Fault Lines
22 May 2017

Peter Liang: The Wrong Trial Of The Wrong Cop

Jan. 25, 2016 (Mimesis Law) — In a post last week about a Long Island trial, the focus was the vitally important distinction between a tragic accident and a homicide. Oddly enough, here in Brooklyn, opening statements are scheduled for today in the homicide trial of NYPD Officer Peter Liang.  Odd because every indication is that Peter Liang’s defense will also be that what occurred on the night of November 14, 2014, was not a homicide, but rather a tragic accident.

Unlike the Long Island case of James Ryan, where after a DWI accident, five to ten minutes later a motorist crashed into responding Officer Joseph Olivieri, Peter Liang shot and killed Akai Gurley. There will be no dispute in this trial over the fact that Liang discharged his firearm, the bullet ricocheted and struck and struck Gurley.  Actually, almost none of the central facts in Liang’s trial are even in dispute.

Liang and his partner were conducting something called a “vertical patrol” in the Pink Houses projects of East New York.  Vertical patrols have been a controversial practice of the NYPD for years, where younger, generally inexperienced officers go into project buildings and walk the hallways of each floor, from top to bottom (hence “vertical”).  The Pink Houses are considered by many, including myself, to be Brooklyn’s most violent and dangerous project complex.

During the patrol, Liang entered an unlit stairwell with his gun drawn. While in the stairwell, for whatever reason, the officer fired once, the bullet ricocheted off a wall and struck Gurley in the chest on the floor below.

In February of 2015, newly-elected Brooklyn District Attorney Ken Thompson announced a nine-count indictment against Liang that included manslaughter and homicide charges.

Advocates for police accountability welcomed the criminal charges and contrasted the grand jury’s result in Brooklyn — where Mr. Thompson, who took office last year, has championed criminal justice reform — with the decision reached two months earlier by a Staten Island grand jury in the police killing of Eric Garner. In that case, the grand jury found no basis for charges against an officer who used a chokehold, a tactic banned by the Police Department, to restrain Mr. Garner before his death.

The death of Mr. Gurley, who was black, inflamed anew the national protests over the use of deadly force by officers on unarmed black men, including Mr. Garner and Michael Brown, who was fatally shot in Ferguson, Mo., in August.

Although Thompson claims that his office’s decision to prosecute Liang was completely independent and unrelated to the high-profile cases from Staten Island and Ferguson, it is impossible not to notice the correlation.  On the one hand, Staten Island’s then-District Attorney Daniel Donovan (now Congressman) purposefully failed to indict Officer Daniel Pantaleo for the choking death of Eric Garner that was caught on video. It is not a ludicrous assumption that DA Thompson wanted an indictment against the comparatively far less culpable Liang.  The connection between the two cases has not escaped notice by the police reform movement.

But is the attention to the Liang case deserved? Unlike so many other instances where police have shot and killed, no one, not even the staunchest cop-hater, is suggesting that Liang intentionally shot and killed Akai Gurley.  Liang’s defense team will argue to the jury that Gurley’s death was a tragic accident, and that their client did not have the requisite criminal state of mind necessary to find him guilty beyond a reasonable doubt.  At the other table, the prosecutors will argue that although Gurley’s death seemed like an accident, Liang acted with such recklessness by unholstering his gun and placing his finger on the trigger that he is criminally liable for the resulting death.

The trial itself should be fascinating in that the jury will not be asked to pore over hours of surveillance video or weigh the merits of two completely different narratives. They will be asked to think, and think very hard.

Overall, the trial should break down to two main questions of fact and interpretation. First, was it legally reasonable for Liang to not only draw his gun but to finger the trigger under the circumstances?  The test for whether it was legally reasonable is not whether you or I would have pulled a gun out before walking into that stairwell.  The test is whether a “reasonable police officer” would have.  This question is not an easy one and will require the jury to consider everything surrounding Liang’s decision, including whether it was really a decision at all.

Second, was the pulling of the trigger that fired the fatal bullet an accident? If this is the question that will decide Liang’s fate, then an acquittal on the manslaughter and homicide charges is likely.  Even a novice defense attorney should be able to convince a jury that the discharge of a single bullet under similar circumstances was accidental.  A jury will probably understand the common maxim that accidents do happen.

So it would seem as though the prosecution, if they are to have any hope of conviction, will have to focus all of their efforts on the first question. Was it reckless for Liang to draw his gun under the circumstances?  Was it reckless for him to have his finger on the trigger while he opened the door to the stairwell?

This is the prosecution’s best bet, but only because they have no other bets. It will be quite difficult to convince a jury that it was legally unreasonable, beyond a reasonable doubt, for Liang to have taken his gun out and handled it as he did.  Will a jury analyze his every movement and decision or will they determine that cops have guns and sometimes those guns go off accidentally?

Put aside all the other things that have latched onto this case. Liang was sent into those projects because they are dangerous.  Getting spooked and pulling out one’s firearm while patrolling the Pink Houses might be an indication that Liang does not have what it takes to be a cop.  But that is a far cry from convincing twelve jurors that he is guilty of homicide beyond a reasonable doubt.

As much rational outrage as there is out there from the deaths of so many people like Akai Gurley, it does not erase the fact that he died much differently than others with names like Garner, Rice and Brown. In each of those cases, each officer committed an intentional act targeted at the deceased.  Akai Gurley was not the target of Liang’s action, and the intent of whether he meant to fire that gun at all is very much in dispute.

14 Comments on this post.

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  • The Curious Quiet Around Peter Liang | Simple Justice
    25 January 2016 at 8:49 am - Reply

    […] Fault Lines, Ken Womble sees the defense of Liang as a fairly easy sell, that the prosecution lacks the goods […]

  • Burgers Allday
    25 January 2016 at 10:36 am - Reply

    “the intent of whether he meant to fire that gun at all is very much in dispute.”

    that doesn’t seem correctly stated.

    seems like you eant to say:

    –the level of intent with respect to the firing of the gun is very much in disputer–

    That re-statement is more consistent with the rest of your artie.

  • Noxx
    25 January 2016 at 11:47 am - Reply

    “Pore”, not “pour”. Defeated by a homophone, and yet I’m working for a living.

    Regardless. It is instilled in all persons trained to handle firearms, that one does not place the finger on the trigger until the sights are on the target, and the decision to fire has been made. This is not a “guideline”, but a deeply drilled fundamental of weapons handling.

    Liangs failure to observe the proper procedure for handling a deadly weapon rises to level of recklessness, as anyone with even an hour of firearms training is aware of the probable outcome of carelessness.

    His intent to fire is immaterial. He clearly intended to disregard the core rules of firearms handling, and the predictable, some would say inevitable, outcome came to pass.

    • shg
      25 January 2016 at 12:26 pm - Reply

      The errant homophone is my fault. Don’t be a hater.

    • Ken Womble
      25 January 2016 at 12:47 pm - Reply

      Grammar shmammar.

      I get that guns aren’t supposed to go off accidentally. Will be interesting to see if the prosecution or defense makes an issue out of the mechanics of Liang’s firearm.

    • dm
      25 January 2016 at 1:43 pm - Reply

      The problem lies with the phenomenon known as sympathetic muscle contraction. This has written about my Massad Ayoob and other firearm trainers. His finger may well not have been resting on the trigger, but may have instead been resting on the front of the trigger guard. However, once his squeezing action on the door handle occurred, especially if done while the adrenaline was dumping, his trigger finger may have sympathetically contracted along with the rest of his fingers which resulted in the trigger finger involuntarily falling onto the trigger and the gun discharging.
      see the following for a paper on the phenomenon: https://fortress.wa.gov/cjtc/www/images/docs/classes/Firearms_Patrol_Rifle_Instructor_2014/Section%2015%20Resources.pdf

  • Keith
    25 January 2016 at 3:55 pm - Reply

    “Getting spooked and pulling out one’s firearm while patrolling the Pink Houses might be an indication that Liang does not have what it takes to be a cop.”

    Is there an indication that he pulled his gun out because of something he heard or witnessed, as opposed to being his standard procedure on vertical patrols? Would it help to prove recklessness if the NYPD had a policy regarding when firearms could be drawn? I know it was reported that the NYPD policy is vague on the requirements here.

    Either way, I’m guessing it wouldn’t make a difference as to intent though.

    • Ken Womble
      26 January 2016 at 9:42 am - Reply

      As far as police policy, I will refer you to SHG’s article today over at SJ as well as the fact that Officer Daniel Pantaleo choked Eric Garner to death in clear violation of the NYPD’s ‘no chokehold’ policy. I will be interested to see to what extent the prosecution plans to introduce evidence of NYPD firearm policy. It would shock me if the defense did not have a room full of officers willing to come in and testify that the job is tough and discretion regarding officer safety is paramount.

  • DaveL
    26 January 2016 at 8:53 am - Reply

    I don’t buy that he didn’t intend to fire the gun, or that he didn’t intend to fire it towards Gurley. The NYPD has its triggers specially modified to have an enormous trigger pull force, about 12 lbs, comparable to a double-action revolver. This is also one of the reasons why the NYPD is legendary for poor marksmanship. That Liang would miss Gurley even though intending to shoot at him is utterly unremarkable.

    • shg
      26 January 2016 at 9:33 am - Reply

      A rather long leap from trigger pull force to intentional murder. Hope you have very long legs.

    • Ken Womble
      26 January 2016 at 9:44 am - Reply

      “or that he didn’t intend to fire it at Gurley.” The bullet ricocheted off a wall and bounced back down to the level below and hit Gurley. There was a brick wall and a floor separating Liang and Gurley. He was an 18 month rookie, not a trick shot specialist.

      • DaveL
        26 January 2016 at 10:58 am - Reply

        Ken, I’ve been looking for a proper diagram of the crime scene and bullet trajectory. Clearly you’ve had more success than I have. Could you post a link, please?

        • Ken Womble
          26 January 2016 at 11:04 am - Reply
          • DaveL
            26 January 2016 at 11:21 am -

            Ken, other crime scene pictures showing the 7th and 8th floor landings do not match the one shown at WNYC. That one has no door in evidence, no “7A” marking, and an extra pipe or conduit that does not show up in other photos of the 7th floor landing. Other sources state that Gurley was “14 steps” below Liang at the time, which would be consistent with them being separated by one flight of stairs, but not by two flights with an intervening landing. It looks like a straight line of sight.