In the short time since Councilmember James Davis was murdered July 23rd in the City Council's chambers on the second floor of City Hall, New Yorkers have struggled to make sense of this homicide, to little avail. Our bafflement is in part due to the historical peculiarity of the crime. Until Wednesday, City Hall was, and always had been, one of the safest places in New York. Davis's murder was unprecedented. Historians have been unable to find any record of any other murder in City Hall itself.
Just as puzzling as Davis's brutal murder is his public persona that combined charm and coercion. He was an affable, charming, conscientious official who had fought powerful establishment organizations--the Brooklyn Democratic machine and the City Council leadership--but maintained friendships with his opponents. Indeed, his two most influential antagonists, City Council president Gifford Miller and Brooklyn Democratic boss Clarence Norman, both praised him lavishly after his death. Even his killer, Othniel Askew, was a political rival whom he had befriended and, he believed, won over. Yet Askew's rage was so great that he emptied his gun into Davis's body, shooting all seven bullets, according to Police Commissioner Ray Kelly. Kelly also said Askew was carrying more bullets in his sock.
The only mayor ever gunned down while in office was William Gaynor, who was shot across the river from City Hall, in Hoboken, New Jersey, in August 1910. James Gallagher, a former city employee who had been laid off during Gaynor's fiscally stringent administration, leapt to the podium where Gaynor was speaking and shot him in the back of his neck, just below his right ear.
Gallagher had repeatedly written the mayor and other officials and shown up at City Hall, asking to be reinstated in his job. After he was wrestled to the ground by a mayoral bodyguard, he was found to be carrying in his pocket a letter from the mayor's secretary: "He can do nothing for you in the matter in which you write."
The city was stunned. A mayoral aide said that "public office is no longer safe." State legislators apparently agreed, and passed the Sullivan lawin 1911, which required that handgun owners apply for permits from the police department. This was the first step in the long process culminating in New York City's having the most stringent gun control procedures in the country--procedures that were not successful, however, in keeping a gun out of the hands of Davis's killer. In fact, Askew had followed the well-worn path of thousands before him by buying a handgun in North Carolina, which has almost no gun regulation, and transporting it to New York, probably by truck. Commissioner Kelly told New York One that "we're plagued by guns bought elsewhere," naming such Southern states as Georgia and Alabama.
Councilmember Davis was himself armed. As a former police officer, he held onto his service weapon and to the permit that came with it. Acquaintances said he was proud of the gun and would sometimes whip open his coat to show it. One of the most sensible recommendations subsequently implemented at City Hall is a ban on all guns other than those carried by police officers on duty. Most New Yorkers are surely amazed to have found out that procedures were ever otherwise. After all, a gun permit does not entitle the holder to carry a gun everywhere.
Mayor Gaynor survived his shooting for three more years, but in great pain, with the bullet permanently lodged beneath his right ear. Councilmember Davis was dead on arrival at the hospital that afternoon. Both were murdered by angry men, perhaps deranged men, in circumstances in which they should have been safe. Gallagher was found to be suffering from paresis and was confined to the New Jersey Hospital for the Insane, where he died, according to Gaynor biographer Lately Thomas. Askew's life is now being investigated by the NYPD, though his family expressed surprise and shock at the killing.
Ironically, during a July 17 interview with Brooklyn-based freelance writer Carla Thompson, the late council member spoke of the importance of psychological testing in the issuance of gun permits. "We are failing across the board in psychological testing. People who have gun permits need to be screened," said Davis. He recommended screening for potential foster parents and cops on the beat. "[Cops] are screened at first, but who's to say he or she doesn't get burned out? They need to be re-screened." He added, "You can't check enough. When you have a wait-and-see attitude, tragedies happen."
And a tragedy did happen, though we do not know yet whether Askew--like his predecessor Gallagher--was mentally unstable. What we do know is that the ancient principle of assassinations still stands--a killer who is willing to die cannot easily be deterred. Add to that the oddity of Davis's having let his murderer bypass the gun-detection machines and we have a new scenario for the future: everyone, including the mayor and visiting dignitaries, will be required to go through security machines.
What are we to conclude from this murder carried out in the very heart of City Hall? First, the NYPD performed flawlessly. A young plain-clothes officer shot and killed the assailant, without wounding any bystander. Second, the NYPD moved into a high terrorism alert, but calmly and methodically. As it uncovered the facts of the homicide, the department reopened the Brooklyn and Manhattan bridges and Lower Manhattan.
This murder did not represent a lapse in police judgment requiring punishment or reform, but rather a lapse in judgment by the promising politician who waved his killer past police barriers.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.
Last New Year's Eve, a three-year-old child in Brooklyn suddenly collapsed, had a seizure and was rushed to Kings County Hospital in Brooklyn. The doctors inserted a tube in her throat to breathe, and another tube through to her stomach for nourishment.
The child never regained consciousness.
Thus was the beginning of a case that has resulted in a humane decision by Supreme Court Justice Doris Ling-Cohan, one that would not have been necessary if the New York State Legislature would pass a bill called the Family Health Care Decisions Act.
The Case
The doctors diagnosed the child as having suffered "massive loss of brain functioning" from an abnormal rate of heart muscle contractions. The child, the doctors concluded, would remain permanently unconscious, totally unaware of her environment, without the ability to think or interact - a vegetative state..The child was kept alive by a mechanical ventilator and the feeding tube.
The child's mother visited the unconscious child every day. Unwilling to continue to watch her daughter suffer without hope of recovery, the mother consulted the doctors, the hospital's medical ethics team, her family, and the child's father on whether to terminate life support. All parties agreed that ending life support was in the best interest of the child and the mother was fully capable of making that decision.
But the Health and Hospitals Corporation, the city agency that oversees the hospital, refused the mother's request.
Why The City Refused
In denying the mother's request, the Health and Hospitals Corporation cited its policy that prohibits staff from withdrawing or withholding care without the individual's consent.
The policy is rooted in the legal recognition that competent adults may refuse treatment. Children, however, cannot make this decision because they are not old enough. The question then arises, who can make that determination on behalf of a child in a vegetative state?
Most states, recognizing the care and love of family members, have left this determination to the family. New York, however, has not.
In 1981 the New York State Court of Appeals, the highest court in the State, ruled that the state is responsible for making the determination on behalf of a child and can supersede the wishes of the family. That case, Matter of Storar, found that the state serves as the omniscient parent for the public and may supercede a family's refusal to treat an individual.
Throughout the 1980's and 1990's most states began to recognize a parent's right to refuse unwanted medical care on behalf of their child in consultation with doctors without receiving court approval. In 1993 the first proposal in New York for family decision making to terminate life support was introduced in the Assembly. Every time the bill passed the Assembly it languished in the Senate..
Currently, New York and Missouri stand alone as the only two states that do not recognize that responsible parents, in conjunction with doctors and medical staff, are in the best position to determine whether to end a child's life support.
Justice Ling-Cohan's Decision
Earlier this year the mother filed suit to prohibit the continued languishment of her child. The mother sought to have the Health and Hospitals Corporation's policy declared void.
At trial, several doctors testified that the child had no hope of recovering and that the mother was a caring, devoted and loving parent. In addition, the doctors and a guardian appointed for the child testified that the mother made a fully informed decision.
Then the mother testified. The record is sealed as to what she said.
In May in a strongly worded decision, Justice Ling- Cohan ruled that "[a]bsent extraordinary circumstances such as incapacity, conflict of interest, or disagreement between parents, a parent of a minor child with an established diagnosis of persistent vegetative state should have the right to decide whether to terminate life support in the best interest of the child, without the necessity of judicial intervention."
The decision, Justice Ling-Cohan concluded, "to end the dying process of a minor child is a personal decision for the parents, in consultation with the child's medical providers, as they bear the legal, moral and ethical responsibility for their child. . . . [There is no] State interest great enough to compel [the child] to remain subjected to this extraordinary life-sustaining measure."
Conclusion
While the image of a three-year-old child lying in a persistent vegetative state is horrendous, it is hard to imagine how much pain her mother suffered watching her own child in that state and then being forced to testify about it.
A bill now pending in the Senate, the Family Health Care Decisions Act, would rectify this by making judicial intervention unnecessary when numerous safeguards are met. It would be irresponsible, particularly in light of the existence of these laws in 48 other states, for the Senate not to move on this bill.
Matter of AB, Index No. 401184/03 (Ling-Cohan, J.) (N.Y.Cty.Sup.Ct.) May 20, 2003 (N.Y.Cty.Sup.Ct.) (Attorneys: Elisabeth Benjamin, Samuel Davol, for AB; Salvatore Russo, Stacey Mondschein, Kenneth R. Larywon, Michael Zhu, for HHC).
Controlling the police may be the toughest management job there is. Every patrol study ever done shows that street cops work most effectively when they're given the discretion to respond instantly to trouble. As University of Chicago law professor Kenneth Culp Davis pointed out years ago, the police make far more discretionary determinations in individual cases than any other class of administrators. Culp said there was no close second. Yet police commanders need to know that cops are out there actually working productively and treating community residents fairly. The inevitable tensions are immense and made workable in New York only by the NYPD's evolving structure of carefully selecting, testing, and training recruits - and then supervising them under a chain of command. But in the end, decades of enhanced professionalization and reform mean little without one basic principle: trust. We all have to be able to trust that police officers -- armed and authorized by us to patrol our neighborhoods -- are honorable, decent, sensible people worthy of positions of trust.
The police commissioner's management authority has been undermined by federal Judge John Sprizzo's June 23 ruling, following a non-jury trial, that the city did not have the right to fire a police officer and two firefighters who rode in blackface and wore Afro wigs on a parade float in 1988. Police Officer Joseph Locurto and the two firefighters were punished, wrote Sprizzo, "in retaliation for engaging in protected speech." This "protected speech" involved being part of a float with the banner "Black to the Future: Broad Channel 2098," which the defendants said was a parody of black racial integration into the mainly white Broad Channel neighborhood. They threw watermelon and fried chicken at parade goers and, as the parade was ending, a firefighter grabbed the back of the truck and dangled himself toward the ground, re-enacting the brutal dragging murder of a black man in Texas two months earlier. (You can decide for yourself what you think of the activities on the float by watching the video offered by ABC News/Channel 7's web site.)
This activity constituted protected speech "on a matter of public concern," wrote Sprizzo, because the float sought "to comment on the future racial integration of Broad Channel" and to win the prize for the funniest float, "a prize the group had won in the past with other ethnicity-parodying floats." The group's earlier efforts included "The Gooks of Hazzard," which parodied Asian Americans, and "Hasidic Park" about Jewish Americans. Sprizzo rejected the city's claims about the management consequences of such public behavior going unpunished, writing that this "concern was unreasonable and, in any event, insufficient, as a matter of law, to outweigh plaintiff's constitutionally protected speech rights." The men are all seeking reinstatement in their jobs, back pay, and money damages. A hearing will be scheduled on remedies in the case. Corporation counsel says it will appeal.
COPS AND FIREFIGHTERS CLASH AFTER STUPID TRICK CAPER
Cops and firefighters were also in the news for another unfortunate conjunction of the two agencies. An inept burglar who had lowered himself into a chimney in Luigi's Italian Restaurant in Queens started screaming when he found himself stuck. A passerby called 911, which dispatched regular firefighters and police officers from the local 115th precinct, as well as members of two rescue units, the police Emergency Service United and fire's Rescue 4. Once on the scene, rescuers from the two agencies disagreed on how to extract the burglar from the chimney. Firefighters wanted to pull him out from above, while the police decided to rip out the wood paneling covering the shaft inside the restaurant, hacking through a layer of bricks. During the rescue, the police sealed the restaurant as a crime scene and ordered firefighter John Gaine to leave, resulting in a fight and Gaine's arrest. "Well, it's the kind of thing you simply hope would never happen," said Fire Commissioner Nicholas Scoppetta. Mayor Michael Bloomberg said that the police and fire commissioners are meeting to sort things out.
The daughter of the restaurant's owner had suggested pouring olive oil into the shaft to grease the burglar and pop him right out without smashing walls, according to the New York Times. On reflection, though, she decided the cops were right to ignore the idea: "Virgin olive oil is expensive. My mother would have been annoyed."
Luigi's owners told New York 1 that they had been watching "Stupid Acts Caught on Tape" when the whole caper started. They also said they were left with rubble at their restaurant. "Not I've got a hole, destruction, and a mess," said co-owner Josephine Napolitano.
NO DANCING ALLOWED-STILL
Supporters of dance in New York -- and who isn't? -- were elated when they heard that the city's Department of Consumer Affairs was going to be holding hearings on New York's repressive 77-year-old cabaret laws on June 24. Representatives of Legalize Dancing jubilantly predicted that the city's days of regulating, and banning, dancing were over.
The hearings proved to be no such thing. Formal and stale in format (all questions from the audience had to be submitted in writing), the hearings mainly provided a forum for a few important nightclub owners and representatives to complain about their main beefs. Thus David Rabin, owner of the humongous but fully licensed Lotus and president of the New York Nightlife Association, took the opportunity to protest the mayor's anti-smoking legislation, which nearly everyone in the industry regards as a lethal, business-killing law. One of these days New York is going to end up looking like Cleveland, he told Newsday's Dennis Duggan.
He also noted that the main problem for most neighborhoods is what he called "outside noise," rather than the noise from music and dancing in the club itself. The outside noise problem has been greatly exacerbated, of course, by the smoking ban, since smokers now congregate in the streets. Rabin said, however, that no nightclub owner calls the cops because that will only produce a "disorderly premise" ticket, which will then be used against the club's license renewal. Does Yankee Stadium get tickets, he asked, for disorderly patrons? Or Madison Square Garden? Not at all. Both of these are patrolled by cops -- some on duty, some as part of the NYPD's paid detailed unit of off-duty cops. Rabin would like nightclubs to be able to hire off-duty cops (preferably in uniform) to patrol outside the clubs, a proposal supported warmly by the police union, the PBA.
Under the state's Alcoholic Beverage Control Act, which forbids cops from being associated with alcohol sales, police officers are now prohibited from doing security work outside bars.
Sean Schwartz, owner of Halcyon, which lacks a cabaret license, argued that dancing should not be part of the equation to begin with. "It was wrong 77 years ago," said Schwartz, and wrong a few years ago for Giuliani to dust off and enforce the cabaret laws. Indeed, so far this year, the city has padlocked 11 places that permitted dancing without a cabaret license. Between 1999 and 2003, the city had closed 20. According to the New York Times, the Giuliani administration tended to remove or threaten places that held licenses as punishment for a range of violations, from inadequate exits to drug use by patrons.
Passed in 1926 to regulate (some historians say to suppress) jazz in Harlem, the cabaret laws targeted the "social mixing" that seemed to accompany jazz, says NYU Professor of Law Paul Chevigny, author of "Gigs: Jazz and the Cabaret Laws in New York City." The cabaret laws restrained jazz by requiring that a hard-to-get cabaret license be held by any restaurant that had live music.
In May 1986, the Musicians Union, represented by Chevigny, sued on First Amendment grounds. After a five-year legal battle, New York Supreme Court Judge David Saxe declared the three-musician rule unconstitutional, ruling that live music had to be allowed in zones permitting bars and restaurants. It was a great triumph, but the suit left alone the regulation of dancing, which remained subject to the cabaret license requirement.
Thus restaurants that allow dancing are still held to more stringent zoning requirements than other restaurants, which are permitted in all commercial and manufacturing zones. With their odious history, the cabaret laws have frequently gone unenforced. The Dinkins administration, for example, ignored them altogether. They were resuscitated, however, by the Giuliani administration, which saw them as a potentially powerful tool for shutting down huge, noisy, drug-infested nightclubs.
Relief from the city is not on the immediate horizon. Gretchen Dykstra, the consumer affairs commissioner, said that unless the laws change, which is doubtful, members of the nightlife task force (called March for Multi-Agency Response to Community Hotspots) will continue to crack down on unlicensed cabarets.
Julia Vitullo-Martin, a long-time editor and writer on urban affairs, is the former director of the Citizens Jury Project at the Vera Institute of Justice. She is now writing a book entitled The Conscience of the American Jury.