On March 1, 2000, 23-year-old Malcolm Ferguson was shot to death inside 1045 Boynton Avenue in the course of a brief struggle with Police Officer Louis Rivera, who described the death as accidental.
After an exhaustive investigation, the Bronx District Attorney makes the following findings and conclusions.
- On Wednesday, March 1, 2000, Officer Louis Rivera was part of an anti-drug enforcement team with four other officers and a sergeant. At approximately 6:15 p.m. the team drove to the vicinity of the 1000 block of Boynton Avenue in the Bronx. The block, which was plagued by drug activity, had been the scene of prior enforcement efforts, including some by Officer Rivera himself. On arrival, the five officers of the team left their vehicles and walked north on Boynton Avenue.
- Inside the lobby of 1045 Boynton at this time were Malcolm Ferguson and three individuals. One of these individuals knew Mr. Ferguson for some three to four years, another knew him for approximately four to five years and the third had just met him that day.
- According to one of these companions, as well as another witness who had bought drugs, Mr. Ferguson was selling heroin that evening from inside the lobby and outside the front door. Another companion heard Mr. Ferguson say "There's cops right there" as the officers approached.
- As one officer passed that building, he saw the four males inside the lobby and signaled to Officer Rivera, who observed Malcolm Ferguson stick his head out of the front door. Officer Rivera grabbed the door as Mr. Ferguson tried to pull it shut. Rivera identified himself as a police officer. One of Mr. Ferguson's companions confirmed that Officer Rivera identified himself.
- The two struggled briefly over the door. When Officer Rivera gained entry, he chased after Mr. Ferguson and one of his companions, who had run down the long hallway toward the staircase at the rear of the building. At one point, Officer Rivera reached out with his left hand and grabbed Malcolm Ferguson by the left upper arm but lost his grip. Officer Rivera chased Mr. Ferguson up the stairs as the latter's companion, who was running ahead of the pair, got away.
- During this chase, the other officers on the team entered the building in stages and detained Mr. Ferguson's other two companions. At each stage, the front door slammed loudly.
- According to Officer Rivera:
- At the base of the stairs he once again used his left hand to grab Mr. Ferguson by the left arm as the officer drew his gun with his right hand. As they reached the small landing between the first and second floors, Mr. Ferguson reached backward and grabbed Officer Rivera, who said, in effect, "Stop resisting. Why are you resisting?" The pair then fell on the stairway.
- Just after the fall, Malcolm Ferguson was lying on the stairs, on the right side of his body, with his back toward the wall and his face toward the staircase railing. Officer Rivera also landed on the stairs, on the right side of his body, with his back toward the wall and his face toward the railing. Officer Rivera was slightly below Mr. Ferguson, closer to the wall. The officer repeated words to the effect of "Stop resisting. Why are you resisting?" Mr. Ferguson then turned his head to his left so that he was facing Officer Rivera, and began to turn his torso in the same direction.
- While their left arms were interlocked, Mr. Ferguson, using his left arm, began to pull Officer Rivera toward him. Officer Rivera's fingers began to lose their grip on the gun. As Officer Rivera felt the gun slipping, he tried to prevent Mr. Ferguson from getting on top of him by moving his own right arm toward Mr. Ferguson's left shoulder, and gripping Ferguson's left shoulder with his right hand - which was still holding the pistol. The muzzle was thus near the left side of Mr. Ferguson's head.
- The two men were now face to face, lying on the stairs, their left arms still interlocked, when one round discharged from Officer Rivera's gun. Officer Rivera stated that he has no recollection of pulling the trigger and was surprised when the gun fired. He believes that his act of grabbing Mr. Ferguson's shoulder, while at the same time trying to improve his grip on the gun, may have caused his index finger to slip and make contact with the trigger.
- No witness saw the gun discharge, but several witnesses confirmed other parts of Officer Rivera's account:
- Two women in an adjoining building looked through their window and saw two men struggling on the landing of 1045 Boynton. According to the women, one of the men was trying to pull the other down toward him.
- A woman and her two young children living at 1045 Boynton overheard parts of the struggle. The children heard words to the effect of "Don't move." and "Why you move?" followed by a noise. The woman herself only heard the noise, although she said that she was in a position to hear words had they been spoken.
- Mr. Ferguson's companion, who had run ahead, heard a "tumble" and "grunting" noises from the stairs below him, followed by a gunshot.
- A witness acquainted with Mr. Ferguson claimed to have passed him standing outside the building as she entered to go upstairs to buy drugs. As she came down, she heard someone yell "Police," and saw Mr. Ferguson running up the stairs with Officer Rivera behind him. As the pair approached the second floor, the officer grabbed Mr. Ferguson's jacket with his left hand, but Mr. Ferguson shrugged this off and turned to face the officer. The witness then watched the two struggle over the gun, after which she ran downstairs and heard a gunshot. It must be noted that this witness gave several accounts which were imprecise and inconsistent about her location during the events described. She was also on medication, and described herself as "sick" that evening.
- After the shooting, Officer Rivera came downstairs and said: "I shot him. Get a boss and a bus. Go check on him." Listeners described that statement as follows: "Call an ambulance. I didn't mean to do it;" "I shot him, I shot him, call a boss and a bus, make sure he's ok;" "I shot him, call for a bus;" "I shot him, get a bus, I shot someone, I shot him, I shot him;" "I shot him, call a bus, get a boss;" and "I shot him, the man is down, call the ambulance." The officers summoned an ambulance and asked for the team's sergeant.
- Officer Rivera walked outside the building and joined the sergeant in his van. The officer said that he told the sergeant "I think I shot him," but the sergeant remembered this statement as "I had to shoot this guy." No other witness was present for this exchange.
- Several moments later, Officer Rivera was taken in a patrol car to a hospital. On route, he repeated, "I don't know what happened," although another officer remembered Officer Rivera stating in sum and substance, " I thought the guy was reaching for something; his jacket was open; he was struggling with me; I don't know what happened; I told him 'don't move - police, don't move.'"
- Back at 1045 Boynton Avenue, efforts were made to ensure that the body was not touched although at least one person, by her own admission, did touch the body. The New York City Police Department’s Crime Scene Unit was notified, and responded to the scene about 1¼ hours after Officer Rivera’s initial report. Photographs taken by the unit show Mr. Ferguson’s upper torso and head facing downward on the stairs, angled toward the railing, knees bent and facing in the same direction, with his feet three steps below his head.
- According to the autopsy performed by the Office of Chief Medical Examiner, a single bullet, fired at very close range, entered the left side of Mr. Ferguson's head, near the ear, and traveled on a slightly upward path through the skull and the brain. The medical examiner concluded that "there is no evidence to indicate that the right side of the head was pressed against a hard surface at the time of the shooting. The ecchymosis (bruising) noted on the right side of the head was caused by the bullet itself coming to rest in the right temporal area." The medical examiner found no other injuries to the body.
- A second autopsy was performed by a forensic pathologist hired by Mr. Ferguson’s family. This pathologist generally agreed with the medical examiner that Mr. Ferguson had died as the result of a single "contact" gunshot wound to the left side of head, and indicated that the "spatial relationship of the victim and the shooter" – that is, the position of each with respect to the other and whether they were standing up or lying down – could not be definitively determined from the medical evidence. However, like the medical examiner, the privately retained pathologist found no indication that Mr. Ferguson’s head had been pressed up against a hard surface at the time of the shot. Both noted the absence of "shoring" inside the head -- a distinctive marking made by a bullet that cannot exit the head because it is pressed against a hard surface. The privately retained pathologist also found a very small "superficial" laceration or "blunt force trauma" near Mr. Ferguson’s left eyelid, which could have been sustained during a struggle or when his head struck something hard.
- The Patrol Guide of the New York City Police Department contains no official regulations defining when a police officer may draw his or her weapon. According to a public statement made by a department spokesman in March of this year and quoted in the media, officers are taught that they may draw their guns "at any time to protect themselves or the public." Later, it was announced that the NYPD would review its policy on the drawing of weapons. Neither of these statements appear to have been directly related to this incident.:
- Officer Rivera's drawing of his weapon appears to have been in accordance with the NYPD's policy, or at least not in violation of it.
- The only evidence that even arguably supports a theory of a deliberate shooting consists of Officer Rivera's sergeant's version of a statement which Officer Rivera made to him in the police van after the incident. Officer Rivera said he told the sergeant: "I think I shot him." The sergeant's version of that statement, based solely on recollection, was that Officer Rivera said " I had to shoot this guy." No other person was present at the time.
- While the use of the word "had" is confusing, no similar suggestion, characterization or interpretation occurs in any of the statements which other witnesses heard from Officer Rivera either before or after he spoke to the sergeant.
- Rather, when he went downstairs just after the shooting, Officer Rivera said: "I shot him. Get a boss and a bus. Go check on him."
- The various police and civilian listeners individually reported, to similar effect, that he said: "Call an ambulance. I didn't mean to do it;" or "I shot him, I shot him, call a boss and a bus, make sure he's ok;" or, "I shot him, call for a bus" or "I shot him, get a bus, I shot someone, I shot him, I shot him;" or "I shot him, call a bus, get a boss;" or "I shot him, the man is down, call the ambulance."
- Thereafter, while en route to the hospital, Officer Rivera himself said that he continued to repeat in sum and substance: "I don't know what happened." A member of Officer Rivera's team, though, remembered that Officer Rivera had stated, in sum and substance: "I thought the guy was reaching for something; his jacket was open; he was struggling with me; I don't know what happened; I told him 'don't move - police don't move.'"
- Moreover, under all of the circumstances, particularly given the fact that the officer chased two men down a hallway and up a narrow staircase, losing sight of one of them in the process, we cannot fairly conclude that the mere drawing of the weapon was in itself a reckless or negligent act that gives rise to criminal liability.
- Set against all of the evidence in the case, including the various other characterizations of Officer Rivera’s statements, the recollection by a single witness of a single word ("had") in a single statement ("I had to shoot the guy") is simply insufficient to establish intentional conduct on the part of Officer Rivera. Moreover, even assuming that such a word was uttered, albeit in an obviously agitated state, and can be interpreted so as to establish intent or any other culpable mental state (e.g. recklessness), the totality of evidence would certainly not enable the prosecution to disprove a defense of justification beyond a reasonable doubt as required by law.
- In the last analysis, there is little if any evidence contradicting Officer Rivera's statement that the discharge of the weapon was the accidental result of a struggle to restrain Mr. Ferguson. Indeed, there is evidence which tends to corroborate it.
- Other witnesses and evidence indicated that there was a struggle on the stairway; that the officer identified himself; and that the officer was urging Mr. Ferguson to stop struggling.
- While no witness saw the actual shot, and the forensic evidence cannot definitively establish the precise time and position of the two men when the officer's gun went off, it is clear that the shot was contemporaneous with the struggle.
- Moreover, the medical evidence, including that provided by the pathologist privately retained by the family of the deceased, established that it is more likely Mr. Ferguson was shot while his head was not pressed against a hard surface, thus giving some support to the officer's description of an accidental discharge which occurred as the pair grappled after falling on the stairs.
- After a careful review of all of the evidence, the Bronx District Attorney has determined that further proceedings are not warranted. The Bronx District Attorney's investigation into the death of Malcolm Ferguson is now closed.
THE DEATH OF MALCOLM FERGUSON: AN INVESTIGATIVE REPORT
On March 1, 2000, Malcolm Ferguson, 23, was shot to death inside 1045 Boynton Avenue in the Bronx in the course of a struggle with Police Officer Louis Rivera. The death of this young man, just blocks from the street where Amadou Diallo was killed by four other officers and days after the verdict in that case, generated public concern and controversy. Within hours of the shooting, in accordance with established procedures, the Office of the Bronx District Attorney commenced an investigation, lead by its Chief of Homicide, into the circumstances of the death.
As part of the investigation, this Office, working with the Internal Affairs Bureau of the New York City Police Department, interviewed numerous police and civilian witnesses. These included all members of Officer's Rivera team, additional investigating officers, neighbors and other people in and around the building, all of Malcolm Ferguson's companions that evening and Officer Rivera himself. We also reviewed the documentary evidence, including police reports and the autopsy report prepared by the Office of Chief Medical Examiner for the City of New York. Additionally, we consulted with the assigned medical examiner, as well as with a private forensic pathologist hired by the family of the deceased. We also visited and examined the scene on several occasions.
The following is a synopsis of the evidence uncovered by the investigation.
On Wednesday, March 1, 2000 at approximately 6:15 PM, a team of five plainclothes police officers of the New York City Police Department's Housing Bureau, engaged in anti-drug enforcement activity, drove in two unmarked vans to the vicinity of Bruckner Boulevard and Boynton Avenue in the Soundview area of the Bronx. These officers and their sergeant comprised an Area Impact Team (AIT). (1) The team, which was assigned to Police Service Area # 8 (PSA-8), consisted of Sgt. Walter Schumann, and Police Officers Louis Rivera, Joel Brathwaite, Keith Washington, Kevin Woods and Sean Iannucci (2).
Upon arrival at Boynton Avenue, a one-way, southbound street, the police officers left on foot while the sergeant stayed behind in a van. The officers walked north on Boynton, toward Watson Avenue, in the direction of three buildings on the block owned by the New York City Housing Authority that the NYPD had targeted for patrol that evening. These buildings were located at 1044, 1048 and 1057 Boynton Avenue.
Also on that block, on the west side, was the residence located at 1045 Boynton Avenue. An open parking lot abuts the building. Another residential building, 1035 Boynton Avenue, borders the parking lot.
The building at 1045 Boynton is a four story walk-up. There is one entry door -- normally locked -- which opens into a small, rectangular lobby. At the back of the lobby four steps lead to the long, narrow hallway of the first floor. This floor contains apartments 1A through 1E. At the rear of the hallway, a staircase leads to the upper floors of the building, and a single flight of stairs leads down to a service exit. The residents' mail boxes are on a wall next to the stairs that leads to that exit. From the first floor, seven steps lead up to a small landing from which seven more steps lead to the second floor. The landing between the first and second floors, which is about 6.5 by 3.5 feet, has a window that faces the parking lot and the north side of 1035 Boynton Avenue.
In addition to patrolling Housing Authority buildings, the New York City Police Department also patrols several of the private buildings on the block, including 1045 Boynton Avenue, under the Department's "Operation Clean Halls." Authority for this operation depends upon consent by a landlord or a group of tenants that allows police to enter a particular building and the immediate area and to stop anyone found there and ask for identification. In carrying out Operation Clean Halls, the police go up and down the stairways in a building and around the grounds, stop all who are found, question them as to why they are in the building or on the grounds, and ask for identification showing that they live on the premises or for an apartment number to verify a legitimate visit. Large signs are posted in the lobbies of these designated buildings to provide notice of the program's purpose. For example, in plain view upon entry to 1045 Boynton was a sign with the New York City Police Department logo displayed twice at the top, which read:
| "BEWARE THIS BUILDING IS PART OF THE N.Y.C. POLICE DEPARTMENT'S OPERATION CLEAN HALLS PROGRAM. ALL UNAUTHORIZED PERSONS WHO ENTER THIS PREMISE WILL BE ARRESTED." (Emphasis in original)
The area of Boynton Avenue between Bruckner and Watson suffers from overt drug activity. In 1999, there were 35 narcotics complaints for this block, and some 88 narcotics arrests. Moreover, in the five months preceding the shooting the New York City Police Department served three search warrants on the block, including one for an apartment in 1045 Boynton Avenue. Indeed, Officer Rivera personally issued two summonses for illegal drug and weapon activity occurring within and in front of that building.
After leaving their vehicles, Officers Iannucci, Rivera and Brathwaite walked on the west side of the street in a straight line, approximately ten to fifteen feet apart from one another. Officers Washington and Woods proceeded in a similar fashion on the east side of the street (3). As Officer Iannucci passed 1045 Boynton Avenue, he observed individuals inside of the building's lobby, and signaled Officer Rivera.
According to Officer Rivera, (4) after noting Iannucci's gesture he saw the front door of the building open, and a man stuck his head out of the door. Officer Rivera, based on his prior experience, believed that this action was consistent with the way drugs had been sold at 1045 Boynton Avenue. He grabbed for the door as the individual inside tried to pull it shut. As they struggled over the door, Officer Rivera pulled out his badge, which was on a chain around his neck, and yelled "Police!"
Inside the building were four men: Malcolm Ferguson, Witness 1, Witness 2, and Witness 3. (5) Witness 1, 18, resides at 1045 Boynton Avenue, and knew Malcolm Ferguson for some three to four years. Witness 2, 24, also resides at 1045 Boynton, and knew Malcolm Ferguson for approximately four to five years. Witness 3, 25, did not live in the building. Although Witness 3 had seen Malcolm Ferguson in the neighborhood, he was first introduced to him that day. Mr. Ferguson, 23, did not live in that building either. According to Witness 3, Malcolm Ferguson had been hanging out both inside the lobby and in front of the building that evening, and had sold drugs to some three different people. One of these could have been Witness 4, a 32 year old heroin addict, who was a frequent purchaser of heroin both inside and outside 1045 Boynton Avenue. Witness 4 stated that he bought two bags of heroin (each emblazoned with two red skulls) from Malcolm Ferguson minutes before the shooting. (6)
Inside 1045 Boynton Avenue, Witness 3 saw Malcolm Ferguson struggling to keep the front door closed as a man outside was attempting to pull it open. Witness 1, who was standing by the front door at this point, heard Mr. Ferguson say "there's cops right there" as the officers approached. When the first officer (apparently Officer Rivera) entered the building, he had his badge displayed and said "freeze, everybody freeze." The men then scattered, with some retreating further into the building. Officer Rivera began to chase Malcolm Ferguson and Witness 3, who were running in the same direction along the hallway, towards the rear of the building and the staircase leading upward. Witness 3 was ahead of Malcolm Ferguson.
While this was happening, the other officers from the team attempted to enter the building. However, the front door to the building had closed after Officer Rivera's entry and he was the only officer then inside. At that door, Officers Iannucci and Washington engaged in a very brief struggle with Witness 1, who was holding it shut. After these officers entered, they detained Witness 1. Officers Woods and Brathwaite subsequently entered the building and Witness 2 was detained. During these various entries, the front door slammed shut several times.
Meanwhile, Officer Rivera chased Malcolm Ferguson and Witness 3 toward the staircase at the end of the hallway. Witness 3 remained ahead of Malcolm Ferguson and ran up the stairs.
According to Officer Rivera, as he approached the four steps that lead to the hallway he reached out with his left hand and grabbed Malcolm Ferguson's left upper arm. Both Officer Rivera and Malcolm Ferguson lost their balance on the steps. As a result, Officer Rivera lost his grip on Malcolm Ferguson's arm.
Mr. Ferguson continued to run toward the staircase at the end of the hallway. At the base of the stairs, Officer Rivera once again used his left hand to grab Malcolm Ferguson's left upper arm. Unable to see Witness 3, who had disappeared up the dark stairway, Officer Rivera removed his service pistol from its holster with his right hand, while still maintaining his grip on Malcolm Ferguson with his left hand. The officer noted that he held the gun in the manner in which he had been trained. Specifically, he placed his pinky, ring and middle fingers around the handle of the gun, while his index finger was extended on the outside of the slide (which covers the barrel), away from the trigger. His thumb was positioned at the back of the gun.
Malcolm Ferguson continued to run up the stairs, with Officer Rivera just behind him and still holding onto Mr. Ferguson's left arm. When they reached the small landing between the first and second floors, Malcolm Ferguson reached backward with his left hand and grabbed Officer Rivera's left arm, causing their left arms to interlock. Officer Rivera stated to Mr. Ferguson, in effect: "Stop resisting. Why are you resisting?"
With their left arms interlocked, Malcolm Ferguson stepped off the small landing and onto the first few steps leading up to the second floor. Officer Rivera was just behind him on the small landing. At that point, both Officer Rivera and Malcolm Ferguson fell, maintaining their grip on each other as they went down. They landed in essentially the same position. Malcolm Ferguson was lying on the stairs, on the right side of his body, with his back toward the wall of the staircase and his face toward the staircase railing. Officer Rivera also landed on the stairs, on the right side of his body, with his back toward the wall and his face toward the railing. Officer Rivera's body, however, was slightly below Malcolm Ferguson's body and was closer to the wall. Again, Officer Rivera stated words to the effect of: "Stop resisting. Why are you resisting?"
Malcolm Ferguson then turned his head to his left so that he was facing Officer Rivera and began to turn his torso in the same direction. While their left arms were still interlocked, Malcolm Ferguson, using his left arm, began to pull Officer Rivera toward him. Officer Rivera's fingers began to lose their grip on the gun. As Officer Rivera felt the gun slipping out of his right hand, he became concerned that Malcolm Ferguson was attempting to place his body on top of Officer Rivera's body. In an effort to prevent this, Officer Rivera moved his right arm toward Mr. Ferguson's left shoulder. With his right hand, which was still holding the gun, he tried to grip Ferguson's left shoulder in order to push Ferguson away from him and back onto the stairs. Consequently, the muzzle of the pistol was near the left side of Malcolm Ferguson's head.
Malcolm Ferguson continued to struggle. Officer Rivera attempted to get a firm hold on Mr. Ferguson's left shoulder with his right thumb and forefinger. At the same time, he tried to maintain his grip on the slipping pistol with other fingers of his right hand. The two men were now face to face, lying on the stairs, their left arms still interlocked, when one round discharged from Officer Rivera's gun.
Officer Rivera states that he has no recollection of pulling the trigger and was surprised when the gun fired. He believes that his act of grabbing Mr. Ferguson's shoulder, while at the same time trying to improve his grip on the gun, caused his index finger to slip and make contact with the trigger. Immediately after the gun discharged, he felt pain on the tip of his right index finger and was subsequently examined by doctors with regard to this complaint.
During these events, Witnesses 5 and 6, both adults, were seated at their dining table inside an adjoining building. The table was pushed against two windows. The windows are side by side and face both the open parking lot and the south side of 1045 Boynton Avenue. As they were seated at the table, one witness looked out of her window and into the window exposing the small landing between the first and second floors inside 1045 Boynton. She saw two men, one running behind the other. She could not see the faces of the men because the landing was dimly lit; however, she was able to see that the man in front was wearing a black "hoodie". The man chasing the one in the "hoodie" was wearing a dark baseball cap with white on its front. She immediately told the other witness to look in that direction. The other witness also observed two men, one wearing a dark baseball cap with white letters and the other wearing dark clothing with something white, possibly a tee shirt, near his waist area.
The man with the baseball cap (apparently Officer Rivera, who was wearing a blue New York Yankees cap with a white logo) was on the landing and the other man (apparently Mr. Ferguson, who was wearing a black hooded sweatshirt over a white tee shirt) was on one of the first few stairs that lead to the second floor. The witnesses observed the man with the baseball cap trying to pull the other man down toward him. The two struggled in this manner for approximately seven to ten seconds. The witnesses then heard three loud noises that they believed to be gunshots.(7) When they heard these noises, they turned from the window to leave the room. While doing so, they heard a fourth sound that they also believed was a gunshot.
The witnesses subsequently ran into another room and looked out the window. They observed a man wearing a baseball cap with white on it, standing on the stair landing carrying a lighted flashlight. (8) The witnesses now saw a body lying on the stairs. The body was on its side, with its back toward the wall and the front of the body toward the railing. One of the witnesses observed on that body the same white material near the waist that she had observed during the struggle.
Witness 7 and her children lived on the second floor of 1045 Boynton Avenue. Although she did not know Malcolm Ferguson, she had frequently seen him hanging out in front of her building. On the evening of the shooting, Witness 7 was inside her apartment with her children. While she was in her bedroom with her young son, her teenage daughter, Witness 8, was in the kitchen, and her pre-teen daughter, Witness 9, was in the living room playing a game. Witness 7's bedroom is in the back of the apartment, furthest from the door to the hallway.
Witness 7 heard a sound that she believed to be a gunshot, but did not hear any voices outside her apartment prior to hearing that sound. (9) She is certain that if anyone had spoken, she would have heard them, even from her back bedroom.
While Witness 8, the teenager, was eating her dinner in the kitchen, the room closest to the outside hallway, she heard the sound of footsteps on the stairs above her apartment. It sounded to her as if two people were running down the stairs. The footsteps stopped on her landing. Just outside her apartment door she heard a man state in a "strong, mad" voice: "Don't move." There were more footsteps and then the same voice said: "Why you move?" She then heard a "bump" or "bomb" sound.
Witness 9, Witness 8's younger sister, did not hear footsteps from her location in the living room. The first thing she heard coming from the area outside her apartment were the words: "Don't move." She described the voice as "grumpy" and "sounding like a Black man speaking." She then heard the same voice say: "Why you move?" She heard a sound that she believed was something breaking or falling to the ground and then heard screaming. At one point, her mother opened the door and Witness 9 peeked out into the hall. She saw blood on the landing of the second floor but did not see any blood on the stairs.
Witness 3, who had fled up the stairs ahead of Malcolm Ferguson and Officer Rivera, heard a "tumble" coming from the stairs below him, followed by "grunting" noises. He continued to run up the stairs. When he reached the fourth floor landing, he heard a single gunshot. He then knocked on the door of the upper floor apartment of a friend, Witness 10, who let him into her apartment, where he remained until later in the police investigation.
From across the street, Witness 11 saw some of these events. That witness, who said that he had seen Malcolm Ferguson selling heroin in front of the building in the past, saw two men enter 1045 Boynton. He then saw a person he believed to be Malcolm Ferguson being chased by a "black shadow." After Witness 11 lost sight of them, he heard a "popping" sound. (10)
Witness 12 was arrested for shoplifting on March 14, 2000, and told the arresting officers that she had information about the shooting at 1045 Boynton Avenue. Thereafter, she was interviewed by members of the NYPD's Internal Affairs Bureau and by assistant district attorneys. (11)
Witness 12 gave a series of statements which generally confirmed the accounts given by others, but which also contained internal inconsistencies and, in some respects, contradicted the other witnesses. Essentially, she said that she had gone to 1045 Boynton Avenue with a man she identified as her husband, Witness 4, to buy drugs. (12) She said she first saw Mr. Ferguson, whom she knew as a drug seller, standing outside the building. She then went upstairs to either the third or the second floor where she said she bought heroin. Walking downstairs, she heard someone yell "Police," and then saw Mr. Ferguson coming up the stairs towards her with a police officer right behind him. According to Witness 12, as they approached the second floor the officer grabbed Mr. Ferguson's jacket with his left hand, but Mr. Ferguson shrugged this off and turned to face the officer. She then watched as the officer and Mr. Ferguson struggled over the officer's gun.
Witness 12 stated that she watched the struggle for several seconds and then ran down the stairs towards the first floor. At some point in her movement between the stairs and the front door, she heard a sound that she believed to be a gunshot. She turned her head to the right and looked up at the flight of stairs just below the second floor. She saw Mr. Ferguson's body and described him as facing her with his arm hanging through the rails of the banister. Moments later, she heard the officer who had been struggling with Mr. Ferguson state in sum and substance: "Call an ambulance. I didn't mean to do it." (13)
Officer Iannucci described Officer Rivera's statement as "I shot him, I shot him, call a boss and a bus, make sure he's ok;" Officer Brathwaite heard "I shot him, call for a bus:" Officer Woods heard "I shot him, get a bus, I shot someone, I shot him, I shot him;" and Officer Washington described this as "I shot him, call a bus, get a boss." Witness 1 heard Officer Rivera say "I shot him, the man is down, call the ambulance."
Downstairs on the first floor, the other police officers had detained Witness 1 and Witness 2. Officers Iannucci and Washington had briefly pursued Witness 1, who had run back into the hallway and down a flight of stairs. Officer Woods was let into the building by Witness 2, who spoke to him near the front door. None of these people saw the shooting.
As he approached the building, Officer Iannucci, looking through the glass portion of the front doorway, saw Officer Rivera running down the hallway. Officer Iannucci heard a loud sound, but was unsure whether this was a shot or the front door slamming. Officer Brathwaite heard three loud banging sounds as he approached 1045 Boynton Avenue, and then saw the front door close; Officer Woods then let him in. Officer Woods heard no gunshots, but did hear the door slamming twice - once after Officers Washington and Iannucci entered the building, and then again, "very loudly," after he entered. Witness 2 did not hear any shots, but did acknowledge that when the front door of the building slams shut, it makes a very loud noise. Witness 1 heard the front door slam shut "four or five" times during the incident. Witness 11 stated that the front door of the building makes a "boom sound" when it closes.
After the shooting, Officer Rivera walked down the stairs to the first floor. He appeared upset and in a state of shock. He stated in sum and substance: "I shot him. Get a boss and a bus. Go check on him." This statement, in some fashion, (14) was overheard by the police officers present in the lobby and also by Witness 1 and Witness 12. Officer Rivera then proceeded to make a series of transmissions over the division radio frequency seeking the assistance of a supervisor and an ambulance: "a boss and a bus." These transmissions were recorded by the New York City Police Department Communications Division. Police Officer Woods also requested the presence of Sgt. Schumann over the "point to point" radio frequency, which is not recorded by the Communications Division.
Officer Rivera then walked outside the building. Sgt. Schumann, who had remained in one of the AIT vans during all of these events until he heard the radio transmissions, was then pulling up in front of the building. Officer Rivera opened the passenger door of the van, got in and sat in the passenger seat. Sgt. Schumann was seated in the driver's seat and was the sole occupant of the van. Officer Rivera said he told Sgt. Schumann: "I think I shot him." From his perspective, Sgt Schumann remembered that Officer Rivera said " I had to shoot this guy." No other person was present at the time. According to Sgt. Schumann, who directed Officer Rivera to stay in the van, the officer made no other statements to him. The sergeant then left the van and entered 1045 Boynton Avenue.
Meanwhile, Officer Iannucci had gone up the stairs, where he saw the body of Malcolm Ferguson on the set of stairs leading up to the second floor of the building, with his head facing down.
Sgt Schumann and Officer Brathwaite also saw the body in this position. Brathwaite noted that Mr. Ferguson's right arm was extended.
At this point, numerous apartment doors began to open as the occupants of the building came out to see what had happened. Sgt. Schumann and others then attempted crowd control, making efforts to ensure that no one touched the body and that the crime scene was secure. Among the people who saw the body were Witness 7; Witness 10; Witness 13 and Witness 14, two relatives of Witness 1 who also live in the building; and Witness 15, a cousin of Witness 1, the girlfriend of Witness 2 and a close friend of Malcolm Ferguson. At least one of these people, Witness 15, by her own admission, touched the body.
When Witness 7 saw Mr. Ferguson's body, it was surrounded by ten or fifteen people. She saw one of these people kick a shell casing, which was very close to Malcolm Ferguson's head, across the second floor landing. Sgt Schumann also noted a spent shell casing, which he observed on the second floor at the foot of the stairs leading upward. Although Sgt. Schumann did not advise anyone of this observation before he left the location, he advised the Crime Scene Unit detectives of the location of the shell casing later at Jacobi Hospital, and returned to 1045 Boynton Avenue to point it out to them.
Several minutes after Officer Rivera spoke with Sgt. Schumann, Officer Iannucci who had been directed by Sgt. Schumann to take Officer Rivera to Jacobi Hospital to be treated for trauma, approached the van and told Officer Rivera that they were going to the hospital. Two uniformed officers drove Officers Rivera and Iannucci there in a patrol car.
Officer Rivera reported that on the way to the hospital, still in a state of shock, he continued to repeat in sum and substance: "I don't know what happened." However, Officer Iannucci remembered that Officer Rivera had stated in sum and substance: "I thought the guy was reaching for something; his jacket was open; he was struggling with me; I don't know what happened; I told him 'don't move - police don't move.'" While being transported to the hospital, Officer Rivera handed his gun and ammunition to Officer Iannucci, who took possession of the items and placed them in his pocket. When asked if he noticed any blood on the gun, Officer Iannucci replied in the negative. At the hospital, Officer Rivera was treated at Jacobi Hospital for knee abrasions and an injury to his right index finger.
Malcolm Ferguson was pronounced dead at the scene by Emergency Medical Service personnel.
The Crime Scene Unit of the New York City Police Department was notified at 7:05 p.m. and responded to 1045 Boynton Avenue at 7:40 p.m., about 1¼ hours after Officer Rivera’s initial report of the incident. Detectives from the unit photographed the scene, vouchered physical evidence (including the single shell casing from Officer Rivera’s firearm) and examined the body of Malcolm Ferguson. The photographs show that at the time they were taken Mr. Ferguson’s upper torso and head were facing downward on the stairs, angled toward the railing, knees bent and facing in the same direction, with his feet three steps below his head – the same position in which the EMS technicians had found him.
An examination revealed that Mr. Ferguson was wearing two pairs of pants – a pair of sweat pants covered by a pair of jeans. Among his other clothing was a black hooded pullover sweatshirt ("hoodie") and a white tee shirt. Additionally, there was a plastic bag in Mr. Ferguson’s shorts. Inside the bag were two glassine envelopes each stamped with two red skulls, which contained a white substance. Subsequent chemical analysis established that the white substance was mostly heroin. The two pairs of pants and the drugs were also observed by an investigator for the Office of Chief Medical Examiner, as well as by investigators from the Internal Affairs Bureau.
Officer Rivera's firearm and ammunition were examined and found to be authorized by the New York City Police Department. The examination also revealed blood and/or tissue residue on the barrel of the weapon.
Dr. Steven Shapiro of the Office of Chief Medical Examiner conducted an autopsy upon the body of Malcolm Ferguson. Dr. Shapiro concluded that the cause of death was a "gunshot wound of head with perforations of skull and brain." According to the autopsy, a single bullet entered the left side of Mr. Ferguson's head, very close to his ear, and traveled in a slightly upward path through the skull and the brain. The hollow-point bullet did not exit; it "lodged in the right soft tissues of the temporo-parietal scalp..." on the right side. There was an abrasion, which might have been a muzzle impact, at the point of entry, and gunpowder residue was noted in the depths of the wound. Based on his examination, Dr. Shapiro further concluded that "there is no evidence to indicate that the right side of the head was pressed against a hard surface at the time of the shooting. The ecchymosis (bruising) noted on the right side of the head was caused by the bullet itself coming to rest in the right temporal area."
Dr. Mark Taff, a forensic pathologist hired by Mr. Ferguson’s family, performed his own examination of the body and shared his findings with the District Attorney’s office. Dr. Taff agreed with Dr. Shapiro that Mr. Ferguson had died as the result of a single "contact" gunshot wound to the left side of his head. Dr. Taff indicated that although he could tell that there was a gun placed up against Mr. Ferguson’s head at the time of the discharge, he could not determine the "spatial relationship of the victim and the shooter" – that is, the position of each with respect to the other and whether they were standing up or lying down. Like Dr. Shapiro, he found no indication that Mr. Ferguson’s head had been pressed up against a hard surface at the time of the shot: "There is a term we use, shored...where the bullet plays peek-a-boo and tries to come out of the body, but because the head is pressed against a hard surface, the bullet has a hard time exiting the body. There is a sort of appearance to a shored...exit wound which I did not see in this case."
Dr. Taff also noted the presence of a very small "superficial" laceration or "blunt force trauma" near Mr. Ferguson's left eyelid. Such injury could have been caused if something struck him during a struggle or if his head hit something hard during a fall.
The Law: Intentional Homicide
New York State Penal Law § 125.25, in pertinent part, defines the crime of intentional murder as follows:
A person is guilty of murder in the second degree when (1) with intent to cause the death of another person, he causes the death of such person...
Penal Law § 125.20, in pertinent part, defines the crime of manslaughter in the first degree as follows:
A person is guilty of manslaughter in the first degree when (1) with intent to cause serious physical injury to another person, he causes the death of such person...
Penal Law § 15.05 (1), in pertinent part, provides that:
A person acts intentionally with respect to a result ... described by a statute defining an offense when his conscious objective is to cause such result...
As previously noted, many parts of the officer's account, including the chase, the struggle, his identification of himself as a police officer, his direction to Mr. Ferguson to stop resisting and the time when the single shot was fired, were confirmed by other witnesses. Moreover, the likelihood that Mr. Ferguson's head was not pressed against a hard surface when the gun went off is apparent from the forensic evidence. This in turn provides some support for Officer Rivera's account of an accidental shooting in the course of grappling with Mr. Ferguson.
By contrast, the only bit of evidence that even arguably supports a theory that Officer Rivera acted intentionally with respect to this death - that is, that he wanted to seriously injure Malcolm Ferguson and is guilty of manslaughter, or actually intended to kill him and is guilty of murder - consists of the recollection by a single witness of a single word ("had") in a single post-shooting statement ("I had to shoot the guy"). No similar reference appears in any of Officer Rivera's other post-shooting statements, which were overheard by numerous listeners.
Moreover, even assuming that such a word was uttered, albeit in an obviously agitated state, and can be interpreted, on the basis of that single statement, so as to establish that Officer Rivera acted intentionally in connection with his actions, the totality of evidence would certainly not enable the prosecution to disprove that Officer Rivera acted in self defense. (15)
The Law: Reckless and Negligent Homicide
New York State Penal Law § 125.25, in pertinent part, defines the crime of reckless murder as follows:
A person is guilty of murder in the second degree when (2) under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person...
Penal Law § 125.15, in pertinent part, defines the crime of manslaughter in the second degree as follows:
A person is guilty of manslaughter in the second degree when (1) he recklessly causes the death of another person...
Penal Law § 125.10, in pertinent part, defines the crime of criminally negligent homicide as follows:
A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.
Penal Law § 15.05 (3), in pertinent part, provides that:
A person acts recklessly with respect to a result ... described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur... The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
Penal Law § 15.05 (4), in pertinent part, provides that:
A person acts with criminal negligence with respect to a result ... described by a statute defining an offense when he is fails to perceive a substantial and unjustifiable risk that such result will occur... The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
Officer Rivera reported a non-intentional shooting and indeed, as discussed above, the prosecution could not prove, beyond a reasonable doubt, that the officer intentionally shot Mr. Ferguson. For this reason, any criminal liability on the part of Officer Rivera would have to be based on a theory of recklessness or criminal negligence. This, in turn, would have to be predicated on the theory that the officer improperly drew his weapon. Given the evidence described above, particularly the chase, the fact that Mr. Ferguson's companion disappeared from view in the hallway and the struggle, as well as Officer Rivera's apparent compliance with relevant police guidelines on the drawing of weapons - or at least that he did not apparently violate any -- the prosecution could not prove beyond a reasonable doubt that any risk of death created by the officer in drawing his weapon and continuing to struggle with gun in hand was "substantial and unjustifiable."
The Bronx District Attorney finds that there is insufficient evidence to establish criminal liability in the death of Malcolm Ferguson. Rather, on balance, the evidence supports Police Officer Louis Rivera's statement that the death of Malcolm Ferguson occurred accidentally, in the course of a struggle. Therefore, for the reasons stated above, presentation to a grand jury is not warranted. Accordingly, the Bronx District Attorney's criminal investigation is now closed.
1. An Area Impact Team consists of plainclothes police officers who received specialized training required by the New York City Police Department. The purpose of these teams is to protect buildings operated by the New York City Housing Authority by doing vertical patrols of the subject buildings seeking drug offenders and trespassers. return to reference
2. All the officers were regularly assigned to the AIT except for Rivera and Brathwaite. Officer Rivera was regularly assigned to the PSA-8 Street Narcotics Enforcement Unit, and had changed his tour for March 1, 2000 because of a child care problem. Officer Brathwaite was regularly assigned to the CATCH unit, which looks for residents of Housing Authority buildings with open criminal complaints. return to reference
3. The police officers walked in staggered fashion on Boynton Avenue in an effort to conceal that they were together. return to reference
4. Officer Rivera cooperated with the investigation, and gave a full account of his actions to the Office of the District Attorney. return to reference
5. Witness 1, Witness 2, and Witness 3 also cooperated with the Office of the District Attorney. It will be noted that throughout this report, the identity of all witnesses, except police officers, the attending medical examiner and a pathologist retained by the family of the deceased, has been concealed to protect their privacy. No significance is attached to the numbering of witnesses, which merely reflects their order in the narrative. return to reference
6. Witness 4 also confirmed Officer Rivera's statement that drug sellers on Boynton Avenue would sometimes hold open the front door of the building to signal potential customers, who then entered the building to complete the transaction. return to reference
7. Many witnesses made it clear that the multiple banging noises were almost certainly the sound of the building's front door, which was audible from the apartment of Witnesses 5 and 6. In any event, physical evidence indicates that only one shot was fired. return to reference
8. This was probably Officer Iannucci who, like Officer Rivera, wore a Yankees cap that evening but, unlike Rivera, went upstairs after the shooting. return to reference
9. When Witness 7 spoke to police detectives on the night of the shooting, she told them she had not heard a gunshot. She later stated that she lied to the police because she is in fear of them. However, she also stated that she did tell the truth to a man who knocked on her door and introduced himself as an attorney. This man was later identified as an investigator working for the Ferguson family's attorney. return to reference
10. Just after the shooting, Witness 11 made certain statements to the media indicating that he had observed the shooting itself. However, in subsequent law enforcement interviews he specifically denied that he had observed the shooting. return to reference
11. Witness 12 confirmed that she had received no "deal" in return for her information. She said she came forward "because so many people, they were marching, and it was like saying stop the killing that the police were doing and the Amadou -- something like the Amadou Diallo. And I was getting tired of hearing it because it wasn't nothing like Amadou Diallo. This guy was actually struggling with this police officer, and the gun just went off... Malcolm would have shot him. It could have went either way, but it happened to be Malcolm that got shot." return to reference
12. Witness 12 stated in her first sworn statement that she had gone to the building to borrow diapers for her child. return to reference
13. Witness 12, who takes four different medications - one each for asthma, depression, anxiety and to help her sleep - indicated that she was "sick" on the night of the shooting.. In her series of statements, Witness 12 was exceptionally unclear (and inconsistent) about the precise location of the struggle and where she was when she observed it. Ultimately, she was escorted back to the building by investigators. At that time she indicated that the running men passed her as she descended the stairs and then struggled just above her as she stood on the small (about 6.5 by 3.5 feet) landing between the first and second floors. She also said that Malcolm Ferguson's body was lying on the stairs just below the second floor. Previously, she had stated she was positive that his body was lying on the platform and that no part of him was on the stairs. return to reference
14. As noted above, Officer Iannucci described Officer Rivera's statement as "I shot him, I shot him, call a boss and a bus, make sure he's ok;" Officer Brathwaite heard "I shot him, call for a bus;" Officer Woods heard "I shot him, get a bus, I shot someone, I shot him, I shot him;" and Officer Washington described this as "I shot him, call a bus, get a boss." Witness 1 heard Officer Rivera say "I shot him, the man is down, call the ambulance." Witness 12 heard "Call an ambulance. I didn't mean to do it." return to reference
15. Penal Law Article 35 establishes a defense of justification. Once raised by evidence, the prosecution has the burden of disproving this defense beyond a reasonable doubt. Since neither intent nor, as discussed below, any other culpable mental state (e.g. recklessness) can be established on the present record, the issue of justification need not be reached. However, were that issue to be considered, the evidence, including the undisputed chase and struggle, would certainly raise the defense. return to reference