September 10, 2004

Family Granted New Trial in Police Killing of Troubled Man

By WILLIAM GLABERSON

federal judge dealt a stinging setback to the city and the police yesterday by overturning a jury verdict that had cleared the city of liability in the 1999 police shooting of an emotionally disturbed man who was clutching a hammer.

The decision granted the family of the man who was killed, Gidone Busch, a new trial seeking damages for the shooting.

The death of Mr. Busch on the sidewalk outside his Borough Park apartment raised questions about police officers' handling of emotionally troubled people and about the reaction of city officials in the administration of Rudolph W. Giuliani. But a long public battle over the case seemed to end after a federal jury in Brooklyn found last November that the city and five police officers were not liable.

In the ruling yesterday, Judge Sterling Johnson Jr. of United States District Court in Brooklyn said he had serious doubts about the credibility of some of the police officers who testified and a lone civilian witness who backed the police account that Mr. Busch had lunged at officers before the shooting. The judge said the officers had provided "exaggerated or overstated" testimony.

Judge Johnson, a longtime federal judge who was once a New York police officer himself, said that the jury's verdict was against the weight of the evidence, and that "permitting the verdict to stand would result in a miscarriage of justice.''

Judge Johnson presided at the monthlong trial in Brooklyn federal court last year. Yesterday, in a detailed 41-page ruling, he said he had found a series of civilian witnesses credible in testifying that Mr. Busch was standing still when the officers opened fire.

The judge said he discounted claims by lawyers for the city that civilian witnesses called by the lawyer for the family, Myron Beldock, had colluded in describing the police shooting as unprovoked. But he said Mr. Beldock "presented specific evidence suggesting collusion by the officers.''

Mr. Busch, a 31-year-old Hasidic man with a troubled history who had behaved bizarrely in the hours before his confrontation with the police, was shot 12 times by a group of officers who encircled him on a Borough Park sidewalk. The shooting, in a neighborhood that includes many Hasidic residents, brought allegations that the killing did not draw the same outrage as the questionable police shootings of young black men like Amadou Diallo, a West African immigrant who was shot at 41 times in the Bronx in February 1999.

Doris Busch Boskey, Mr. Busch's mother, who pressed the case, said yesterday that the decision would give her family another chance to vindicate her son. "Somehow,'' she said, "finally, maybe justice will be done. People will see that my son was not lunging, was not attacking."

Ms. Boskey and other family members reacted with shock in November when the jury reached its verdict after less than a day of deliberation. "Maybe somehow,'' she said yesterday, "the truth will come out and there will be some accountability.'' No criminal charges were ever brought against the officers. After the jury verdict against the family, lawyers for the city filed a notice that they were seeking $176,000 in legal costs from the family.

Michael A. Cardozo, the city's corporation counsel, whose office represented the city and the five officers who were sued, said in a statement yesterday that the city was extremely disappointed in the decision, which he said was "wrong both legally and factually."

He said the city was weighing its legal options. Other lawyers said it appeared unlikely that the city could appeal the decision before a new trial.

"It is for the jury - not the judge - to weigh the credibility of the witnesses,'' Mr. Cardozo said. "The judge improperly substituted his judgment for that of the jury.''

Patrick J. Lynch, president of the Patrolmen's Benevolent Association, said Judge Johnson's decision was wrong. "New York City police officers,'' Mr. Lynch said, "have no script to follow on the streets of New York. They have to make split-second decisions when faced with danger. In this case we believe the officers took the only option left open to them.''

The shooting drew notice almost from the start because of the aggressive approach of Mayor Giuliani and Howard Safir, then the police commissioner: they said that the shooting was justified. Mr. Safir said that Mr. Busch had attacked the officers with the hammer.

At the trial a central issue was exactly how threatening Mr. Busch was with the 11-inch household hammer, which Mr. Beldock often held aloft in the courtroom.

Judge Johnson's decision focused repeatedly on that issue. He said two of the officers centrally involved in the shooting, Lt. Terrence O'Brien and Sgt. Joseph Memoly, "gave exaggerated or overstated versions of the events, especially regarding key details about the shooting."

For example, he said, Lieutenant O'Brien testified that Mr. Busch was very close to him when he fired his gun, and Sergeant Memoly claimed that Mr. Busch was bringing the hammer down on Lieutenant O'Brien's head just before the shooting. But, the judge said, a ballistics expert called by the city had testified that Mr. Busch was five to eight feet away from the officers.

Lieutenant O'Brien, the judge noted, testified at the trial that Mr. Busch took violent "baseball bat" swings at him and struck his body with the hammer. "However,'' the decision said, "pictures taken shortly after the incident disclosed only a slight abrasion" on Lieutenant O'Brien's wrist.