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.