On February 4, 1999 at 12:40 a.m., four New York City police officers shot at twenty-two year old Amadou Diallo, forty-one times. Nineteen of the forty-one bullets ripped through Diallo's body, killing him instantly. Diallo, an African immigrant living in the Bronx, was unarmed and had no prior criminal record. The four officers, Edward McMellon, Sean Carroll, Kenneth Boss, and Richard Murphy, have been indicted for Reckless Endangerment and Murder in the Second Degree. Bronx County District Attorney, Robert Johnson, proclaimed, not only a depraved indifference to human life, but an intent to kill. Robert A. Olmeda, Joe Calderone, & Dave Goldiner, DA: 4 Cops Had Intent To Kill, New York Daily News, April 1, 1999.

This tragedy has ignited a renewed intolerance for the excessive use of force by police officers. Protests and demonstrations resulting in over one thousand arrests have plagued the city and political cross fire scrutinizing Mayor Rudy Guiliani and the NYPD have swept the nation. Michael Grunwald, Torture Trial, Shooting Put Guiliani, NYPD on Defensive, Washington Post, March 30, 1999 at A02. But what is excessive force? When do we place a cap on the actions that an officer may take in apprehending criminals? How do we legally measure the use of power by police officers who are sworn to protect society from crime and iniquity?

When an officer's actions go well beyond the lawful scope of his duties, the justice system will proceed in the criminal arena, charging the officer with murder, manslaughter, or assault. People v. Colecchia, 674 N.Y.S.2d 10 (1^st Dept. 1998). This avenue is rarely traveled because excessive force does not necessarily implicate a criminal offense. Police officers who are charged with such an offense are generally acquitted of criminal liability on a justification defense. Penal Law §35.05 (New York, McKinney's 1998). The use of deadly physical force by an officer may be justified if reasonably within the scope of his duties to protect himself or other persons. Penal Law §§35.15, 35.30. Thus, if the decedent brandished a deadly weapon such as a firearm or a knife, a jury could justify the officer's reciprocal use of deadly force. Tennessee v. Garner, 471 U.S. 1, 10 (1985).

The fact that a police officer escapes criminal responsibility does not end the matter legally. Police officers can be held accountable for their actions as violations of the individual civil liberties guaranteed by the United States Constitution. The United States Supreme Court has determined that the excessive use of force by a law enforcement officer invokes the protections of the Fourth Amendment, which guarantees the right to be secure in your person against unreasonable seizures. Graham v. Connor, 490 U.S. 386, 387 (1989). There is no doubt that the use of deadly force is a seizure which is unmatched by any other, in that it may end the life of the person against whom such force is used. Tennessee v. Garner, 471 U.S. at 7 & 9. Thus, it is in the civil arena where the majority of excessive force arguments are litigated.

Two interests need to be balanced when considering an officer's use of deadly force. The first is the suspect's fundamental interest in his own life and physical well being, which need not be elaborated upon. Tennessee v. Garner, 471 U.S. at 9. The second interest is effective law enforcement, usually coupled with a degree of self defense or defense of others. Id. This interest deserves some elaboration due to societal misconceptions regarding the issues which police officers must face at some point in their careers.

According to the United States Department of Justice, Bureau of Justice Statistics, there are approximately 740,000 sworn law enforcement officers in the United States. Over 35,000 of those officers belong to the New York City Police Department. In the ten year period of 1988 through 1997, over 600,000 officers were assaulted, a significant percentage being assaulted with a deadly weapon. In this same time period, 688 officers were directly killed in the line of duty by a perpetrator. Law Enforcement Officers Killed and Assaulted, Uniform Crime Reports, FBI Criminal Justice Information Services Division (1997).

"Tragically, attacks upon policemen seem to have become almost commonplace in modern urban society, and courts simply cannot remain unmindful of the alarming frequency with which they occur." People v. Finlayson, 431 N.Y.S.2d 839, 848 (2d Dept. 1980). The reasonableness of the officer's conduct will depend on the actualities of life under the circumstances in which a confrontation occurs, including an officer's reasonably based fears growing out of the increased use of violence and deadly force against them, in a perpetrator's attempt to avoid being caught. People v. Finlayson, 431 N.Y.S.2d at 848.

An officer may take appropriate self-protective measures when it can be reasonably inferred that the perpetrator is armed and dangerous or poses a threat to the officer or other persons, without it being considered an excessive use of force. Id. at 846. Officers are often called upon to make split second decisions which could mean the difference between life and death. Graham v. Connor, 490 U.S. at 397. It is for this reason that police officers are given a greater latitude in their decision to use force as a method to control a dangerous situation. While an ordinary citizen may run away from danger, a police officer must face it. They are given the responsibility of protecting the person and property of total strangers. This is a difficult job, which many people will admit that they could not do.

With this background in mind, the United States Supreme Court has declared that a particular use of force should only be judged from the perspective of a reasonable officer on the scene, rather than by 20/20 hindsight creating the ideal officer-citizen encounter. Graham v. Connor, 490 U.S. at 396. If, given the particular facts and circumstances, as seen and heard by the accused officer, a reasonably prudent officer would have reacted in the same manner, with the same or similar responsive use of force, then the officer should not be found guilty of abusing his power by the excessive use of force. Javid v. Scott, 913 F.Supp. 223, 228 (SDNY 1996).

The Diallo shooting poses an interesting inquiry as to whether excessive force was used. The instinctive reaction is that forty-one bullets shot at any individual is excessive, and it may well be. To aggravate the officers' case, Diallo was unarmed. A police officer may not shoot an unarmed suspect unless he had reason to believe at the time that the suspect posed a danger to himself or third persons and the officer reacted as any other officer in the same situation would have. Tennessee v. Garner, 471 U.S. at 11. In Tennessee v. Garner the police officer shot a burglar in the back, while the burglar was attempting to climb over a fence to get away. The officer did not have reason to believe that the burglar was armed and gave, as the only reason to the shooting, the explanation that he knew the burglar would outrun him and get away. The young thief was killed instantly; he was unarmed and had only stolen a purse. Id. There was no question that this use of deadly force was excessive in light of the circumstances.

The Diallo shooting is not so clear cut. While the totality of the circumstances surrounding the shooting will not fully be known until all evidence has been presented at trial, we can make a preliminary, albeit rough, evaluation based upon information reported by the press. Allegedly, the officers were in the vicinity at 12:40 a.m. to investigate the whereabouts of a serial rapist. They saw Diallo on the stoop of an apartment "acting suspicious" (this apartment later turned out to be Diallo's residence, but this was unknown to the officers at that time). As Diallo moved into the foyer of the building, two of the officers, Officer McMellon and Officer Carroll, identified themselves and approached Diallo.

Diallo then fumbled with something in his pocket, which later turned out to be a black wallet. Officer Carroll yelled "Gun!" and he and Officer McMellon began to shoot. As Officer McMellon moved up the steps of the building, he tripped and fell backward, causing the final two officers, Officer Boss and Officer Murphy, to rush forward, firing their weapons, in the belief that their partner had been shot in return fire. Diallo finally fell after forty-one shots were fired. Kevin Flynn and Michael Cooper, Officers Said To Tell Of Suspicions On Diallo, New York Times, March 31, 1999. An innocent man was killed and an officer's worst nightmare had come true.

There are two separate issues which need to be addressed here. The first is the furtive movement Diallo made toward his pocket, and the second is Officer McMellon's fall. When analyzing a situation involving multiple officers, it is necessary in determining who actually used excessive force to consider the perspective of each separate officer. Here, for sake of argument, we will couple the officers into two groups: Officers McMellon and Carroll in one and Officers Boss and Murphy in another.

Officers McMellon and Carroll were in close proximity to Diallo during the initial encounter. They were the ones to see Diallo's movements toward his waist (what Officers Boss and Murphy saw of this is unknown at this time). Carroll believed that Diallo was reaching for and, in fact, drawing a gun. When a suspect makes furtive movements around the waist which may indicate that he is reaching for a weapon, an officer may take precautionary measures, but must, where possible, give advance warning of the use of deadly force. Hemphill v. Schott, 141 F.3d 412, 417 (2d Cir. 1998).

In Hemphill v. Schott, the suspect was fleeing from the scene of an armed robbery. The officers believed he was armed based upon the store owner's statement that he was held up with a firearm. The suspect drove into a parking lot, exited his vehicle, and proceeded to crouch in a corner. The officers approached, at which time, they saw the suspect make a movement toward his waist. The officers shot without a warning. The United States Court of Appeals, Second Circuit, remanded this case for a jury determination as to whether there was reasonable time to warn of an officers use of force and whether the movement toward the waist would lead a reasonable officer to fear imminent danger to his life. Hemphill v. Schott, 141 F.3d at 417.

Diallo's movements may have lead Officer Carroll to reasonably believe that he was reaching for a weapon. However, the question remains as to whether Officer Carroll should have yelled "drop your weapon", "put your hands where I can see them", or some other suitable warning before he proceeded to shoot at Diallo. Being the officer to yell "Gun!", Officer Carroll deserves the brunt of the responsibility for this tragedy. It is his assessment that probably induced Officer McMellon to commence shooting as well (although we still do not know who shot first).

Officers Boss and Murphy were faced with a slightly different situation. They heard the gunfire and saw Officer McMellon fall backwards, in what could have been interpreted as a gunshot wound. An officer may use deadly force when he reasonably believes that such force is necessary to protect himself or others from death or serious physical harm. Javid v. Scott, 913 F.Supp. at 227. In Javid v. Scott, the officer was involved in a high speed chase involving a robbery suspect. While in the midst of this chase, the officer heard several times over the dispatch radio that the suspect was armed. When other police vehicles approached the suspect, he ran them off the road. At one time, the officer heard a "bang" that sounded like a gun shot. Finally, when he approached and saw the suspect make a move toward the inner cab of the truck, the officer shot the suspect, believing that he was reaching for a weapon. This was not adjudicated to be an excessive use of force because of the danger that was reasonably perceived by the officer in the brief encounter with the suspect. Id. at 228. Therefore, in light of what little we know about the facts, it may have been reasonable for Officers Boss and Murphy to believe that Officer McMellon was shot and that they needed to respond in an effort to save the lives of both McMellon and Carroll.

It is always unfortunate when police officers are forced make the decision to kill in the line of duty. Most officers perform this duty unwillingly, but reasonably. There is no reason to believe that the officers involved in the Diallo shooting did so with malice or intent, although the situation may lead a jury to believe that one or more of them may have been reckless or unreasonably responsive. It is important to remember that officers draw their weapons in tense, rapidly developing situations. Thus, when an officer kills, you must look deeper into the situation, beyond the number of shots fired, to the totality of the scene.

Last Updated May, 1999

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