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Officer Michael Carey Should Sue the NYPD Not the Sean Bell Estate

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Officer Michael Carey, who was recently named a defendant in a wrongful death action by the Sean Bell estate, has filed a counter-claim, seeking to sue the Bell estate for a leg injury he sustained when his van collided with Bell's car. The counter-claim has inflamed the blogosphere, and rightly so. Although such claims are an oft-used tactic in civil cases, this one is particularly outrageous, not to mention borderline absurdist, given the facts of this case.

Sean Bell, I'm sure you'll remember, was an unarmed black man killed when five police officers fired a total of 50 bullets at his car as he left a Queens strip club following his November 2006 bachelor party. Three of those officers -- Detectives Gescard Isnora, Michael Oliver, and Marc Cooper -- were acquitted of criminal wrongdoing in a 2008 trial. The other two, including Carey, were not tried, and, from reports, it seems this may be part of the beef Carey has with the Bell estate: that he wasn't charged in the criminal case but was named a defendant in the wrongful death suit.

Carey claims that Bell negligently injured him because when he got into his car he was intoxicated and wasn't wearing glasses. Experts testified at the criminal trial that, though Bell was nearsighted in his right eye, he had perfect vision in his left, and it was legal to drive in NYS with one good eye. But that he had one bad eye and had been drinking at his bachelor party were hardly the causes of his car's collision with Carey's.

The NYPD team went to Kalua Cabaret that night in hopes of making a prostitution arrest -- there had been such an arrest there the prior week and they needed one more to close the club. Most of the team members had never worked in Queens before, having just transferred from a Chelsea initiative. Isnora, the operation's primary undercover, had been the undercover in the prior arrest, and testimony made clear Isnora was fearful he'd be recognized and subjected to great danger. Because of this, his backup undercover went into the club first to ensure none of the prior arrestees were inside. He told Isnora he was clear to come in but warned him the crowd was rowdy. Isnora went inside and began trying to do his job that evening -- soliciting dancers for prostitution. After a dancer looked at him suspiciously and asked if he was a cop, he became more nervous and called for an additional backup officer.

According to a dancer in the club, one of the dancers brought her boyfriend into the backstage changing room. When another dancer needed the room and asked the boyfriend to leave, he punched her.

Out in the bar area, Isnora, who was trying unsuccessfully to solicit another dancer, saw a woman walk up to a man and tell him a man backstage had just hit her. That man touched his waistband and fingered an object under his clothing that to Isnora resembled a gun, and told the woman not to worry, he'd take care of it. The man, who was wearing a White Sox baseball cap, then walked off.

Isnora told his two backup undercovers what he'd just seen, then went outside and called the team's lieutenant. The lieutenant ordered them to find the White Sox man. The undercovers searched the club but couldn't find him.

After the club closed, the lieutenant ordered Isnora and his backup to stand outside and wait for the White Sox man to exit. Before doing that, Isnora went to his car and armed himself.

White Sox man never emerged. As Isnora and his backup officer stood outside, they saw a man standing in front of a black SUV. Sean Bell and his friends (there were about seven) were in a group talking. Bell, realizing he'd left his hat inside the club, went back to retrieve it. When he came back out, the man in front of the SUV called him over and said, "You can't be doing that. I got bread in there," indicating he thought Bell was going inside to get a prostitute and he was her pimp and letting Bell know he wasn't allowing it. Bell was annoyed and had a few words with the SUV man telling him not to tell him what to do. But the SUV man kept arguing and eventually made a veiled threat that he lived in the same neighborhood as Bell and should look out for his vehicle. The argument escalated and Bell's friend, Joseph Guzman, walked over, followed by several of Bell's friends. The SUV man reached into his pants pocket and pointed something through its fabric that appeared to be a gun. One of Bell's friends said something along the lines of, "Don't point that at us or we'll take that gat from you." (Gat is slang for gun).

Isnora and the backup undercover who watched the argument heard Guzman say, "Go get me my gat." None of Bell's friends heard Guzman say anything about getting a weapon, though some heard another member of the Bell party mention a gat in reference to the weapon the SUV man apparently had. According to Bell's friends, Guzman and the others decided the SUV man wasn't worth fighting with and walked off. Isnora thought Guzman was going to his car to get a gun to do a drive-by of the SUV man.

The SUV man drove down the street after the Bell men, but determined they didn't pose a threat and returned to the club.

The lieutenant ordered Isnora to follow the Bell men while the backup undercover stayed behind to wait for White Sox man. Isnora put on his badge and followed the men, but as he got to the corner, several of them stopped and were talking, so Isnora took off the badge and put it in his pocket so they wouldn't know he was a cop. After he passed them, he said, he clipped his badge back on, at the top of his collar. He also took out his gun.

Isnora saw Bell and Guzman get into Bell's car. He called the lieutenant and described the men and location. The lieutenant said he was on his way and called Oliver and Carey to come to the scene as well but failed to be specific as to the exact location. According to Oliver's Grand Jury and Carey's trial testimony, they drove around the area looking for either Isnora, the lieutenant or a man with a White Sox cap. They tried to call the lieutenant again but he didn't respond. Their testimony also revealed they became nervous once the lieutenant told them there was a gun involved. They'd expected a prostitution bust not a weapon recovery case. Once the case had been elevated in seriousness, they put on protective vests before proceeding to the scene.

Guzman got into the passenger seat, Bell the driver's. According to police reports, Bell was intoxicated. Guzman was not.

Isnora stood off to the side of the street and waited for the lieutenant and the arresting officer to arrive and stop Guzman. Soon, the lieutenant drove by. Isnora pointed at Guzman but the lieutenant didn't stop. Isnora assumed the lieutenant hadn't seen him. The lieutenant said he did see Isnora but continued down the street, stopping near the end. A passenger in the lieutenant's car figured Bell and Guzman weren't the suspects since the lieutenant didn't stop. One big mystery of this case remains, to me at least, why the lieutenant didn't stop when he saw Isnora.

Suddenly Isnora saw Guzman looking right at him. Isnora was scared. He claimed he said, "Police, don't move, put your hands up." None of Bell's friends heard Isnora say that, but one heard him say "Let me holler at you" (let me talk to you).

Meanwhile, Oliver and Carey were driving around the area directionless. Finally, they spotted the lieutenant's car and took off down the street after him, seeing him round a corner.

Guzman saw a man holding a gun coming at them. Scared it was an attempted hijacking, he said to Bell, "Go. Go, go." Bell, now seeing the gunman too, stepped on the gas. As he pulled out from behind the car parked in front of him, Oliver was rounding the corner and driving down the street trying to catch up with the lieutenant. The two cars collided and stalled. Guzman saw the man with the gun now coming up from behind and yelled at Bell again, "Go go go." Bell frantically put the car in reverse, backed up, and pulled out again, trying to go around the van. But he misjudged and struck it again.

Bell's car struck the van as Carey was getting out and ordering Bell to stop. This is when Carey sustained the leg injury that he now complains of. (I haven't read his counter-claim but when he testified at trial he looked fine.)

After running into the van again, Bell's car again came to a halt. This time Guzman and Isnora locked eyes. Isnora thought he saw Guzman reaching into his pocket. Isnora feared Guzman was going for a gun and yelled to Oliver and Carey, "He has a gun!" then fired at Guzman. When Oliver heard the gunshot and saw glass from Bell's windshield spray outward at the officers instead of into Bell's car (expert testimony revealed it's not uncommon for glass to spray outward, against a bullet) he assumed someone inside the car was firing and he began shooting as well. Oliver fired 31 times, stopping briefly to reload. Carey fired four times and Isnora eleven. (The rest of the bullets came from officers in the lieutenant's car.)

No gun was found in Bell's car or on any members of the Bell party.

Two hotly contested factual issues were whether Isnora identified himself as a police officer and whether he had his badge on. Having watched the whole trial, I believe a reasonable finder of fact could easily have concluded that either Isnora was so nervous he forgot to put his badge back on after he took it off to pass Bell's friends, or else he did put it back on but so high on his collar and around his neck that it wasn't readily seen. I also think, if he did say "police, don't move," he said it so quietly no one heard. It was clear to me that no one in Bell's car had any idea the man approaching with a gun was an officer. Before the men in Bell's party went into the club that night, they were stopped at Bell's car and carded by another officer. None of them gave that officer any problem whatsoever. No one was interested in hassling police and certainly not in running one over. They'd just gotten into a fight with a threatening individual who likely had a gun. And now, they saw another gunman coming at them.

This post is long and I've still left out many, many facts, but suffice it to say, it's ludicrous of Carey's attorneys to argue that his injury stemmed from any negligence on Bell's part. His injury was the result of the same thing that caused Bell's death -- a botched undercover operation that probably shouldn't have been conducted in the first place, and more perniciously, the underlying systemic racism that leads to race-based assumptions and fear.