“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.”