The Cesar Borja case gets more complicated

by Ted Frank on February 13, 2007

New York City police officer Cesar Borja died tragically young of lung disease last month. Advocacy groups (including a website that regularly accuses tort reformers of using oversimplified “pop” anecdotes) and Senator Clinton pushed his story to the media to promote a multi-billion-dollar taxpayer giveaway program (that, not incidentally, would provide contingent fees for attorneys) by claiming that Borja was sickened as a hero working “fourteen-hour days in the smoldering pit”, and was killed by alleged government lies about the safety of the air (though the government did call for respirators that they admitted Borja didn’t wear) and the media bought it in front-page tabloid stories. (That same website has been promising since it started to link “Ground Zero workers’ challenges to a larger critique of the tort reform movement”, but has yet to formally justify that non sequitur.)

Except more facts are coming to light about Borja, and as the New York Times reports, “very few of the most dramatic aspects of Officer Borja’s powerful story appear to be fully accurate”:

  • On September 11, Borja reported for duty… at the tow pound in Queens where he spent most of his career.
  • Borja did not work near the site until December 24, 2001, “after substantial parts of the site had been cleared and the fire in the remaining pile had been declared out.”
  • Borja thus never worked in the smoldering pit.
  • Borja never worked a 14-hour shift; rather, he worked a few shifts for a total of 17 days directing traffic to add to his overtime pay, most of which were in March and April 2002, and all blocks away from Ground Zero.
  • Borja smoked a pack a day until the mid-1990s.

Of course, evidence may yet arise linking Borja’s death to his work near the site. The New York Police Department and doctors, however, have yet to do so. (Sewell Chan and Al Baker, “Weeks After a Death, Twists in Some 9/11 Details”, New York Times, Feb. 13). About 50,000 Americans are diagnosed with pulmonary fibrosis each year; the fatal disease has no cure.

Update: David Nieporent has an amusing comment about Bizarro-Overlawyered’s shameless reaction to the revelation.

The post David responds to makes the mistake of making clear its political motivations for exaggerating health hazards from Ground Zero cleanup: a partisan smear of possible Republican presidential nominee Rudy Giuliani.

{ 2 comments }

1 Jake 02.13.07 at 10:19 pm

May Officer Borja rest in peace. Any word on how the lawyers for his estate are doing with the lawsuit against the Kingdom of Saudi Arabia? Or how about an update on Sen. Clinton’s program for dealing with Islamist sponsors of terror attacks on our nation? Hillary, please speak up, we can’t hear you…….

2 Jim 02.14.07 at 1:10 pm

Over at Bizarro-Overlawyered, Cyrus Dugger, the formerly Milberg Weiss Fellow at the Drum Major Institute attacks my fall column on Judge Hellerstein’s decision on the 9/11-injury suits:

“Jim Copland, Director of the Manhattan Institute’s Center for Legal Policy, wrote a New York Post op-ed titled ‘Simply Wrong’ criticizing the decision by Judge Hellerstein to not bar out of hand all 8,000 claims of Ground Zero workers and responders against NYC and its contractors. The suit was filed against these entities for not providing and implementing the use of proper safety equipment at Ground Zero. Copland would move to have all claims of these workers and first responders simply barred out of hand before discovery was allowed to investigate evidence of the extent, nature, and duration of the city’s failings.”

It amazes me — though perhaps it shouldn’t — that Dugger would attack my column and position without even bothering to explicate his legal opinion, rather than merely critizing the result as unfair. As I spell out in my column, Hellerstein gets New York’s good faith requirement wrong because he badly misreads the relevant precedents.

What exactly is Dugger’s position? That a federal judge should ignore established state law, ignoring state court precedents, because he and Dugger favor a different outcome?

I’ve excerpted the relevant portion of my column below.

“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 declaration 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.”

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