Acquitted NYC Police Officier Not Entitled To Get His Gun Back

Boss v. Kelly, ___F. Supp.2d ___, NYLJ, Aug. 30, 2007, (S.D.N.Y. 2007)(registration required) is an important case with a long and involved procedural history.

Police Officer Boss was criminally acquitted in connection with the fatal shooting of Amadou Diallo, a case that received national attention. The Police Department never formally sought to discipline him. However, Police Commissioner Kelly refused to give Boss his gun back and instead assigned him to alternative assignments. The Commissioner's reasoned that if another incident ever happened in the future, Boss would be subjected to "prejudgment."

Boss sued, first in state court arguing that Kelly's decision was arbitrary and capricious. After loosing in state court, Boss again sued, this time in federal court claiming that denying him a gun was in violation of his due process rights.

In an opinion by Judge Stein, Boss lost again. The court held that Boss did not have a property interest in carrying a gun as he had no entitlement to it. As the decision states:

However, to establish a property interest, a plaintiff must have "more than an abstract need or desire for [the property], []he must, instead, have a legitimate claim of entitlement to it under state or federal law in order to state a �1983 claim." Finley, 79 F.3d at 1296 (citing Roth, 408 U.S. at 577). Moreover, the U.S. Supreme Court has repeatedly "recognize[d] that a benefit is not a protected entitlement if government officials may grant or deny it in their discretion." Town of Castle Rock v. Gonzales, 545 U.S. 748, 756, 125 S. Ct. 2796, 162 L. Ed. 2d 658 (2005) (citing Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 462-463, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989)).

The court is wrong here. Very wrong. Plaintiff is being denied the opportunity to continue in his chosen profession (being a regular cop) even though he was acquitted and never brought up on disciplinary charges.  Additionally, because he is not on regular assignment he probably can never be promoted. If this is not a property interest, then I do not know what one is.

More astonishing is that while this case was pending, Boss was sent to Iraq and saw combat. He was able to use his gun in Iraq, but not in the Streets of New York City because of adverse publicity that turned out to be false. What a system!!

I hope Mr. Boss appeals this case.

Mitchell H. Rubinstein