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Filan: Must wait for answers in NYPD shooting

Unarmed groom was shot dead by police officers hours before his wedding

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Kerik: Let evidence speak
Nov. 27: A deadly shooting in New York City this weekend left Shawn Bell, 23, dead. Five police officers are now on desk duty. Fmr. NYC Police Commissioner Bernard Kerik discusses the incident with “Most” host Alison Stewart.
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Susan Filan
Senior legal analyst

A groom is dead before his wedding, his fiancé is heart broken, and their two children have lost their father.  Sean Bell was shot dead by New York City Police officers just hours before he was to wed his high school sweetheart and the mother of their two children. 

What happened?  What went wrong?  Were the police justified in their actions or are they guilty of misconduct?

Remember, the investigation is ongoing and we still don’t really know what happened that night.  According to Police Commissioner Ray Kelly, police have only spoken to three people so far about what happened that night.  One was a shooting victim and the other two are police officers.  All the rest of the interviews will be conducted by the D.A.’s office as the investigation now belongs to them.

But here is how the story goes so far according to the New York Post.  Bell and his friends had been at the Kalua Cabaret Strip Club as part of a “bachelor party” the night before his wedding.  The Kalua Club had been under investigation for suspected prostitution and drug offenses. 

New York Post sources said that two undercover officers were at the strip club Saturday night, which was the last night of their two-month long investigation.  Around 3:30 a.m., the undercover officers thought they saw the start of an altercation involving a man with a gun.  The fight was over a woman, a suspected prostitute.  They radioed their backup unit to tell them there was a man inside the club with a gun and that a fight was about to break out.  They thought it was getting “hot” and that something was about to happen.  At this point the suspected man with a gun walked out of the club.  Police then saw two groups of four people.  Bell was in one group including the man police thought was armed.  The second group of four included the woman at the center of the dispute.  The undercover said that he heard Bell’s friend tell one of his buddies to go and get the gun from the car. 

Police thought one man on the scene had a gun, and that there was yet another gun in Bell’s car.  Thinking a shooting was about to break out, they followed Bell and his two friends to their car.  The undercover ran up to Bell’s car, put his leg on the hood of it and yelled that he was a cop.  One of the dangers of undercover work is that when one identifies oneself as a police officer, one looks nothing like a police officer.  As the officer was shouting at the men in the car, he was trying to see their hands to see if anyone had a weapon.  Bell, perhaps not believing the officer was in fact NYPD, hit the gas and hit the undercover.  One of the passengers, who police thought may have been armed, jumped out of the back of the car.  Bell’s car then hit a police van that had pulled up to assist the undercover officers.  Bell allegedly backed up and struck the van a second time, trying to get away.  Again, it is unclear whether Bell knew or believed the man on the hood of his car was in fact law enforcement.  One of the undercovers allegedly began to scream “he’s got a gun” and he started firing.  The other officers heard the shots fired, and thought they were under attack, and started firing too.

One detective thought his gun jammed so he reloaded.  But by this time, he had already fired 15 rounds, and then fired 16 more.  One officer fired 31 bullets from his weapon, and 19 or 20 more were fired from four other officers’ weapons for a total of 50 or 51 bullets fired in all.  Two other officers on scene did not discharge their weapons.

The question becomes, why fire so many times?  What were officers thinking?  Did they panic or overreact?  Were they in fear for their safety?  Did they violate police policy and procedure?  Did they commit homicide?

If the officers thought they were justified in using deadly force because Bell was using his car as a weapon, they are mistaken.  The problem with this case is that the use of deadly force is never justified unless an officer believes deadly force is being used or is about to be used against him or her.  The police department’s policy on shooting at a moving motor vehicle is clear:  You cannot do it, even if the vehicle itself is being used as a weapon against you.  You cannot shoot at a moving car, even if it is trying to run you over, unless deadly force is being used against you and the car itself does not count as deadly force.  A car is clearly exempted from the definition of deadly force. 

In order for the officers’ use of force to be justified, they would have had to reasonably believe deadly force was about to be used against them.  In other words, that someone had a gun and was about to use it.  But no weapon was recovered from the scene, and it appears that no one was armed. 

The question then is, was the use of force justified?  My analysis is that it probably was, but the next question becomes, was it excessive?  And the answer to that question is probably yes.  While it is still too early to tell because we don’t have all the facts and we do not know what happened, it appears that police may have gone too far.  They may have been right to fire, but not 51 times. 

Interestingly, of the five officers involved in the shooting, none have ever discharged their weapons while on duty.  The deceased had been arrested three times, twice for drugs and once for a gun.  The second victim had nine arrests including one for armed robbery.  The third has a juvenile record, sealed, but according to the New York Post, it is for gun possession and robbery.  Their records alone clearly do not justify the excessive use of force.  But if those records were known to law enforcement, they may have reinforced the belief that they were armed and about to fire.  On the other hand, it may very well be that the victims had no idea the man with his leg on the hood of their car was an undercover police officer.  And they may have been in fear for their lives, and acted accordingly in self defense.

We just don’t know yet. 

While so much remains unclear, two things are certain:  First, a very thorough, fair, honest, dispassionate investigation by both the D.A. Rick Brown and N.Y.P.D. is warranted in order to learn the truth about what happened that night.  Law enforcement must respond accordingly and appropriately without prejudice or favor.  Second, it is a tragedy that a young bride will never wed her intended, and two young children have lost their father. 

Whether officers acted lawfully or not, I am certain they are saddened by this incident and by Sean Bell’s death.  No officer ever wants to take a life, even when the shooting is justified.  And if it turns out this shooting was not justified or was an excessive use of force or if it turns out that officers over reacted, were mistaken or panicked, the feeling must be even worse.  It is hard to imagine officers would engage in deliberate and intentional misconduct.  If they did, they must pay.  If they erred, their wrong must be righted.  And if they were right, I know they grieve. 

Law enforcement is a difficult and dangerous job.  The stress of putting one’s life on the line every day must take its toll.  While New Yorkers deserve to be served and protected by NYPD’s finest, New Yorkers also need to know that NYPD will not condone, enable or tolerate any unlawful shooting by law enforcement.  Police officers must always act lawfully and appropriately, must always help not hurt, must always serve and protect, and can never shoot to kill unlawfully or inappropriately.

Fifty-one shots sounds like an awful lot of shots fired.  It sounds bad.  But we just don’t know what happened.  It is now up to the D.A. to conduct a fair and honest investigation to get to the truth of what happened that night.  On this one, we just have to wait and see.  

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