It’s bad enough that two cops fired weapons in Times Square and managed not to have a single bullet strike its target. It’s bad enough that two innocent bystanders were shot. It’s bad enough that they had no justification for the shooting. But what is intolerable is that someone must pay for these grievous wrongs.
Somewhere on the 7th Floor of 1 Hogan Place, a prosecutor got a brilliant idea. “I know,” he said. “Let’s blame the guy the cops were shooting at!” After all, if he hadn’t been acting crazy in traffic, none of this would have happened. “Am I right? Am I right?”
The theory isn’t new. Ike Turner tried it when explaining why he was forced to beat Tina. It didn’t fly for him, but then, he wasn’t wearing a uniform. And unlike Ike Turner, New York’s Finest have demonstrated an astounding lack of competence when using their guns to protect and serve.
[H]itting two people with three shots represents unusual excellence in marksmanship for the NYPD, matching another recent incident in which skilled NYPD officers were able to hit their target and nine bystanders with only 16 bullets. Overall the NYPD usually requires about 331 rounds to hit 54 targets, of which 14 will be innocent bystanders, 24 will be dogs, and 16 will be people the NYPD was actually aiming at. Statistically, if you aren’t a dog, it is slightly more dangerous to be the person the NYPD was shooting at than a bystander (16 people out of 331 shots for intended targets for a 4.8% hit rate vs. 14 people out of 331 shots for bystanders, a 4.2% hit rate.) NYPD has a better success rate for other weapons, and certain factors, like shooting unarmed people in the back, tend to increase hit rates.
When NYPD officers fire 331 shots, and hit 16 targeted people, 24 dogs, but also 14 bystanders, there is a problem.
But this suggests that the NYPD would do well to actually enforce their internal regulations requiring annual practice at the firing range or limiting the use of guns to instances where it’s necessary, as opposed to instances where fear and the First Rule of Policing kick in. But those are hard answers, and would be resisted by police. There has to be an easier way to lay blame elsewhere.
The problem with shifting the responsibility from the two officers, whose names have never been revealed, to Brooklyn’s Big Guy, Glenn Broadnax, is that he’s an easy target, except when it comes to hitting him with a bullet. I’ve reached out to his lawyer at Legal Aid, Rigodis Appling, to get a firmer handle on the theory of prosecution here, but haven’t heard back from her yet. Hopefully, she’ll get me a copy of the indictment and some explanation so I can add it in here later.
My fear is that there is a certain disjointed logic to the prosecution’s theory that might be sufficient to entice a judge to let such a prosecution proceed. It appears to be some variation of vicarious liability, the criminal responsibility of one person for the conduct of another. While this is normal in conspiracy prosecutions, it’s because the notion of conspiracy is based upon an agreement to engage in criminal conduct. Unless something happened between the cops and Broadnax that no one yet knows about, this doesn’t seem a viable option.
Yet, there is a perverse logic to the charge, a Newton’s Third Law sort of argument that for Broadnax’s action, there is a police reaction. That just happened to go astray because it’s really hard to shoot a gun and hit someone. The fear is that an imaginative prosecutor with some rhetorical flourish will be able to sweet talk a judge out of her senses to permit such a theory to proceed. After all, shouldn’t a criminal be responsible for the consequences that naturally flow from his conduct?
Tort lawyers will shrug. They’ve fought to extend the proximate cause argument ever since Palsgraf rained on their parade. But the rationale is entirely different. The issue isn’t who is more properly responsible for the damages accruing from conduct, but whether the conduct is so morally blameworthy as to hold a person responsible for a crime.
Sure, Broadnax should not have been raising a ruckus in the middle of midtown traffic, and he was wrong to do so, even if it happened because of a transitory disconnect from reality. But what the two cops did, pull out their guns and start shooting, was not the natural by-product of Broadnax’s conduct. Indeed, there was never any justification for shooting, and the subsequent efforts to find an excuse for it were laughable.
Worse still, Broadnax isn’t to blame for the fact that the two cops couldn’t hit a “hulking” guy in the middle of the street, shooting innocent bystanders instead. Did he make them shoot bystanders? Did he prevent them from being competent to shoot weapons? Did he put them in fear of their lives by whipping out his metrocard?
Every once in a while, a prosecutor will come up with a harebrained theory that has some superficial appeal, and the gravest danger is that some judge will embrace it. It’s the sort of travesty that happened with charging drunk drivers with murder, and if enough of it sticks to the wall, people begin to accept it as a rational extension of the law. The time to kill these crazy theories is when they start, before the outlandish hyperbole used to justify their inception starts to sound relatively normal and not nearly as batshit crazy as it did at first.
And if Broadnax is held liable for any action taken by the police here, there would be no conceptual ledge to prevent the slide toward making defendants responsible for every act of stupidity and incompetence on the part of scared cops. While the possibilities for prosecution would be endless, the flip side is that every cop would become the new Ike Turner. Except without any talent at all. That would be chaos.