Criminal Attorneys in New York

Criminal prosecutions of New York City Police Officers for the shooting deaths of civilians is not entirely unheard of. One need only look to the not so distant past to recall the  prosecutions of police officers involved in shootings, stemming from the shooting deaths of Amadou Diallo, Sean Bell and most recently, Fermin Arzu. The first two civilians were shot by officers that were on duty, while Mr. Arzu was shot and killed in the Bronx by an off duty police officer, Raphael Lora. (Click on http://www.nytimes.com/2009/02/26/nyregion/26cop.html to read about the events of Mr. Arzu’s death).

Mr. Lora’s trial comes after the unsuccessful prosecutions of the officers accused of murdering Amadou Diallo in the Bronx and Sean Bell in Queens and raises a question many civilians have started asking: Are police officers who kill someone automatically justified? By the fact that the Bronx County and Queens County District Attorneys’ offices brought prosecutions for the Diallo and Bell deaths, you can surmise that the answer is no.

Many have come to believe though, by the acquittals in the aforementioned trials that police officers are automatically justified in the shooting deaths of civilians who are either armed or unarmed and will never be found guilty. What is startling is that of the three men killed, not one of them was armed (with a firearm or weapon). What needs to be taken into account is how the defense of justification operates. Justification does not excuse a criminal act, but recognizes the use of force to be privileged under certain circumstances, rendering such conduct entirely lawful. People v. McManus, 67 N.Y.2d 541(1986). The justification defense is codified in New York Penal Law article 35, and throughout the article is the premise that the defendant must have been acting with a reasonable belief that the victim was about to use force on him or a third person to justify the use of physical force. The same standard applies when discussing the use of deadly physical force. Note, however, in the case of the use of deadly physical force, if the defendant can safely retreat without the necessity of using such force the justification defense may not be available.

When one looks back now at the trials of the officers involved in the shooting death of Amadou Diallo, the question becomes how were the officers justified? If you accept the premise that the victim was believed to be holding a firearm (Mr. Diallo was unarmed) and that the officers felt he was not responding to their order to drop the weapon he did not have, any movement by Mr. Diallo would theoretically justify the officers opening fire. What even makes these prosecutions more difficult is that justification is a defense that once raised must be disproven by the prosecution beyond a reasonable doubt, which is in addition to them having to prove all of the elements of the charges beyond a reasonable doubt.

So if one had to guess the outcome of the trial where Mr. Lora is charged in the shooting death of Mr. Fermin Arzu, a safe bet is not guilty: I think that people are not ready to think that a police officer would shoot someone if they did not think that their own life or someone else’s was in jeopardy.

It is a decision that Judge Margaret Clancy will have to make.