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Cop Killings -- Will The New Laws Do Any Good?


In the wake of two fatal shootings of New York City police officers in the space of less than two weeks, the New York State Legislature sprang to action so that it could, well, appear to be springing to action.

At the end of the special legislative session, they had passed two new laws. The first increases penalties for those caught with illegal guns, while the second increases penalties for those who kill or threaten police officers. It was an impressive exercise for a legislature that routinely struggles with such tasks as passing a budget, and which has failed in its attempts to pass similar bills for several years running.

However, the more important question is whether the new laws will lead to less gun crime and fewer attacks against police officers, and that question is still an open one.

Police Shootings and the Tabloid Crusade

In the early morning hours of December 10th, off duty New York City police officer Daniel Enchautegui was shot and killed as he investigated an ongoing burglary in a neighbor’s home. According to news reports, Enchautegui identified himself as a police officer before one of the suspects shot him. Though injured, the officer apparently returned fire at least six times, hitting both suspects. Officer Enchautegui was taken to the hospital, where he died less than an hour later.

Police officers responding to Enchautegui’s call for backup arrested the two wounded suspects. The suspects were identified as 48-year old Steven Armento, and 29-year old Lillo Brancato Jr., an actor who had starred in 1993 in "A Bronx Tale," directed by Robert DeNiro, and had gone on to a recurring role in The Sopranos and minor parts in other movies. Armento and Brancato were arraigned several days later in the Bronx hospital where they were being treated, on charges including murder.

Enchautegui was the second New York City police officer killed in 2005. The first, Dillon Stewart , was killed less than two weeks earlier, on November 28th.

While the tabloids initially played up the Sopranos link, their reaction quickly turned to rage. Both the New York Daily News and the New York Post ran a series of editorials demanding that the state legislature convene a special session to increase penalties for gun crimes. An guest essay in the Daily News called for the reinstatement of the death penalty.

The Special Legislative Session

At least partly in response to these calls, on December 16th Governor George Pataki called a special session of the state legislature to consider his proposals to fight violence against police officers and trafficking of illegal firearms. Pataki’s proposed bills included authorizing the death penalty for the killing of a police officer. The Post, uncharacteristically, opposed the governor’s move as an inappropriate attempt to reinstate the death penalty through the back door, and Pataki and Senate Majority Leader Joseph Bruno eventually agreed to drop the provision. Democrats in the State Assembly were pursuing new regulations on gun dealers that would have required better record-keeping and training of employees, which they said would prevent illegal sales and assist in investigating gun crimes. The Republican-controlled State Senate opposed such measures, however, and Assembly leader Sheldon Silver agreed to drop the provision.

The Senate and Assembly reached a compromise on December 21st, passing two new bills, which Governor Pataki signed into law that evening. The bills enhance punishments for the sale and possession of illegal firearms, including making it a felony to possess three or more firearms illegally (it was previously only a felony to possess twenty or more). The bills also increase the maximum penalty for the murder of a police officer to a life sentence without the possibility of parole, and enhancing punishments for other crimes against police officers, peace officers, and corrections officers.

Will the New Laws Do Any Good?

It is easy and perhaps unfair to question the motives behind the special legislative session. Had the deaths of Officers Stewart and Enchautegui not come so close to each other, it is unlikely that these new laws would have been passed. The fatal shooting of two New York City police officers is two too many, but it is worth remembering that four officers were killed in the line of duty in 2004, unaccompanied by fevered editorial campaigns by the city’s newspapers.

But what of the merits of the laws? Will they prevent gun trafficking and violence against cops?

Supporters of the new legislation contend that the new law will send a “tough on crime” message, and deter illegal gun trafficking by increasing the penalties for those who possess and sell illegal guns in New York.

But surely enhanced penalties are not a panacea. New York already had programs in place to provide greater penalties for gun crimes. Specialized gun courts in Brooklyn and Queens, for example, have been operating for several years, and have resulted in jail time for a number of defendants who otherwise would have been given probation. In addition, many gun possession cases, especially when the defendant has a criminal record, are passed up to federal prosecutors, since penalties for gun possession are much harsher under federal law.

Moreover, studies have suggested that the certainty of punishment deters crime more effectively than the severity of punishment . With this in mind, Governor Pataki’s recent pledge to commit one hundred state police officers to work with federal Alcohol, Tobacco and Firearms agents to track illegal guns is a welcome one. According to the governor, the officers will also be deputized to make arrests in other states.

The general consensus seems to be that the new laws are a necessary first step. State legislators on both sides of the aisle have pledged to revisit the issue in the next session. In the end, however, it is likely to take more than action by the state legislature to make a real dent in the problem of illegal gun trafficking. As Mayor Michael Bloomberg argued on his weekly radio show, after the passage of the new legislation, lax gun control laws in other states fuel much of the illegal trafficking of guns that end up on New York’s streets.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 

High Profile Crimes Post Election


Mayor Michael Bloomberg won re-election in part because he fulfilled an unlikely promise he made in his first campaign four years ago -- to continue the drop in crime –- and spent millions of dollars making sure New Yorkers knew about it. Assuming you believe the numbers (and Paul Moses, writing in the Village Voice, clearly does not), major crime has decreased by 18 percent citywide since Bloomberg was first elected in 2001.

Yet for all his efforts at publicizing the drop as his major accomplishment, New Yorkers may (as a recent poll suggests) give primary credit for the drop in crime to Police Commissioner Ray Kelly and his several initiatives:

Operation Spotlight targeted the low-level, quality of life offenders that repeatedly cycle through the court system by providing stiffer penalties for these “career misdemeanants.”

Operation Impact sent floods of rookie officers and police resources into targeted “impact zones,” an initiative that Kelly credits for reducing violent crime in those neighborhoods.

Operation Atlas focused on protecting the city from future terrorist attacks.

No new Operations were promised (nor further crime-fighting strategies specified) in the re-election campaign, and if Bloomberg is not getting the credit for the good crime news of the past four years, it is probably safe to assume that he will be blamed for any bad crime news over the next four.

The bad news seems to have begun; at the end of November, the New York Post, in an article entitled Bloody Legacy, reported an increase in shootings of six percent from last year.

While crime levels remain low for now, the public perception of public safety can be easily shaped by the kind of high profile cases that have been in the news since the election last month.

Police Officer Killed in Brooklyn

Dillon Stewart, a 35-year-old New York City police officer, was shot and killed on November 28th after stopping man for running a red light in East Flatbush, Brooklyn. Reports indicate that even after being shot, Stewart continued driving after the suspect until the chase ended at a nearby parking garage.

The next day, police arrested 27-year old Allan Cameron and charged him with the murder of Stewart, as well as the attempted murder of another New York City police officer, Wiener Philippe,on November 19th. According to the New York Times, Cameron has had run-ins with the law before in both New York and Pennsylvania. Cameron was arraigned in Brooklyn after being led to the courtroom through a hallway lined with police officers.

Governor Pataki used Dillon Stewart’s death as an opportunity to call for the reinstatement of the death penalty/ Mayor Bloomberg responded by restating his opposition to capital punishment , noting that he’d “rather lock somebody up and throw away the key.” The mayor also reiterated his support for stricter gun laws. With the Post reporting that the gun used to shoot Stewart has quite a criminal history of its own, perhaps this time people will listen.

High-Profile Sexual Assaults

In recent weeks, several sexual assault cases have also gotten traction in the local media. While the Police Department’s statistics say that reported cases of rape are down 4.3 percent compared to a year ago, these cases play on some of our most basic fears about violent crime.

On November 21, two police officers were arrested and charged with sexually abusing a woman while they were on duty. The officers allegedly attempted to assault the woman after stopping her car in Bushwick, Brooklyn, then followed her back to her apartment where the assault continued.

More prominent has been the case of Peter Braunstein, which has captivated the local papers and television news for much of November. According to reports ( “An assailant on the loose. A city in fear,” said the Daily News), the police suspect that Braunstein, a former journalist, is the man who attacked a Chelsea woman on Halloween night. Police say he dressed up as a firefighter, and set several small fires to get into the woman’s apartment, where he assaulted her. But Braunstein has remained at large, and New Yorkers are reporting Braunstein sightings all over town -- a cafe, a dry cleaner, etc.

Extended Sentences and Increased DNA Collection

Governor George Pataki and Manhattan District Attorney Robert Morgenthau have both recently called for an end to the five-year statute of limitations for rape cases . With backlogs at DNA laboratories and delays in identifying perpetrators even where a DNA sample exists, there have been cases where police have identified probable rapists too late to bring charges. In Manhattan, prosecutors have attempted to bring so-called “John Doe indictments” where they have a DNA profile but do not know a perpetrator’s identity. However, as the Daily News notes, only thirty-two such indictments have been handed up, and the legality of the practice is an open question.

The governor has also advocated for a law requiring the state to collect DNA samples from anyone convicted of a crime, including misdemeanors. In a statement , Pataki said that expanding DNA collection will help “convict the guilty, exonerate the innocent, and bring justice to victims.” Opponents argue that such a measure is an invasion of privacy, and brings the potential for abuse. Those who might look to DNA as a panacea would also be wise to recall recent large-scale foul ups at DNA labs in Virginia and Houston, Texas as suggesting that the technology is still vulnerable to human error.

An even more questionable strategy has been the attempts to keep sex offenders locked up after their prison terms have run out. On November 15th, Manhattan judge Jacqueline Silbermann ordered the state to release twelve individuals who had been involuntarily committed to state psychiatric hospitals following their state prison sentences. Noting that, for example, two of the men had been diagnosed only with Antisocial Personality Disorder (a diagnosis shared by 75 percent of the prison population, and, one imagines, many outside the prison population), Judge Silbermann said that the twelve (dubbed “The Dirty Dozen” by the tabloids) were being held in violation of state law. Governor Pataki responded by locking up fourteen more offenders , and appealed the judge’s ruling to a higher court, where he was granted a stay.

Bloomberg stopped short of endorsing Pataki’s tactics, instead calling on the legislature to impose higher mandatory sentences for sex offenders, including up to life in prison. D.A. Morgenthau has called for a similar change in the law.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 

Gun Control And The New Federal Law Shielding Gun Manufacturers From Lawsuits


When President George W. Bush signed the newly-passed Protection of Lawful Commerce in Arms Act (in pdf format) into law on October 26th, it marked a major victory for the National Rifle Association and gun manufacturers, who have been pushing for the legislation for years. It also marked a tremendous defeat for New York City and the many other cities that have pending lawsuits against the gun industry.

The law is specifically designed to end those lawsuits. It specifically exempts firearm manufacturers, distributors, dealers, and importers from civil liability for injuries and deaths caused by their products (it was quite a week for shielding big business, as the House of Representatives also passed the so-called “Cheeseburger Bill,” which prohibits lawsuits against fast food restaurants for causing obesity). While the law allows lawsuits in the case of a defective gun or criminal conduct by a manufacturer or dealer, it prohibits lawsuits of the kind filed by numerous individuals and municipalities, including New York City, and calls for any pending suits to be dismissed immediately.

The Protection of Lawful Commerce in Arms Act is also likely to frustrate local efforts to control the flow of guns into New York City. The City Council passed a law in January (in pdf format) that allows victims of gun violence to sue gun manufacturers and dealers who have not adopted strict standards to prevent illegal trafficking. Manufacturers and dealers that abide by those standards are exempt from being sued. While the city’s lawyers will likely argue otherwise, it is likely that the new federal law effectively overturns the city’s law.

Supporters of shielding the gun industry from liability argue that it is necessary to protect firearms manufacturers from “frivolous” and “reckless” lawsuits designed to bankrupt the gun industry. Opponents, on the other hand, argue that the ability to sue is necessary to hold gun manufacturers and dealers responsible for negligent practices that result in shooting deaths.

A Brief Issue In The Mayoral Campaign

Fallout from the law’s passage even entered into the mayoral campaign. Fernando Ferrer criticized Mayor Michael Bloomberg’s contributions to six members of Congress who voted to pass the bill, and suggested that the mayor had “joined the gun lobby.” In criticizing the law and the mayor, Ferrer pointed out that shootings have increased by six percent this year over the same period in 2004(in pdf format), even as crime in the city has decreased overall. Bloomberg, who had lobbied against the new law, released a statement after the bill passed, calling it “a disgraceful piece of legislation” that “will make it easier for criminals to get firearms and put our law enforcement officers at greater risk.”

Are the Lawsuits Effective in Preventing Gun Violence?

At best, it remains an open question whether the recent spate of lawsuits is an effective way to deter gun crime. Opponents of gun control argue that there is no evidence to suggest that gun control reduces violent crime, and that it may in fact increase crime by taking guns out of the hands of law-abiding citizens. Lawsuits, they say, are an attempt by gun control advocates to bankrupt gun manufacturers.

However, the lawsuits that have been filed against the gun industry in recent years have been focused not on gun sales to law abiding citizens, but against what the suits claim is negligent behavior by gun manufacturers and dealers that allows guns to wind up in the hands of criminals. Evidence suggests that a small number of dealers are responsible for selling a majority of the guns used in crimes.

New York City’s lawsuit attempted to show that many of the guns used in crimes here in New York are originally sold in states with weaker gun control laws and brought to the city illegally. For example, the New York Post reported on October 15th that authorities had arrested a man suspected of bringing as many as 75 illegal firearms into New York City in less than a year. The suspect was allegedly part of a ring that purchased the guns in Virginia and sold them on the streets of New York. Virginia recently weakened a state law limiting the number of handguns a single individual could purchase in a month, a law initially passed in an attempt to curb gun smuggling.

The theory behind the litigation is similar to efforts in recent decades to use lawsuits to improve the safety of a number of consumer goods, from automobiles to children’s toys. Individuals and cities filing these lawsuits hope to give gun manufacturers and dealers the financial incentive to do what they can to prevent this illegal gun trafficking.

Is the Liability Shield Necessary?

While proponents of shielding gun manufacturers from lawsuits argue that such a measure is needed to discourage frivolous lawsuits, the irony is that the legal system has been doing a good job, in New York City and elsewhere, of weeding out the lawsuits that are without merit. In 2001, for instance, New York’s highest court, the Court of Appeals, overturned a Brooklyn jury’s verdict that had awarded close to four million dollars in damages to Stephen Fox, who was permanently disabled after being shot by a friend. In the case, Hamilton v. Baretta U.S.A., the court argued in part that “the connection between defendants, the criminal wrongdoers and plaintiffs is remote, running through several links in a chain,” and thus legal liability for the manufacturers was inappropriate. Similarly, a federal judge in Brooklyn dismissed a suit brought by the National Association for the Advancement of Colored People (NAACP), saying that the organization had failed to prove its public nuisance claim against the gun industry’s marketing practices. And a New York State appellate court found the trial court had properly dismissed another nuisance lawsuit , this one filed by Attorney General Eliot Spitzer on behalf of the state.

Yet the lawsuit filed by New York City seemed to have avoided the problems that doomed the attempts by Stephen Fox, the NAACP, and New York State. In fact, the same judge that dismissed the NAACP’s suit allowed the city’s to go forward (in pdf format). Now that the Protection of Lawful Commerce in Arms Act has become law, it is likely only a matter of time before the city’s suit is also dismissed. Any attempt to invoke the local law passed by the City Council in January is also likely to fail.

Gun control opponents could be right when they claim that lawsuits against the gun industry will not reduce gun crimes. Now, because of the new liability shield law, New York City will not have an opportunity to find out.

David Dean, a student at New York University School of Law, worked as a policy analyst in the Mayor's Office of the Criminal Justice Coordinator. 



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