Sending the City Up the River: Criminal Municipal Liability in Manhattan

Robert Magee, Fireplace Chairperson, RMagee@albanylaw.edu

Manhattan District Attorney, Robert M. Morgenthau, has suggested that he may present evidence to a grand jury in the hopes of indicting the City of New York for criminally negligent homicide arising out of the deaths of two firefighters, Joseph Graffagnino and Robert Beddia, in the Deutsche Bank fire of August 2007. (1) The possibility of such a charge raises the specter of the sort of complex case-making typically reserved for civil litigation and the revival of a kind of enforcement not seen in many years.

New York Penal Law provides that “a person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.” (2) Further, criminal negligence is defined thusly:

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. (3)

If District Attorney Morgenthau were to take corporate personhood as far as its logic would allow he might seek to send everyone in the city government, from Mayor Bloomberg to the people trimming hedges in Central Park, up the river for a no less than one and a half and as many as four year stint at Sing Sing. (4) It’s far more likely, though, that the Manhattan DA will accept New York City’s status as a municipal corporation and acknowledge that in seeking punishment he is limited accordingly.

As a corporation, there are only three possible sentences which may accompany New York City’s potential conviction: 1) a fine of up to $20,000, (5) 2) conditional discharge or 3) unconditional discharge. (6) The conditional discharge may require the city to make certain modifications as to how it goes about inspecting construction sites, but only for three years. (7)

No theory of criminal punishment would be much satiated by this result. For a corporation with $60 billion of weight to throw around, ( 8 ) a $20,000 fine is not so much a slap on the wrist as a disapproving glare from someone the city does not really like anyway. (9) Further, the possibility of conditional discharge cannot do much more than the glare of public opinion or an indeterminate degree of commitment to sound municipal administration already has. (10) Though there is no quantifying the joy which will accompany its opponents’ ability to snarl, “the criminally negligent Bloomberg Administration,” the question we have to ask is, what is the point?

Where an actor wrongs another actor, liability is jettisoned into the ever-present haze of the law and can only be brought down by certain actors against other actors and, according to each of their positions, in certain forms. When Mr. Graffagnino and Mr. Beddia tried to escape from the Deutsche Bank building, smoke blew downward onto them from fans meant to keep asbestos in the building. They were unable to get water onto the fire since the city’s Buildings Department had failed to ensure that a standing pipe was in place to get water up to the building’s higher floors. As they rushed down the stairs, away from an uncontrollable fire, they threw themselves against plywood barriers put in place, once again, to keep asbestos from getting out onto the street. (11) When they went into cardiac arrest, one of their bodies draped over one such barrier. (12) When they later died at the hospital, liability was so jettisoned.

Given that the number of actors here, from the contractors to the sub-contractors, to city authorities to the victims’ estates and the numerous subdivisions therein, and all the conventional means of imposing liability, from simple tort to Section 1983 actions, it is interesting that a District Attorney would seek it in the form of criminal sanction against a whole municipality. (13)

The practice of a state government entity criminally prosecuting a local government is not new, but it was never common and it is unclear whether they were ever very effective. (14) It arose in two ways, either in the enforcement of criminal corporation laws (15) or as a means of insulating municipalities from criminal nuisance liability by instituting an enforcement monopoly presided over by the state. (16) Criminal corporation laws only accrued where a public harm was suffered and it only arose from either positive municipal action or negligence. (17) In one case, State v. City of Bangor, (18 ) a city was criminally assessed a fine for failing to repair a bridge, which ultimately led to a citizen’s death.

In both their corporate-criminal, municipal tort functions, criminal indictments and prosecutions of municipalities by state government filled what one would think would be a crucial niche in state-municipality relations: the prerogative of the state to keep municipalities in line in much the same way as the federal government has found need to keep state governments in line. (19) Yet it’s an awkward solution, since it’s implication for the wayward municipality is minimal. A neater solution is provided by New York’s enabling statute, on the books since 1846, which states that the legislature “may from time to time amend, a statute of local governments granting to local governments powers including but not limited to those of local legislation and administration in addition to the powers vested in them by this article. A power granted in such statute may be repealed, diminished, impaired or suspended only by enactment of a statute.” (20) If New York City was so failing in its building inspection effort, the legislature could simply do it themselves.

This highlights another interesting train of thought; it’s really not the place for the District Attorney’s office to sanction municipal governments. A District Attorney is vested with the authority “to conduct all prosecutions for crimes and offenses cognizable by the courts of the county for which he or she shall have been elected or appointed.” (21) Local governments are vested with the authority to act in lieu of and in conformity with the state within their sphere of authority. (22) Each is ultimately an agent of Albany. If Albany doesn’t like what a DA is doing, it can adjust the crimes and offenses cognizable by the courts of the county through legislation or the edicts of the Court of Appeals (23) and if it doesn’t like what a municipality is doing, it can amend its charter. From this perspective, the situation arising in Manhattan gives the impression of two squabbling siblings who need separating.

An analysis of New York State and local government animosity and resolution is beyond the ken of this or any blog post and in any event we don’t stray far from a fully informed conclusion when we render this uninformed one: like most quirky legal developments, the Manhattan District Attorney’s possible indictment doesn’t mark a new era in law or a gross departure from it as it exists. In this case, due to the utter lack of material ramification, negative or otherwise, there’s no good reason for the legislature to step in this case.

Besides, one of the de facto roles of a District Attorney is to express, through the criminal law, the outrage of the community. Such outrage is present here and it is certainly deserved. Whether Mr. Morgenthau’s potential prosecution is wasting resources in attempting to brand the Bloomberg administration with a criminal condemnation is really up to his constituency. For now, Albany should let them have at it. After all, what doesn’t kill us . . .

Steven Sharp, Eric Schillinger editors.

____________________________________________________________

1 – William K. Rashbaum & Charles V. Bagli, Prosecutors Said to Weigh Charging City In Fatal Blaze, N.Y.TIMES, Aug. 17, 2008 at A25.

2 – N.Y. PENAL LAW § 125.10 (McKinney’s 2008 ).

3 – N.Y. PENAL LAW § 15.05(4) (McKinney’s 2008 ).

4 – N.Y. PENAL LAW § 70.02(3)(d) (McKinney’s 2008 ).

5 – N.Y. PENAL LAW § 80.10(1)(a) (McKinney’s 2008 ). It is worthwhile to note that a $10,000 fine attaches to all felonies, unless the felony is a uniquely corporate one with its own sentence defined within its own statute. Since the instant case presents the possibility of two criminal negligent homicide, class E felony, convictions, the worst case scenario for the city in terms of fines are two maximum convictions at $10,000 a piece. The N.Y. Times article which sparked our interest reports that the city faces up to $5,000 in fines. See supra note 1. However, $5,000 is the fine for misdemeanor convictions. Rashbaum and Bagali, supra note 1.

6 – N.Y. PENAL LAW § 60.25 (McKinney’s 2008 ).

7 – N.Y. PENAL LAW § 65.05 (McKinney’s 2008 ).

8 – Diane Cardwell, Mayor Preaches Frugality but Uses Windfall, N.Y. TIMES, Sept. 17, 2007 at A1.

9 – See Rashbaum & Bagli, supra note 1 (speculating that the potential indictment is the product of a long-standing animosity).

10 – Mark Giannotto, City is Moving to Modernize Construction Site Inspection Process, N.Y. SUN, July 17, 2008; Jay DeDapper, Changes Come Year After Deutsche Bank Blaze, WNBC.COM, July 16, 2008.

11 – Rashbaum & Bagli, supra note 1.

12 – A Year After the Deutsche Bank Fire, Abatement Continues (WNYC radio broadcast Aug. 17, 2008 ) available at http://www.wnyc.org/news/articles/106060.

13 – See, e.g., People v. West, 780 N.Y.S.2d 723 (N.Y.J. Ct. Ulster County 2004) (dismissing charges against New Paltz Mayor Jason West for solemnizing marriages without a license under New York domestic relations law sections 13, 17).

14 – Stuart P. Green, The Criminal Prosecution of Local Governments, 72 N.C. L. REV. 1197, 1201 (1994).

15 – See, e.g., State v. City of Portland, 74 Me. 268 (1883).

16 – Green, supra note 15 at 1202-03; see, e.g., City of Newport v. Commonwealth, 55 S.W. 914 (Ky. 1900) (state charging municipality for municipal law criminal nuisance); Commonwealth v. City of Boston, 33 Mass. 442 (1835) (state charging City of Boston for neglect of road maintenance).

17 – Green, supra note 15.

18 – State v. City of Bangor, 41 Me. 533 (1856).

19 – See The Civil War. It’s hard not to contrast the paradigms of authority here and speculate on their import. The federal government was ostensibly created by the states’ agreement to give (or lease) power to the federal government. This understanding ultimately left some states feeling betrayed and wanting their power back and so they were incited to act out since the authority to do so, they felt, was plenary. In New York State, however, municipalities have always known from where the power flows, and this may be the cause of the utter dearth of recalcitrant local governments and the accoutrement solutions for placating them.

20 – N.Y. CONST. art. IX, § 2 (b)(1).

21 – N.Y. COUNTY LAW § 700 (1) (McKinney’s 2008 ).

22 – N.Y. CONST. art. IX, § 2 (b)(1).

23 – See Gorghan v. DeAngelis, 7 N.Y.3d 470, 474 (2006) (sanctioning prosecutorial misconduct in causing a mistrial).

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