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New York Police Officer Sued for Welfare Check on Senior

Tablet with penThe New York Law Journal reported in a recent article, “Officer's Welfare-Check on Elderly Man Is Shielded by Immunity, Court Says,” that New York Judge Frank Geraci said the search by Orchard Park Police Department Lt. Joseph Buccilli was permissible, when lives or health could be at stake based on a 911 call.

The judge said the police officer was protected by his good faith actions in responding to an emergency. He had qualified immunity from a suit filed by the owners of the home he entered, in alleged violation of residents' Fourth Amendment rights to privacy. The judge went on to say that even if Buccilli's beliefs that his actions were justified in entering the home were based on wrong assumptions, the officer’s actions weren’t so "plainly incompetent" as would qualify as a violation of the resident's Fourth Amendment rights.

The judge said "…no one has pointed this court to any controlling case that clearly establishes the answer to this question: When performing a welfare check on an individual in response to a request from adult protective services (or a similar agency), may a police officer enter a location to determine the welfare of that individual?"

Buccilli was called to the Buffalo area home of the Batt family. LuAnn was the daughter of the elderly Fred Puntoriero, whom the family had taken in after he was diagnosed years earlier with dementia. Fred's daughter-in-law called the local Adult Protective Services in April 2012, complaining that she and her husband hadn’t been permitted to see Fred for several weeks. They were concerned about his condition. Fred’s son (Joe) and daughter (LuAnn) each had power of attorney over their father, according to the ruling.

Adult Protective Services made a 911 call to Buccilli the next day. Joe didn’t want to let the officer in, but Buccilli followed Joe through a side door and found wheelchair-bound Fred inside the home. Fred looked well-groomed and well-fed. He was able to identify himself, and an Adult Protective Services case worker later confirmed that Fred was under hospice care and was receiving good care. Fred died later in 2012, at age 76.

The daughter sued the police officer for violation of their Fourth Amendment rights in a 42 U.S.C. §1983 action.

Reference: New York Law Journal (April 3, 2017) “Officer's Welfare-Check on Elderly Man Is Shielded by Immunity, Court Says”

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