Deer Hunting: Shooting David Sweat

The last man running after his escape from Clinton Correctional Institution in beautiful Dannemora, New York, caught two bullets from State Trooper, Sgt. Jay Cook, as he was about to lose him in the forest.  Governor Andy Cuomo hailed him as a hero for his bravery in shooting an unarmed man while doing the job for which he’s paid.

Nobody thought too hard about shooting David Sweat, as he was a convicted cop killer and prison escapee, not the sort of guy you want to arrive unannounced for dinner. These are the sorts of twisted scenarios where minds shut down and nobody thinks too hard about the uninteresting question of whether this was a legally justified shooting.  Except Cristian Farias, who did exactly that.

To the layperson or the evening news watcher, the use of deadly force on a convicted murderer on the lam in rural New York for nearly three weeks may seem entirely reasonable. And judging from the praise Cook received, the act is even commendable. But police officers must be legally justified to effect a “seizure” on a person — and yes, an official shooting is a seizure under the Fourth Amendment. But nowhere in the account of this shooting is there any indication that Sweat, whose identity was then unknown, gave Cook any reason to stop him, let alone shoot him.

There are a few significant issues wrapped up in that quote, some of which were raised, others ignored, in an interesting discussion at Judge Richard Kopf’s blog, Hercules and the Umpire, so let’s pause to note them.

First, this happened in New York State, not Des Moines. Discussion of whether this comports with the fleeing felon rule allowed in other jurisdictions is a waste of time. New York law does not authorize police to shoot a fleeing felon.

Second, while it is lawful to shoot to kill during a prison escape, once the escape is completed, the escapee is neither physically nor temporally in proximity to the prison, he’s just like anyone else, and the same law applies as would apply to anyone else.

Third, while the State Police spokesman states that Sgt. Cook recognized the person he previously ordered to “come over here” to be Sweat, there is a significant distinction between positively identified the person as David Sweat and kinda looked like the guy. Cook’s actions belie any positive ID:

After Sweat ignored him he called out a second time, to which the escapee turned around as if to say: “What do you want from me?” [State Police Superintendent Joseph] D’Amico said.

It was then Cook recognized Sweat.

Sweat fled and the trooper chased after him, D’Amico said.

Stating that Cook “recognized Sweat” is vague. The New York Times describes it differently:

The shooting occurred here around 3:20 p.m. after a State Police sergeant spotted a man jogging down a road, stopped to question him and recognized him as Mr. Sweat, said Superintendent Joseph A. D’Amico of the New York State Police. The sergeant, Jay Cook, told Mr. Sweat to come over to him, but instead Mr. Sweat turned and fled across a field toward the tree line, Mr. D’Amico said.

It strains credulity to believe that Sgt. Cook actually recognized the man to be Sweat, a cop killer who escaped from prison, and “told Mr. Sweat to come over to him.” No gun drawn. No backup called. No order to put his hands up or lie on the ground. Because most cop killing prison escapees come on over when told.

After the man, now known to be Sweat, ran across a field, Sgt. Cook then drew his weapon and shot twice, hitting Sweat in the torso.  After taking a cool pic showing off his prize, Sweat was taken to Albany Medical Center to be patched up, surviving the bullets.


Was the shoot righteous?  NBC offered its “expert” view that it was a slam dunk:

“There cannot be any cleaner situation than this one,” said Maria Haberfeld, head of the law and police science department at John Jay College of Criminal Justice. “You cannot shoot any fleeing felon, but certainly you can shoot the one who poses a real threat. There was no reason to believe this person who had killed a police officer before was not posting a real threat.”

Analysis like this explains why John Jay College produces some of the finest cobblers in New York City.  To be clear, the absence of “reason to believe” that a person does not pose a “real threat” is not probable cause to believe he poses a threat. If this is what they’re teaching cops at John Jay, it could explain a lot about killing unarmed people.

Giving Sgt. Cook far more credit than the facts suggest he deserves, and that he has positively identified the jogger as David Sweat and wasn’t shooting at some random guy who chose to exercise his constitutional right to be left alone, two facts remain. First, he was unarmed, and Cook makes no suggestion that he observed anything that suggested he was armed. Second, the guy took no action toward Cook that could be interpreted as threatening.  He didn’t charge Cook, he ran away.

But what of the fact that this guy, assuming Cook positively identified him as Sweat, was a cop killing prison escapee?  Doesn’t that make him inherently dangerous?  No.  There is no generic rule that someone who has committed a terrible act of violence at one point is thereafter fair game for shooting in a field in perpetuity.

One could note that in the three weeks he was on the lam, he harmed no one. One could note that he was trying to get away from, not cause harm to, Sgt. Cook. One could note that even if he did try to do harm to Sgt. Cook, he was unarmed and showed no indication, not even the slightest, that he possessed the ability to cause death or serious bodily injury.

And yet, as the man who might have been David Sweat ran across a field away from Sgt. Cook, the State Trooper took aim and fired two shots into him.  That’s how a hunter bags a deer.  And Sgt. Cook was no more a hero for shooting down David Sweat than is a hunter taking down a buck.  But both got a photo op out of the deal, suitable for framing.


31 thoughts on “Deer Hunting: Shooting David Sweat

  1. Scott Morrell

    So what was Sargeant Cook suppose to do? Should he have told the unknown runner to freeze first, and if he did not reply, then be allowed to shoot? Or is that not legal as well?

    Also, suppose the converse occurred? Cook said he recognized Sweat, he fled, Cook ran but could not catch up with Sweat, and he never took a shot. What do you think his superiors, Cuomo and the local population would have said about that decision? Are you suggesting he would be still deemed a hero for following the law and losing him without a shot? Or would no one give a crap about the law at that point?

    1. SHG Post author

      Sigh. Yes, if he says “freeze,” then he can shoot to kill anyone he wants. Isn’t that the law. Oh wait, no, it’s not.

      What he should have done is called in that he found Sweat (assuming he actually thought so), and then brought in a gaggle of troopers to the area where they now knew him to be and found him and taken him into custody. And if Cuomo and the public are much happier with shooting a guy for convenience, that’s why we have law rather than leaving life and death choices to the mob.

    2. Black Bellamy

      @ John Burgess

      Wow that’s just awful. You’re suggesting we kill people because of what your boss or neighbors or some politician might THINK? That’s a valid reason to kill? I hope I’m misreading what you meant.

  2. Scott Morrell

    Do you really believe that the media, most pundits except you and a few others, Cuomo and the entire nation would have accepted the idea that Sweat was on chase, 1.5 miles from the Canadian border, and about to hit a tree line in camouflage and not been shot?

    Although your legal analysis is probably correct, in the real world, that would not have been an acceptable option and Cook would have been skewered if he lost him.

    If Cook broke the law, why hasn’t any public official suggested it? Does the end justify the means?

    So we have the classic intersection between what everyone wants and what the law provides. We are indeed an imperfect nation by this example.

    I have no answer to this dilemma. I am just suggesting the contradiction of the American public.

    1. SHG Post author

      Although your legal analysis is probably correct,…

      Probably? There is a basic premise to our Constitution, to protect the individual, the minority, from the tyranny of the majority. This is why we don’t call for a mob to give our guys with guns the thumbs up or down to decide whether to kill them on the spot.

      Random people at barbecues saying, “fuck ’em, he deserved to die,” is not a rule of law, no matter how tasty the barbecue might be.

      1. Eric

        ever heard of the fleeing felon rule? this man was a danger to society, he could have gone on to kill someone if he had escaped, oh but you anti coppers don’t care about that, sweat should have been executed

        1. SHG Post author

          ever heard of the fleeing felon rule?

          In fact, I have. There is no “fleeing felon rule” under New York law. Ever hear of the Dunning-Kruger Effect?

    2. HFB

      “Do you really believe that the media, most pundits except you and a few others, Cuomo and the entire nation would have accepted the idea that the-guy-who-nobody-knew-who-he-was-until-after-the-fact was on chase, 1.5 miles from the Canadian border, and about to hit a tree line in camouflage and not been shot?”
      There, I fixed it for ya.

      1. Scott Morrell

        I like your fix. It makes rational sense. However, the “mob mentality” and the zeal to catch him dead or alive was so strong that I fear emotion would have been the prevailing theme and the public would have disapproved of the legal justification of not shooting him before he escaped.

        Law enforcement would have had their talking points lined up with legal cover that the cop made a positive ID and then had the right to shoot when he ran away.

        I agree with you that this is legally specious but as you can see the prosecutor, govenor and public had no qualms what Cook did. In fact, he has been labeled a hero.

        So the question that Scott posed is a good one from a legal point of view. However, in the real world of politics and the publics sense of justice, it has not squared.

        What needs to be heard are people like all of you that follow the law to have other people talking about this in the media. It would set up for a great debate. As of now, the world thinks this was completely lawful.

  3. Fubar

    From a depublished paragraph in the RCAF exercize manual:

    To avoid some spontaneous gunning,
    Careful joggers use wits with some cunning.
    Never think it’s just fine
    To jog a straight line.
    Instead, practice broken field running!

  4. syme

    “Three game wardens, seven hunters, and a purebred Guernsey Cow…”

    [I only hope someone here knows the reference. His Honor is my first bet…]

            1. syme

              No, just ordinary techno gremlins

              “Be Prepared” was another popular Tom Lehrer song of that era.

              I think NYS should have listened to it, vice say oh “What ever became of Alma?”,”The Wild West Is Where I Want to Be” or “I Wanna Go Back to Dixie”…

            2. SHG Post author

              Be prepared” is a little too generic. And I still have no clue what that has to do with NYS prison authority. Humor sometimes doesn’t travel as well as we think it should.

  5. JD

    It strains credulity to believe that Sgt. Cook actually recognized the man to be Sweat, a cop killer who escaped from prison,
    Not to nitpick or anything but the guy in that photo bears a strong resemblance to the guy in the photos that were splashed across the news after their escape.

    1. SHG Post author

      He should. It’s the same guy. But it’s irrelevant since we base the assessment on Cooks actions, not on post-hoc determination.

  6. Scott Morrell

    The question still remains why there is not a peep from law enforcement in not following the law. Is this a matter of prosecutorial discretion?

    1. SHG Post author

      I don’t think prosecutorial discretion is the issue here when the governor has called Cook a hero. He’s more likely to get a statue than an indictment. Don’t conflate law with popularity.

  7. Erica Meister

    I agree and you pointing out things that weren’t right in this story of David Sweat.. That he did have rights too, being that far away from the prison.. And the fact that he hadn’t harmed anyone since he had been out and was unarmed at the time of being captured . He did not stand a chance he was hunted and gunned down . Not only did they shoot him then take pictures with him he now also gets to spend years in solitary which is more inhumane than killing someone ..The effects of being in solitary confinement is hearbreaking

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