Thoughts on the Danner Shooting and Its Aftermath

On October 18, 2016, Sergeant Hugh Barry responded to a call of a violent emotionally disturbed person, Deborah Danner.

Ms. Danner had been threatening neighbors and shouting—as she had done on several occasions in the past. Security requested the response of police.

After threatening responding officers with a pair of scissors in hand, they coaxed her to set the scissors aside. But soon thereafter, she grabbed a bat and lunged at the sergeant. He shot her fatally.

Related:

Sergeant Barry was indicted for the shooting by a Bronx Grand Jury in May 2017 on a host of charges, including murder and manslaughter. The case went to trial in February 2018. At its close, Sergeant Barry was acquitted.

The incident and its aftermath, like any that ends in shooting and death, cries out for sober reflection. The key word is sober.

Let’s start with two broad points that might serve as a meaningful framework in evaluating the reasonableness of force employed by police in volatile encounters.

The first point is to understand what the law permits—what a police officer can do (not necessarily what he should do–that is an issue of context and tactics). What is permissible is captured primarily in a robust network of case law.

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In Graham v. Connor, the Supreme Court noted,

[T]he calculus of reasonableness must embody allowance for the fact that Police Officers are often forced to make split-second judgments—in circumstances that are tense, uncertain and rapidly evolving—about the amount of force that is necessary in a particular situation.

The principle is a standing reminder about the often fluid, chaotic and unpredictable nature of policing. And it should inform the analysis of this case.

To cite case law of more direct relevance to this incident, in Plakas v. Drinski (7th Circuit), an intoxicated person charged an officer with a fireplace poker raised above his head. The officer shot and killed him. The court reckoned his actions reasonable under the circumstances.

The general din of criticism in that case—as in this—was rooted in the idea that the officer ought to have employed “less intrusive” methods of force before employing deadly force.

The officer in that case—as in this one—did, in fact, employ less intrusive alternatives, namely, verbal persuasion, but to no avail.

In part, the court noted the following:

There is no precedent in this Circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can be justifiably used.

Pushing further, and with subtle insight, the court noted why a “least intrusive” requirement would be unreasonable:

Nearly every Court has commented on the fact that all decisions about deadly force (or any force) ‘must embody allowance for the fact that police officers are often forced to make split second judgments—in circumstances that are tense, uncertain and rapidly evolving’… we recognize that the decision to shoot can only be made after the briefest reflection, so brief that ‘reflection’ is the wrong word. As Plakas moved toward Drinski, was he supposed to think of an attack dog, of Perras’s CS Gas, of how fast he could run backwards? Our answer is, and has been no, because there is too little time for the officer to do so and too much opportunity to second-guess that officer.

One may mine the details of this and any number of other cases for relevance. The reasoning strikes me as decisive. Legally, if a person is coming or swinging at a police officer with a baseball bat, the police officer may shoot.

The second point is this: what are the detailed facts as known and what, if anything about them, screams unreasonableness?

The issue is not—please note—whether the incident screams tragedy. These are separate issues often conflated. All would agree, not the least Sergeant Barry that the incident ended tragically. But the tragic nature of the incident does not in itself entail that the actions of the officers were unreasonable.

Here are the facts of the incident as known: police officers respond to a call of a “violent emotionally disturbed person.” The subject of the call, a paranoid schizophrenic, has a history of aggressive behavior for which police have been called. As Sergeant Barry arrives at the scene, Ms. Danner is gripping a pair of scissors while threatening the officers. They manage to convince her to drop the scissors. Soon after, she grabs a bat and brings it back past her shoulder in a batter’s stance and moves toward Sergeant Barry. He shoots her.

Does a bat in the hands of an emotionally disturbed person about to swing represent a threat of “serious harm or death?” Might she have cracked his skull or his face? If you think not, why not?

Of most pertinence: could the Sergeant have reasonably believed, given the facts confronting him at the moment that she might have?

To answer in the negative seems tendentious.

I have heard Ms. Danner’s age cited as if it were in some sense relevant without any substantive explanation as to why it is relevant. Have 66-year-old women committed acts of violence in the past? Have they killed?

Eighty-year-olds have committed murder. Eleven year olds have committed mass murder.

Age, in itself, is hardly relevant. In any case, when a person cocks a bat back over a shoulder to swing it at you, you see the bat, the motion, and the fleeting thought of what it can do, not age.

That Ms. Danner was psychologically unbalanced has also been cited as if it carried some tactical relevance, but again, without any substantive explanation as to why.

I would suggest that psychological imbalance is relevant but in a way that tends to support the actions of the sergeant.

People who suffer psychological imbalance that disposes them to violence—I take it that threatening with scissors and lunging forward with a bat suffices as evidence of a disposition to violence—experience a distorted perception of reality.

That reality may be teeming with threats, demons, aliens; it may be girded by anger and paranoia.

In any event, there is no magic word or phrase, there is no inflection of the voice, that can magically return them to clarity. Any Psychologist that pretends that there is may be doing something but he is not doing science.

So, if a person who is, at the moment, suffering a distorted perception of reality lunges forward with a bat, what precisely is the sufficient response to secure the safety of the person attacked that will also satisfy all who were not there, were not attacked with a bat, sitting comfortably in the peace of their offices or homes playing arm-chair strategist?

If the sergeant had employed a Taser and the woman was seriously injured or killed, would we not be having essentially the same discussion?

And, yes, as previously reported in the wake of this incident, there are “multi-threat” targets used in training at the NYPD Range. The bat wielding threat is considered a lethal one.

A final point. This is an incident that should inspire discussion and debate. There are many weighty issues involved that merit a thorough hearing.

Here are some:

  • When dealing with the emotionally disturbed what is and what is not realistically possible—in rapidly evolving encounters?
  • How does real world stress affect performance?
  • What is the nature of decision-making under stress?
  • What obligations does Government have in monitoring the emotionally disturbed?

These are but a few. But evasion and cheap, weak, hipshot, bureaucratic responses like the ones we heard from politicians and police executives are vapid and vane.

To say, as the mayor of New York City and his police commissioner have, that the sergeant did not follow internal procedure, evading all the weighty issues of law and fact and everything that they imply, is precisely the kind of transparent political legerdemain that you would expect from simpering functionaries.

The statement suggests a facile, pandering kind of criticism, a simplistic, internal focus, prior to analysis, without actually saying anything substantial about what happened. Bald maneuvering of that sort is unbecoming a leader. Sergeant Barry and Ms. Danner deserve better.

Lieutenant Daniel Modell (ret.) served over twenty years in the New York City Police Department. He was Coordinator of the Tactical Training Unit and Training Coordinator for the Firearms and Tactics Section. He served as Adjunct Professor at the State University of New York-FIT where he taught self-defense and serves as Chief Executive Officer of Ares Tactical and Emergency Management Solutions. Lieutenant Modell secured a Bachelor of Arts Degree, Philosophy, New York University, 1989 and a Master of Arts Degree, Philosophy, University of Texas-Austin, 1994. He is author of  The Warrior’s Manifesto: Ideals for Those Who Protect and Defend.