Robert Asika, Empire State Shooting Victim, Files First Claim Against City and Police

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The first victim of police gunfire in the Empire State Shooting has filed a notice of intent to sue the city, the Voice has learned.

Robert Asika, one of 9 people wounded Aug. 24 by police bullets as they fatally shot a homicide suspect outside the storied building, has filed a notice of claim with the city comptroller's office, records indicate.

Asika was struck in his right elbow by a police bullet--one of 16 rounds fired at Jeffrey Johnson, who had just gunned down his former co-worker, Steve Ercolino. Dramatic news photographs showed Asika sprawled on the sidewalk with blood coming from his wound, as passersby tended to him.

Michael S. Lamonsoff, an attorney representing Asika, tells the Voice this afternoon that his client is still receiving medical care, and may have some neurological impairment as a result of his injuries. "We believe that there were too many rounds fired under the circumstances, and perhaps there should be more of an exploration of whether these officers had the proper training," he said.

Johnson, was said to be despondent over losing his job. He had tangled repeatedly with Ercolino, a former co-worker at Hazan Imports. The two men had filed cross-harassment complaints against each other.

Last Friday, Johnson, attired in a suit, confronted Ercolino, drew a 9-mm firearm and shot him three times. He then walked away from the body, but was followed by construction workers who pointed him out to police. The police approached Johnson in the midst of a crowded area, guns drawn. Johnson raised his weapon at the officers, and they fired the 16 bullets, killing the suspect. The bystanders were either struck by bullets or by fragments which ricocheted off of concrete planters.

"Until the investigation is over, we should all take pause: sixteen shots were fired and we have nine injured civilians," Lamonsoff added. "This could be a warning sign that maybe the training of police officers in the discharge of their firearms is not extensive enough."

"The question is not whether they had a right to defend themselves. The question is whether under the prevailing circumstances, whether they acted within the scope of what they are supposed to do as police officers, ths happening in a huge population area."

In an interview last week with CNN's Piers Morgan, Asika described the incident. "For some reason, something was telling me not to go to work. Usually when something bad is about to happen, I always have this feeling."

"I saw this guy about 5'4", he suited up with a briefcase, he was coming towards my direction," he told Morgan. "I seen the cops come and follow him. I guess the cops were talking to him. But meanwhile they had the guns out at this point. Then he stopped. I guess he dropped the briefcase he was holding. And he took out the gun and he fired to one of the police officers."

(Of course, Johnson did not actually get off a shot, but only raised his weapon at the officers. In all the confusion, Asika's statement is understandable.)

The question now is whether such a claim is going to go anywhere. In what has been described as the most significant case in similar circumstances, Tammy Johnson v. New York, the state appeals court held that the city was not liable when two robbery suspects fired on police. The officers returned fire, wounding three civilians, including a toddler.

However, there is a key factual difference between the Empire State shooting and the Tammy Johnson case, which was decided in 2010. And that is this: in Johnson, the police testified they did not see any bystanders as they followed two armed robbery suspects onto 126th Street in Harlem and the suspects opened fire at the officers.

"There is no evidence that innocent persons were unnecessarily endangered, because nothing indicates that at the time the robbery suspect opened fire there were any bystanders, including the plaintiffs, in view," the appeals court found. "To the contrary, the uncontradicted testimony of the police officers was that they saw no bystanders as they sought to protect themselves and their fellow officers by returning fire."

On the other hand, the area where Jeffrey Johnson encountered the officers on Aug. 24 was crawling with civilians. In the police video of the shooting, you can see about two dozen civilians, including a couple and two small children. It would be very hard to believe the officers were unaware of civilians around them. At least three civilians are directly in one officer's line of fire. And a few feet from the police, you can see a woman running, holding her ears, presumably at the sound of the gunfire.

But there is also the common sense take, which we heard from Mayor Bloomberg and Police Commissioner Kelly: in those circumstances, what were the police supposed to do? Whether that view will prevail in court is another matter.

A Reuters report noted that the police used hollow point bullets, which are designed to mushroom inside a body, rather than go through and hit other people. But when they strike hard objects, like the concrete planters outside the Empire State Building, they tend to splinter and ricochet.

Asika's claim is likely only the first of what could be several lawsuits involving this police shooting.


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