The Chief
February 13, 2004

Lynch: Kelly Spoils Cop-Shoot Inquiry

Conclusion ‘Premature’

The head of the Patrolmen’s Benevolent Association charged last week that early statements by Police Commissioner Raymond W. Kelly have tainted the investigation of a police officer involved in a fatal shooting of an unarmed teenager.

PBA President Patrick J. Lynch stepped up his criticism of Mr. Kelly as a Brooklyn grand jury weighed bringing felony charges against Police Officer Richard S. Neri Jr., who shot and killed 19 year-old Timothy Stansbury Jr. on Jan. 24 during a routine rooftop patrol of the Louis Armstrong Houses in Brooklyn.

Kelly: Unjustified Shoot

Mr. Kelly drew the union’s ire by revealing his opinion of the shooting about 11 hours after it occurred.

“Based on the facts we have gathered, there appears to be no justification for this shooting,” the Commissioner said.

While Brooklyn District Attorney Charles J. Hynes will be responsible for any criminal prosecution of Mr. Neri, the Police Commissioner can decide whether the officer keeps his job. A spokesman for Mr. Lynch said Jan. 30 that the union leader believes Mr. Kelly has forfeited that role.

“Pat Lynch and the membership are furious over the premature conclusion announced by the Police Commissioner. Mr. Lynch believes it has tainted the investigation,” said the spokesman, Al O’Leary. “PBA attorneys are considering taking action so that the Police Commissioner is not the final arbiter of the case.”

Mayor Backs Kelly

Mayor Bloomberg visited Mr. Stansbury’s parents last week to apologize for the shooting, and spoke at the teenager’s Jan. 30 funeral at the Friendship Baptist Church in Bedford-Stuyvesant.

Earlier in the week, the Mayor defended Mr. Kelly’s remarks. “It looked to us pretty obvious that there was no justification that we could see at the time, and the public had a right to know,’ he said.

Deputy Chief Collins noted that Mr. Kelly had qualified his day-after statement with a remark that received little attention but which was reported in Newsday.

According to the newspaper, immediately after saying the shooting appeared “unjustified.” Mr. Kelly added, “but again, we have not had the opportunity to interview the officer who fired the shot. This is a tragic incident that compels us to take an in-dept look at our tactics and training both for new and veteran officers.”

At the time of the shooting, Mr. Neri and his partner were performing a “vertical patrol” of the housing complex and had just canvassed the rooftop. Mr. Neri, 35, took out his gun as his partner, Jason Hallik, 33, prepared to open an unlocked door to a stairwell, according to published reports.

At the time, Mr. Stansbury and two of his friends were climbing the stairwell to take a shortcut across the rooftop to get back to a party in the next building.

Startled Into Shooting?

Mr. Neri’s partner apparently pulled open the door at the same time that Mr. Stansbury was heading outside. Investigators believe Mr. Neri was surprised by the teen and fired a single shot without warning, according to reports.

The two friends, Shawn Rhames, 23, and Terrance Fisher, 19, reportedly told investigators that Mr. Stansbury wasn’t touching the door when it opened and a shot was fired, hitting the teenager in the right side of his chest. On Jan. 29, Mr. Hynes said a 14-year-old by had come forward to say that he heard one of the two men say shortly after the shooting that Mr. Stansbury had hit the door open. The teenager’s statement appeared to corroborate the story of the partner, Mr. Hallik, who said the door flew open and he stumbled back.

Mr. Hallik has told investigators from the District Attorney’s Office that his view was blocked in the crucial moment when Mr. Neri fired.

Mr. Neri, who screamed over his radio for an ambulance after the shooting, reportedly said afterward that he had no memory of firing his weapon.

No Prior Problems

Before last week, Mr. Neri, an 11-year veteran, had never fired his weapon on duty. He has a clean disciplinary record, according to reports.

Council Member Charles Barron, who has emerged as the chief advocate for the Stansbury family, revealed several days after the tragic incident that he and other community activists had sought to shelter witnesses by refusing to let them be interviewed by police investigators. Internal Affairs Bureau officers met with the two main witnesses for the first time on Jan. 26, more than 48 hours after the shooting.

NYPD officials, placed Mr. Neri on modified duty after the shooting and required him to hand over his gun and badge. Mr. Hallik is no longer on patrol but has been given an “administrative assignment” a desk job. As this newspaper went to press Feb. 2, neither man had been formally charged with any criminal offense or wrongdoing.

NYPD Hearing Will Wait

Any departmental disciplinary proceeding against Nr. Neri won’t begin until after criminal culpability is decided, whether by the DA or a jury. He will automatically lose his job if he’s convicted of a serious offense, but some observers believe the out come of a criminal case against the officer is far from certain.

“For Joe Hynes, this is a no-win situation. The law is extremely forgiving of police mistakes,” said Gene O’Donnell, a professor of law and police science at John Jay College of Criminal Justice in Manhattan. Mr. O’Donnell spent three years as an officer in the NYPD before working as an Assistant District Attorney in the city.

To justify a shooting, an officer must have “a perception of danger, even if it’s an inaccurate perception. A jury must look at the case through the eyes of the officer,” Mr. O’Donnell said. “The problem you’re confronted with is that most people know cops have a hard job.

Within a day of the shooting, Mr. Kelly announced that a panel of top commanders would review the department’s police policies and training on weapons handling. The panel members include James J. Fife, an acknowledged expert in police tactics who is the NYPD’s Deputy Commissioner for Training.

The Police Department’s current policies allow officers to draw their weapon when they believe they are in danger. The decision “has been left to the discretion of officers,” said Paul Browne, the department’s chief spokesman.

The NYPD gives its officers extensive training, using simulated street and building scenes, to teach them “when to shoot and when not to shoot,” added Mr. Browne.

Police union officials offered a host of reasons why Mr. Neri may have wanted to have his weapon in his hand while he was facing the rooftop door that night.

Dangerous Duty

“One of the most dangerous things housing cops face is doing the rooftop checks,” said Sergeant Gary DeRosa, a Housing Bureau supervisor who is the financial secretary of the Sergeant’s Benevolent Association.

In addition to the pit bulls frequently left unattended on the roofs and the armed residents who go up there for target practice, drug dealers often use stairwells to do business, said Mr. DeRosa.

Mr. DeRosa acknowledged that officers are taught several options for handling their weapons, including leaving it holstered but resting their hand on the grip, drawing it from the holster but leaving it at their side, and resting their finger on the trigger guard, instead of the trigger itself.

‘Safety the Objective’

SBA President Ed Mullins said officers should be given latitude in using their firearms, Mace and nightsticks when they believe they are in danger.

“They provide you with these pieces of equipment for a reason – to defend yourself if necessary,” Mr. Mullins said. “Your objective is to get home safe, get all of the people you’re with home safe, and to protect the public in the process.”

SBA president expressed skepticism that Mr. Kelly’s review panel would produce a change acceptable to the department’s rank and file. “Every time we review a policy, it’s usually in response to something that draws a political outcry,” he said. “The cop doing the work is never usually consulted.”

A spokesman for Mr. Hynes said Jan. 27 that the grand jury could be asked to approve charges ranging from criminally negligent homicide to second-degree manslaughter. The maximum statutory penalties range from four years’ imprisonment for the former offense to 15 years for the latter.

Lynch Seeks Fairness

Mr. Lynch met with Mr. Hynes Jan. 28, and said to reporters beforehand that he was pleading for responsible handling of the case.

“We are asking here for fairness, for the decision to be based on the facts, not emotion,” Mr. Lynch said. “Investigations take time. We’re already to step ahead.”

The PBA president suggested that Mr. Neri might waive his Fifth Amendment rights and testify before the grand jury to explain his actions. “I know this police officer wants to tell his story,” Mr. Lynch said. “Only he knows whether this was an accident, or did he perceive a danger?”

Mr. O’Donnell declined to comment on the possible impact of Mr. Kelly’s early statements on the shooting. “I don’t know if I’ve formed an opinion yet,” he said.

“I think you’ve got to be careful in using the word ‘unjustified’ because it’s a legal term,” the professor added. “In state law, the law of self-defense is called the law of justification.”

Disciplinary cases against police officers are first heard by an administrative judge in the department’s Trial Room. The judge’s decision and recommended penalty are forwarded to the Police Commissioner, who under the City Charter has the final say in the matter.

The Police Commissioner can accept or reject the judge’s recommendation or even seek a harsher penalty, but the City Charter limits the options to a reprimand, an unpaid suspension of up to 30 days, or dismissal.

PBA’s Options

The PBA’s attorneys could file a pre-emptive motion in state court to have Mr. Kelly removed from any decision-making role in the disciplinary case, or it could wait until the case us heard and challenge the result, said Mr. O’Leary, the union’s spokesman.

Any review of a shooting also must pass through the department’s Firearms Discharge Review Board, which is a panel of Chiefs headed by the Chief of Department, noted Deputy Chief Collins.

The board examines every NYPD shooting to determine whether any department regulations were violated. The panel makes a recommendation in every case, which can range from taking no action at all, to sending the officer for additional instruction, or in a more serious case, bringing disciplinary charges against the officer. The Police Commissioner can approve or modify the review board’s recommendations.