By Jim Copland
This piece originally appeared in the New York Post, 10-20-06
When Winston Churchill rallied Londoners to douse the fires ignited by Nazi bombers, he didn't take extraordinary pains to caution rescuers to wear protective masks - let alone to consider carefully if they'd weighed the potential long-term dangers from smoke inhalation. But that's just what Mayors Rudy Giuliani and Mike Bloomberg and other city leaders should have done after 9/11, under the reasoning of the lawsuits that a federal judge allowed to proceed this week.
The judge, Clinton appointee Alvin Hellerstein, foisted upon the city and its taxpayers thousands of claims of 9/11-related respiratory injuries allegedly suffered by rescue workers and contractors. Incredibly, Hellerstein ruled that - absent "discovery, additional proceedings, and a more extensive factual record, and perhaps a trial" - there's no way to know if New York City had acted in "good faith" in responding to the attacks.
Huh? As the judge himself noted, officials in all levels of government took "immediate action" after the attacks. On 9/11, Giuliani declared a local state of emergency, and he and his successor Bloomberg renewed that declaration every five days through the end of June 2002.
In responding to that emergency, the city, state and federal governments took extraordinary safety precautions. The federal Environmental Protection Agency spent an unprecedented amount on measuring air quality, and the federal Occupational Health and Safety Administration oversaw the distribution of 130,000 respiratory masks.
Of course, the response was far from perfect. But the law doesn't expect perfection in an emergency situation.
The plaintiffs' alleged injuries came as they participated in the city's broad recovery efforts, and those efforts were issued under a declared state of emergency, clearly related to the 9/11 attacks. And under such circumstances, the law expressly immunizes the city from suit.
The state Defense Emergency Act specifically shields the state and city from lawsuits based on government responses to "attacks by an enemy or a foreign nation." This covers a broad scope of efforts, including "fire fighting "rescue, emergency medical, health and sanitation services "essential debris clearance and "the restoration of essential community services, industrial and manufacturing capacity, and commercial and financial activities in the state."
The law does specify that, to be shielded, the government must be acting "in good faith." That's where Hellerstein veered off course - ruling that the city's good faith "may not be inferred simply from the fact that, at the time of the allegedly negligent acts, [it was] acting in a manner responsive to a declar- ation of emergency."
But that's wrong - according to the very legal cases that Hellerstein cited. The courts have previously reached precisely the opposite conclusion, focusing on an "honesty of intention." For example, in a blackout during World War II (following the last foreign attack on U.S. soil), an NYPD officer drove into a group of soldiers, killing one. The courts found that the city was immunized even from such clearly negligent acts by its agents.
How has Hellerstein managed to draw the reverse conclusion? His opinion points to a few cases where the courts rejected attempts to invoke Emergency Act protections. But those cases involved situations where there was no actual enemy attack or when the actions weren't in response to the emergency - as when an off-duty air-raid warden ran down someone during the World War II blackout while on a "joy ride."
No one is claiming that the city is immunized from suit for actions unrelated to the 9/11 recovery - say, an innocent civilian accidentally shot by a police officer in The Bronx. And only the looniest of the loony Left think that 9/11 wasn't an enemy attack.
In fact, Hellerstein has already been rebuked by his higher-ups on the Second Circuit Court of Appeals for an incorrect ruling earlier in this same litigation. He had badly misconstrued the statute passed by Congress shortly after the terrorist strikes, which included protections against the lawsuits that inevitably follow disaster today. The court suggested that Hellerstein's narrow reading of the law could only be reached by taking the statute's clear language to a "metaphysical extreme."
Hellerstein says he doesn't want to "enrich lawyers with endless stratagems of motions and delays." Yet that's precisely what his latest ruling does. He's ignoring the law to force these tragic cases into a legal forum. And the majority of all legal expenses nationwide go to lawyers and administration, not plaintiffs; there's scarce reason to believe that Hellerstein's courtroom will be any different.
Let me be clear: Some of the brave individuals who brought our city back to life undoubtedly suffer from injuries - and deserve our thanks and in at least some cases our financial support. But those difficult decisions should be made by our elected representatives, and not by a federal judge who ignores law in favor of metaphysics.
Jim Copland is the director of the Manhattan Institute's Center for Legal Policy.