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Police Shooting: A Five-Year Quest for Justice

A still from the video surveillance footage taken outside Ramarley Graham's family home showing Officer Richard Haste trying to enter and another NYPD officer, gun drawn, February 2, 2012
A still from the video surveillance footage taken outside Ramarley Graham’s family home showing Officer Richard Haste trying to enter and another NYPD officer, gun drawn, walking toward the driveway, February 2, 2012

In the national conversation about police violence, the name Ramarley Graham has been far less present than Mike Brown’s, Eric Garner’s, Freddie Gray’s, or Sandra Bland’s. This may be because Black Lives Matter was not yet a national movement when eighteen-year-old Graham was fatally shot in February 2012 by an NYPD officer. In fact, it was just weeks before Trayvon Martin’s death brought the issues of police brutality and institutionalized racism to widespread national attention.

A great deal has happened in the five years since—including Trump’s decision to replace the civil rights page on WhiteHouse.gov with one titled “Standing Up for Our Law Enforcement Community.” And so it was that a couple of hundred people turned out on Thursday evening in downtown Manhattan’s Foley Square to protest Graham’s killing five years ago to the day. Organized by the Justice Committee and its umbrella organization, Communities United for Police Reform, the action aimed to call attention to the difficulty of achieving police accountability in cases like Graham’s. 

While the city of New York has reached a multimillion-dollar settlement with the victim’s family for a wrongful-death, attempts to indict Richard Haste, the NYPD officer who shot Graham, have ultimately been unsuccessful. But there is still one more resource: the NYPD has pursued its own investigation of Haste and its administrative trial against him came to an end last month. During the trial, witnesses and police experts showed that multiple police protocols had been ignored in the events leading up to the shooting. A final verdict is now pending and could result in Haste’s dismissal from the force.

On the day Graham was killed, he had been with friends near his home in the Wakefield neighborhood of the Bronx when he was identified by two NYPD narcotics officers on Haste’s team as suspicious. The officers told their supervising sergeant over the police radio that Graham was armed—though this was later shown to be false. Haste and his fellow officers rushed to follow Graham into the three-family home he entered on East 229th Street, where Graham and his family lived. Inside, Haste shot one round at Graham, who was pronounced dead on arrival at the hospital. No gun was found, but a small bag of marijuana was retrieved. Graham’s grandmother and six-year-old brother were also at home nearby when Graham was shot.

Four months after the shooting, Haste was indicted by a grand jury, but in 2013 a judge threw out the case on the technicality that the prosecutor had given improper instructions to the jurors. A second grand jury declined to indict the officer. Last year the department of justice decided that there wasn’t enough evidence to pursue civil rights charges. And in late January, in his administrative trial, Haste was tried by NYPD for poor police tactics and poor judgment leading to the discharge of his firearm—the first disciplinary trial of an officer involved in an unarmed civilian’s death that Police Commissioner James O’Neill will decide.

During the five years since the shooting, Graham’s mother, Constance Malcolm, has been organizing marches, rallies, and memorials for justice for her son. On Thursday, she published an op-ed in The New York Times noting that, “Across the country, we’ve made little real progress on police reform even though there is more national attention to the problem.” She adds, “[Mayor Bill] de Blasio exploits the rhetoric of social justice but is unwilling to make the changes to achieve it. He has done nothing to meaningfully fix the systemic accountability problems at the Police Department.” Malcolm has been part of a movement uniting mothers of children killed by police across the country and in New York—including Sean Bell’s mother Valerie and Amadou Diallo’s mother Kadiatou. Hawa, the mother of Mohamed Bah, and Carol, mother of Kimani Gray, along with Eric Garner’s mother, Gwen Carr, spoke at Thursday night’s gathering.

“We’re in a club we never asked to be in,” Malcolm has said. Often called the Mothers of the Movement, some of these women—including Geneva Reed-Veal, the mother of Sandra Bland—participated in the Democratic Convention this past summer. Others appeared at the recent Women’s March in Washington, D.C., when Janelle Monae called them onstage during her performance and led the crowd in a call and response to chant the names of the children these mothers had lost.

Malcolm and Graham’s father, Frank Graham, have worked tirelessly to have Haste criminally prosecuted. They’ve had the support of organizations like the Justice Committee and Make the Road New York, the NAACP legal defense fund, Moms Rising, the Center for Constitutional Rights, and others. But it is very rare that an officer is prosecuted, let alone convicted, for killing a civilian while on duty.

According to an analysis by The Washington Post and researchers at Bowling Green State University, fifty-four officers were charged for fatally shooting someone while on duty between 2005 and 2015, while thousands of fatal police shootings have occurred during that time (963 in 2016 alone). One reason is the 1989 Supreme Court’s legal standard for use of force, Graham v. Connor, which says that “use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” and cautions against harshly judging police for decisions made in “tense, uncertain and rapidly evolving” situations.

Haste’s administrative trial is the final opportunity for punitive justice in his case. “My purpose is to make sure [Haste] is fired so that another mom or dad isn’t in my position,” Malcolm said at a press conference between hearings on January 17 outside 1 Police Plaza. “I’m not asking for anything special, just justice. Just what’s deserved.”

Ramarley Graham with his little brother, Chinnor Campbell, and his grandmother, Patricia Hartley
Ramarley Graham with his little brother, Chinnor Campbell, and his grandmother, Patricia Hartley, undated

On February 2, 2012, Haste was assigned to the 47th precinct’s Street Narcotics Unit (SNU) to watch areas known for drug activity, along with five other colleagues, including two who also face disciplinary charges: Sergeant Scott Morris, for failure to supervise, and Officer John Mcloughlin, for improperly entering Graham’s apartment.

Since 2012, when he was stripped of his gun and shield and reassigned to the Fleet Services Division, which repairs and maintains police vehicles, Haste’s salary has increased nearly $31,000 to $94,364 in 2016 according to the nonprofit Empire Center for Public Policy. Haste, whose legal defense is paid for by the Patrolmen’s Benevolent Association, is represented by Michael Martinez and Stuart London, who is partner at Worth, Longworth & London, LLP, a firm that defends law enforcement officers—and has also defended Daniel Pantaleo, the officer who killed Eric Garner in a chokehold, a technique banned by police rules, on Staten Island in 2014.

On January 17, the first day of hearings—which were open to the public—department prosecutors Beth Douglas and Nancy Slater, representing the Department Advocate’s Office (DAO), attested that several SNU protocols were not followed the day of Graham’s shooting, including the fact that neither Haste nor Mcloughlin had the required street narcotics training. Officer Tyrone Horne and Officer Andrew Jarvis—who’ve both been promoted to detective since 2012—were in an observation car on Haste’s SNU team when they saw Graham enter and exit a bodega known for drug activity, referred to as the “ice box,” and testified that he appeared to be “walking with purpose” and fiddling with the waistband of his pants. They testified that they’d believed they’d seen a gun protruding from Graham’s waistband that day and they’d called in the sighting to Sergeant Morris over radio dispatch.

Video surveillance footage shows Graham walking to the front door of his house at 3 PM and entering. Just after the door closes behind him, Officer Haste appears in the frame. He runs up to the door and tries to open it by the handle, and then with a kick, but the door won’t open. Another officer follows him, gun drawn. They continue attempting to enter.

Three minutes pass before a tenant lets Haste in through a back door and Sergeant Morris follows. Haste and his lawyers allege that Mr. Dixon, a neighbor, allowed entry. (But—and this was not mentioned in the trial—Graham’s family and supporters believe that an eight-year-old child who also lived there opened the door, and they argue that in either case, Haste’s drawn gun complicated consent.)

Once inside, Haste let the other officers in through the front door, according to testimony. The officers left the outside of the house unattended—reckless behavior, prosecutors argued, that risked potential ambush or the suspect’s escape. Establishing, maintaining, and securing a perimeter would have been proper protocol in such a situation. “The rules are simple,” prosecutor Douglas said. “Isolate and contain.”

Officers Haste and Mcloughlin then ran up the stairs and stood at the second floor apartment door, guns drawn, while Sergeant Morris and Officer Chris Crocitto remained on the stairs. Given that Graham was behind a locked apartment door, expert witnesses said that the incident should no longer have been treated as a hot pursuit. Absent gun shots, cries for help, or other indications of an emergency, the protocol was to seek cover and call for back-up.

Without their sergeant’s instruction, Mcloughlin kicked down the door and Haste entered, Mcloughlin behind him. Inspector Gregory Sheehan, the Commanding Officer for the Special Training Section of the NYPD, was called by the DOA as an expert witness on tactical policies and procedures. Sheehan confirmed that Haste violated multiple protocols specified in the NYPD Patrol Guide. Two witnesses, experts on firearms and tactics, and weapons and tactics, respectively, testified that Haste and other officers did not have authority to breach the door and enter Graham’s apartment.

On day four of the trial, Haste testified that after he entered the apartment, when he directed Graham to stop and “show me your hands”—which Haste maintained he said three times—Graham cursed and pivoted into the bathroom. Haste followed, and alleges that Graham said, “Fuck you, get the fuck out of here” and reached for his waistband. Then Haste yelled, “Gun, gun!” and fired one shot. Haste testified that what he did was justified and that he protected himself and his team. He said, “I was not pleased with the result.”

Not discussed in the trial was the fact that, according to Graham’s grandmother, Patricia Hartley—and detailed in a suit filed in the Bronx Supreme Court—after Haste shot Graham she tried to go to her grandson and Haste shoved her, put a gun to her head, and said, “Get the fuck away before I have to shoot you, too.” A representative of the Office of the Deputy Commissioner, Public Information (DCPI) said that no civilian witnesses were called by NYPD because the trial focused on police procedures and tactics, something civilians don’t know anything about. (Though a department trial like this one has its own rules and conventions, it’s not unheard-of for civilians to testify—and in this case, they could potentially have corroborated or disputed the testimonies of the officers who were there that day and testified about non-technical information.)

Throughout the trial London stressed that Haste perceived that Graham was an armed danger to civilians. “Officer Haste thought he would lose his life” that day, London said. He referenced the NYPD’s Firearms Discharge Review Board 2014 conclusion that Haste exhibited poor tactical judgment, yet found that the shooting itself was within department guidelines. Not only is this finding extremely uncommon, it seemed to many to be strange logic. Emphasized by London throughout the trial to demonstrate Haste’s innocence, some observers questioned the overall coherence of this finding, which seems to assume that a shooting can be judged completely apart from the circumstances in which it occurs: that though Haste was judged to be tactically compromised, and dangerously so, his choice to shoot—once it got to that point, by way of his own tactical failure—was justified.

London focused his closing remarks on the argument that any procedural violation was not Haste’s fault. Implicitly invoking Graham v. Connor, he argued that officers shouldn’t be judged for the difficult split-second decisions they must make, citing two past cases where officers accused of poor tactics leading to death weren’t fired but faced discipline through vacation loss, or the charges were dismissed—a standard that would trouble those already wary of NYPD’s tendency to protect officers from discipline after misconduct.

London argued that Haste has been made a scapegoat. And someone who believes that Haste should be fired might agree. Although London presumably understands scapegoating to exonerate Haste’s behavior, it might imply instead that the law enforcement community at large is guilty too. Limiting the case to Haste limits questions about the overall handling of the incident, and there are many questions about what happened February 2, 2012 that go beyond Haste—questions the NYPD’s actions have signaled that they want to avoid.

The trial didn’t address the fact that Graham’s grandmother was questioned for seven hours after the shooting; attorney Royce Russell of Emdin & Russell, the firm representing the family, said he was told by police he couldn’t speak with his client. At a press conference following the trial, Paulette Minzie, a landlord for the building who was upstairs on the third floor that day, described one of the officers pointing a gun at her face. (In 2014 the city settled a lawsuit with Minzie and her family.) More than a dozen people, including the five officers and one sergeant on duty, as well as first responders, detectives, precinct supervisor, bureau supervisor, and many others who can be seen streaming into and out of the house on the video surveillance footage were there that day. And there are those who wrote up and signed off on the reports afterward, including the decision by the Firearms Discharge Review Board that poor tactical judgment was found, yet the shooting itself was within department guidelines. (This decision has not been made public, and Freedom of Information Law requests have gone unanswered.)

A single paragraph in the police department’s 2012 report on police shootings is the only police document released that describes Haste’s shooting of Graham—and it fails to mention that Graham was unarmed. It does, however, describe Graham’s criminal history. The results of a review of the killing ordered by then-police commissioner Raymond Kelly, a stop and frisk proponent, have never been released. Former NYPD Spokesman Paul Browne initially told the media that there was a struggle between Graham and Haste; the following day Kelly reported there was none.

Prosecutor Slater focused her closing remarks on the “hostage-barricaded persons” section of the police patrol guide, which details that tactical policy would have been to call back-up rather than to break down the apartment door. Following summations on January 23, activists and supporters of Graham’s family stood in the courtroom, holding signs and chanting, “Fire Richard Haste, fire Richard Haste,” before Deputy Commissioner Rosemarie Maldonado banged her gavel. “Please, let’s leave in an orderly fashion.”

Constance Malcolm, Ramarley Graham's mother, Foley Square, Manhattan, February 2, 2017
Lucy McKeon
Constance Malcolm, Ramarley Graham’s mother, Foley Square, Manhattan, February 2, 2017

At a press conference held after the final hearing, outside 1 Police Plaza, Constance Malcolm reminded the crowd that Graham’s grandmother and his younger brother, Chinnor, now eleven—who flanked her—were just feet away when Graham was shot.

Brooklyn Councilmember Jumaane Williams also spoke, comparing “walking with a purpose”—the phrase used to describe officers’ initial suspicion of Graham—to the infamous “furtive movement” often used to justify stop and frisk. Mayor de Blasio, who campaigned on criminal justice reform and against stop and frisk, has been rebuked for his refusal to end broken windows policing and to decriminalize low-level offenses like turnstile jumping (which he could do by turning them into civil rather than criminal offenses—a concern for some immigrants now, facing potential deportation after Trump’s immigration order).

New York City Council’s Black, Latino, & Asian Caucus recently sent a letter to the mayor and Police Commissioner O’Neill, criticizing the city’s handling of the investigation and disciplinary process surrounding Graham’s killing. The Graham family has sent multiple letters and requests for more information, with no response—they’ve most recently filed a Freedom of Information request, which has not been answered.

“The system failed me so many times I have no hope in them,” said Malcolm.

Graham’s family and supporters have expressed frustration that inaccurate police accounts seem to have shaped the general account of what happened before the shooting. For example, the suggestion that there was a chase, which has been reported by various local news organizations, continues to be recirculated despite the existence of video showing Graham walking, not running. (He looks behind him, as if wondering if he’s being followed, before he closes the door behind him and Haste comes into camera view.) Video has played a central part in many of the recent cases of police violence that have spread nationally (Eric Garner in 2014, Alton Sterling and Philando Castile in 2016) and some have advocated police body cameras with the idea that having an objective record of what happened would lead to fairer trials. But a video recording doesn’t guarantee accountability.

Deputy Commissioner Maldonado will pass her opinion to Commissioner O’Neill, who will issue a final decision. He can choose to overturn Maldonado’s recommendation. It’s worth noting that the Firearms Discharge Review Board decision of 2014 was forwarded to then-Commissioner Bill Bratton while O’Neill was Chief of Departments—in effect pre-authorizing the conclusion that the shooting was within department guidelines. There’s no limitation on how long it might take O’Neill to come to a decision, and according to DCPI, there’s no opportunity for appeal.

But O’Neill’s decision still may not be made public because of the city administration’s recent interpretation of section 50-A of the state Civil Rights law shielding certain NYPD records. In the past decades, the law had never been interpreted to afford so much secrecy to police disciplinary records. It’s now at the center of a lawsuit filed by the Legal Aid Society, a continuing legal battle over the records of Officer Pantaleo, who killed Eric Garner. On January 25, NYPD Deputy Commissioner Kevin Richardson assured media that Graham’s family will be informed of the decision.

At Thursday’s protest, people gathered in Foley Square as twilight set in, then night. Among the groups represented were the Justice Committee, Black Lives Matter New York, Jews for Racial and Economic Justice (JFREJ), and Showing Up for Racial Justice (SURJ), as well as a large number of youth from Make the Road New York, who held signs and led chants, and Women’s March co-chair and longtime activist Tamika Mallory. Councilmember Andy King, a longstanding supporter of the family, also spoke, and the Peace Poets led the crowd in song. On Facebook, organizers urged supporters to call the mayor’s office to demand Haste’s dismissal.

They later marched across the Brooklyn Bridge, and finally to Borough Hall, where Yemeni-American bodega owners and taxi drivers had been rallying earlier in the day against Trump’s immigration order. But before the walking even began, as a couple of helicopters buzzed by overhead, Constance Malcolm said, “We’re tired, but we’re strong. We’re gonna keep marching until we can’t march anymore.” Going over the events for what must have been the millionth time, she shook her head. “It’s five years later and still there is no gun. So what did they see?”

Protesters participating in a "die-in" during the action on Thursday night, Foley Square, Manhattan, February 2, 2017
Lucy McKeon
Protesters participating in a “die-in” during the action on Thursday night, Foley Square, Manhattan, February 2, 2017