Blue on Blue

by Charles Campisi

  And they’ve all been cops long enough to understand what that means.

  * * *

  Controversial shootings with ethnic or racial overtones have been part of the NYPD ever since cops started carrying guns. In 1857, for example, when German immigrants rioted after the police started enforcing the “Sabbath laws” against German beer halls—apparently the Germans weren’t handing over enough “sugar”—cops allegedly shot an innocent German man who was out for a walk with his wife, further enraging the German community. Later that year, a cop shot an Irish longshoreman who he said had attacked him, causing outrage in the growing Irish community; a coroner’s jury indicted the cop and had him thrown in jail at the Tombs, but he was later released.

  In more recent times, in 1973 two plainclothes cops in South Jamaica, Queens, stopped a man and his grandson, ten-year-old Clifford Glover, for questioning about a robbery, and when the man and the boy ran, one of the cops shot the boy twice, later saying he thought the boy had a gun. The cop was charged with murder but acquitted, sparking several days of rioting. In 1976 a white cop named Robert Torsney confronted a fifteen-year-old black kid named Randolph Evans at a Brooklyn housing project and apparently without any provocation fired a single shot to his head, killing him. While his partner screamed in shock, Torsney ran back to his patrol car and drove to the 75th Precinct, where he was subsequently arrested; charged with second-degree murder, he successfully presented an insanity defense, saying he had suffered a psychotic episode, and he was sent—briefly—to a hospital for the criminally insane. In 1984, an ESU cop who was part of a team serving an eviction notice shot and killed a sixty-six-year-old black female EDP named Eleanor Bumpurs, who had lunged at them with a knife; the cop was later acquitted by a judge.

  And then there was the Jose “Kiko” Garcia case.

  As the duty supervisor in Manhattan North that night, July 3, 1992, I caught the case—34th Precinct, officer-involved shooting, subject down, apartment building on 162nd Street in Washington Heights. When I get there the scene is chaotic—patrol cars, emergency lights flashing, a crowd starting to gather—although not yet a violent one; that would come later. The Borough Shooting Team detectives—at the time, the old IAD did not roll out on officer-involved shootings—are already there, and when the detectives fan out to talk to the other cops and interview witnesses I try to piece together what happened.

  What happened is that three plainclothes cops in an unmarked car spot Garcia, twenty-three, a Dominican Republic immigrant who’s on probation on a cocaine sales charge, with what appears to be a gun. Officer Michael O’Keefe gets out and chases Garcia while the other two cops in the car circle around to head him off. O’Keefe catches Garcia, they struggle and stagger into the vestibule of the apartment building while O’Keefe screams for help into his radio. Garcia pulls out the gun, a .38, and O’Keefe then shoots him twice. Garcia dies later at the hospital, the same hospital where O’Keefe is treated for bruises and cuts suffered in the fight.

  That’s what happened, but it’s not the story on the street. The story on the street is that O’Keefe beat the hell out of Garcia outside the building and then dragged him semiconscious into the vestibule and stood over him and shot him three times in cold blood while Garcia begged for his life. By the next day, people we had interviewed the night before, people who had told us they hadn’t seen anything, suddenly recalled that they’d seen everything, and that the cop had murdered that young man, who by this time is no longer a convicted drug slinger with a gun but a pleasant young man who may have had some trouble in the past but was turning his life around and wouldn’t hurt a fly. And the press and the TV news stations buy that story line, repeating it again and again until it sounds like truth.

  That routinely happened in officer-involved shootings and excessive-force incident investigations in which I was involved. Veteran reporters would assume that everything the cops said was a lie, part of the inevitable police cover-up to protect their own. But when some street mope they’d never seen before and would never see again sidled up to them at the yellow crime scene tape and whispered in their ears—You know, those cops didn’t have to shoot that boy, I seen it all, they shot him down like a dog while he was beggin’ for mercy!—the reporters would treat it like gospel. They would write it in their stories or broadcast it over the air, something like, Despite police denials, a witness said the officers shot the man while he begged for mercy . . . And from that point on the facts wouldn’t matter.

  And that’s exactly what happened in the Kiko Garcia case. Several days of rioting follow—cars burning, windows broken, rocks and bottles flying. Mayor David Dinkins tries and fails to calm the unrest by having the city pay for Garcia’s funeral in the Dominican Republic, and succeeds in infuriating almost every cop in the NYPD. Dinkins becomes known to cops ever after as “the mayor who paid for a drug dealer’s funeral.” Two months later, in front of a grand jury, two alleged eyewitnesses who claim to have seen the cop stand over Garcia and shoot him in cold blood see their stories crumble in the face of the facts—bullet impact marks, the medical examiner’s report, tapes of radio transmissions, evidence gathered not just by us but also by the FBI. The grand jury declines to indict the cop, and even the DA has to admit that there’s absolutely no basis for a criminal case. But the alternative story line is the one that lives on—They shot him while he begged for his life!—just as the “Hands up, don’t shoot!” story line about a young man named Michael Brown in tiny Ferguson, Missouri, is the one that lives on, despite all the evidence to the contrary.

  But the Amadou Diallo case is different. In the Diallo case, everyone—the police, the press, the public—agrees on the basic facts: Four cops who are white fired many, many shots at an innocent unarmed man who was black. The only question is, Was it a tragic accident? Or was it a crime?

  There are demonstrations, of course, beginning with one of about a thousand people on Wheeler Avenue led by the Reverend Al Sharpton. I’d met Sharpton a number of times when I was a captain in Manhattan South and he was organizing periodic demonstrations in front of City Hall or One Police Plaza against police brutality, racism, whatever was the outrage of the day. I would go up and introduce myself and he would shake my hand and say: Gonna have a lot of people here today, lot of people, but don’t you worry, we’re gonna keep it peaceful! The guy couldn’t have been more pleasant and cooperative—and then he’d get in front of a microphone and start shouting about how every cop in New York, presumably including me, was a racist thug who woke up every morning just itching to get out and shoot innocent black people. Sharpton was, and is, a charlatan and a race-hustler—but he’s a personally charming charlatan and race-hustler.

  Later there are daily demonstrations against the Diallo shooting in front of Police Plaza featuring appearances by former mayor David Dinkins, Jesse Jackson, Congressman Charles Rangel, and numerous others, all denouncing the police, many intentionally getting themselves arrested as an act of civil disobedience.

  But it isn’t just the black community that’s infuriated by the Diallo shooting. The reaction throughout the city, and even the entire country, is one of anger and disbelief—How can the cops shoot an unarmed man forty-one times? (Of course, while forty-one shots were fired, Diallo was actually hit nineteen times—but to most people, maybe understandably, that’s a distinction without much of a difference.) The New York Post, usually the most pro-cop of the city’s papers, leads the Diallo shooting story with a screaming headline, “IN COLD BLOOD”—which it wasn’t; it was a heat-of-the-moment tragedy, nothing cold about it. The New Yorker publishes a cover cartoon showing a fat NYPD cop cheerfully plinking away at black human silhouettes in a shooting gallery. Bruce Springsteen writes a song about it called “American Skin (41 Shots)”—“No secret my friend / You can get killed just for living in your American skin.” To a public that has no real conception of what it’s like to be a cop on the street, Diallo becomes a symbol of everything that’s wrong with cops in general,
and the NYPD in particular.

  For the NYPD, the Diallo shooting, coming on the eve of the trials in the Louima police brutality case—more on that later—is a disaster. Throughout the early 1990s, crime in the city had dropped precipitously, people could walk the streets again, everybody talked about the “New York City Miracle”—and the NYPD rightly got most of the credit for making it happen. But with Diallo, that’s forgotten; for a lot of people, the NYPD isn’t solving a problem, it is the problem.

  Like I said, it’s the eternal cop truth: One day you’re a hero, and the next day you’re a bum.

  I never heard a single NYPD cop describe the Diallo shooting as anything but a tragedy, a terrible mistake, something that could have happened to any of them. Although cops hate it when civilians second-guess them, cops certainly aren’t reluctant to second-guess other cops about their tactics, so there was some talk about how the SCU cops should have done this, or could have done that. But I also never heard a single cop say that what the four SCU officers did was a crime.

  But as you might expect, the Bronx District Attorney’s Office doesn’t . . . can’t . . . see it that way.

  On their lawyers’ advice, none of the four cops testifies before the grand jury. Given the public reaction, it’s almost certain they will be indicted, and they’ll probably testify in their own defense, so from their lawyers’ point of view, why give prosecutors an early bite at the apple that could later be used against them at trial? As expected, seven weeks after the shooting DA Robert Johnson announces that the grand jury has indicted the four cops for second-degree murder, alleging that they had acted with “depraved indifference to human life”; the charge carries a possible twenty-five-to-life sentence. They are also charged with “reckless endangerment” of people who lived inside the apartment building.

  Johnson was the city’s only black district attorney, and as IAB chief I’d often worked with him and his staff on police corruption cases. And I think that deep in his heart he knew that it was going to be difficult, maybe impossible, to prove that under the law the four cops had acted with “depraved indifference to human life”—especially if the cops went to a bench trial in front of a judge instead of a Bronx jury. The law says that police officers have a right to shoot if they have a “reasonable” belief that their lives or that of others are in danger—not an absolute belief, not a certain belief, only a reasonable belief. It’s part of the deal that society makes with cops: Here’s a badge and a gun, now go out there and protect us from dangerous people who may also have guns—and if you make an honest mistake, even a fatal one, we’ll give you the benefit of the doubt.

  But DAs in New York are elected officials, and as a politician as well as a prosecutor, and given the public outrage, Johnson feels he has to do something.

  After various legal maneuvers in the case, including a change of venue to Albany, the case goes to trial, and all of the officers testify, sometimes emotionally, that they’d been in fear for their lives and their partners’ lives. In February 2000 a jury of four blacks and eight whites finds them not guilty.

  There is anger over the verdicts, of course, with some people claiming that cops who shot citizens, even innocent ones, always got off, which wasn’t exactly true. In 1995 a Housing police officer was convicted of criminally negligent homicide after shooting a man while searching for a burglary suspect; he was sentenced to one to four years in prison. In 1997 a Transit police officer was found guilty of second-degree manslaughter for fatally shooting an unarmed man in the back on a Bronx subway platform; he served three years in prison. In 2003 an NYPD undercover officer who shot and killed an innocent African immigrant named Ousmane Zongo during a botched raid on a Manhattan warehouse was convicted of criminally negligent homicide; he was sentenced to probation and automatically dismissed from the Department. In 2016 former rookie cop Peter Liang was sentenced to five years probation and community service for felony negligent homicide in the accidental shooting of Akai Gurley in a Brooklyn public housing building.

  But despite those cases, and others, it’s true that while cops involved in controversial shootings are often indicted, convictions are rare, for the reasons I already mentioned. It’s hard to prove beyond a reasonable doubt that a cop doing his job in a high-stress situation in a dark alley in Brooklyn or on a bad corner in the Bronx is guilty of criminal behavior when he or she makes a mistake, even an egregious one. Civil liability is another issue, and in almost all of the cases I’ve mentioned, the city wound up paying the dead person’s family hundreds of thousands or even millions of dollars. (Diallo’s parents eventually received a $3 million settlement.) It goes without saying that no amount of money could ever bring the dead person back to life—although it’s also true that sending a cop to prison for making a mistake wouldn’t bring them back to life, either.

  And people forget that the justice system runs two ways, that civilians have beaten the rap after shooting cops as well. In 1974 a jury acquitted a man charged with shooting and killing Officer Phillip Cardillo during a scuffle at a Nation of Islam mosque in Harlem two years earlier. In 1986 a guy named Larry Davis became a folk hero in the Bronx after shooting and wounding six cops and eluding capture for two weeks; a jury found him not guilty of the shootings. In 1999 a Bronx jury acquitted a man of shooting and permanently injuring an NYPD captain while he was serving a search warrant; one juror was quoted as saying the captain “got what he deserved.” There were other, similar cases. When it comes to the court system, one man’s justice is another man’s judicial travesty.

  After the acquittals in the Diallo case there were some demands that the four cops be prosecuted under federal law for violating Diallo’s civil rights, just like the four LAPD cops in the Rodney King case in LA were charged in the federal system after being acquitted in state court. (Two of the LAPD cops were convicted in the federal case.) I’m a cop, not a Supreme Court justice, but I could never understand how that isn’t double jeopardy—especially since in virtually every case it’s only used against cops. But eventually the US attorney passed on prosecuting the case.

  And now the question was, What is the Department going to do with these four cops?

  Just because a cop is acquitted in a criminal trial doesn’t mean he automatically gets his gun and shield back and goes back to work. We still have to decide if the cop broke any Department rules. In the Diallo case, after the not-guilty verdicts, and after the US attorney declined to prosecute, our Group 54 investigators were finally able to GO-15 the four officers, sitting them down and requiring them to tell their versions of events. It was mostly a formality, since the cops had already told their stories and been cross-examined at trial—and the stories they told us matched in every detail their court testimony and the stories their PBA lawyers had conveyed to us immediately after the shooting. We wrote up our final report, and the Firearms Discharge Review Board ruled that the Diallo shooting was “within guidelines.”

  In other words, in police parlance the shooting was technically a “good” shooting. But in practical terms, no one in the NYPD, perhaps including even the four officers themselves, would ever use the words “good shooting” and “Amadou Diallo” in the same sentence.

  In the NYPD carrying a gun is a privilege, not a legal right or even a union contract right. The police commissioner at the time, Bernie Kerik, chose to keep the four officers on “modified duty,” meaning they couldn’t carry firearms, and his successor, Ray Kelly again, upheld it. Although the PBA didn’t agree, at the time it was an obvious call.

  After all, what would the public reaction be if one of those cops went out and somehow got involved in another officer-involved shooting? Even if the shooting was totally justified, the press—and the personal injury lawyers—would pounce: “DIALLO SHOOTING COP KILLS AGAIN!” Or what if one of those cops found himself in a violent situation and hesitated to shoot when he should have, putting his partner or someone else in danger?

  Maybe it wasn’t fair to the cops. But remember w
hat I said about the word “fair” and the NYPD?

  For most of the cops involved, not getting returned to full duty was a moot point. Two of them, Murphy and McMellon, joined the New York Fire Department—although even that was controversial—and Carroll retired not long afterward. Kenneth Boss was assigned to Floyd Bennett Field in Brooklyn, where he worked in an equipment repair shop at the ESU training headquarters; his NYPD ID card was stamped “No Firearm.” While on military leave Boss served a combat tour in Iraq with the Marines in 2006; he also waged a decade-long legal fight to get his gun back, arguing that as a member of the so-called Rubber Gun Squad he was a pariah in the Department. He lost every court case, but in 2012 Commissioner Kelly returned him to full duty with the Special Operations Division, which handles emergency situations like water rescues. As far as I know, Kelly never told anyone why he returned Boss to duty. Maybe it was simply because he decided that after thirteen years, the Diallo shooting cops had suffered enough.

  I know what you’re probably thinking. These cops shot an innocent man, and they never spent a day in prison, and you’re telling me they suffered?

  That’s exactly what I’m telling you. Amadou Diallo and his family suffered far more, but those cops suffered, too.

  And no, I really don’t expect you to believe that, or to understand it.

  But every cop will.

  * * *

  The Amadou Diallo shooting wasn’t the last controversial police shooting I would be involved in as IAB chief—sadly, it was far from it.

  In March 2000 a Brooklyn man named Patrick Moses Dorismond was standing outside a club in Midtown Manhattan when an undercover narcotics cop tried to buy drugs from him. There was an argument, a scuffle with the undercover and his backups, and then one of the cops’ gun fired, killing Dorismond. A grand jury ruled it an accident.