As shots rang out in the streets of New York on the morning of August 24, it seemed as though our country’s worst nightmare had returned. Two people were dead and nine were injured after police brought down gunman Jeffrey Johnson in front of the Empire State Building after Johnson had killed his former coworker. Because so many bystanders were injured in the incident, New York Police Commissioner Raymond Kelly and Mayor Michael Bloomberg fielded questions on the amount of force the two police officers used to remove this threat. Inquiries into whether the officers used excessive force, accuracy of police forces, and even issues involving the type of ammunition used have been asked to determine if, in a similar incident in the future, injuries to bystanders could be avoided and if victims in the present case could recover in a civil suit.
What is ‘excessive force’?
According to Black’s Law Dictionary, “excessive force” is an “unreasonable or unnecessary force under the circumstances.” 15 To clarify this definition, the Supreme Court of the United States has ruled that where a suspect “poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” 16 Furthermore, when an officer “has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” 17 Thus, an officer would likely be using excessive force when he is posed with a threat but acts unreasonably in responding to that threat.
Was the force excessive in this case?
The officers in this case were faced with an armed and dangerous man who posed a serious danger to the public and the officers themselves. Experts who were asked about the incident said, “the number of bullets fired by the two officers wasn’t surprising,” 18 which also provides evidence that the amount of force the officers used to bring down the perpetrator was reasonable. According to Ed Mullins, president of the Sergeants Benevolent Association, the rule on how many “rounds” are reasonable in a similar situation is “how many shots are necessary to terminate the threat.” Because Johnson posed such an immediate and significant threat to the officers and the surrounding community given the facts and circumstances, the officers did not likely use excessive force in this instance.
Although the officers and the NYPD have been criticized due to the 16 rounds fired at Johnson (as seen in the dramatic surveillance video seen here), several prominent media outlets and other individuals also reported that the officers were appropriate in their use of force. According to Police Commissioner Kelly, “When you’re told that someone just killed someone around the corner, and five seconds later that person identified as the shooter points the gun at you . . . it was the appropriate action to take.” 19 Mayor Bloomberg reiterated Commissioner Kelly, calling the incident “a terrible tragedy” that would have been “more tragic but for some extraordinary acts of heroism.” 20 Even one of the injured bystanders, Robert Asika, who was hit by a stray police bullet in the elbow, said, “stuff happens” and that he does not “really feel bad about it.” 21
Rulings like that in the case of Tammy Johnson’s also strengthen the position of police departments in similar situations to the Empire State Building incident. Tammy Johnson’s case went all the way to the Court of Appeals before being dismissed due to the court’s finding that the police had probable cause to fire on a bank robbery suspect engaged in a shootout. Police returned fire 25 times, eventually killing the suspect, but wounding Tammy Johnson in the elbow while she was playing with her infant daughter nearby. In this case, the Court of Appeals ruled that the police had discretion as to when to discharge their weapons, and because an individual was endangering both the officers’ lives and public safety, they “clearly had a probable cause to fire their weapons.” 22 Like the shooter in Tammy Johnson’s case, the Empire State Building shooter posed an imminent threat that endangered the officers’ lives as well as the bystanders’, justifying the use of force even though innocent bystanders were accidentally injured.
Can the victims still recover?
Royce Russell, an attorney in New York who represents the family of Ramarley Graham, thinks NYPD used excessive force in the gunman takedown. Graham was an unarmed 18-year-old who was shot and killed in his bathroom after a police chase following an attempted drug bust in the Bronx. The police officer in Graham’s case has been charged with manslaughter due to the excessive use of force in responding to what the officer saw as a threat on his own life, despite Graham having been unarmed. 23 The Empire State Building case is similar to other cases in which innocent bystanders have been injured or killed by stray police gunfire, which, Russell’s opinion, should be considered excessive and unnecessary force. 24 Russell believes the bystanders have been victimized both by the gunman and the police, and those victims should have some sort of remuneration from the incident.
While these victims have not necessarily won their cases in open court, these victims of alleged excessive and unnecessary force have been able to recover damages against police departments in particular situations. The victims of the Empire State Building shooting could still potentially bring claims in hopes that they might lead to a large settlement, like that of Wilson Ramos who received a $6 million settlement after he was paralyzed due to a police shootout in 2009. Similarly, a bystander wounded by an officer during a bank robbery in 1978 received a $1.5 million settlement paid by the city. 25 While it is unlikely the bystanders in the present case could bring a successful claim against NYPD based on the excessive force argument, it might be worth a try for them to bring a suit for compensation for their injuries, even if the victims.
Could other problems exist for NYPD?
While these efforts to justify the use of police force are compelling, critics point to police competence and safety as factors in the gravity of the Empire State Building incident. Because criminals have become better equipped than officers in terms of firepower, NYPD has issued semiautomatic weapons to their officers to protect against threats of violence in the city. As a result, more rounds are fired by NYPD officers per incident, an increase of 24 percent over the course of the last 40 years. 26 The NYPD records of annual firearms discharge also show that officers hit their targets only 34 percent of the time. Officers are instructed to “shoot to stop” by firing at a target’s torso, but they often miss, which calls into question their level of training and demonstrates the need for higher accuracy standards in weapons classes. Because police departments have such low hit rates, training has been focused on improving accuracy in critical situations. It is often difficult to judge how an officer will react in a life-or-death situation, which most likely will involve moving targets and physical struggles, something not easily simulated in training schools. 27
Part of the issue with police inaccuracy does not deal with whether the officers can hit a target – it involves the particular type of bullet most police forces use today. Most of those injured in the Empire State Building shooting incident were hit by bullet fragments and were not actually shot. Because the types of bullets the police use are hollow on the inside, they mushroom and leave a bigger entry point, lodging in the perpetrator and creating more substantial injuries rather than passing through. According to former New York Police Commissioner Bill Bratton, in situations like the one the officers faced, stopping the attacker is the primary goal, “The idea (of using hollow-point bullets) is to move quickly, to stop the threat.” 28 When these bullets hit other objects however, like the street, sidewalk, or cement planters outside the Empire State Building, they are more prone to ricochet and fragment. Normally this is not a problem, but in such close quarters where the incident took place, even the smallest shooting error can have a tremendous impact.
One man involved in the Tammy Johnson incident made a prediction as to whether the bystanders in the Empire State Building shooting will sue the NYPD, “Every one of them is going to sue. The City of New York has money.” While it is still unclear whether this prediction will come to light, one thing is clear: a potentially more tragic incident was averted due to the quick-thinking of two police officers, who did their jobs to protect the public from imminent harm.
1 Black’s Law Dictionary 712 (9th ed, 2009).
2 Tennessee v. Garner, 471 U.S. 1 (1985).
4 Jennifer Peltz and Tom Hays, “Police Commissioner Defends Force in Empire State Building Shooting,” LawOfficer: Police and Law Enforcement, August 27, 2012, http://www.lawofficer.com/article/news/police-commissioner-defends-fo
6 “NYPD: Disgruntled Man Kills Former Co-Worker Near Empire State Building Before Cops Fatally Shoot Him,” CBS New York, August, 27, 2012, http://newyork.cbslocal.com/2012/08/24/multiple-people-reported-shot-near-empire-state-building/
7 Ann Givens, “Empire State Building Shooting Victim Robert Asika ‘Hurting’,” Long Island Newsday, August 24, 2012, http://www.newsday.com/news/nation/empire-state-building-shooting-victim-robert-asika-hurting-1.3925649
8Eric Jaffe, “Shooting at Empire State Building: What Will Happen if Injured Bystanders Sue the NYPD,” The Atlantic Cities, August 27, 2012, http://www.theatlanticcities.com/neighborhoods/2012/08/shooting-empire-state-building-what-will-happen-if-injured-bystanders-sue-nypd/3075/
9 Zena Barakat and Randy Leonard, “Officer Had ‘No Choice’ in Bronx Man’s Shooting, His Lawyer Says in Court,” The New York Times, June 13, 2012, http://www.nytimes.com/2012/06/14/nyregion/officer-pleads-not-guilty-in-ramarley-graham-shooting.html
10 Jane C. Timm, “Ramarley Graham’s Attorney Says NYPD Used Excessive Force in Empire State Building Shooting,” Metro, August 26, 2012, http://www.metro.us/newyork/local/article/1150622–ramarley-graham-s-attorney-thinks-nypd-used-excessive-force-in-empire-state-building-shooting-on-friday
11 Michael Wilson, “After Bullets Hit Bystanders, Protocol Questions,” The New York Times, August 25, 2012, http://www.nytimes.com/2012/08/26/nyregion/bystanders-shooting-wounds-caused-by-the-police.html?pagewanted=all&_r=0
12“Police Commissioner Defends Force in Empire State Building Shooting,” http://www.lawofficer.com/article/news/police-commissioner-defends-fo
13 Julia Dahl, “Empire State Building Shooting Sparks Questions About NYPD Shot Accuracy,” CBS News, August 29, 2012, http://www.cbsnews.com/8301-504083_162-57502545-504083/empire-state-building-shooting-sparks-questions-about-nypd-shot-accuracy/
14 Chris Francescani, “All Nine Bystanders Wounded in Empire State Building Shooting Hit By Police,” Reuters, August 27, 2012, http://www.reuters.com/article/2012/08/27/us-usa-shooting-empirestate-police-idUSBRE87Q04X20120827