Friday, July 11, 2008

No Charge for Officer in ’07 Killing

Published: July 11, 2008

A grand jury decided not to indict a police officer who killed a driver in a road-rage confrontation last fall but left and did not report the shooting for 19 hours, the Manhattan district attorney said Thursday.

John Marshall Mantel for The New York Times

Jayson Tirado, 25, at left in a family photo with his daughter, Jaylene, was shot by Officer Sean Sawyer in a driving dispute.

The decision may indicate that the grand jury considered the shooting by the off-duty officer, Sean Sawyer, justified.

According to the district attorney’s office, the shooting occurred during an argument after the second driver, Jayson Tirado, 25, reached toward the floor of his car, said, “Want to see my Ruger?” and then brought his arms up as if holding a gun. Officer Sawyer fired twice, hitting Mr. Tirado once, prosecutors said.

Mr. Tirado managed to drive a few blocks, and Officer Sawyer has testified that he did not know that Mr. Tirado died until the next day.

Officer Sawyer, 35, said in a telephone interview from his home on Staten Island that the grand jury’s decision was “bittersweet, because this young man did lose his life, and you can’t take that lightly.”

The victim’s mother, Irene Tirado, said she would not accept the grand jury’s decision. Speaking in her home on the Lower East Side as she held a blue box with her son’s ashes, she said, “Something’s got to come of this,” adding, “He can’t go free.”

Officer Sawyer, who has been suspended with pay, is likely to face departmental charges, according to his lawyer, Richard H. B. Murray.

Paul J. Browne, the department’s chief spokesman, declined to comment on the case in detail but said, “As in all cases where the department has deferred to the decision of a grand jury, the case would now be the subject of an administrative review.”

In the past, officers whose acts are taken before a grand jury have suffered departmental penalties, ranging from loss of pay to dismissal, even when the courts take no action.

Mr. Murray said the grand jury made “the appropriate decision based on the facts as my client recounted them and the friends of Mr. Tirado who were in the car.”

“It was a justifiable shooting under unfortunate circumstances,” he added.

The district attorney, Robert M. Morgenthau, said Officer Sawyer broke no law by leaving the scene, since the only possibly applicable law concerns vehicular accidents.

“I’m sure that most people would be shocked to learn that it is not a crime for a police officer to leave the scene of a shooting without reporting it as soon as practicable,” Mr. Morgenthau said on Thursday. “I share their outrage. But that is the law. As a result of this case, we will be submitting legislation to change that.”

Ronald L. Kuby, a lawyer for Mr. Tirado’s fiancée, Lisa Claudio, and his daughter, Jaylene, said he believed that because the defendant was a police officer, the district attorney’s office tried only half-heartedly to obtain an indictment.

“When they don’t want an indictment, they claim it was the grand jury that made the decision,” Mr. Kuby said.

The confrontation started early in the morning of Oct. 21, as Officer Sawyer was driving south on Franklin D. Roosevelt Drive after spending time at a bar in Woodside, Queens. Mr. Tirado was driving in the same direction after drinking with friends at a park in Upper Manhattan, the district attorney’s office said.

Traffic was being diverted onto 116th Street from the highway because of an accident, prosecutors said, and Mr. Tirado, driving a purple Honda Civic, cut in front of Officer Sawyer’s yellow Nissan Xterra, causing the two men to exchange words as they left the highway.

Officer Sawyer told the grand jury that Mr. Tirado started it by saying he was going to “knock him out,” prosecutors said.

A friend who was in the car with Mr. Tirado testified that Officer Sawyer started the argument by telling Mr. Tirado he needed to learn how to drive and threatened to shoot him, prosecutors said.

Officer Sawyer sped away and Mr. Tirado followed, prosecutors said, eventually catching up on First Avenue near 117th Street. After Mr. Tirado made his remark about a gun and brought his arms up, Officer Sawyer fired.

One shot hit Mr. Tirado, who was able to drive three blocks before his car slowed and he slumped over, prosecutors said. He was pronounced dead at Harlem Hospital Center. No gun was found in the car he was driving.

Mr. Murray said Officer Sawyer “reasonably believed Mr. Tirado was about to pull a gun.”

“A regular citizen licensed to carry a gun would’ve been justified,” he added. “The fact that he was a police officer under these circumstances is totally irrelevant.”

Mr. Kuby said Mr. Tirado’s actions did not provide a credible threat that he had a gun.

“Of course, he got preferential treatment because he was a police officer,” Mr. Kuby said. “If a civilian had killed a police officer under those circumstances, that civilian would be looking for bail money right now.”

A spokeswoman for the district attorney’s office, Barbara Thompson, declined to comment on Mr. Kuby’s assertion that Officer Sawyer was shown preferential treatment.

Since grand jury proceedings are secret, it was not clear exactly what charges the district attorney’s office presented to the grand jury.

In similar shooting cases, the first question addressed in a presentation to the grand jury is whether the shooting was justified. If the grand jury votes that the shooting is justified, then murder and assault charges cannot be sought.

Officer Sawyer testified that he did not learn until the next day that Mr. Tirado had died. After hearing the news on television, he left home for a nearby police station, prosecutors said, and told a police sergeant he encountered on the street what had happened.

Mr. Murray said his client had not reported the shooting immediately because he was in shock. “He was somewhat overwhelmed by it,” Mr. Murray said. “He did not believe initially he had struck anyone. It was just a moment of poor judgment.”

That moment could cost Officer Sawyer his job.

Both leaving the scene of a shooting and failing to report it are violations of the department’s Patrol Guide, its policy manual. Mr. Murray said he expected the department to file charges against Officer Sawyer, who had been assigned to the Queens narcotics bureau.

“If he’s brought up on charges for failing to make a timely report, there’s not much of a defense to that, to be honest,” Mr. Murray said. “It’s clearly in violation of the Patrol Guide, but then the question is, what is the appropriate action for that? And there are a lot of factors that go into that determination.”

Mr. Murray said his client should keep his job because of his overall good performance as a police officer. Officer Sawyer joined the force in 2004 and moved quickly through the undercover ranks.

Officer Sawyer said he was sure the department would “make the right decision.”

“It’s a great job and something I’ve wanted to do since I was 10 years old,” he said.

Mr. Kuby said no decision had been made on whether to file a civil lawsuit. He said it was unlikely that the federal authorities would investigate civil rights charges because Officer Sawyer was not acting as a police officer at the time of the shooting, a necessary factor for a case brought under federal jurisdiction.

On the Lower East Side on Thursday afternoon, the victim’s fiancée, Ms. Claudio, stood with 5-year-old Jaylene and pleaded for a different ending.

“They let cops get away with a lot of things,” she said. “Just for letting Jayson die on the street, he should be indicted.”

Colin Moynihan contributed reporting.

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