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Challenges continue for both defense and prosecution in Gurley case

Questions About NYPD Policy May Factor into Legal Arguments

February 17, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
New York City rookie police officer Peter Liang, left, arrives at the courthouse for his arraignment on Feb. 11. AP Photo/Seth Wenig

The Brooklyn case against an NYPD officer is set to move forward, and both the prosecution and defense are preparing legal arguments.

The NYPD’s position is that the November 2014 shooting death of unarmed man Akai Gurley by rookie Officer Peter Liang was an accident. Liang’s defense attorneys say the officer was merely following policy and is not responsible, while Brooklyn prosecutors assert that Liang was reckless and negligent in the way he handled his weapon during a vertical patrol of a Brooklyn housing project. 

Last week, Liang pleaded not guilty to a six-count indictment charging him with manslaughter, criminal assault, reckless endangerment and criminally negligent homicide. In addition, Liang was charged with two counts of official misconduct for not calling in the shot to authorities. 

These are the facts as laid out by Brooklyn District Attorney Ken Thompson: On the night of Nov. 20, Liang and his partner, Shaun Landau, were conducting a vertical patrol of the Louis Pink Houses in East New York. Liang had his gun drawn; Officer Landau did not.  

While in a darkened stairwell, prosecutors argue, Liang had a flashlight in his right hand and his gun in the left, and, with his shoulder, leaned on a stairwell door.

“He turned to his left and fired down a flight of steps where Akai Gurley and his friend [Melissa Butler] were standing,” Thompson stated at a press conference immediately following Liang’s arraignment.

Thompson said the evidence will show that Liang’s bullet “ricocheted right off the wall, where [Mr. Gurley] was standing, into his chest into his heart. That’s what we are going to present at trial.” 

At arraignment, Liang’s attorney, Stephen C. Worth, conceded the fact that Liang shot Gurley, but argued that Liang was following NYPD policy and is not criminally responsible for the shooting. 

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For the top two counts — manslaughter and criminally negligent homicide — the prosecution will have to show that Liang displayed a “conscious disregard of an extreme risk,” Brooklyn Law School Professor Cynthia Godsoe told the Eagle. The answer to the overarching question of whether or not Liang was reckless or consciously disregarded an extreme risk will center on Liang’s trigger finger and NYPD policy. 

Liang’s attorney hinted to an affirmative defense that Liang’s adherence to a well-known policy of officers having guns drawn during a vertical patrol absolves him of criminal responsibility.

“It’s been well known, police officers since time immemorial have been conducting verticals and have had their weapons drawn when they felt it was appropriate,” Worth said outside of Brooklyn’s Criminal Court on Wednesday.

 

Officer Discretion to Draw Gun Called into Question

Police Commissioner Bill Bratton has said the decision to draw a gun is in an officer’s discretion “based on what they are encountering or believe they may encounter.” Bratton further clarified that “there is not a specific prohibition against taking a firearm out. But again, as in all cases, an officer would have to justify the circumstances that required him to or resulted in unholstering his firearm.” 

If NYPD policy is raised as a defense by Liang, a judge or jury hearing the case would have to decide whether the circumstances in the Gurley shooting justified Liang’s drawn weapon.

“I think that it would have to be viewed from the perspective of a reasonable officer,” Professor Godsoe explained to the Eagle. “Would a reasonable officer, in Liang’s position, have his gun drawn while conducting the vertical patrol on the night of Nov. 20?” 

The facts, however, do not serve as a slam-dunk for either side.

“Some fact that will play in favor of Liang is that he’s a relatively new officer,” Godsoe noted. Also benefiting Liang’s suspected defense strategy is that the stairwell he was patrolling was darkened from a broken lightbulb. 

Those stairways are scary places,” Greg Donaldson, an associate professor at John Jay College of Criminal Justice, told The Huffington Post in December. “You’re turning from one landing to the next,” he said. “There aren’t long sightlines.”

 Liang’s partner, however, did not have his weapon drawn.

“Having his gun drawn is an issue for some,” said Godsoe. Councilmember Ritchie Torres (D-Bronx), chair of the council’s Committee on Public Housing, has said the dark stairwell was not enough to justify a drawn gun

“A dimly lit stairwell is no excuse for a drawn gun,” he said. “What happens if the officer suddenly startles?”

Thompson however, dismissed allegations that the Liang case is about NYPD policy.
“It is our position that Officer Liang is the one that pulled the shot that pulled the trigger that endued up injuring Mr. Gurley and taking his life. We presented the evidence based on what happened in that staircase,” he stated. “These charges are brought against that one police officer [and] not against the entire NYPD.”

 

‘His Finger Was on the Trigger’

Brooklyn prosecutors appear poised to move beyond whether or not Liang should have had his gun drawn and are focused on why Liang’s finger was on the gun’s trigger. In other words, even if NYPD policy permits discretion as to when an officer can draw his or her weapon, that same department policy prohibits a finger on the trigger unless the officer is firing his weapon. 

At Wednesday’s press conference, Thompson agreed that NYPD policy allows for discretion, but added that Liang strayed from policy with his trigger finger.

“NYPD policy that officers have the discretionary for an officer to pull out his gun while on a vertical patrol based on the circumstance, but what the evidence showed in this case is that [Liang] put his finger on the trigger of his gun and fired his gun into a darkened stairway when there was no threat,” Thompson said. 

“No one can tell a cop not to draw his weapon, but the one thing they do tell you is not to put your finger on the trigger unless you are firing. Otherwise, if you’re startled, there can be a grasping response,” law enforcement sources told the New York Post. “Your muscles tighten, and if your finger is on the trigger, your finger is going to pull the trigger,” the Post source added. 

Thompson would not respond to questions of scientific evidence needed to prove that Liang’s finger applied enough pressure to the trigger for it to go off, and BLS Professor Godsoe says such evidence is not necessary.

“The scientific question shouldn’t matter,” she said. “You have to exert some pressure for a gun to go off, and we don’t want to say that when an officer has his finger on the trigger of a gun, he has no responsibility when it goes off.” 

“Though,” she added, “it could be a good defense if Liang can show that the gun goes off easily. It could be evidence that he was not conscious of the risk.”

The question of why prosecutors are focused on Liang’s trigger finger and not solely on why he had his gun drawn, is moreso an argument about which is easier to prove, some criminal law experts say.

“It is harder to prove that Officer Liang was reckless in having his gun drawn,” Godsoe explained. “The finger on the trigger is an easier sell.” 

According to Thompson, Liang “intentionally squeezed the trigger.”  “We don’t believe that [Liang] intended to kill Akai Gurley, but Akai Gurley was killed,” he said.

 

Officer Misconduct for Failure to Call 911

In addition to the charges stemming from the shooting, Liang was also charged with two counts of official misconduct for failing to call in the shooting to authorities and for failing to call for medical assistance. 

According to Thompson, Liang and Landau argued for “at least four minutes” after the shooting about whether or not to call in the shot. “I’m going to be fired,” said Officer Liang, according to prosecutors. 

But Thompson declined to comment on why Liang’s partner, Landau, was not also charged with failing to call in the shooting. 

“This investigation centered on who shot and killed Akai Gurley and why,” Thompson said, answering questions on why Landau was not similarly charged with official misconduct.  “I’m not going to make any statements about that officer — [Officer Landau].” 

“It’s interesting,” Professor Godsoe noted. “It could be that Liang’s partner is cooperating with the investigation and that DA Thompson does not want to alienate the police.” 

Thompson’s comments after Liang’s arraignment echo Godsoe’s observation. “We had an obligation to be fair to Akai Gurley… we also had an obligation to be fair to the officers in this case because police officers put their lives on the line every day to keep us all safe…[and] we have an obligation to the people of Brooklyn to get to the truth of what happened.”  

Liang’s attorney did not reply to the Eagle in time for print. 

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