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A Civil Solution (Sean Bell & the NYPD)
City Journal ^ | 27 March 2007 | Heather Mac Donald

Posted on 03/27/2007 1:04:42 PM PDT by neverdem

The narrow framework of criminal law doesn’t fit fatal police miscalculations.

In late March, a Queens grand jury indicted three of the five officers who shot at Sean Bell’s car outside a Jamaica strip club last November, and exonerated the remaining two. The grand jury received widespread praise for careful reasoning. But the only thing that the indictments show is how inappropriate a criminal-law template is for police actions. It is probably too much to hope that Albany legislators will face down anti-police politics and correct that ongoing injustice. Nevertheless, we desperately need an alternative, non-criminal legal regime for responding to police officers’ mistaken use of force.

It’s hard to find a sound rationale for the grand jury’s wildly divergent judgments. In the tense moments before the shooting, undercover detective Gescard Isnora overheard a heated argument between Bell’s party and an apparently armed pimp over a prostitute’s services. “Let’s fuck him up,” Bell said, referring to the pimp, and Bell’s companion, Joseph Guzman, responded: “Yo, get my gun, get my gun.” Isnora reported this exchange to his colleagues at the scene. After Bell, Guzman, and another friend, Trent Benefield, got into Bell’s Nissan, Isnora identified himself as an officer and ordered the car to stop. Instead, the car repeatedly hit a police minivan and Isnora himself. Then Isnora saw Guzman make a gesture that the officer interpreted as reaching for a gun. Isnora shot first, followed by the remaining four officers. The extremely fast volley of 50 shots killed Sean Bell and wounded his two companions.

All five officers believed that the car and its occupants posed a deadly threat. But there, according to the indictments, the similarities end. The indictments’ distribution of culpability, agency, and criminal states of mind is mystifying; the only unifying principle seems to be that the fewer rounds an officer fired, the lower his chances of indictment. The two cops who fired three shots and one shot, respectively, weren’t charged, while a third officer, who fired four shots, received two counts of reckless endangerment in the second degree. Isnora (11 shots) and Michael Oliver (31 shots) were indicted for manslaughter in the first degree for intending to cause serious physical injury to Guzman while in fact causing the death of Bell, and for manslaughter in the second degree for recklessly causing the death of Bell by shooting him. How either charge applies to Isnora, since none of his bullets actually hit Bell, remains unclear.

The grand jury’s determinations of the officers’ mental states were equally quixotic. While Oliver was indicted for assault in the first degree for intending to cause—and in fact causing—serious injury to Benefield, Isnora was indicted merely for recklessly injuring Benefield, constituting assault in the second degree. It is extremely unlikely that Oliver’s intentions toward Benefield were any different from Isnora’s, however. And the third indicted officer, Marc Cooper, was only charged with two counts of reckless endangerment for recklessly shooting on an occupied street and for hitting an elevated train platform above the street, even though his mental state, as well as those of the two exonerated officers, was identical to Isnora’s and Oliver’s.

Perhaps the trial will clarify some of these seemingly random distinctions; perhaps, for example, the location of each officer’s bullets will make some sense of the grand jury’s decisions, though it’s doubtful that the bullets still remaining in Guzman and Benefield have been identified. But at this point, the grand jury’s distinctions among the five officers don’t seem to show fine discrimination. An officer’s culpability should not depend on the number of bullets he shoots; one bullet can kill as well as 30, and the intentions of all five shooters were the same—to stop the potentially deadly threat coming from Bell’s Nissan and its occupants, whom the cops believed to be armed. Moreover, if it turns out that the two officers who fired the least number of shots were not indicted for anything because their bullets didn’t actually hit the car’s occupants, it’s unclear why Isnora, whose bullets also didn’t hit Bell, should be indicted for killing him.

These troubling inconsistencies are just the start of the injustices that result from shoehorning good-faith police work into the narrow framework of criminal law. When an officer winds up criminally indicted for a fatal shooting, his best hope is the “justification” defense: if he can show that he reasonably believed that he faced the imminent use of deadly physical force, and that his own use of deadly force was necessary to defend himself, then he must be exonerated of homicide. In indicting Isnora and Oliver for Bell’s death, therefore, the grand jury implicitly decided either that the detectives did not reasonably believe that the car and its occupants posed a lethal danger, or that it wasn’t necessary to shoot at the car to stop whatever danger it posed.

At the forthcoming trial, the prosecution likely will make just those arguments—especially since no gun ever turned up in Bell’s car. For starters, the prosecution may argue: Just because someone says that he is getting his gun does not mean that he actually has one, has gotten it, or is prepared to use it against you. Just because a car is driving at you does not mean that it intends to mow you down; the driver could be clumsily trying to pull away. Even if a car is trying to mow you down, it is not necessary to fire at it to stop the threat; you can just jump aside.

The court battle between an officer asserting a justification defense and a prosecutor trying to negate it poses an important political question: How much second-guessing of an officer’s good-faith actions do we want our criminal system to engage in? The justification for some uses of deadly force will be clear-cut: a perpetrator shoots at you and you fire back in self-defense. Many other incidents, however, will involve questions of officers’ judgment in a split second of terrifying confusion, fear, and lack of knowledge. Any clever prosecutor can poke numerous holes in an officer’s assessment of risk, enjoying as he does the luxury of leisurely after-the-fact analysis, conducted in an office where shootings are obviously rare or nonexistent. There is no obvious logical principle for determining how much benefit of the doubt to give officers acting in the line of duty. And that is one reason to take the matter out of a criminal context entirely.

The second reason for decriminalizing the issue of police judgment is that once a prosecutor knocks away a justification defense, an officer’s use of force looks indistinguishable, under the law, from a heinous criminal action. If a judge or jury determines that Isnora and Oliver weren’t justified in firing their weapons—and if the prosecutor overcomes the nagging problem that Isnora didn’t even hit Bell—then their actions seem to fit squarely within the definition of manslaughter, at the very least. After all, when Isnora, Oliver, and the other three officers fired their weapons, they did “intend to cause serious physical injury,” to quote New York’s definition of first-degree manslaughter. In the language of police training, they intended to “stop the threat,” and stopping a threat by firing a weapon necessarily means intending to cause serious physical injury, if not death. (As much as police departments have worked to retire the expression, officers do shoot to kill; it’s what they’re trained to do when confronting a deadly threat.) So any time an officer’s deadly use of force is deemed unjustified, it will fall logically within the category of manslaughter, if not murder.

But such a result clearly represents a miscarriage of justice. Even if an officer is judged, from the safe distance of hindsight, to have miscalculated a risk, it distorts the intention of the criminal law and the meaning of an officer’s actions to equate those actions with a morally reprehensible felony. Except in rare cases, officers seek in good faith to protect the public from evildoers. They have authority to use even deadly force summarily, so sure is society of their good intentions. For society to then turn around when they make a split-second miscalculation, strip them of those good intentions, and dump them in a criminal category along with the most murderous felons, is wrong.

A better solution to the rare problem of officers’ mistaken shootings would be to adjudicate them almost exclusively within a civil-law context, as torts. Doctors undoubtedly cause many more deaths a year from mistaken judgments and faulty procedures than police officers do, yet murder or manslaughter prosecutions of doctors acting in their professional capacity are almost unheard of. Instead, we expect someone injured by a medical procedure, or his estate, to sue for monetary damages. In fact, someone who believes that a police officer has wrongfully injured him may already sue for damages. But society tolerates criminal action against the officer as well. We should eliminate this double whammy. Besides civil liability for the officer or his department, a further appropriate penalty for severely mistaken force decisions could be firing the officer and decertifying him for future police work.

One obvious difference between a medical and a police context is that doctors who injure patients do not actually intend to do so, whereas officers who shoot someone in what is later seen as mistaken self-defense do actually intend to injure, if not kill. But this difference should not be determinative. The ability to use deadly force is an inevitable concomitant of policing in our violent society; far more relevant in deciding how to evaluate injurious police actions is the fact that in all but the most aberrant situations, officers who use their weapons do so trying to protect lives and maintain public order.

The consequences of the misguided criminalization of good-faith police behavior are dire: collapsed officer morale and reluctance to engage in assertive policing. After the grand jury indicted the three Bell officers, the following typical comments appeared on an unofficial NYPD officer website: “I’m done with this job. . . . No more caring, no more trying”; “If a location is out of control, let it get out of control. . . . Let [it] engage in prostitution and drugs and everything else. Nobody cares. Why should you?” The sense of bitterness and betrayal was palpable. The officers were well aware of the sea change in policing that occurred in the 1990s, when the NYPD went from a passive, reactive organization that responded to crime after the fact to one that tried to stop crime before it happened. The website’s contributors called that change “caring about the community”—a care that now seemed naive and misplaced.

New York cannot afford to crush its police officers’ dedication to protecting the public. One can only hope that the officers in the Bell shooting are acquitted. But regardless of their fate, it is time to remove the threat of criminal stigma and imprisonment from policemen and policewomen acting in good faith to keep us safe.


TOPICS: Constitution/Conservatism; Crime/Corruption; Politics/Elections
KEYWORDS: banglist; donutwatch; nypd; seanbell; waronsomedrugs

1 posted on 03/27/2007 1:04:44 PM PDT by neverdem
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To: neverdem

there is no way they can get a fair trial without a change of venue.


2 posted on 03/27/2007 1:10:36 PM PDT by oceanview
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To: neverdem

This is stupid... Cops need to be held to a higher standard than other people that carry guns, not lower.


3 posted on 03/27/2007 1:10:54 PM PDT by babygene (Never look into the laser with your last good eye...)
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To: neverdem
There are some very good points raised in this article, but I believe this case clearly illustrates why a blanket "decriminalization of police judgement" is a bad idea.

The important thing to remember is that this was a classic situation involving police acting in a "preventive" context rather than a "reactive" context. In other words, the police were not on the scene because someone had called them to report a crime; rather, they were there conducting an undercover operation to "get guns off the street," "fight the war on drugs," etc.

There's no way in hell an armed police force -- particularly one in a city where about 99% of all law-abiding citizens are prohibited by law from arming themselves -- should ever be given a blanket exemption in cases where their judgement comes into question like this.

4 posted on 03/27/2007 1:11:27 PM PDT by Alberta's Child (Can money pay for all the days I lived awake but half asleep?)
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To: oceanview

"there is no way they can get a fair trial without a change of venue."

I might add, the guy that was killed didn't get a fair trial either...


5 posted on 03/27/2007 1:12:20 PM PDT by babygene (Never look into the laser with your last good eye...)
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To: babygene

the issue at trial is whether this was a criminal act by the police.


6 posted on 03/27/2007 1:13:54 PM PDT by oceanview
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To: Alberta's Child

NYC tried the "reactive only" mode for policing. it failed miserably.


7 posted on 03/27/2007 1:15:22 PM PDT by oceanview
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To: neverdem
The article's premise, which I take to be that police officers are treated unfairly or more unfairly than regular citizens by the criminal justice system, doesn't hold water. Police officers are rarely charged with murder or manslaughter and almost always beat it.
8 posted on 03/27/2007 1:15:27 PM PDT by Smogger (It's the WOT Stupid)
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To: oceanview

If that's the case, then it is basically a police state -- which means there is an inherent assumption that police officers will sometimes (or even often) abuse their authority in the course of their work.


9 posted on 03/27/2007 1:18:24 PM PDT by Alberta's Child (Can money pay for all the days I lived awake but half asleep?)
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To: babygene
I might add, the guy that was killed didn't get a fair trial either...

True, but for anyone here who is unfamiliar with that neighborhood in New York City . . .

The police could have shot three people at random that night, and there would be at least a 50-50 chance that all three of them were guilty of a violent crime at some point in the last five years.

Not that this excuses criminal behavior by the police, mind you . . . but it does explain why most people really don't give a damn about the "victims" in the case.

10 posted on 03/27/2007 1:21:13 PM PDT by Alberta's Child (Can money pay for all the days I lived awake but half asleep?)
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To: Alberta's Child

" The police could have shot three people at random that night"

They pretty much did...


11 posted on 03/27/2007 1:28:32 PM PDT by babygene (Never look into the laser with your last good eye...)
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To: babygene

I don't know that for sure . . . and I suspect you don't, either.


12 posted on 03/27/2007 1:31:37 PM PDT by Alberta's Child (Can money pay for all the days I lived awake but half asleep?)
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To: Alberta's Child

there are more civil rights violations at highway traffic stops across the US - where speeding tickets are at issue - then there are in these NYPD undercover operations "gone bad". you can tune into COPS any weekend and see police letting dogs chase down suspects, police have tasered pregnant women - all over traffic violations. on the whole, the NYPD is pretty reasonable if you ask me.

The Diallo shooting was far worse then this Bell incident, those officers were acquitted.


13 posted on 03/27/2007 2:07:27 PM PDT by oceanview
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To: Smogger

in cases that clearly had police behavior stepping beyond the bounds of anything related to their jobs - like the Louima case - long jail sentences were imposed on cops.


14 posted on 03/27/2007 2:11:24 PM PDT by oceanview
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To: oceanview
I don't watch "COPS," so I'll have to take your word about whatever you've posted here.

Other than traffic stops (which I have long regarded as a peculiar element of our legal climate), how many cases on that show involve undercover police officers trying to "prevent" crimes?

15 posted on 03/27/2007 2:25:01 PM PDT by Alberta's Child (Can money pay for all the days I lived awake but half asleep?)
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To: Alberta's Child
There's no way in hell an armed police force -- particularly one in a city where about 99% of all law-abiding citizens are prohibited by law from arming themselves -- should ever be given a blanket exemption in cases where their judgement comes into question like this.

An excellent point.

We must hold police to a high standard.

16 posted on 03/27/2007 2:25:21 PM PDT by highball ("I never should have switched from scotch to martinis." -- the last words of Humphrey Bogart)
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To: babygene
I might add, the guy that was killed didn't get a fair trial either...

He tried to assault a police officer with his vehicle; otherwise this would have been a case of undercover officers questioning and releasing him and his companions.

These guys chose to act the thug role. Playing thug can get you hurt.

17 posted on 03/27/2007 2:37:39 PM PDT by JimRed ("Hey, hey, Teddy K., how many girls did you drown today?" (Hello, I'm a TAGLINE virus. Please help m)
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To: babygene

"They pretty much did..."

No they didn't. They had good reason to believe that the guys, or at least one of them was armed and that something along the lines of a shooting was imminent. That is why they swarmed and surrounded the car. That is also why they were scared shiteless and running on pure adrenalin.

Though one could say they are guilty of being the wrong gender while empting the clip.

The female cop who a year or so ago, emptied her weapon at a violent suspect whom she knew for an abolute fact to be unarmed was being hailed as a hero by the mayor the next day. I believe she hit her partner or another cop but that didn't get in the way of being lauded as a good, stand-up cop.





18 posted on 03/27/2007 2:48:24 PM PDT by TalBlack
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To: Alberta's Child
When police officers routinely engage in fabrication of reports and perjury in criminal trials, I hardly see reason to give them more license to break the laws. When the DA holds classes for the officers on how to write a report of a traffic stop that would make almost anyone appear intoxicated and evidence is commonly planted in drug casses, we need more restrictions, not fewer.

I have a friend who is a criminal defense attorney. She says all of the traffic stops contain precisely the same language and findings, in the same order, almost as if they were copied off a script.

19 posted on 03/27/2007 2:49:12 PM PDT by CholeraJoe (Hajjis HATE the waterboard! It can turn a clam into a canary so fast Harry Potter would be jealous.)
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To: CholeraJoe
When police officers routinely engage in fabrication of reports and perjury in criminal trials, I hardly see reason to give them more license to break the laws.

Further, I would posit that when government agents are given more powers, they will almost invariably use these powers to go after the easiest targets, rather than those whose prosecution would most benefit society.

20 posted on 03/27/2007 3:57:20 PM PDT by supercat (Sony delenda est.)
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To: neverdem; firebrand; Cacique
Besides civil liability for the officer or his department, a further appropriate penalty for severely mistaken force decisions could be firing the officer and decertifying him for future police work.

Sounds sensible, but it still puts our fine civil servants above the (criminal) rule of law.

One can only hope that the officers in the Bell shooting are acquitted.

How about having a TRIAL first Heather!

I used to think that Heather was a moderate libertarian, but her fetish for "lawr and ooor-dah!" makes me question this initial assumption. As a matter of fact, other than "lawr and ooor-dah!" and being tough on terrorists (the latter idea I agree with her wholeheartedly on), I don't see her talking about anything else.

21 posted on 03/27/2007 4:02:59 PM PDT by Clemenza (NO to Rudy in 2008! New York's Values are NOT America's Values! RUN FRED RUN!)
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To: Alberta's Child

well, much of the action on that show involves the use of traffic stops as an "on ramp" to vehicle searches for drugs, guns, etc. so certainly there is some crime prevention in that model. look at the NJ state police, for years before the "racial profiling" scandal hit, they aggressively uncovered drug and gun trafficking on the Turnpike - so I would certainly say they were involved in preventing crime.


22 posted on 03/27/2007 5:10:53 PM PDT by oceanview
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To: neverdem
If a judge or jury determines that Isnora and Oliver weren’t justified in firing their weapons—and if the prosecutor overcomes the nagging problem that Isnora didn’t even hit Bell—then their actions seem to fit squarely within the definition of manslaughter, at the very least. After all, when Isnora, Oliver, and the other three officers fired their weapons, they did “intend to cause serious physical injury,” to quote New York’s definition of first-degree manslaughter. In the language of police training, they intended to “stop the threat,” and stopping a threat by firing a weapon necessarily means intending to cause serious physical injury, if not death... But such a result clearly represents a miscarriage of justice. Even if an officer is judged, from the safe distance of hindsight, to have miscalculated a risk, it distorts the intention of the criminal law and the meaning of an officer’s actions to equate those actions with a morally reprehensible felony.

Yet they have no problem whatsoever when they do the same damn thing to us peasants, who don't have a fancy police union and the resources of the state to defend us, and the benefit of the doubt from most jurors; as pubic servants they SHOULD be held to higher standard, not a lower one. This just makes me certain that they DO need to be prosecuted more vigorously in cases like this.

23 posted on 03/30/2007 7:43:07 PM PDT by LambSlave (If you have to ask permission, it is not a right.)
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