Here's What It'd Take To Convict The NYPD Cop Who Killed Akai Gurley

NEW YORK -- The rare indictment this week of a New York City police officer in the death of an unarmed black man raises the prospect of something even rarer: that the officer in question may actually be convicted.

Rookie NYPD officer Peter Liang, 27, was arraigned Wednesday afternoon in the November death of 28-year-old Akai Gurley. He’s facing charges of second-degree manslaughter, criminally negligent homicide, assault and official misconduct.

Liang was released Wednesday on his own recognizance and is awaiting trial. His next court appearance is May 14. If convicted of second-degree manslaughter, the top charge, Liang could face up to 15 years in prison.

Columbia University Law professor Bernard Harcourt says that in order to convict Liang on a manslaughter charge, the prosecution will have to prove he had an “awareness of a significant risk,” yet chose to disregard that risk.

“It requires consciousness,” Harcourt said, adding that the prosecution will have to argue that Liang committed a “gross deviation from the kind of reasonable behavior” normally demonstrated by other police officers.

On Nov. 20, Liang and his partner, Shaun Landau, were in the Louis H. Pink Houses in East New York, Brooklyn, conducting what's known as a "vertical patrol" -- when officers walk up and down the stairs of the city's high-rise public housing projects.

According to Brooklyn District Attorney Ken Thompson, Liang had a gun in his left hand and a flashlight in his right when he leaned against an eighth-floor door, opening it to the building’s darkened stairwell. That’s when Liang fired one shot, the bullet flying in a downward trajectory towards the seventh floor.

At that moment, Gurley and his girlfriend, 27-year-old Melissa Butler, were entering the stairwell from the seventh floor. The bullet ricocheted off a concrete wall before fatally striking Gurley in the chest, killing him.

“We don't believe [Liang] intended to kill Mr. Gurley," Thompson told reporters Wednesday, "but he had his finger on the trigger."

Liang fired the gun, Thompson added, “when there was no threat.” Thompson wouldn’t say whether the weapon was fired intentionally or by accident.

It’s NYPD protocol, Brooklyn assistant district attorney Marc Fliedner said in court Wednesday, to keep your finger along the barrel, not on the trigger itself.

That Liang drew his gun at all, and that he kept his finger on the trigger, could help towards establishing the conscious disregard for risk required for a manslaughter conviction.

Similarly, Harcourt said, the prosecution could point to reports that the officers weren’t supposed to be conducting a vertical patrol inside the Pink Houses in the first place.

The New York Daily News reported in December that Liang and Landau's commanding officer, Miguel Iglesias, had explicitly instructed them not to walk the stairs inside the Pink Houses. Harcourt said that if Iglesias had given that order because of a perceived risk -- the staircase being too dark or otherwise dangerous for vertical patrols -- then Liang’s decision to ignore that risk could help prove a certain recklessness.

Fliedner, the lead prosecutor in the case, did not mention the order in court Wednesday. He did say, however, that another report by the Daily News -- which claimed Liang texted his union representative right after the shooting -- was false.

According to Eugene O’Donnell, a former NYPD cop and retired Brooklyn prosecutor who now teaches at John Jay College of Criminal Justice, there’s a “heavy incentive” for Liang to strike a plea deal with prosecutors.

While manslaughter convictions in New York carry prison time, a conviction of criminally negligent homicide doesn't require it. Liang could plead guilty to criminally negligent homicide in exchange for the manslaughter charge getting dropped.

That would mean Liang likely wouldn't go to prison at all, O’Donnell said, but would get probation and probably lose his job as a police officer.

Criminally negligent homicide is a lesser charge than manslaughter because prosecutors only have to prove that the defendant “failed to perceive a substantial and unjustifiable risk,” Harcourt said. In other words: the defendant wasn’t conscious of a risk, but still acted negligently.

Liang’s lawyer, Stephen Worth, told reporters after the arraignment that Gurley's death was a terrible accident, but that his client didn’t do anything wrong.

"When this case was first investigated, it was determined to be an accidental discharge," he said. "It remains an accidental discharge today.”

“There is nothing reckless or criminally negligent about the way Officer Liang performed his duties that night," he added.



Elizabeth Warren