Important Message from the DEA Attorneys Regarding “Providing Medical Attention”June 24, 2020
As you know, the New York State Legislature has rushed through several new laws, which have now been signed by Governor Cuomo, as a knee-jerk reaction to the civil unrest which has gripped our City, and the country. As we have discussed in prior emails, these laws will effect a significant change in policing in New York. One such law – NYS Civil Rights Law section 28 – governs providing medical attention to individuals under arrest.
Like many of these new laws, this law creates many more questions than it does answers. Here are some of our initial observations.
First, it applies to individuals “under arrest” or “otherwise in custody.”
Next, a Police Officer “shall have a duty to provide attention to the medical and mental health needs” of such person. It does not define what a medical or mental health “need” exactly is.
Next, a Police Officer must “obtain assistance and treatment of such needs” which are reasonable and in good faith. Again, no definition, explanation or guidance is provided by the legislature. Next, if failing to provide assistance and treatment of such needs results in serious physical injury or a significant exacerbation of a pre-existing injury, our member can be sued and will be held liable (i.e., must pay) for actual damages plus attorney’s fees and costs of any lawsuit.
Given these ambiguous, as of yet undefined words, Officers must protect themselves whenever they have an individual under arrest or in their “custody.” How does one provide attention to an individual’s medical and mental health needs? We have demanded that the Department provide training and guidance to members as to what must be done to comply with this new law and they have promised to do so. In the interim, at a minimum, the member must visually examine the individual in their custody as to their physical and mental condition. You must specifically ask whether they require medical attention for both physical and psychological conditions. Any sign of an injury or condition must be followed by an immediate call for medical attention. Even if no sign of an injury, the member must also ask what their condition is. Any sign (or statement) of a physical or psychological injury or condition – even if pre-existing – requires immediate medical attention. Finally, ensure the entire process of a physical examination and talking with the individual is captured on body worn camera (if equipped), Department phone, and in the member’s activity log. This goes for any individual arrested or in your custody, whether injured or not.
If you suspect any injury (physical or psychological) obtain immediate medical attention even if the individual does not want any treatment. Call EMS anyway and let them document the refusal as well.
If you have any doubt as to what you should do, call EMS or take the prisoner to the hospital. Protect yourself from the frivolous lawsuits that I am sure will emanate from this misguided law. Please be guided accordingly.
Please, stay safe.
-James M. Moschella
Karasyk & Moschella, LLP
The Woolworth Building
233 Broadway, Suite 2340
New York, New York 10279