Along the busy streets of Borough Park where Gidone Busch spent his final days, the events that led to his death five years ago have been analyzed again and again: a barely dressed man with a tallit and a hammer; two visits by the police; 12 gunshots; a dead man in a driveway.
“They didn’t have to shoot him,” said Ben Simcha, who lives a block away from the 46th Street apartment where Busch was gunned down, and was among the protesters who filled the streets on the night of Aug. 30, 1999. “They shouldn’t have used so much force. They could have persuaded him to drop the hammer.”
No charges were filed against the police officers involved, and in November a federal jury declined to hold five of them liable for civil penalties sought by the Busch family.
But now that the judge who presided over that trial has called it a “miscarriage of justice” — throwing out the verdict and ordering a new trial — scrutiny of the incident is likely to continue for some time.
And barring a settlement or a reversal of the ruling by Judge Sterling Johnson, the scrutiny will be in the courtroom as well as on the street.
“The Torah says the truth shall sprout up from the ground,” said Joseph Lieberman, a Borough Park resident who on Tuesday morning was visiting the block where the shooting took place. “[Busch’s] blood is still seeping in the ground and the truth will come out. There will be justice in his death.”
Busch, 31, had been behaving erratically when neighbors called police, who at first declined to arrest him or take him for psychological evaluation.
After a second call, Busch confronted the cops, who used pepper spray to subdue him when he refused to drop his hammer. When Busch emerged from his apartment and struck one of the officers with the hammer, the cops surrounded him and opened fire.
During a monthlong trial, lawyers for the Busch family presented witnesses who said he was too far away to threaten the officers when they opened fire.
Lawyers for the city argued successfully that the officers had no choice but to defend themselves, and the cops testified that they had reason to fear for their lives.
The jury deliberated only a few hours before ruling for the defendants.
In their questioning, city lawyers focused on the closeness of the Borough Park community and repeatedly asked witnesses whether they had discussed the case among themselves. The strategy was widely seen as an effort to imply that the witnesses conspired on details of the incident to aid the plaintiffs.
But in his 41-page ruling, the judge made clear which side appeared more credible.
“The Court discounts defendants’ argument that the civilian witnesses colluded with one another …,” Johnson wrote. “On the other hand plaintiff presented specific testimony suggesting collusion by the officers.”
Borough Park Assemblyman Dov Hikind said the ruling was a “vindication” of those, like him, who questioned the police version of events.
“The city compounded the tragedy when they impugned the community,” he said.
Johnson — a former cop and a former executive director of the city’s Civilian Complaint Review Board — referred in his ruling to “untruthful statements” by one officer, Lt. Terrance O’Brien, and to “exaggerated or overstated versions of the events” by other cops that “undermine the officers’ credibility” and “conflict with evidence.”
For example, Johnson cited unsupported claims by the officers that Busch was lunging at the time he was shot and forensic evidence that showed he was not shot at close range.
Noting that two of the six officers surrounding Busch held their fire, the judge said it was “implausible” that they would have hesitated to shoot had he been lunging with the hammer.
Johnson also said the testimony of Lipa Ionovitch, the only civilian witness to the incident to support the police version of events, “strains credulity” and contradicts every other version, including that of the cops. Ionovitch was the only witness to testify that Busch swung the claw end of the hammer and that the cops were backed up against a wall, the judge noted.
The judge rejected a motion by the Busch family to issue his own verdict in the case. Such a motion, Johnson said, must be made prior to jury deliberations.
He also declined a request to interview the jurors about possible bias — one allegedly wore an NYPD cap to court — because it might undermine “public confidence in judicial finality” and interfere with the ability of future jurors to do their duty.
Doris Busch Boskey, Busch’s mother, said she was “pleased with the judge’s decision, but I need a few days to decide what to do from here. It shows that maybe somewhere there is a ray of hope that there will be some kind of accountability.”
Following the ruling, several elected officials called on Mayor Michael Bloomberg to pursue a settlement with the family.
“To put them through another trial would be too painful,” wrote Hikind, joined by City Council Speaker Gifford Miller and Council members Simcha Felder and Bill de Blasio, both of whom represent portions of Borough Park.
In a statement, the city’s top lawyer, Michael Cardozo, said the judge’s decision was “wrong both legally and factually. It is for the jury — not the judge — to weigh the credibility of the witnesses.” He said the city would “weigh all its legal options.”
Glenn Busch, Gidone’s brother, said the city has never contacted the family to discuss a settlement, noting that after the trial, lawyers tried to collect some $170,000 in legal fees.
“I’m surprised the city continues to vehemently defend the officers involved in this shooting, during the trial and still,” Glenn Busch said. “We intend to pursue justice. If that means another trial, then we’ll have another trial.”
On Tuesday, outside the basement apartment where Busch lived, small children played with their Russian nannies on the sidewalk where he bled to death. There is no memorial or telltale signs of the incident.
Across the street Lieberman, a writer, said he believed the officers involved were poorly trained and should either be removed from the police force or assigned to desk duty.
“I don’t think they did it intentionally,” he said. “But there is no way they mistook the hammer for a gun. They should have disarmed him without using firearms.”
Around the corner on 16th Avenue, Simcha, a musician, also said he felt the cops “should be found guilty.” But he added, “In general, I think the police are doing a great job protecting the neighborhood.”