Pubdate: Fri, 16 Jun 2000 Source: New York Times (NY) Copyright: 2000 The New York Times Company Contact: 229 West 43rd Street, New York, NY 10036 Fax: (212) 556-3622 Website: http://www.nytimes.com/ Forum: http://www10.nytimes.com/comment/ Author: Juan Forero DISTRICT ATTORNEY FINDS NO CASE IN POLICE SHOOTING OF UNARMED SUSPECT After a three-month investigation into the fatal shooting of an unarmed drug suspect by a police officer, the Bronx district attorney's office has ordered the case closed, concluding that the officer's gun discharged accidentally during a struggle with the suspect. District Attorney Robert T. Johnson said yesterday that the March 1 shooting of the suspect, Malcolm Ferguson, would not be presented to a grand jury. He said the officer, Louis Rivera, had provided a detailed account of the struggle that was corroborated in important ways by several witnesses. "We feel that it was not appropriate to submit this case because, under the facts as we have them, no criminal charges would be warranted," said Mr. Johnson, who released a 29-page report outlining the findings of the investigation. The shooting came five days after four police officers were acquitted in the death of Amadou Diallo, who was shot in the vestibule of his apartment building in the Soundview section of the Bronx. Mr. Ferguson was killed just two blocks away, and the shooting led to angry protests in the neighborhood. Mr. Ferguson, 23, who had been in and out of jail on drug charges, was shot once in the head at close range as he and Officer Rivera struggled furiously on the stairs leading to the second floor at 1045 Boynton Avenue, the investigation concluded. Officer Rivera had chased Mr. Ferguson into the stairwell after he and other members of a plainclothes anti-drug team had spotted men milling in the lobby of the building and confronted them on suspicion they were dealing drugs. Mr. Johnson noted that his release of the detailed report, which law enforcement officials said was unusual, offered the public a point-by-point reconstruction based on interviews with 32 people -- 10 of them civilians -- evidence collected at the scene and two examinations of Mr. Ferguson's body. Mr. Johnson said that had a case been presented to a grand jury, Officer Rivera would not have been indicted and the secret testimony would never have come out. "This was an instance where an officer had his weapon drawn, one shot was fired, where we in no way were able to indicate that that was an intentional act or even a reckless act under the circumstances," he said. "And I think upon reviewing the facts there will not be any uproar." A statement issued by the Ferguson family's lawyer, Andrew R. Miller of Brooklyn, said that the shooting "was totally unjustifiable and it is inconceivable that the shooter will go unpunished in the criminal court." Meanwhile, Stuart London, Mr. Rivera's lawyer, said that his client was pleased by the outcome. Officer Rivera cooperated fully with the investigation, Mr. London said, noting that the officer was interviewed twice by Ed Talty, chief of homicide investigations for the district attorney's office, and that he helped investigators in their reconstruction of the shooting scene in a Bronx building. "He didn't just sit in an office," Mr. London said. "We went to a scene to try to explain all the facts and circumstances so that it would be easily understandable, and that they were justified under the circumstances." In the report's reconstruction, Officer Rivera rushed into the building, yelling, "Police!" and pulling out his badge, after another officer signaled that there were drug dealers in the lobby. Mr. Ferguson, who had tried to keep the officers out by pushing the door closed, fled. Two other men remained in the lobby, where other officers detained them, and a fourth man ran ahead of Mr. Ferguson, the report said. Unable to see where the fourth man was, Officer Rivera drew his 9-millimeter semiautomatic handgun as he ran behind Mr. Ferguson. In the ensuing moments, he grabbed at Mr. Ferguson and lost his grip as the suspect charged up the stairs, the report said. At the first small landing between the first and second floors, according to the report, Mr. Ferguson reached backward with his left hand and grabbed Officer's Rivera's left arm. Their arms interlocked. "Stop resisting," the officer said, according to the report. "Why are you resisting?" The two fell onto the stairs, still gripping each other. The report said that Officer Rivera began to lose the grip on his gun. He tried to regain the hold while also grabbing Mr. Ferguson's shoulder, leaving the muzzle next to Mr. Ferguson's head. The weapon then discharged. Officer Rivera said he believed that his index finger had slipped during the struggle and pressed the trigger. The report noted that no one saw the gun discharge, but two witnesses seated at a window in the building just south of 1045 Boynton told investigators they saw the men in a struggle that lasted 7 to 10 seconds. And the fourth man, who had run ahead of Mr. Ferguson, said he had heard a "tumble" coming from the stairs below and "grunting" noises. In the aftermath of the shooting, the police found a plastic bag that contained heroin inside Mr. Ferguson's shorts. The report said that Officer Rivera had not intended to shoot Mr. Ferguson, and noted that the officer was justified in pulling out his weapon as he faced the prospect of chasing two drug suspects into a darkened stairwell. - --- MAP posted-by: Don Beck