Empire State Shooting – Part 2

In my previous post I stated a hope that the 9 bystanders wounded by two NYPD officers in the Empire State gunfight would receive compensation for their injuries suffered.

Having looked into additional reports on the issue of innocent bystander shootings however, I have found that incidents such as the empire State affair are not as seldom as you would like to hope, and there have been similar incidents in New York over the last few years where bystanders were exposed to danger or actually shot due to police gunfire in attempts to stop suspects, in many cases, it appears questionable whether NYPD officers used excessive force in their efforts, but also questionable as to whether the 9 casualties in the Empire State incident will be eligible for compensation.

The following illustrates two cases in point.

Times Square Incident 2012

A mere 2 weeks prior to the Empire State incident, Police opened fire on another busy city street in an attempt to bring down an armed 51 year old suspect, and in doing so discharged 25 shots. The photograph on the NY Times report linked to above tells you a lot; it show both officers aiming at the suspect, and a throng of bystanders behind the suspect, and probably many again within the line of fire, although the shooting didn’t occur at this point. Instead the officers followed the suspect along the street, and having been joined by numerous other colleagues rounded the suspect against a car and shot him in a highly public area, all as captured by one bystander on this graphic video of the incident.

Luckily no one other than the suspect was shot. However, the issue I have with this incident is that the suspect was seemingly only armed with a knife, not a gun, and no one had reportedly been attacked by him prior to his pursuit. In the video linked to above, there seems also to be an instant public outcry over the shooting, and the photographer is heard to say numerous times ‘that wasn’t a justified kill’.

Why then did it take 25 bullets to apprehend him? (12 of which hit the suspect, the remaining 13 obviously unaccounted for, despite the suspect being within mere feet and surrounded by the officers). Whatever happened to perhaps trying a taser or other non fatal method to bring him down alive? He was armed only with a knife, not a gun.  Pepper spray was apparently used to little effect, but pepper spray is not the only means to subdue a suspect. There were enough officers on the scene in close quarters with the suspect, surely one of them could even shoot well enough for a non fatal shot if necessary? It doesn’t seem like they even tried, and as appears the case from most of the available on-line video of this incident, the suspect having been pursued slowly at multiple gunpoints for a considerable distance down 7th Avenue simply died in a hale of fire. Police methods here are even more questionable given the possibility that the suspect may have had mental health issues as has been alleged in some outlets, and may have been under the influence of drugs as his initial arrest prior to producing the knife was for drug use.

The whole police response at times Square is therefore certainly open to question on the issue of proportionality of force, not to mention the clear and present danger to literally hundreds of bystanders in all directions watching (and filming on phones) the incident unfold. 13 bullets unaccounted for, it seems lucky that no one else was in fact injured.

Harlem Incident 2005

Back in 2005 a similar incident in Harlem occurred, one remarkably similar to this weeks Empire State affair where two bystanders were hit by police fire during an exchange of fire in the apprehension of an armed suspect. Tammy D. Johnson, a mother who was shot in the elbow while playing with her 18 month old child and Garnold M. King a 78 year old man who was shot in the lower back at the same time.

The interesting aspect of this incident was that both injured parties sued the authorities following their injury; Mr King apparently succeeded with a $250,000.00 payout. Ms Johnson however who sued the police on the basis of a breach of NY City Police Department procedure No. 203-12 b which states that

Police officers shall not discharge their weapons when doing so will unnecessarily endanger innocent persons

…strangely failed in her claim, a decision affirmed on appeal to the New York State Court of Appeals in 2010 on the basis that the officers involved were not negligent as they had surveyed the area for bystanders before firing and were therefore not in breach of the stated code provision. this is however an issue in dispute given that at least two of the officers claim either not to have seen any bystanders, or not to have actually looked for any before opening fire. It is also of note that the decision in this case was of the barest of majorities, with 3 of the 7 Judges dissenting.

Nonetheless the Johnson ruling is being touted as a potential precedent that may come into play should any of the nine victims of the Empire State incident bring a suit against the police, although I would have to say given the video footage of the shooting that the officers in this case could not have failed to have seen any bystanders before opening fire.

On this basis therefore, the possible outcome of any action taken by the nine injured parties is far from foreseeable.

Mike Farrell-Deveau, August 2012

About Mike Farrell-Deveau
Mike Farrell-Deveau is a Law graduate, Writer (Fiction, Copy and Journal), Business Professional and Musician with interests in Art, Politics, Human Rights, Social Justice, Access to Justice, Criminal Law, Employment Law, Clinical Negligence and making a lot of noise on an electric guitar.

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