Death In The Stairwell: The Peter Liang/Akai Gurley Shooting

1

Situation:

An unintended discharge due to startle response results in tragedy.

Lesson:

Hand-on-holstered-weapon is better than drawn gun for some danger levels. “Finger outside triggerguard” is not sufficiently specific

Suddenly, a shot rang out. This sounds like the beginning of a bad novel. In this case, it was the start signal of a tragic sequence of events ending one man’s life and ruining another’s.

November 20, 2014, Brooklyn, New York. Rookie NYPD officer Peter Liang and his partner, rookie Shaun Landau, are working vertical patrols in the Pink Houses. The terminology bears explanation. The Louis J. Pink Houses are low-income housing projects, some of the most dangerous and crime-ridden in the NYPD’s jurisdiction, resulting in extra attention from police. In the vertical patrol strategy, a pair of patrol officers takes an elevator to the top of the building. They check out the roof first, because a lot of bad stuff goes down there, and then they enter the stairwells, checking out hallways floor by floor as they descend.

Liang has a bit less than a year on the job. By now, he’s done a few hundred vertical patrols. He’s learned from the veterans, in the dangerous stairwells — often darkened by criminals who break or unscrew light bulbs — the risk is often enough to justify having your pistol drawn when you enter the area.

And now, at the Pink House at 2724 Linden Boulevard, he and his partner Landau are about to enter the stairwell from the eighth floor. The inside of the stairwell is pitch black. Left-handed, Liang takes his flashlight in his right hand as his dominant hand goes to the GLOCK 19 in his Safariland uniform holster.
Tragedy is about to strike.

“A Quick Sound”

Liang, positioned slightly ahead of his partner, draws his GLOCK 19, his trigger finger “in-register” on the frame, as he will testify later. To enter the stairwell landing from the hallway, he turns the doorknob with his support hand, and finds the heavy door difficult to open. He pushes harder, and the door moves quickly, swinging open, hitting the wall. At this moment, Liang hears a sudden sound to his left and feels his body turning toward it, all his muscles tightening in startled response.
He’s surprised and shocked when the pistol discharges.

Immediate Aftermath

Stunned, Liang steps back into the hall. As he does, running feet are heard from below in the stairwell. Liang holsters his pistol. It doesn’t occur to him or his partner the unexpected shot may have hit someone. Still on probation, Liang fears he will be fired for having the unintentional discharge. He asks Landau to call it in. Landau replies since Liang has fired the shot, it’s Liang’s duty to make the call. Should they call their sergeant by cell phone, so it won’t be misinterpreted as a shooting and bring officers racing to the scene, risking their lives? Or should they call it in over the radio?

They decide to look for where the bullet went before they call it in. As Liang enters the stairwell, he hears the sound of someone sobbing below. The officers move cautiously down the stairs. Down on the fifth floor landing, they find the source of the sound.

Akai Gurley, a 28-year-old father, is sprawled supine. He’s covered with blood and his open eyes stare sightlessly upward. The crying has come from Gurley’s companion, Melissa Butler, who’s desperately performing CPR on the shooting victim. Liang calls in.

Neither officer assists. Both will later testify they didn’t think they could perform cardio-pulmonary resuscitation better than the woman who was already doing it.
Liang walks past the tragic tableau, and slumps into tears.

Akai Gurley will not survive.

Outrage

The shooting becomes national news and triggers an outrage, particularly in New York City. The fact the shooting is cross-racial adds fuel to the fire: The dead man is African-American and the officer whose bullet killed him is the son of Chinese immigrants who grew up in NYC’s Chinatown. The Black Lives Matter movement leads the demand for arrest and trial of the cop. The Chinese-American community in the city sees it as Liang being targeted because of his ethnicity and vocally bands together on the officer’s behalf.

Adding more fuel to the fire is the ongoing controversy over the death of Eric Garner, a physically huge misdemeanor suspect who died the previous July 17 when he resisted arrest and a much smaller police officer took him down to a prone position with a neck hold widely mistaken for a choke hold.

On February 10, 2015, the grand jury indicted Peter Liang for Manslaughter in the Second Degree and Criminally Negligent Homicide along with assorted Assault, Official Misconduct and Reckless Endangerment charges.

The Trial

Trial began January 25, 2016. Liang had retained as his defense attorney Robert Brown, who began his trial law career after 16 distinguished years on the NYPD, retiring as a captain in the 5th Precinct. Second chair for the defense was Rae Downes Koshetz.

Reconstruction showed the path of the +P 124-grain Gold Dot 9mm bullet had been down the stairwell, striking the concrete wall at a sufficiently acute angle that it glanced. Akai Gurley was just stepping into the stairwell at the seventh floor level and headed downstairs when the ricocheting bullet entered his chest and pierced his heart. He had run down two flights of stairs before he collapsed.

Of the three 9mm service pistols approved by NYPD at the time — the GLOCK 19, the S&W 5946 and the double-action-only version of the SIG P226 — Liang had chosen the most popular, the G19. Like all NYPD GLOCK’s, it was fitted with the NY-2 trigger system and at the crime lab was found to have an 11.5-pound pull. No defects were found in the handgun.

The jury heard Brown elicit testimony from multiple officers on the witness stand it was common custom and practice for officers on dangerous vertical patrol to draw their pistols in circumstances such as Liang’s. But the jury was not allowed to learn a graphic example of how risky vertical patrol was. It was kept from them that during the trial itself, NYPD Officers Diara Cruz and Patrick Espiut were shot and wounded by an armed robber while doing vertical patrol in a stairwell in a Bronx housing project.

It was incontestable from the evidence only Liang’s finger could have triggered the shot, but Brown scored strong points for the defense when he cross-examined the state’s experts, called in from the Police Academy. On 2/2/17, the New York Times reported, “… Detective Joe Agosto, a firearms instructor with the New York Police Academy, said accidental gun discharges in the Police Department occurred about 20 times a year. Few, Detective Agosto said, were a result of malfunctions of the guns or triggers. ‘The finger may gravitate toward it in certain circumstances,’ he said under cross-examination by Mr. Brown. ‘There is a belief there is a tendency to reassure yourself the trigger is there,’ he added. ‘Comparable to touching your wallet.’”

When Peter Liang took the stand in his own defense, he testified, “I turned the knob with my right hand when I opened it first. I wasn’t sure, because I had a flashlight in my hand, so I turn it, push it, and it didn’t open so I open the door, push it on my right shoulder and when I — and as soon as I got in, I heard something on my left side, quick sound, and it just startled me. And the gun just went off after my body tensed up.”

The prosecution put great emphasis on neither officer having found Gurley sooner, and neither having rendered first aid. Both officers testified the woman they saw giving CPR was doing it at least as well as they could, because they weren’t confident in the skill. Landau testified he had spent only a couple of minutes on the CPR manikin at the academy and he had been given most of the answers to the written test by the instructor; Liang testified there had been nine such dummies for the 300 students in his Academy class, and he did not recall ever touching the manikin in training.

The prosecution had put forth a new theory during the trial: Liang had intentionally fired the shot.

On February 11, 2016, a year and a day after his indictment, the jury found Peter Liang guilty of Manslaughter and Official Misconduct. Under the New York sentencing guidelines Liang, now a convicted felon, was looking at 15 years of hard time.

Post Conviction

Defense attorney Brown immediately reached out for every remedy. In the defense motion to overturn the verdict he wrote, “The prosecution advanced a new theory in summation stating the defendant intentionally ‘fired a shot near towards where Akai Gurley stood,’ which is not supported by the record of the case.”

A torrent of mail in favor of leniency for Liang poured in. Robert Brown later told American Handgunner, some 40,000 letters flooded the office of Judge Danny Chun. Approximately a hundred of them, including one from me, went into technical detail.

Judge Chun subsequently wrote in his decision, “Wherefore, for the reasons stated above, the defendant’s motions for a trial order of dismissal and to set aside the jury’s guilty verdict are granted in part and denied in part. They are granted in part to the extent the guilty verdict of Manslaughter in the Second Degree (PL § 125.15[lj) is modified by this court and reduced to a guilty verdict of Criminally Negligent Homicide (PL § 125.10). In addition, this court denies the defendant’s motion to set aside the guilty verdict of Official Misconduct (PL § 195.00[21). The foregoing constitutes the decision and order of this court.”

Why were the guilty verdicts not overturned entirely? The judge wrote, “The evidence further showed at least six minutes had passed from the time the defendant fired the shot until the defendant first radioed there had been ‘an accidental discharge’ and a male had been shot (Police Radio Transmissions Transcript at 2-3). The totality of all this evidence showed the defendant deprived Mr. Gurley of the benefit of prompt emergency medical assistance from a person trained in first aid and he acted with the intent to deprive Mr. Gurley of such benefit. This type of emergency medical aid is clearly inherent in the nature of the defendant’s job.” Attorney Brown maintains Liang called it in earlier than alleged, but was in a radio dead zone.

Officer Shaun Landau was terminated from the New York City Police Department, as of course was Peter Liang. Liang was sentenced to five years probation and 800 hours of community service, and has already completed the latter, working at a senior citizen center in NYC’s Chinese community. He has been unable to obtain gainful employment since the conviction. The City of New York paid more than four million dollars in settlement to the family of Akai Gurley.

Lessons

It’s clear the officers not having given medical attention to Gurley led to a conviction for Official Misconduct. As early as the 1970’s, I sat in on training at the NYPD Firearms and Tactics Unit on City Island where it was emphasized if an officer had to shoot an offender, he or she was forbidden to approach for first aid, but instead would keep the suspect at gunpoint until responding officers arrived and cleared the person of weapons. It has long since been standard practice among emergency medical personnel not to approach a criminal suspect shot by police until the police have searched the patient for weapons. It’s a policy born in the blood of cops, EMT’s, paramedics and even Emergency Room personnel who were violently attacked and injured by wounded suspects who revived in a state of rage, or perhaps were playing possum. Obviously, however, this does not apply to shooting victims in situations like this one. I’m sure the NYPD has moved to remedy any first aid training deficiencies by now, in the wake of the Liang/Gurley incident.

Let’s talk about the shooting itself. My own involvement in this case began on January 13, 2016, when firearms instructor and author David Kenik put me in touch with Robert Brown, who was searching for an expert witness. The Liang trial dates conflicted with a murder trial I was scheduled to testify at in Montana, and I referred Brown to Dr. Roger Enoka, the leading physiologist in the field of accidental shootings. Enoka also had scheduling conflicts and could not attend the Liang trial. Enoka is the expert who defined startle response, interlimb response and postural disturbance as three main factors in unintentional discharge.

Startle response is such as might be caused by a sudden sound from one’s left. Sympathetic hand movements can be as when the right hand turns a knob while also awkwardly holding a flashlight, and has to push hard, and the left hand holding a pistol reflexively tightens as well. Postural disturbance, or loss of balance, can be consistent with pushing against a heavy door, which suddenly “gives” and the door swings hard enough to crash into a wall, as Akai Gurley’s girlfriend Melissa Butler testified happened in the instant before the shot.

The prosecution hammered home to the jury the safety standard is the finger will not enter the triggerguard unless you intend to fire. Liang was certain his trigger finger was up on the side of the frame when he drew his GLOCK 19. However, Brown elicited witness testimony among rank and file cops like Liang, finger “alongside” trigger was considered sufficient.
If the finger is properly in-register on the frame, it is above the trigger. To be alongside the trigger is for the finger to rest precariously at the front edge of the triggerguard, where any of the effects described by Dr. Enoka can cause the now-taut finger to snap back straight to the trigger. This can have an impact on the trigger of 20 pounds or more, easily defeating even the 11.5-pound NY-2 set-up or a double-action-only revolver. The heavier trigger can certainly be a safety net against unintended discharges, but it’s not by any means a 100 percent guarantee of such.

In my letter to the judge, I pointed out Liang had in fact obeyed the classic “Four Rules” of Col. Jeff Cooper. Rule One: All guns are always loaded. Liang treated his as such, muzzle down and toward the concrete wall. Rule Two: Don’t point at anything you are not prepared to see destroyed. Liang pointed the gun at a concrete wall, and this is just what the bullet hit; the cop could not have reasonably anticipated a ricochet at the exact moment someone unexpectedly walked into the path of the projectile. Rule Three: Keep your finger out of the triggerguard until you intend to fire. Liang testified he tried to do this. Perhaps “finger alongside trigger” led to his finger hitting the trigger due to the factors described above, or perhaps his finger entered the triggerguard in the subconscious trigger verification NYPD Instructor Agosto described when Robert Brown cross-examined him. Rule Four: Be certain of your target and what is behind it. Liang, the evidence proves, was in fact pointing at the concrete wall, the single safest place a drawn gun could be pointed in the stairwell.

I wish to commend Attorneys Robert Brown and Rae Downes Koshetz for their dedicated work on a very difficult case and Judge Danny Chun for his wisdom in reducing the conviction and his realistic compassion in sentencing. Peter Liang has indicated through his lawyer he does not wish to speak to the press, and respecting those wishes, I was unable to interview him for this article. He leaves us with a legacy of lessons, however, and he has my sympathy, as do the survivors of Akai Gurley.

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