New York City police said that no citizens were in the line of fire when they fired 12 shots at a knife-wielding man in Times Square Saturday, striking him at least seven times.
But the videos and pictures show a multitude of citizens standing around who could have easily been struck by a stray bullet.
In fact, one bullet was found stuck in a doorjamb of a jewelry store, according to the New York Times.
The knife-wielding man, Darrius Kennedy, was pronounced dead at Bellevue Hospital, the same hospital where he had been taken to in 2008 for a psychiatric evaluation after knocking down garbage cans in Times Square, indicating that perhaps he was not a criminal intent on killing police but a man in dire need of mental help.
Police have done a great job of convincing the media and public that they had no choice but to kill him because he was lunging at them with the knife, but not a single video has emerged showing the actual shooting or the lunging.
They also say they pepper sprayed him multiple times to no avail but no video has emerged indicating that either.
And they say that not one of the 20 officers who chased him was carrying a Taser, so that option was out of the question.
But the shooting took place a stone’s throw from the Times Square Precinct, if not directly in front of it, judging by the video screen shot below.
Surely, they had a Taser or two lying around the precinct.
The only video that apparently captured the shooting was confiscated by police. And it’s doubtful we will ever get to see that.
Under the law, police are only allowed to confiscate cameras under exigent circumstances. And even then, they have to make a sincere attempt in asking the citizen for the footage instead of outright confiscating it.
Exigent circumstances usually mean there is a strong suspicion the citizen might destroy the footage.
Otherwise, they need to go through the process of obtaining a court order to obtain the footage.
In the piece I wrote last night on this incident, I mentioned the NYPD’s operations order on how they must deal with photographers. But that is very vague and does not cite actual case law.
The guidelines established by the U.S. Department of Justice for the Baltimore Police Department, which, in effect, should apply to every police department within the United States, provide very explicit details and case law on how police should go about seizing a citizen’s camera under exigent circumstances.
To put it simply, confiscating a citizen’s camera comes with serious First and Fourth Amendment implications, something the NYPD has a habit of ignoring. Essentially, police can not just order a citizen to hand his phone over, which is apparently what they did Saturday.
Here is how the New York Times described the confiscation:
Julian Miller, 22, who was visiting New York from Boston, said the police confiscated his phone after he recorded video of the confrontation. He said in an interview that he followed the pursuit from Times Square to 37th Street and Seventh Avenue, his phone recording as he ran to keep up. He said a police detective pulled him aside after the shooting and asked to see his phone and the video.
“His eyes got big when he saw the video,” Mr. Miller said, adding that he had captured the shooting on video. “He went to go show his boss, and then they took my phone away.” He said the officer told him not to speak with the news media.
Here is what the DOJ’s guidelines state:
Policies should include language to ensure that consent is not coerced, implicitly or explicitly. See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (“[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.”). In assessing whether an individual’s consent to search was freely and voluntarily given, Courts may consider “the characteristics of the accused . . . as well as the conditions under which the consent to search was given (such as the officer’s conduct; the number of officers present; and the duration, location, and time of the encounter).” United States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996).
So while NYPD will surely argue that Miller voluntarily handed over his phone, it doesn’t really sound like he believed he had a choice.
It’s understandable that a citizen would want to cooperate with police in a situation like that, but it is even more understandable that the general public is allowed to see what took place in broad daylight in one of the world’s busiest business districts.
Perhaps the best thing to do is allow police to download a copy of the video, allowing the citizen to retain possession of the original copy. That’s what I recommend if you ever find yourself in such a situation.
Personally, I would just hand them my card and tell them to look for it on this blog, but not everybody has a blog or business cards listing their websites. I will even give them my identification, allowing them to prepare a subpoena for my footage, which I would then deal with through my lawyers.
In this age of citizen journalism, we cannot forego our rights to retain our original footage. And we cannot forego our rights to police the police, even if we would like to give them the benefit of the doubt.
Here we have a man who was shot and killed after police approached him for smoking a joint. The fact that he pulled out a knife no doubt escalated the situation.
And the fact that he ran off further escalated the situation because you can’t just allow a knife-wielding man to run free in Times Square, especially if he’s crazy enough to pull it out on cops.
But that’s the point. It should have been obvious he wasn’t very mentally stable at that moment.
Especially when he started yelling “Shoot me! Shoot me!” to the cops.
Let’s not forget Kelly Thomas, another mentally ill man, also invited police to punch him before they beat him to death.
And let’s not forget four bystanders were shot when police opened fire on a suspect on a crowded street in Miami Beach last year, resulting in pending lawsuits.
It’s easy to second-guess officers in a volatile situation like that, but it’s even easier not to second-guess them.
But it might be more effective to question the officers’ training tactics in how to handle “suicide by cop” cases considering many of these officers end up with post-traumatic stress disorder.
And it’s absolutely crucial to question the officers’ training in how to legally obtain video footage from citizens that contain evidence because that will eventually cost them thousands in lawsuits not to mention loss of credibility.
The bottom line is, police put numerous citizens at risk by shooting and killing a mentally unstable man. Then they illegally confiscated a citizen’s video camera that captured the incident.
And the sad thing is, they will be saluted for it.
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CARLOS MILLER’S LEGAL DEFENSE FUND
I am immersed in a legal case where I not only want to clear my criminal charges stemming from my arrest in January, but I want to sue the Miami-Dade Police Department for deleting my footage, which I was able to recover.
My goal is to set some type of precedent to ensure this does not happen as often as it does today where cops simply get away with it.
So if you would like to contribute, please click on the “donate” button below and contribute whatever you can afford.
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