In the Line of Fire

TAMMY JOHNSON WILL NEVER FORGET the Memorial Day weekend of May 2005, when she stood on a Harlem sidewalk, bouncing a ball with her 17-month-old daughter.

When the ball rolled into the road, Johnson scooped up her daughter to pick it up. That’s when she “heard some pops” exploding on 126th Street. Johnson looked up as two men ran toward her. Then she saw the barrel of a gun.

“I could actually hear the bullets moving by my head,” Johnson said.

She dove to the asphalt. She clutched her daughter hard, shielding the toddler from the bullets.

“My daughter was screaming and I thought she was shot,” she said.

Nearby, 78-year-old Garnold King was walking down the same street on his way home from the grocery store. King, a retired policeman, was familiar with firearms. He saw the gun battle unfolding before him and ducked down. But hugging the ground wasn’t enough.

NYPD officers were chasing an armed suspect, who had shot at authorities first and now was taking return fire from the cops. The suspect died on the spot. King and Johnson both were hit by stray bullets.

In the first moments, as the bullets hit them and changed their lives forever, King and Johnson didn’t know who had shot them. It turned out it was not the suspect. The bullets were fired by the New York Police Department.

JOHNSON AND KING JOINED THE ROSTER of New Yorkers who had nothing to do with a crime but were harmed by police gunfire. That list keeps getting longer. On a September night in Times Square, police fired three shots at a man who was lurching toward moving cars. They missed the man, who was later subdued, but wounded two women bystanders.

Such incidents happen infrequently but regularly. A CUNY News Service review, based on examining more than two decades of police reports, lawsuits, news accounts and interviews, shows that every year for the past 10 years at least one innocent bystander has been shot by the NYPD.

Getting wounded is bad enough. But our investigation also shows that innocent bystanders who try to get city compensation for their injuries often face years of delay and mental anguish to go along with their physical pain.

Leslie Gay, whose sister Denise was killed in the crossfire of a Crown Heights shooting, complained that nobody in city government seems to care for such victims. “It’s going to happen again and again until someone important gets shot,” he said.

From 2002 to 2012, close to 30 people were hit by NYPD gunfire. These people were not pursued by police. They were not suspected of wrongdoing. They simply were in the wrong place at the wrong time.

Sometimes the incidents are big enough to make the headlines. The most notable case happened in August 2012, when two cops chased an armed suspect in front of the Empire State Building during the morning rush hour. In the ensuing melee, the cops killed the suspect and unintentionally wounded nine innocent bystanders – most of them shot below the waist, in the leg, knee or foot.

In the decade between 2002 and 2012, close to 30 people were hit by NYPD gunfire. These people were not being pursued by police. They were not suspected of wrongdoing. They simply were in the wrong place at the wrong time.

Most of these accidents happened in northern Manhattan, from Harlem to Inwood. Most were during the daytime. Almost all shootings were in a public area: the front stoop of a home in Crown Heights, a Brooklyn subway platform, a neighborhood street. Some bystanders suffered permanent injuries. One bystander, a paraplegic teenager, was struck by a stray police bullet while sitting in his wheelchair.

Over the last two-plus decades, from 1990 to 2012, an examination of yearly police reports shows that nearly 60 innocent bystanders were shot. Some were killed, while others suffered permanent injuries. Bystanders have been shot in the head, blinded by bullets, and wounded in the chest, according to reports.

Our investigative team contacted the NYPD’s press office for a statement regarding these incidents and so far has not received a response.

The police department responded publicly to these shootings with a series of internal changes. For one thing, in 1998 the department switched from bullets with full metal jackets – which penetrate deeper and ricochet more easily – to hollow-point bullets, which break apart on impact. Hollow-point projectiles can cause more damage to body tissue, but are less likely to ricochet and hit innocent bystanders. Our study shows that while innocent bystanders still are being injured, the rate of injuries has gone down since the NYPD switched to hollow-point bullets.

Many injured bystanders are left wondering how to pay their next medical bill. They can apply to receive compensation for their injuries, but the payouts are not guaranteed.

The NYPD also has worked to improve training for its new officers. The department trains more than 4,000 new cadets every year. In addition to tests of their physical agility, the rookies learn to handle emergency situations such as victim rescues, suspect restraints and ballistic routines. Prospective police officers must pass a written exam. The exam covers memory cognition – testing candidates on how well they remember phone numbers, addresses and appearances. It also covers the ability to avoid endangering innocent citizens during a crisis – by maintaining strict firearms control, for example, and by establishing police lines when a suspect poses a risk to public safety.

Ballistic instructors correct mistakes made by aspiring police officers on the shooting range and provide written evaluations, according to reports.

Nonetheless, innocent-bystander shootings persist. Some victims said they believe police officers still are not trained adequately. Others blamed happenstance: the innocent victims were in the wrong place at the wrong time when the use of force was necessary.

NO MATTER WHO OR WHAT IS TO BLAME, many injured bystanders are left wondering how to pay their next medical bill. They can apply to receive compensation for their injuries, but the payouts are not guaranteed.

CUNY’s NYCity News Service obtained dozens city records under open records laws to examine claims and compensation sought by innocent bystanders shot by the NYPD. According to documents from the city comptroller’s office, innocent bystanders typically face years of waiting before receiving money for their medical costs. In many cases, victims were awarded far less in compensation than they originally sought. A few victims have not received any payment at all.

The city makes no special effort to compensate victims; it’s up to the innocent victim to take the initiative. After being shot by police, innocent bystanders must file a claim with the city comptroller’s office within 90 days of the incident in order to qualify for compensation. When a bystander fills out the form, he or she must explain the shooting incident and request an amount of money.

If the request does not meet the city’s budget, which could be any unspecified amount, the office can deny a bystander a payout or recommend a lower offer. In many cases, a lawsuit ensues if money offered by the city does not meet the victim’s needs.

Shooting victims file lawsuits seeking payouts to cover wages lost, mortgage payments forgone or daily living expenses while out of work recovering from their injuries. If a payment is granted, it’s typically a fraction of what was sought. Because of the nature of litigation, this might be expected. On average the city does not reach agreements with shooting victims until two or three years after they have been wounded. Some cases have taken 10 years to be resolved.

Even victims of a high-profile case – the shooting at the Empire State Building – face the prospect of a lengthy wait. Records show that eight of the nine victims filed claims from August to November 2012 requesting the City of New York to compensate for their injuries. None has yet been resolved.

To best understand how the process might play out for them, consider what happened when police bullets struck Johnson and King back in 2005.

King sued for $6 million and settled the case in 2009 for $250,000.

Johnson, so far, has received no money from the City of New York, according to her attorney, Barry Gutterman, and three court rulings make a payout seem unlikely.

Simple tasks such as getting in and out of bed or carrying her daughter are more challenging for Johnson she said, because her arm can no longer fully extend as a result of the bullet wound.

“My arm gives me a lot of limitations, daily things that the average person doesn’t think about,” she said.

After multiple surgeries, both costly and painful, Johnson’s scars from the shooting are still visible.

“I have a scab on my elbow that never goes away,” she said. Metal plates were inserted in Johnson’s upper arm and pins in her forearm, she said.

Since the shooting, Johnson moved to Georgia to raise her daughter. “I didn’t want to be there anymore. I got shot in May, and I was gone that February,” she said.

Johnson’s case was tried in three New York courts, according to her attorney: the Supreme Court of New York, the appellate division and the New York Court of Appeals.

In all court appearances, it was ruled that the NYPD had taken all precautions to secure the crime scene. Police saw no bystanders in their line of sight, and fired their guns only after being shot at by the suspect.

Gutterman said despite evidence of her injuries, Johnson never received a payout offer from the city comptroller’s office. “A settlement was never formally put on the table,” he said.

FIGHTING CRIME IN A HUGE CITY is not an easy task. Every week New York averages more than nine murders, 27 reported rapes, and 15,000 other major crimes like robberies, burglaries, assaults and thefts.

Yet the fate of innocent bystanders involved in these crimes is little examined on a local or national level.

According to a 2008 study conducted by the RAND Corporation, a non-profit research organization, police firearm-discharge statistics are not collected nationally, making it challenging to compare cities to one another in terms of their shooting data.

In criminal justice circles, where countless researchers spend their careers examining patterns in policing, few study to the problem of shooting innocent bystanders. Partly that is because innocent bystander shootings are rare events. There are more than 500 homicides and fewer than three bystander shootings in New York per year.

Dennis Kenney, a professor at CUNY’s John Jay Criminal Justice College and an expert in the use of force, said police officers in New York have a problem perhaps worse than in other cities: When cops start shooting, there are “more obstructions in the way” – buildings, cars, scaffolding, telephone booths. When police officers are aiming at a target, these items can very easily block their line of sight.

Kenney said New York City dispatches more police to a crime scene than any other department in the nation because it employs more than others. New York has about 35,000 police officers on duty, for example, compared to 13,000 in Chicago.

In a 2007, Police Commissioner Ray Kelly commissioned the RAND Corporation to examine the internal practices of the police force and help the department improve its efforts to curb gun discharges.

The NYPD is required to keep records of gun discharges in annual Firearm and Discharge reports. The RAND study compared these reports and objectively look at the NYPD’s training standards and recommended how to cut back the number of gun discharges. The study also compared gun usage within the NYPD to that of other police departments across the country.

Bernie Rostker, the study’s lead author, said the research determined that “the NYPD are exceedingly conservative in the discharge of their firearms,” which in his eyes was a remarkable discovery since the NYPD has one of the largest forces in the country.

The report also highlighted how “the use of force is rare” within the NYPD, based on supporting research conducted by the U.S. Department of Justice.

The RAND study did not focus on innocent bystanders, and their cases are hard to find in city records. The CUNY News Service conducted interviews and scoured lawsuits, injury claims and news accounts from the past 10 years, and reconciled those reports with police discharge filings to calculate the number of bystanders shot and locate victims to interview.

Denise’s brother still does the math. By his count, 73 shots were fired during the firefight that day. Two police bullets hit the suspect and one bullet killed Denise.

Leslie Gay, a Brooklyn native, remembers growing up in Crown Heights in his family’s apartment on Park Place, a place filled with fond memories of family gatherings and better times. All that changed in 2011.

One warm summer day, during the West Indian Parade, his sister Denise, a fun-loving woman who enjoyed cooking, was sitting on the front stoop of the apartment building with her niece.

“My sister never would have been out,” her brother recalled. “She never liked that parade. She was looking out for her niece.”

As the parade carried on, gunshots rang out. Just as in the case of Tammy Johnson, police were chasing an armed suspect. Just like Johnson, Gay’s thoughts ran to protecting a child, in this case her niece. She pushed the young girl quickly through her apartment doors and tried follow.

Denise’s brother still does the math. By his count, 73 shots were fired during the firefight that day. Two police bullets hit the suspect and one bullet killed Denise.

Although ballistic tests have been unable to determine if the bullet that killed Denise Gay came from a police officer’s gun, Gay said he believes there is a strong possibility that it could have.

“They’re [police] not claiming any blame,” said Gay. “They said the bullet was deformed, even though the bullet resembles one that came from a Glock,” he said.

The NYPD did not respond to our requests for a statement on this case.

Gay said the city assisted in funeral arrangements for Denise, but said police made no efforts to follow up with his family after incident. “You can’t just go into a neighborhood and shoot,” he said. “[They can’t] just come in with guns blazing, like the wild, wild, West.”

During a separate shooting incident in 2000, Wilson Ramos was in the Bronx when a bus was hijacked by a suspect who then took a woman hostage, according to news reports from that time. In the ensuing gun battle with police, Ramos was shot in the head by a stray police bullet and suffered permanent injuries, according to documents.

Nine years later, Ramos was awarded a $6 million payout from the city, according to city comptroller records.

The New York City comptroller’s office said it does not have a special department that investigates bystander cases. Some bystanders have faced years of waiting for payouts due to administrative delays.

The office does try to resolve disputes out of court. Every year it settles 2,000 cases involving people hurt on city property or by city employees.

It took 11 years to resolve the case of Thomas Cusanelli, according to city documents. He was shot outside a Harlem bus depot on Aug. 26, 1994. When a police officer tried to arrest a trespasser, a fight ensued and somehow Cusanelli was shot.

He sued the city for $7 million in compensation for loss of income, loss of earning capability, pain and related suffering according to court records. Eleven years later, in 2005, he settled for almost $2 million.

While bystanders such as Cusanelli have waited for more than a decade for compensation, others have yet to receive payments to help make up for the difficulties they face with lost mobility.

Larry Garlick, shot in the leg in 2010 during a brawl in Harlem, has yet to be paid according to city documents. Garlick filed a claim with the city comptroller in August 2010, which remains open according to current city records.

That pales in comparison to the case of Eduardo Vidals. He was a paraplegic teenager, confined to a wheelchair, when he was shot in the leg by a police officer trying to catch a thief outside a Park Slope Payless Store, according to city documents. That happened in 2004. City records indicate he has yet to receive compensation.

A year after the Empire State Building shooting, injured bystanders are still waiting to receive compensation, according to city records. When asked how long it will take for these victims to receive payouts, a spokesperson from the city comptroller’s office said, “We do not comment on open cases.”

The NYPD has strict guidelines for the use of deadly force, outlined in its training manual, and promotes the “tactical knowledge to protect life” on its website. These rules, along with the safer bullets, have helped reduce the danger to innocent bystanders in the city.

But that is small comfort to the victims trying to rebuild their lives – or for the survivors mourning the loss of an innocent victim. Police training did not save his sister, Leslie Gay said. Denise “didn’t have to go,” he said. “Not that way.” ■

Additional reporting by Martin Burch, Christine Streich and Ajai Raj