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Building a case of self-defense in Brooklyn subway shooting

NYPD Continues to Investigate; Legal Comparisons to 1984 ‘Subway Vigilante’ Bernie Goetz

March 16, 2015 By Charisma L. Troiano, Esq. Brooklyn Daily Eagle
Borough Hall station near the 4 and 5 trains where the incident occurred Tuesday night. AP Photo/Mary Altaffer
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On the evening of Tuesday, March 10, during the after-work rush hour, a shot rang out from the mezzanine level of the Brooklyn Borough Hall subway station. The victim, Gilbert Drogheo, was taken to Brooklyn Hospital, where he was pronounced dead. The shooter, identified as retired correction officer William Groomes, was taken into custody but later released without charges after he agreed to meet NYPD investigators Wednesday for more questioning. Drogheo’s co-worker, Joscelyn Evering, was arrested and charged with assaulting and menacing Groomes shortly before the shooting.

The events leading up to the shooting are still being parsed by Brooklyn investigators, but witnesses and early police reports reflect a tension between Groomes, Drogheo and Evering that began before the fated 4 train pulled into the Borough Hall station.

The events are eerily reminiscent of an incident that occurred in New York City in 1984, when Bernhard Goetz fired five shots at four young men who were harassing him on a subway. 

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Goetz had entered the train at 14th Street in Manhattan, and Groomes entered at the Brooklyn-bound Bowling Green station. Goetz had a history of being targeted for criminal activity; he was mugged three years before the 1984 shooting.

Groomes was a retired correction officer with a work history of interacting with criminals. Goetz claimed to have been harassed by his victims, and witnesses have said Drogheo and Evering antagonized Groomes during the train ride. Both Goetz and Groomes carried weapons— the former did not have a license to carry; the latter did — and both fired a shot at their attacker. Goetz was acquitted of attempted murder on the grounds of self-defense, a claim that Groomes, too, will likely assert.

At press time, it was unclear whether Groomes had an attorney or whether or not he had asserted a justification defense. But the attorney who represented Goetz to an acquittal says Groomes may be able to take advantage of the bifurcated standard for self-defense, which was set as legal precedent by the Goetz case — though he warns that it is a difficult one to attain.

In New York, one can claim a complete defense to murder if he or she is faced with the use or the imminent use of force by another. Generally, the use of deadly force by an initial aggressor can be met with deadly force by the defendant.

“Under New York state law, justification, commonly called self-defense, is a total defense to murder,” Brooklyn criminal defense attorney Jay Schwitzman advised.

But the way in which self-defense claims are determined was changed after a court ruling in the Subway Vigilante case of 1984.

“In the Goetz case, the most major self-defense case of last century, and this one … we changed the law of self-defense. Not for the better of defendants, for the worse,” Goetz’s trial attorney Barry I. Slotnick told the Eagle.


Reasonableness and a Justified Killing

In a 1986 ruling, the New York State Court of Appeals created a two-prong test to be applied to justification defenses in homicide cases.  The case, People v. Goetz, concluded that a defendant’s self-defense claim must be viewed objectively and by subjective factors.

A lower trial court originally held that the “statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant’s state of mind when he used such force,” the higher court summarized.

In the high court’s estimation, however, self-defense claims are determined neither on wholly subjective nor wholly objective grounds. Rather, the court said, the issue is whether or not the defendant reasonably believed it necessary to defend himself from what the defendant reasonably believed to be the use or imminent use of force.  

“What happens in New York is that there is no standard of ‘stand-your-ground,’” Slotnick said, referring to the controversial law in other jurisdictions that removes the duty to retreat before using force in self-defense.

Stand-your-ground laws were brought into question following the shooting death of unarmed teen Trayvon Martin by George Zimmerman; a jury later acquitted Zimmerman of murder and manslaughter charges in 2013.  

“Instead, in New York, if a defendant … reasonably believes, both objectively and subjectively, that they are in trouble, then they have the right to defend themselves,” Slotnick said.

The first step in a self-defense analysis is a determination as to whether or not the defendant believed deadly force was necessary to thwart an aggressor. If a defendant can prove such beliefs, a consideration must be made as to whether or not those beliefs were reasonable. 

“Now, defendants have to prove that a reasonable person in the position of the shooter (or defendant) objectively and subjectively believed that they were in trouble,” advised Slotnick.

Brooklyn Law School Professor Stacy Caplow emphasized that the “Goetz ruling regarding what ‘reasonably believes’ means is still alive.” 

As outlined by New York’s high court in the Goetz case, “We cannot lightly…fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable.”  

The reasonableness of a defendant’s perception or beliefs of danger that necessitated the use of force — or, in Groomes’ case, deadly force — must be determined by the circumstances facing the defendant at the time. In other words, could the circumstances, as witnesses have described in Groomes’ case — two passengers angered at Groomes for walking in between them, Groomes and the men arguing before they pushed him down onto an empty train seat, the three men exiting the train at the Borough Hall stop where a second confrontation ensued prior to Groomes firing a shot — allow a reasonable person in Groomes’ situation to believe that deadly force was necessary and appropriate.

Some Brooklyn legal minds do not think so.


Can Groomes Claim Self-Defense?

In order to fully effectuate a self-defense claim, the force used must also be proportionate to the force threatened.  “There is an issue of necessity,” noted Caplow, who also serves as an assistant dean at Brooklyn Law School. “A defendant may only use as much force as necessary to protect himself, and in the case of [Groomes], he may have used disproportionate force.” 

Early reports of the shooting do not indicate whether the victim, Drogheo, or his associate, Evering, had any weapons on their person.

A local CBS television station broadcast a cellphone video showing a man it identified as Groomes cornering a smaller man near an exit in the subway station and pushing him. The men are seen struggling before a gunshot is heard and bystanders scatter.

“Based on the video, it appears that the retired correction officer [William] Groomes pursued [the victim] Mr. Drogheo after the situation had been completely defused,” advised Michael Farkas, president of the Kings County Criminal Bar Association.  “If so, the correction officer cannot claim that he was justified in using deadly physical force.” 

In order for Groomes to justify his actions, as Caplow explained, he must show “that the threat was ongoing.”

“It also looks from the video like the correction officer had his gun in his hand when he started a new fight with Mr. Drogheo,” Farkas advised. “That may make him responsible for recklessly causing Mr. Drogheo’s death.” As Caplow explained, “If you start a fight and then it escalates, you cannot then raise a justification defense.”

According to seasoned self-defense attorney Slotnick, these are factors that Groomes may be able to overcome. Goetz did not exit the train before shooting his teenage harassers — a fact that could have led to a finding of guilt, according to Slotnick. “The fact that Goetz did not exit the train could have been seen by some as pointing towards guilt. But it was a part of the puzzle.”

Now, the Brooklyn District Attorney and NYPD investigators are similarly trying to piece together a puzzle in the Groomes case.

Brooklyn District Attorney Ken Thompson can, within his discretion, decide that Groomes’ case presents prima facie evidence of self-defense and decline to bring charges. As of press time, the DA’s Office had not levied any charges against Groomes, and he is not being held in police custody. 

“A prosecutor has a discretion to charge or not in any case, and it is sometimes exercised when there’s sufficient evidence to say that the person acted in self-defense,” Caplow said. “It might be hard in Groomes’ case.”

Thompson’s office has not made clear its conclusion on Groomes’ case, but did say, “We are fully investigating the incident to see if a grand jury presentation is warranted.”

Slotnick is ready to take on what could be another milestone self-defense case, telling the Eagle “yes,” he would represent Groomes if approached by the ex-correction officers. “But that doesn’t mean that I have a feeling as to guilt or innocence.  Anybody who is arrested is entitled to a defense. The only answer I can deal with is to view this after the evidence has come in.” 

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