NEW YORK CITY — The state laws that will be used to determine if a retired corrections officer will face charges in this week's fatal subway shooting sets the bar extremely high for civilians to use deadly force and limits the actions they may take in making arrests, legal experts say.
Gerald Shargel, a noted defense attorney, said that “in fact, in New York, you actually have a duty to retreat if you are in fear of getting hurt, and if you use deadly force you can only use it to meet deadly force.”
In Tuesday’s fatal encounter, retired guard William Groomes, 69, got into a verbal and physical dispute with two unarmed young men while riding a 4 train heading into Brooklyn.
Groomes later told investigators he was cursed at, punched in the head, and then twice pushed onto an empty seat, after which he announced he was an “officer” and was going to arrest them.
As a retired correction officer, Groomes does not have peace officer status and so is treated as a civilian by the law. Retired police officers also are not considered peace officers.
Under New York state law, peace officers have the power to make warrantless arrests and use physical and deadly force in making an arrest or preventing an escape.
Pulling out a licensed .380 Ruger, Groomes followed the duo onto the platform at the Borough Hall station in Brooklyn and shot and one of them, Gilbert Drogheo, 32, during the confrontation.
Groomes has not been charged, but Brooklyn District Attorney Kenneth Thompson is weighing presenting evidence to a grand jury.
Experts say the law is extremely narrow in permitting the use of deadly force.
According to the penal law for a citizen's arrest, a civilian “may use physical force, other than deadly physical force,” when they “reasonably believe” they need it to make an arrest or prevent someone’s escape from custody.
The statute also stipulates that they can only use deadly force if they are confronted with “the use or imminent use of deadly force.”
Shargel pointed out that another penal code states that before someone uses deadly force, they have to decide if they can safely retreat and defuse the situation without resorting to killing someone.
“What might really hurt Mr. Groomes is that New York does not have 'Stand Your Ground' and basically requires people to avoid using deadly force," he explained.
Based on the facts so far, Shargel noted that “Mr. Groomes essentially went looking for” the person he wound up killing.
Another legal expert who is a former top prosecutor agreed that it would be difficult for Groomes to argue that he was justified — unless evidence shows the death came at the end of a second separate “encounter” during which he can prove he had no other choice but firing.
Barry Slotnick, who successfully defended so-called "Subway Vigilante" Bernie Goetz for shooting four teens who surrounded him in a subway car decades ago, explained that the state toughened the statutes in the wake of Goetz's legal victory.
Prior to the infamous 1980s case, the law allowed a defendant to claim he or she had the right to fire because of "a personal perception" of imminent danger.
After Goetz, the state raised the bar by ruling the fear could not merely be "personal," but had to be the kind that the "average reasonable person" would have in that same situation.
Slotnick said this seemingly subtle shift may make all the difference in Groomes' defense, and whether the 69-year-old ex-jail guard faces his own possible imprisonment.