Bronx Killing Shines a Light on Police Brutality

The Bronx has long been infamous for the widespread enmity between its residents and the New York Police Department (NYPD).  The borough of 1,400,000 mostly Latino and African-American inhabitants has the highest rates of unemployment, poverty, crime, and arrests of any in New York City.  Since February 2, 2012, officer from the Narcotics Division shot and killed eighteen-year-old Rahmarley Graham, relations between Bronx residents and their Police Department have sunk to a new low.

“NYPD : KKK! NYPD : KKK!” protesters chanted as they marched from the home of the late Graham to the 47^th precinct house.  NY-1 reports: 

‘They cornered that little man in his house, perfect place to ask questions, but instead of asking questions, they shoot him down right then and there. And they are New York's finest--what is fine about that?’ said one protester.  ‘They just judge by our looks, or whatever and think that some of is bad kids like that, they don't really want to give us a chance, as well,’ said another.

The New York Times quoted Graham’s sister, “[t]his is not just about Rahmarley.  This is about all young black men.”

               

According to reports, plainclothes officers of the Bronx Special Narcotics Unit allegedly witnessed Graham conducting a drug deal, and suspected Graham held a handgun on his waistband.  The officers chased Graham into his home and cornered him in his bathroom.  Officer Richard Haste fired once, striking Graham in the chest.  Once entering, the officers discovered that the eighteen-year-old did not have any weapons on him, only a bag of marijuana that he was trying to flush down the toilet.  Graham was rushed to Montefiore Hospital, where he was pronounced dead.

The NYPD stated that Graham had a record of prior arrests.  Constance Malcolm, the victim’s mother, acknowledged this as much, “[e]verybody’s kids get into trouble.  He smoked a little weed, but you know, like all the little, young kids does.  And that’s what he had on him when they were chasing him.”

It appears most likely that the only unlawful activities which Graham was engaging in at the time  were possession and possibly distribution of a controlled substance.  Though in New York, possession of less than twenty-five grams of marijuana is only a violation punishable by a $100 fine.  Consequently, if the alleged “bulge” in Graham’s pocket consisted of less than twenty-five grams of marijuana, and it never left the confines of his pocket, the Narcotics officers may have been unjustified in even stopping and frisking Graham.

Police officers are even more limited in their ability to conduct warrantless entries of a person’s home.  In New York State, officers may enter a private residence without a warrant only if there are “exigent circumstances”; i.e. an emergency necessitating immediate entry.  Here, the possible exigent circumstances of this incident include (1) reasonable suspicion of firearm possession, and (2) reasonable suspicion of destruction of evidence for a crime.

Because firearms can be so dangerous, a police officer’s reasonable suspicion that a person might possess a handgun can constitute an exigent circumstance justifying entry into a person’s home without a warrant.  The legality of the NYPD officers’ entry into Graham’s home would depend on whether the officers actually believed that they saw a weapon or just a bulge in a defendant’s clothing, the vantage point of the officers in making this observation, the defendant’s demeanor and behavior, and whether the defendant was continuously surveilled between the observation of the alleged bulge and his entry into his home.  Though Graham did not possess a weapon at the time of his shooting, the NYPD Narcotics officers’ warrantless entry into Graham’s home may have been lawful so long as their suspicion that Graham possessed a gun in his waistband was reasonable.

However, the Bronx Narcotics officers may not have been justified in entering Graham’s home on the basis of a reasonable suspicion of destruction of evidence of a crime.  To make a warrantless entry of a person’s home based on the reasonable suspicion of the imminent destruction of evidence of a crime those officers would have needed probable cause to arrest the individual.  It appears that Graham was destroying such evidence when he attempted to flush the marijuana down the toilet.  But if he possessed even as much as 24.9 grams, then the police would not have had probable cause to arrest him in the first place.  It may not have been an exigent circumstance sufficient to justify a warrantless entry if Graham was only flushing a citation-worthy amount of contraband.

Of course, the reason why Bronx residents are demonstrating against police brutality is the NYPD’s killing of Graham.  According to the NYPD Patrol Guide,

(a) Police officers shall not use deadly physical force against another person unless they have probable cause to believe they must protect themselves or another person present from imminent death or serious physical injury. . . .

(d) Police officers shall not discharge their firearms to subdue a fleeing felon who presents no threat of imminent death or serious physical injury to themselves or another person present.

It is unequivocally illegal for the police to shoot a person merely based on the suspicion that that person might possess a gun.  In order for a police officer to use lethal force in an instance such as this, that officer must be reasonably certain that a specific individual both has a deadly weapon and that that individual is either presently using or about to use that deadly weapon.  During his fatal shooting, Graham did not even have a weapon in his possession, and nothing appears to suggest that he posed an imminent threat of death or injury to anyone. Even if Graham had a gun, a teenager cowering in their bathroom does not fit the profile of a person about to shoot someone.

One might like to think that the killing of Rahmarley Graham might even elicit some sort of policy change to prevent such a tragedy from occurring again.  Mayor Bloomberg is expected to pay his personal condolences to the Graham family, perhaps make a point of attending more Bronx community meetings.  But the death of Graham is not just a case of “a few bad apples” in the NYPD.  With the mistaken slayings of Amadou Diallo and Sean Bell, the sadistic assaults on Abner Louima and Jatiek Reed all in such recent memory, it appears that the NYPD has a widespread brutality problem.

New York City residents, especially in the Bronx, are clamoring for substantive justice and comprehensive change.  The NYPD must do more to curb the use of excessive force among its members. Granted, the Narcotics officer’s use of lethal force in the Graham case appears to have been in violation of New York state law and NYPD’s stated policy.  The fact that NYPD officers have been violating the rules on the use of force so regularly evinces that the Department needs to thoroughly improve its recruitment, training, and oversight of its personnel.  Police officers who use excessive force have no place amongst the ranks of New York’s Finest.  Moreover, to demonstrate that no man is above the law, the Bronx District Attorney must adequately prosecute the Narcotics officer who illegally shot and killed Rahmarley Graham.

Zachary Mason

Blogger, Criminal Law Brief

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