Monday, August 27, 2012

The Empire State Bldg Police Shooting

There has been the to-be-expected commentary about last Fridays NYC shooting.  This is my analysis of the gunfight between a single armed man and two NYPD officers on the street outside the Empire State Building on Friday, August 24, 2012, as this event applies to licensed handgun carriers who are not also sworn officers of the court.  This analysis is based solely on my experience with firearms generally, my understanding of CQB theory and practice, the general legal constraints that apply to CHL holders along with the linked YouTube video of the CCTV image stream of the action.

The image opens with the shooter passing on the street side of a large potted plant being loosely followed by two police officers.  The shooter then turns to his left (toward the camera and building), shielding his right hand from view by his pursuers, during which time he appears to draw a handgun from a valise he's carrying in his left hand.  It is at this point (approx :09 seconds into the linked video) that others on the street begin to vacate the immediate area and the two officers initiate their direct confrontation of the man.

There is the to-be-expected initial lack of coordination between the two cops (and it should be noted that the man with the gun does not appear from this video to be actively firing his gun at them, only* brandishing - or more charatably proffering - it toward the two officers), who then separate themselves so as to gain two distinct directions of approach towards the man while requireing him to keep track of separate sources of threat.  It appears the two cops begin firing their weapons at the man virtually immediately following initiaton of their separation movement.

In my judgement, this appears to be an example of panic firing (that is, one officer beginning to fire and the other doing so because the first cop is shooting) as I can see no indication of the man doing anything different to what he had been doing up to that point such as to trigger the two officers going from arrest mode to kill in self-defense mode.

The officers had begun to place themselves in good position to initiate an arrest, then the more distant-from-the-man officer begins backing away as he circles to his own left (the single man's right) as both officers appear to open fire.  The video available doesn't show any change of behavior or increase in the threat offered to make shooting at that point necessary.  This could very well be a result of limited information via the video stream.

My purpose in this post is to comment on possible individual self-defense possibilities CHL holders might consider in a similar circumstance (armed shooter on a public street not actively firing at the moment).  You may find Joe Huffman's much more involved approach to a teachable moment of interest as well; I recommend it.

First point being that should an armed shooter approach in your direction on a public street, LEAVE.  Unlike the police, individual citizens have no duty to confront a threat of unlawful behavior displayed by another.  This is a critical difference from having a right to defend one's self from threat.  If you safely can, it is simple common sense (though Texas is one of the States in which it is not a statutory requirement) to avoid the danger.  In the video, it is clear that the man was attempting to flee the scene.  Unless his further action makes you unable to safely do so, allow him to and provide information of his direction of travel to his constituted pursuers.  Remember, from their perspective, you also becoming violently involved at best only complicates an already complex situation and at worst has you dead on the ground too.

If leaving the scene simply isn't an option, the behavior of the officers in the video is an excellent example of a good secondary option; take cover.  In the example, the potted plant container gave the closer of the two police officers cover while still allowing him to engage the threat.  For a non-police citizen with a CHL, this type of cover (or even only concealment) would be a better option to take than just standing around like a fool, but I think there isn't a justification to draw your weapon unless the man actually turns towards you with his own weapon drawn.  If he continues on his way your gun should either never have left the holster or be immediately returned thereto (being personally among those of the persuassion to carry in Cond 2, I would draw my gun and cycle a round into the chamber, but keep the gun at "low ready" so as to not offer visual threat; I would safe the gun and holster it as soon as the man showed his intent to continue walking away) (he says hopefully).

In the actual event, the more distant-from-the-shooter police officer moved to contain the man's movement by circling to the mans right.  In doing so, the officer also extended the distance between himself and the man.  This is a mistake that anyone having the necessity to engage an armed person must train not to do.  By circling and continuing to approach the man, the officer increases his potential opportunity to arrest the man without shooting while decreasing his potential to miss the man if doing so becomes necessary.  It is my understanding that a licensed and armed citizen making the same engagement approach (while possibly justifiable under other considerations) would void any claim to self defense as a result.  If there should be some necessity for a citizen (armed with a gun or not) to engage an armed opponent in similar fashion, advanceing while circling will better set up a dis-arm maneuver while increaseing the likelihood of the gunman remaining distracted for long enough for you to close the distance before his making the decision to fire.  It is my understanding that police departments commonly do not train their officers to employ such techniques and in at least two examples to my personal knowledge have policies in place that expressly forbid their officers from attempting such.

Self defense is a very limited legal concept and potential threat doesn't rise to the legislatively stipulated level required to qualify for the legal defense the claim proffers.  You can't shoot the driver of a passing car even if s/he has just run somebody over and is proceeding down the street in your general direction, unless the driver tries to run you down as well and quite possibly even then the local DA will take exception to your judgement call after the fact.  Similarly, an armed by-stander standing in a virtually identical location to that in which this shooting actually took place (and also being well away from the previous shooting scene and there being no immediate threat being proffered towards nearby citizens) would likely not rise to the justification necessary to successfully claim "self defense" after whipping out his gat and dropping the perp DRT.

I'm sympathetic to the thought that the general presence within the community of lawfully armed citizens tends to have the secondary effect of reducing the statistical likelihood of shooting events like this particular example taking place, but in this case it seems equally unlikely that such an armed citizen having been present would have significantly altered events.  The shooter reportedly shot his victim in the head initially at near-contact range, followed by four follow-up shots to the torso, and then immediately set out to leave the scene with his gun hidden in the satchel he was carrying.  There doesn't seem to have been any practical opportunity for an armed bystander to have intervened prior to the first killing and no real self defense justification to do so afterwards.  The shooter put his gun in his valise and walked (rather hastily) away, offering no violent threat to anyone else apparently.

I will be curious to learn the results of Joe Huffman's USPSA shooting stage just generally, but wonder how well anyone could react given the time and legal constraints that modify this given example?  While it isn't part of the current stage design he has published, I wonder how difficult it would be to include a test of the over-penetration effect a shooting of these caliber guns at this range of engagement has on the safety of the bystanders?  How many of the injured, who were indeed all hit by NYPD bullets, were as the result of thru-penetrations as opposed to out-right misses by the involved officers?  Torso-sized gelatine blocks aren't that difficult to make, but they still might be over-much for this first test of the shooting stage.  Maybe a refinement for a future runthrough.

* This post is not meant as a particular criticism of the NYPD or the two police officers who were actually involved; while all of those roundly deserve the critical commentary they have received about the state of their training, I do think that there is a tendancy amongst we licensed gun carriers to unrealisticly apply statistical averages to our own hypothetical actions in a similar circumstance.  Possibly worse than that, there is the initial impulse to justify such hypothetical actions with a mis-interpretation of the actual statutes that govern such actions.  If situations like this one in NYC can be said to have any general value, it is as a learning opportunity for we the survivors (however distant from the action).  It is important that we who do go armed not learn falsehoods that influence the judgements we have to make as a result of our choice to carry a gun lawfully.


Tam said...

I have no qualms with somebody shooting someone pointing a pistol at them.

There is no requirement for you, me, or the police to let the bad guy fire first.

If someone points a gun at someone with any sort of training, they should expect to get shot. All that "DROP THE GUN, BUDDY!" stuff is for Starsky & Hutch reruns.

Joe Huffman said...

Ditto what Tam said. With the possible substitution of a different cop show that would be more recognizable to the youngsters.

Will Brown said...

I have no qualms with somebody shooting someone pointing a pistol at them.

Neither do I, or I wouldn't have chosen to carry a gun myself.

The point I hope I made clearly enough is that the actual statutory language governing "self defense" very often requires that there be an actual (as opposed to potential - and the shooter having shot somebody else only proves potential) threat. Pointing his/her gun at you certainly rises to that level in my judgement.

From what I have read about this event though, there doesn't appear to have been much opportunity for anyone other than the guy who got killed first (and the two cops) to make that claim. Had any of us been lawfully armed and present in the events shown in the video, I think we would have a hard time proving self defense unless we were one of those three people.

I wouldn't want to try to claim in court that I was trying to defend the safety of the dead guy, and until the shooter turned and started waving his gun at the two cops he wasn't threatening anyone else to the standard required by the law. Potential threat isn't enough, and I don't see how you could successfully argue intent without some physical action to support such a belief.

IANAL, but that's my understanding of the advice I get from the ones I pay a retainer to.