Razzle Dazzle
This Shooting No Diallo Case

By RICHARD STEIER

Given the sheer volume of bullets fired in the fatal shooting of Sean Bell on his wedding day, it was inevitable that the Rev. Al Sharpton and others would compare what happened to the killing of Amadou Diallo nearly eight years ago.

What is known about the incident up until now, however, suggests that the cases are not comparable, despite the police claims in each that the shooting was precipitated by a hand movement that the officers believed represented a possible reach for a gun.

The Diallo shooting was the product of horrendous decisions that began with then- Mayor Rudy Giuliani and ended with four white Street Crime Unit cops, working together for the first time and without a supervisor, opening fire on an unarmed black man who posed no discernible threat to them.

The Bell shooting is much more ambiguous, starting with the fact that it was a black officer who shot first at the car driven by Mr. Bell and, if the police version of events is accurate, only after Mr. Bell had driven the vehicle into him and then caromed off an unmarked NYPD vehicle while trying to flee the scene.

TRYING TO NAVIGATE A TREACHEROUS CASE: Mayor Bloomberg, in terming the 50 shots fired by cops in the incident that killed Sean Bell 'excessive', should have been more emphatic that he was speaking as a lay person with no special expertise in assessing what occurred; Detectives' Endowment Association President Mike Palladino (right) says his members who were involved will cooperate with the Queens District Attorney and 'I have faith that Richie Brown can do a thorough, fair and impartial investigation.'

Don't Bother Them With Details

It was therefore jarring, if not altogether surprising, to read a Nov. 30 Daily News story that began, "Even as a probe widens of a fatal shooting by cops in Queens, the details hardly matter to some New Yorkers."

Those details do matter. They will determine whether any of the officers involved are criminally charged, and if so, whether they will be convicted. Unlike in the Diallo case, where Bronx District Attorney Robert Johnson did what the facts dictated in bringing second-degree murder charges - notwithstanding an Albany jury's acquittal of the four cops - it is by no means certain that what the cops did in Mr. Bell's shooting went beyond NYPD procedural violations.

The Diallo case involved cops saying that they feared for their life when Mr. Diallo reached for what turned out to be a wallet. Even if you discount the claim of the unidentified undercover cop in the Nov. 25 shooting of Mr. Bell that he saw passenger Joseph Guzman reach toward his waistband, the cops' account of Mr. Bell's driving provides justification for the belief that their lives were in danger.

The 50 shots that were fired, and in particular the 31 that were squeezed off by a single Detective, Mike Oliver, are what have created such a furor, from the reaction in the black community to Mayor Bloomberg's remark two days after the shooting that he believed what the cops did was "excessive and unacceptable."

There has been speculation that the Mayor made that comment in an effort to tamp down racial tensions, and was willing to endure criticism from police union leaders about having compromised the rights of the cops involved to a fair hearing in the interest of keeping the city calm in the short term.

But while it would have been better had he prefaced the comment by noting that he was a layman rather than a law-enforcement professional - a point he began making later in the week - his observation was not unreasonable, and not out of line with what the general public is likely to believe. Even if, as is more than a bit possible, the cops are not criminally charged, the number of bullets Detective Oliver fired, particularly in comparison with his colleagues, figures to have a serious bearing on his future in the NYPD, despite his exemplary 12-year record until now.

Perceptions Count

The importance of public perception explains why the two cops involved in the Diallo shooting who are still police officers have not returned to patrol duty or been reissued their guns. It is also why Police Officer Richard Neri, who was never criminally charged for fatally shooting Timothy Stansbury Jr. nearly three years ago, is still desk-bound and without his gun.

But that case, too, is different from Mr. Bell's. Mr. Stansbury posed no threat; Officer Neri told the grand jury that declined to indict him that he had been startled at seeing him and that, with his gun in hand as he climbed to the roof of a Brooklyn housing project, his finger squeezed the trigger reflexively.

In that case, unlike this one, Police Commissioner Ray Kelly - who is far more qualified than Mr. Bloomberg to assess such incidents - quickly declared that there was "no justification" for the shooting. That prompted a brief and spurious call by the Patrolmen's Benevolent Association for Mr. Kelly to resign - a demand that last week was being made by less-temperate black leaders ranging from the Rev. Calvin Butts, who apparently is still upset about almost getting a parking ticket recently, and Brooklyn City Councilman Charles Barron, who even in December seems to yearn for a long, hot summer.

No criminal case was brought against Mr. Neri, but this summer he was convicted in a departmental trial, with the recommended penalty against him being the loss of 30 vacation days. Mr. Kelly, curiously, has not yet made a final determination in that matter.

But the angry feelings the Police Commissioner's initial comments generated among the rank and file produced an action that seemed as spiteful as it was perverse: the election of Mr. Neri as a PBA delegate for his housing police command.

Awful Message to Send

His fellow cops may have believed they were sending a message, but in the process they cheapened what is supposed to be a leadership position by giving it to Mr. Neri for no apparent reason other than his bad luck in unexpectedly encountering Mr. Stansbury and good luck at the grand jury. They also apparently didn't pause long enough to consider the message they were sending to the community they patrol - or the city at large - with a gesture that was as far from being street-smart as it was from being sensitive to the dead 19-year-old's family.

It was a sign that the hammerhead attitude of Mr. Giuliani's administration might have been replaced by a more temperate climate under Mr. Bloomberg, but the Us vs. Them relationship between some cops and members of the black community still lingered. The animosity and mistrust resurfaced last week in some of the community reaction to Mr. Bell's shooting.

Presuming Too Much

It could also be seen in the writing of columnists like the New York Times's Bob Herbert, who dispensed with his usual clear-eyed passion to compare this case to some of the truly disgraceful police shootings of unarmed blacks in the past. In those incidents, white juries who cleared the officers in the murders of children like Clifford Glover and Randy Evans showed such little regard for the facts that the late Justice Bruce Wright was not exaggerating by much when he declared in the late 1970s that city cops had been given a "license to kill" black residents. Long before the jury nullification that occurred in the O.J. Simpson trial, white jurors provided early examples of how it was done when judging white cops accused of killing young black males.

Referring to Mr. Bell's alleged attempt to run over the black undercover officer - who his passengers and one other witness claimed hadn't identified himself as a cop - Mr. Herbert wrote Nov. 30, "If I was in my car outside a rowdy nightclub in the wee hours of the morning and someone who looked like a club patron came running toward me, screaming and waving a gun, I would immediately slam the gearshift into drive, hit the accelerator and try to get the hell out of there. That appears to be what happened."

Mr. Herbert makes some rather large assumptions, however, about the events leading up to that moment. He contends the cops were surveilling the strip club known as Kalua Cabaret to "find evidence of prostitution, underage drinking, illegal guns." In fact, one of the subjects of their probe was the club's allegedly facilitating prostitution involving underage girls.

Key Omissions

He also makes no mention of the undercover officer's description of a confrontation that took place between Mr. Bell and another club patron and the remark allegedly made by Mr. Guzman outside the club that he was going to go get his gun.

It was that last statement, according to police, that led the undercover officer to disregard the normal procedure of allowing law-enforcement to be handled by his back-ups, choosing instead to follow Mr. Bell's group to head off any possible shooting.

There are conflicting accounts of whether the undercover cop identified himself as a police officer, and while no one has disputed that he was wearing his badge when the fatal encounter began, it's entirely possible that Mr. Bell was too focused on the gun being pointed in his direction to notice the badge.

It was not until Mr. Bell drove the car into the undercover officer that the cop fired his gun, setting off the shooting by his backups. NYPD guidelines instruct officers not to shoot at a moving vehicle unless someone inside it is armed - a directive that clearly stems from concern that if the driver is shot and loses control, it may lead to numerous other injuries. But once Mr. Bell drove the car into the undercover officer and then rammed it into the unmarked police vehicle twice, the backups may have concluded that the undercover officer's safety or their own would be seriously jeopardized unless they began shooting to disable the driver.

Victim's Poor Judgment

The incident became particularly problematic for the cops involved when no gun was found in Mr. Bell's vehicle, notwithstanding the ongoing search for a fourth man who was said to be among those in his bachelor party but disappeared from the scene during the shooting. Mr. Bell's pending wedding later that day provided a hook for the media to join in describing the killing as a tragedy.

But it also raised several questions, not the least of them why - if the undercover cop's account is truthful - Mr. Bell involved himself in a threat-laden confrontation with another club patron at 4 a.m. on the day he was to be married. The undercover's claim that Mr. Guzman spoke of getting his gun could be true and still not mean that Mr. Guzman actually had a gun to retrieve, but why would he make such a threat knowing that it could incite his club antagonist to take violent action?

None of the cops had fired their weapons before - a particularly remarkable achievement in the case of Detective Oliver, since he had showed that restraint while making more than 600 arrests during his career, including one incident where he and a partner interrupted a gunfight and arrested the two combatants.

In contrast, Mr. Bell and his two passengers each had previous arrests and were celebrating his bachelor party in a club suspected of a variety of illegal activities. It doesn't mean they did anything wrong prior to that fateful confrontation, and certainly doesn't mean that Mr. Bell deserved to die. The pasts of the parties involved, though, argue against any kind of reasonable inference that what occurred was a case of innocent men being gunned down by out-of-control cops.

More Urgent Than 'Diallo'

Until the investigation is complete, and perhaps even afterward, the sequence of events once the undercover cop confronted Mr. Bell and his passengers is likely to remain murky. But the undercover's decision, based on what he has indicated he heard outside the club, to ignore protocol and initiate the confrontation before someone else produced a gun, happened in a situation that was miles removed from what occurred on the night that Mr. Diallo was killed.

In that instance, the four officers searching for a rape suspect had a stationary target, standing alone on the steps of his building, with no reason to believe he was about to commit any crime. This should have afforded them the opportunity to position themselves so that sudden movement by Mr. Diallo in response to their calling to him would not have left them in jeopardy of being shot. Instead, they left themselves exposed, and when he reacted by reaching into his pocket, panicked when he withdrew what at least one of them believed was a gun.

In this case, until proven otherwise, the undercover officer's sense of urgency about the angry words he said he heard outside the club removed the possibility of following procedure in confronting what in this case was at least three men. If what transpired was an overreaction that was motivated by fear, Mr. Bell was no less guilty of that behavior than the officers who killed him.

Ready to Cooperate

Also in contrast with the cops charged in the Diallo case - who refused to cooperate with Bronx prosecutors - the cops involved in the Bell shooting have expressed a willingness to talk to the Queens District Attorney's Office and testify before a grand jury if one is convened. Detectives' Endowment Association President Mike Palladino, who noted that three of his four members involved in the case had to retain new lawyers after initially being represented by union attorney Phil Karasyk, said in a phone interview Dec. 1 that Queens DA Richard Brown had indicated that he wanted to gather what evidence he could from other witnesses before talking to the Detectives.

Commissioner Kelly a day earlier announced the creation of a panel to review the procedures governing undercover officers to determine whether any changes needed to be made in how they operate as a result of the Bell shooting. The panel will not, however, be looking at the case itself. And there is no way of knowing whether changes it recommends will actually make a difference if some future incident forces an undercover to depart from policy and improvise for his own sake and that of his fellow officers.

What the DA is left to sort out is whether a messy, wrenching case rises to the level of criminal misconduct by the cops. He may not produce the answers that grieving family members and the angrier voices in the community want, but what might satisfy them would not necessarily be justice.