Military and Police

Standing Together in the Face of Politically Motivated Prosecutions of Cops

 

“The reality is that Commissioner O’Neill ‘lied’ because, in the split-second that Sgt. Barry had to make a momentous decision, he followed department guidelines.”

At a time when bands are wrapped around police badges across the country due to the grotesque execution of a NYPD cop on July 5th, many other law enforcement officers have come together to protest  the prosecution of a NYPD sergeant on trial for murder. Police union leaders from across the United States either flew or drove to the Big Apple to unite on the steps of New York City Hall. They’re speaking out against what they deem a politically motivated and erroneous prosecution of a cop doing his job.

The incident in question, for which a grand jury handed down an indictment, stemmed from NYC police Sgt. Hugh Barry’s decision to shoot Deborah Danner, a 66-year-old known schizophrenic who Barry successfully convinced to put down the scissors she was wielding. However, despite Sgt. Barry’s efforts to quell the tense situation, Ms. Danner re-excited, grabbed a 32-inch baseball bat, and lunged at him threateningly (postured as if ready to swing at police). Sgt. Barry opened fire, killing Ms. Danner in her Bronx apartment on October 18, 2016, right before the sun descended.

On May 31, 2017, Sgt. Hugh Barry was charged with second-degree murder, first and second-degree manslaughter, and criminally negligent homicide. Within hours of the shooting, Sgt. Barry was relieved of his badge and firearm, and suspended without pay. Although it is customary for every cop involved in a police shooting to have his/her firearm impounded, reserving judgment while the investigation proceeds is also a routine ingredient. In Sgt. Barry’s case, it appears that pre-judged circumstances lead to punitive administrative decisions.

According to a NY Times article, Ms. Danner “was fatally shot by a police sergeant in her Bronx apartment in a confrontation that was condemned in swift and striking terms by [NYC] Mayor Bill de Blasio and Police Commissioner James P. O’Neill.”

“Both the mayor and police commissioner said the officer had failed to follow the Police Department’s protocol for dealing with an emotionally disturbed person.” The police commissioner said: “We failed.” Mayor de Blasio called the incident “tragic and unacceptable.”

Sgt. Barry’s attorney described the baseball bat as an “indisputably deadly weapon.” The NYPD Police Academy testing materials delineate a shoot/don’t shoot protocol in which five images of potentially dangerous people are illustrated in line drawings. Of the five examples, #2 depicts a baseball bat-wielding male — the correct answer the NYPD expected of its trainees was “Yes, justified shooting.” That factor is one of the contentions that the Barry defense will likely use at trial.

As described by Sgt. Barry’s defense counsel, “[DANNER] turned toward [BARRY], and held the bat in a right-handed baseball-batter stance, with her right hand above her left, with the bat above her right shoulder near her ear.” That would seem to demonstrate a person preparing to use it against whoever is nearest the would-be swing. Despite the sensitivities in this case, any police officer in these exact circumstances has the legal option to meet deadly force with deadly force.

Taser, Taser, Taser

An argument to deploy a Taser in this situation has merits, but also some exceptions: one is that the Taser may temporarily incapacitate the assailant but, should the Taser fail, the bat-swing may end the life of the Tasing officer. A clip to the temple area can be fatal. Deploying the Taser in a “drive-stun” technique requires the officer being physically up close to the subject and pressing the device into the person’s body. That automatically forfeits officer safety principles and clearly places the cop in harm’s way, so that would not have been a wise choice in the Danner incident.

A study of the NYPD Patrol Guide, Section 221.08 “Use of Conducted Electrical Weapons” stipulates: “A Conducted Electrical Weapon (CEW) can be an effective means of subduing aggressive suspects and emotionally disturbed persons (EDPs). A CEW should only be used against persons who are actively resisting, exhibiting active aggression, or to prevent individuals from physically injuring themselves or other person(s) actually present. It will often reduce the potential for injuries to members and suspects that may result from physical restraint and should be regarded as a possible alternative to such force and restraint, where practical.”

Although a New York newspaper report claimed the NYPD is prohibited from deploying Tasers to any person’s frontal area, the Patrol Guide contradicts that, described comprehensively as follows: “The recommended point of aim is lower center mass for frontal discharges (below the chest) and below the neck area for discharges at a suspect’s back. Avoid discharging at an individual’s head, neck, and chest, if possible. When practical, discharge the CEW at the subject’s back. The CEW should not be intentionally aimed at an individual’s groin.”

The Patrol Guide contains the following directive (reminder): “CEWs should only be used against persons who are actively resisting, exhibiting active aggression or to prevent individuals from physically injuring themselves or other person(s) actually present. Members of the service are reminded of the availability of Emergency Service Unit.” As a career cop, well-intended policies and protocols are sometimes overridden by super-spontaneous activities to which cops react as best possible. Indeed, not every call for service has a golden egg at the conclusion. All parties suffer, some more than others.

In any event, less lethal means were not used for whatever reason, and a grand jury found cause to furnish indictment. I’m curious to learn what the Bronx DA’s office furnished as probable cause for the grand jury to consider an indictment. I am equally intrigued by what Sgt. Barry’s defense entails.

Contentions

According to the NY Daily News, “Barry was indicted for murder in May 2017 after state Attorney General Eric Schneiderman, who has the authority to probe police shootings of unarmed people, declined to take the case.” Whether the NY Daily News decided to put the word “unarmed” in their statement, I do not know. We do know that scissors were initially brandished and a baseball bat was wielded, serving as a deadly weapon against anyone by anyone.

Barry’s legal team contends the police supervisor “was unable to retreat from the bedroom due to the proximity of the threat posed by Ms. Danner, the size of the bedroom, and the presence of the officers behind him. Within seconds, Ms. Danner lunged off the bed and at Sergeant Barry while swinging the bat directly at his head.” The extent of injury or potential of death by a person swinging a bat at another person will be part and parcel in court. Physics experts may testify. Forensic specialists will have their say.

In context, the “proximity” of deadly force and whether Sgt. Barry had no route to retreat are paramount ingredients denoting why he chose to shoot. Reports indicate five back-up officers were grouped behind Sgt. Barry, in effect leading one to believe he was unable to escape. This beckons analysis regarding split-second decisions cops are often forced to make and then widely judged for.

Do law enforcement officers make mistakes? Unequivocally. But New York’s second-degree murder statute requires “the intent to cause the death of another person [and] he or she causes the death of such person or a third person.” This exposes “intent” with the implied malice often seen in murder cases. Likely, Sgt. Barry’s defense will argue the absence of malice, the certain need to defend self, and the universal police component of center-mass targeting resulting in death.

What remains to be seen is if a jury pool finds his actions objectively reasonable given the circumstances, the NYPD Taser policy, testimonies of all other police officers on scene at the time, logistical and historical factors, and examining the statute language as it relates to police duty and not a gun-wielding maniac.

The Bronx district attorney prosecuting the case wages that Barry and the back-up officers failed to consider Ms. Danner’s mental health status and that he discounted police training “in dealing with emotionally disturbed persons, by rushing into Ms. Danner’s apartment.” That assertion points to the NYPD protocol of “isolate and contain” until Emergency Services Unit (ESU) officers arrive. Similar to a barricaded subject, ESU cops first attempt to deescalate and achieve peaceful resolution (surrender) before phasing-in other options to include going in full-bore.

Would the ESU been any more effective, had they been on scene? Given Ms. Danner’s lengthy mental history to include responses by NYPD cops, would the results be different if it were another cop with the same variables Sgt. Barry encountered?

Politically-motivated Prosecution?

The NYPD Sergeants’ Benevolent Association (SBA) and its 13,000-strong membership took up the fight on Sgt. Barry’s behalf, issuing the following statement condemning the prejudicial and premature indictment of Sgt. Barry.

The SBA union also generated a video colorizing what it calls “shameful leadership” and a prosecution motivated by political culture and an adversarial climate between the NYPD boss, city hall, and the Bronx DA’s office.

SBA president Ed Mullins stated, “The reality is that Commissioner O’Neill ‘lied’ because, in the split-second that Sgt. Barry had to make a momentous decision, he followed department guidelines as they are taught at the Police Academy, during follow-up training, and even reiterated on department promotional examinations.” That was in response to the police commissioner claiming his officers failed to follow written directives regarding handling EDPs.

The police union also contends that even if a Taser was used, the device’s failure rate is a factor which must be considered. President Mullins also confirmed that the NYPD’s ESU was requested for the Danner incident but it was already tied up “on another job.” Sgt. Barry knew this while standing before Ms. Danner, so the call was entirely in his hands and he dealt with the situation as it unfolded.

The Bronx prosecutor trying the case, Darcel Clark, is accused of “overcharging” Sgt. Barry. The SBA feels she is going with the gust of “political winds” and thus allowing her objectivity to be misguided by the pressure of public opinion and overzealously pushing prosecution because of it. She’s been in the waters of questionable practices. “Clark’s tenure as District Attorney has been marred by reports of cronyism and misconduct.” (Wikipedia et al.)

According to the SBA, DA Clark served on the bench before assuming a role at the Bronx District Attorney’s office. She once served as a New York State Supreme Court Justice and also a Criminal Court judge. Her career in the justice capacity depicts a few blemishes involving instances of nepotism and scandal. It is unorthodox for a legal practitioner to scale the rungs of the judicial ladder (pinnacled at the NY Supreme Court) only to step down to the local level. In my mind, that is cause for speculation. Her claim is that she wanted to serve the local community, the Bronx in particular.

DA Clark grew up in a Bronx tenement housing complex exactly like the one in which Ms. Danner resided. Is there some personal layer of reflection which DA Clark is entertaining?

If there were a notion of a bitter relationship between Clark and the police, that may be a tough debate rife with irony—her husband, Eaton “Ray” Davis, is a 32-year veteran with the NYPD, serving as a First-Grade detective. One would think she understands law enforcement dynamics better via her husband’s role. However, she holds office in a highly-charged political climate where the winds blow furiously at times and powerful elected officials steer the rudder.

Lately, we’ve witnessed the ostensible trend whereby prosecutors get an indictment and pursue prosecutions of police officers who were compelled to take a life in performance of duty, then punished for it. Marilyn Mosby in Baltimore ring a bell? She is another city prosecutor who was blasted for  “overcharging” police officers amidst political winds. How about that city’s mayor at the time, Stephanie Rawlings-Blake, who reportedly told Baltimore police to “stand down” after which the city was looted and burned? Recall that fiasco of political hand-holding?

Due Process

On July 17, Sgt. Barry’s attorney filed a motion for change of venue, feeling that his client will not receive a fair trial given the predisposed negative information the media has provided the public. The Barry defense team conducted its own survey on prospective jurors and found half of the pool believed Sgt. Barry is guilty, and that points to the mayor and police commissioner castigating Barry prematurely and publicly. Ruling on change of venue is pending.

SBA President Ed Mullins declared “By making such a blanket statement [“We failed”] so early on in an investigation, Commissioner O’Neill was, in essence, denying due process by supplanting public opinion and putting an expectation of results in the minds of the people who will ultimately investigate the case.” Every defendant deserves the right to a fair trial, as guaranteed by the Sixth Amendment.

Even the New York Civil Liberties Union chimed in: “It is hard to imagine why five patrol officers and a sergeant would need to use deadly force to disarm an elderly woman with a baseball bat.” Granted that is not what cops want either. Mental disturbance or not, anyone wielding a baseball is still using a deadly weapon, and police attempting to reason with this demographic does not always result in a success story.

Mayor de Blasio said after the shooting, “There was an opportunity to slow things down here and wait to get everything set up the right way.” That sounds like an utterance from someone who clearly has never stood in the shoes of a police officer: “…everything set up the right way” is a Hollywood façade and is hardly ever afforded in real life where real problems are encountered by real police.

No matter how this prosecution plays out, one thing is certain: the sentence of Sgt. Barry has already begun. Overall, the human psyche holds the gavel and metes out justice no political players could fathom. And police union leaders from around the nation join NYPD police supporters in the defense of Sgt. Hugh Barry against political prowess and the latest unnerving example of “overcharging” the police.

Stephen Owsinski

Stephen Owsinski is a Senior OpsLens Contributor and retired law enforcement officer whose career included assignments in the Uniformed Patrol Division and Field Training Officer (FTO) unit. He is currently a researcher and writer. Follow Stephen on Twitter @uniformblue.

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