The Empire State Building Shooting And The Appropriate Use Of Force

The fact that yesterday's shooting at the Empire State Building resulted in nine civilians being injured by police bullets raises several questions.

As James Joyner has already noted, it’s now apparent that all nine of the civilians injured in yesterday’s shooting at the Empire State Building were shot by police bullets. This raises several questions about the police actions themselves, as well as the attitude of some gun rights activists regarding the appropriateness of the use of force in public. The entire incident was captured by nearby surveillance cameras and, if you wish, you can watch it here, although I will warn that it is somewhat graphic. Watching the video, though, it becomes eminently clear that Johnson did not fire a weapon at all, although he does quite clearly pull it out of the bag he was carrying and point it at the officers, which is obviously what prompted the shootout.

The incident raises several questions because of the way that it went down. First of all, there’s the question of whether or not the police acted properly under the circumstances.  Was it appropriate to open fire on a crowded street in the middle of the morning rush hour, for example. I am loath to second guess the police in these kind of circumstances, though. These two officers had just been told that the man on the street had shot someone inside of a store in the head (five times it turns out) and here he was outside on a busy sidewalk. Once he pulled his gun out and pointed at the cops, all bets were off. Even from a distance of ten feet away, they couldn’t know if the gun had one bullet in it, whether it was fully loaded, or whether the gunman had additional cartridges that would allow him to reload easily. There was no option other than taking him out before he endangered anyone else on the street, or the officers themselves. That’s why police carry guns, after all.

The second question is one that Glenn Reynolds deals with in a post this morning:

UPDATE: I’m getting a lot of email here suggesting that NYPD can’t shoot. That may or may not be true, but I don’t think this incident proves anying. From a distance of “less than 10 feet” (the NYT story says 8 feet, but it’s not like anyone was measuring) I can put 16 out of 16 rounds into the x-ring pretty much every time, even one-handed with my left hand. But that’s at the range, with nobody shooting at me. Being out and about, with your blood pumping, and facing someone else who’s pointing a gun at you, it’s a whole different story.

Not to mention the fact that, as the video indicates, Johnson was, for at least a portion of the time of the shootout, standing behind a large concrete planter. Under those circumstances, it’s not surprising that there were some ricochets. This entire event went down in a manner of less than ten seconds, so reaction time was  critical. It is odd, though, that out of the sixteen shots fired by the officers, more than half of them missed their target. That doesn’t put a whole lot of confidence in my mind about the ability of a New York police officer to cleanly take out a threat. There may be more to this incident that I’m unaware of, obviously, and that may explain why there were so many stray and ricocheting bullets. However, I would think that the people of New York would be well-placed to ask some questions of just what went wrong here.

This incident also brings to mind something that came up in the aftermath of the shooting in Aurora, Colorado. At the time, many gun advocates said that one armed person in the theater would have been able to stop Holmes before he caused as much damage as  he did. I’m a strong supporter of the 2nd Amendment, but I’ve got to say that this incident provides some pretty stark proof that those people were, most likely, wrong. Here was an incident out in public where two men who are trained professionally to react to situations like this still managed to misfire enough to cause (minor) injuries to bystanders. Do the people advocating that theory about Aurora think that the situation in the theater than night would have been any different? At the best, an armed citizen would have ended up in shootout with Holmes, who had far superior weaponry to anything that someone with a Concealed Carry permit would be carrying. Inevitably, people would have been hurt in the crossfire, and possibly killed. In the end, given the protection that Holmes was wearing, it’s unlikely that he would’ve even been injured.

That’s not to say that there haven’t been incidents in which someone with a CCW permit prevented a crime or saved someone’s life. Indeed, at nearly the same time as the Aurora shooting, a 71 year-old man in Florida used his gun to thwart an armed robbery at an Internet Cafe. Most of those incidents, though, have been one-on-one situations, rather than the shootout in a crowded area variety that we saw yesterday in New York and, if some people had had their way, last month in Aurora. A responsible gun owner, of course, would know when not to get involved in one of these situations, but it’s quite apparent that there are wanna-be heroes out there who don’t know any better. They’d be best to leave their guns at home, though, because the last thing we need is a bunch of people wandering around looking to be vigilantes.

FILED UNDER: Crime, Guns and Gun Control,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed for too young in July 2021.

Comments

  1. Me Me Me says:

    They’d be best to leave their guns at home,

    You do realize, don’t you, that the pat response of the NRA and the other gun fetishists is exactly the opposite? That events like this and like Aurora and all the others will be stopped in the future by more people packing heat?

    Think what the impact of the crossfire will be in school shootings if the NRA get their way and teachers and students are allowed to carry in the classroom.

  2. al-Ameda says:

    America has a gun fetish. 310M people, over 250M guns, and the conservative response is, “not enough guns.”

    It seems that in police departments across the country, officers are now trained to use deadly force in so many situations that, in my opinion, could be handled without that level of force. Was this one of them? I do not know. A tragedy to be sure, but we’re lucky that only one innocent person was killed in this incident.

  3. Brian says:

    Mataconis does not even address the primary argument offerred by pro-gun advocates – that a community full of armed, trained civilians would have naturally deterred such an incident as the Aurora massacre from even occurring. Would this guy in New York have tried what he did, if NYC was not such a criminal-friendly zone? Would he have been able to easily get a gun, if society had better-established methods for licensing, training, and background checks (which should arise with popular acceptance and support for 2nd amendment rights), rather than some poorly-maintained, disconnected government databases and continually-varying state and local laws?

  4. mantis says:

    it’s now apparent that all nine of the civilians injured in yesterday’s shooting at the Empire State Building were shot by police bullets

    If those nine civilians had guns too, they would have been fine.

  5. al-Ameda says:

    @Brian:

    Would this guy in New York have tried what he did, if NYC was not such a criminal-friendly zone?

    You do realize of course that the incidence of violent crime is lower in Manhattan than in most large cities in America?

  6. Jeff says:

    Would this guy in New York have tried what he did, if NYC was not such a criminal-friendly zone?

    Probably. What he did was murder one guy. That happens everywhere. Mass public shootings, not so much. That wasn’t what he was doing, but the cops probably thought it was.

  7. JKB says:

    Most big city police are not gun enthusiasts and only shoot to qualify and in their training. This goes double for NYC where it is very difficult to engage in shooting as a sport or hobby. Training among police varies widely even in the same department. Plus, you never really know how you’ll react until you are in the situation. But being police only means that you may have encountered more shooting situations or that you may have had more high priced training. But it doesn’t imply whether that training took. A uniform or membership in a army or police force is not required to remain calm under fire and to fire effectively.

    As for Aurora, you are making a wild assumption that someone would just start shooting back from within the crowd. Possible but also likely someone who’d prepared by carrying would maneuver to fire with a clean background. However, in Aurora, some one carrying would know that they would most likely only disrupt the killer, permitting more people to escape while the killer targeted you. Body armor or not, and I read the reports of body armor were exaggerated, lead hitting you is distracting and generally provokes a response.

    Yes, there is always a chance someone will respond with a firearm wrongly but as we see often those people are the police. He came to bear so deadly force is appropriate although obviously unwise. The officers should have fallen back on their training to consider their background although in extremis stopping a threat even though citizens are gunned down is considered appropriate.

    There was no option other than taking him out before he endangered anyone else on the street, or the officers themselves. That’s why police carry guns, after all.

    Actually, police carry guns for self defense like everyone else. They have no obligation to defend or protect private citizens. If they leave you to die, there may be political fallout but the SCOTUS has ruled it is their right. The difference, is the police may provoke the hostile action by executing their duties otherwise the firearm is for self defense just like when non-law enforcement aren’t disarmed.

  8. JKB says:

    @mantis: If those nine civilians had guns too, they would have been fine.

    Not necessarily. But as people who carry they might have been cognizant of the fact if the police show up, you life could be endangered by the police or criminals and you should leave the area of police action as quickly as possible.

  9. Facebones says:

    At the time, many gun advocates said that one armed person in the theater would have been able to stop Holmes before he caused as much damage as he did. I’m a strong supporter of the 2nd Amendment, but I’ve got to say that this incident provides some pretty stark proof that those people were, most likely, wrong. Here was an incident out in public where two men who are trained professionally to react to situations like this still managed to misfire enough to cause (minor) injuries to bystanders.

    Doug, nothing will convince the gun lovers that arming more people is not the answer. They’ll just think “Yeah, but I wasn’t in that theatre! I would have made all the difference!”

  10. Brian says:

    @Facebones: Or they’ll provide a rational argument, rather than the strawman you attribute to them.

  11. Gustopher says:

    We should be developing longer range tasters for things like this, but the police would just use them against peaceful protesters.

  12. rdb says:

    @Brian: NYC as criminal-friendly? Whoa…I find NYC to be the most militarized city in America. The police presence there is nuts…notice how the construction worker found police officers almost immediately? I was in Penn Station that morning and there was a huge group of national guard w/ rifles and handguns. And this is typical. Penn Station is two blocks from where this happened.

  13. My own thoughts – not very different – are at “Murphy’s Laws of Police Operations.”

    From a comment:

    For years I have laughed at the assertion that only police should be allowed to carry handguns because they are trained professionals. …

    Cops operate in a sweet spot: High Authroity [sic], Low Accountability. When they screw up, i.e., shoot innocent bystanders, they don’t pay. The taxpayers do, via the govt entity sued.

    Civilian CCWers operate in the opposite corner: Low Authority, High Accountability.

    Who do you think will exercise more discretion concerning the use of deadly force?

    Seems to have a point.

  14. @JKB:
    “Actually, police carry guns for self defense like everyone else. They have no obligation to defend or protect private citizens.”

    This is an important point. Cops are not soldiers. They are not required to put their lives at risk, though many do.

    There is no particular reason to expect that a cop is more skilled in marksmanship than an average gun owner (which is to say, not very good). Look at the video Doug linked to and ask yourself whether firing 16 times (according to the NYT) and missing more than half from 8-10 feet constitutes reasonable use of force.

    I don’t blame them for firing. I do blame them for missing. But instead of causing a severe internal look inside the NYPD, my bet is that the two cops will be given awards and Mayor Bloomberg will cite the incident as how devoted the department is to protecting the citizens.

  15. Brian says:

    Can someone please demonstrate the validity of the argument that nobody should be allowed the possibility to defend themselves with firearms in any situation because of how somebody acted with a firearm in one situation? If this is not the rationale of anti-gun advocates, then please modify it with the specific situations/individuals that should be permissible, and then demonstrate the validity of your modified argument..

    Given that these police officers likely will (or at least, should) be reprimanded for their behavior, isn’t that a clear indication that there is a proper way to act, which they did not follow? For starters, running straight up to an armed gunman, rather than standing back, taking aim, and ordering him to the ground? These cops made mistakes before the incident went out of control. I can’t see how we can go from that fact to the claim that a) most people would act just as poorly in such a situation, and b) therefore they shouldn’t be allowed to defend themselves with firearms.

  16. Brian says:

    @rdb: I only meant “criminal-friendly” in the sense that average citizens – who are the only people criminals will target – are made impotent in their ability to defend themselves. I don’t care how heavy the police presence is – criminals will go where the cops are not, and go after anyone they can.

  17. Facebones says:

    @Brian: It’s been a month since Aurora. Still waiting for an argument in favor of the audience carrying concealed that didn’t sound like it came from someone who’d been playing Halo for too long.

  18. @Brian:
    “… a proper way to act, which they did not follow? For starters, running straight up to an armed gunman, rather than standing back, taking aim, and ordering him to the ground?”

    My take on the video on The Telegraph’s web site is that the two cops concerned were behind the shooter, Johnson, trying to catch up to him to jump him, not shoot him. Because Johnson was not at that time (the beginning of the video when he walks into frame) actually brandishing his gun, I think that the video demonstrates the police were most likely intending to physically put him down and take him into custody.

    Then Johnson displays his pistol and clearly points it at one of the cops. So they fire, which is not clearly a bad decision. I think I would have fired, too! As I said above, I don’t blame them for firing, I blame them for missing him more than half their shots and so injuring nine passersby.

    I mean, really: If a police officer is more likely to miss than hit from only 8-10 feet away, shouldn’t we be reluctant to issue cops a gun?

  19. Brian says:

    @Facebones: Scroll up to mine:

    “A community full of armed, trained civilians would have naturally deterred such an incident as the Aurora massacre from even occurring.”

  20. Brian says:

    @Donald Sensing: I did not say the cops should have shot him. I said they should have gotten in range, taken a safe stance, aimed, and then ordered him to the ground. Instead we see the cops running straight up to him from behind, trying to jump him, and then being shocked when he realizes they’re coming and turns around. Then when they have to shoot in self-defense, they just start spraying bullets. They did not handle the situation properly at all.

  21. bill says:

    population density is reason #1, i’m sure if the wacky shooter had more ammo and unloaded into the crowd you’d be jeering the cops for not putting him down quickly. i saw the video, they did what they had to and nobody else died. i’m sure a few lawyers may have been injured rising to acquire clients so they can sue the cops, city, anyone remotely involved…..
    meanwhile in chicago……another gun control haven…..19 shot overnight. not even news anymore.

  22. Peter says:

    The real irony is that if Johnson had surrendered after shooting his former co-worker he might well have gotten off with a fairly light sentence, perhaps a brief stay in a psychiatric facility. His actions may not have been a legally justifiable homicide, but they came fairly close. By trying to start the Shootout at the O.K. Corral with the cops, however, he changed everything. Very bad move.

  23. mattb says:

    @Donald Sensing:

    I mean, really: If a police officer is more likely to miss than hit from only 8-10 feet away, shouldn’t we be reluctant to issue cops a gun?

    The ability to accurately fire at the range is entirely different from the ability to accurately fire under pressure.

    Beyond that the presence of mind to correctly engage training under real pressure — i.e. live fire — is difficult for anyone, and especially those who are experiencing it for the first time.

    Again, to Doug’s point, this should not be taken necessarily as an argument against CCW. But it demonstrates exactly where the “if only someone was armed” story entirely breaks down.

    And given that the conditions of this particular incident were arguably nowhere near as bad as Aurora, it demonstrates what could easily have gone wrong in a scenario that was far more chaotic and far less optimal if there had been people there who had reacted in equally poor ways.

    And yes, it’s entirely possible that someone *might* have not had such a poor reaction. But ask yourself, honestly, if it’s more or less likely than what happened in New York.

  24. mattb says:

    @Brian:

    Can someone please demonstrate the validity of the argument that nobody should be allowed the possibility to defend themselves with firearms in any situation because of how somebody acted with a firearm in one situation?

    This is fundamentally *NOT* the argument that many of us are making. What we are suggesting is that pretending that an armed citizenry would somehow prevent either these sorts of confrontations (where one person seriously wants the other one dead) or mass shootings like the two recent ones is largely BS.

    Likewise we’re also pointing out how this provides important counter evidence to some of the loudmouths who appear after mass shootings on sites like OTB and complain that if only one of the “sheeple” in the audience had a gun then the gunman would have been shot (not to mention that most of those who push this line the loudest don’t carry and can’t be bothered to do the work or training to actually understand how difficult it would be to responsibly use a gun in that situation because they’re too busy masturbating to Tom Clancy novels and The Expendables).

  25. stonetools says:

    In the comics the Lone Ranger shoots the gun out of the bad guy’s hand from 30 feet away by firing a revolver from the hip. Why didn’t the cops do that. :-).

    The citing of the Florida case just goes to show that the plural of anecdote is not data. The question should not be:

    Can someone with a CCW permit prevent a crime or saved someone’s life.

    but :

    How likely is it someone with a CCW permit will prevent a crime or saved someone’s life.

    I think that the answer to the second question is “Highly unlikely”. Independent study is needed in this area. In the quick look at the Internet, I saw pages of results pointing to “studies” by the notably unreliable John Lott and other NRA hacks . I never found any kind of independent study. If some one knows of a truly independent study, I would be obliged.

  26. Dazedandconfused says:

    First off, the number of misses and hits on the perp given in the press can not be trusted, and it’s quite possible some of those rounds when through him first.

    They were both exceptionally unlucky in the number of bystanders, and exceptionally lucky that none of them died.

    They were both going for head shots in the last part. They were trained not to do that, and will probably beat themselves up pretty bad for it.

  27. @mattb:
    “The ability to accurately fire at the range is entirely different from the ability to accurately fire under pressure.”

    Exactly the point I made in my own post about this, “Murphy’s Laws of Police Operations,” namely:

    I carried a pistol for a long time in the Army but I never had to gunfight with it. But just time spent in competitive pistol shoots was quite enough to teach me that accurate pistoleering is difficult. I always qualified expert, but no shot can be taken for granted. Under stress, heart rate elevated, moving target, fear factored in – very hard to shoot well.

    I don’t know what the cops could have done except engage Johnson when they believed he was about to shoot at them. I guess I would have, too. But over and over, I come back to this: 16 shots from 10 feet away? And they miss more than half?

    The more I think about this, the more I conclude that nine civilians shot by two cops who were shooting, however justifiably, at a man no more than 10 feet away, well, that is hard to justify,

  28. Laurence Bachmann says:

    You don’t think the fact that the NYPD being lousy shots proves anything or is relevant to their firing decisions? You described a scene (and cameras confirm) where two officers are TEN feet from the perp. NINE bystanders are wounded. But you don’t want to second guess their choice. What would make you question it–if they had shot each other?

  29. matt says:

    Just wanted to comment on the whole body armor thing. Even if you’re wearing modern body armor a direct hit from a rifle bullet is quite painful. IF you’re lucky you’ll only be left with a nasty bruise and if you’re unlucky a broken rib or some such thing. Even military grade body armor gives you a nasty thump when hit..

  30. Facebones says:

    @Brian: Right, because a well armed citizenry would have prevented someone from becoming schizophrenic. Have you submitted this theory to the New England Journal of Medicine?

  31. Carson says:

    @JKB: Mayor Bloomberg should check into having more firing range practice for his police officers, maybe hire some first class marksmen/snipers out of the military. Mayor Bloomberg is too preoccupied with what the citizens are eating and the size of their soft drinks.

  32. mattb says:

    @Donald Sensing:

    The more I think about this, the more I conclude that nine civilians shot by two cops who were shooting, however justifiably, at a man no more than 10 feet away, well, that is hard to justify.

    Actually, from my own research, this seems surprisingly standard when people, not under cover, are exchanging fire at close quarters. That said, Dazedandconfused offers a really important point:

    @Dazedandconfused:

    They were both going for head shots in the last part. They were trained not to do that, and will probably beat themselves up pretty bad for it.

    If that was the case, and they weren’t targeting center of mass, it explains a hell of a lot and is a prime example of how, under pressure and fear for your life, all of your training can go out the window as the natural human instinct to go after the face takes over.

    On a related side note, I humbly submit @Carson as a prime example of the type of person who is far too busy masturbating to Tom Clancy and the Expendables to actually know much about actual gun defense and application.

    For example:

    maybe hire some first class marksmen/snipers out of the military.

    You realize that good snipers, in particular, rarely engage in direct firefights? Right?

    In fact, the entire idea of sniping is to take the person out without ever being seen or fired at. That’s a completely different scenario than having to draw, take aim, and fire when you are exposed and someone is pointing a gun at you…

  33. anjin-san says:

    I used to go to the range a lot, I was pretty accurate with a .22, anything larger, not so much. And that was back in the days when I did not need glasses. As others have mentioned, those are controlled conditions with no pressure.

    The idea of carrying a loaded weapon in the name of self defense strikes me as idiocy. You are much more likely to end up as another George Zimmermann than as the acton hero some folks in here fantasize about becoming. If someone is that concerned about their personal safety, I would recommend getting into Krav Maga.

  34. Rafer Janders says:

    @Brian:

    Would this guy in New York have tried what he did, if NYC was not such a criminal-friendly zone?

    What a stupid thing to write. New York City is by most measures the safest big city in the country. There’s less crime in NY that in most of America.

  35. Rafer Janders says:

    @Brian:

    I only meant “criminal-friendly” in the sense that average citizens – who are the only people criminals will target – are made impotent in their ability to defend themselves.

    Aha. In this sense, then, Switzerland, Japan, Sweden, Canada, etc. are “criminal friendly” while Iraq, Afghanistan, and Somalia are not.

    I leave it to the reader to judge in which type of society they’re actually more likely to be the victims of a violent crime.

  36. al-Ameda says:

    @Donald Sensing:

    The more I think about this, the more I conclude that nine civilians shot by two cops who were shooting, however justifiably, at a man no more than 10 feet away, well, that is hard to justify,

    You make very good points about the stress of being in a dangerous situation.

    My father was a police officer in San Francisco for thirty years, the first 20 years of which were in tough neighborhoods and high crime districts. He was well-trained and very good marksmen. He tells me that he never fired his weapon in the line of duty in his 30 years on the force, although he sometimes found himself in some dangerous situations where he had his weapon drawn and so forth. Those were the 50s, 60s, and early 70s – not exactly a low crime era in metropolitan America.

    These are different times to be sure, yet I still believe that police officers today use deadly force far more often than they did back in his day.

  37. matt says:

    @Rafer Janders: NY isn’t as safe as they’d like you to believe. Did you miss the scandals involving the heads of police departments forcing their officers to under report crimes? Be the victim of a crime in New York city and you’ll likely be faced with officers who don’t want to report it and will try to talk you out of reporting the crime..

    For example.
    http://www.reuters.com/article/2012/03/09/us-crime-newyork-statistics-idUSBRE82818620120309

    You can find plenty more information with a little time using google.

  38. Brian says:

    Mataconis: “two men who are trained professionally”

    Please present evidence that these two men did more “training” than just shooting the 50 rounds required every 6 months to requalify. Until then, you don’t have an argument. I shoot that much every week, and many concealed carriers do way more than that.

  39. mattb says:

    @anjin-san:

    The idea of carrying a loaded weapon in the name of self defense strikes me as idiocy.

    Carrying any weapon for self defense is idiocy, unless you are (a) committed to actually doing the training work to know how to use the weapon, (b) keep the weapon on you in a way that allows it to be used, and (c) completely committed to be willing to use the weapon (if push comes to shove) and live the ramifications.

    All that said, guns are, in many respects, a better self defense tool than, say, a knife (though the knife is a hell of a lot more useful for the day-to-day tasks that you are far more likely to encounter) or pepper spray.

    If someone is that concerned about their personal safety, I would recommend getting into Krav Maga.

    For what it’s worth, Krav is OK, though typically vastly overpriced, when it comes to straight self defense. They have one hell of a marketing arm.

    If all you are interested in is self defense, my highest recommendation is to seek out a certified Blauer System Instructor (http://www.tonyblauer.com/), especially one offering PDR or Personal Defense Readiness (PDR) classes. Far more applicable and tactical training than Krav Maga or just about any other self defense program out there (happy to explain why if someone is curious).

    That said, if you’re more interested in Self Protection than Self Defense, any medium to high intensity-cardio martial art (or other sport for that matter) which , among other things, teaches stretching and how to fall is probably going to be far more applicable and useful than PDR, Krav Maga, or carrying a gun when it comes to ensuring that you live a longer, healthier, and free of major injuries life.

  40. mattb says:

    @Rafer Janders:

    In this sense [per capita gun ownership], then, Switzerland, Japan, Sweden, Canada, etc. are “criminal friendly” while Iraq, Afghanistan, and Somalia are not.

    No offense, but if I’m reading your comment correctly, you need to revisit your facts. I can’t speak for Sweden or Canada, but Switzerland has extremely high gun “ownerships” rate due to the compulsory military service.

    http://en.wikipedia.org/wiki/Gun_politics_in_Switzerland

  41. mattb says:

    @al-Ameda:

    yet I still believe that police officers today use deadly force far more often than they did back in his day.

    It would be interesting to dig into those rates. I suspect that actually isn’t the case.

    But there’s a big caveat to that, the rise of “non lethal” devices — i.e. tazers. If those got counted as “shootings” I do expect that the percentage of “deadly force” cases would exceed stuff from “back in the day.”

  42. Rafer Janders says:

    @mattb:

    You’re not quite reading it correctly. While Switzerland has high per capita gun ownership, it has low rates of actually carrying weapons on a day to day basis. The guns that Swiss people own are assault rifles and other weapons to be used during their compulsory two weeks a year of military service, and are generally stored at home in locked gun safes or closets. The Swiss don’t otherwise walk about carrying concealed weapons that they could use on the street in a situation such as this.

  43. Brian says:

    See here: NPYD officer reveals the poor firearms training in their department

    Mataconis’ argument has been invalidated at this point.