The Journal News: Fatal Police Shooting Raises Many Questions

The tragic death of Danroy Henry, a Pace University student who was shot to death Oct. 17 in a fusillade of police bullets in a mall parking lot in Thornwood, will likely be added to the ignominious list of other recent police shooting deaths – Amadou Diallo, Sean Bell and Christopher Ridley. (Left: Pace Law Professor Bennett L. Gershman).

The following op-ed by Pace Law professor Bennett Gershman appeared in The Journal News in print and online on October 24, 2010.

The tragic death of Danroy Henry, a Pace University student who was shot to death Oct. 17 in a fusillade of police bullets in a mall parking lot in Thornwood, will likely be added to the ignominious list of other recent police shooting deaths – Amadou Diallo, Sean Bell and Christopher Ridley. Several law enforcement agencies are investigating, and a grand jury will hear evidence. From early news accounts, it appears that two different narratives are emerging – a police narrative describing the killing as justified, and a narrative from witnesses that the killing was unjustified and a homicide. In trying to determine what actually happened and whether the police officers should be held accountable criminally, several questions need to be asked.

When to shoot

Why did the police believe that the use of deadly force was necessary? New York law allows the police to use deadly force against another person in two situations: first, when the officer reasonably believes that the person is committing one of several highly dangerous felonies such as murder, kidnapping, arson and rape; and second, when the officer reasonably believes that he or another person faces imminent death. Did the two officers who fired shots through the windshield into the car driven by Mr. Henry and containing two other passengers reasonably believe that the occupants were engaged in the commission of a dangerous felony? Or, did the police reasonably fear that Mr. Henry or his passengers posed an imminent and life-threatening risk to the police?

Did the police fear that Mr. Henry or his companions were armed with a gun, which may have contributed to the belief that the use of deadly force was necessary? For example, in the Amadou Diallo, Sean Bell and Christopher Ridley killings, the police claimed that they believed that the person they shot was armed with a gun, and this was a significant factor in their justification for the shooting. Indeed, in the Bell shooting, which bore some striking parallels to the shooting of Mr. Henry, when the police approached Bell and identified themselves, Bell accelerated his car and hit one of the officers, and then hit an unmarked police van. However, it was not until one of the officers thought he saw one of the passengers reach for a gun and yelled “gun” that the police then opened fire on the car. Related (2 of 2)Was race a factor?

How fast was the car going? Did the police reasonably believe that the car was a lethal weapon that under the circumstances presented an imminent danger to their lives, and that the police had to shoot into the car and kill the driver to prevent them from being killed? It would be important in this connection to ascertain what type of police training exists with respect to the circumstances that authorize police to shoot into a car containing several occupants. Given the fact that police-motorist encounters happen many thousands of times a day, it would be important to know when the police are allowed to use deadly force, especially if the motorist disobeys a police command to stop. Could the police simply disable the car? Or for that matter, simply record the license number, and if the driver flees the scene, arrest him later? Indeed, the Supreme Court has told us in the case of Tennessee v. Garner that it is unlawful for the police to kill an unarmed felon who is fleeing from a burglary. Did the presence of a very large and apparently unruly crowd outside the bar contribute to the police belief that deadly force was needed to quell what may have seemed like a potentially incendiary and violent situation? Were the police being attacked by the crowd? Did Mr. Henry disobey a police order, and did that contribute to the shooting? Was Mr. Henry drunk? And, finally, regrettably, the question needs to be asked, as it has been asked in every one of the forgoing police shootings – was race a factor? It is hoped that an impartial and objective investigation into the facts of this terrible event will bring answers to these questions. |The writer, a former state prosecutor, is one of the original faculty members at Pace Law School. He is a regular contributor on justice issues in the Lower Hudson Valley.

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