An odd encounter on Seventh Street near Times Square resulted in police officers shooting 51-year-old Darrius H. Kennedy, reports The New York Times. Kennedy was allegedly skipping backwards in front of a Chipotle, waving around an IKEA kitchen knife.
After police boxed him in, away from bystanders, Kennedy reportedly lunged at the cops. They fired twelve times, nine from one officer’s gun and three from the other. According to the NYPD, multiple attempts at subduing Kennedy with pepper spray failed before the officers discharged their firearms.
According to a few street vendors, Kennedy was a regular in Times Square. He would dress up as a ninja with a plastic sword and perform back flips for $5. Kennedy had a bit of a history with the police. In 2008, he was taken for a mental evaluation after attacking trash cans. A month later, he was arrested for threatening to harm police officers with a screwdriver.
A wrongful death lawsuit probably wouldn’t be very successful here. Though the police did use twelve bullets on a man with a knife, and that might seem excessive to some, they are trained to shoot at the center of mass of someone attacking them. Kennedy was using a deadly weapon. They responded, first with non-deadly force, then with deadly force.
Where the police might have really screwed up was in their response to the witnesses of the incident. According to the Times, one of the responding officers confiscated a bystander’s phone after watching the recorded footage of the confrontation and shooting.
The Fourth Amendment prohibits unlawful search and seizure of a person’s property without a warrant. In addition, the First Amendment protects the right to film police officers in public spaces, as long as the photographer isn’t interfering with law enforcement efforts. The seizure of someone’s cell phone or camera is only allowable a few rare circumstances, such as when the device is used to commit a crime. Otherwise, a warrant is required.
The Times article doesn’t explicitly state whether or not the Boston tourist’s phone was later returned. Even a temporary seizure of his property could be grounds for a lawsuit. In that case, the outcome could depend on whether the police needed the evidence from the phone as for their investigation.
- Consult a New York Personal Injury Attorney (FindLaw)
- The Photographer’s Right (Krages.com)
- NY Times Photog Stolarik Abused for Third Time by NYPD (FindLaw’s New York Personal Injury Law Blog)
- Seventh Circuit Says Citizens Have a Right to Record the Police (FindLaw’s U.S. Seventh Circuit Blog)