Hallway Firefight: The Amadou Diallo Shooting

Massad Ayoob

Situation: A furtive movement triggers a barrage of gunfire that puts four cops on trial for murder.

Lesson: A few shots with powerful ammo are more easily explained than many shots with "feeb loads."

It was a tragedy that gripped a nation. In a bizarre but later understandable chain of events, an incident happened in seconds that ruined the lives of four men and ended that of a fifth. Like a chain collision of five vehicles on a foggy night, it was an accident that involved all victims and no villains.

Feb. 4, 1999, approximately 12:40 a.m. Four plainclothes officers of the NYPD Street Crime Unit (SCU) rolled past the apartment building in the Bronx where Amadou Diallo, age 22, lived with a roommate. Officer Sean Carroll, in the front passenger seat of the unmarked Ford Taurus, spotted Diallo standing near the front door of the building in a "skulking" posture as if he didn't want to be spotted by the cops. Carroll told the driver, Officer Kenneth Boss, to stop and back up.

It occurred to Carroll that the man fit the description of a suspect who had savagely raped numerous black women in the area, and was known to wield a handgun. As the unmarked police sedan backed up, Officers Ed McMellon (right rear seat) and Richard Murphy (left rear) spotted Diallo. It occurred to them also that he was acting furtively and trying to avoid their gaze. McMellon in particular was reminded that "push-in" home invasions, common in New York, often involved lookouts. (A "push-in" begins with someone knocking on the victim's door. When it is opened from inside, the armed intruders force their way through. These officers knew of cases where victims of "push-ins" had been brutalized, raped, wounded or killed.)

As the Taurus came to a stop, Carroll and McMellon emerged and approached Diallo. The officers carried shields on chains or thongs around their necks and under their shirts. McMellon flipped his out and displayed it with his left hand, saying to Diallo in a conversational tone, "New York City Police. May we have a word with you, please?"

Diallo turned and ran for the door. The first two officers sprinted after him. Murphy was now approaching to assist. Boss had stayed behind the wheel to cut off any foot pursuit down the sidewalk, but seeing Diallo run toward the building, he jumped out of the car to help.

As the two closest officers were approaching him, they saw Diallo reaching to his right side, tugging in a movement that resembled to Carroll (on the right) a man pulling a gun from his coat pocket, and to McMellon (on the left), a man going for something at his hip. A black, square object emerged in Diallo's right hand as he began to turn clockwise toward the officers. Carroll yelled, "Gun! He's got a gun!"

McMellon cried, "What are you doing?" Both officers went for their own guns as the man whirled in their direction, the black object in his hand looking for all the world like the slide of a small blue steel automatic as it came up toward them, and almost simultaneously, they opened fire.

McMellon, instinctively backpedalling as he fired, fell off the steps. It looked to all three of the other officers as if he had been blasted backward and knocked down by gunshots. Carroll abandoned his two-handed Weaver stance to continue firing strong-hand only as he scuttled crab-wise down the steps, trying to get away from what he believed was murderous gunfire. Meanwhile, the fallen McMellon fired upward from the ground at the figure that was still thrusting the black object toward him. Seeing the same thing and fearing they were about to be shot down as they thought McMellon had been, the other two officers also opened fire.

Diallo slumped to the floor of the porch. The gunfire ceased. It had lasted no more than five seconds. Murphy and Boss rushed to McMellon to see how badly he was wounded. Carroll, the closest to the downed man, moved quickly forward to secure his weapon. To his horror, he found only a black nylon wallet.

You know the rest. The four officers were white. Diallo was a black man, a native of Guinea. The Bronx, and then the city, and then the nation expressed outrage. An unarmed black man had been shot by white officers, who had fired 41 shots.

At the end of January 2000, after a change of venue, a three-week trial began before the cameras of Court TV. The verdict of the mixed-race jury came as no surprise to criminal justice professionals, but shocked a nation conditioned by media and politicians to believe that a murderous act of racially motivated police brutality had taken place. The officers were found not guilty of all charges.

The trial of the four "Diallo cops" was educational for America, but there remain many unanswered questions and many misperceptions. There are lessons to be learned by cops, armed citizens and the general public. None is a new lesson. Each is supported by cases that have gone before.

So Many Bullets

Let's go over the most common questions that have arisen from the public and from media pundits in the wake of the trial.

Why did they shoot him 41 times? They didn't. Autopsy showed 19 gunshot wounds on the body of Diallo, only a couple of them fatal, Yet even after the verdict, people who knew better (A1 Sharpton, for one) were deliberately and falsely claiming that the victim had been shot 41 times. He had been shot at 41 times. McMellon and Carroll, the two closest and most desperately in perceived danger, had each run their 16 shot pistols to slide-lock. Boss had fired five shots and Murphy four.

Then why did they shoot at him 41 times? Police are trained to shoot until the perceived threat no longer appears to endanger them. All three of the NYPD-approved brands of 9mm pistol were in action in this incident. They include a Clock 19, a SIG P-226 in DA-only mode and the similarly designed Smith & Wesson Model 5946.

The DAO P-226 used by McMellon for 16 shots and Murphy for four has a long trigger pull and return, about 11 lbs. in weight. The DAO Smith emptied by Carroll typically has an 8 lb. pull over a shorter distance than the SIC, for both firing and resetting. The Clocks used by NYPD have the 12 lb. "New York Plus" (NY-2) trigger system, which despite its weight has only .375" pull for the first shot, and requires only .1" for reset. Only Boss was armed with a Clock.

The average person can fire a DAO handgun (long pull and long reset) at a rate of four shots per second, and a Clock at a rate of about five per second. In tests the author is aware of, both the Clock and the S&W have been brought to six shots per second shooting speed. Four shots per second divided into 16 shots, the capacity of each of these 9mm weapons, equals roughly four seconds for all shots to be fired. Each of the officers testified that he fired as fast as he could.

Most of the hits on Diallo's body were low and peripheral. None shattered the pelvis. Two, believed by most to have been among the very last rounds fired, hit the spine. These were undoubtedly the rounds that made him fall down, which signaled to the officers that they did not need to fire any more.

But firing this large number of shots at or into one man is unheard of! Not at all. In one famous case, an armed drug addict in Cook County, Ill., was shot 33 times with 100 gr. Winchester PowerPoint softnose bullets from the Model 59 S&W pistols of multiple deputies, and remained on his feet trying to reload the gun he had emptied at officers. He was put down by the second of two 12 gauge rifled slugs subsequently fired into his still-upright body.

A gunman on the Grand Concourse in the Bronx who had shot multiple officers was still up and running after a long, running gunfight in which he had absorbed 18 .38 Special 158 gr. semiwadcutters from NYPD service revolvers. He was cut down at the end by a hollowpoint Winchester 12 gauge rifled slug fired by a member of NYPD's Emergency Services Unit.

Less than 10 days after the jury's verdict, I had breakfast with Jim Cirillo after he and I shot the MidWinter IDPA National Championship. Cirillo came to fame as a much-blooded veteran of the NYPD Stakeout Unit in the '60s and '70s. He reminded me of an incident in which his partner, Bill Allard, fired 19 rounds from three weapons into an armed robbery suspect before the man stopped trying to kill him with his semiautomatic rifle.

Allard emptied five rounds from his 14' Ithaca 12-gauge pump (two rifled slugs, three 00 buckshot), eight rounds from his temporarily-department-approved personal Colt .45 automatic and six rounds from his S&W Model 10 .38 service revolver. The shootout was later determined to have lasted no more than eight seconds.

During this time, Cirillo was firing also. The suspect was on the ground, shielded under the corpse of his large partner, who had been killed by Cirillo's first rifled slug. Cirillo, who attended the autopsy and participated in the shooting, is convinced that only the last two .38 rounds stopped the gunman's attempt to murder him and his partner.

Autopsy Lessons

How could Diallo stay on his feet that long? The ammunition issued to all four officers, which they were required to use by City regulations, was ball. Specifically, 115 gr. Winchester "generic" USA brand FMJ 9mm Parabellum. This sort of round, virtually all experts agree, is extremely poor as a "manstopper." It plows a long, deep, narrow channel through tissue. Its pointy nose has almost no meplat, or flat contact surface, resulting in narrow wound channels which measure less than the bullet's full base diameter.

This has been constantly observed in military battle since World War I. One veteran of that conflict named McBride wrote that in his heavy experience in close quarter trench combat, he only once saw a 9mm Luger stop a fight with "one hit." In that case, he said, he and his comrades had over-run an enemy trench and one had just put a souvenir Luger pistol in a sack. They were suddenly jumped by a German soldier who had been left behind. The Yank swung the sack with the gun and dropped the enemy with a crushing blow to the head.

Recently, the Illinois State Police gave me carte blanche to study their many gunfights with the 9mm pistols they issued from 1967 through 1999. The several years and several shootouts in which they had 9mm ball ammunition showed not a single one-shot stop with this ammunition unless the suspect was hit in the central nervous system.

Was it not negligent for NYPD to issue such bad ammunition? If I was ever subpoenaed and asked that question under oath, I would have to answer, yes. NYPD's own Firearms and Tactics Unit staff had for many years begged the high command for hollowpoints in both .38 and 9mm. Because local politicians had called hollowpoints "dum-dums" and made it a police brutality issue, the quest for better, safer ammo had been stalled.

Ironically, the decision to issue hollowpoints had already been made, but these officers had not yet been issued the +P 124 gr. Gold Dot ammunition at the time of the Diallo shooting.

If the cops had carried six-shot .38s instead of 16-shot 9mms, this wouldn't have happened. This was suggested by former NYPD Commissioner Ray Kelley, and by Jim Fyfe, an expert witness for the defense. I disagree, and for that matter, so does the aforementioned Jim Cirillo. I hung out with plainclothes NYPD officers who were doing this job back when they were called the "Anti-Crime Unit." They all carried two .38s, with the backup gun usually where the free hand could reach it. Four cops so armed would still have had 44 to 48 rounds at their disposal before needing to reload.

This writer, an arthritis sufferer in middle age, went to the range with a pair of six-shot .38s. Starting with a 4" K-frame S&W drawn in my right (dominant) hand, I was able to respond to the signal of a PACT timer, empty the S&W into a silhouette 10 feet away, draw a 2" lightweight Dframe Colt snubby from a snapped holster on my left hip, and empty that gun weak hand only, all in 5.16 seconds.

Reaction time between signal and first shot was .37 seconds, and lag time between the last shot from the Smith and the first from the Colt was 1.66 seconds. All 12 rounds hit the silhouette at a 10-foot distance. With four officers so equipped, in the grip of fight or flight response, there would have been little if any difference in the outcome.

Why did the officers have to have 16-shot pistols? It was department policy. All these officers had been hired after the point in the early '90s when NYPD mandated one of the three approved 16-shot 9mms for all new officers. One, Boss, had begun with the then-separate Transit Authority Police, which was issued Glock 19s with 147 gr. subsonic hollowpoints. When the City Police absorbed the Transit Authority and Housing Authority Police, those cops kept the issue guns, but were issued ball ammo. Upon the approval of the 9mm, then-Police Commissioner Ray Kelley insisted on 10round magazines, but these were replaced with full capacity 15-round mags by his successor, William Bratton.

Lessons From The Victim

The cops had no right to accost a man minding his own business on his front steps, anyway. Untrue. Diallo, independent witnesses confirmed, had been there for some time before the arrival of the police, looking about nervously as if waiting for a meeting he wasn't eager for. This is called "furtive behavior" and draws the notice of police, who consider it suspicious. They are duty-bound to follow up on people who "look suspicious," especially in neighborhoods like the one in question where there has been a history of violent crime.

When Diallo ran, trying to get through the front door of his own home, the cops had no right to chase him. Untrue again. A Chicago incident was decided by the Supreme Court in a time frame between the Diallo shooting and the trial of the four officers. Our highest court ruled that police officers absolutely do have a right to chase and detain for questioning anyone who runs at the mere sight of them. The officers had feared that this man might be either a rapist or the lookout for armed robbers; merely "letting him run" would be tantamount to letting him go back and kill any witnesses who might be left alive to testify against him.

How can anyone believe this innocent man ran from the police? What I'm about to say is politically incorrect, but frankly, Amadou Diallo had some reason to fear law enforcement authorities. It has been reported that Diallo had falsified an application for asylum in this country. He might have thought that this deception had been discovered, and he was about to be arrested and deported. It is well known that he was a street peddler illegally selling bootlegged tapes. Most people would consider this to make Diallo a petty criminal. Petty criminals commonly flee the approach of identified police officers.

If Diallo was a criminal, why didn't the defense bring that up at trial? There are two good reasons. First, it is established in criminal law that prior bad acts by your opponent, if they are not known to you at the time you took action against him, are not discoverable in your defense after you are charged with wrongfully harming him.

Second, and more to the point in terms of trial tactics, "putting the victim on trial" is seen as a "guilty man's defense." It seldom works, and it tends to anger juries. Diallo had been made by the media into an innocent angel, and attacking his character would have been strategically unwise. The defense lawyers were probably correct in their decision to avoid that approach.

How could the cops mistake a wallet for a gun? The prosecutors of the officers unwittingly proved this point themselves. They asked each officer on cross-examination whether they considered the possibility that Diallo might have mistaken McMellon's badge for a gun and run because he thought they were robbing him.

Their blunder, I suspect, helped the jury to find the reasonableness of the officers' mistaken but understandable belief that the wallet was a gun. First, they must have thought, if even the prosecutors think Diallo might have mistaken one thing for another, how can they fault the officers for doing the same thing?

Second, with apologies to the noted feminist who first used the comparison in another way, a badge resembles a gun about as much as a fish resembles a bicycle. There is no comparison at all in shape. There is also the matter of the accompanying body movement. McMellon testified that he reached up with the inside of his left forearm parallel to his chest as he pulled up the badge, and held it out the very short distance its necklace-like attachment would let it travel from his body, with his left elbow out to the side. This does not look at all like a person aiming a gun. Aiming a gun this way would be a "position that would not occur in nature."

By contrast, the square visible part of a closed, black nylon wallet held the normal way in the human hand looks in profile almost exactly like the slide of a short, black semiautomatic pistol. The badge and the gun were the fish and the bicycle. But mistaking a small black wallet for a small black gun, as I told one of the defense lawyers, is like mistaking an orange for a tangerine. It's simply a lot more likely.

All the officers said Diallo thrust his hand with the object outward toward them at arm's length. This movement is exactly consistent with pointing a pistol at the person seeing it.

Final Lessons

Books can be written about the Diallo tragedy. They undoubtedly will be written. For now, let's make these points. It's not a "black and white" thing. It's a "cops and unknown subjects" thing.

If cops identify you and approach you, don't run! If cops approach you for any reason, make no sudden movements, and above all, don't reach suddenly for a wallet or anything else! That's called a "furtive movement," and as this case proved, it can justify the use of deadly force under law if some other circumstances are in place.

Don't "act suspicious." In the comedy movie Bean, the hero thinks it's funny to skulk and act furtively and then run away from security officers in an airport. They, of course, give chase. That's not a joke. That's real.

Clint Smith of Thunder Ranch says, "If you look like food, you will be eaten." He is saying that if you come across as a victim, you will be victimized. The corollary is, "If you act like a wolf, the sheepdogs will come after you." That is, if your behavior mimics that of a criminal suspect, you will be treated like one by the police.

Those are the facts. Those are the lessons. I said as much to Barry Scheck when he called me in his capacity as plaintiff's counsel for Diallo's parents in February of 1999. I said as much to Stephen Worth when he called me in his capacity as lead defense attorney for the involved officers a few days later. The jury said as much to each and every one of us when they returned their verdict.

It's not about emotion. It's about facts, law and reality. If we don't learn the lessons, then Amadou Diallo died in vain, and four good cops who made an understandable but tragic mistake went through hell for nothing.

COPYRIGHT 2000 Publishers' Development Corporation
COPYRIGHT 2001 Gale Group