By Shaila K. Dewan, The New York Times
A spokesman for District Attorney Charles J. Hynes of Brooklyn said yesterday that Hynes would seek an indictment of the police officer who fatally shot an unarmed teenager on the roof of a Brooklyn housing project over the weekend.
Hynes’s office believes there is enough evidence to support a charge of criminally negligent homicide, and perhaps the more serious one of second-degree manslaughter, although the precise charge has yet to be determined, said the spokesman, Jerry Schmetterer.
The indictment of an officer in such a case is uncommon, and a lawyer for the officer said yesterday that he might take the unusual step of having his client testify before a grand jury, which would determine whether the evidence presented by the prosecution supports an indictment.
Schmetterer said the case could go to a grand jury quickly, as early as this week.
The teenager, Timothy Stansbury Jr., 19, had no weapons, and witnesses have said that no words were exchanged before the officer, Richard S. Neri Jr., fired his gun. Officer Neri has made statements suggesting he was startled to see Stansbury as the officer and his partner opened the roof door on a routine patrol of the Louis Armstrong Houses in Bedford-Stuyvesant, according to a person who was briefed about his account.
Hynes met yesterday with two witnesses to the shooting, Shawn Rhames, 23, and Terrance Fisher, 19. They said that they and Stansbury had been about to open the door to the roof when it opened and the shot was fired, a law enforcement official said. Stansbury fell back onto one of the two, who collapsed onto the third, and all three fell down the flight of stairs. They said they did not see or speak with the officers, the official said.
The official said the accounts were consistent with those of Officer Neri’s partner and other witnesses in the building.
Mark Heller, the lawyer for Stansbury’s parents, said he had spoken to prosecutors after the meeting. “It’s my perception that there’s going to be an indictment, unequivocally,” he said, predicting that it would be the lesser charge of criminally negligent homicide.
Criminally negligent homicide is a Class E felony in which the guilty party need not be aware of the potential risk of his actions. It carries a maximum sentence of four years. The more serious charge being weighed, second-degree manslaughter, is a Class C felony in which the guilty party is aware of the risk but recklessly disregards it. It carries a maximum sentence of 15 years.
Officer Neri’s lawyer, Stuart London, would not comment on the details of the shooting. But he said there would be an advantage to having his client speak to the grand jury. “If the officer does not take advantage of the opportunity to tell his story, then he has to wait until trial, and there is a distinct possibility that there could be no indictment or the charges could be of a much lesser degree if he does testify,” London said.
Richard D. Emery, a civil rights lawyer, said an indictment, though seldom seen in such cases, was a real possibility. “They almost always come up with something that would appear to be the basis for a shooting,” he said. “In this case, they don’t seem to have any viable claim.”
City officials have reacted quickly to the shooting in an attempt to dispel unrest over a white officer’s shooting of a black youth. Police Commissioner Raymond W. Kelly, said almost immediately that there appeared to be no justification for the shooting, and assembled a panel to review the department’s tactics, which met for the first time yesterday.
One law enforcement official said: “Community pressure got everyone acting very quickly. For the police commissioner to race out there and say it was an unjustified shooting, for the D.A. to say within 24 hours that this is going to a grand jury, that’s political pressure. There’s no question about that. This is a political thing. This is really more of a City Hall story than a police story.”
The shooting of Amadou Diallo, killed in the vestibule of his apartment building in 1999 after officers mistook his wallet for a gun, yielded indictments but no convictions. No one was indicted in the case of Gidone Busch, an emotionally disturbed man killed in 1999 while holding a hammer in what the police said was a threatening fashion. When Officer Brian George fatally shot a 13-year-old boy in the Gowanus Houses in Brooklyn in 1994, Hynes declined to even submit the case to a grand jury. The boy had been holding a toy gun.
The most recent police shooting of an unarmed man, Ousmane Zongo, last May, has not yet been presented to a grand jury.
The prevailing view among investigators is that Officer Neri was startled and accidentally pulled the trigger, a law enforcement official said yesterday. Such arguments have swayed juries before. In the case of Patrick Dorismond, who was shot dead in March 2000 during a scuffle with an undercover detective who mistook him for a drug dealer, a grand jury declined to indict the detective after concluding that the shooting was not intentional. Federal prosecutors decided not to bring charges.
Al O’Leary, a spokesman for the Patrolmen’s Benevolent Association, suggested that there should be no indictment against the officer in this case. “If it turns out to be an accident,” he said, “why is that a crime?” The union has objected to Kelly’s public comments about the case, calling them a rush to judgment.
In one rare case in which the officer involved, a federal narcotics agent named Jude Tanella, was indicted on a first-degree manslaughter charge, the agent shot the victim, an unarmed drug dealer, in the back. Last year, a federal judge dismissed the indictment, but Hynes, the prosecutor in the case, is appealing that decision.
Another aspect of police shootings that carries influence with juries, one law enforcement official said, is whether the officer was following police procedure. So a significant part of the case at hand will be the fact that Officer Neri had his gun drawn and his finger, apparently, on the trigger as he and his partner opened the roof door to check the stairwell.
There are few specific guidelines for officers about when to draw their weapons, because there are so many variables in law enforcement situations. The patrol manual section on so-called vertical patrols, of the stairwells and roofs of apartment buildings, does not say anything about drawing a weapon, said Paul J. Browne, the chief spokesman for the Police Department.
On Saturday morning Officer Neri, who has nearly 12 years on the force and has never before fired his weapon, was conducting a routine patrol with his partner, not responding to a report of a crime. But rooftops and stairwells are common places for rape, drug dealing and other serious crimes, and officers are permitted to draw their weapons when they think they are in danger. While crime in Brooklyn housing projects was down 5 percent in 2003, Browne said, it was up by 31 percent at Louis Armstrong Houses, Browne said. There were two incidents in 2003, he said, in which officers shot pit bulls at the project.
Still, several police officials said that officers were trained to keep their finger away from the trigger, even if their gun is drawn.
One senior law enforcement official said, “It appears that the guns were out the whole time as they were checking doors because as they check the doors, they don’t know what they’re going to find.”
One senior investigator said Officer Neri’s partner has told investigators that at the critical moments of the shooting, his view of Officer Neri was blocked.