Joon H. Kim, the Acting United States Attorney for the Southern District of New York, announced today that there is insufficient evidence to pursue federal criminal charges in connection with the fatal shooting of Mohamed Bah.  Mr. Bah was killed during an encounter with police officers from the New York City Police Department (“NYPD”) on September 25, 2012.  The Acting U.S. Attorney met today with Mr. Bah’s family and their counsel to inform them of this decision.

The New York County District Attorney’s Office investigated Mr. Bah’s fatal shooting, and on November 26, 2013, a Manhattan grand jury voted not to bring criminal charges against any officer involved in the shooting of Mr. Bah, finding that the use of deadly force was not unlawful.  Nevertheless, after following the progress of the civil litigation relating to Mr. Bah’s death, receiving documents from Mr. Bah’s family’s counsel in October 2015, and the unsealing of a ballistics report, this Office began to conduct an independent review into the death to determine whether a federal civil rights crime could be proven.

As Mr. Kim informed Mr. Bah’s family today, the only determination the Office made was whether a federal crime could be proven under the standard applicable to criminal cases, which is proof beyond a reasonable doubt.  The Office did not reach any conclusions on any other issue, nor did it evaluate the officers’ actions under any other standard.  The Office expresses no view regarding any claims made against any party under the standard applicable to civil cases, which is proof by a preponderance of the evidence.

After conducting a review of the evidence, including physical and documentary evidence, as well as grand jury and civil deposition testimony, this Office has determined that there is insufficient evidence to meet the high burden of proof required for a federal criminal civil rights prosecution.  To prove a violation of the federal criminal civil rights statute, prosecutors must establish, beyond a reasonable doubt, that a law enforcement officer willfully deprived an individual of a constitutional right, meaning that the officer acted with the deliberate and specific intent to do something the law forbids.  This is the highest standard of intent imposed by law, and is different from and higher than the intent standard under the relevant state statutes.  Neither accident, mistake, fear, negligence, nor bad judgment is sufficient to establish a federal criminal civil rights violation.

In reaching this determination, the Office considered, among other things, testimony from the only eye witnesses to the events (law enforcement officers) that Mr. Bah was holding a knife and lunged at the officers, the fact that vests worn by officers at the scene have slashes consistent with penetration by a knife, and the lack of video evidence of the incident.  The Office also considered the testimony of officers present that non-lethal force, including Tasers, was used before lethal force was deployed, and that shots were fired virtually simultaneously only after non-lethal force was used.  Finally, the Office considered the autopsy report prepared the day after the shooting and conducted an independent ballistics analysis.  After reviewing such evidence, the Office made the determination that it could not prove beyond a reasonable doubt that any officer willfully violated Mr. Bah’s constitutional rights.

Accordingly, this Office’s investigation into Mr. Bah’s death has been closed.

Mr. Kim expressed his deep sympathy to the family of Mr. Bah for their tragic loss.