BRONX — The Bronx District Attorney will investigate the fatal NYPD shooting of a mentally ill woman after the state Attorney General determined he has no jurisdiction over the case because the woman was armed with a bat when she was shot dead, officials said.
Eric Schneiderman said that "after reviewing the available facts and evidence, our Special Investigations and Prosecutions Unit has determined that this incident falls beyond my office’s jurisdiction under the Governor’s Executive Order."
Gov. Andrew Cuomo created an executive order in July 2015 that gave the state Attorney General power to take over as a special prosecutor from local district attorneys in investigating fatal police shootings in cases where the victims were “unarmed."
The edict also provides the AG with leeway to take a case if “in his opinion, there is a significant question as to whether the civilian was armed and dangerous at the time of his or her death.”
But sources told DNAinfo New York that even a liberal interpretation of the law did not provide Schneiderman will the grounds to step in.
When Sergeant Hugh Barry was called to respond to the home of Bronx woman Deborah Danner on Tuesday night, he initially found her armed with a scissor, police said.
After he spoke with her for some time, she put the scissors down, but then allegedly picked up a bat and swung it at Sergeant Barry's head before he fired two shots, killing her, officials said.
According to sources in the attorney general’s office, the only people in the room with Danner were officers who said she had a scissors and then charged the sergeant with a bat.
People outside the apartment also heard officers telling Danner to “drop it.” Given those facts, there was not a “significant question" of whether Danner was armed and dangerous, which would negate the AG's claim to the case, sources said.
Still, Schneiderman’s office believes that Barry didn’t follow proper protocol, an opinion shared by Mayor Bill de Blasio and NYPD Commissioner James O'Neill.
"Ms. Danner's death is a tragedy that never should have happened. From the moment my office received the news, our Special Investigations and Prosecutions Unit commenced a rigorous review of the evidence. I believe there is no question this case must be investigated," Schneiderman said in a statement.
Mayor de Blasio went further, saying in a press conference hours after the shooting that "Deborah Danner should be alive right now. Period."
The mayor added that Barry could have used his taser instead of his gun, or waited for experienced professionals to come to deal with Danner in a nonviolent way, as others had done in prior calls to her home.
NYPD Commissioner James O’Neill also roundly criticized Barry for not following NYPD protocols involving emotionally disturbed people, and put Barry, an eight year veteran, on modified assignment shortly after the shooting and stripped him of his badge and gun.
Since being given authority in certain police fatal shootings, Schneiderman has declined to take over several cases, but he recently won an indictment against an off-duty officer who shot and killed a motorist during a so-called "road rage” case.
Bronx District Attorney Darcel Clark assigned Wanda Perez-Maldonado, chief of the Public Integrity Bureau, to lead the office's investigation.
“I intend to conduct a full, reasoned and independent investigation into this matter, with an open mind, and any decisions that I make will be based upon the evidence," Clark said in a statement.
Bronx Borough President Ruben Diaz Jr., who had called for Schneiderman to investigate Danner's death, said he accepted the attorney general's decision.
"I appreciate his swift review of this case," Diaz said. “Moving forward, I have the utmost confidence in Bronx District Attorney Darcel D. Clark and her staff to conduct a thorough investigation of this shooting and the circumstances surrounding the death of Ms. Danner."
But Communities United for Police Reform said they were both "disappointed and disagree" with Schneiderman's decision.
Criminal justice reform advocates called for the executive order because they believed that local district attorneys have a natural conflict of interest when it comes to investigating the police because the two agencies work so closely together to gain convictions.
Anthonine Pierre, a spokeswoman for the group, said Danner's death was "an unjustifiable killing triggered by acknowledged violations of NYPD protocols."
Pierre also said that the actions and decisions of Barry and other officers on the scene that led to Danner's death, and whether they were "reckless," are still unknown and need to be thoroughly investigated.
"It is now incumbent upon Bronx DA Clark to conduct a comprehensive and transparent investigation that examines the actions of all public officials involved in this failure that brought such an unnecessary tragedy," said Pierre.