Atlantic Cities

Shooting at Empire State Building: What Will Happen If Injured Bystanders Sue the NYPD?

Shooting at Empire State Building: What Will Happen If Injured Bystanders Sue the NYPD?
Reuters

If you've watched the surveillance tape of Friday's shooting outside the Empire State Building, you probably agree the police officers did the right thing by firing on Jeffrey T. Johnson. In the video, two officers approach Johnson on the sidewalk moments after he shot former co-worker Steven Ercolino. Johnson clearly points his gun at them — threatening their lives and, if he were to miss, the safety of all those gathered in the crowded area of midtown — and the officers respond by taking him down.

Whether the nine bystanders injured in the ensuing gunfight will feel the same is another question. Over the weekend NYPD commissioner Ray Kelly told reporters that all injuries were sustained as a result of police fire. Wounded bystanders have filed lawsuits against the police department and the city in the recent past. At least one bystander doesn't seem to harbor much resent over the incident (he told reporters "stuff happens"), but the relatives of another told the Times that the officers "needed to be more careful."

A potential guide to the legal aftermath of the incident — should any lawsuits arise — is an earlier gun fight that occurred in Harlem back in 2005. In that shooting, according to a 2010 ruling by the New York Court of Appeals, five officers engaged in a gunfight with a robbery suspect at 126th Street and Lenox Avenue. The suspect, who had pointed a gun at the police and fired shots, was killed. Tammy Johnson, who was playing with her infant daughter nearby, was struck in the elbow by a stray bullet.

Tammy Johnson took action against the city on the grounds that the officers fired their weapons in violation of department protocol. Under NYPD guidelines, officers are permitted to fire their weapons to protect themselves or others from imminent death or injury, but "shall not discharge their weapons when doing so will unnecessarily endanger innocent persons." Johnson argued that officers neglected the latter guideline. The Court of Appeals ruled for the officers in a 4-to-3 decision.

The majority ruled that just because police can't "unnecessarily" endanger bystanders doesn't mean they may never fire their weapons when bystanders are in the area. "Rather, the guideline grants officers the discretion to make a judgment call as to when, and under what circumstances, it is necessary to discharge their weapons," the court ruled. In this case, the officers encountered an armed individual who was endangering both their lives and public safety, so they "clearly had probable cause to fire their weapons."

Writing in dissent, one judge noted a crime-scene sketch suggesting that innocent bystanders "should have been plainly visible" to one of the officers involved. (The officers all testified that they had not seen any bystanders before firing.) "While I acknowledge the difficulties faced by police officers in the performance of their duties, I find it troubling that some of the officers in this incident failed to observe the surrounding area prior to firing their weapons," wrote the dissenting judge.

The situation at the Empire State Building is a little different, but the logic employed by the majority in the 2010 ruling seems to stand. While the surveillance video shows all kinds of bystanders, Jeffrey Johnson clearly posed an imminent threat worthy of a "judgment call." One could even argue the crowd of bystanders made it more necessary for the officers to disarm Johnson quickly. It's certainly unfortunate that innocent people were hurt going about their business in the city — but it's equally fortunate things weren't worse.

Top image: Lucas Jackson/Reuters

Eric Jaffe is a contributing writer to The Atlantic Cities and the author of A Curious Madness (2014) and The King's Best Highway (2010). He lives in New York. All posts »

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