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A Civil Solution By: Heather Mac Donald
City Journal | Wednesday, March 28, 2007


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.

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Heather Mac Donald is a contributing editor of City Journal and the John M. Olin Fellow at the Manhattan Institute. Her latest book, coauthored with Victor Davis Hanson and Steven Malanga, is The Immigration Solution.


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