Policing experts weighing whether NYPD officers were justified when they shot at and hit an alleged fare-evader on a crowded subway platform Sunday say the answer hinges on whether it was reasonable for the officers to believe that they or others were in imminent danger.
The shooting left an officer with minor injuries and three people critically injured, including two bystanders and 37-year-old Derell Mickles, who police accused of walking past the turnstiles without paying the fare. Police experts say the incident raises questions about how officers are enforcing fare evasion and whether they’re following de-escalation protocol.
“It’s the reasonableness in the eyes of the officer at the time,” said former NYPD Lieutenant Chris Mercado, now a professor at John Jay College of Criminal Justice. “If that officer felt it was reasonable, that’s what they’re allowed and they’re going to have to explain in court.”
Police said Mickles avoided officers as he walked toward the L train platform at the Sutter Avenue station in Brownsville, Brooklyn. NYPD officials said he threatened the officers, who responded by firing their Tasers. Officials said the Tasers did not work and Mickles then pulled out a knife, which led to the officers firing their guns.
According to police, the knife recovered from the scene was not the knife Mickles had when officers shot him. Officials said Mickles’ knife was taken from the scene and another knife was left behind by a fleeing passenger.
According to a witness to the incident, the two police officers engaged in a walking pursuit of Mickles onto a subway car. Just before Mickles entered the subway car, the officers ordered him to drop the knife, he said.
“I never saw a knife, but I don’t think I saw both of his hands,” David LaFauci said in a phone interview. “His hands are behind his back and the officers are yelling at him and he’s trying to stay away from them.”
According to LaFauci, after the officers ordered Mickles to drop the knife, they then approached within a foot of Mickles and a small scuffle ensued. Mickles then walked away from the officers. At least one officer fired his Taser, but it did not stop Mickles, he said.
“He was pretty quiet the whole time,” he said. “He was walking away when they tased him, definitely.”
LaFauci said he was not interviewed by police following the incident despite waiting on the platform.
According to Mercado, officers would be justified in firing a Taser at someone walking away if he was reaching for or brandishing a knife. He said body camera footage and how officers articulate their concern will determine the justification for the shooting.
Another policing expert said it’s not solely the safety of officers that investigators will consider, but also the safety of others on the platform.
Jill Snider, a former NYPD officer who now serves as an adjunct lecturer at John Jay College of Criminal Justice, said the NYPD applies a 21-foot standard to people with knives.
“If [officers] were within that 21-foot zone of safety, or there were other people who could potentially get injured we’d have to progress to our firearm,” she said.
Snider said the shooting as described does appear justified, but she hopes officers at least tried de-escalation tactics, such as talking to Mickles.
“The use of force protocol would be: suspect with a knife, a lot of innocent bystanders, Taser didn’t work, then you do generally go to your firearm,” she said.
A third expert, retired NYPD detective Dennis Jones, questioned whether such aggressive enforcement of fare evasion was within current NYPD protocol. In an interview, Jones said the department regularly updates guidelines on which crimes are worthy of pursuit based on outside circumstances, such as pressure from elected officials.
“Protocols always change when someone says ‘okay, we want all fair beaters, go out there and get me 100 fair beaters,’” Jones said. “It could be, ‘oh, we missed one or go after them with guns glaring and chase this guy several blocks just because of three dollars.’”