July 1, 2015 (Mimesis Law) — Since the manhunt for two upstate prison escapees gripped New Yorkers who watch the evening news, the majority of the coverage has centered around the circumstances of their escape and their whereabouts. And now that one of them was shot dead and the other one shot and apprehended, the attention turns to Sgt. Jay Cook, the state trooper who fired the latter set of rounds.
According to NBC News, New York Governor Andrew Cuomo called Cook to congratulate him for his courage and hailed him as a “hero,” as did the family of the convicted killer’s victim and social media users, one of whom said he’d be “honored” to have the 21-year veteran issue him a speeding ticket. Police authorities said the fugitive, David Sweat, was believed to have plans to make a run for the Canadian border.
But the official version goes further and may even cast doubt as to whether Cook should have fired his service weapon in the first place. Laying aside for a moment the political impulse to call any public official a hero for doing his job — Cook was, after all, part of a larger contingent specifically tasked with the manhunt — police said Cook was sitting in his cruiser when he saw a suspicious jogger running on the side of the road. Cook got out of his car and called out to the jogger, but he ignored him. Cook called out to Sweat again, at which point Sweat turned and made an expression “as if to say,” per police, “What do you want from me?”
At that moment, Cook recognized Sweat, chased him into an open field, and apparently sensed he would make a turn for the forest, disappearing forever. To avoid that result — we’re told “Cook knew the densely forested terrain of the northern reaches of New York” — the sergeant made the split-second decision to shoot the killer. He fired two shots, hitting Sweat in his torso. Sweat survived and was arrested, ending the hot pursuit and the manhunt.
But did Cook have to shoot Sweat? 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. We only know that the officer saw someone running on the side of the road, that the runner didn’t turn when the officer called out to him, and that the suspect then made a funny expression when addressed a second time.
To be sure, the “What do you want from me?” look the second time around presumably gave Cook a basis to approach and question the running man — he was part of a taskforce and was likely very familiar with Sweat’s mugshot.
And after Sweat began to “flee,” assuming the flight was significantly different than his initial jogging, it looks like Cook might have formed a legitimate a basis for an official chase. But does the law entitle him to more?
Under New York law, Cook cannot shoot Sweat merely because he is a fleeing felon. Only if Cook has a reasonable belief that he poses a risk of serious harm or death to others can he use deadly force against Sweat.
Under the facts we know, that test wasn’t met here. Sweat may, conceivably, have been armed and dangerous, and pose a significant threat of violence, but Cook had no factual basis to belief that Sweat was armed.
As for danger, Sweat was neither charging at Cook nor running into a crowd of innocent bystanders, and there was no risk of imminent danger to anyone at that time. The only apparent threat was Sweat disappearing into the woods, which meant that Cook might have lost him. That alone wasn’t enough to unload a couple of rounds on him, no matter how terrifying his criminal record or the fact of his escape from a maximum-security prison.
Whether a police officer is a hero for doing his job is in the eye of the beholder, even if its overuse diminishes the meaning of the word and trivializes true acts of heroism. But under legal standards for use of force, the shooting of this escaped convict is questionable at best.
While few are going to feel any sympathy for Sweat, or even consider questioning the propriety of Cook having taken him down before losing him in the forest, the law as to the use of deadly force is still the law, even when the shooter is a “hero” and the target is a very wanted man.
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[…] by diamondawg19 [link] [2 […]
[…] over to Mimesis Law, the Fault Lines section, and read the above entitled post by Cristian Farias regarding whether the shooting of the escaped cop killer David Sweat was […]
It is my opinion that many, if not most officers of the law, are too quick to pull the trigger when faced with an opportunity to do so. It’s like getting your pilots’ license, but you have no plane to fly during your career. I call it trigger happy. Cook, being a firearms instructor said to have excellent aim, could have just as easily put a bullet in each of sweat’s legs, rather aiming for the torso which is clearly an aim to kill. It also questions the fitness of officers. Why couldn’t he keep up with a severely weakened and dehydrated malnurished man? Law officers should be required to maintain fitness and participate in an annual fitness test. A gun is not the only thing that makes an officer of the law powerful but apparently, that GUN is all they need. Just whip it out and shoot. Just as we’ve seen so many times in recent past. Sadly, it’s been going on since the dawn of law enforcement. The only difference now, that is creating this widespread awareness of inappropriate shootings, is the advent of portable video recorders. Until now, it was always the word of the cop that was believed. Who would believe a “bad guy”. If anyone in law enforcement is unable to rapidly make the right decision when faced with a choice to shoot or not, then perhaps they are in the wrong field, literally! How many people have been killed by law enforcement, when it wasn’t necessary. Just remember the next time you take your weapon out, BIG BROTHER IS WATCHING! Go to the range if you are chomping at the bit to fire your weapon.
[…] 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. […]
I have been thinking about the way the killing, and the capture, of the 2 convicts happened, since it ended. No one is excusing Sweat for his vicious crime, but should he have been “taken down” in this way, when he could have been captured without being shot, and shot in order to kill him? The whole circus that happened around the breakout was excessive; titilating for media. The Governor gets to act like a tough guy, as do the cops. Leaves a bad taste…
Since the common law, officers have been authorized to use deadly force to stop a fleeing felon. Here the person was a convicted murderer who had escaped from prison and was on the lam for weeks. Sweat clearly met the requirements of a fleeing felon. While the officer in question might have had several options available, who are we to review his actions from the confines of our comfortable homes and offices? The officer used a lawful option and Sweat was richly deserving of the result. Sweat made a conscious decision to make himself subject to deadly force. He had plenty of time to turn himself in. When confronted, Sweat did not immediately put his hands in the air and surrender. He intentionally played out a dangerous–and perhaps deadly–game. The officer followed the law. Sweat did not. That is how it works. Good shoot.
New York law does not permit the use of deadly force to stop a fleeing felon. The United States Constitution does not permit the use of deadly force to stop a fleeing felon (Tennessee v. Garner). Since you’re a lawyer, and you want to show how smart you are, it would probably be in your self-interest not to conclusively prove you have no clue what you’re talking about and probably would do better to get a job at Dairy Queen.
Question: Would Sgt. Cook have 11th Amendment immunity from any civil claim brought under NYS law?
My point: Not sure that NYS law really matters here because I suspect Cook may have immunity with respect to NYS law regarding excessive force. I suppose the Dannemora DA could criminally charge Cook under NYS law, but that seems like a bit of a longshot.