Mimesis Law
20 September 2020

NYPD’s Wayne Isaacs: Road Rage, Self Defense and The Off-Duty Cop

July 14, 2016 (Fault Lines) — In the wake of a week of debates over black lives versus blue lives, NYPD officer Wayne Isaacs has been removed from active duty and placed on a desk during the investigation of his off-duty shooting of Delrawn Small.* The interesting twist in this particular case is that Isaacs was off-duty and not in uniform during this encounter. As such, does he enjoy the same benefit of the doubt afforded officers who fire upon citizens while in fear for their own safety?

Officers, while assigned particular shifts for work, are often referred to as “always on duty.” They have the ability to enforce laws, carry a gun, and otherwise perform police duties regardless of their assigned shift. Can an officer ever be off-duty and judged as any citizen would be?

Isaacs was off-duty when he reportedly cut-off Small in traffic. Small followed Isaacs and then approached Isaacs’ car (not a marked police car) to confront him. In a split second, Small ended up dead after Isaacs fired at him at least twice.

In a series of New York Post articles, the story has developed into a horse of a different color. It started with Isaacs cutting-off Small in traffic a few blocks back. Then, Small reaching in the window and assaulting Isaacs in a fit of road rage, and Isaacs fearing for his life and firing upon Small. Isaacs claimed he was repeatedly struck in the face and head; causing him to fear for his life, pull out his weapon, and fire at least three times.

An owner from a nearby building came forward and reported his surveillance video showed an angry motorist “punching the shit” out of Isaacs through a car window before the officer shot the motorist.

Then, a separate video obtained by the Post showed just one second passing as Small approached the car and Isaacs began firing; suggesting, perhaps, there was not enough time for Small to repeatedly strike Isaacs in the face before Isaacs retrieved his service weapon and fired. This further suggests Isaacs may have lied or exaggerated his fear in an attempt to justify his shooting.

Not to condone any sort of road rage, but do we expect more of officers? Are they judged like any other citizen in their off-duty moments? Can Isaacs simply claim fear for his life, like most officers involved in shooting incident, and be justified in shooting?

As Greg Prickett points out in the Alton Sterling case, officers responded to a “man with gun” call, perhaps heightening the officers’ fear of the situation and concern over their own safety. He went so far as to opine as to justification for the shooting based on the call, statements, and actions. And, he aptly points out that officers do not need to wait until fired upon to take action.

Yet, in this case, can an off-duty officer use the same justification? Certainly there was no call to provide him additional information about weapons or violence. Isaacs saw no other apparent activity leading him to believe Small might be dangerous or in possession of a weapon. Even in the released video, Isaacs is in his car, with no vehicles in front of him. Could he have simply driven away safely and avoided further violence? Could he have attempted to de-escalate the situation? Could he justify using a gun to defend against fists?

Self-defense laws generally allow an actor to use force upon another person when and to the extent he reasonably believes such to be necessary to defend himself from what he reasonably believes to be the use or imminent use of unlawful physical force. Deadly force is generally justified to the extent that it is reasonably necessary to defend against deadly force.

The distinction drawn between using force or deadly force is related to the degree of force or threatened force the actor is defending against. Thus, in a fistfight, the actor usually cannot resort to deadly force to defend himself from the fist. Yet, where a gun, or other deadly weapon, is present, and there is at least a threat of deadly force, the actor is usually justified in using deadly force.

Here, no facts are known to suggest Small had any sort of deadly weapon or presented any type of deadly force against Isaacs. Thus, does Isaacs have the right or justification to use deadly force to defend against the fist? It certainly does not appear he did.

Even sources close to the investigation are reporting Issacs will likely face some sort of charge for his conduct:

“The video is pretty damning,” a source close to the investigation said.

One police official believes a grand jury will be called in the case against Isaacs, 37, who could face a manslaughter charge.

“You’ll see some sort of charges filed,” the official said. “You have a person who is unarmed and they’re going to say the level of force used, versus force used against him, does not add up.

“When you use deadly force, there has to be some sort of grave danger to him. He can’t just say, ‘I got punched so I shot him.’ ”

As investigations continue, more details will reveal whether or not Isaacs gets the cop-given benefit of the doubt or is treated like a regular citizen. Perhaps Isaacs was simply relying upon the First Rule of Policing and wanted to make it home for dinner. But, does that change the rules for self-defense? Does being a cop, albeit off-duty, justify bringing a gun to a fistfight? Some will say it does. Others will say it does not, and Isaacs is no less guilty of murder than anyone else who used a gun to kill when he wasn’t confronted with deadly force, or could have retreated or driven away without any fear of harm

While most people believe that a cop on duty deserves the benefit of the doubt, can the same be said when the situation has nothing to do with his being a cop, even though he still has a gun? Or to put more of a point on the issue, had it been anyone but a cop, would there be any doubt of prosecution for the killing?

*News reports initially named Delron “Smalls” Dempsey as the shooting victim. Subsequent reports refer to Delrawn Small.

4 Comments on this post.

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  • Kemn
    14 July 2016 at 10:09 am - Reply

    So, does NY have the types of laws that FL has, such as Stand Your Ground? Because, if so, then there is no requirement to retreat. Simply being in danger (even if it’s not necessarily mortal) frees up the person to use deadly force in “self defense”…

    • JoAnne Musick
      14 July 2016 at 10:34 am - Reply

      Generally speaking, stand your ground laws simply remove the requirement to retreat – it does not elevate the right of self-defense to the right of deadly self-defense. Simply being in danger does not free up the person to use deadly force as self-defense. Not in Texas, not in New York, and not in Florida.

      Your statement is wrong and somewhat misleading. “Being in danger” is not the legal definition in any of these states. The danger the actor faces will determine the reasonableness of the action taken. If someone is in danger of death or serious bodily injury, they may be able to use deadly force – it is reviewed in terms of what a reasonable person standing in the actor’s shoes would have believed was the amount of force necessary for self-defense.

      • Kemn
        14 July 2016 at 3:08 pm - Reply

        Thank you for the insight. Apparently I watch too much TV news.

  • Jaroslaw
    22 September 2016 at 9:35 am - Reply

    I would say if an angry anyone approaches my car, I shouldn’t have to wait until he/she pulls out a gun. I’m not suggesting this become the wild west, shoot first ask questions later, but Delrawn had a lengthy arrest history. No, the off duty officer didn’t know this, but it suggests Delrawn might be a hothead, absent audio in the videos, which from what I’ve seen so far, are so blurry, I can’t tell anything.