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The Empire State Building Shootout and Use of Force

On Friday morning, August 24, police shot a man who had murdered a former coworker and drew a gun on them outside of the Empire State Building. The two officers shot the man dead, hitting him 7 to 9 times from fewer than 10 feet, but they also injured 9 bystanders, none fatally.

This incident illustrates how police tactics and use of force can often be a no-win situation. Despite the enormous collateral damage, NYPD Commissioner Ray Kelley and law enforcement experts stated that it appears that the two patrolmen acted properly, though the incident is still under review. To quote Eugene O’Donnell, professor of law and police studies at the leading John Jay College of Criminal Justice, “This shows there’s no safe way to have an armed confrontation on 34th Street and Fifth Avenue with someone who had just killed somebody.” The suspect had already killed one person and drew his gun on officers in front of one of New York’s biggest tourist attractions, leaving the officers with two bad options – shoot and risk hitting the crowds around them or risk being shot themselves and  having the gunmen hit bystanders. In the split second captured by a security camera here, the officers chose to shoot, firing 16 shots, some of which over-penetrated, missed, ricocheted, and fragmented, wounding 9 onlookers.

This unfortunate incident points out why so many common security, force, and gun myths are false. The gunman was shot 7 to 9 times out of a total of 16 shots fired. While this would be sloppy for Hollywood, it’s actually above average. Between 1996 and 2006, NYPD officers hit their targets 34 percent of the time, and this rate is typical nationwide. Firing at an armed, moving suspect in the heat of the moment is very different from hitting a target at the range, which is why the idea of “shoot to wound” or aiming to incapacitate a suspect is absurd and dangerous. These officers weren’t rookies either, both with 15 years on the force. While they had never fired their weapons on patrol, that too is typical. Most cops in a police shootout have never been in a similar situation.

Of the 7 to 9 shots that hit the suspect, several went through him even though the officers were aiming at his center of mass where they were most likely to hit and least likely to over-penetrate. There is little that officers can do about properly fired bullets exiting their target and hitting something or someone else, which is why law enforcement officers use hollow point bullets. Hollow points, however, are more likely to fragment, as they did here. 6 of the wounded were grazed by bullet fragments while 3 were hit by actual bullets, some or all of which ricocheted.

This shootout illustrates why there are no simple answers regarding use of force and officer related shootings. While department policy states that officers should not fire their weapons when “in their professional judgment, doing so will unnecessarily endanger innocent persons,” the gunman looked like he was about to start firing himself, which means that the shooting was almost definitely preternaturally sound. Such an outcome must be considered whenever weapons are fired in an urban center, even by trained professionals and for good reason. It also illustrates why police officers are trained and instructed to aim for the center of mass and shoot to kill. In such an encounter, trying to shoot an assailant in the arm or leg would be almost impossible and would raise the chance of missing or over-penetrating. And, as shootings are so imprecise and unpredictable, discharging a weapon outside a life and death situation would greatly raise the danger to bystanders, suspects, and police.

The high collateral damage and lack of control of this situation also highlights how dangerous an active shooter would be in a similar situation. If the incident were a surprise like this one, rather than police snipers trained and equipped to accurately take out a gunman without hitting bystanders, patrolmen unprepared for the situation would respond as they did her and there would likely be many more injured civilians.

The shootout also reinforces the importance of nonlethal methods of dealing with a suspect and deescalation. In this case, that likely wouldn’t mean tasers, pepper spray, or bean bags, as the suspect drew a gun, but ideally avoiding having the encounter in such a crowded space or apprehending him in a manner where he either doesn’t choose to draw his weapon or doesn’t have a chance to. That’s much easier said than done and perhaps impossible here, though the video makes it look like the encounter may have been under control until an officer rushed the suspect. Above all, this shootout is a reminder that force, especially deadly force, in law enforcement is rarely neat, contained, and predictable.

 Photo via AP Photo/WABC-TV

Alex Olesker

Alex Olesker

Alex Olesker is a Technology Research Analyst at Crucial Point LLC that specializes in science, technology, and security. He has experience working with law enforcement, private intelligence, multi-national corporations, and academia, and has written and lectured on terrorism, international security, infrastructure protection, investigations, intelligence, policing, cybersecurity, and analytics. Alex graduated from Georgetown University's Edmund A. Walsh School of Foreign Service.