Even Old Shields Get Some Courtesy

The Gawker headline may have jumped the gun.

Why Wasn’t the Brooklyn Subway Shooter Arrested?

The short answer is that 69-year-old William Groomes may still be arrested, may still be prosecuted, for murdering Gilbert Drogheo.  But no, had it been someone without a shield, even one that said “retired” on it, and the right to carry a concealed weapon in New York City, his arrest would have been immediate.

Another piece to the puzzle was that Drogheo wasn’t a very good victim.

The incident started during rush hour on Tuesday when Groomes stepped between Drogheo and Evering while boarding the 4 train. A law enforcement official told the New York Times that the younger men began taunting Groomes, who tried to ignore them. “At one point, they called him a boy,” the official said. “He says: ‘Don’t call me boy. I’m not your boy.'” One of the men reportedly punched Groomes in the head, and according to the Associated Press, they pushed him down into a seat on the train.

Before you get all twisted by what happened, bear in mind that this was in the New York City subway at rush hour. Stercus accidit. Micro-aggressions (see, finally a good use of the term) happen all the time as people try to stake out a little room in this mass of smelly humanity, and most of us just brush it off. It’s really not that big a deal, and we then get off the train and go happily on to enjoy the rest of our life.

This isn’t to say it’s a nice way to behave, but being a New Yorker means shrugging off the occasional indignity that comes of living on a small island with a gazillion other human beings, each of whom mistakenly believes they’re as important as we are.

So end of story? Hardly.

Groomes showed the men he was armed with a 9-millimeter handgun, and the altercation continued on the subway platform. According to the Times, Goomes suggested he was a police officer and told the men he was going to arrest them for assaulting him.

Why did Groomes have a legal gun?  Former cops and corrections officers are in that most select group of people in New York City, given permits to carry weapons on the theory that they are both trained properly in their use and have a special need based upon the possibility that they will stumble upon someone on the street who takes umbrage with their service.  Debating the merit of this approach isn’t worthwhile. It could happen, and so Groomes, a former corrections officer, was armed.

But the fact that his gun was lawful, and that Drogheo was not a sympathetic victim, doesn’t mean that Groomes got to shoot.

As bad as the interaction on the subway may have been, Groomes followed Drogheo out and engaged him at the turnstyle, where he then shot and killed him.  At that point, Groomes was the initiator of contact rather than Drogheo, even though many will feel that Drogheo doesn’t deserve to call himself a victim.

Was there an arrest?  Of course, but maybe not who you might think.

On Wednesday, the police charged Mr. Drogheo’s co-worker, Joscelyn Evering of Brooklyn, 28, with assault and menacing. But the police and prosecutors were still grappling with whether the killing — the first in the transit system this year — constituted a crime, or if Mr. Groomes had been justified in his use of deadly force to counter what he told detectives was an assault.

While it may seem reasonable to those unfamiliar with New York law that prosecutors are still “grappling” with Groomes, it’s really not much of an issue.

“There is an issue to be determined, which is whether Groomes was justified,” said the official, speaking on the condition of anonymity because no decision had been made on whether to charge him. “The shooting occurred after Groomes told them they had assaulted him and he was going to arrest them.”

Except they know that’s irrelevant and provides no justification for the shooting.

Under New York State law, people have the right to defend themselves against an aggressor and to use deadly physical force when confronted with the imminent use of deadly physical force.

But unlike states with “stand your ground” laws, such as Florida, New York imposes a duty to retreat before deadly force is used, said James A. Cohen, a criminal defense lawyer and Fordham University Law School professor. “That’s the difference with a cop, who doesn’t have a duty to retreat,” Mr. Cohen said.

And there is no question but that Groomes, despite being initially assaulted, chose to re-initiate the confrontation and then shoot. The citizen’s arrest thing is a red herring. It confers no right on Groomes to shoot when the law clearly provides that he can’t, both because he wasn’t faced with an imminent threat of deadly force and because, even if he was, he had a duty to retreat.

So why wasn’t he arrested, for real?  Because he gets some courtesy for being one of them:

First and foremost, he gets to hire a lawyer and hunker down to come up with a strategy for his defense. They can watch the video that was released and decide whether self-defense is even a viable option. He can also line up a bail package (probably through a bond) so that he can make bail immediately if the judge decides to give him bail instead of remanding him. He can hide any evidence that he would not want the police to find, particularly anything on his cell phone that could blow up his self-defense claim by showing his state of mind that day. On a personal level, he gets a chance to be with his family one last time without being separated by prison bars. All of this is very difficult to do from Rikers Island. Also, assuming he doesn’t go on the run, he can show that he is not a flight risk and his lawyer has a better chance of convincing the judge to set bail instead of remanding him.

This isn’t over for Groomes, but when the time comes that he is arrested, he will be prepared.  It’s not as good as immunity, but it’s a whole lot better than trying to deal with it from a cell on the Rock.


6 thoughts on “Even Old Shields Get Some Courtesy

      1. Jyjon

        I thought it was only a double standard if it was a ‘protected’ group that was being excluded.

  1. Glenn Brockman

    Im struggling with the idea that Groomes has not been arrested and charged with *something*… Even if he was only charged with making a mess in the subway. After all, surely once he’s been processed, he could be released on his own cognisance, since he’s an Old Shield, for what it’s worth. Charges can be upgraded later – or dropped entirely at the whim of police or prosecutor.
    The “Whoa – maybe it was a righteous kill” argument can happen later – whether it goes no further than the prosecutor’s office or plays out in a courtroom. Same basic process for heroes and ham sandwiches alike.

  2. Pingback: Subway Gunfights and Other Distractions – New York Personal Injury Law Blog

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