Yes, well, sort of.
I’m not here to defend it, mind you, just to explain it. How is it, Ricochet editor Troy Senik writes to ask, that an unarmed man can be charged with assault? He sent along a link to this story at the Reason website, in which is recounted an incident that occurred back in September in a busy Manhattan intersection. A man suffering from some mental disorder had begun acting strangely at 8th Avenue and 42nd Street, running amok and into the path of oncoming cars. This attracted a crowd which soon included several police officers, who tried without success to order him out of the street.
According to police, the man reached into his pocket and then appeared to draw a gun, taking a stance as if prepared to shoot. Officers fired, missing the man but striking two women who were among the onlookers. The man was soon arrested and charged with menacing, drug possession, and resisting arrest, but last week a Manhattan grand jury charged the man with assault, accepting prosecutors’ contention that it was the man’s actions that provoked the officers to shoot and thus cause the injuries to the two women.
Again, I’m not defending it, just explaining it. And to assist me in this explanation I turned to one more qualified than I to comment on legal matters, Los Angeles deputy district attorney Patrick Frey. Frey is the proprietor of his own website, one that I have written for and can commend to your attention.
Frey tells me that the man was charged under the “provocative act” theory, which in this case seems to be one that only a lawyer can appreciate. A more typical scenario for this theory would be one in which two men act together to commit a robbery. They point guns at the intended victim, who pulls his own gun and kills one of the robbers. The surviving robber can be charged with his partner’s death under the theory that his provocative act brought the deadly response from the intended victim.
Having explained it to me, Frey added the caveat that he would never take a case like the one in New York to trial, as no jury would ever return a guilty verdict. In obtaining the grand jury indictment, the prosecutors seem to be playing for a plea deal, hoping for a guilty plea which will in turn help in the city’s defense to the lawsuits sure to be filed by the two injured women.
After his arrest, the man informed police he was suicidal, and his apparent intent was to commit “suicide by cop.” Alas for him, and for the two unfortunate women, the officers’ marksmanship left much to be desired.
In the end, the city will surely pay out to the two women, as well they should. And as for the disturbed man, he will most likely spend some time in jail, and upon his release he will most likely repeat the behavior that started the mess in the first place. And so it goes.