."
Further, said the court, "Nothing in any of the provisions relied upon by [OCA] expressly authorizes a supervisor to use confinement or force to compel a subordinate to comply with an order" nor do the rules that require an officer to comply promptly with lawful orders unequivocally forbid all resistance to every order. Rather the rules provide that the officer "shall not obey any order which is inconsistent with the law," must request clarification or confer with a supervisor when in doubt as to whether an order is lawful, and must obey an order that he or she believes to be unlawful only if the supervisor fails to modify the order after being respectfully informed of the subordinate's belief that it is unlawful.
Accordingly, the Appellate Division said that it agreed with the Court of Claims conclusion that OCA did not meet its burden to that the conduct of the officers in confining Casey and restricting her movements was "reasonable under the circumstances and in time and manner," and therefore OCA failed to prove that its supervisor's conduct was privileged.
The decision is posted on the Internet at: